III. SPECIFIC HUMAN RIGHTS CHALLENGES IN THE CONTEXT OF TERRORISM AND COUNTER-TERRORISM
As discussed in the previous chapters, both terrorism and counter-terrorism affect the enjoyment of human rights. While it is not possible to provide an in-depth analysis of all human rights concerns in the context of terrorism and counter-terrorism measures, this chapter identifies a selection of current and emerging human rights challenges.
- The right to life
Both international and regional human rights law recognize the right and duty of States to protect those individuals subject to their jurisdiction. In practice, however, some of the measures that States have adopted to protect individuals from acts of terrorism have themselves posed grave challenges to the right to life. They include “deliberate” or “targeted killings” to eliminate specific individuals as an alternative to arresting them and bringing them to justice. The Human Rights Committee has stated that targeted killings should not be used as a deterrent or punishment and that the utmost consideration should be given to the principle of proportionality. State policies should be spelled out clearly in guidelines to military commanders and complaints about the disproportionate use of force should be investigated promptly by an independent body. Before any contemplation of resort to the use of deadly force, all measures to arrest a person suspected of being in the process of committing acts of terror must be exhausted.48
In other cases, States have adopted “shoot-to-kill” law enforcement policies in response to perceived terrorist threats.49 In the context of counterterrorism, the High Commissioner for Human Rights has emphasized the importance of ensuring that the entire law enforcement machinery, from police officers to prosecutors and officers operating detention and prison facilities, operates within the law. She has cautioned that, in the fight against terrorism, extreme vigilance should be applied by those in a position of authority against all forms of abuse of power, and that they should instil a culture of respect for the law above all by those entrusted with its application.50
As noted by the Special Rapporteur on extrajudicial, summary or arbitrary executions, “the rhetoric of shoot-to-kill and its equivalents poses a deep and enduring threat to human rights-based law enforcement approaches.
Much like invocations of ‘targeted killing,’ shoot-to-kill is used to imply a new approach and to suggest that it is futile to operate inside the law in the face of terrorism. However, human rights law already permits the use of lethal force when doing so is strictly necessary to save human life. The rhetoric of shoot-to-kill serves only to displace clear legal standards with a vaguely defined licence to kill, risking confusion among law enforcement officers, endangering innocent persons, and rationalizing mistakes, while avoiding the genuinely difficult challenges that are posed by the relevant threat.” The Special Rapporteur has further suggested that States that adopt shoot-to-kill policies for dealing with, for example, suicide bombers “must develop legal frameworks to properly incorporate intelligence information and analysis into both the operational planning and postincident accountability phases of State responsibility.” They must further ensure that “only such solid information, combined with the adoption of appropriate procedural safeguards, will lead to the use of lethal force.”51
Under international and regional human rights law, the protection against arbitrary deprivation of life is non-derogable even in a state of emergency threatening the life of the nation.52 The Human Rights Committee has stated that “the protection against arbitrary deprivation of life… is of paramount importance. The Committee considers that States parties should take measures. to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the State is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities.”53 To comply with international human rights law, any State policy which allows the use of lethal force must, therefore, fall within those narrow cases in which the deprivation of life cannot be considered arbitrary.
In order to be considered lawful, the use of lethal force must always comply with the principle of necessity and must be used in a situation in which it is necessary for self-defence or for the defence of another’s life. It must always comply with the principle of proportionality, and non-lethal tactics for capture or prevention must always be attempted if feasible. In most circumstances, law enforcement officers must give suspects the opportunity to surrender and employ a graduated resort to force.54 “The State’s legal framework must ‘strictly control and limit the circumstances’ in which law enforcement officers may resort to lethal force.”55
International humanitarian law contains similar provisions against the “targeted killing” of civilians in the context of an armed conflict (see chap. I).
- Challenges to the absolute prohibition against torture
The prohibition of torture and other cruel, inhuman or degrading treatment or punishment is absolute under international law. It is a peremptory norm—or a norm of jus cogens56—and is non-derogable even in states of emergency threatening the life of the nation under international and regional human rights treaties.57
The prohibition of torture and other cruel, inhuman or degrading treatment does not yield to the threat posed by terrorism or to the alleged danger posed by an individual to the security of a State.58 In practice, however, States have often adopted policies and methods to confront terrorism that, in effect, circumvent and undermine this absolute prohibition.59
For example, the use of torture and other cruel, inhuman or degrading treatment to elicit information from terrorist suspects is absolutely prohibited, as is the use in legal proceedings of evidence obtained by torture, whether at home or abroad, and of “secret evidence” put forward by prosecuting and other authorities in judicial proceedings, in violation of the principle of non-admissibility of evidence extracted by torture, contained inter alia in article 15 of the Convention against Torture.60
States’ policies that aim to exclude the application of human rights law to individuals outside their territory may effectively erode the absolute prohibition of torture, cruel and degrading treatment or punishment. According to the Human Rights Committee, the rights enshrined in the International Covenant on Civil and Political Rights apply to all persons who may be within a State party’s territory and to all persons subject to its jurisdiction (see above). This means that a State party must respect and ensure the rights laid down in the Covenant—including the absolute prohibition of torture—to anyone within its power or effective control, even if not situated within its territory. Similarly, the International Court of Justice has stated that, while the jurisdiction of States is primarily territorial, the rights enshrined in the Covenant extend “to acts done by a State in the exercise of its jurisdiction outside its own territory.”61
Regarding conditions of detention, practices such as the use of secret and incommunicado detention,62 as well as prolonged solitary confinement and similar measures aimed at causing stress, may amount to torture, cruel, inhuman or degrading treatment.63
States must ensure that the full range of legal and practical safeguards to prevent torture is available, including guarantees related to the right to personal liberty and security, and to due process rights. These are, for instance, the right for anyone arrested or detained on criminal charges to be brought promptly before a judge and to be tried within a reasonable amount of time or to be released. They also include the right promptly to challenge the lawfulness of one’s detention before a court. The Human Rights Committee, in its general comment N° 29, has confirmed that this right is to be protected at all times, including during a state of emergency, thereby highlighting the crucial role of procedural guarantees in securing compliance with the absolute prohibition of torture or any other form of inhuman, cruel or degrading treatment. Additionally, detainees must be given regular access to medical doctors and legal counsel. Finally, States should allow the regular and independent monitoring of detention centres (see also sect. D below).
The entry into force of the Optional Protocol to the Convention against Torture on 22 June 2006 is a significant development towards ensuring the practical protection of detainees against torture and other cruel, inhuman or degrading treatment. It establishes an international Subcommittee on Prevention of Torture with a mandate to visit places of detention in States parties and requires States parties to set up national preventive mechanisms, which are also to be provided with access to places of detention and prisoners. The High Commissioner for Human Rights has encouraged all States to sign and ratify this instrument as an important practical measure and a demonstration of their commitment to preventing torture and ill-treatment, and protecting the human rights of those within their jurisdiction.
