Victims of Terrorism and the Right to Redress

Personal Reflexive Statements

The Emmerson Report: Understanding the Framework

The U.N. Global Counterterrorism Strategy (A/RES/60/288 hereafter the UNGCTS), a resolution and plan of action to enhance national, regional, and international counterterrorism efforts, seeks to combat the terrorist threat through four pillars. ¹ The rights of victims of terrorism feature prominently as the key to the success of this strategy, being highlighted in two of those four; that is, in pillar I, the dehumanization of victims is considered as a condition conducive to the spread of terrorism and thus must be prevented; and in pillar IV, the need to promote and protect the rights of victims of acts of terrorism is stressed as an obligation of states. Hence, the UNGCTS encourages states to put in place national systems of assistance to address the needs of victims and their families and help them “normalize” their lives (Emmerson 2012). Ultimately, recognizing the rights of victims and maintaining their dignity is seen—at least in policy—as an essential ingredient to winning the war on terror.

Despite consensus on the elements of the UNGCTS, the adoption of a normative framework that specifically addresses the rights of victims of terrorism and the corresponding obligations of states to protect those rights has yet to be achieved. The reason lies in the argument that acts of terror—traditionally understood as politically motivated, violent crimes by nonstate actors ² (Hoffman 2006)—should be prosecuted by the courts of the state in which the acts take place. This means that the victims of such acts of terror can only claim redress for violations and continued protection of their rights to life, security, physical integrity, and justice, from the state that prosecutes the crime. But what happens when people become victims of terrorism away from home? What happens when the state in which the act of terror takes place is not willing and able to provide restitution? And more importantly, what happens when the state itself engages in acts of terror?

The Emmerson report eliminates the need to ask these questions; if victims’ rights are viewed as human rights, such conceptualization necessarily transcends the question of state responsibility—and thus, state jurisdiction—and ensures that victims of terrorism do not remain “legally ossified prisoners of doctrine” (Clapham 2006). The special rapporteur argues that victims of terrorism share certain common characteristics that distinguish them from other crimes of violence: They involuntarily suffer grave violations to their persons and sacrifice their rights as a result of a political act targeted against the state. This puts victims of terrorism in the same category as victims of grave human rights violations under international law. Given this theoretical foundation, the recommendations of the Emmerson report are founded on five basic human rights principles: (a) the “supreme human right” to life and the obligation of states to promote and protect it; (b) the right of the victim to an independent and impartial investigation of the perpetrators and the obligation of states to conduct an investigative process that allows victims to participate; (3) the right of victims to reparation for gross violations of human rights (including restitution, compensation, rehabilitation, satisfaction, and guarantees of nonrepetition under human rights laws); (4) the right of victims to form representative organizations and be free from intimidation; and (5) the obligation of states to protect potential future victims of terrorism through preventive, noncoercive measures against future acts (A/HRC/20/14).

The special rapporteur’s recommendations following these principles will directly affect domestic criminal laws regarding the extent to which victims can participate in trials of accused terrorists as well as compensatory schemes for victims. But beyond changes to criminal procedures, the recommendations also touch on the need for more pragmatic issues such as inclusive terms of life and travel insurance policies, expanded medical and psychological assistance programs, and the role of nongovernmental associations in the rehabilitation process of victims. All these changes critically depend on state capacity and willingness, to which the special rapporteur appeals in his report. This appeal to a state’s goodwill and altruism ultimately presents challenges for the universal application of the Emmerson report’s recommendations, which we now turn to below.

The Overarching Challenge: The Perennial Dilemma of Defining Terrorism

There is no universally agreed upon and legally binding definition of terrorism. Countries have defined the concept within their own legal systems, and scholars have theorized about it on numerous occasions, resulting in hundreds of definitions in the literature (Record 2003; Schmid and Jongman 1988). Consequently, each country has its own interpretation of the phenomenon within its penal code. What is considered terrorism is therefore relative, rendering the protection of human rights violated by it dependent on how a state constructs or frames the “act of terror.”

