Published On: June 19, 2026
Authored By: Tamanna Ashra
Renaissance Law College
Abstract
This article adopts a dual-analytical framework to examine the relationship between terrorism and human rights in a multifaceted manner. It considers the direct effects that terrorism by non-state actors has on the right to life and security, and distinguishes these from the indirect effects on those same rights that arise as a consequence of counter-terrorism measures undertaken by states.
Drawing on international legal instruments such as the UN Global Counter-Terrorism Strategy[1] and jurisprudence from the ECtHR,[2] the IACtHR,[3] and the Supreme Court of India, the article argues that counter-terrorism and human rights are not mutually exclusive but rather complementary.[4] It closes with recommendations for sustaining a human rights-based approach to global security.
I. Introduction
Terrorism is one of the greatest threats to the international human rights system. Attacking civilians with the deliberate aim of instilling fear and coercing governments is an assault on human dignity and security. States have responded with a variety of measures to defend their populations and ensure national security, generating a complex relationship that creates real tension between security interests and the safeguarding of basic freedoms. For this reason, this article uses a dual-analytical approach to fully understand this dynamic. This approach requires two analyses: a direct examination of terrorist attacks as violations of human rights, and an examination of the effect of state counter-terrorism measures on human rights. Together, these allow a comprehensive grasp of the threats faced by the human rights of people affected by terror events, arising from two separate but related sources.
II. Global Context of Terrorism and Human Rights
Terrorism seeks to destroy human rights, fundamental freedoms, and democracy. It threatens the territorial integrity and security of states and aims to bring about the disintegration of legitimate governments. The challenge for the modern world order is to answer how to fight the existential threat of terrorism without sacrificing the very values of liberty and justice that the legal order is meant to protect.
Effective counter-terrorism measures and the promotion of human rights are not mutually exclusive, but complementary and mutually reinforcing, as stated in the UN Global Counter-Terrorism Strategy (GA Res. 60/288).
This article proposes two analytical lenses to comprehend this relationship. First, it addresses the direct violation of human rights by terrorist groups, namely the right to life, the generation of refugee crises, and the production of psychological trauma.
Second, it examines the indirect effects of counter-terrorism (CT) regimes, focusing on the erosion of due process, violations of privacy through mass surveillance, and the chilling effect on freedom of speech.
III. Terrorism as a Violation of Fundamental Rights
1. The Right to Life and Positive Obligations of States
The most direct and harmful consequence of terrorism is the denial of the right to life, as guaranteed by Article 6 of the International Covenant on Civil and Political Rights (ICCPR).[5] The focus of terrorism is to cause fear and change in government, while the focus of traditional warfare is to target civilians.
International law has increasingly affirmed that states have a positive duty to safeguard the right to life for all individuals living on their territory. In Prithipal Singh v. State of Punjab (2011),[6] the Supreme Court of India held that this responsibility entails steps that states must take to prevent violence and to conduct thorough investigations into violent acts.
2. The Right to Privacy and Freedom of Expression
Today’s counter-terrorism policies depend heavily on intelligence gathering, and the scope of state surveillance powers has grown to an unprecedented level. Mass data surveillance, interception of communications, and monitoring of online activity all engage the right to privacy, guaranteed under Article 12 of the UDHR[7] and Article 17 of the ICCPR. Such surveillance may be necessary for security reasons, but it must be grounded in law, pursue a legitimate purpose, and be proportionate to that purpose. Many surveillance programs are shrouded in secrecy and lack effective oversight, raising serious human rights concerns.
Similarly, anti-terrorism laws applied broadly and vaguely can chill freedom of expression (Article 19, ICCPR). Such laws can be used to suppress dissent, silence human rights activists, and punish journalists covering sensitive issues, under the threat of accusations of glorifying or encouraging terrorism.
3. Displacement and the Refugee Protection Regime
Forced displacement is often a direct consequence of terrorism. Increased extremist activity has driven mass migration, pushing the international refugee protection regime under the 1951 Refugee Convention[8] to the breaking point.
People are forced to flee due to a direct threat of violence, while counter-terrorism measures can result in restrictive border controls and possible breaches of the principle of non-refoulement.
Under that principle, a person must not be forced to return to a territory where there is a real risk of torture or death, even where the requesting or receiving state cites its own security concerns (Saadi v. Italy (2008);[9] Chahal v. United Kingdom (1996)[10]).
4. The Prohibition of Torture and Ill-Treatment
Under international law, the prohibition of torture is absolute, it is not a right derived from or balanced against other rights. Yet in the counter-terrorism context, this prohibition comes under significant pressure. Documented abuses include the use of “enhanced interrogation techniques,” secret detention, and “extraordinary rendition.”
In El-Masri v. the Former Yugoslav Republic of Macedonia,[11] the ECtHR confronted this issue directly. The case concerned a German citizen mistakenly detained by Macedonian police and handed over to the CIA, which transported him to a secret detention center in Afghanistan, where he was mistreated. The Court held Macedonia responsible for the torture and ill-treatment inflicted on him while detained at the airport, and found that Macedonian officials, aware of the real risk of further torture and ill-treatment, were complicit in his transfer to the CIA. The judgment firmly restated that states cannot delegate torture or otherwise evade their human rights obligations by cooperating with foreign intelligence agencies that practice it.
