Proposals for "Further Guidance" for the submission of reports pursuant to paragraph 6 of Security Council Resolution 1373 (2001)
(intended to supplement the Guidance of 26 October 2001)
Compliance with International Human Rights Standards
General Guidance: Criteria for the balancing of human rights protection and the combating of terrorism
1. The Security Council has asked States to take specific measures against terrorism. States’ action in this area should also be guided by human rights principles contained in international law.
2. Human rights law strikes a balance between the enjoyment of freedoms, and legitimate concerns for national security. It allows the limitation of some rights in specific and defined circumstances.
3. Where this is permitted, the laws authorising restrictions:
§ should use precise criteria;
§ may not confer unfettered discretion on those charged with their execution.
4. For limitations of rights to be lawful they must:
§ be prescribed by law
§ be necessary in a democratic society, be for public safety or public order, namely the protection of public health or morals and for the protection of the rights and freedoms of others, and serve legitimate purpose
§ not impair the essence of the right
§ be interpreted strictly in favour of the rights at issue
§ be necessary
§ conform to the principle of proportionality
§ be appropriate to achieve their protective function; must be the least intrusive instrument amongst those which might achieve that protective function
§ be compatible with the objects and purposes of human rights treaties
§ respect the principle of non-discrimination
§ not be arbitrarily applied.
5. Comments on the compliance of adopted anti-terrorist measures with international human rights could refer to whether the measures are compatible with, for instance:
§ the right to personal liberty (CCPR art. 9),
§ freedom of movement (CCPR art. 12), including the right of all persons to leave any country, including one’s own country (CCPR art. 12, para. 4),
§ the right to a fair trial, particularly in the determination of any criminal charge (CCPR arts. 14 and 15),
§ the protection against arbitrary interference with privacy, family, home or correspondence and against unlawful attack on honour and reputation (CCPR art. 17;
§ freedom of expression (CCPR art. 19),
§ the right to manifest one’s religion or belief (CCPR art. 18),
§ the right of peaceful assembly (CCPR art. 21),
§ freedom of association (CCPR art. 22),
§ rights of participation (CCPR art. 25),
§ the right of persecuted persons to seek asylum when entering the territory or jurisdiction of the State (UDHR art. 14 and the Refugee Convention), and the right of non-refoulement (CCPR art. 7 and other more specific treaty provisions),
§ procedural guarantees related to deportation of an alien (in particular CCPR art. 9, 13, 14).
6. States should submit a list of those international human rights treaties that they have ratified and need to be taken into account when considering their measures under resolution 1373. Inter alia, ICCPR CAT, CERD, CRC, the 1951 Refugee Convention and its Protocol of 1967 and corresponding regional human rights treaties on civil and political rights (ECHR, ACHR, African Charter), are pertinent in this respect.
7. States should report on whether their legislation includes the notion of "terrorism", "act of terrorism" or any similar notion, and whether there exists a definition of such terms in their legislation or case law. In particular, reports should indicate whether such notions cover non-violent activities and are used autonomously as basis for criminal conviction, deprivation of liberty or other coercive measures, or whether they are used as a qualification of acts that would, even without such a qualifying factor, constitute a crime under domestic law. Attention should also be given to CCPR article 15 and comparable provisions in regional human rights treaties according to which no one may be held guilty of any criminal offence unless the act or omission constituted a criminal offence at the time when it was committed. (See UDHR art. 11, regional instruments e.g. ECHR art. 7, ACHR art. 9, African Charter art. 7).
8. With reference to SC Resolution 1373 (2001), operative paragraph 2, sub-paragraphs (c) and (g), operative paragraph 3, sub-paragraphs (f) and (g) and the questions presented in the Guidance under those headings, States should include in their reports responses to the following questions:
(a) When taking the measures in question, how is compliance secured with the right of all persons to leave any country, including one's own country (CCPR art. 13, para.4, UDHR art. 13), the right of persecuted persons to seek asylum when entering the territory or jurisdiction of the State (UDHR art. 14 and the Refugee Convention, regional instruments e.g. African Charter art. 12, ACHR art. 22), and the right of non-refoulement (CCPR art. 7, CAT art. 3, Refugee Convention art. 33, regional instruments e.g. ECHR art. 3, ACHR art. 22)
(b) Does the State recognise the real risk of capital punishment per se as an obstacle for refoulement (for instance, on the basis of constitutional provisions, regional human rights instruments, the CRC or the Second Optional Protocol to the CCPR), or does it apply the rule of non-refoulement to capital punishment only in cases where the specific circumstances of the application of the death penalty are recognised, by the State, either as a violation of the right to life (e.g. imposition of the death penalty for other than the most serious crimes, non-compliance with all guarantees of fair trial in proceedings leading to the imposition of capital punishment, see CCPR art. 6), or as inhuman, cruel or degrading treatment (e.g. due to the method of execution, prolonged stay on death row prior to execution, or further compelling circumstances, see CCPR art. 7 and comparable provisions in regional human rights treaties e.g. ECHR art. 3)?