Adding to the nebulous nature of the concept is the fact that the United Nations has 12 conventions on terrorist acts (covering, inter alia, offenses on aircrafts, threats to civil aviation, nuclear terrorism, terrorist bombings, and the financing of terrorism), none of which have a clear definition of terrorism per se. Since 2000, the United Nations has been working on a proposed Comprehensive Convention on International Terrorism, which would criminalize all forms of international terrorism and deny perpetrators of terrorist acts and their associates, access to funds, arms, and safe havens. However, the negotiations are currently deadlocked due to failure to agree on what terrorism fundamentally means. This stalemate can arguably be linked to how specific states have dominated the discourse within the international community throughout history—either as colonial, political, or economic powerhouses. As a case in point, the “War on Terror” framed, led, and adopted by the United States in line with its national security strategy after the events of September 11, 2001, framed a counterterrorism strategy that put the protection of the state beyond all other rights and cast terrorism as an “unknown enemy.” The framing of this “war” with a nonstate entity ignored the possibility of institutional terrorism, particularly terrorism used as a political strategy by a state. The international community has largely accepted this War on Terror frame—at least rhetorically—as the defining characteristic of global counterterrorism efforts. Yet, the fact that there is no international agreement on what terrorism is per se (but only on what crimes are considered “acts of terror”) ³ means that there is no solid conceptual foundation regarding “terrorism” on which the normative framework of the Emmerson report lies.

At its most basic, terrorism involves the use of violence as a strategy to gain political objectives and may be used as a strategy by those, often nonstate actors, who usually have relatively little power otherwise. When used in this way, terrorism is arguably a “weapon of the weak” used as a logical choice when opposition groups have the objective of challenging the state and when the government to challenger power ratio is high (Crenshaw 1981). It is a tactic used by a minority that—by its own judgment—is unable to achieve social change by other means. Given that those who commit terrorist acts do not have access to regular institutional channels for social change, terrorism can also be considered “diplomacy from below” (Kumamoto 1991). As the strategic use of violence and threats of violence by oppositional political groups against civilians or noncombatants to influence several audiences (Goodwin 2006), the power of terrorism then lies in its ability to incite tremendous fear and a sense of vulnerability in people through acts of unpredictable, random violence, or by leveling violence against society’s critical institutions, leaders, and symbols. Terrorism commonly interrupts business and life as usual by altering people’s freedom of movement, their comfort in their surroundings, and their confidence that the full force of the state or other social institutions can protect them. As a means of intimidating people, it ironically produces systems of domination and subordination, while simultaneously trying to break down structures of domination and exploitation by the state (Jalata 2010). As such, terrorism from below can create a legitimacy crisis for the state and can destabilize or disrupt existing governments.

This very basic concept of terrorism as a weapon of the weak against the state and its citizens has largely been adopted by the media, as well as global lawmakers waging a war on terror, as they struggle to come to grips with the unimaginable level of violence since September 11, 2001. Terrorism is commonly understood as violent, civilian-targeted activities engaged by individuals or cadres and international networks of extreme nonstate political actors. Such an understanding of terrorism fails to consider that competition over economic resources and power as well as resistance to domination and repression in the international system can also increase the incidence of terrorism from above (i.e., as perpetrated by state actors) and not just from below (Jalata 2010).

The narrow conceptualization of terrorism—as perpetrated by nonstate actors—assumed in the Emmerson report sidesteps questions of activities consistent with a definition of terrorism that includes institutional terrorism; for governments themselves may also use terrorism to coerce their own resistant populations to acquiesce to their will and to eliminate challengers to state power. In the cases of Argentina and Chile in the 1970s, for instance, the military used kidnapping, murder, and torture to purge these countries of leftist critics, thousands of whom remain among the “disappeared” (Corradi, Fagen, and Garreton 1994). Former President of Yugoslavia Slobodan Milosevic was charged in an international tribunal with sanctioning rape, murder, and kidnapping (among other charges) as terrorist tactics in 1999 in an attempt to “ethnically cleanse” Kosovo of Albanians by scaring them into leaving Kosovo or by killing them. That such examples continue to abound raises the curiosity that the Emmerson report specifically sidesteps state terrorism in its treatment of the concept. Among the five main proposals presented in the report, one thus stands out as truly contentious because of such circumvention of this brand of terrorism in its discussion and could arguably be the Emmerson report’s pitfall: States must provide reparations—in various forms—to victims of terrorism regardless of the question of State responsibility.

