HUMAN RIGHTS, TERRORISM AND COUNTER-TERRORISM, PART 3

  1. HUMAN RIGHTS AND COUNTER­TERRORISM

As seen in chapter I, terrorism has a direct impact on the enjoyment of human rights. As such, States have a duty to take effective counter­terrorism measures. While the complexity and magnitude of the challenges facing States and others in their efforts to combat terrorism can be significant, international human rights law is flexible enough to address them effectively. This chapter will focus on the relationship between counter-terrorism and human rights, examining more specifically States’ obligation to ensure that all counter-terrorism measures themselves comply with human rights standards (sect. A) and the flexibility built into human rights law to deal with exceptional circumstances (sect. B).

  1. The promotion and protection of human rights while countering terrorism

Just as terrorism impacts on human rights and the functioning of society, so too can measures adopted by States to counter terrorism. As mentioned above, because terrorism has a serious impact on a range of fundamental human rights, States have not only a right but a duty to take effective counter-terrorism measures. Effective counter-terrorism measures and the protection of human rights are complementary and mutually reinforcing objectives which must be pursued together as part of States’ duty to protect individuals within their jurisdiction.

As referred to in chapter I, section E, the Security Council acted swiftly, following the terrorist attacks on 11 September 2001, to strengthen the legal framework for international cooperation and common approaches to the threat of terrorism in such areas as preventing its financing, reducing the risk that terrorists might acquire weapons of mass destruction and improving cross-border information-sharing by law enforcement authorities, as well as establishing a monitoring body, the Counter-Terrorism Committee, to supervise the implementation of these measures. Regional approaches have also been developed in the context of the African Union, the Council of Europe, the European Union, the League of Arab States, the Organization for Security and Co-operation in Europe, the Organization of American States, the Organization of the Islamic Conference, the South Asian Association for Regional Cooperation and other organizations.

There has been a proliferation of security and counter-terrorism legislation and policy throughout the world since the adoption of Security Council resolution 1373 (2001), much of which has an impact on the enjoyment of human rights. Most countries, when meeting their obligations to counter terrorism by rushing through legislative and practical measures, have created negative consequences for civil liberties and fundamental human rights. The most relevant human rights concerns which States should take seriously to ensure that any measure taken to combat terrorism complies with their obligations under human rights law will be highlighted in chapter III.

The central role of human rights and State obligations
when countering terrorism

The international community has committed to adopting measures that ensure respect for human rights for all and the rule of law as the fundamental basis of the fight against terrorism, through the adoption of the United Nations Global Counter-Terrorism Strategy by the General Assembly in its resolution 60/288. Member States have resolved to take measures aimed at addressing the conditions conducive to the spread of terrorism, including lack of rule of law and violations of human rights, and ensure that any measures taken to counter terrorism comply with their obligations under international law, in particular human rights law, refugee law and international humanitarian law.

In 2004, the High-level Panel on Threats, Challenges and Change reported that recruitment by international terrorist groups was aided by grievances nurtured by poverty, foreign occupation, and the absence of human rights and democracy.29

The World Summit Outcome, adopted by the General Assembly in 2005, also considered the question of respect for human rights while countering terrorism and concluded that international cooperation to fight terrorism must be conducted in conformity with international law, including the Charter of the United Nations and relevant international conventions and protocols. The General Assembly and the Commission on Human Rights have emphasized that States must ensure that any measures taken to combat terrorism comply with their obligations under international human rights law, refugee law and international humanitarian law. The Security Council has done the same, starting with the declaration set out in its resolution 1456 (2003), in which the Security Council, meeting at the level of Ministers for Foreign Affairs, stated 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.” This position was reaffirmed in Security Council resolution 1624 (2005). In his 2006 report “Uniting against terrorism: recommendations for a global counter-terrorism strategy” (A/60/825), the United Nations Secretary-General described human rights as essential to the fulfilment of all aspects of a counter-terrorism strategy and emphasized that effective counter-terrorism measures and the protection of human rights were not conflicting goals, but complementary and mutually reinforcing ones. Universal and regional treaty-based bodies have likewise frequently observed that the lawfulness of counter-terrorism measures depends on their conformity with international human rights law.30

The United Nations Global Counter-Terrorism Strategy reaffirms the inextricable links between human rights and security, and places respect for the rule of law and human rights at the core of national and international counter-terrorism efforts. Through the Strategy, Member States have committed to ensuring respect for human rights and the rule of law as the fundamental basis of the fight against terrorism. To be effective, this should include the development of national counter-terrorism strategies that seek to prevent acts of terrorism and address the conditions conducive to their spread; to prosecute or lawfully extradite those responsible for such criminal acts; to foster the active participation and leadership of civil society; and to give due attention to the rights of all victims of human rights violations.