- Transfer of individuals suspected of terrorist activity
States have an obligation to conduct any transfer of detainees in a manner which is transparent and consistent with human rights and the rule of law, including the right to respect for a person’s inherent dignity, the right of everyone to recognition before the law and the right to due process. The international human rights legal framework requires that any deprivation of liberty should be based on grounds and procedures established by law, that detainees should be informed of the reasons for their detention and promptly notified of the charges against them, and that they should be provided with access to legal counsel. In addition, prompt and effective oversight of detention by a judicial officer must be ensured to verify the legality of the detention and to protect other fundamental rights of the detainee. Even in a state of emergency, minimum access to legal counsel and prescribed reasonable limits on the length of preventive detention remain mandatory. Moreover, national authorities have an obligation to prevent human rights abuses and to actively investigate and prosecute any allegation of practices which may involve the transfer or detention of individuals in a manner inconsistent with their obligations under international law.
Particularly since 11 September 2001, some States have reportedly extradited, expelled, deported or otherwise transferred foreign nationals, some of them asylum-seekers, suspected of terrorism to their country of origin or to other countries where they allegedly face a risk of torture or ill-treatment, in violation of the principle of non-refoulement. This principle, set out in article 33 (1) of the 1951 Convention relating to the Status of Refugees, is also recognized in other international instruments, most notably in article 3 of the Convention against Torture64 and in article 16 of the International Convention for the Protection of All Persons from Enforced Disappearance. It is also reflected in article 7 of the International Covenant on Civil and Political Rights, which the Human Rights Committee, in its general comment N° 20 (1992), has interpreted to include an obligation on States not to expose individuals to “the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.”65 According to general comment N° 31, article 2 of the Covenant also entails an obligation on States “not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm… either in the country to which removal is to be effected or in any country to which the person may subsequently be removed.” It is well established in international law that the prohibition of refoulement is absolute if there is a risk of torture or other cruel, inhuman or degrading treatment.66 However, this obligation also applies in cases involving a risk of irreparable harm and in cases of arbitrary deprivation of life (including undue imposition of the death penalty), enforced disappearance, torture or cruel, inhuman or degrading treatment, and exposure to a manifestly unfair trial.
The transfer of an individual which takes place outside the rule of law and without due process may lead to a number of human rights violations, notably infringements of the right to liberty and security of the person, the prohibition of torture and other cruel, inhuman or degrading treatment and punishment, the right to recognition everywhere as an individual before the law, the right to a fair trial, the right to private and family life, and the right to an effective remedy. Depending on the circumstances, it may also amount to an enforced disappearance.67
In the context of counter-terrorism, some States have made use of diplomatic assurances, memorandums of understanding and other forms of diplomatic agreement to justify the return or irregular transfer of individuals suspected of terrorist activity to countries where they may face a real risk of torture or other serious human rights abuse. This practice raises a number of serious human rights concerns. The High Commissioner for Human Rights has emphasized that, as a practical matter, these arrangements do not work as in reality they do not provide adequate protection against torture and other ill-treatment, nor, as a legal matter, can they nullify the obligation of non-refoulement. In most cases, assurances are concluded between States which are party to binding international and regional treaties which prohibit torture and cruel, inhuman or degrading treatment or punishment and refoulement to such practices, raising, in any event, the question as to why further bilateral steps are necessary. In addition, even though all persons are entitled to the equal protection of existing treaties, assurances amount to the creation of a two-class system among detainees, by creating special protection for a selected few, while ignoring the plight of many others. Efforts should therefore focus on the full implementation of international human rights obligations through existing structures, notably through the establishment of systems of regular visits, by independent international and national bodies, of places where people are deprived of their liberty.
All States have a positive obligation to ensure that their territory is not used to transfer persons to places where they are likely to be subjected to torture. This includes taking all practical steps to determine whether foreign movements through its territory involve such practices where there are grounds to believe that there is a real risk of irreparable harm. At a minimum, it means ensuring that any transfer of persons from one territory to another is undertaken pursuant to a prescription by law and within the framework of international law. In addition, judicial oversight and review must be available to the detainee prior to any transfer and credible allegations of transfers involving a real risk of torture must be investigated. All the circumstances should be assessed, including the prior practice on the part of the transiting State, the origin and destination of the transiting aircraft or vehicle, and the preparedness or otherwise of the transiting State to share information and/or provide assurances. The United Nations High Commissioner for Human Rights and the Special Rapporteur on the question of torture have emphasized the importance of remaining vigilant against practices that erode the absolute prohibition of torture in the context of counter-terrorism.68
States’ international responsibility may be engaged for committing an internationally wrongful act, for bringing assistance or aid to other States in the commission of a wrongful act, for acquiescing in this conduct or for failing to prevent such acts from occurring on its territory. States may also be held responsible when their agents have acted ultra vires. In addition, where such violations have taken place, States have a duty to undertake prompt and effective investigations to identify and prosecute those responsible, as well as ensure that the victims are adequately compensated.69
- Liberty and security of the person
All persons are protected against the unlawful or arbitrary interference with their liberty. This protection is applicable in the context of criminal proceedings, as well as other areas in which the State might affect the liberty of persons.70 In practice, as part of their efforts to counter terrorism, States have adopted measures which have an impact on the liberty of persons, such as: pretrial procedures for terrorism offences, including provisions concerning bail and the remand of persons in custody awaiting trial; pretrial detention (detention before laying a criminal charge against a person for the purpose of further investigating whether that person was involved in the commission, or assisted in the commission, of a terrorist offence); administrative detention (detention to prevent a person from committing, or assisting in the commission of, a terrorist offence); control orders (imposing conditions on a person, short of detention, to prevent that person from committing, or assisting in the commission of, a terrorist offence, including the detention of a person awaiting determination of immigration or refugee status); and compulsory hearings (detention and compulsory questioning of a terrorist suspect, or non-suspect, to gather intelligence about terrorist activities).
As part of its efforts to counter terrorism, a State may lawfully detain persons suspected of terrorist activity, as with any other crime. However, if a measure involves the deprivation of an individual’s liberty, strict compliance with international and regional human rights law related to the liberty and security of persons, the right to recognition before the law and the right to due process is essential. Any such measures must, at the very least, provide for judicial scrutiny and the ability of detained persons to have the lawfulness of their detention determined by a judicial
authority.71 Adherence to due process and the right to a fair hearing is essential for the proper safeguarding of a person’s liberty and security.