State terrorism raises a chronic troubling contradiction underlying much of the international accords concerning human rights. These accords are often developed to delineate the parameters of acceptable treatment of human beings because the state cannot always be trusted or presumed to protect human rights as a matter of course. The goal of the accords is to define for all states the generally accepted norms of the international community concerning the treatment of all peoples; to fail to comply with these norms presumably runs the likelihood of being ostracized from the international community. Yet, the very states that cannot be trusted otherwise to ensure people’s human rights are the very same actors entrusted with the responsibility of implementing those rights. This is a constant tension in international human rights instruments that is once again echoed in the Emmerson report, particularly in its careful omission of state terrorism in its conceptualization. More to the point, it is not difficult to imagine that a state—as the perpetrator of terrorism— will likely not be able and willing to provide reparations to victims of its own human rights violations.

Thus, despite the idyllic nature of providing reparations in exchange for injury from terrorism, the concept of reparations (as it now stands), not to mention its implementation, becomes tenuous at best. When applied to the war on terror—a situation where states have yet to come to a consensus on the definition of the act they wish to prosecute, where the rights of victims of terrorism have yet to explicitly achieve the status of human rights under international law, and where the perpetrators are essentially unknown nonstate actors who do not have the capacity to provide redress—the issue of state responsibility vis-à-vis reparations is not so easily overcome.

The Relationship between Human Rights, Terrorism, and Security

The protection of a human right is theoretically the responsibility of each member of the international community. But when such theory is applied to establishing what particular rights can be protected as “human rights,” worldwide consensus somehow becomes more difficult to achieve. International accords that define human rights articulate an international obligation to protect those rights and endow them with normative inviolability. As rights that are derived naturally “from the inherent dignity of the human person” (Universal Declaration of Human Rights [UDHR]; Donnelly 1982), human rights are neither granted by the state nor are they derived from a person’s actions (Donnelly 1982). No one has to do anything but to be a member of the human race to acquire these rights (Hart 1955). Ergo, the issue of state responsibility—that is, who should be responsible for the protection of victims and to what extent—is left at the door.

This issue consequently stymies the establishment of principles in international law that make ambiguous and country-specific ⁴ crimes such as terrorism tantamount to a violation of the victims’ human rights—regardless of whether such acts are indirectly or directly the responsibility of a state. And the question of whether or not a state is willing and able to accept the duty of providing victims of terrorism some form of restitution, compensation, and support because of a human rights violation committed by nonstate actors anywhere in the world lies at the heart of the challenge.

Nevertheless, despite differences in how terrorism per se is understood and constructed by each state through its criminal statutes, an examination of the effects of terrorist acts clearly shows that terrorism violates basic principles of human rights as enshrined in the UDHR. Indeed, the random and violent nature of terrorist acts against civilians or public spaces undermines the fundamental freedoms as well rights of persons to security. But the protection of fundamental freedoms alongside the protection of security presents certain socially constructed tensions that the Emmerson report sidesteps in formulating its recommendations.

The Emmerson report assumes that the measures a state must take to ensure the citizens’ right to security (and to compensation for victimization) necessarily entail some compromise of rights, hence ignoring some important preliminary issues (Luban 2005). In particular, it fails to entertain an examination of the conditions that necessitate security measures by the state to protect its citizens from political violence; the transnational nature of terrorism along with the issue of how to deal with perpetrators of terrorist acts who are “internal” to the state or are otherwise recognized citizens; and the ethical and political issues regarding the understanding of an “imminent” threat in relation to terrorism, and how states can and should respond to such a threat while needing to balance the protection of civil liberties. The Emmerson report immediately turns to expounding on the right to compensation and reparation of victims, assuming that the international community has achieved a consensus on how these matters are addressed. The shift in focus of the Emmerson report from the troubling social construction that pits security for some against the rights of others to one immediately about the rights of victims of terrorism raises the prospect that those whose rights to privacy, due process, freedom of association, and freedom from search and seizure might themselves be victims of terrorism, this time as perpetrated by the state. An important question thus emerges: What are the prospects that states that engage in such terrorism will recognize and respect the responsibility to provide reparations?

