Table of Contents
The problem of terrorism continues to affect many states across the globe, as terrorists devise new sophisticated methods to launch and implement their attacks. In response, states and the international community have not reneged on their quest to counter terrorist activities and plots (Morag, 2011). Various proactive and reactive measures have been advanced in the war against terrorism. As the war on terrorism goes a notch higher, political, legal, and philosophical fields are ripe with discourses relating to moral dilemmas surrounding counter-terrorism measures. The dilemma is on the balance between the human rights protection which is a moral and legal responsibility of states and the need to protect the country and its citizens against acts of terrorism (Human Rights Watch Organization, 2009).
This paper approaches this discourse by exploring the moral dilemmas encountered by states and the international community in the quest to eliminate terrorism and promote security (Morag, 2011). The moral controversies surrounding the measures taken to prevent terrorism deal with culprits responsible for heinous acts while at the same time safeguarding human rights as enshrined in the state law, and the international law is thus the engine that drives this whole discourse. Realization of the equilibrium between the need to effectively address the problem of terrorism and the human rights issues remains unreal, although academics and legal professionals have remained optimistic that this is an achievable goal (Miller, 2009). This work elucidates the dilemmas as the discourse on the balance between human rights and war on terrorism seeks a moral standing.
Freezing of Assets, Travel Restrictions, UN and EU Blacklisting Systems as Measures against Terrorism
Many states have put in place counterterrorism measures which have a bearing on individual liberties. Among the preventive measures that have been taken against terrorism are targeted sanctions, imposed international travel restrictions for suspected terrorists, gathering of personal information on suspects by use of intelligence such as surveillance and detention that is administrative in nature, and the use of control orders. Whittaker (2009) noted that in some instances, foreigners who are suspected to be terrorists have been expelled from countries where they are considered to be security threats. These and many other measures have been undertaken in a bid to prevent terrorism and safeguard the country against terrorist attacks. However, these measures have not been implemented without voices of discontent being raised, most of which have been related to the morality of such sanctions and their implications for the fundamental rights and freedoms of the persons involved (Morag, 2011).
In particular, the targeted sanctions have been the focus of debates about the moral balance between human rights and the war against terrorism. Debates of moral nature that have been coined on grounds that targeted sanctions as preventive measures against terrorism have direct impact on the liberty of individuals. Such sanctions may be directed at a person, a company, or even organizations that are suspected or confirmed to be involved in acts of terrorism, whether directly or indirectly (Morag, 2011). In response to such an allegation or confirmed investigation, governments have the options of freezing financial accounts of the persons or organizations involved or imposing a travel ban on them.
The United Nations, the European Union and other countries are known to compile blacklists that are based on the information that they access from their member states. However, the fact that one has been blacklisted does not mean that such persons or organizations have been found guilty or even charged with acts of terror (Ganor, Interdisciplinary Center (Hertseliyah, Israel), & International Policy Institute for Counter-Terrorism (Israel), 2007). Sometimes such decisions are based purely on suspicion. The moral contention that ensues in such circumstances is the fact that such decisions leave black-listed persons or sanctioned individuals and organizations with the label of being a criminal (Morag, 2011). Besides, such decisions have been faulted by proponents of moral ethics in the application of law on grounds that such persons or organizations are denied their rights to undergo the due process of determining whether or not one is responsible for the alleged crimes. The suspects should be given an opportunity for fair hearing and to stand fair trial before they are sanctioned or labeled.
Moral ethics require that suspects of terror-related crimes should be allowed to defend themselves against the allegations mounted against them (Morag, 2011). However, this is not the case in most instances. This raises heated debate on the delicate balance between moral ethics which advocate for safeguarding and protection of human rights in the war against terrorism and the extreme side that maintains that terrorists, or suspects, forfeit their rights and freedoms the moment they put the rights and freedoms of others in jeopardy. Such persons should be given a chance for fair trial before sanctions are imposed on them, since they remain holders of human rights and the sanctity of their dignity must be taken into account as measures against terrorism are imposed on them (Whittaker, 2009).
A moral question arising from targeted sanctions is in the fact that such decisions end up victimizing innocent third parties (Human Rights Watch Organization, 2009). For example, the imposition of travelling bans and the inability to access and use personal property do not only affect suspected terrorists, but also innocent family members who may be distant from the terrorism allegations leveled against their breadwinners. It is not morally right, for example, for family members who are not directly involved in terrorism to be victimized.