- Profiling and the principle of non-discrimination
As underscored in chapter I, section A, the principles of equality and non-discrimination are central to human rights law and are recognized as norms of jus cogens.72 The Inter-American Court of Human Rights, for example, has stated that “the principle of equality before the law, equal protection before the law and non-discrimination belong to jus cogens, because the whole legal structure of national and international public order rests on it and it is a principle that permeates all law.”73 In the specific context of counter-terrorism, the Committee on the Elimination of Racial Discrimination has said that the principle of non-discrimination is not capable of limitation since it has become a norm of jus cogens. This is reflected within various international and regional documents on the promotion and protection of human rights while countering terrorism.74
The use of indicator clusters to profile potential suspects may, in principle, be a permissible means of investigation and can be an important law enforcement tool. Generally speaking, profiling is a filtering process involving a single indicator or a cluster of indicators that, when grouped together, present the characteristics of a high-risk person, passenger or consignment. When law enforcement agents use broad profiles that reflect unexamined generalizations, including for the purposes of countering terrorism, these practices may constitute disproportionate interference with human rights. In particular, if one of the indicators on which profiling is based is a person’s ethnic or national origin, this raises the question of the conformity of profiling with the principle of non-discrimination.75
In its general recommendation N° 30 (2004), the Committee on the Elimination of Racial Discrimination has called on States to ensure that any measures taken in the fight against terrorism do not discriminate, in purpose or effect, on the grounds of race, colour, descent, or national or ethnic origin and that non-citizens are not subjected to racial or ethnic profiling or stereotyping. At the regional level, the Inter-American Commission on Human Rights has cautioned that “any use of profiling or similar devices by a State must comply strictly with international principles governing necessity, proportionality and non-discrimination, and must be subject to close judicial scrutiny.”76 The European Commission against Racism and Intolerance has asked Governments to ensure that no discrimination ensues from legislation and regulations, or their implementation, in the field of law enforcement checks.77 Finally, the European Union Network of Independent Experts on Fundamental Rights has expressed serious concerns about the development of terrorist profiles; profiling on the basis of characteristics such as nationality, age or birthplace, the Experts have cautioned, “presents a major risk of discrimination.”78 This is also applicable to the profiling of persons based on their religion. Profiling or similar devices must strictly comply with the principles of necessity, proportionality and non-discrimination; they should be subject to close judicial scrutiny and should be periodically reviewed.79
- Due process and the right to a fair trial
Guaranteeing due process rights, including for individuals suspected of terrorist activity, is critical for ensuring that anti-terrorism measures are effective and respect the rule of law. The human rights protections for all persons charged with criminal offences, including terrorism-related crimes, include the right to be presumed innocent, the right to a hearing with due guarantees and within a reasonable time, by a competent, independent and impartial tribunal, and the right to have a conviction and sentence reviewed by a higher tribunal satisfying the same standards.80 International humanitarian law provides for substantially similar protections for the trial of persons in the context of armed conflicts.81
In July 2007, the Human Rights Committee adopted general comment N° 32, revising its general comment on article 14 of the International Covenant on Civil and Political Rights on the right to a fair trial and equality before the courts and tribunals. The revised general comment notes that the right to a fair trial and to equality before the courts and tribunals is a key element of human rights protection and serves to safeguard the rule of law by procedural means. Article 14 of the Covenant aims at ensuring the proper administration of justice and to this end guarantees a series of specific rights, including that all persons should be equal before the courts and tribunals, that in criminal or civil cases everyone has a right to a fair and public hearing by a competent, independent and impartial tribunal, that everyone charged with a criminal offence should have the right to be presumed innocent until proved guilty according to law, and that everyone convicted of a crime should have the right to have his or her conviction and sentence reviewed by a higher tribunal according to law.
The former Sub-Commission on the Promotion and Protection of Human Rights for many years addressed issues related to terrorism and human rights, including the administration of justice through military tribunals.
The use of military and special tribunals or courts to try terrorist suspects may also have a serious impact on due process rights, depending on the nature of the tribunal or court and any restrictions placed on a person facing charges before it.82 In particular, the circumstances are rare in which a military court will be the appropriate venue to try a civilian.
A number of other counter-terrorism measures adopted by Member States have had a serious impact on due process-related rights for individuals suspected of terrorism, as well as their families, including the listing and de-listing of individuals and groups as terrorist or associated entities, both by the Security Council Al-Qaida and Taliban Sanctions Committee and by national procedures.83 While targeted sanctions against individuals suspected of involvement in terrorist activity may be an effective tool in a State’s efforts to combat terrorism, such procedures pose a number of serious challenges to human rights. Measures should be taken to ensure a transparent listing and de-listing process, based on clear criteria, and with an appropriate, explicit and uniformly applied standard of evidence, as well as an effective, accessible and independent mechanism of review for the individuals and States concerned. At a minimum, the standards required to ensure fair and clear procedures must include the right of an individual to be informed of the measures taken and to know the case against him or her as soon as, and to the extent, possible, without thwarting the purpose of the sanctions regimes; the right to be heard within a reasonable time by the relevant decision-making body; the right to effective review by a competent and independent review mechanism; the right to counsel with respect to all proceedings; and the right to an effective remedy.84
- The principle of legality and the definition of terrorism
The existing international legal framework on counter-terrorism sets out obligations in relation to terrorism, without providing a comprehensive definition of the term. Calls by the international community to combat terrorism, without defining the term, might be understood as leaving it to individual States to define what is meant by it. This carries the potential for unintended human rights abuses and even the deliberate misuse of the term.85
One specific example in this context is respect for the principle of legality, which is enshrined in article 15 of the International Covenant on Civil and Political Rights and is non-derogable, even in times of public emergency.
It implies that the imposition of criminal liability is limited to clear and precise provisions, so as to respect the principle of certainty of the law and ensure that it is not subject to interpretation which would unduly broaden the scope of the proscribed conduct. Overly vague or broad definitions of terrorism may be used by States as a means to cover peaceful acts to protect inter alia labour rights, minority rights or human rights or, more generally, to limit any sort of political opposition.86
As mentioned earlier, none of the current international conventions on anti-terrorism contains a comprehensive definition of the term terrorism. Neither do resolutions of the various United Nations bodies set out a comprehensive definition. Instead, the conventions are “sectoral” in nature and address specific subjects, whether air safety, maritime navigation and platforms, the protection of persons, or the suppression of the means by which terrorist acts may be perpetrated or supported.
As mentioned in chapter I, section B, negotiations on a draft comprehensive convention on international terrorism, referred in 2001 to a committee of the General Assembly, continue. Importantly, the draft convention contains a comprehensive definition in its article 2. In view of its comprehensive approach, the adoption of the draft convention would contribute to strengthening the international legal framework by consolidating a number of criminal conducts that the existing, “sectoral” universal conventions do not cover. However, certain aspects of the draft convention remain controversial, in particular the scope of application of the proposed definition of terrorist offences and whether national liberation movements should be excluded or not from its scope of application, as well as its interplay with other provisions of international law.87 Moreover, even if a comprehensive definition is agreed upon at international level, human rights concerns may still arise depending on the definition of terrorist- related offences adopted nationally.
In 2004, the Security Council adopted resolution 1566 (2004), in which it called on all States to cooperate fully in the fight against terrorism and, in doing so, to prevent and punish criminal acts that have the following three characteristics, irrespective of whether motivated by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature:
- Committed, including against civilians, with the intent to cause death or serious bodily injury, or taking of hostages; and
- Committed with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons,
intimidate a population, or compel a Government or an international organization to do or to abstain from doing any act; and
- Constituting offences within the scope of and as defined in the international conventions and protocols relating to terrorism.
Although the Security Council did not express this to be a definition of terrorism, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has expressed support for this approach as a means of confining the term to conduct that is of a genuinely terrorist nature.88 This approach is of considerable benefit since it is based on agreed parameters and is compatible with the principles of legality and precision.
