A. Security legislation and human rights defenders - trends and context
1. Legislation that is of specific concern to the Special Representative in the context of the work of human rights defenders and the effective implementation of the Declaration has existed in many national legal jurisdictions much before the current global adoption of security driven measures. In the wake of the terrorist attacks of 11 September 2001, however, many governments have drafted, adopted or reactivated security legislation leading to an apparent growth in the number and variety of security related rules. In parallel, since 11 September, ‘security’ has become a declared priority on many international and national agendas, to the extent that security legislation is called upon for application in a widening number and range of situations.
2. The menace of terrorism poses a serious threat to peace and security and acts of terrorism have frequently targeted human rights defenders advocating the promotion and protection of human rights. The Special Representative recalls with deep regret the loss of Sergio Viera de Mello, Special Representative of the UN Secretary General to Iraq and UN High Commissioner for Human Rights. The terrorist attack on the United Nations compound in Iraq is yet another sign of the malaise that seeks to destroy the values of humanity, and presents a serious challenge to those striving for sustainable peace by the promotion and preservation of human rights in the midst of conflict and strife.
3. Those striving for the rights of minorities or women, those advancing the cause of religious tolerance and accommodation of ethnic or racial diversity, or resisting trends of ultra-nationalism have been some of the first victims of forms of extremism that have become the major cause of terrorism. They have also been in the frontline to combat these trends in order to preserve the norms of peace and democracy, as conditions that are fundamental for the promotion, protection and enjoyment of human rights. The struggle of human rights defenders against terrorism precedes the events of 11 September and has been a visible human rights activity in parts of the world where the roots of terrorism are strongest. Security or counter terrorism measures that strengthen prospects for the enjoyment of human rights, and which conform to the internationally accepted norms on which notions of rule of law are based, would therefore not be impediments to the defence of human rights.
4. The Special Representative is well aware that adoption of measures to guarantee the security of citizens falls within the ambit of State responsibility. The international community, for its part, is committed under the Charter of the United Nations to take collective measures for the prevention and removal of threats to peace and security. The concerns regarding the enforcement and application of security legislation in general or special measures for countering terrorism, expressed by the Special Representative in this report, take this aspect of state and international responsibility fully into account. However, as the Special Representative has emphasised in her earlier reports to the General Assembly and the CHR, laws, policies, and practices that disregard or undermine human rights norms are proving counter-productive to the objective of assuring security at the national or global level. Such measures in themselves contribute to an unstable political climate in which human rights violations are occurring with alarming frequency and with a regrettable degree of acceptance and condonation. In this environment, neither is human rights activity expected to have the desired impact on political, social and economic conditions, nor can human rights defenders gather the support they need to strengthen respect for human rights. These circumstances have increased the vulnerability of human rights defenders engaged individually, or through a variety of movements, in the promotion of political, social, economic and cultural rights.
5. From the analysis of the extensive information received by the Special Representative it is clear that, in many States, the scope of security legislation exceeds the legitimate objective of strengthening security. Many security-related rules extend special powers to State authorities and often also limit judicial review and other guarantees for the protection of human rights. The breadth of some security related legislation is such that, when abused, these instruments can themselves be used as tools of State terror. In an environment in which formal guarantees of human rights protection have decreased, human rights defenders play an important role in monitoring the use of security legislation and exposing deviations from human rights norms. Human rights defenders protesting or criticising enforcement of laws, implementation of policies or adoption of practices that infringe upon fundamental freedoms and violate human rights have themselves been targeted through the use of security legislation in many States. Using the imperatives of security as a shield, activities protected by the Declaration have been criminalized and prosecuted. Human rights defenders are finding it increasingly difficult to carry out their monitoring and advocacy functions with facility or safety.
B. Profile of security legislation
6. The Special Representative uses together the words ‘security’ and ‘legislation’ in a broad sense to refer to laws, decisions and other measures which possess a legally binding character and which purport to protect public or State security or to protect against acts such as terrorism. The Special Representative also extends her concern to policies that influence how security legislation is used. Most commonly, these legally binding measures are contained in domestic legislative instruments bearing titles such as ‘National Security Act’, ‘Public Security Act’ and ‘Prevention of Terrorism Act’, etc. It is also common to find provisions referring to national security, which have been used against human rights activity, in articles within legal instruments that are not explicitly focused on security; for example, laws on the establishment and registration of associations or on the organisation and holding of public demonstrations.
7. The term ‘security legislation’ is also used here to refer to security related measures which are promulgated without passing through a legislative body, but which can nevertheless be enforced by the police and courts. Administrative measures, for example, are frequently used to limit the action of human rights defenders, in the name of security. Executive orders, such as ‘Presidential Decrees’ or ‘Presidential Ordinances’, have also been applied to the detriment of the work of human rights defenders.
