Human rights are basic rights, inherent to us for the very nature that we are humans but what happens when these basic rights interfere with national security protocols? Let us learn more about this with the help of this article. We will be also discussing two particular countries’ approaches towards national security namely the United States of America and India.
“Louis Beres’ observation over 40 years ago that “world leaders continue to act as if security of their respective states is based upon national military power”8 remains valid even today. His advice that states need to embrace a new spirit of oneness is crucial for all. There is, therefore, an urgent need to re-evaluate Beres’ argument that states “continue to misunderstand that their only safe course is one in which the well-being and security of each is determined from the standpoint of what is best for the system as a whole”.9 Here lies the attraction in global security— “what is best for all”. The global community stands to benefit from greater intra-state collaboration and cooperation, for greater interaction will help build trust and confidence. National and regional security breakdowns are a global security problem. Therefore, it is in the interest of all that no national security challenge be allowed to escalate into a global problem.”[1]
The term “national security” is very broad in nature and as such has various definitions. Walter Lippmann defines national security as, “A nation has security when it does not have to sacrifice its legitimate interests to avoid war and is able, if challenged, to maintain them by war”.[2] National security is also defined as the “ability to preserve the nation’s physical integrity and territory; to maintain its economic relations with the rest of the world on reasonable terms; to preserve its nature, institution, and governance from disruption from outside; and to control its borders.”[3]
The concept of national security became an official guiding principle of foreign policy in the United States when the National Security Act of 1947 was signed on July 26, 1947, by U.S. President Harry S. Truman.[4] The Act established the National Security Council so as to “advise the President on the integration of domestic, military and foreign policies relating to national security.[5]
Notably, the Act did not define national security, which was conceivably advantageous, as its ambiguity made it a powerful phrase to invoke against diverse threats to the interests of the state, such as domestic concerns.[6] This is a common issue in most laws in regard to national security. Too much concentration power on the government, a lack of clearly defined definitions. Unlawful detention is the perfect example of this. Many have been arrested without sufficient evidence or cause in the name of national security. The act also establishes, within the National Security Council, the Committee on Foreign Intelligence, whose duty is to conduct an annual review “identifying the intelligence required to address the national security interests of the United States as specified by the President”.[7]
The Bush Administration in January 2008 initiated the Comprehensive National Cybersecurity Initiative (CNCI) which introduced a differentiated approach, such as identifying existing and emerging cybersecurity threats, finding and plugging existing cyber vulnerabilities and apprehending those trying to access federal information systems.[8] In 2010, the White House included an all-encompassing world-view in a national security strategy which identified “security” as one of the country’s “four enduring national interests” that were “inexorably intertwined”:[9]
- Security: The security of the United States, its citizens, and U.S. allies and partners.
- Prosperity: A strong, innovative, and growing U.S. economy in an open international economic system that promotes opportunity and prosperity.
- Values: Respect for universal values at home and around the world.
- International Order: An international order advanced by U.S. leadership that promotes peace, security, and opportunity through stronger cooperation to meet global challenges.
“The dramatic increase in the average number of U.S. persons wrongly detained abroad – which has increased 175 per cent during the past 10 years – highlights the need for a new approach. Since 2001, the risk has also spread geographically as the number of countries that have wrongfully detained U.S. persons skyrocketed from four to 27. Five of these countries – China, Iran, Russia, Syria, and Venezuela – account for 75 per cent of the wrongful detention cases.”[10]
INDIA:
The Evolution of national security leans back to the British colonial administration. It all started with Bengal Regulation III of 1818 which was a law of preventive detention and enabled the British government to arrest anyone for violation of public order without a trial. Further, the Rowlatt Acts of 1919 installed indefinite detention. Subsequently, the Jallianwala Bagh massacre followed (13 April 1919). All these laws did cause quite a stir in the country. The numerous protests and the lessons learnt made the post-colonial regime bring sanctity to such preventive detentions. The Preventive Detention Act, of 1950 through A K Gopalan’s case[11] brought in farsighted penetration into the legality of constitutional rights and human rights violations. Post-independence, India got its first preventive detention rule when the Government of Prime Minister Jawaharlal Nehru enacted the Preventive Detention Act of 1950 (expired in 1969). The National Security Act 1980 also served the rule of arrest with no scope for judicial proceedings.
The then Indira Gandhi government on 23rd September 1980, enforced The National Security Act of 1980 (hereinafter referred to as NSA). The NSA also focused on the security of India or India’s relations with foreign countries, and to safeguard public order. The Act also gives power to the governments to detain a foreigner in a view to regulate his presence or expel from the country. As the name states, the provision of this statute emphasizes the act of detaining or imprisoning someone to put a halt on a person from further committing offences.
Now, here is the problematic part, the NSA gives overwhelming power to the Central and State Governments. They can detain anyone on the grounds of suspicion and once detained the person so detained under the Act, one cannot invoke even their basic rights. For example: Under the Constitution of India, Article 22 (1), states that “Any person who is in custody must be informed as to why he has been arrested. Further, he cannot be denied the right to consult an advocate.” However, once detained under the NSA, the detainee is no longer permitted any legal aid for any matter heard before the Advisory Board. The Advisory Board was brought about by the Indian Government and assigned to handle NSA cases only.
In addition to this, the person arrested under NSA will not be informed of the reasons for their arrest. The irony is that the Criminal Procedure Code 1973 (hereinafter abbreviated as CrPC) under Section 50, underlines that any person who is arrested needs to be informed of the reasons for arrest and the right of bail for such a person. With the guarantee that is available under Section 50 of CrPC,[12] the Constitution does safeguard by restricting not more than three months of detention to declare the rights of the detainee having the recourse to hold on to the detention if proved and considered against the public interest.