Despite the lack of an internationally agreed definition of terrorism, it is clear that acts of terrorism are not justified as the means of achieving self-determination or any other objective. Early resolutions of the General Assembly addressing the issue of terrorism contained express affirmations of the principle of self-determination. In its resolution 3034 (XXVII), for example, the General Assembly urged States to solve the problem of terrorism by addressing the underlying issues leading to terrorist conduct. It reaffirmed the right to self-determination and independence of all peoples, and upheld the legitimacy of national liberation movements. Since its adoption of the 1994 Declaration on Measures to Eliminate International Terrorism, however, the General Assembly has made it clear that this does not legitimate the use of terrorism by those seeking to achieve self-determination.
In its Global Counter-Terrorism Strategy, the General Assembly stated that Member States of the United Nations resolve to “consistently, unequivocally and strongly condemn terrorism in all its forms and manifestations, committed by whomever, wherever and for whatever purpose.” The Security Council has expressed in its resolutions 1269 (1999) and 1566 (2004) that all acts of terrorism are unjustifiable, regardless of their motivation.
- Freedom of expression and the prohibition of incitement to terrorism
Prohibiting incitement to terrorism has been used in chapter II, section B, to illustrate the general requirements for any limitation on certain human rights to be prescribed by law, in pursuit of a legitimate purpose, and both necessary and proportional. This section considers the issue in more detail, as it relates to the right to freedom of expression.
Incitement to terrorism is a strategy commonly used by terrorist organizations to further support for their cause and call for violent action. The Security Council has identified it as conduct which is contrary to the purposes and principles of the United Nations and called on States to adopt measures to prohibit and prevent it.89 Proscribing incitement to terrorism is integral to the protection of national security and public order, which are both set out as legitimate grounds for limiting freedom of expression in article 19 (3) of the International Covenant on Civil and Political Rights. It 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. Great care must be taken, however, to ensure that any restriction on the right to freedom of expression is both necessary and proportional. This is especially important given that freedom of expression is an essential foundation of a democratic society,90 and its enjoyment is linked with other important rights, including the rights to freedom of thought, conscience and religion, belief and opinion.
Although none of the universal terrorism-related conventions explicitly requires the prohibition of incitement to terrorism, the Council of Europe’s Convention on the Prevention of Terrorism requires States parties to criminalize the unlawful and intentional public provocation to commit a terrorist offence, defining this as “…the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of a terrorist offence, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed” (art. 5 (1)). The United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has expressed the view that this provision represents a best practice in defining the proscription of incitement to terrorism.91 Article 5 of the Convention was the result of careful intergovernmental negotiation and defines what amounts to a “public provocation to commit a terrorist offence” with reference to three elements. There must first be an act of communication (“the distribution, or otherwise making available, of a message to the public…”). Secondly, there must be a subjective intention on the part of the person to incite terrorism (“.with the intent to incite the commission of a terrorist offence. whether or not directly advocating terrorist offences.”). Finally, there must be an additional objective danger that the person’s conduct will incite terrorism (“.where such conduct. causes a danger that one or more such offences may be committed”). This last objective requirement separates incitement to terrorism from an act of glorification of terrorism. The requirement of intention in article 5 (2) reaffirms the subjective element within the definition of public provocation to commit a terrorist offence and requires the act of communication also to be intentional.
A troubling trend has been the proscription of the glorification (apologie) of terrorism, involving statements which may not go so far as to incite or promote the commission of terrorist acts, but might nevertheless applaud past acts. While such statements might offend the sensibilities of individual persons and society, particularly the victims of terrorist acts, it is important that vague terms of an uncertain scope such as glorifying or promoting terrorism are not used when restricting expression. A joint declaration of experts on freedom of expression explains that “incitement should be understood as a direct call to engage in terrorism, with the intention that this should promote terrorism, and in a context in which the call is directly causally responsible for increasing the actual likelihood of a terrorist act occurring.” 92
- Freedom of association
The right to freedom of association, like the right to freedom of expression, is a platform for the exercise and defence of other rights, such as political participation rights and cultural rights. Human rights defenders often use this right as a legal basis for their action. It is central to a democratic society.93
However, it is often limited by States in their response to a real or perceived terrorist threat.94 While the right to freedom of association may be subject to derogations and limitations under most human rights treaties, clear safeguards must exist to ensure that they are not used to curb the rights of political opposition parties, trade unions or human rights defenders.95 As such, the onus must be on the State to show that the measures taken fall within the permissible aims under international human rights law. This implies that States must not claim that the rights-limiting measures are taken to preserve national security when they are in fact taken to effectively stifle all opposition or to repress its population.
In addition to ensuring that the principles of necessity and proportionality are respected in all cases, specific safeguards are required to ensure that the limitations to the right to freedom of association are construed narrowly.96 These include ensuring that the principle of legality is respected in the definition of terrorism, terrorist acts and terrorist groups. Too wide or vague a definition may lead to the criminalization of groups whose aim is to peacefully protect, inter alia, labour, minority or human rights.
Any decision to proscribe a group or association needs to be taken case by case. General procedural guarantees include ensuring that the assessment is based on factual evidence of the group’s activities, which implies that the State may not make the determination before registration has taken place and before the group has started to exercise its activities.97 The assessment must be made by an independent judicial body, with full notice to the affected group as well as the possibility of appealing the decision.
With regard to human rights defenders, the Special Representative of the Secretary-General on human rights defenders has made clear that “any organization has the right to defend human rights; that it is the vocation of human rights defenders to examine Government action critically; and that criticism of Government action, and the freedom to express these criticisms, is an essential component of a democracy and must be legitimized in law and practice. States may not adopt laws or practices that would make activities for the defence of human rights unlawful.” The Special Representative has highlighted in this respect a number of problems faced by NGOs in the registration process. In her recommendations, she emphasizes that States should not exert a priori scrutiny into the objectives of NGOs. The legality of an organization’s purposes and its conformity with the law should be reviewed only when a complaint has been lodged against it, and only an independent judicial body should be given the authority to review its purpose and determine whether it is in breach of existing law.98
All measures which result in a limitation on the right to freedom of association must be subject to judicial oversight. “Civilian courts must have jurisdiction to review the provisions and supervise the application of all counter-terrorist measures without any pressure or interference, particularly from the other branches of government.”99 This principle is fundamental in the context of counter-terrorism, where classified or confidential information may be used as the basis for a decision to proscribe an organization or to place an organization on a terrorist list. The Special Rapporteur on human rights and counter-terrorism has, likewise, stressed the importance of ensuring that all decisions which limit human rights are overseen by the judiciary, so that they remain lawful, appropriate, proportionate and effective, and so that the Government may ultimately be held accountable for limiting the human rights of individuals.100
- Surveillance, data protection and the right to privacy
Article 17 of the International Covenant on Civil and Political Rights prohibits States parties from interfering with the privacy of those within their jurisdiction and requires them to protect those persons by law against arbitrary or unlawful interference with their privacy. Privacy includes information about an individual’s identity, as well as the private life of the person.101
Most States have stepped up security at airports and other places of transit, for instance by collecting biometric data from passengers (such as eye scans and fingerprints), photographs, passport details and the like. States have for a long time provided their security intelligence services with powers of surveillance, including wiretapping and the use of tracking devices. Some States have significantly extended these surveillance powers in recent years. All of these practices involve the collection of information about a person. They therefore limit the privacy of such persons, as well as raising questions about how the data are to be protected. Interference with privacy also arises in the security screening and searching of persons.