8. A key problem with the application of security legislation against defenders is the use of vague and imprecise definitions in the legislation itself that allow varying interpretations based far more on Government policy than on objective legal correctness. Vague language has paved the way for the criminalization of certain types of human rights activity. In some States, this has resulted in the use of security legislation to persecute defenders who criticize government or who have taken peaceful action in favour of democratization, minority rights or self-determination.
9. A pernicious characteristic of the use of domestic legislation to obstruct the work of human rights defenders, in violation of the Declaration, is that it places defenders in an illegal situation under domestic law, making them liable to prosecution. In many instances the cover of ‘reasonable restrictions’ has been used by states to enforce laws and adopt policy or administrative measures that curtail rights in a manner and for purposes that tend to destroy the very existence of the rights sought to be restricted. Further more, the use of such legislation in some of the cases brought to the attention of the Special Representative indicates no nexus of these restrictions to any legitimate security objective.
C. Security legislation provisions affecting the rights protected in the Declaration
10. The cases communicated to the Special Representative indicate how a number of features common to many security laws have been used to obstruct the work of human rights defenders, in violation of the standards defined in both the Declaration on human rights defenders and other international human rights instruments. The Special Representative identifies her concerns here in terms of rights essential to the work and safety of defenders and in terms of corresponding violations. Information on these concerns has emerged from States where an existing body of security legislation has been revived and is now being implemented in a manner that is detrimental to the work of defenders. In addition, some States have, in the past two years, introduced new and broad security legislation as part of a more recent declared commitment to strengthen security and combat terrorism. While the full impact of very new legislation is yet to be seen, some cases are now emerging which show a high potential of these very broad security provisions to be used against human rights defenders in the future. The violations referred to below are not occurring in every State with security legislation but in a, nevertheless, large number and wide regional diversity of States that indicate a clear and disturbing pattern.
1. Access to Information
11. Access to information is indispensable for the work of human rights defenders. The Declaration seeks to protect the monitoring and advocacy functions of defenders by recognizing their right to obtain and disseminate information relevant to the enjoyment of human rights.
12. In many States provisions of laws on internal security, official secrets and sedition, amongst others, have been used to deny the freedom of information to defenders and to prosecute their efforts to seek and disseminate information on the observance of human rights standards. On the basis of securing national security and counter-terrorism, defenders’ access to detainees held on terrorism charges has been limited; their attempts to monitor human rights in terrorism trials refused; and efforts to gather human rights related information in areas of conflict obstructed; among others. Since 11 September 2001, the executive, in many countries, has adopted a higher level of secrecy, sometimes even in instances other than terrorism. There are examples where the executive, after designating detainees as terrorists, has refused to share information or to provide evidence to support the designation even to the legislature and courts. At the same time where laws on freedom of information were adopted to ensure government accountability, these are now being more restrictively interpreted.
13. With insufficient information, defenders’ capacity to analyse and draw conclusions on particular human rights situations is severely limited. Further, by preventing defenders from obtaining information on respect for human rights, States are effectively limiting their accountability for abuses and damaging the transparency of their governance.
2. Freedom of Expression
14. Despite protection under international and regional human rights instrumentsand national constitutions, the right to freedom of expression has suffered the most severe and adverse impact of restrictions imposed by national security or anti-terrorism laws. The information received by the Special Representative contains many examples of how these laws have been used to criminalize accepted forms of dissent and suppress the right to hold governments accountable.15. Those exposing human rights violations by the State, insisting on transparency or demanding accountability have been particularly targeted. Laws restricting printing and publication have been used to curtail the freedom of the press. Journalists have been prosecuted for exposing corruption, flaws in governance and human rights abuse. Information on HIV/AIDS, reports of alleged human rights abuses by members of a governing political party, or statements critical of the human rights impact of government security policies have all been claimed by States as information whose publication is a threat to national security. In one country a report on the situation of human rights was proscribed as “anti-government literature”. In another, publication of a translation of the Universal Declaration of Human Rights led to criminal prosecution. Any opinion perceived to differ from State ‘ideology’ has also been branded as a security concern and used as a justification for repression of defenders’ freedom of expression.16. Security legislation has been used by Governments to justify censorship of such human rights related information and as a basis for retaliation against defenders. Charges have included ‘defamation of authorities’, ‘spreading false information liable to disturb public order’, insulting the security forces, tarnishing the image or reputation of the state and sedition, all of which have been portrayed as damaging national security. Penalties for a contravention of these provisions have ranged from fines, arrest, detention, criminal prosecution and very long sentences of imprisonment.17. Inevitably, abuses of defenders’ right to freedom of expression is increasingly leading to self-censorship as defenders determine that their position is no longer sufficiently secure for them to publish human rights information. A feeling of insecurity is compounded further when authorities publicly denigrate the work of defenders as irrelevant, harmful of efforts to combat terrorism, as unpatriotic or disloyal.
