Terrorism poses a serious danger to the development of the modern world. The right to security is one of the main rights while protection is one of the major responsibilities of the state. Thus, the latter has an obligation to guarantee the possibility to enjoy human rights to its citizens by taking positive action for their protection from the threat of terrorism. However, taking measures in combating terrorism, countries seriously violate civil liberties and the principles of the rule of law. Some states resort to torture and other ill-treatment ignoring the legal and practical guarantee such as regular independent monitoring of places of detention. Other issued suspects of terrorist activities could become victims of torture and other serious violations of human rights in other countries. Thus, an international legal obligation not to extradite is broken. These measures undermine the rule of law, governance and civil liberties. Furthermore, they are counterproductive to national and international efforts on the fight against terrorism. The terrorist attacks of September 2001 even strengthened the concerns about terrorism. This stimulated the adoption of measures to decrease the risk of attacks, sacrificing civil liberties.
Terrorism directly affects civil liberties depriving people of the opportunity to enjoy the right to life, liberty, and physical integrity. In addition to these casualties, terrorism could destabilize the government, undermine the functioning of civil society, and create a threat to peace, security and socio-economic development. Strengthening control over the possibilities of terrorists’ attacks means the infringement of civil liberties. Thus, the concerns about terrorism result in the reduction and even taking away civil liberties through the increase of government power.
The Notions of Terrorism and Civil Liberties
Civil liberties should be guaranteed for the protection of inalienable rights from illegal interference of others, especially government officials and the judiciary. Civil liberties are designed to limit the coercive action of the state which can be formally acquitted. These freedoms, in particular, include the prohibition of arbitrary arrests and detention, freedom of speech, legitimate freedom of assembly, freedom of association, and freedom of movement. Some civil rights such as the right to a fair trial are seen as an expression of respect for the rule of law. The value of civil liberties is reflected in attempts to provide them with constitutional guarantees.
Terrorism usually refers to acts of violence committed against the civilian population with political or ideological purposes. It is a criminal act intended on provoking a state of terror among the general public, group of persons or particular persons for political goals. It cannot be unjustifiable whatever the considerations of a philosophical, political, ideological, ethnic, racial, religious, or any other nature may be invoked to justify it.
Terrorism aims to eliminate civil liberties, democracy, and the rule of law. It strikes at the values that lie at the basis of the Charter of the United Nations and other international instruments. They include consideration of civil liberties, the rule of law, regulations of a war that defend civilians, tolerance between nations and peoples, and the peaceful solution of conflicts. Terrorist acts can destabilize the government, destroy civil society, undermine the security and peace, endanger the process of socio-economic development, and provide a particularly strong negative impact on certain groups of the population. This has a direct impact on the enjoyment of fundamental civil liberties.
Terrorism threatens the dignity and safety of people wherever they may be. Moreover, it takes the lives of innocent people and creates a climate of fear that does not allow one to feel free. Terrorism has a negative impact on the approval of the rule of law and undermines the functioning of a pluralistic civil society. It aims at the destruction of the democratic foundations of society and destabilizing legitimately constituted governments.
Terrorism has a connection with transnational organized crime, money laundering, drug trafficking, illegal arms trafficking, and illegal shipments of chemical, nuclear, and biological materials. In addition, it is associated with the commission of serious crimes such as murder, extortion, kidnapping, assault, seizure hostages, and robbery. Moreover, it negatively influences the socio-economic development of the states, endangers friendly relations among states, and affects their cooperation. Therefore, terrorism threatens the territorial integrity and security of states as well as violates the purposes and principles of the United Nations. It poses a threat to international peace and security and must be eradicated, which is one of the most important conditions of the maintenance of international peace and security.
To fulfill its obligations in the spheres of civil liberties that envisage protection of life and safety, the state may and should take effective counter-terrorism measures, prevent new terrorist acts, counteract them, and bring guilty persons to justice. However, combating terrorism raises serious issues concerning promoting and protecting civil liberties.