Earlier, there was the Preventive Detention Act, of 1950, which was in effect till 1969. Two years later, Parliament enacted the Maintenance of Internal Security Act (MISA). This was used as a political weapon during the Emergency to curb political criticism and dissent. MISA was repealed in 1978, but another preventive detention law, the National Security Act was enacted, which continues to be effective. Simultaneously, in 1967, the Government also enacted the Unlawful Activities Prevention Act (UAPA), an enhancement of the TADA (Terrorist and Disruptive Activities (Prevention) Act) 1987.
TADA was widely criticized, especially by human rights organizations. The criticism are centered on the following facts: [13]
- Under this Act whoever advocates directly or indirectly for cession or secession in any part of India is liable to be punished.
- The Act provided that a person can be detained for up to 1 year without formal charges or trial against him.
- Section 20 of the Act provides that detainees can be in police custody for up to 60 days which increases the risk of torture. Also, the detainee need not be produced before a judicial magistrate but instead may be produced before an executive magistrate who is an official of police and administrative service and is not answerable to the high court.
- The trial can be held secretly at any place and also keeps the identity of the witness’s secret violating international standards of fair trial.
- A person making confessions to a police officer not below the rank of superintendent of the police can be used as evidence against him. Therefore, if a police officer forced a confession and presented it in a court of law, it would be considered.
Then occurred the dreadful terrorist attacks on the World Trade Center on September 11, 2001 in America, based on which the Prevention of Terrorism Act 2001-2004 (POTA) was proposed as the new anti-terror law. POTA reestablished most of the provisions of TADA thus reconfirming a wide gamut of misuse of security laws. A few instances are:
- POTA incorporated TADA’s enhanced police powers,
- Limits on the rights of defence,
- The definitions of “terrorist” and “terrorist activities” were defined vaguely.
Conclusion:
To impose national security means that it also raises certain odds to Human rights violations. So, the probabilities of contradicting with each other tends to be unprocessed. The makers of the law pertaining to national security rest their arguments predominantly on the proposition that protecting human rights and civil liberties becomes docile at times. Passing the test of human rights violation is tougher while protecting national security and also parallel to it is to combat terrorist threats. We cannot deny the fact that the United States of America has made phenomenal efforts to strengthen the constitutional, legal, and institutional framework to protect, promote and institutionalize human rights.
The approach by the United States and other countries in the world should always be to develop the rule of law which will ensure the prohibition of violence and at the same time have adequate measures to prohibit the negative force of the law on the people which will secure safe environment, with safe political cultures, including domestic and international human rights commitments.
This is so much related to numerous deaths caused due to warfare which is inclusive of collateral damage; immense amount of agony and wreckage caused by such conflicts. Over a period of time, there has been widespread protraction of conflicts within political parties with political rights and assaults associated with the same. This leads to the gravest violations of the basic right to life like starvation, massacres, genocide, bodily and mental harm, physical destruction etc.
Most of all, Genocide is considered as the most heinous crime against humanity. The definition contained in Article II of the 1948 Genocide Convention describes genocide as a crime committed with the intent to destroy a national, ethnic, racial or religious group, in whole or in part.[14] Under this Convention, even the acts associated with genocide like attempt; conspiracy; direct or indirect public incitement to commit Genocide are punishable.[15] This Convention provides no immunity to ‘Public Officials’ or ‘Constitutionally responsible rulers’ together with private individuals.[16]
As defied at the beginning of this article, Walter Lippmann, an American political commentator during the Cold War, famously stated in 1943 in the context of national security, “A nation has security when it does not have to sacrifice its legitimate interests to avoid war and is able, if challenged, to maintain them by war.” After all, unless we renovate our military in a time-bound manner, our deterrence may fail, and we may have to wage war in a disadvantageous position, while we attempt to restore or regain our core national security interests.
[1] National Security versus Global Security | United Nations [2] Romm, Joseph J. (1993). Defining national security: the nonmilitary aspects. Pew Project on America's Task in a Changed World (Pew Project Series). Council on Foreign Relations. p. 122. ISBN 978-0-87609-135-7. [3] Harold Brown, U.S. Secretary of Defense, 1977-1981. Brown, Harold (1983) Thinking about national security: defense and foreign policy in a dangerous world. As quoted in Watson, Cynthia Ann (2008). U.S. national security: a reference handbook. Contemporary world issues (2 (revised) ed.). ABC-CLIO. pp. 281. ISBN 978-1-59884-041-4. [4] Romm, Joseph J. (1993). Defining national security: the nonmilitary aspects. Pew Project on America's Task in a Changed World (Pew Project Series). Council on Foreign Relations. p. 122. ISBN 978-0-87609-135-7. [5] Paleri, Prabhakaran (2008). National Security: Imperatives And Challenges. New Delhi: Tata McGraw-Hill. p. 521. ISBN 978-0-07-065686-4. [6] Ibid. [7] 50 U.S.C. § 402 [8] Rollins, John, and Anna C. Henning. Comprehensive National Cybersecurity Initiative Legal Authorities and Policy Considerations. Washington, D.C.: Congressional Research Service, 2009. [9] Obama, Barack. National Security Strategy, May 2010 Archived 2017-01-20 at the Wayback Machine. Office of the President of the United States, White House, p. 17. [10] Rethinking US Foreign Policy Strategy on Wrongful Detention (justsecurity.org) [11] AIR 1950 SC 27. [12] Section 50 of CrPC: Person arrested to be informed of grounds of arrest and of right to bail. (1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. (2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf. [13] Terrorist and Disruptive Activities (Prevention) Act - Wikipedia [14] Genocide Convention-FactSheet-ENG.pdf (un.org) [15] GENOCIDE AND IT’S RELATING LAW IN INDIA - Legal Articles - Free Law [16] Ibid.
