Core to confronting violence in contemporary world politics is the struggle to extend the equity and protection of just law, writes Fouad Abdel Moneim Riad* In the hope of pursuing perpetrators of terrorist acts, legislatures and executives tend to overlook basic principles of human rights and the rule of law. A typical example is the US Military Commissions Act of 2006, signed by President Bush recently, which deprives US federal courts of hearing lawsuits related to terrorism and grants over them sole jurisdiction to military commissions that are under no obligation to abide by legal due process. Dangerous double standards Overriding principles of legal due process could lead to investigations that allow the extraction of information through torture and lead to speedy prosecutions, unlimited incarceration, and the use of punishment as a deterrent to crime. The judgment rendered by the UK Court of Appeal on 11 August 2004 is a case in point. The court was presented with testimony obtained by way of torture from a prisoner detained by the US in Guantanamo. The court looked into the hypothetical question of whether to accept or reject evidence thus obtained and reached the conclusion that as long as it was by officials of another state and without any connivance of UK officials it would be accepted. It could, hence, be deduced a contrario that the court would have rejected the information had the torture been committed by, or in connivance with, UK officials. It is regrettable that the same act could be legitimised according to who did it and not according to its known nature. The subtle distinction the court made between torture practiced in the UK by British officials or abroad by foreigners clashes with the universal principles of human rights and constitutes a double standard. For a constitutional state, it is a betrayal of its raison d'etre. Disregarding the rule of law and the basic principles of due process to combat terrorism would in itself be an acknowledgement of the moral victory of terrorism. As Sir Winston Churchill once said, even if we win the war our enemy would nevertheless have defeated us if he succeeded in making us betray our fundamental values. A person accused of terrorism should be presumed innocent until proven guilty; nothing should infringe upon his full right to the due process of law. He should also not be exposed to an exceptional form of trial. It is noteworthy that prior to the enactment of the Military Commissions Act, the US Supreme Court struck down military tribunals set up to try Guantanamo detainees. This decision constitutes an important ruling, not only for the issue of the illegality of military courts, but it is an affirmation that even in times of exceptional threat respect of the principles of legal due process remains paramount. Furthermore, as is well known, when a state chooses to extradite a person accused of a terrorist crime it should abide by principles of international law and international refugee protection standards and non-refoulement obligations. It should abstain, in particular, from turning over the accused to a state where his human rights are likely to be violated through an unfair trial. State terrorism Excessive violence randomly practiced against a national population or a population under occupation should in no way differ from terrorist acts practiced by individuals or groups of individuals. Certain grave violent acts committed or condoned by the state, if systematic and generalised, could constitute "crimes against humanity". If committed cross-border, the perpetrators can be brought to international justice, for example the International Criminal Court or ad hoc international criminal tribunals. Over the last two decades, the gradual broadening of the principle of universal jurisdiction has allowed the trial of such perpetrators before the courts of any state, regardless of the nationalities of those involved and where the crime was committed. However, precautions must be taken to prevent the appearance of the accused before hostile courts and it is imperative that the accused be prosecuted without the benefit of any protection or immunity due to their official position. Reparations for victims Remedies of a financial as well as moral character should be considered to establish the victims' rights to fair compensation for the physical, material and moral damage they have suffered. This would call for the establishment of a special international fund regardless of what can be obtained from the aggressor by way of reparations. It is noteworthy that Italy and France, in 1980 and 1986, respectively, each established compensation funds for victims of acts of terrorism. Experience has also shown, that in case of state-condoned terrorism, or acts of terrorism committed by government officials in particular, a mere trial simply purporting to expose such crimes without even delivering a final verdict can have the effect of a moral reparation for victims. It gives them undeniable moral satisfaction, thus allaying the urge for revenge. It constitutes a sure sign of the compassion of the international community while simultaneously putting perpetrators to shame by exposing their horrible crimes to the world. Exposing the roots of terrorism It is clear that the ultimate solution regarding terrorism cannot reside merely in exorbitant measures that may end up creating a police state. As the saying goes, it is not enough to extinguish a fire without removing the fuel that caused the fire. It is, therefore, imperative to identify the roots of terrorism as a necessary step towards the prevention of terrorist activities in the long run. Such roots spread over a spectrum of factors, be they political, social, economic, cultural or religious. Lurking in the background of many terrorist acts we may detect a certain degree of injustice or disregard for human dignity that could lead to desperation. It is apposite to quote in this regard a General Assembly resolution which, while condemning terrorism, wherever and by whomever committed, as unjustifiable, calls on states "to contribute to the progressive elimination of the causes underlying international terrorism and to pay special attention to all situations including colonialism, racism and situations involving mass and flagrant violations of human rights and fundamental freedoms and those involving alien domination and foreign occupation, that may give rise to international terrorism and may endanger international peace and security." (General Assembly Resolution 44/29, 6 December 1989). The resolution highlights the fact that colonialism marked by injustice and plundering still persists in new forms of alien domination and foreign occupation. The disregard of basic human values in occupied territories still extant today sows the seeds of hatred that can erupt in violence at any time in the future. Thus, acts of terrorism are not exempt of causes, be they latent or evident. While such causes by no means justify the act, they nonetheless call for a transparent confrontation that could lead to devising methods for uprooting all or some of these causes. With regard to political causes, an honest and candid attempt striving to diminish the practice of double standards and discrimination is timely. Prejudice and racism, as expressed in the above-mentioned General Assembly resolution, are certainly among the major causes that have to be dealt with; the more so as they have led to the blind incrimination of certain racial or religious groups, and consequently to their persecution. It is through dealing with such causes and similar ones that terrorism can be nipped in the bud. In the economic field the ever-widening gap between the haves and the have-nots should be bridged. Increasing degradation of the quality of life in various communities that have reached starvation and desperation can constitute a breeding ground for potential violence. Finally, a theory has recently been formulated to the effect that terrorism could be eradicated through what might be called pre-emptive armed strikes. Experience has shown that such an approach defeats its own purpose. In fact, it has proven to be incapable of stopping terrorist acts and even seems to have accentuated them. It could be fairly stated that pre-emptive defence against an unknown enemy is, in essence, a form of aggression which itself could constitute an initial form of terrorism and a source of a vicious circle of violence. Human rights first It is appropriate to conclude that respect for human rights by no means diminishes the chances of defeating terrorism in the long run. Rather, such respect is a sine qua non condition for uprooting the latent causes of terrorism. * The writer is a former judge of the International Criminal Court and is currently member of Egypt's National Council of Human Rights
