AN ASSESSMENTOF THE IMPACT OF COUNTER TERRORISM ON NON DEROGABLE RIGHTS UNDER INTERNATIONAL LAW

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ABSTRACT

International Human Rights Law provides adequate safeguard and protection against Human
Rights violation even in times of Public Emergency which threatens the life of a nation such
as when a state faces the threat of continuous terrorist attack. On the other hand, the problem
of terrorism which has gained notoriety since after the 9/11 attacks in America has impacted
heavily on international law, particularly international Human Rights Law. This research
thus addresses a few of these legal problems such as those relating to non-derogable rights,
the Ticking Bomb Theory and the principle of state responsibility.To contextualize and
analyze these problems properly in the light of the topic of research, this research identified
some research problems such as; whether State Parties are justified in acting outside the
provisions of the International Covenant on Civil and Political Rights especially the Article 4
which provides for the adequate safe guards and protection against human rights violations
in times of public emergency which threatens the life of a nation; Whether also, the fear of
imminent terrorist attacks or a credible terrorist plot can serve as a justification for the re
introduction of torture as a permissible interrogative technique on certain hardened
terrorists. This research examined the arguments relied upon by some states , particularly the
US in justifying measures taken by them to combat terrorism outside the provisions of the
International Human Rights Legal Framework. It also examined critically the Ticking Bomb
theory and certain international conventions prohibiting the practice of torture as an
interrogative tool with a view to determining the legality or otherwise of it. The research
employed a doctrinal method of research throughout the entire work which include online
resource materials, books journals, Newspapers Articles, Reports, Conference papers, Case
laws and statutes both of which constitute primary and secondary sources of law. On the
whole, this research found amongst other things that there is a lack of adequate international
regulatory safeguards that is supposed to ensure proper oversight and control of military
operations especially with respect to measures taken by states parties in combating
terrorism. It also found that there is a lack of transparency in implementing counter
terrorism measures amongst state parties, especially by the conspicuous ways state parties
deliberately neglect or ignore the responsibility to investigate facts and allegations relating
to human rights abuses in the course of enforcing counter terrorism measures. It was also
discovered that the ticking bomb theory provided no valid justification for the selective use of
torture in fighting and preventing terrorism. In the light of its findings, this research also thus
recommended inter alia for the provision of a more effective and better monitoring structure
and also a better regulatory safe guards and protection to ensure proper oversight and
control of military operations of state parties and their Secret Service Agencies. It also
recommended the promotion of transparency in implementing counter terrorism measures
and the empowerment of international courts and quasi-judicial committees like the Human
Rights Committee to ensure the proper enforcement of the accountability of states parties
with respect to cases of Human Rights abuses. Lastly, it recommended an absolute ban on the
use and practice of torture in line with the current standard of international law and the
subsisting international human right mechanism

CHAPTER ONE
GENERAL INTRODUCTION
1.1 Background to the Study
Since the aftermath of the 9/11 attacks in New York and Washingtonin 2001, there
has been an increase in both the frequency of terrorist attacks around the world and the
counter measures employed by states to combat terrorism. But some of these counter
measures employed have violated certain norms of international law especially those norms
of International Human Rights Law relating to non derogable rights.
International Human Rights Law provides adequate safeguards and protection against
Human Rights violations even in times of public emergency that threatens the life of a nation
such as when a state faces the threat of continuous terrorist attacks.
Despite the flexibility built into the International Human Rights Law and the permissible
measures which allow states to limit and derogate from certain rights in times of public
emergency, some states, notably the united states, have continued to operate outside the
framework of the International Human Rights Law with impunity and at times with allusion
to different moral and legal arguments to justify their position.
These include the legal arguments for justifying the current practice of targeted
killings and drone Strike resorted to by some states to fight terrorism, and the doctrine of the
use of force in international law as it relates to cross border attacks directed toward terrorist
elements operating within the territories of another state and their implication on Right to
Life, the ticking bomb theory and the justification canvassed by its proponents and whether
such reasons qualifies as exceptions to the absolute prohibition of the use of torture under
International Law and lastly the policy of transferring terror suspects to countries where they
face the risk of torture and abuse.

In the light of its findings; this research thus, recommends inter alia for the provision of a
more effective and better monitoring structure and also a better regulatory safe guards
and protection to ensure proper oversight and control of military operations of state
parties and their Secret Service Agencies. It also recommends the promotion of
transparency in implementing counter terrorism measures and the empowerment of
international courts and quasi-judicial committees like the Human Rights Committee to
ensure the proper enforcement of the accountability of states parties with respect to cases
of Human Rights abuses. Lastly, it recommends an absolute ban on the use and practice
of torture in line with the current standard of international law and the subsisting
international human right mechanism
1.2 Statement of the Problem
Since the end of the Second World War and the tensions of the Cold War in the late
1990s, the International Political System has not witnessed a problem more serious than
Terrorism.
The problem of terrorism touches on several key aspects of the International Law
notably; Human Rights, The Use of Force under International Law, The absolute
prohibition against Torture etcetera. This research particularly focuses on some of these
problems, such as those especially relating to non derogable rights, the ticking Bomb
Hypothesis and the use of force against non state actors operating within the territory of
another state. Thus to effectively address the research topic, the following research
questions are raised.
1. Giving the enormity of the scale and savagery of the 9/11 attacks and other serious
terrorist attacks which the world have been witnessing since 2001, whether states are
justified in acting outside the provisions of The Covenant on Civil and political
Rights, especially Article 4 which provides for adequate safe guards and protection