(c) Are procedural guarantees related to deportation of an alien respected, including the requirement of an individualised decision, the right to present reasons against expulsion, the right to have one's case reviewed by an authority independent from the decision-making authority, and the right to be represented in such proceedings? If these requirements are not followed in all cases, how is the test of "compelling reasons of national security" applied and monitored (see CCPR art. 13, Refugee Convention art. 32, or regional instruments, e.g. ECHR Protocol 7 art. 1)?
9. States are requested to report on whether, and to what extent, human rights enshrined in international treaties ratified by them are affected by way of interference, limitation or restriction in the course of the State's measures taken to implement the resolution. In particular, attention should be paid in this respect to:
- the right to personal liberty (including, inter alia, the use of various forms of administrative detention and possible deviation from the requirement of judicial determination without delay of the lawfulness of any form of detention, see CCPR art.9, CRC art.9.4 regional instruments e.g. ACHR art. 7, ECHR art. 5, African Charter art. 6),
- freedom of movement (CCPR art. 12, UDHR art. 13, ACHR art. 22, African Charter art.12, ECHR Protocol 4 art. 2),
- the right to a fair trial, particularly in the determination of any criminal charge (CCPR arts. 14 and 15, UDHR art. 10, ACHR art. 8, ECHR art. 6, African Charter art. 7),
- the protection against arbitrary interference with privacy, family, home or correspondence and against unlawful attack on honour and reputation (CCPR art. 17, UDHR art. 12, regional instruments e.g. ACHR art. 11, ECHR art. 8)
- freedom of expression (CCPR art. 19, UDHR art. 18, regional instruments e.g. ACHR art. 13, ECHR art. 10, African Charter art. 9)
- the right to manifest one's religion or belief (CCPR art. 18, UDHR art. 18, regional instruments e.g. ACHR art. 12, ECHR art. 9, African Charter art. 8),
- the right of peaceful assembly (CCPR art. 21, UDHR art. 20, regional instruments e.g. ACHR art. 15, ECHR art. 11)
- freedom of association (CCPR art. 22, UDHR art. 20, regional instruments e.g. ACHR art. 16, ECHR art. 11, African Charter art. 10, ILO Conventions e.g. No. 87 on Freedom of Association and the right to organise), and
- rights of participation (CCPR art. 25, UDHR art. 21, regional instruments e.g. ACHR art. 23, African Charter art. 13).
In their reports, states are requested to provide justification for any such interference, restrictions or limitations. As some (but not all) of the international treaty provisions referred to above include a specific clause on the permissibility of restrictions, states should explain how their measures are in compliance with such clauses. Typically, in order to be permissible a restriction must (a) be prescribed by law, (b) serve a specific legitimate aim, and (c) be deemed necessary which requirement also includes the test of proportionality. In order to facilitate States in their reporting, attention is drawn to General Comment No. 27 of the Human Rights Committee (on freedom of movement) as the most recent authoritative guideline in the issue of permissible limitations (see, in particular, paragraphs 11-18 of the General Comment). The general guidance on balancing of human rights with security concerns contained in paragraph 1 of this note should also be applied.
10. States are requested to clarify whether measures taken to implement the resolution include any measures that would constitute derogation from their international human rights obligations (see, CCPR article 4 and corresponding provisions in regional human rights treaties e.g. ECHR art. 15, ACHR art. 27). In particular, States should respond to the following issues:
(a) Does it understand the current situation to constitute a public emergency which threatens the life of the nation? Has such public emergency been officially proclaimed? Has it submitted the required notification of its measures derogating from its human rights commitments? (As required by CCPR article 4, para. 3, ECHR article 15 para. 3, ACHR article 27 para. 3)
(b) Alternatively, are those of its measures taken in pursuance of the resolution that would constitute derogation from its international human rights obligations subject to a separate official proclamation of a state of emergency before they become operative? Do the domestic legal provisions enabling such measures of derogation to be taken at a later stage include safeguards to secure compliance with international human rights obligations, including CCPR article 4, if and when such proclamation is made?
(c) Has the State taken into account the recent General Comment No. 29 by the Human Rights Committee on States of Emergency when ensuring that its measures entailing derogation from human rights are in compliance with CCPR article 4?