However, there are critics of this discourse who maintain that family members must also feel the pinch of counter-terrorist measures, since by default they are the only direct beneficiaries of such actions. Without sanctions on such behavior, culprits may be motivated to orchestrate another terrorism plots (Whittaker, 2009). The economic and social rights that family members cling to as their fundamental rights and freedom are seconded to them through the participation of their relative in unethical endeavors such as terrorism. Therefore, proponents reason that the principle of doing to others what you would want to be done to you must be operationalized and made relevant by punishing not only perpetrators but also their dependents (Meggle, 2005).
Sanctions against persons suspected to be responsible for perpetration of terrorist attacks continue to attract opposition from moralists who argue that such decisions mean well for homeland security but deprive others of their private rights. For example, frozen assets may limit the ability of dependents of suspects to enjoy their social rights such as education or employment, since they will not be able to use their assets or travel freely. The dilemma, however, is whose rights should be given priority in such cases (Whittaker, 2009). While others have argued that the application of rules to safeguard civil rights and liberties should be universal, dissenting voices contend that suspects and their dependents should be deprived of their inherent rights and freedoms, especially in consideration of the fact that if granted the liberties and rights, they are likely to use them against the innocent and indeed infringe on other people’s rights (Human Rights Watch Organization, 2009).
The minority that is considered to be a threat to the majority must thus be dealt with firmly through any means available, so that the security, peace, freedom, and rights of the majority are safeguarded and enhanced. On the contrary, proponents of moral ethics argue that each person has their divine dignity, sanctity, and rights that must be safeguarded universally. Therefore, this question continues to provoke a moral debate and controversies in the decision-making process on whether to focus on the protection of human rights or place emphasis on crime control and response.
Moral Dilemmas in the Use of Surveillance and Intelligence as Counter-Terrorism Strategies
The consequences of the 9/11 attacks have caused many countries to launch sophisticated surveillance techniques and improve their national intelligence in a bid to deal with the problem of terrorism in the homeland and internationally. Whittaker (2009) cited that the modernized tools and techniques are used against certain people as preventive strategies against the risks they pose to the security of their host countries. Some of the tools being used in the war against terrorism include wiretapping, application of tracking devices, logging of mobile phones, and other web-based activities. Iris scans have been used in airports and transit points together with taking passengers’ fingerprints, photographs, passports, and private details. These may infringe people’s right to privacy (Meggle, 2005).
The decision to share private and personal information with other countries not only infringes the right to privacy, but also attaches to people an international label as potential criminals (Meggle, 2005). Any information that is private and personal should only be accessed with the permission of the holders of the information. Also, such information should not be accessed through coercion and intimidation, but through voluntary initiatives of the holders. Some of this information is sensitive and highly personal and as such should be handled with a lot of confidentiality.
The decision to retain such information in itself constitutes a violation of the victim’s right to privacy. This argument, however, takes a new twist by other opponents stating that perpetrators of terrorist attacks should not be given priority when it is proven that they are a threat to the rights of others in their surrounding and in the international community (Meggle, 2005). They should be deprived of these rights because they have deprived others of their own rights. Moral ethics will only allow one to do unto others as they would have them do unto them to compensate for the threat that they have posed to others.
Tightened surveillance has raised other moral dilemmas. The key one among them is the fact that even innocent people who may have no intention of facilitating terrorist attacks are exposed to strict conditions that limit their freedom and rights to private and personal information, as well as freedom of movement (Whittaker, 2009). Surveillance tools and machines may also be psychologically scaring. In the foregoing discourse, there have been concerns that the surveillance and intelligence measures put in place as counter-terrorism measures and strategies need to be reviewed in such a way that the innocent are not exposed to stringent conditions that are meant to screen suspects in terrorist activities.
The controversy over the application of modern surveillance and intelligence systems that target terrorists persists. There are those who contend that although such measures may be effective and necessary in the war against terrorism, the implications of implementing these strategies for fundamental human rights and freedoms must be considered. These counter-terrorism approaches have created opportunity for severe interference with people’s entitled right to private life. Moral ethics challenge such a stance on grounds that even suspects or those charged with participating in a criminal act do not forsake their inherent rights as human beings with a sense of dignity and sanctity (Human Rights Watch Organization, 2009).