The question points to the unresolved tension between international norms and accords of human rights on one hand and the rights of states to sovereignty on the other. The Emmerson report thus assumes a permanent threat of terrorism, as it emanates from nonstate actors alone. This ignores the problem of how efforts to protect the security of citizens are increased (and by whom) when the state itself is the source of terrorism or when the state supports the perpetrators. We must thus recognize what the Emmerson report does not: When the purveyor of terrorism is the state itself or groups it supports (including institutional actors like corporations as well as individuals and networks of individuals), the tension between human rights and state sovereignty significantly impacts the possibility of successful restitution. Consequently, there is a need to pay increased attention to how the concepts of state sovereignty, security, and existing human rights instruments can be reconciled conceptually and practically before even entertaining the possibility of reparations for victims of terrorism.

International Counterterrorism and State Sovereignty

The UNGCTS seeks to combat the terrorist threat by acknowledging the rights of victims of terrorism, recognizing first, that the dehumanization of victims is a condition conducive to the spread of terrorism and thus must be prevented; and second, that states have the obligation to promote and protect the rights of victims of acts of terrorism. States must create systems that will help victims “normalize” their lives (Emmerson 2012). Yet, the UNGCTS frames the global war on terror as one against perpetrators external to the state. The exclusion of state terrorism in this overarching global strategy omits a notable instance that complicates what would appear to be less nuanced in terms of how dehumanization is understood: That the dehumanization of populations is also a common feature in the run-up to war because it enables the suspension of the usual norms against violence and makes killing in war not only acceptable but also a patriotic duty. Thus, when states engage in “us versus them” propaganda that dehumanizes populations as “the other” who do not value human life as “we” do and who are less than human—a stance that ultimately results in death and injury—states may arguably be engaging in acts of terrorism. Since one of the goals of the UNGCTS and the Emmerson report is for states to normalize the lives of the victims and their families, the question thus becomes whether or not the state is required to normalize the lives of those individuals (and their families) who are subjected to the acts it perpetrates that could qualify as “terrorism.” In cases of capital punishment (itself a violation of UDHR) or racist incarceration, for instance, the question of whether restitution is the right course of action—or even necessary—emerges if one argues for the inclusion of such acts within the ambit of terrorism. Both the UNGCTS and the Emmerson report fail to address these concerns.

This problem highlights the fact that state sovereignty has perennially been at odds with the human rights discourse, particularly the extent to which states are able—and willing—to protect human rights. Sovereignty—the right and authority of the state to govern over a people within a specific territory to the exclusion of other states—has been recognized as a necessary condition for the creation and perpetuation of a rights regime (Donnelly 2003). But since sovereign states almost have an entire monopoly of the enforcement of authoritative international human rights norms in the territories they deem fit (Donnelly 2007), this implies that state sovereignty simultaneously does little to address internal issues of human rights protection and violations (Donnelly 2003). Consequently, Donnelly (2007) observes that if states systematically violate internationally recognized human rights, history has shown that they do not automatically lose their legitimacy in international law (except in the case of genocide, ⁵ which has gained the ability to trump sovereignty). This tension between sovereignty and human rights highlights the potential problems with regard to the question of state responsibility toward the victims of terrorism, especially for terrorist acts committed by agents of the state. When states use sovereignty as a shield behind which they protect their rights-abusive regimes, there is no guarantee that victims of such abuses can even begin to seek redress.

