HUMAN RIGHTS COMMITTEE BRIEFED ON WORK OF COUNTER-TERRORISM COMMITTEE
(Reissued as received.)
GENEVA, 27 March (UN Information Service) -- The Human Rights Committee met this afternoon to hear a briefing by Curtis Ward, Legal Expert for the Security Council’s Counter-Terrorism Committee (CTC), which was intended to convey a perspective of the CTC’s role vis-à-vis the Office of the United Nations High Commissioner for Human Rights (OHCHR), and other United Nations human rights bodies.
Mr. Ward said that all States were obligated by Security Council resolution 1373 (2001) to create the prescribed legal framework in their national laws and institutions to combat international terrorism and to cooperate fully with other States on a global scale in this effort. Recognizant of the human rights concerns that could arise, the CTC had encouraged the Office of the High Commissioner for Human Rights and other United Nations human rights bodies to take responsibility for human rights concerns within their own mandates, and to be open and precise about their concerns.
The CTC, noted Mr. Ward, had opened a possibility for the Office of the High Commissioner for Human Rights to participate in the CTC assistance programme by inviting the OHCHR to post its offer of assistance and guidance on the CTC’s
Web site in its Directory of Assistance. Additionally, the CTC had encouraged
the OHCHR to notify all States directly of its availability to provide advice for the protection of human rights in their legislation drafting process.
The briefing given by Mr. Ward was followed by a discussion in which the Experts of the Committee commented and posed additional questions, among others, on the hurried manner in which legislation on terrorism had been introduced following 11 September 2001, limitations on the mandate of the CTC to address human rights violations in the context of counter-terrorist legislation, and limitations on human rights bodies access to the information available to the CTC on such violations.
The Committee will reconvene at 10 a.m. on Tuesday, 1 April, to continue its work on a draft General Comment on article 2.
Briefing by Legal Expert of Counter-Terrorism Committee (CTC)
CURTIS WARD, Legal Expert for the Security Council’s Counter-Terrorism Committee, said that his briefing of the Human Rights Committee was meant to convey a perspective of the CTC’s role vis-à-vis the Office of the United Nations High Commissioner for Human Rights, and other United Nations human rights bodies. Reviewing the basis for and content of Security Council resolution 1373, he said that while the attacks on 11 September 2001 had been directed against a single target, they had had a global effect requiring a global response. All States were obligated to create the prescribed legal framework in their national laws and institutions to combat international terrorism and to cooperate fully with other States on a global scale in this effort. Resolution 1373 had been unprecedented in scope in response to the unprecedented threat posed by international terrorism in its new manifestations.
The members of the Security Council had been cognizant of the possible implications for human rights of resolution 1373, said Mr. Ward. In its preamble, the resolution specified that, while undertaking to combat by all necessary means the threats to international peace and security, this would be accomplished “in accordance with the Charter of the United Nations”. The Ministerial Declaration annexed to Security Council resolution 1456 (2003) provided further support for this position by enjoining States to “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”.
The CTC had been tasked with monitoring the compliance of States with the requirements of the resolution, explained Mr. Ward, including the receipt of reports of States demonstrating the legislative and executive measures to give effect to the resolution. Recognizant of the human rights concerns that could arise, the CTC had encouraged the Office of the High Commissioner for Human Rights and other United Nations human rights bodies to take responsibility for human rights concerns within their own mandates, and to be open and precise about their concerns. While United Nations Secretary-General Kofi Annan had stressed that there could be “no trade-off between effective action against terrorism and the protection of human rights”, the Chairman of the CTC had stated that the CTC would not trespass onto the areas of competence of other parts of the United Nations system. The Chairman had made it clear that it was open to other organizations to study States’ reports and to take up their content in other forums.
The CTC had established a practice of acting with maximum transparency in order to facilitate the consideration of States’ reports by other organizations, said Mr. Ward. It had made most of its documents publicly available and established a Web site on which reports received from all States were published. Moreover, the CTC had remained open to briefings by representatives of the human rights community.