Any act which has an impact on a person’s privacy must be lawful, i.e., it must be prescribed by law.102 This means that any search, surveillance or collection of data about a person must be authorized by law. The extent to which this occurs must not be arbitrary, which in turn requires that the legislation must not be unjust, unpredictable or unreasonable. The law authorizing interference with privacy must specify in detail the precise circumstances in which the interference is permitted and must not be implemented in a discriminatory manner.103 This does not mean, however, that States enjoy an unlimited discretion to interfere with privacy, since any limitation on rights must be necessary to achieve legitimate purposes and be proportionate to those purposes. Regard must also be had to the obligation of States to protect against the arbitrary exercise of such authorizations. Thus, in Klass v. Germany for example, the European Court of Human Rights stated that it must be satisfied that any system of secret surveillance conducted by the State must be accompanied by adequate and effective guarantees against abuse.104
Where personal information is collected, the data must be protected against unlawful or arbitrary access, disclosure or use. Although jurisprudence on this duty is scarce, the Human Rights Committee, in its general comment N° 16 (1988), has explained that States must take effective measures to ensure that information concerning a person’s private life does not reach the hands of persons who are not authorized by law to receive, process and use it, and is never used for purposes incompatible with the International Covenant on Civil and Political Rights. Effective protection should include the ability of every individual to ascertain in an intelligible form, whether and, if so, what personal data are stored in automatic data files, and for what purposes, with a corresponding right to request rectification or elimination of incorrect data.
Other organizations have adopted standards for the collection and processing of personal data. The Council of Europe’s Guidelines on human rights and the fight against terrorism, for example, state:
“Within the context of the fight against terrorism, the collection and the processing of personal data by any competent authority in the field of State security may interfere with the respect for private life only if such collection and processing, in particular:
- Are governed by appropriate provisions of domestic law;
- Are proportionate to the aim for which the collection and the processing were foreseen;
- May be subject to supervision by an external independent authority.”
- Economic, social and cultural rights
Efforts to address the human rights implications of terrorism and counterterrorism measures have tended to focus on the protection of civil and political rights, with little attention paid to their impact on the enjoyment of economic, social and cultural rights. Yet it is clear that terrorism and measures adopted by States to combat it are both influenced by and have an impact on the enjoyment of the economic, social and cultural rights of affected individuals, as well as on broader development objectives. It will be impossible to achieve global security objectives without concerted efforts towards the realization of all human rights. Greater efforts must therefore be made to understand and address the linkages between terrorism and the enjoyment of economic, social and cultural rights. This section will briefly highlight two examples: first, the importance of the realization of economic, social and cultural rights, and development objectives, to prevent the conditions conducive to the spread of terrorism; and second, the impact of certain counter-terrorism measures on the enjoyment of such rights.
Through the Global Counter-Terrorism Strategy Plan of Action, Member States recognize the need to tackle the conditions conducive to the spread of terrorism, including by addressing issues such as socio-economic marginalization, failure to respect human rights and a lack of good governance. These linkages are complex and require careful consideration and analysis. It is clear, for example, that economic and social development, including through international cooperation and assistance, can play a role in reducing support for terrorism by preventing the conditions that give rise to violence in general and to terrorism in particular, and by contributing to long-term social and economic stability. This may include measures to support structural stability, deny groups or individuals the means to carry out acts of terrorism, and sustain international cooperation. Conversely, the diversion of resources normally allocated to social and economic programmes and sectors (such as education, health, water and sanitation), development assistance and poverty reduction, in favour of security and counter-terrorism programming may have serious consequences for the affected countries and communities. As stated by the Development Assistance Committee of the Organisation for Economic Development and Co-operation (OECD), aid allocations should be calibrated carefully where the prevention of terrorism is a relevant development objective. In particular, “budget reallocations [should be] preceded by in-depth analysis of need and aid effectiveness so that development aid contributes to long-term structural stability and does not become an instrument of non-development interests.” 105
The adoption of specific counter-terrorism measures may also have a direct impact on the enjoyment of economic, social and cultural rights. For example, targeted sanctions against individuals suspected of involvement in terrorist activity, such as freezing their financial assets or imposing travel restrictions on them, may be an effective means for tracking, and even preventing, terrorist activity. However, the current targeted sanctions regime poses a number of serious challenges, in particular related to the lack of transparency and due process in listing and de-listing procedures. Targeted sanctions which result in freezing assets, imposing travel bans and other restrictions may also have serious consequences for the ability of the affected individuals and their families to enjoy economic and social rights, as their access to education and employment may be severely restricted. The effective use of humanitarian exemptions may be one important means for limiting the negative impact of targeted sanctions on the enjoyment of economic, social and cultural rights. Similarly, repressive security measures (such as control orders and the construction of physical barriers to limit the movement of certain individuals and groups), adopted with a view to countering terrorism, have severely restricted the ability of certain individuals and populations to work, and their rights to education, health services and a family life. A human rights analysis of the impact of these counter-terrorism measures merits particular consideration in the light of the serious consequences they may have for the individual, as well as for his or her family and community.
- See, for example, the Charter of the United Nations, Art. 55 (c), the Universal Declaration of Human Rights, art. 2, and the Vienna Declaration and Plan of Action.
- See International Law Commission, Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001 (United Nations, 2008), Commentary to art. 26, para. (5), and to art. 40, paras. (3)-(5). See also International Criminal Tribunal for the former Yugoslavia, ProsecutorFurundzija, Case IT-95-17/1, Judgement of 10 December 1998.
- See Human Rights Committee, general comment N° 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant.
- Case concerning Military and Paramilitary Activities in and against Nicaragua (NicaraguaUnited States of America), Merits, Judgment of 27 June 1986, I.C.J. Reports 1986, paras. 172-201.
- Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, I.C.J. Reports 2004, 111 and 113. See also Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, I.C.J. Reports 2005, paras. 216-217. For regional cases, see Inter-American Commission on Human Rights, Coard et al. v. United States, Case 10.951, Report N° 109/99, 29 September 1999, para. 37.
- See A more secure world: Our shared responsibility (United Nations publication, Sales N° E.05.I.5).
- See, in particular, Security Council resolutions 1373 (2001) and 1377 (2001); General Assembly resolutions 48/122, 49/185, 50/186, 52/133, 56/160 and 58/174, as well as its Declaration on Measures to Eliminate International Terrorism (resolution 49/60); Commission on Human Rights resolutions 2001/37 and 2004/44, Human Rights Council resolution 6/28 and its recent resolution on the protection of human rights and fundamental freedoms while countering terrorism (28 March 2008).
- See Human Rights Committee, general comment N° 6 (1982).
- See Manfred Nowak, N. Covenant on Civil and Political Rights: CCPR Commentary, 2nd rev. ed. (N.P Engel, 2005), p. 121
- See Human Rights Committee, views on communication N° 859/1999, Luis Asdrubal Jimenez VacaColombia, 25 March 2002 (A/57/40 (vol. II), annex IX, sect. W, para. 7.3).
