Human rights – torture and terrorism

The topic of terrorism and whether or not torture is permitted against those so accused is a topic that is rife with complications and arguments back and fought. Sadly, the debate usually becomes emotional and intellectual reasoning falls at the wayside all too frequently. When it comes to human rights, the rule of thumb to remember is that rights apply to all not just the one! So think of yourself, your neighbour, your family and what rights apply to them, and then apply those same rights to those accused of terrorism and/any other crime. Keep in mind that The Rule of Law applies in all circumstances.

Keep in mind as I have said before in my post on the Rule of Law: 

State intervention usually means the rule of law can be bent, twisted or downright broken. A case in point is the intervention of the State in Germany that led to Nazism and WW2.

So, we can see that the State has an important role to play in upholding rights and preventing abuse of power, even when involving terrorism and terrorists.

Yet, following major terrorist attacks such as September 11, 2001 (9/11) in the USA and July 7, 2005 (7/7) in London, many states began to take a relaxed approach towards the prohibition of torture. Usually, the explanations given is that the relaxation is in the interests of national security.

Protecting rights is not always easy as it means protecting those who are often despised by society and governments. The UK, for example, has been criticised by civil society organisations for taking a more relaxed approach to the prohibition against torture when dealing with suspected terrorists (Human Rights Watch, 2006).

© The Open University

For a more comprehensive look at how terrorism changed the landscape of human rights, I recommend Chapter 11 of The Rule of Law by Tom Bingham. It is interesting to note that the USA and the UK differed in three ways when dealing with terrorism:

1. The USA treats terrorists as war combatants while the UK treats them as criminals. This makes a great difference in applying the law.
2. The USA Congress passed a Presidential Military Order which authorised detention of suspects at any designated location worldwide with no guarantee of a trial, and if tried, it would be before a military commission where the standards of evidence was lower than applicable in ordinary courts and where the death penalty could be imposed. In contrast Westminster Parliament did not confer any comparative powers on the executive in Britain.
3. The UK courts cannot try a defendant brought into the country by rendition (unlawful seizing of a person in one country in order for him to stand trial in another country) because this is a breach of international law and is regarded as a blatant and extreme failure to adhere to the rule of law. In contrast, the US courts does not care how the defendant appears before it.

Further discussion is outside the scope of this level of the LLB.