MSWPG7213 Social, Political and Legal Frameworks of Human Rights - Research Essay

On September 11, 2001, a terrorist group (Al-Qaeda) from Afghanistan attacked the United States of America. The terrorist group hijacked aeroplanes and hit the twin towers of the World Trade Centre in New York City and the Pentagon House outside Washington, D.C. The attack left approximately 3,000 people dead leading to the declaration of the War on Terror by the US president George W. Bush. The War on Terror or the Global War on Terrorism is an international military campaign initiated by the US with support from its allies targeting terrorist groups such as the Al-Qaeda and states that support or harbour the terrorists like Afghanistan. The War on Terror demonstrates a changing attitude of America as it fights the enemy within and without to secure itself from terrorist attacks. However, this has resulted in the reorientation of international law and human rights in relation to the detainees of terror.

The War on Terror has led to the detention of many people on the basis of being dangerous. The US lacks an appropriate mechanism to test the dangerousness of an individual but informs its decision based on hearsay testimony or similar unreliable evidence (Walen & Venzke, 2007). The mass detention of terror suspects inside and outside the United States compromises the rights of the detainees. Detention is an illustration of a denied justice for the detainees as the Bush administration argued on non-residents and constitutional restrictions. The Bush administration assumed an extreme position on the imprisonment of suspected terrorists at the Guantanamo Bay Naval Station by denying them contact with the outside world and judicial review of their imprisonment (Resnik, 2010). The Supreme Court misread Johnson v. Eisentrager by rejecting the claim that non-residents aliens benefit from constitutional protections of their liberty (Piret, 2008). This is a violation of the Fifth Amendment of the United States Constitution which provides the right of liberty and prevents the government from detaining a person for committing a crime unless when found guilty after the due process of the law.

After the 9/11 terrorist attack in the United States of America, the American government launched a detention spree that led to the arrest of persons considered dangerous or suspect of terror. This is done in abject violation of human rights since there is no due process to grant them a fair hearing and determine their guiltiness or involvement in terrorist activities. The detentions occur with an outright objection to the statutorily-granted right. This has led to the detention of many suspects including 375 in Guantanamo Bay, Cuba, 620 from Afghanistan, and 18,000 from Iraq (Eppinger, 2013). According to the United Nations Office of Counter-Terrorism, some countries have taken the fight against terrorism by engaging in activities that infringe the basic standards of a fair trial or implemented counter-terrorism measures that limit the access to the judicial system. The Global Counter-Terrorism Strategy and Plan of Action require states to develop and maintain an effective national criminal justice system based on the rule of law to ensure any person engaging in terrorist activities through financing, planning, preparation, or perpetration is brought to justice on the principle to prosecute with respect for human rights and fundamental freedoms (United Nations Counter-Terrorism, 2019). The detentions done by the US do not follow the due process implying that they are ineffective, unfair, and do not respect the rule of law.

The International Covenant on civil and political rights (ICCPR) Article 9 clause 1 and 4 focus on detention. In Clause 1, the ICCPR states “No one shall be subjected to arbitrary arrest or detention.” Detention without a fair trial or due process is a deprivation of human rights as provided in Clause 4. The United States of America engages in the detention of terror suspects without proper guidance on preventive detection. Any arbitrary detentions, torture, or any form of inhuman interrogation or punishment are subject to the United States Army Field Manual on Intelligence Interrogation.

The detention of detainees at the Guantanamo Bay in Cuba was done without charge or legal means to challenge their detention (habeas corpus). The government of the United States argued that it did not violate any constitutional provision since the prisoners were held outside the United States territory (Duxbury, 2012). Additionally, the government was not required to observe the Geneva Conventions on the treatment of prisoners of war since it did not apply to unlawful enemy combat. This followed the decisions made after the 9/11 attack which promoted the detention of over 25,000 detainees in “supermax” facilities in solitary confinement where they serve a timeless sentence.

Although the United States identifies itself as a champion of human rights, the post 9/11 treatment of terror suspects features extensive violation of human rights through torture, detention, intentional abuse of prisoners, and minimised authoritative review of the interrogation policies. The Bush policy on terrorism draws a close connection between the French-Algerian War and the US War on Terror involving summary execution of enemy detainees (Forsy, 2006). The Bush policy entailed forced disappearances, the deportation of people without legal processes, harsh interrogation, and establishment of eight foreign detention camps.

While the American war on terror intensified in the post 9/11 era, Australia has adopted a similar approach to include laws that infringe on human rights of terror suspects. Since the Al-Qaeda attack in the US, Australia has introduced over 40 counter-terrorism laws. This has resulted in the emergence of new criminal offences, detention and interrogation powers for security agencies and the police, as well as powers for the Attorney-General to ban terrorist organizations (Australian Human Rights Commission, 2008). Since the approach to counter-terrorism can lead to the violation of fundamental human rights such as right to privacy, freedom of association, fair trial, and torture, the Australian laws ensure the protection of these rights by embracing the International Covenant on Civil and Political Rights (‘the ICCPR’) and the Convention Against Torture and Cruel, Inhuman and Degrading Treatment or Punishment (‘CAT’). Australia has adopted the rule of preventive detention which seeks to uphold the suspect's rights to a fair trial (Lu, 2011).

The fight on terror has intensified in the post 9/11 era where countries are detaining terror suspects without due process. The detainees live in deplorable condition and experience military interrogation characterised by torture and isolation from society. In the US and Australia, the war on terror fails to uphold human rights. It is important to ensure that laws and policies introduced to counter-terrorism adhere to the international human right laws. This includes ensuring the laws prohibit torture, observes Article 5 of the Universal Declaration of Human Rights, as well as other laws that prohibit detention.