3. Freedom of Association
18. The right to freedom of association provides a platform for the work of human rights defenders and is protected in article 22 of the International Covenant on Civil and Political Rights and a number of regional instruments. Article 5 of the Declaration on human rights defenders provides that “For the purpose of promoting and protecting human rights and fundamental freedoms, everyone has the right to […] form, join and participate in non governmental organizations, associations or groups […]”.19. As indicated in cases submitted to the Special Representative, security legislation is being increasingly used to justify a refusal to register organizations and individuals conducting human rights work. In some instances, States have introduced registration requirements where none formerly existed. When human rights defender organizations, some of which have been active for many years within these States, attempt to register themselves their applications have been refused by authorities citing national security. Refusals sometimes refer to security provisions within administrative rules on the registration of associations and organisations or to the security provisions of an executive order. Typically, no further explanation is given as to why or how the human rights defender organization in question is a threat to national security, making it difficult for defenders to challenge the refusal. Where the defenders choose to continue their activity without being registered they fall into a situation of illegality and become vulnerable to prosecution. The Special Representative has been informed of instances where laws allowing the prevention of ‘anti-national’ activities have been used to ban human rights organizations or impose limitations on the independence of professional associations.20. Other limitations on the right to freedom of association have, for example, involved action by security forces to prevent meetings between members of human rights organizations. National security arguments, based upon legislative provisions, have been used by the security forces to interrupt or prevent human rights defender groupings, in some instances through force and violence leading to injury among defenders. In other instances, groups opposed to the human rights work of the defenders in question and affiliated with the State have been used as a proxy force to violently disperse human rights defenders. These incidents are often marked by the presence of police who take no action against those using violence.
4. The right to protest and freedom of assembly
21. The right to protest against public policy or state action is an effective mode of participation in a democracy. The Declaration on human rights defenders acknowledges the legitimacy of participation in peaceful activities to protest against violations of human rights, and recognizes the freedom of assembly as an important element of this right. Those engaged in such activities are entitled to effective protection under national law against any adverse action by the state.
22. Restrictions imposed on the freedom of assembly have been liberally applied to prohibit or disrupt peaceful human rights assemblies, frequently on the pretext of maintenance of public order and increasingly relying upon counter-terrorism legislation, arguments and mechanisms. Defenders have been prosecuted under laws that allow the executive to arbitrarily ban public gatherings generally, or at specified locations. Farmers have been prosecuted in anti-terrorist courts for protesting attempts by state security forces to evict them from land. Villagers demonstrating against mega-projects that threaten their environment and livelihood have been charged with conducting anti-state activities. Peace activists and anti-war protesters have been maligned and threatened with prosecution for defying travel restrictions. The worst affected are pro-democracy activists and those organizing or taking part in peaceful public action asserting their right to independence or self-determination. They have become most susceptible to the use of security laws and anti-terrorism measures by States. The Special Representative notes with concern that these trends are now noticeable even in countries where the political or institutional arrangements are not implicitly or explicitly undemocratic. 5. Activities of state intelligence structures and surveillance of human rights defenders
23. Security related laws and regulations have frequently diluted guarantees of the right to privacy that are otherwise normally available under the law. However, the more recent anti-terrorism laws in some countries have given law enforcement and intelligence agencies exceptional powers of surveillance, collection and processing of personal data and of search and seizure. In some instances these laws allow surveillance of organizations, regardless of the nature of their activity and without any suspicion of wrongdoing. Human rights groups, lawyers and others have raised concern with several issues that strike at the legitimacy or justification of the powers granted under these laws. In the limited context of this report, however, the Special Representative’s focus is limited to concern on how defenders and their work are affected by the policies and practices used by surveillance structures, under the cover of security legislation. 24. Human rights defenders are the first to report and question practices that violate human rights. Governments are increasingly reacting to this by undermining the credibility of these defenders, branding them as subversives, ‘anti-national’ and enemies of the state. State intelligence structures are used to harass defenders, interfere with their efforts to seek and disseminate information on violations, and to prevent any action to draw public attention to these violations. Communicating human rights abuse to concerned international agencies has become a particular reason for surveillance and crack-downs against defenders. Many have been subjected to investigation and interrogation and placed on intelligence files, reportedly for defending the right to due process and fair trial, offering legal defence or demanding conditions of detention compatible with human rights standards for those under suspicion of terrorism or other security related offences.25. Defenders have found themselves placed on ‘black lists’ maintained by security and intelligence apparatus of the state. Frequently, the actual existence of lists is not formally admitted and they do not appear to have any clear status in law, making it difficult for defenders to confirm that they are on a list and to challenge the inclusion of a name – their own or someone else’s. The criteria used to set up the lists (where precise criteria exist) are opaque and often unknown to the defenders listed. The lack of transparency in the use of such lists and the limited possibility for independent review of the names included in them are such that they are easily used to target human rights defenders for reasons wholly different from the alleged concern with security or counter-terrorism. The Special Representative has received reports that allege the deliberate leaking of intelligence information to non-state elements that has been directly responsible for harm to human rights defenders at the hands of these elements.