The special rapporteur attempts to address this tension by expounding on how the concept of state responsibility must be understood and applied in the case of victims of terrorism. He clearly posits that “the same principle [of state responsibility] should apply to all victims of terrorism or their next-of-kin, without distinction” (A/HRC/20/14,53) because death or serious physical injury that results from acts of terrorism is tantamount to an “interference with the rights to life and/or physical security, whether or not the acts or omissions of a public official caused or contributed to the death” (Emphasis in original). Given the nature of the offense and the fact that a gap exists in the protection of the human rights of victims, the special rapporteur urges states to “voluntarily accept a binding international obligation to provide reparation to the victims of all acts of terrorism occurring on their territory in which a natural person has been killed or has suffered serious physical or psychological harm irrespective of the nationality of the perpetrator or the victim” (A/HRC/20/14,53). He thus advocates for reparations on both theoretical and practical levels. He argues that a terrorist killing—as a political act with direct or indirect ties to the policies of a state—is inherently of a different nature from a private murder, the latter viewing the victim as someone who did not involuntarily make a sacrifice of life or limb for the state. On the practicality of adopting such a recommendation, the special rapporteur argues:

There are additional practical reasons for adopting the approach advocated in this report. Where bystanders or hostages are killed in the course of counter-terrorism operations, it may be impossible to determine whether the acts of a public official were both causative and culpable. Similarly, the determination of State responsibility for an alleged failure to take positive operational steps to prevent an act of terrorism can be fraught with evidential difficulties. If the approach advocated by the Special Rapporteur is followed, States will be under an obligation to provide reparation without imposing an additional burden on the victims or their next-of-kin to prove conclusively that public officials were at fault.[55]

Perhaps the most fundamental point is that the direct perpetrator of a terrorist act is unlikely ever to be in a position to compensate the victims. The perpetrator will usually have been sentenced to a long term of imprisonment (if they have not been killed or evaded capture). A victim-centred approach does not permit reliance on an indigent, deceased or untraceable individual to provide reparation for death or serious injury. (A/HRC/20/14; Emphasis ours, 56)

In line with this recommendation, the special rapporteur urges states to voluntarily take up the international obligation to protect the human rights of victims of terrorism and accept the responsibility to provide redress to individuals by establishing schemes for state-funded compensation if they have not already done so. He believes that such is a fair, rational, and necessary next step in international human rights law, given “the contemporary recognition that acts of terrorism involve grave human rights violations; the state’s duty to protect and secure the right to life; the emerging international consensus in favour of a victim-centred approach; the absence of any alternative source of compensation or reparation; and the inexorable connection between the misguided motivation of the terrorist and the policies of the State that is the terrorists’ ultimate target” (A/HRC/20/14,61). Yet in the absence of any acknowledgment that it is possible for states themselves to engage in terrorism, it is impossible to determine the feasibility of the recommendations when the state is the perpetrator of the act. Once again, we are brought back to the perennial tension and seemingly irreconcilable divergence between a state’s claim of sovereignty and its obligation to protect human rights.

Implications of the Reparations Regime to Protecting Victims’ Rights

As expounded on in the previous section, the Emmerson report transforms a terrorist act from a mere criminal act punishable under domestic law into a human rights violation under international law. Consequently, victims of terrorism become subjects of international law, and more importantly, direct beneficiaries of legally enforceable human rights. Thus, in order to achieve full reparation for being a victim of terrorism under the U.N. Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (A/RES/60/147, Annex, 18–23), states have the responsibility to grant various forms of reparations to such victims, including restitution, compensation, rehabilitation, satisfaction, and guarantees of nonrepetition. But despite these norms on reparations, and the moral appeal of protecting human rights as an international obligation, applying the reparations regime as it currently stands in international human rights law to protecting the rights of victims of terrorism runs into conceptual roadblocks. One such hindrance is related to the war on terror itself: As we have shown, there is a definitional problem when it comes to what terrorism is. But this leads us to another conceptual barrier: If we cannot categorically define terrorism, then who are its “real” victims?

The Emmerson report describes in detail several categories of victims of terrorism whose human rights must be protected: direct victims, secondary victims, indirect victims, and potential victims. ⁶ But given the difficulty in defining terrorism, and despite the categories laid out in the Emmerson report, it remains problematic to define the term “victims” in the context of terrorist attacks (Letchert, Pemberton, and Staiger 2010). The lines drawn between these categories necessarily intersect and overlap. Who the victim is becomes dependent on the categorization of the act as terrorism or not in the first place. The issue can thus become one of semantics and arguably one of cultural and normative relativity. The difficulty of distinguishing ordinary crime from acts of terror becomes a challenge, as varying components of states’ multiple definitions have to be relied on in the absence of a universal definition of terrorism. Ultimately, this ambiguity can lead to difficulty in initially classifying and recognizing the act as an “act of terrorism” and subsequently, to difficulty in determining who gets the restitution and the nature and forms of redress.