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Effects of Struggle with Terrorism on Civil Liberties
The ability to enjoy civil liberties is affected by both terrorism and the fight against it. Some measures that are taken by the state to protect people from terrorist acts seriously infringe on their right to life. These include intentional and targeted killings to eliminate particular individuals as an alternative to arrest and bring to justice. Before resorting to lethal force, the authorities should exhaust all possibilities for the arrest of persons suspected in committing acts of terror. Another violation of civil liberties consists of torture. The prohibition of torture and other cruel and inhuman handling do not allow derogation even in case of a threat of terrorism. Nevertheless, in practice, states often use such procedures and policies. Thus, the use of torture by “the Argentine military junta” was justified even after it was found that “men on death row were innocent of the violent crimes for which they had been convicted to die”. This fact proves the imperfection of the juridical system. After the terrorist attack on September 11, 2001, the United States “has curtailed the political and civil liberties of non-citizens, expanded the detention and surveillance powers of law enforcement agencies, tortured detainees, and tightened government secrecy”. This constitutes a serious violation of the civil liberties of Americans.
Moreover, states have an obligation to carry out any transfer of detainees in a manner that would be appropriate to human rights and the rule of law, including the right to dignity. However, some states extradite, deport or otherwise transfer suspects of terrorist activities of foreign nationals, who applied for asylum. Transfer of persons without compliance with the principle of legality threatens to distort human rights, particularly the rights to liberty and security of a person, the prohibition of torture and other cruel handlings, the right to recognition as a person, right to a fair trial, and right to private and family life.
All people are protected against illegal or arbitrary interference with their freedom. The protection is provided in the context of criminal proceedings and in other areas, in which the state can affect personal freedom. In practice, in the fight against terrorism, the state takes measures that affect freedom of identity. They include pre-trial procedures, the provisions related to exemptions under bail, pretrial detention, administrative detention, an order on measures of restraint of liberty, and others.
Consequently, this gives rise to discrimination. For example, Arab-Americans are at higher risk of harassment, surveillance, and mistaken arrest than other U.S. citizens. Thus, to reduce the risks of terrorism, the U.S. government adopted the law that provided the search of people and their luggage in airports. It would be not a problem if particular ethnical groups become not targets for these searches: the stated United States policy for screening is that it is largely random with respect to race and ethnicity rather than systematic.
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In addition, civil liberties of Americans experience serious violations after the adoption of the Patriotic Act. It was rashly passed by Bush Administration without following the usual legislative procedure, i.e., agency review, public hearings, mark up, floor debate, and conference report, in both chambers. The appliance of the Patriotic Act resulted in a long-term expansion of governmental power. It violates the Constitution, allowing tracing and prosecution of the U.S. citizens and their property without a warrant that is issued by an independent tribunal on the alleged grounds. Special courts of Foreign Intelligence Service which standards do not meet the constitutional requirements of the Fourth Amendment can issue a warrant to view personal data, including medical and library cards. The requirement to provide sufficient grounds before challenging the guarantee of protection of privacy does not complicate the investigation of terrorist activities. Firstly, the federal government has a huge number of tools to investigate and monitor the activity of non-citizens suspected of terrorism. Secondly, the restoration of the protection of the Fourth Amendment does not contradict the provisions of the Patriot Act, which lifted the ban that prevents the government forces of law enforcement and intelligence agencies to access information.
Kashan (2009) agrees that the measures included in this document are crucial for the prevention of terrorist attacks (p.86). Nevertheless, there are concerns about targeting freedoms o. Therefore, concerns about possible terrorist attacks cause a significant decline in the level of civil liberties.
The current balance between authority and freedom of man is broken in favor of the state, which is associated with the achievement of a single goal that is the protection of fundamental and most important civil liberties. Thus, the approach expressed in the improvement of conditions for respect and protection of the rights of citizens, securing guarantees of freedom and the rule of law, and realizing the potential of the new thinking must be provided. This aim can be achieved when people’s interests, rights, and freedoms would be put in the center of all the changes. A clash of interests of the state and individuals should be taken into account during the introduction of restrictions on the rights. The ratio of these interests must be balanced in a way that, on the one hand, the state would be able to enter the forced restriction of certain rights, and on the other hand, citizens would be protected from arbitrary state action.
Terrorism extremely threatens the security of states and their citizens. States seek to develop an effective policy to protect their citizens from the threat of terrorism through sometimes forget that they violate the civil liberties of citizens by enforcing the policy of fighting terrorism. The global fight against terrorism should be based on respect for civil liberties and the rule of law. This requires the development of national strategies on fighting against terrorism that would help prevent acts of terrorism as well as promote and protect the principle of the rule of law. In reality, the fight against terrorism gives the rise to the violation of civil liberties. Protecting the citizens from potential attacks, the governments take measures that obstruct the realization of civil liberties through extraordinary renditions, warrantless internal surveillance, and harsh detention policy.
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