6. Arrest, pre-trial detention, prosecution
26. Arrest, preventive detention and prosecution under security legislation provisions are often conducted in a manner which limits defenders access to persons arrested and detained under such legislation and to the information justifying their arrest and on the basis of which they will be prosecuted.27. Detention of people without warrant or eventual trial is a common feature in much security legislation. Under certain circumstances security legislation does not impose any obligation upon the State to publicly specify the charges under which a person is being held. Preventive detention measures, allow authorities to detain individuals suspected of being a threat to public order or state security for long periods without intent to prosecute them for criminal offences. Evidence justifying the arrest of an individual on the basis of security provisions can sometimes be kept wholly or partly secret. These conditions make it extremely difficult for defenders to verify the legality of the arrest, the respect of relevant human rights related to conditions of detention, or to assure an adequate legal defence.
28. Security legislation has also been misused to arrest and detain human rights defenders themselves, precisely because of the limited opportunities for monitoring and accountability. Information received by the Special Representative indicates that such legislation has been used in the arrest and detention of, amongst others, trade unionists, student leaders, political activists, religious groups, academics, lawyers, journalists and NGO workers in response to their human rights activities.
7. Right to Habeas Corpus
29. In a context in which the access and role of human rights defenders in monitoring arrests and detention under security legislation is restricted, it is particularly important that an independent court be allowed to rule on the legality of detention. The Special Representative notes General Comment No.9 of the Human Rights Committee, “In order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without any delay on the lawfulness of the detention, must not be diminished by a state party’s decision to derogate from the Covenant”. In addition, the CHR in its Resolution 1992/35 “Habeas Corpus” called upon states to maintain the right to habeas corpus even under circumstances of a state of exception. The Special Representative notes that many examples of security legislation contain provisions restricting the right to habeas corpus. It goes without saying that judicial review is of particular importance in instances where human rights defenders are themselves arrested and detained on security related charges.
8. Access to a lawyer
30. Article 9, paragraph 3, (c) of the Declaration reads “everyone has the right, individually and in association with others to offer and provide professionally qualified legal assistance or other relevant advice and assistance in defending human rights and fundamental freedom”. The Special Representative notes with concern that security legislation often allows for a person to be detained for lengthy periods without access to a lawyer. Aside from the absence of professional legal counsel, such conditions prevent any independent monitoring of respect for minimum conditions of detention and create situations in which detainees can be vulnerable to torture. The Special Representative has received information on arrest and detention of numerous lawyers defending persons on security related charges, allegedly as retaliation for exposing human rights violations against their clients and attempting to take legal recourse against the authorities responsible.
9. Specialized courts and procedures
31. Some security legislation establishes procedures allowing for the use of specialized courts to try terrorism and certain other security cases. The stated objective of these courts is to allow the State to prosecute individuals suspected of terrorism in conditions which will not prejudice the State’s capacity to continue to dismantle terrorist networks (by publicly divulging information and sources), as well as to protect judges and others from repercussions. A common hallmark of such courts is that of secrecy, combined with a truncation of the normal guarantees assured to a defendant in criminal court proceedings. In particular, requirements as to maximum periods of preventive detention, conditions of detention, access to legal counsel, and with regard to evidence are less stringent. For example, in some instances, hearsay and secondary evidence which would be rejected in regular proceedings are admissible as evidence before these courts. Some courts are entirely staffed by military personnel, with prosecution lawyers, defence lawyers and judges all drawn from the military.
32. These courts and procedures are of concern to human rights defenders primarily because their access to defendants due to be tried before these courts is greatly reduced and because of the denial of opportunities to monitor trials held in camera. Defenders themselves have, in a few instances, also been brought before such courts.
