This article has been written by Riya Johri, second year law student at Jindal Global Law School

ABSTRACT

 

The intricate interplay between human rights and national security frequently necessitates striking a careful balance between defending a nation’s security interests and preserving each person’s fundamental freedoms. Finding the ideal balance is crucial to preventing security measures from unnecessarily violating human rights. Sometimes, it seems as though national security and human rights are mutually exclusive.  When public officials discuss national security, they usually start from the premise that civil liberties and human rights protection occasionally come second to national security protection. The Indian government has enacted strict regulations aimed at thwarting terrorist threats and safeguarding national security, but these laws fall short when it comes to human rights considerations.

In the fifty years after gaining its independence, India has worked hard to fortify the institutional, legal, and constitutional framework that safeguards, advances, and institutionalizes human rights.

 

KEYWORDS

NHRC- National Human Rights Convention 

POTA- Prevention of Terrorism Act 

UPA- United Progressive Alliance 

UAPA- Unlawful Activities (Prevention) Act

 

INTRODUCTION

An intersection of domestic and international law, 

• DOMSESTIC LEGAL FRAMEWORK 

Constitutional safeguards:

 

The constitutions of many nations contain clauses protecting basic human rights. The particular rights at stake, including the right to privacy, the freedom of speech, and the right to a fair trial, must be carefully taken into account in order to strike a balance between national security and these constitutional guarantees.

Laws:

 

Laws are passed by national governments to solve particular security issues. In order to ensure that these legislations uphold both international human rights norms and constitutional rights, they need be carefully drafted. Laws ought to be precise, enforceable, and overseen by judges.

Executive Authority:

 

Executive authority is frequently granted by governments to counter risks to national security. To ensure that people’s rights are not unjustly abused, these authorities must be used within the confines of the law. Judicial review can be quite important when it comes to monitoring executive acts.

Powers for Emergencies:

 

Governments may use their particular authority to handle security threats during emergencies. To avoid abuses, however, the exercise of emergency powers should be restricted in scope, time-bound, and scrutinized.

Judicial Review:

 

Ensuring that national security measures adhere to domestic law and constitutional principles is a critical function of independent judiciaries. Mechanisms for judicial review aid in determining whether government activities are lawful and constitutional.

 

• INTERNATIONAL LEGAL FRAMEWORK 

International Human Rights Treaties: International Legal Framework

 

International human rights treaties that outline duties to uphold people’s rights are frequently ratified by nations. Standards that apply to national security measures are established by treaties like the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights (ICCPR).

International Humanitarian Law:

 

Parties to an armed conflict are subject to the rules of international humanitarian law (IHL). IHL creates regulations that strike a balance between military need and humanitarian concerns in order to protect civilians and non-combatants.

Mechanisms for regional human rights:

 

Human rights tribunals and institutions have been formed in many places to supervise the application of human rights norms. Human rights abuses can be addressed, for instance, through the European Convention on Human Rights and the Inter-American Commission on Human Rights.

United Nations Security Council:

 

The power to preserve or reestablish global peace and security rests with the United Nations Security Council. Nonetheless, the Security Council needs to take into account the possible effects on civilians and ensure that any measures adhere to human rights norms.

 

• Difficulties and Things to Think About: International Standards vs. Sovereignty

 

Navigating the conflict between a state’s sovereignty and international human rights norms is necessary to strike a balance between national security and human rights. It is imperative for nations to guarantee that their legal frameworks comply with their global commitments.

Counterterrorism Interventions:

 

Actions taken in the name of counterterrorism frequently have an effect on individual rights. Achieving a balance between addressing legitimate security issues and avoiding overreach and human rights abuses demands careful study. 

Information Exchange and Cooperation:

 

When it comes to security issues, international cooperation is crucial. Sharing of information and cooperative efforts, however, need to be done in a way that complies with data protection regulations and human rights doctrine.

Diversity in Law and Culture:

 

Diversity in law and culture must be considered while balancing national security and human rights. It can be difficult to adapt strategies to various situations while upholding universal rights; this calls for careful thought.

Technology Difficulties:

 

Technological advancements present new difficulties. Privacy rights, for example, may be impacted by surveillance technologies. A constant worry is making sure that technical developments respect human rights norms.

 

HUMAN RIGHTS AND ARMED CONFLICT

Modern humanitarian law and human rights law are based on the international legal instruments that were enacted at these conferences. Of these, the four Geneva Conventions (1949) and their two Additional Protocols (1977) are the most significant. The four Geneva Conventions were primarily intended to establish humanitarian standards for conduct during international armed conflicts. The Fourth Geneva Convention, which addresses the protection of civilians during times of war, enumerates some acts that parties are required to abstain from under all circumstances. These include acts that are acknowledged to be against the most fundamental human rights, like putting one’s life in jeopardy through violence, torturing, and coercion—either physical or moral—as well as failing to follow numerous due process rights. 

 

• Human rights and humanitarian law’s relationship

 

A simple graphic explanation of the connection between the law of armed conflicts and human rights law may be found below. A nation may find itself in one of four scenarios at any one time. For each of the four instances above, a different set of international standards applies. The figure illustrates the two spheres of international law and their respective areas of applicability.