- See, for example, “Updated Set of principles for the protection and promotion of human rights through action to combat impunity” (E/CN.4/2005/102/Add.1). See also Human Rights
Committee, views on communication N° 195/1985, Delgado Paez v. Colombia, 12 July 1990 (A/45/40 (vol. II), annex IX, sect. D).
- European Court of Human Rights, KiligTurkey, N° 22492/93, Judgement of 28 March 2000, para. 62. See also Inter-American Court of Human Rights, Velasquez Rodriguez v. Honduras, Judgement of 29 July 1988 (para. 174).
- See Delgado PaezColombia: “State parties have undertaken to guarantee the rights enshrined in the Covenant. It cannot be the case that, as a matter of law, States can ignore known threats to the life of persons under their jurisdiction, just [because] he or she is not arrested or otherwise detained. State parties are under an obligation to take reasonable and appropriate steps to protect them. An interpretation of article 9 which would allow a State party to ignore threats to personal security of non-detained persons within its jurisdiction would render totally ineffective the guarantees of the Covenant” (para. 5.5).
- See, for example, the European Convention on the Compensation of Victims of Violent Crimes; Recommendation N° R (85) 11 of the Committee of Ministers on the Position of the Victim in the Framework of Criminal Law and Procedure.
- See Jean-Marie Henckaerts and Louise Doswald-Beck, eds., Customary International Humanitarian Law (Cambridge, Cambridge University Press, 2005), as well as case law of the International Criminal Tribunals for Rwanda and the former Yugoslavia.
- See International Committee of the Red Cross, “International humanitarian law and terrorism: questions and answers”. 5 May 2004, available at icrc.org.
- Fourth Geneva Convention, art. 33.
- Additional Protocol I to the Geneva Conventions, art. 51 (2), and Additional Protocol II to the Geneva Conventions, art. 13 (2).
- See “International humanitarian law and terrorism…”.
- Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1995, I.C.J. Reports 1996, 25.
- Legal Consequences…, 106.
- See general comment N° 31, para. 11; Legal Consequences…, para. 163; and Case concerning Armed Activities., 216-220, 345 (3). See also “Fundamental standards of humanity” (E/CN.4/2006/87, chap. III), and United Nations, Digest of jurisprudence of the United Nations and regional organizations on the protection of human rights while countering terrorism (New York and Geneva, 2003), chap. I, sect. (C).
- See, for example, Legislative Guide to the Universal Anti-Terrorism Conventions and Protocols (United Nations publications, Sales N° E.04.V.7).
- Christopher Greenwood, “International Law and the ‘War against Terrorism'”, International Affairs, 78, N° 2 (April 2002), p. 301. In 2001, the then United Nations High Commissioner for Human Rights described the terrorist attacks which occurred in the United States on 11 September 2001 as a crime against humanity.
- International Criminal Tribunal for the former Yugoslavia, ProsecutorGalic, Case IT-98-29, Judgement of 5 December 2003. The Tribunal added the following specific elements (para. 133):
“1. Acts of violence directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population.
“2. The offender wilfully made the civilian population or individual civilians not taking part in hostilities the object of those acts of violence.
“3. The above offence was committed with the primary purpose of spreading terror among the civilian population.”
- See further the reports of the United Nations High Commissioner for Refugees: UNHCR, “Addressing security concerns without undermining refugee protection – a UNHCR perspective” (November 2001); UNHCR, Ten refugee protection concerns in the aftermath of September 11, press release, 23 October 2001.
- UNHCR, “Guidelines on international protection: application of the exclusion clauses: article 1F of the 1951 Convention relating to the Status of Refugees” (HCR/GIP/03/05); UNHCR, “Background note on the application of the exclusion clauses: article 1F of the 1951 Convention relating to the Status of Refugees” (2003).
- See UNHCR, “Note on the cancellation of refugee status” (22 November 2004).
- A more secure world…, 21.
- See, for example, Annual Report of the Inter-American Commission on Human Rights 1990-1991, chap. V, sect. II, and Digest of jurisprudence ….
- See, for example, General Assembly resolution 60/158, para. 1,
- See Security Council resolutions 1456 (2003), annex, para. 6, and 1624 (2005), para. 4.
- See Human Rights Committee, general comment N° 31, para. 6, and Siracusa Principles on the limitation and derogation of provisions in the International Covenant on Civil and Political Rights (E/CN.4/1985/4, annex).
- See, for example, Human Rights Committee general comment N° 29; Siracusa Principles (E/CN.4/1985/4, annex, paras. 15 and 17); “Report of the United Nations High Commissioner for Human Rights and Follow-up to the World Conference on Human Rights-Human rights: a uniting framework” (E/CN.4/2002/18, annex, paras. 3 (a) and 4 (a)); Council of Europe, Guidelines on human rights and the fight against terrorism (2002), Guideline III; and Inter-American Commission on Human Rights, “Report on terrorism and human rights” (OEA/Ser.L/V/II.116, Doc. 5 rev. 1 corr., para. 53).
- As held, for example, by the European Court of Human Rights in Sunday TimesUnited Kingdom, N° 6538/74, Judgement of 26 April 1979, para. 49.
- In the context of terrorism offences, these requirements have been emphasized by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (E/CN.4/2006/98, para. 49).
- There are, however, exceptions. See, for example, article 18 of the International Covenant on Civil and Political Rights, which protects the right to freedom of thought, conscience, religion and belief, and does not include national security as a permissible ground for limitations.
- The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has emphasized that offences created under counter-terrorist legislation, along with any associated powers of investigation or prosecution, must be limited to countering terrorism (E/CN.4/2006/98, para. 47). See also “A preliminary framework draft of principles and guidelines concerning human rights and terrorism” (E/CN.4/Sub.2/2005/39, para. 33).
- See, for example, Siracusa Principles (E/CN.4/1985/4, annex, para. 17); Council of Europe, , Guideline III (para. 2); and Inter-American Commission on Human Rights, “Report on terrorism and human rights” (paras. 51 and 55).
- See, for example, E/CN.4/2002/18, annex, para. 4 (d); Council of Europe, .., Guideline III (para. 2); and Inter-American Commission on Human Rights, “Report on terrorism and human rights” (paras. 51 and 55).
- See, for example, the approach of the Supreme Court of Canada to this effect: Lavigne Ontario Public Service Employees Union  2 SCR 211 and Figueroa v. Canada (Attorney General)  1 SCR 912.
- For a discussion on each of these factors, see further Alex Conte, “The ICT project on human rights compliance when countering terrorism: a guide to legislators, policy-makers and the judiciary”, in ISC2005: Security, Terrorism and Privacy in Information Society, von Knop and others, eds. (2006).
- See, for example, “Australia: study on human rights compliance while countering terrorism” (A/HCR/4/26/Add.3); “Report of the independent expert on the protection of human rights and fundamental freedoms while countering terrorism, Robert K. Goldman” (E/CN.4/2005/103, paras. 8, 9 and 74); Human Rights Committee, general comment N° 29, paras. 4-5; E/CN.4/2002/18, annex, paras. 4 (b), (e)-(g); Council of Europe, , Guideline III (para. 2); and Inter-American Commission on Human Rights, “Report on terrorism and human rights” (para. 51).