Another important roadblock related to the issue of identifying victims is the issue of citizenship, that is, when restitution is only granted to those who are citizens of a state implementing the recommendations of the report. It is important to note that while political rights are necessarily granted by a state only to those who possess or acquire citizenship in its polity, human rights are believed to accrue to an individual by simply being “human” (Donnelly 1997). Thus, while the state has no obligation to protect the political rights of its noncitizens, it nevertheless has the obligation to protect the human rights of individuals regardless of citizenship.

Following this logic, by framing terrorism as a violation of human rights, the Emmerson report suggests that citizenship is not necessary for a victim of terrorism to receive redress from a state (regardless of state responsibility). The report thus implies a universal application of reparations by a state toward any victim, regardless of citizenship. However, since the process of restitution proposed by the report necessarily calls for the use of the political, judicial, and legal institutions of a state, the willingness of such state to exercise jurisdiction and apply policies to address and resolve such cases makes the issue of citizenship salient. The prerogative of the state as to how and when to use its financial and legal resources to provide for and protect its recognized citizens first, before others who are not members of its polity places a cloud on the possibility that victims of terrorism can readily claim reparations from states to which they do not belong.

Compensating victims of terrorism based on citizenship becomes even more difficult when stateless persons—individuals who are not considered as a national or citizen by any state—become victims of terrorist acts. Such challenges were encountered, for instance, when Jews experienced legal exclusion from German citizenship as the precursor to their genocide (Arendt 1951). When a person is no longer recognized by his or her former home country and has yet to gain membership in another state, the question of international responsibility regardless of state responsibility compromises the right of these victims to restitution for two obvious reasons: first, the silence of the Emmerson report on how to compensate stateless persons as a category of victims of terrorism precludes any obligation of states to recognize such victims as beneficiaries of their restitution programs; and second, the absence of an international body that provides restitution for victims who cannot politically participate or benefit from any state will leave such persons in political limbo.

Given the current state of international human rights law, applying the reparations regime to a situation with such conceptual roadblocks implies that creating universal standards of reparations for victims of terrorism may not actually be adequate to protect their human rights. What is needed is a clarification of what qualifies as a terroristic act, and the development of a norm framing terrorism as a violation of human rights law from which no derogation is possible. Such treatment of terrorism under international human rights law may make it possible for tensions between human rights and state sovereignty and human rights and citizens’ rights to be eased.

Who Pays? The Challenge of Quantifying the Rights of the Victims of Terror

Beyond the conceptual roadblocks discussed previously, the recommendation that states must provide restitution (in various forms) to victims of terrorism regardless of the question of state responsibility poses a practical challenge. In an ideal world, all criminal justice systems would have a program for restitution for victims of crime that could be extended to victims of terrorism when the need arises. However, not all countries have the economic capacity, political will, or legal environment that would allow it to act like the United States 10 days after the 9/11 attacks, where its Congress immediately created a Victim Compensation Fund that paid out more than seven billion dollars to all those who were injured or left behind by loved ones (Shapo 2005). There is no shortage of seemingly unanswerable questions when the financial cost of implementing this normative framework is on the agenda: What happens when low-income countries cannot adequately provide for restitution to their citizens who become victims of terrorism elsewhere or even to those who are victimized within their own territory? And what happens if otherwise relatively affluent countries like the United States need to suffer through budget cuts that limit the amount of compensation given to victims of terrorism? Is it possible for these victims to seek redress elsewhere or from the international community at large? Should there be an international fund through which these victims can alternatively benefit from?