5. Psychological Trauma and the Right to Safety
Beyond physical harm, terrorism causes collective psychological trauma and infringes on the rights to security and health. The UN Commission on Human Rights has noted the constant danger terrorism poses to civilian populations, causing acute stress and post-traumatic stress disorder (PTSD).[12] This “terrorism-induced trauma” damages the social cohesion and psychological safety needed for the enjoyment of other human rights.
IV. Human Rights in the Shadow of Counter-Terrorism
1. Due Process and the Diminishment of Fair Trial Rights
In response to the threat of terrorism, states tend to pass “exceptional” legislation that limits due process. Article 14 of the ICCPR guarantees the right to a fair trial, but counter-terrorism measures often include arbitrary arrest, the use of secret evidence, and the creation of special courts.
In Kartar Singh v. State of Punjab (1994),[13] the Indian Supreme Court balanced the need for strict laws against constitutional safeguards, holding that even in the context of terrorism, the procedure established by law must be just, fair, and reasonable.
2. The Digital Panopticon and Confidentiality
The right to privacy (Article 17, ICCPR) has been one of the major casualties of the digital counter-terrorism era, with mass surveillance programs frequently lacking proportionality and judicial oversight. In K.S. Puttaswamy v. Union of India (2017),[14] the Indian Supreme Court held that privacy is a fundamental right and a sine qua non for human dignity.
Similarly, in Roman Zakharov v. Russia (2015),[15] the ECtHR held that surveillance programs lacking adequate safeguards against abuse fail to meet the requirements of necessity and proportionality, regardless of the security justification advanced by the state.
3. Speech and Association Rights
The terms “terrorism” and “terrorist acts” are often defined broadly and used to silence opposition and target civil society groups, chilling freedom of expression and association.
Such actions are frequently directed at human rights defenders and political opponents rather than those who pose an actual security threat, and have been condemned by the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.[16]
V. A Comparative Perspective: USA and UK
India’s struggle to reconcile counter-terrorism legislation with human rights protections is not unique. Western democracies have enacted equally robust legislation that has been challenged on human rights grounds.
United States: The USA PATRIOT Act
The USA PATRIOT Act[17] was passed quickly following the September 11 attacks and significantly broadened the surveillance capabilities of law enforcement. Section 215, for instance, permitted the bulk collection of telephone metadata, which was widely criticized as an infringement of the right to privacy under the Fourth Amendment. The Act also expanded the government’s authority to detain non-citizens suspected of terrorism, raising due process concerns.
United Kingdom: The Terrorism Act 2000
The Terrorism Act 2000[18] broadened the powers of British police, including the ability to stop and search vehicles and individuals without reasonable suspicion in designated areas (previously under Section 44, now Section 47A). The Act also gives examining officers at borders the power to stop, question, and detain individuals without suspicion for up to six hours to determine involvement in terrorism.[19]
These powers have been challenged before the European Court of Human Rights and found, in certain applications, to be excessively broad and discriminatory. This comparative analysis suggests that states generally respond to terrorism through expansive law-making that grants greater power to the executive, lowers the barriers to state intrusion into individual lives, and shifts the balance away from civil liberties and toward security.
VI. Recommendations
1. Institute a Comprehensive Counter-Terrorism Strategy
States should implement a holistic counter-terrorism strategy, recognizing that “to eradicate one [terrorism] we must eradicate the other [torture/torturous counter-terrorism measures].” Security measures that compromise human rights are ultimately counterproductive: “security policies that compromise human rights will yield short-term tactical advantages, but have long-term negative consequences for stability.” The goals of security and human rights must be treated not as opposing forces, but as complementary.
2. Ensure Administrative Measures Comply with International Standards
States must “prevent the out-of-control use of administrative anti-terrorist measures.” Specifically: administrative measures should be “used only exceptionally and where strictly necessary to prevent terrorism and proportionate to that aim,” and applied “on a non-discriminatory basis.” They should not be used to circumvent the more robust protections of a criminal trial, nor serve as a substitute for criminal sanctions. The reasons for issuing them must be set out expressly in law, based on a definition of terrorism that complies with international standards, and the measures themselves should be time-limited and subject to strict procedural safeguards, including “adequate disclosure of evidence, accessible judicial review, and prompt and effective remedies, including compensation where rights have been violated.”
3. Address Root Causes Through a Human Rights Lens
“Terrorism cannot be defeated through security measures alone”, its root causes must also be addressed. This requires investment in inclusive governance, the rule of law, the reduction of discrimination, and socioeconomic development, with a focus on “more closely link[ing] counter-terrorism prevention with inclusive development and governance, lessen[ing] discrimination, and giv[ing] civil society and affected communities a voice in preventive efforts.”
4. Establish Specialized Legal Responses to Mass Terrorism
Given that mass terrorist attacks pose “challenges to existing legal frameworks,” states should develop “pragmatic guidelines for establishing a specialized and cohesive legal framework” that accounts for “unique evidentiary and procedural obstacles” while weighing “security imperatives and human rights protections.” This should also encompass the issue of the systematic use of sexual violence in connection with terrorism.