Not only is the promotion and protection of human rights essential to the countering of terrorism, but States have to ensure that any counter­terrorism measures they adopt also comply with their international human rights obligations.

The General Assembly has adopted a series of resolutions concerning terrorism since December 1972, addressing measures to eliminate international terrorism as well as the relationship between terrorism and human rights. It has emphasized that States must ensure that any measures taken to combat terrorism comply with their obligations under international law, in particular international human rights, refugee and humanitarian law.31

Under the Charter of the United Nations, the Security Council has primary responsibility for the maintenance of international peace and security, including measures to address terrorism as a threat to international peace and security. The Security Council has undertaken a number of counter-terrorism actions, notably in the form of sanctions against States considered to have links to certain acts of terrorism (primarily in the 1990s) and later against the Taliban and Al-Qaida, as well as the establishment of committees to monitor the implementation of these sanctions. In 2001, it adopted resolution 1373 (2001), which obliges Member States to take a number of measures to prevent terrorist activities and to criminalize various forms of terrorist actions, and calls on them to take measures that assist and promote cooperation among countries including signing up to international counter-terrorism instruments. Member States are required to report regularly to the Counter-Terrorism Committee (see annex) on their progress.

As seen above, the Security Council has called on States to ensure that counter-terrorism measures comply with international human rights law, refugee law and humanitarian law in several of its resolutions.32 In its report to the Security Council (S/2005/800), the Counter-Terrorism Committee reiterated this call. It also stressed that the Counter-Terrorism Committee Executive Directorate (see annex) should take this into account in the course of its activities.

In addition to the general obligation of States to act within a human rights framework at all times, it should be noted that the universal treaties on counter-terrorism expressly require compliance with various aspects of human rights law. In the context of the International Convention for the Suppression of the Financing of Terrorism, for example, this is illustrated in article 15 (expressly permitting States to refuse extradition or legal assistance if there are substantial grounds for believing that the requesting State intends to prosecute or punish a person on prohibited grounds of discrimination); article 17 (requiring the “fair treatment” of any person taken into custody, including enjoyment of all rights and guarantees under applicable international human rights law); and article 21 (a catch­all provision making it clear that the Convention does not affect the other rights, obligations and responsibilities of States).

  1. The flexibility of human rights law

The promotion and protection of human rights while countering terrorism is an obligation of States and an integral part of the fight against terrorism. National counter-terrorism strategies should, above all, seek to prevent acts of terrorism, prosecute those responsible for such criminal acts, and promote and protect human rights and the rule of law.

At the outset, it is important to highlight that the vast majority of counter­terrorism measures are adopted on the basis of ordinary legislation. In a limited set of exceptional national circumstances, some restrictions on the enjoyment of certain human rights may be permissible.

Ensuring both the promotion and protection of human rights and effective counter-terrorism measures nonetheless raises serious practical challenges for States. One such example is the dilemma faced by States in protecting intelligence sources, which may require limiting the disclosure of evidence at hearings related to terrorism, while at the same time respecting the right to a fair trial and the right to a fair hearing for the individual.

These challenges are not insurmountable. States can effectively meet their obligations under international law by using the flexibilities built into the international human rights law framework. Human rights law allows for limitations on certain rights and, in a very limited set of exceptional circumstances, for derogations from certain human rights provisions. These two types of restrictions are specifically conceived to provide States with the necessary flexibility to deal with exceptional circumstances, while at the same time—provided a number of conditions are fulfilled—complying with their obligations under international human rights law.

  1. Limitations

As provided for by international human rights conventions, States may legitimately limit the exercise of certain rights, including the right to freedom of expression, the right to freedom of association and assembly, the right to freedom of movement and the right to respect for one’s private and family life. In order to fully respect their human rights obligations while imposing such limitations, States must respect a number of conditions.33 In addition to respecting the principles of equality and non-discrimination, the limitations must be prescribed by law, in pursuance of one or more specific legitimate purposes and “necessary in a democratic society.”

  • Prescription by law

Common to international, regional and domestic human rights instruments and guidelines is the requirement that any measure restricting the enjoyment of rights and freedoms must be set out within, or authorized by, a prescription of law.34 To be “prescribed by law”: (a) the law must be adequately accessible so that individuals have an adequate indication of how the law limits their rights; and (b) the law must be formulated with sufficient precision so that individuals can regulate their conduct.35

Moreover, any criminal law proscription must also comply with the principle of non-retroactivity. Article 15 of the International Covenant on Civil and Political Rights requires, in this regard, that any provision defining a crime must not criminalize conduct that occurred prior to its entry into force as applicable law. Likewise, any penalties are to be limited to those applicable at the time that any offence was committed and, if the law has subsequently provided for the imposition of a lighter penalty, the offender must be given the benefit of the lighter penalty.36

