Journal Article

Balance between Measures to Counter Terrorism and Protection of Human Rights

Abdelhadi, Mohamed Aboubakr Abdelmaqsoud, Ammar, Abdullah Alhabib

2018

Overview

The fight against terrorism is at the top of both national and international agendas in several Western countries. Terrorism threatens the stability of nations, and compromises the freedoms that people are entitled to enjoy. The fight, therefore, has necessitated targeted security investigations and combative measures beyond the conventional approaches used in addressing crime. Nonetheless, it is crucial that this fight should remain within the limitations of the international law of human rights. From this perspective, states are prohibited from exercising carte blanche in interfering with the rights of individuals under the guise of counter terrorism. Over time, the European Court of Human Rights has had to respond to several situations regarding states' upholding of the terms of the 1953 European Convention on Human Rights (ECHR), particularly that which concerns the treatment of persons suspected or accused of terrorism. The Court's ruling has often reinforced the requirement that the state reconciles their actions in the fight against terrorism with the requirements surrounding respect for human rights. Therefore, the Court has often sought to prevent anti-terrorism efforts from escalating into power plays and breeding grounds for the violation of human rights. The Court ensures that state actions that invoke Article 15 of the ECHR are sufficiently justified. The Court has also reviewed multiple cases, determining the possible violations of freedoms under Articles 8 and 10 of the ECHR relating to private life and expression, respectively. It also premises on the indisputable fact that states must take action to prevent disaster before its actual occurrence. In some instances, states' actions have amounted to blatant violation of rights, while other measures, such as GPS tracking of suspected terrorists, are evidence of the actions necessary for the acquisition of intelligence with the intention of preventing terrorism. These rulings provide a framework within which states may pursue their efforts against terror while strictly adhering to human rights as provided under the Convention. This paper aims to discuss and analyse the work of the European Court regarding the case presented, searching for the criteria that the respective Court has drawn in balancing the necessity of fighting terrorism on one hand and of upholding respect for fundamental human rights on the other. A review of the case law of the Court is required in this matter. In this paper, the topic will be considered in three main interrelated sections: Section One considers non- Derogable rights, which are of considerable concern in the fight against terrorism, Section Two seeks to ascertain the optimum balance between Ill-Treatment and human rights. Section Three will address the scope and applicability of refoulement in the ECHR, and Section. Four will discuss the standards of proof and real risk tests that are applied by the Court.

• Publisher: جامعة الإسكندرية - كلية الحقوق
• Subject: القوانين والتشريعات / المحكمة الاوروبية لحقوق الإنسان / حقوق الإنسان / مكافحة الإرهاب