5. Reorient the Focus to Encompass Terrorism as a Human Rights Violation in Itself
The human rights community needs to “radically rethink approaches to terrorism and human rights” by “seeing and accepting terrorism as a human rights violation, in and of itself.” This does not de-emphasize state abuses, but instead takes a “radical universalist stance” that “demands that both the contemporary human rights discourse and the security discourse on human rights and terrorism be expanded and revitalized.” Failing to do so risks undermining the authenticity and efficacy of human rights advocacy.
6. Avoid the “Balance” Framing
The human rights community should critique the notion that “counter-terrorism is a ‘balance’ of security and human rights,” because “the word balance implies that the goals of combating terrorism and protecting human rights deserve equal attention in crafting security policies,” and “conveys a potentially misleading sense of the relativity of human rights.” Rather, human rights should be conceived as fundamental and indelible limits on security operations, a precondition for legitimate security action, not a competing interest to be traded off against it.
7. Support Independent Monitoring
Independent and neutral monitoring mechanisms, including the International Committee of the Red Cross, should be granted access to individuals detained in counter-terrorism operations, helping detaining authorities ensure compliance with international law and standards and confirming that detainees are treated humanely. The human rights community and international institutions should support and advocate for this access.
8. Ensure Counter-Terrorism Capacity-Building Promotes Human Rights
Counter-terrorism capacity-building conducted without respect for human rights standards can leave security forces vulnerable to committing abuses, judicial authorities prone to accepting coerced evidence, and detention centers prone to producing violence and reoffending. Human rights compliance should be made a condition of international institutional support for counter-terrorism programs.
9. Prepare for New Technologies
The growing use of artificial intelligence in counter-terrorism has raised significant human rights questions, and UN human rights mechanisms are still working out how to apply existing norms to these new contexts. International bodies should push for the rapid development of transparent rules governing the use of AI in counter-terrorism, particularly in surveillance, algorithmic risk assessment, and lethal autonomous systems.
10. Preserve Humanitarian Space
Counter-terrorism measures should never come “at the expense of humanitarian action or principles.” Counter-terrorism laws must be carefully drafted so as not to criminalize humanitarian assistance or principled humanitarian action. The ICRC’s longstanding concern bears noting: that “domestic counter-terrorism legislation, criminal laws, sanctions regimes and measures, clauses in grant contracts, de-risking measures, or simply politically motivated or security-based restrictions” can “delay or block” humanitarian protection and assistance.
VII. Conclusion
A two-pronged legal response to the terror threat is required. States have a positive duty to protect their citizens against direct violence, while ensuring that their own counter-terrorism operations do not undermine the rule of law. The twin analytical approach shows how human rights in an age of terror are under attack from two directions at once: terrorist acts are a direct assault on human dignity and life, while inappropriate or disproportionate state responses risk undermining the rule of law and fundamental freedoms.
It is not, as it is sometimes portrayed, a simple dichotomy between security and liberty. International human rights law provides the framework to manage this tension, acknowledging that some rights may be restricted on grounds of public safety, but only where such restrictions are lawful, necessary, and proportionate. Certain fundamental rights, such as the prohibition on torture, cannot be suspended under any circumstances.
A successful counter-terrorism strategy is not one that ignores human rights, it is one that is built on them. Security does not require the suppression of the rule of law, due process, or fundamental freedoms; in fact, it depends on them for its long-term sustainability. A rights-respecting approach avoids dividing communities, preserves the legitimacy of the state, and, ultimately, defends the very values that terrorism seeks to destroy.
References
[1] UN Global Counter-Terrorism Strategy, G.A. Res. 60/288 (Sept. 8, 2006).
[2] European Court of Human Rights (ECtHR).
[3] Inter-American Court/Commission of Human Rights (IACtHR/IACHR).
[4] OHCHR, Fact Sheet No. 32: Human Rights, Terrorism and Counter-Terrorism.
[5] International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.
[6] Prithipal Singh v. State of Punjab, (2011) 11 SCC 523.
[7] Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810, art. 12 (1948).
[8] Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137.
[9] Saadi v. Italy, (2008) 49 EHRR 30.
[10] Chahal v. United Kingdom, (1996) 23 EHRR 413.
[11] El-Masri v. The Former Yugoslav Republic of Macedonia, App. No. 39630/09, 57 Eur. H.R. Rep. 25 (2012), paras. 183–185, 240.
[12] UN Doc. E/CN.4/1996/52/Add.2 (Dec. 5, 1995).
[13] Kartar Singh v. State of Punjab, (1994) 3 SCC 569.
[14] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
[15] Roman Zakharov v. Russia, (2015) 63 EHRR 71.
[16] UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, UN Doc. A/62/263.
[17] USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat. 272.
[18] Terrorism Act 2000, c. 11 (UK).
[19] Terrorism Act 2000, c. 11, sch. 7 (UK); see also Liberty, Schedule 7 Stop and Search Powers.