People whose private and personal information is shared with the Interpol, for example, on grounds that they may be involved in acts of terrorism should be tried and only put into such dehumanizing conditions once proven guilty of the alleged offences (Human Rights Watch Organization, 2009). However, this position has been challenged by those who consider the welfare of the broader community and society at large at the expense of interests, rights, and freedoms of a few individuals who have been labeled as a threat not only to the homeland security, but also to that of the international community as well (Whittaker, 2009).
There are several moral questions that arise with the decision to counter terrorism through measures such as surveillance and sharing of personal and sensitive intelligence information internationally. The accuracy of the identity of people who are suspected to be participating in terrorism may be in doubt. In such circumstances, wrong identities might be labeled as terrorists and put on discriminative procedures and surveillance. This in itself is morally unacceptable. Great Britain (2010) records that in the past, scholars and philosophers alike faulted the death penalty on these grounds. There are chances that once a person has been named as a suspect, the label sticks to the person even if they were just a victim of mistaken identity (Great Britain, 2010). Besides, it is not only dehumanizing, but also stigmatizing for one to be wrongfully named as a suspect in a terrorist attack only to be acquitted later following investigations. The battered self-image, dignity, and sense of innocence may take such a person a relatively longer duration to rebuild.
The surveillance tools that are used in the war against terrorism are very intrusive. It is not morally right for one to be caught on camera without their permission and their details circulated world-over on grounds that they are terror suspects. Such measures are intrusive to people’s private lives which should be safeguarded under the legal provisions and entitlements to the right to personal privacy. The measures put in place to deal with terrorism may infringe the rights and freedoms of individuals who may be innocent (Human Rights Watch Organization, 2009). Therefore, the use of surveillance tools can be morally justifiable only if such mechanisms have the least level of intrusion into other people’s privacy, which they are entitled to by law and moral standards.
The whole controversy is compounded by the fact that confidentiality of personal and private information gathered through surveillance measures against terrorism may be compromised (Whittaker, 2009). Private and confidential information may be handled casually, resulting in it being available to public access. Further, there are no clear policies, laws, and structures that have been put in place to regulate exchange of information between intelligence agencies. Sharing intelligence information between security agencies internationally could only be justified if the structures are clear on what information is admissible by another international intelligence agency, the criteria for selecting people who make decisions on the information to be handed over, and adequacy of the procedures put in place to ensure that information given is safeguarded and kept confidential (Meggle, 2005).
There are instances when people that are responsible for the transfer of personal information of suspects to international intelligence agencies are also interested parties (Miller, 2009). In such circumstances, it is not morally right for personal, confidential, and intelligence information to be shared internationally. However, the controversy hits further with other opponents to this stance arguing that all possible means should be used in the fight against terrorism, since diplomatic and legal procedures have dragged efforts to secure the homeland and global society against acts of terrorism.
The need to eliminate terrorism should push agencies and institutions to use all the resources and structures within their reach to prevent acts of terrorism. It may not be possible to achieve this goal if the rights of terrorists and suspects take prime focus at the expense of civil rights of the helpless masses (Great Britain, 2010). In this sense, the proponents of morality have been left in a dilemma as to whether the priority should be focused on moral rights of terror suspects at the expense of people’s lives that are endangered by the activities of terrorists (Miller, 2009). Diplomats in this whole discourse, however, argue that the rights and freedoms of both innocent citizens as well as those of terror suspects must be upheld in the war against terrorism in order to have universal application of moral principles and procedures with regard to human rights.
Control Orders, House Arrests and Moral Implications
Control orders are orders issued by the government meant to impose some restrictions on an individual. It is similar to detention that is meant to limit a person’s chances and ability to prepare, commit or assist in the commission of terror-related attacks. Meggle (2005) notes that these restrictions could extend to control and regulation of what a person can possess, what they are allowed to use, places where they can work, reside, people they are allowed to interact with freely, and places they can travel to (Great Britain, 2010). There are cases where people suspected to be involved in terrorist activities are ordered to surrender their passports, have to bear with frequent police visits without any alerts and electronic tagging as terrorists or suspected terrorists (Human Rights Watch Organization, 2009).