against Human Rights violations in times of public emergency which threatens the
life of a nation.
2. The International Covenant on Civil and Political Rights has made the prohibition on
torture and consequently the Right of Non Refoulement an absolute Right. These twin
Rights are often regarded „erga omnes” which means a owed to the whole world.
They are now regarded as peremptory norms of international standards from which no
derogations are allowed. However, the emergence of the Ticking Bomb argument
which became popular after the 9/11attacks now seeks to justify the selective use of
terrorism in so called exceptional circumstances of terrorism. Thus one of the
research question considered in this work is whether the fear of an imminent terrorist
attack or a credible terrorist plot can serve as a justification for the re introduction of
torture as a permissible interrogative technique on certain hardened terrorist suspects.
3. Article 2 (4) of the United Nations Charter Prohibits the Use of Force against the
territorial integrity of other states except in cases set out in Article 39, 42,43 and 51 of
the Charter However, since the 9/11 terrorist attacks, the activities of non state actors
operating within the territorial bounds of sovereign states have increased both in
frequency and lethality. Hence in the light of the increasing threat posed by non
states terrorist groups operating within the territory of certain sovereign states most of
whom can claim protection from extra territorial attacks under Chapter VII of the UN
charter, whether states can rely on the justification of terrorism and the principle of
state responsibility to launch punitive military attacks on the territory of states
perceived as providing safe haven to terrorist groups or states who have shown lack of
capacity to deal with such threat.

1.3 Aim and Objectives of Research
This research will access, and analyze the impact of some counter terrorism measures
especially after 9/11 by examining how such measures have impacted on somenon derogable
rights guaranteed under international law i.e. Right to life, prohibition of torture and right of
non refoulement.
To achieve this aim, the research will;
i. Examine the arguments relied upon by some states, particularly the United States in
justifying measures taken to combat terrorism outside the provisions of The
International Covenant on Civil and Political Rights when those measure violates non
derogable fundamental rights such as The Right to Life and Prohibition against
Torture. A particular case of the use of drones against terrorist targets will be
examined
ii. Examine critically the Ticking Bomb Theory viz a viz the provisions of certain
International conventions prohibiting the Use of Torture as an unacceptable
interrogative technique with a view to addressing the legality or otherwise of its
application in Terrorism cases.
iii. Consider critically the justification for the use of force against terrorists operating
within the territory of other states and its implication on the International Principle of
State Responsibility and Violation of Human Rights particularly non derogable rights
1.4
Scope of Research
This research is limited to terrorist events occurring after the 9/11 terrorist attacks. It
concentrates mainly on the measures employed particularly by the United States in
conducting its War on Terror after the 9/11 terrorist attacks. This research work limits
itself to certain provisions of international Conventions and treaties addressing the human
rights violations. In discussing human rights violations viz a viz the counter terrorism

measures employed by states, it is delimited to analyzing the impact of such measures on
non derogable rights.
1.5 Justification
Since the aftermath of the 9/11 attacks in New York America in 2001, there has been
an increase in both the frequency of terrorist attacks and the counter measures employed by
states to combat terrorism. However, some of these measures have violated certain norms of
international law especially those norms of International Human Rights Law relating to non
derogable rights.
From Pakistan to Afghanistan to Yemen and Somalia, America‟s drone program and
policy of targeted killings of so called terrorists anywhere and everywhere in the World has
sparked debates on whether it is justifiable for a state to hide under the vague and
insubstantial coinage of War on Terror to violate the territorial sovereignty of other states for
the purpose of taking out terrorists. A case in point was the killing of Osama Bin Laden in
2011. To underscore the seriousness of this problem, Between 2004 to 2015 in Pakistan
alone, US drone program was estimated to have killed between 2,489 to 3,989 people mostly
women and children and innocent people
1. In Yemen between the same periods, US drone
strike killed a total of between 492-725 people including women and children. There have
been similarly high figure of casualties reported and documented by the Bureau of
Investigative Journalism in both Somalia and Afghanistan
2.
Terrorism is a global problem which transcends territorial borders. With modern
advancement in technology it is now easy for terrorist to plan and carry out attacks and move
freely from one country to another. The 9/11 attack thus marked a new phase in the global
fight on terror. In the early days of America‟s military operations against the Taliban and Al-

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