10. Security forces – delegation of judicial powers, immunity
33. Under some security legislation, certain judicial powers have been delegated to security forces. In particular, security legislation provides security forces with much greater scope to obtain information and conduct arrests without judicial review such as the requirement for an arrest warrant to be signed by a judge. Some security legislation allows for members of the security forces to benefit from immunity for actions taken in “good faith” the context of counter-terrorist activities. 34. As indicated in the Special Representative’s past reports, and according to the information provided to her, security forces – including the police, military, paramilitary and similar forces – are the most common direct perpetrators of human rights violations against defenders. The Special Representative is apprehensive about the security of human rights defenders in an environment that increases the powers of security forces, while simultaneously limiting oversight and monitoring. These apprehensions are founded in the awareness of the expanding role of the military and other security forces in law enforcement, which brings them in direct contact with defenders monitoring state practices and campaigning for respect for human rights and accountability for violations.
11. United Nation legislation and the protection of human rights defenders
35. In the context of United Nations ‘security legislation’, the Special Representative limits her focus to resolutions of the Security Council which have emerged in response to recent terrorist attacks, and which have specifically called for action by States in the domain of security and counter-terrorism. As mentioned in section I.B above, the link between this United Nations legislation and obstructions to the work of human rights defenders is based on the assumption that States have been guided in their approach to strengthening national security legislation by referring to these statements of the will of the United Nations. The extent to which these resolutions, calling for State action on security and counter-terrorism, also refer to the State obligation to respect and protect human rights essential to the work and safety of defenders can be significant in ensuring that national security legislation, adopted by States as a result, is drafted and implemented in such a way as to protect defenders and their work.36. The Security Council has adopted a series of resolutions on security and counter-terrorism, including 1368 of 12 September 2001, 1373 of 28 September 2001, 1377 of 12 November 2001 and 1438 and 1440 of October 2002. Several resolutions use strong language with regard to addressing terrorism, including “the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts”. The preamble to resolution 1373 includes the provision: “Recognizing the need for States to complement international cooperation by taking additional measures to prevent and suppress … the financing and preparation of any acts of terrorism”.37. References to ‘human rights’ or other language which could be considered to emphasise the protection of human rights defenders and their role are, however, limited. The Preamble of Resolution 1368 reaffirms “the principles and purposes of the Charter of the United Nations” but makes no more direct reference to human rights standards and obligations. The Preamble of Resolution 1373 notes States obligation to limit their counter-terrorism efforts to “all lawful means”, but the text makes just one direct reference to human rights, and this is limited to the context of claims for refugee status. 38. Resolution 1373 established a Counter Terrorism Committee of the Security Council whose role in monitoring States’ implementation of resolution 1373 could become significant in assuring respect for the Declaration on human rights defenders in the enforcement, implementation and application of security legislation or anti-terrorism measures. Monitoring conformity of counter terrorism measures with human rights standards is clearly outside the mandate of the Committee. The Committee has, however, indicated that it will consider the human rights implications of anti-terrorism measures, and would keep itself informed of human rights concerns through contacts developed with the Office of the High Commissioner for Human Rights. It has also indicated its openness to NGOs bringing their concerns to its attention. How far these expectations will be met in the work of the Committee and what level of priority would human rights concerns receive in examination of the reports submitted by governments with respect to their compliance with Resolution 1373, is yet uncertain.39. The Special Representative would like to draw attention to concerns expressed by UN human rights mechanisms with regard to the adverse effects of certain counter-terrorism measures on preservation and respect for human rights norms. In a joint statement issued on 29 November, 2001, the High Commissioner for Human Rights, the Council of Europe and the Organization for Security and Cooperation in Europe urged states to strike a fair balance in their responses to terrorism “between legitimate national security concerns and fundamental freedoms”. They also stressed the non-derogable nature of certain rights. On 10 December, 2002, in a joint expression of concern on this issue the Special Representative and 16 UN Special Rapporteurs, pointed out the increased vulnerability of human rights defenders, migrants, asylum seekers and refugees, religious minorities, political activists and the media.
40. Remarks of the Secretary General in his address to the Security Council session on counter-terrorism on 18 January 2002 are particularly significant in this respect. Cautioning governments against measures that unduly curtail human rights, or give others pretext to do so, he stated, “We should all be clear that there is no trade-off between effective action against terrorism and the protection of human rights. I believe that in the long term we shall find that human rights, along with democracy and social justice, are one of the best prophylactics against terrorism”. He also designated human rights as a key priority, amongst others, which, if sacrificed in the process, would be “self-defeating” for the efforts to prevent, condemn and punish acts of terrorism.