 

Human rights law offers the highest level of protection under “normal” circumstances, or peacetime, and may provide less protection during non-international military conflicts or international conflicts. The purpose of international humanitarian law is to control how parties to an armed conflict interact with one another. There can be no deviation from its requirements because they already consider the criteria of proportionality, military necessity, and humanity. The same Article 3 found in all Geneva Conventions lays out these standards that are applicable in every situation.

 

HUMINATIRAIAN INTERVENTION

When a state or states employ force against another state with the stated goal of putting an end to or lessening suffering within the first state, this is referred to as humanitarian intervention. This suffering could be brought on by a civil war, a humanitarian disaster, or crimes committed by the first state, such as genocide. When launched by an international body, like the UN Security Council, humanitarian intervention is customarily justified in cases of severe human rights violations. This is because, among other things, Article 28 of the UDHR guarantees the right to a social and international order where human rights are realized. The UN Security Council is required by the Chapter VII powers to authorize intervention in response to threats to global peace and security. Any such action violates Article 2(4) of the Charter, which states the general principle of non-intervention.

 

In their international dealings, all Members should desist from threatening or employing force against the political independence or territorial integrity of any state, or from acting in any other way that would be contrary to the objectives of the UN.

 

CASE LAW 

The relationship between national security and human rights has been the subject of numerous court cases, which have shaped numerous jurisdictions’ legal systems and established significant precedents. A careful balancing act is frequently required when interpreting human rights standards in the context of national security.

Few case laws are as follows, 

• Bush v. Rasul (2004):

  This case dealt with the detention of foreign nationals at Guantanamo Bay was the subject of this case. The Supreme Court ruled that foreign individuals incarcerated at Guantanamo have the right to contest their detention and that U.S. courts have the authority to consider their habeas corpus petitions.

• Rumsfeld v. Hamdan (2006): The case contested the military commissions that the US government set up to try inmates at Guantanamo Bay. The Geneva Conventions and the Uniform Code of Military Justice were both broken, according to the Supreme Court, by the military commissions.
• A. and others vs secretary of state of home department (2004): Article 5(1)(f) of the European Convention on Human Rights is the fundamental legal provision that applies to this case. It states that no one may be deprived of their liberty, with the exception of, among other things, the authorized arrest or detention of a person who is the target of deportation proceedings. Only during the deportation process may such an individual be held (para. 8). According to Article 14 ECHR, there is an exception to this rule, but only if the Secretary General of the Council of Europe is notified of the actions taken and their justifications (paragraph 10). This exception applies only in cases of war or other public emergencies that endanger national life.

Section 23 of the Anti-terrorism, Crime and Security Act 2001 was deemed “incompatible with articles 5 and 14 of the European Convention insofar as it is disproportionate and permits detention of suspected international terrorists in a way that discriminates on the ground of nationality or immigration status,” and the Human Rights Act 1998 (Designated Derogation) Order 2001 was subject to a quashing order.

 

CONCLUSION

National security and counterterrorism concerns, both before and after September 11, 2001, propelled and continue to propel nation states to enact harsh laws and amendments that limit or restrict citizens’ basic rights in democracies.

POTA was passed by India, a country plagued by terrorism and separatist conflict in multiple states. The argument made by the Indian NHRC that POTA was superfluous is supported in this article. It suggests that the issue with anti-terrorist laws in India is not a lack of them or their quantity, but rather their poor implementation. In India, the majority of terrorist risks are well addressed by current legislation. Subsequent developments have not altered the background of the argument, including as the Supreme Court of India’s upholding of POTA’s constitutional legitimacy while offering certain checks and balances in its implementation and the repeal of POTA by the new UPA government that took power in May 2004. The government of India has regrettably issued an ordinance altering some parts of an existing criminal legislation in the form of the Unlawful Activities (Prevention) Act (UAPA), underscoring the necessity of safeguarding human rights while maintaining national security.

Since some of this legislation’s provisions are just as harsh as those of the POTA, India must continue to battle for human rights. It is important to emphasize that deliberative democracies, such as India and others, foster meaningful discourse, disagreement, and dissent within civil and political society by upholding human rights and advancing civil liberties. Terrorism violates every accepted standard of decency, decorum, and dignity—all of which are necessary for a society to exist in peace. As a society, we must abhor terrorism in all its forms and never condone using it to further any objectives, no matter how admirable. However, as Benjamin Cardozo once stated, “We are what we believe we are”; as such, we must exercise caution in how we respond to terrorism because future generations will evaluate our actions.

 

REFERENCES 

 

• This article has been originally written by Denver Journal of International Law & Policy. The link for the same is herein: https://digitalcommons.du.edu/djilp/

• This article has been originally written by University of Persity of Pennsylv ennsylvania Car ania Carey Law School y Law School Penn Car enn Carey Law: Legal Scholarship Reposit y Law: Legal Scholarship Repository. The link for the same is herein: https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1960&context=faculty_scholarship