  • In the pursuance of a legitimate purpose

The permissible legitimate purposes for the interference vary depending on the rights subject to the possible limitations as well as on the human rights treaty in question. They are national security, public safety, public order, health, morals, and the human rights and freedoms of others.37

The important objective of countering terrorism is often used as a pretext to broaden State powers in other areas.38 Offences which are not acts of terrorism, regardless of how serious they are, should not be the subject of counter-terrorist legislation. Nor should conduct that does not bear the quality of terrorism be the subject of other counter-terrorism measures, even if undertaken by a person also suspected of terrorist crimes. Again, this requirement is reflected within various international and regional documents on the promotion and protection of human rights while countering terrorism.39

  • Necessity and proportionality

What is often referred to as “necessary in a democratic society” is an additional safeguard which requires States to demonstrate that the limitations do not impair the democratic functioning of society. In practice, this means that they must meet the test of necessity and the requirement of proportionality. So any limitation on the free enjoyment of rights and freedoms must be necessary in the pursuit of a pressing objective, and its impact on rights and freedoms strictly proportional to the nature of that objective.

As a general matter, given the impact of terrorism on human rights, security and the functioning of various aspects of international and domestic societies, there is no doubt that the countering of international terrorism is an important objective which can, in principle, permit the limitation of certain rights. To be justifiable, however, the imposition of such a limitation must satisfy various requirements. Assuming that the right is capable of limitation and that the limiting measure is imposed within the bounds of certain procedural requirements, it must be necessary to achieve a particular counter-terrorism objective. To be necessary, a rational link must exist between the limiting measure and the pursuit of the particular objective.40 The existence of a rational link will normally be accepted if the measure logically furthers the objective, although more evidence of this connection might be necessary if such a link is not plainly evident.41

In that regard, and for the purpose of determining the importance of a particular measure’s objective, it will be instructive to determine: how the measure is linked with the countering of an actual or potential threat of terrorism against the State; the measure’s contribution to international and regional frameworks on counter-terrorism as well as, subsidiarily, its contribution to other national interests of the State.42

  • Example of permissible limitations

The requirements for a valid limitation of rights can be illustrated in the context of incitement to terrorism and freedom of expression, a subject considered further in chapter III. Prohibiting incitement to terrorism involves a limitation on the ability of persons to express themselves as they wish. Any prohibition against incitement must therefore comply with the requirements for a legitimate limitation on rights and freedoms: the limitation must thus be prescribed by law; be in pursuit of a legitimate purpose; and be both necessary and proportional.

The first requirement, that any limitation must be prescribed by law, means that the prohibition against incitement should take the form of a provision within legislation. As to legitimate purpose, proscribing incitement to terrorism is consistent with the protection of national security or public order, which are both set out as legitimate grounds for the limitation of freedom of expression in article 19 (3) of the International Covenant on Civil and Political Rights. Prohibiting incitement to terrorism is also consistent with its article 20 (2), which requires States to prohibit any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.

The final requirement of necessity and proportionality is relevant to the way in which the proscription is expressed in the legislation and how it is applied. The law prohibiting incitement to terrorism must be expressed in a way that not only respects the principle of legality, but also ensures that it is restricted to its legitimate purpose. Article 19 of the International Covenant on Civil and Political Rights allows only limitations on the freedom of expression that are “necessary” for the achievement of the purposes listed in its paragraph 3. Prohibiting incitement to terrorism must therefore be limited to what is actually required to protect national security or public order. The provision, and the way in which it is applied, must also be proportional, i.e., for each measure, one must determine whether, given the importance of the right or freedom, the impact of the measure on the enjoyment of that right or freedom is proportional to the importance of the objective being pursued by the measure and its potential effectiveness in achieving that objective.43 The merit of any measure will depend on the importance of the counter-terrorism objective it pursues, as well as on its potential efficacy in achieving it. The imposition of a limitation on rights and freedoms for the purpose of countering terrorism, but by ineffective means, is unlikely to be justifiable. In assessing the impact of a counter­terrorism measure on rights and freedoms, consideration must be given, case by case, to the level to which it limits the right or freedom, and also to the importance and degree of protection offered by the human right being limited.44 2. Derogations

In a limited set of circumstances, such as a public emergency which threatens the life of the nation, States may take measures to derogate from certain human rights provisions under the International Covenant on Civil and Political Rights. Its article 4 sets out the formal and substantive requirements which a State party must fulfil to derogate legitimately from certain obligations under the Covenant.45 A state of emergency must be understood as a truly exceptional, temporary measure to which may be resorted only if there is a genuine threat to the life of the nation. Short of such extreme situations, States must develop and implement effective domestic legislation and other measures in compliance with their international human rights obligations.

