Combating Terrorism While Protecting Human Rights
By Leslie Palti, for the Chronicle
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The United Nations unequivocally condemns terrorism in all its forms as a violation of human rights. However, finding a rights-based approach to fighting it has been less obvious. The anti-terrorism debate hinges on finding the right balance between human rights protection and effective security measures. Are effective counter-terrorism measures compatible with the full respect for fundamental freedoms? Is it necessary for States to make compromises and infringe on the rule of law in order to better protect their population from the threat of terrorism?
In November 2002, Secretary-General Kofi Annan noted that the 11 September 2001 terrorist attacks have acerbated the dilemma, “where an understandable focus on preventing still more terrible terrorist acts has increased concerns about the price we must pay in terms of cherished rights and liberties”. He added: “We face a nearly unsolvable conflict between two imperatives of modern life—protecting the traditional civil liberties of our citizens, and at the same time ensuring their safety from terrorist attacks with catastrophic consequences.” Particular attention needed to be given to balancing anti-terrorism measures and the observance of human rights standards, Mr. Annan said, otherwise the fight against terrorism would be “self-defeating”.
For the United Nations, respect for human rights remains an integral part of any comprehensive counter-terrorism strategy. UN guidelines to help States strike a balance between human rights and combating terrorism have been established in a number of resolutions adopted by the General Assembly, Security Council and Commission on Human Rights. These resolutions stress that “States must ensure that any measures taken to combat terrorism comply with all their obligations under international law and should adopt such measures in accordance with international law”.
The International Commission of Jurists (ICJ), noting that counter-terrorism measures should not “undermine the human rights law that Member States have themselves painstakingly built up over fifty years”, has listed a number of fundamental rights that have been violated in the pursuit of counter-terrorism efforts: freedom from torture; the right to life; freedom from arbitrary detention; the right to a fair trial by an independent and impartial tribunal established by law; freedom of association and expression; and the rights to asylum and non-discrimination.
The protection of fundamental freedoms while countering terrorism is no new concern to the General Assembly. In 1997, the Sub-Commission on the Promotion and Protection of Human Rights recommended the appointment of a special rapporteur to conduct a comprehensive study on human rights and terrorism. Special Rapporteur Kalliopi Koufa noted that her work needed to be reviewed in light of the events of 11 September and submitted a series of reports. In her progress report presented in July 2002, she reviewed international anti-terrorist actions, as well as comments, observations and decisions adopted by international human rights bodies and mechanisms.
The issue of terrorism and human rights has become more urgent with the global surge in terrorism. While recognizing the importance of the fight against terrorism, some UN bodies have expressed concern that countermeasures may infringe on human rights. In July 2004, the ICJ noted that “in some countries the ‘war against terrorism’ has given greater legitimacy to long-standing human rights violations carried out in the name of national security”, leading to a worrying erosion of international humanitarian law and refugee law, particularly through the “increasingly militarizing judicial functions”, transferring “substantial judicial police powers to the armed forces without any judicial control”.
The UN system has emphasized that human rights norms must be rigorously respected, even in states of emergency. For the Office of the High Commissioner for Human Rights (OHCHR), protecting human rights in the context of counter-terrorism measures has high priority. It has voiced “profound concern at the multiplication of policies, legislation and practices increasingly being adopted by many countries in the name of the fight against terrorism, which affect negatively the enjoyment of virtually all human rights”. Drawing attention to the dangers inherent in the indiscriminate use of the term “terrorism” and the resulting new categories of discrimination, OHCHR has stressed that, in accordance with the International Covenant on Civil and Political Rights and pursuant to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, certain rights are non-derogable, meaning they cannot be suspended, not even in times of emergency. However, threats to national security may, under very specific and exceptional conditions, lead to a state of emergency under which certain rights are subject to derogation or suspension.