More importantly, how can and should the violations against the human rights of terrorism victims be quantified? The criteria the international community uses to determine restitution obviously has implications on the capacity (and arguably the political will) of the state and the international community to adhere to the proposed normative framework. The socioeconomic uncertainties surrounding the right to restitution thus present another roadblock to the recommendations of the Emmerson report. Strikingly, as the report assumes obligations of states—ergo, the primacy of state actors in upholding this proposed framework—it also assumes that the state would be able to set aside funds to assist victims for the “renormalization” of their lives. That the protection of human rights is a cooperative endeavor between and among societies does not seem to release the state—at least in the proposed framework—from the sole obligation to compensate the victims. There is no mention of an international fund or assistance program under the United Nations or any other global entity to ensure the protection of victims’ rights. Interestingly, civil society (i.e., organizations such as the Global Survivors’ Network ⁷ ) is brought in to provide assistance programs for survivors to cope with trauma; but international organizations like the United Nations seem to take merely the facilitating role in the process. This detail and the fact that member states have been slow to establish steady compensatory programs for terrorism victims (save for Spain, the United Kingdom, and the United States) is telling of the power struggle between states and international organizations on how the normative framework should be established and operationalized, as well as the marginal role that civil society is directed to play as a result of state responsibility being the fundamental principle of restitution in international law.

Indeed, while state responsibility and willingness are key factors in this regime so is state capacity to fulfill such an obligation; and once a state’s capacity is challenged by the lack of economic or political will, then the protection of the rights of victims of terrorism under the UNGCTS may be sacrificed. And therein lies a severe limitation to the Emmerson report.

Conclusion

Terrorism violates human rights as enshrined in the UDHR; and the perpetrators of such violent acts against innocent civilians must be brought to justice. The U.N. Global Counterterrorism Strategy recognizes that this justice can only come about through conscious efforts to protect the rights of the victims of terrorism by providing them access to redress and support. The special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Emmerson, believes that the only way to ensure this is to adopt a human rights framework in our counterterrorism efforts. Specifically, he encourages all states to adopt a system of reparations to compensate victims of terrorism, regardless of state responsibility.

Yet while there is indeed theoretical merit to viewing the protection of the rights of victims of terrorism within a human rights framework, the application of the reparations regime, as it currently stands, to the war on terror presents conceptual and practical roadblocks to its implementation. The lack of a universal definition of terrorism that takes into account institutional and state terrorism as well as individual terrorism and a clear definition who its victims are, coupled with the question of who pays, and how much as a result of the lack of political and/or economic will, may only lead to further injury. Expecting states to be responsible for providing restitution by setting up national mechanisms regardless of proof of culpability may present complications, especially when acts of terrorism are committed by nonstate actors.

Arguably, the question of state responsibility can become moot if states adopt a human rights framework when viewing the rights of victims of terrorism. But until then, achieving strong international norms on reparation within the context of the rights of terrorism victims appears to be an uphill battle. Nevertheless, as roadblocks and debates have perennially defined the construction of the human rights regime amid various successes, we maintain the hope that the recommendations laid out in the Emmerson report will slowly gain traction among member states. In the end, a true acknowledgment of these victims’ suffering necessarily comes with this: The recognition that theirs is the right to at least have an opportunity to continue living their lives, as if terrorism had never taken anything away.

Given that terrorism is generally understood to be political in nature, or otherwise used to alter state policies or institutions, its innocent victims can be viewed to have involuntarily sacrificed their rights and freedoms on behalf of their state. Consequently, the state has the responsibility to ensure that victims of terrorism—whose human rights have been violated—are given access to appropriate restitution. Such conclusion necessarily and unequivocally flows from understanding the rights of terrorism victims as human rights. The question of responsibility and reparations, however, is easier resolved in rhetoric than in practice, especially when the arena of application is relatively nascent and nebulous as is the nexus between counterterrorism and human rights. The Emmerson report attempts to resolve such a complex dilemma by advocating for a human rights framework and providing recommendations that boldly challenge the notions of sovereignty and state responsibility in international law. It is thus necessary at this point to understand what the core arguments of the Emmerson report are, particularly in terms of how it sees the concepts of the very definition of terrorism, responsibility, the role of the state, and reparations in the context of protecting the rights of victims of terrorism.