Through the intermediary of the United Nations Secretary-General, a derogating State must immediately inform other States parties to the Covenant of the provisions from which it has derogated and of the reasons for which it has done so. Moreover, the State party must be faced with a situation which constitutes a threat to the life of the nation and may take only such measures as strictly required by the exigencies of that situation. This requirement relates to the degree of interference as well as to the territorial and temporal scope of the measure adopted. This implies that the necessity of the state of emergency itself and the derogation measures should regularly be reviewed by independent organs, in particular the legislative and judicial branch. The measures must also be consistent with other obligations under international law, particularly the rules of international humanitarian law and the peremptory norms of international law.

  • Non-derogable human rights

Derogation from certain human rights set out in international human rights treaties is prohibited, even in a state of emergency. Article 4 (2) of the International Covenant on Civil and Political Rights identifies as non-derogable the right to life, freedom from torture or cruel, inhuman or degrading treatment or punishment, the prohibition against slavery and servitude, freedom from imprisonment for failure to fulfil a contract, freedom from retrospective penalties, the right to be recognized as a person before the law, and freedom of thought, conscience and religion. In its general comment N° 29, the Human Rights Committee has also emphasized that the Covenant’s provisions relating to procedural safeguards can never be made subject to measures that would circumvent the protection of these non-derogable rights. Regional human rights law has also emphasized the importance of procedural guarantees. The Inter- American Court of Human Rights, for example, has stated that “writs of habeas corpus and of ‘amparo’ are among those judicial remedies that are essential for the protection of various rights whose derogation is prohibited… and that serve, moreover, to preserve legality in a democratic society… The constitutions and legal systems of the States parties that authorize, expressly or by implication, the suspension of the legal remedies of habeas corpus or of ‘amparo’ in emergency situations cannot be deemed to be compatible with the international obligations imposed on these States by the Convention.”46

Further to this list of non-derogable rights, article 4 (1) of the Covenant specifies that any derogating measures must not be inconsistent with obligations under international law which, as the Human Rights Committee has pointed out in its general comment N° 29, includes obligations under international human rights law, international humanitarian law and international criminal law. The Committee also identified rights and freedoms under customary international law (which is applicable to all States) that may not be derogated from even if not listed in article 4 (2). The Human Rights Committee has identified as customary law rights: the right of all persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person; the prohibitions against the taking of hostages, abductions or unacknowledged detention; the international protection of the rights of persons belonging to minorities; the deportation or forcible transfer of population without grounds permitted under international law; and the prohibition against propaganda for war or in advocacy of national, racial or religious hatred that would constitute incitement to discrimination, hostility or violence.

Compliance with international law obligations also prevents the adoption of derogating measures purporting to authorize conduct which would constitute a basis for individual criminal responsibility for a crime against humanity. As the right to a fair trial is explicitly guaranteed under international humanitarian law during armed conflict, the Human Rights Committee has expressed the opinion that the requirements of fair trial must also be respected during a state of emergency. So as to respect the principles of legality and the rule of law, the protection of those rights recognized as non-derogable requires that certain procedural safeguards, including judicial guarantees, are available in all situations. The Committee has emphasized that only a court of law may try and convict a person for a criminal offence and that the presumption of innocence must be respected. In order to protect non-derogable rights, the right to take proceedings before a court (to enable the court to decide without delay on the lawfulness of detention) must not be diminished by a State party’s decision to derogate from the Covenant.

  • What is a “public emergency which threatens the life of the nation”?

The ability to derogate under article 4 (1) of the Covenant is triggered only in a time of “public emergency which threatens the life of the nation.” In its general comment N° 29, the Human Rights Committee has characterized such an emergency as being of an exceptional nature. Not every disturbance or catastrophe qualifies as such. The Committee has commented that, even during an armed conflict, measures derogating from the Covenant are allowed only if and to the extent that the situation constitutes a threat to the life of the nation. Whether or not terrorist acts or threats establish such a state of emergency must therefore be assessed case by case.47

  • Permissible extent of derogations

Any derogation under article 4 (1) of the Covenant may only be “to the extent strictly required by the exigencies of the situation.” Key to this requirement is the temporary nature of any derogation. The Human Rights Committee has said that the restoration of a state of normalcy where full respect for the Covenant can again be secured must be the predominant objective of a State party derogating from the Covenant. Any measure derogating from the Covenant must be necessary and proportional.

Article 4 (1) specifies that any derogation of rights in times of emergency may not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. It also provides that any derogating measures must not be inconsistent with the derogating State’s obligations under international law, which would include obligations under international human rights, international humanitarian law and international criminal law. Article 5 (1) is of relevance as well. It clarifies that nothing in the Covenant (including the article 4 ability to derogate) can be interpreted as implying any right to engage in activity aimed at the destruction of the rights and freedoms set out in it.

Finally, as with limitations described above, any derogation must comply strictly with the principles of necessity and proportionality.

 

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