The Digest of Jurisprudence of the UN and Regional Organizations on the Protection of Human Rights while Countering Terrorism, published by OHCHR in 2003, makes several important contributions, clarifying the concept of non-derogable rights. Its leading task is to establish a framework in which terrorism can be effectively countered without adversely affecting fundamental freedoms and to address the core principles of necessity and proportionality, fundamental to lawful counter-terrorism measures. In 2003, the General Assembly adopted without a vote resolution 57/219, “Protecting human rights and fundamental freedoms while countering terrorism”, under which OHCHR is mandated to analyze counter-terrorism laws and measures and make recommendations concerning the obligation to promote and protect human rights and fundamental freedoms of States, including in their implementation of relevant Security Council resolutions.
Security Council efforts to protect fundamental human rights while countering terrorism are guided by its resolution 1456 (2003), which declared that “States must ensure that any measure taken to combat terrorism comply with all their obligations under international law and should adopt such measures in accordance with international law, in particular international human rights, refugee and humanitarian law”. Briefing the Council on 18 January 2002, the Chairman of the Counter-Terrorism Committee stated that the CTC is mandated to monitor the implementation of resolution 1373 (2001) (see box). Monitoring performance against other international conventions, including human rights law, is outside the scope of the Committee’s mandate.
The major challenge is finding a balance between counter-terrorism monitoring and full respect for human rights. Recommendation 16 of the Report of the Policy Working Group on the United Nations and Terrorism proposes that security cannot be achieved by sacrificing human rights: “Together with the United Nations High Commissioner for Human Rights, a dialogue should be maintained with the Counter-Terrorism Committee on the importance of ensuring respect for human rights during the implementation of legislation, policies and practices to combat terrorism.” While the CTC has been willing to receive information on human rights issues, it has not yet developed a systematic approach to monitoring anti-terrorism measures in compliance with human rights norms. In October 2003, at a Conference organized by the ICJ, Deputy High Commissioner for Human Rights Bertrand Ramcharan pointed out that terrorism must be fought “within the framework of the law and with respect for the principle of proportionality”. |
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Fighting terrorism has been a long-standing concern of the General Assembly. Beginning in 1963, the United Nations has focused on building a legal framework to eliminate international terrorism and, to date, there are twelve major multilateral conventions about terrorism that constitute the main element of international law. However, despite this progress, one of the central challenges facing the Assembly has been the definition of terrorism itself. Each of the twelve conventions relies on an “operational” definition, based on specific terrorist “activities”. Thus, separate treaties exist to address issues such as bombings, hijackings, hostage-taking and covert financing of terrorist activities, but a universal definition has yet to be adopted.
Since 1996, the Assembly’s Sixth (Legal) Committee has worked on drafting a comprehensive convention on international terrorism, which will include a definition of terrorism. However, negotiations remain stalled due to disagreements between States on how to distinguish liberation movements from terrorist cells. Thus, until States resolve the adage that “one man’s terrorist is another man's freedom fighter”, the debate over a universal definition of terrorism will continue. |
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In the aftermath of the 11 September 2001 terrorist attacks, the Security Council, acting under Chapter VII of the UN Charter, adopted resolution 1373 (2001), condemning terrorist acts and incriminating all parties who support or participate in the financing, planning and preparation of these acts. It also said that such acts are serious criminal offences in domestic law and asked all Member States to submit to the Counter Terrorism Committee (CTC) a report listing their anti-terrorism initiatives. Established in 1999, the CTC monitors compliance with resolution 1373 and the twelve other terrorism-related conventions and protocols adopted by the General Assembly. Over 500 reports had been submitted as of the middle of 2004. But CTC experts argue that the mere documentation of anti-terrorist actions does little in terms of aiding enforcement, because the effectiveness of any international resolution depends on its implementation. However, support for resolution 1373 is not universal; some 71 countries have not met the submission deadline.
Responding to the need for CTC reform, the Council on 26 March adopted resolution 1535 (2004) establishing a new structure which does not alter the Committee’s mandate but enhances its operational capacity. The revitalized CTC comprises a plenary of all Council members, focusing on strategic and policy decisions, and a bureau, which includes the Chair, Vice-Chairs and consolidated expert and secretariat staff.
Expert Joel Sollier explained that while structural and operational changes might be helpful, “it will not change anything if political will remains so low”. The verification system, he noted, remained stalled because it involved so “many politically sensitive fields”, including monetary systems, police, immigration, arms control and money laundering, leaving “countries afraid of evaluation from the CTC”. |
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