- See, for example, Canadian jurisprudence, in particular v. Oakes  1 SCR 103 and R. v. Lucas  1 SCR 439, para. 118.
- See also article 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and article 27 of the American Convention on Human Rights. The African Charter does not contain a derogation clause. According to the African Commission on Human and Peoples’ Rights, limitations on the rights and freedoms enshrined in the Charter cannot therefore be justified by emergencies or special circumstances. “The only legitimate reasons for limiting the rights and freedoms of the African Charter are found in article 27 (2), that is, that the rights of the Charter ‘shall be exercised with due regard to the rights of others, collective security, morality and common interest.’ In addition, the justification of limitations must be strictly proportionate with and absolutely necessary for the advantages which follow. Most important, a limitation may not erode a right such that the right itself becomes illusory” (Constitutional Rights Project, Civil Liberties Organisation and Media Rights AgendaNigeria, communications N° 140/94, N° 141/94, N° 145/95, paras. 41-42).
- Inter-American Court of Human Rights, Advisory Opinion OC-8/87 on habeas corpus in emergency situations, 30 January 1987 (paras. 42-43).
- Interpreting the comparable derogation provision within the European Convention on Human Rights and Fundamental Freedoms, the European Court of Human Rights has spoken of four criteria to establish that any given situation amounts to “a time of public emergency which threatens the life of the nation”. First, it should be a crisis or emergency that is actual or imminent. Second, it must be exceptional, so that “normal” measures are inadequate. Next, the emergency must threaten the continuance of the organized life of the community. Finally, it must affect the population of the State taking measures. On this fourth point, early decisions of the Court spoke of an emergency needing to affect the whole population. The Court appears to have subsequently accepted that an emergency threatening the life of the nation might only materially affect one part of the nation at the time of the emergency. See LawlessIreland (No 3), N° 332/57, Judgement of 1 July 1961, para. 28. See also Brannigan and McBride v. United Kingdom, N° 14553/89; N° 14554/89, Judgement of 25 May 1993, contrast with the dissenting opinion of Judge Walsh, para. 2.
- See A/58/40 (vol. I), para. 85 (15).
- See “Extrajudicial, summary or arbitrary executions: Report of the Special Rapporteur, Philip Alston” (E/CN.4/2006/53, paras. 44-54) and “Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin” (A/HRC/4/26, paras. 74-78).
- See address by High Commissioner for Human Rights, Louise Arbour, “A human rights framework for fighting terrorism”, Moscow State University/University of International Relations, 11 February 2005.
- E/CN.4/2006/53, paras. 45 and 51.
- Both the International Covenant on Civil and Political Rights (art. 6) and the American Convention on Human Rights (art. 4) prohibit the arbitrary deprivation of life, whereas article 2 of the European Convention states that no one shall be deprived of life intentionally and that the use of force which is no more than absolutely necessary may be used in defence of any person from unlawful violence. See also Human Rights Committee, views on communication N° 146/1983, BaboeramSuriname, 4 April 1985: “The right enshrined in this article is the supreme right of the human being. It follows that the deprivation of life by the authorities of the State is a matter of the utmost gravity. This follows from the article as a whole and in particular is the reason why paragraph 2 of the article lays down that the death penalty may be imposed only for the most serious crimes. The requirements that the right shall be protected by law and that no one shall be arbitrarily deprived of his life mean that the law must strictly control and limit the circumstances in which a person may be deprived of his life by the authorities of a State” (A/40/40, annex X, para. 14.3).
- See Human Rights Committee, general comment N° 6 (1982). See also Inter-American Commission on Human Rights, “Report on terrorism and human rights” (paras. 87 and 89), citing Inter-American Court of Human Rights, Neira Alegria et al.Peru, Judgement of 19 January 1995 (paras. 74-75).
- See Human Rights Committee, views on communication N° 45/1979, Suarez de GuerreroColombia, 31 March 1982 (A/37/40, annex XI, paras. 12.2, 13.1-13.3). See also the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (A/CONF.144/28/Rev.1), the Code of Conduct for Law Enforcement Officials (General Assembly resolution 34/169) and the Principles on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions (Economic and Social Council resolution 1989/65).
- See E/CN.4/2006/53, para. 48. On the strict requirements regarding the use of force under the European Convention on Human Rights, see, inter alia, European Court of Human Rights, McCannUnited Kingdom, N° 18984/91, Judgement of 27 September 1995.
- See, for example, ProsecutorFurundzija, para. 144.
- See articles 7 and 4 (2) of the International Covenant on Civil and Political Rights, articles 3 and 15 (2) of the European Convention on Human Rights, articles 5 and 27 (2) of the American Convention on Human Rights, article 5 of the African Charter on Human and Peoples’ Rights, and common article 3 of the four Geneva Conventions. See also Inter- American Commission on Human Rights, “Report on the situation of human rights of asylum seekers within the Canadian refugee determination system” (OEA/Ser.L/V/II.106, Doc. 40 rev., para. 118).
- See Committee against Torture, views on communication N° 39/1996, Tapia PaezSweden, 28 April 1997: “[T]he test of article 3 of the Convention is absolute. Whenever substantial grounds exist for believing that an individual would be in danger of being subjected to torture upon expulsion to another State, the State party is under obligation not to return the person concerned to that State. The nature of the activities in which the person concerned engaged cannot be a material consideration when making a determination under article 3 of the Convention” (A/52/44, annex V). See also, Human Rights Committee: “The State party should recognize the absolute nature of the prohibition of torture, cruel, inhuman or degrading treatment, which in no circumstances can be derogated from. Such treatments can never be justified on the basis of a balance to be found between society’s interest and the individual’s rights under article 7 of the Covenant. No person, without any exception, even those suspected of presenting a danger to national security or the safety of any person, and even during a state of emergency, may be deported to a country where he/she runs the risk of being subjected to torture or cruel, inhuman or degrading treatment” (A/61/40 (vol. I), para. 76 (15)).
- See, for example, the Report of the Committee against Torture (A/59/44, paras. 67, 126 and 144) and “Torture and other cruel, inhuman or degrading treatment: Report of the Special Rapporteur on the question of torture, Manfred Nowak” (E/CN.4/2006/6).
- See Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (A/61/259, paras. 44-65).
- Legal Consequences…, 111.
- See also Commission on Human Rights resolution 2005/39: “… prolonged incommunicado detention or detention in secret places may facilitate the perpetration of torture and other cruel, inhuman or degrading treatment or punishment and can in itself constitute a form of such treatment, and urges all States to respect the safeguards concerning the liberty, security and the dignity of the person” (para. 9).
- See, for example, Human Rights Committee, general comment N° 20 (1992), para. 6, and “Situation of detainees at Guantanamo Bay” (E/CN.4/2006/120, para. 53).
- See E/CN.4/2005/103, para. 52.
- See also European Court of Human Rights, SoeringUnited Kingdom, N° 14038/88, Judgement of 7 July 1989.