Control orders, house arrests, and other restrictive measures taken to counter terrorism at national and international levels often pose moral challenges and have been met with a lot of criticism. Controversies associated with moral challenges rage on. There are several human rights issues that remain unresolved with regard to the imposition of counter-terrorism measures (Meggle, 2005). For example, the provision that the police can visit residential facilities of suspects any time without prior notice can be quite a traumatizing experience for suspects. The stress and trauma associated with having police and security personnel around frequently are not only inhuman, but also unfair, especially if in the long run investigations conducted exonerate such suspects of any criminal responsibility (Miller, 2009).
Dissenting voices against control measures have asserted that the inherent individual sense of dignity should be safeguarded and protected by the international community and the international law, even after one is suspected of or implicated in terrorism and related criminal acts (Great Britain, 2005). This inherent right and entitlement to a sense of dignity is arguably protected even under the international human rights law. However, the controversy here is in the fact that advocates of stringent measures against terrorism maintain that terrorists or suspects of such crimes should never be given an opportunity for reprieve, since they further infringe other people’s rights while the law protects their own (Great Britain, 2005). Thus, the law must be seen as being applied fairly and universally to protect the welfare and well-being of all members of society, both conformists and radical rebels like terror groups.
Travel restrictions and control on people that one can interact with once labeled an agent of terrorist groups do not only beat the logic and provision of a liberal man (Linden, 2002). The frustrations and anger associated with the exposure to counter-terrorism measures may form a ground for informed opposition and disapproval of national and international laws against terrorism. However, this may not be applicable in the context of such a sensitive matter as terrorism. To begin with, terrorists have instilled a sense of fear, anxiety, and stress in victims, who are targets of their barbaric acts. In the foregoing circumstances, measures taken against acts and actors in terrorist activities are not only considered effective, but they are also evaluated to be morally right. Towards this end, there are those who actively support the principle that the “end justifies the means” (Whittaker, 2009).
Any method that can be used to terminate acts of terrorism are, therefore, hailed against the need to apply measures that safeguard the welfare and rights of people who are expected to be held responsible for their criminal offences (Brysk & Shafir, 2007). The morality of applying strict measures against terrorists is thus to be found in the fact that they have, in the first instance, ignored moral values that safeguard the inherent dignity of human life which they destroy. Therefore, the whole question of morality must be approached in a balanced way where the loss of rights, freedoms, and dignity caused by acts of terrorism to victims are also assessed.
The implications of imposition of control and house arrest orders do not only fall squarely on suspects, but also their immediate family members including minors in such households. The trauma associated with one being labeled as a terrorist recognized and being monitored locally and internationally is heavy and unbearable for minors (Brysk & Shafir, 2007). It is thus not morally right to take counter-terrorism measures against family members on grounds of one of them being held liable for a criminal offense which, in the first place, has not been confirmed through a due process. Linden (2002) cited that the morality of indirectly punishing the entire household for crimes that were committed by probably one member of such a household is not only doubtful, but it is also an issue that remains challenging to sustain. This is the case especially where the sensitive and emotive issue of terrorism is involved (Linden, 2002).
The dilemma associated with imposing control measures on suspects of terrorist acts is in the fact that sometimes the measures are not universally and fairly applied. As a result, some groups are imposed more strict sanctions than others. The control measures could, therefore, open opportunities for possible discrimination of one social group against another (Linden, 2002). This is a recipe for increased tension between communities or social groups, which in the long run may also lead to inter-group animosity, hatred, violence, and mass destruction of property and life (Meggle, 2005). The moment this unfortunate eventuality sets in, more moral issues and questions are likely to arise. Such social realities and complexities thus call for examination and assessment of moral and ethical considerations, not only on the part of victims of terrorist activities, but also on the part of terrorists themselves.
Expulsion of Foreign National Terrorist Suspects and Moral Issues
There has been a surge in the number of terrorist suspects who are being extradited, expelled, deported or transferred either to their home countries or other countries in a bid to stem out the increasing cases of terrorist attacks (Linden, 2002). These measures have been adopted as preventive measures aimed at protecting national territories against acts of terrorism. The number of people that have been transferred on grounds of being suspects of terrorism has increased dramatically since 2001.
