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Digest of jurisprudence on the protection of human rights while countering terrorism
Independent Expert on Terrorism
Special Rapporteur on human rights and terrorism of the Sub-Commission on the promotion and protection of human rights
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Terrorism

The issue of terrorism and human rights has long been a concern of the United Nations human rights program, but it has become more urgent following the attack of 11 September 2001 on the United States of America and the worldwide surge in acts of terrorism. While condemning terrorism unequivocally and recognizing the duty of States to protect those living within their jurisdictions from terrorism, the Office of the High Commissioner for Human Rights has placed a priority on the question of protecting human rights in the context of counter-terrorism measures. The Secretary-General, the High Commissioner for Human Rights, and others in the UN system have emphasized that human rights norms must be rigorously respected, even in states of emergency. As Secretary-General Kofi Annan stated at a special meeting of the Security Council's Counter-Terrorism Committee with International, Regional, and Sub-Regional Organizations, on 6 March 2003, "Our responses to terrorism, as well as our efforts to thwart it and prevent it, should uphold the human rights that terrorists aim to destroy. Respect for human rights, fundamental freedoms and the rule of law are essential tools in the effort to combat terrorism - not privileges to be sacrificed at a time of tension."

On 28 September 2001, the Security Council adopted Resolution 1373 under Chapter VII of the UN Charter, obligating States to implement more effective counter-terrorism measures at the national level and to increase international cooperation in the struggle against terrorism. The resolution created the Counter-Terrorism Committee (CTC) to monitor action on this issue and to receive reports from States on measures taken. Former High Commissioner Mary Robinson and the late High Commissioner Sergio Vieira de Mello both addressed the CTC, urging it to take account of human rights in its review of counter-terrorism measures. Mr. Vieira de Mello, speaking to the CTC in October 2002, stated his conviction that "the best - the only - strategy to isolate and defeat terrorism is by respecting human rights, fostering social justice, enhancing democracy and upholding the primacy of the rule of law."  Since then, the CTC and the UN Human Rights Committee have exchanged briefings on their working methods and areas of concern.

In resolution 1456 (2003), the Security Council declared that "States must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law." Human rights law has sought to strike a fair balance between legitimate national security concerns and the protection of fundamental freedoms. It acknowledges that States must address serious and genuine security concerns, such as terrorism. The balance is reflected in the International Covenant on Civil and Political Rights (ICCPR) as well as in regional instruments.

Threats to national security may, under very specific conditions, lead to a state of emergency under which certain rights are subject to derogation (suspension). However, certain rights are never subject to derogation. The question of states of emergency and derogation is addressed in article 4 of the ICCPR. In July 2001, the UN Human Rights Committee adopted General Comment No. 29, concerning ICCPR article 4, in which it clarified the scope of non-derogable rights and identified elements which cannot be subject to lawful derogation. Despite the importance of the fight against terrorism, some UN human rights bodies have expressed concern that counter-terrorism measures may infringe on human rights. For example, UN special rapporteurs and independent experts, at their annual meeting in Geneva in June 2003, adopted the following joint statement (E/CN.4/2004/4, annex 1):

[The special rapporteurs and independent experts] express alarm at the growing threats against human rights, threats that necessitate a renewed resolve to defend and promote these rights. They also note the impact of this environment on the effectiveness and independence of special procedures.

Although they share in the unequivocal condemnation of terrorism, they voice profound concern at the multiplication of policies, legislation and practices increasingly being adopted by many countries in the name of the fight against terrorism which affect negatively the enjoyment of virtually all human rights - civil, cultural, economic, political and social.

They draw attention to the dangers inherent in the indiscriminate use of the term "terrorism", and the resulting new categories of discrimination. They recall that, in accordance with the International Covenant on Civil and Political Rights and pursuant to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, certain rights are non-derogable and that any measures of derogation from the other rights guaranteed by the Covenant must be made in strict conformity with the provisions of its article 4.

[The special rapporteurs and independent experts] deplore the fact that, under the pretext of combating terrorism, human rights defenders are threatened and vulnerable groups are targeted and discriminated against on the basis of origin and socio-economic status, in particular migrants, refugees and asylum-seekers, indigenous peoples and people fighting for their land rights or against the negative effects of economic globalization policies.

They strongly affirm that any measures taken by States to combat terrorism must be in accordance with States' obligations under the international human rights instruments.

They are determined, in the framework of their respective mandates, to monitor and investigate developments in this area and call upon all those committed to respect for human rights, including the United Nations, to be vigilant to prevent any abuse of counter-terrorism measures.

OHCHR action on the issue of human rights and terrorism is guided in part by General Assembly resolution 58/187 (2003) and Commission on Human Rights resolution 2003/68 ("Protection of human rights and fundamental freedoms while countering terrorism").

These resolutions call on the High Commissioner's office to:

a) examine the question of the protection of human rights and fundamental freedoms while countering terrorism, taking into account reliable information from all sources;

b) make general recommendations concerning the obligation of States to promote and protect human rights and fundamental freedoms while taking actions to counter terrorism; and

c) provide assistance and advice to States, upon their request, on the protection of human rights and fundamental freedoms while countering terrorism, as well as to relevant United Nations bodies. The issue of human rights and terrorism is also addressed in General Assembly resolution 58/174 (2003) and Commission on Human Rights resolution 2003/37 ("Human rights and terrorism").

The Office also implements the findings of the Secretary-General's Policy Working Group on Terrorism, in particular its sub-group on human rights and terrorism. Based on a Policy Working Group recommendation, the Office published in 2003 the Digest of Jurisprudence of the UN and Regional Organizations on the Protection of Human Rights while Countering Terrorism. The Digest, which is available as an OHCHR publication, makes several important contributions, for example by clarifying the concept of non-derogable rights under both the United Nations and regional human rights systems. It addresses the core principles of necessity and proportionality, which are fundamental to lawful counter-terrorism measures.

Through excerpts from findings of the UN and regional human rights bodies, the Digest shows concerns that have been expressed over practices which are in use or under consideration by States today, such as the use of military tribunals to try civilians, and detention practices which disregard recognized international standards.

In 1997, the Sub-Commission on the Promotion and Protection of Human Rights recommended the appointment of a Special Rapporteur to conduct a comprehensive study on human rights and terrorism. The Special Rapporteur (Ms. Kalliopi Koufa, Greece) has submitted a series of reports to the Sub-Commission since then.

 

 
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