- See for example, European Court of Human Rights, ChahalUnited Kingdom, N° 22414/93, Judgement of 15 November 1996, and Louise Arbour, “In our name and on our behalf”, International and Comparative Law Quarterly, vol. 55, N° 3 (July 2006), p. 511.
- See, for example, European Commission for Democracy through Law (Venice Commission), “Opinion on the international legal obligations of Council of Europe members States in respect of secret detention facilities and inter-State transport of prisoners”, 17-18 March 2006, Opinion N° 363/2005, CDL-AD(2006)009.
- See, for example, “Report of the United Nations High Commissioner for Human Rights on the protection of human rights and fundamental freedoms while countering terrorism” (A/HRC/4/88) and the High Commissioner’s statement on Human Rights Day, December 2005; and E/CN.4/2006/6, chap. III. See also Committee against Torture, views on communication N° 233/2003, AgizaSweden, 20 May 2005 (A/60/44, annex VIII, sect. A), and Human Rights Committee, views on communication N° 1416/2005, Alzery v. Sweden, 25 October 2006 (A/62/40 (vol. II), annex VII).
- See “Alleged secret detentions in Council of Europe member States” (“Marty Report”), AS/Jur (2006) 03 rev, and the follow-up report “Secret detentions and illegal transfers of detainees involving Council of Europe member States: second report”, Doc. 11302 rev.; “Secretary General’s report under article 52 of the European Convention on Human Rights on the question of secret detention and transport of detainees suspected of terrorist acts, notably by or at the instigation of foreign agencies” (SG/Inf (2006) 5, 28 February 2006) and his supplementary report on the subject (SG/Inf (2006) 13, 14 June 2006); Venice Commission, op. cit.
- Human Rights Committee, general comment N° 8 (1982) on the right to liberty and security of persons (art. 9), paras. 1 and 4.
- See International Covenant on Civil and Political Rights (art. 9 (3)-(4)). See also African Commission on Human and Peoples’ Rights, International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr. and Civil Liberties OrganisationNigeria, communications N° 137/94, N° 139/94, N° 154/96 and N° 161/97, para. 83.
- See, for example, Universal Declaration of Human Rights (arts. 1 and 2) and International Covenant on Civil and Political Rights (art. 26). See further Digest of jurisprudence… (chap. III, sect. K).
- See Inter-American Court of Human Rights, Advisory Opinion OC-18/03 on the juridical condition and rights of the undocumented migrants, 17 September 2003, para. 101.
- See, for example, E/CN.4/2006/98, para. 48; Human Rights Committee, general comment N° 29 (2001) on states of emergency (art. 4), paras. 8 and 16; and E/CN.4/2002/18, annex, para. 4 (i).
- See A/HRC/4/26, paras. 32-62.
- Inter-American Commission on Human Rights, “Report on terrorism and human rights”, para. 353.
- European Commission against Racism and Intolerance, “General policy recommendation N° 8 on combating racism while fighting terrorism” (CRI (2004) 26).
- EU Network of Independent Experts in Fundamental Rights, “The balance between freedom and security in the response by the European Union and its member States to the terrorist threats” (2003), p. 21.
- See E/CN.4/2005/103, paras. 71-76, and also A/HRC/4/26, paras. 32-62.
- See, generally, Human Rights Committee, general comment N° 13 (1984).
- E/CN.4/2005/103, para. 44.
- See, for example, African Commission on Human and Peoples’ Rights, Media Rights AgendaNigeria, communication N° 224/98 (paras. 59-62) and Inter-American Court of Human Rights, Castillo Petruzzi et al. v. Peru, Judgement of 30 May 1999 (paras. 128-131, 172).
- Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin (A/61/267).
- A/HRC/4/88, paras. 17-22.
- See, for example, E/CN.4/2005/103, para. 32, and E/CN.4/2006/98, para. 26.
- For a regional example, see Castillo Petruzzi et al.Peru (para. 121).
- For the latest developments, see http://www.un.org/law/terrorism/index.html.
- See E/CN.4/2006/98, para. 42.
- Security Council resolution 1624 (2005), para. 1.
- See, for example, European Court of Human Rights, HandysideUnited Kingdom, N° 5493/72, Judgement of 7 December 1976.
- See “International mechanisms for promoting freedom of expression”, joint declaration of the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, and the OAS Special Rapporteur on Freedom of Expression (21 December 2005).
- See, for example, African Commission on Human and Peoples’ Rights, Amnesty International, Comite Loosli Bachelard, Lawyers Committee for Human Rights, Association of Members of the Episcopal Conference of East AfricaSudan, communications N° 48/90, N° 50/91, N° 52/91, N° 89/93 (paras. 78-80).
- See “Report submitted by the Special Representative of the Secretary-General on human rights defenders, Hina Jilani” (E/CN.4/2006/95): “so-called security or counterterrorism measures have (…) been used to restrict human rights activities. Human rights defenders and groups have been targeted and subjected to arbitrary actions with the introduction of exceptions to the rule of law and human rights derogations adopted through special security legislation” (para. 52). See also Security Council resolution 1373 (2001). Measures to be adopted by States included freezing the funds of certain entities (para. 1 (c)), preventing certain entities within their territories from making any funds available (para. 1 (d)), refraining from providing any support to certain entities, suppressing recruitment of members of terrorist groups (para. 2 (a)), preventing the movement of terrorist groups (para. 2 (g)) – all of these measures affect “associations”.
- See reports of the Special Representative of the Secretary-General on human rights defenders, Hina Jilani (A/59/401 and E/CN.4/2006/95).
- See A/61/267.
- See, for example, European Court of Human Rights, Sidiropoulos and OthersGreece, N° 26695/95, Judgement of 10 July 1998: “the Court does not rule out that, once founded, the association might, under cover of the aims mentioned in its memorandum of association, have engaged in activities incompatible with those aims. Such a possibility, which the national courts saw as a certainty, could hardly have been belied by any practical action as, having never existed, the association did not have time to take any action” (para. 46).
- A/59/401, paras. 49, 51-82.
- See E/CN.4/2005/103, paras. 13-15.
- See A/61/267, para. 29.
- See, for example, Human Rights Committee, views on communication N° 453/1991, Coeriel et al.the Netherlands, 31 October 1994 (A/50/40 (vol. II), annex X, sect. D). As to the meaning and extent of “private life” see, for example, European Court of Human Rights, Amann v. Switzerland, N° 27798/95, Judgement of 16 February 2000, and Rotaru v. Romania, N° 28341/95, Judgement of 4 May 2000.
- See article 17 (1) of the International Covenant on Civil and Political Rights, article 8 (2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and article 11 (2) of the American Convention on Human Rights.
- See Human Rights Committee, views on communication N° 35/1978, Aumeeruddy- Cziffra and OthersMauritius, 9 April 1981 (A/36/40, annex XIII, para. 9.2 (b) 2 (i) 8).
- European Court of Human Rights, KlassGermany, N° 5029/71, Judgement of 6 September 1978, para. 50.
See, for example, Organisation for Economic Development and Co-operation, A Development Co-operation Lens on Terrorist Prevention: Key Entry Points for Action, DAC Guidelines and Reference Series (OECD, 2003), available at www.oecd.org