The transfers from one country to another are often used as a measure meant for creating an opportunity to interrogate suspects (Linden, 2002). However, receiving countries have been alleged to involve torture as part of the interrogation methods they employ. Besides, the transfer of detainees is sometimes not carried out in a transparent manner. These approaches have posed significant moral issues worth exploring with regard to the need to safeguard human rights amidst the war on terrorism. To begin with, it is inhumane to use torture as a method of interrogating suspects in terrorist attacks (Linden, 2002). Torture does not only lower the dignity of the people involved, but may also cause severe physical, emotional, and psychological impairments and injuries. Such harm inflicted on suspects in the process of interrogation does not only interfere with one’s sense of ego, but may also end up victimizing innocent people who do not deserve the penalty.
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There are contentions that it is not morally right for suspects in terrorism to be transferred to other countries without the knowledge of their next of kin or family members (Linden, 2002). Suspects and their family members are exposed to stressful experience as detainees are transferred from one country to another without their consent or knowledge. Such measures increase the chances of one being extremely vulnerable to torture and ill-treatment in detention camps in foreign countries. This does not only infringe the rights of suspects, but also their inherent dignity and sense of innocence (Conte, 2010).
However, there are other dissenting voices that still advocate for the use of detention camps and transfer of suspects. They cite that extreme pre-occupation with the rights of suspects should be equivalent to endorsement of the acts that the criminals or suspects support or organize. According to advocates of detention, the moral issue here is the fact that any possible means that deter criminals from recidivating are justifiable once the due process is followed. Those found guilty of any crime related to terrorism should be ruthlessly dealt with if global society is to be safe and secure (Linden, 2002).
The decision to transfer a terrorist suspect from one country to another can be morally justified to be a plan aimed at protecting the life and properties of civilians in one country. However, there are persisting controversies contending that such transfers deny suspects their right and opportunity to benefit from fair trial (Meggle, 2005). Individuals who are suspected are thus disenfranchised by being spontaneously transferred to another country without prior confirmation that they are actually terrorists (Linden, 2002). Besides, in most cases, such transfers and detentions fail to recognize the psychological trauma, marginalization, and stress that such relocations cause the immediate family members, dependents, and children of the suspects. Collective responsibility for the wrongs committed by one person is thus faulted and listed as one of the immoral ways of dealing with suspects (Linden, 2002). The rights of suspects, their dependents, and significant others must thus be upheld in line with human rights provisions.
The decision to transfer suspected terrorists from one country may solve terror-related crimes, but just in the short term. For example, the movement of risky and dangerous terror suspects from one country to another is equivalent to transferring terrorist activities from one country or region to another (Conte, 2010). Lives of citizens of the country to which suspects are transferred are thus endangered by such decisions. The expulsion of a dangerous person from one country to another does not, therefore, enhance security, but makes people more vulnerable to terrorism, while the rights of suspects are also infringed in the process of implementing counter-terrorism measures.
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The Moral Issues Underlying Criminal Prosecution of Terrorists
A strong and efficient criminal justice system is essential in dealing with terrorism and terrorist attacks locally and internationally. Conte (2010) cited that criminals who violate the law by perpetrating terrorist activities should be dealt with through criminal prosecution. The international law thus provides for the prosecution of terrorists in any country. However, the process of prosecuting terrorists through the criminal justice system has always been a controversial issue (Conte, 2010). Many of the controversies that arise with regard to this process relate to the moral implications of some extremist measures that are taken to deal with terror-related crimes. Some of these moral issues and controversies are discussed in this section.
The war against terrorism continues to raise a lot of controversies with regard to the need to safeguard the rights of suspects through all stages of the criminal justice process. It is only by so doing that the war on terrorism will appear to have been fought with consideration of the foundations of moral justice and respect for human dignity and sanctity of life. However, this remains a controversial issue that attracts contrasting approaches in virtually all discourses aimed at finding a balance. There is a critical need to consider the rights of victims and those of suspects. Thus, this debate remains open, as many human rights watch groups and organizations maintain that the war against terrorism has failed, especially with regard to the need to consider moral principles guiding the measures taken in dealing with suspects of terrorism.