A number of States were grappling with the challenges of protecting the rights of the individual while at the same time ensuring the rights of the public, said Mr. Ward. The attacks of 11 September 2001 had been preceded and followed by a number of other acts of terrorism in which many lives had been lost and considerable economic displacement affected. While the possibility of abuse by States in implementing resolution 1373 existed, the complexity of the laws required to combat terrorism should be appreciated. Where the rule of law prevailed, governments were likely to have the capacity to balance the protection of the rights of the individual vis-à-vis those of the public at large. The opportunity to test newly enacted and applied laws through the judicial processes in these countries afforded protection to the individual and allayed concerns about human rights abuses. Furthermore, those countries with lesser-developed legal systems were overwhelmingly seeking legislative drafting assistance from outside experts.
The CTC, noted Mr. Ward, had opened a possibility for the Office of the High Commissioner for Human Rights (OHCHR) to participate in the CTC assistance programme by inviting the OHCHR to post its offer of assistance and guidance on the CTC’s Web site in its Directory of Assistance. If a Member State requested assistance in respecting its counter-terrorism and human rights obligations, the CTC technical assistance team would refer the request to the OHCHR or other relevant human rights body. Additionally, the CTC had encouraged the OHCHR to notify all States directly of its availability to provide advice for the protection of human rights in their legislation drafting process.
In the discussion that followed the briefing, the Experts of the Committee addressed comments and questions to the Legal Expert stressing concerns, among others, that in the aftermath of 11 September 2001, efforts to bring States’ legislation into conformity with resolution 1373 had been hurried and focused primarily on counter-terrorist measures while ignoring human rights. Some States had already put forth the argument that resolution 1373, coming under Chapter VII of the Charter, superceded other international agreements. The Committee, in this instance, had reflected the opinion that resolution 1373 should be interpreted within the context of the Charter and in compliance with existing international agreements.
Since 11 September 2001, there had been an explosion of anti-terrorist legislation, said one Expert. Had the CTC had the chance to make a careful assessment of how these laws were contributing to the fight against terrorism, and to review whether they violated human rights? Perhaps a period in which to take stock of the state of counter-terrorism legislation was necessary, he suggested.
Another Expert pointed out that in its capacity to review States’ compliance with human rights standards, the Committee faced a particular problem. Only
three fourths of States were party to the International Covenant of Civil and Political Rights (CCPR), and only one tenth of those members appeared before the Committee each year. Thus, the Committee had not had the opportunity to review all its member States efforts within the framework of resolution 1373.
Other Experts expressed concern about terrorism legislation that called into question human rights, such as the freedom of association, and transferred much power to police to arrest persons and to extend the length of detention. There were instances of legislation, which empowered the executive to accept as truth the designation made by foreign countries of organizations as terrorist organizations, without examining that designation on its merits.
One Expert warned, based on personal experience, that some policies, supposedly aimed at combating terrorism, were simply policies of repression, which did not set high priority on human rights. He suggested that questionnaires about States’ compliance with human rights standards be employed. Another suggested the inclusion of a question on the list sent to States reporting to the CTC requesting information on those international conventions to which the State was party and the measures taken to guarantee compliance with those conventions.
Other worries voiced by the Experts included the instance of a State, normally a great respecter of the CCPR, which had extradited an individual back to his country of origin, based on an assurance that he would not be subject to torture or execution. All the Experts would agree that this was an inadequate measure to truly protect the individual’s rights.
Not all persons had the means to seek judicial redress if their human rights were violated in the fight against terrorism, agreed the Committee. There needed to be a balance agreed between protecting individual human rights and protecting against terrorism or, in the long run, counter-terrorist efforts would not be successful. Violations of human rights would only lead to anger against the counter-terrorist measures. Each incident of terrorism had its own basic cause, and counter-terrorist measures would prove ephemeral if causes, such as poverty, social injustice and despair were not addressed.
The repressive nature of a number of regimes could be given as the cause of terrorism, suggested one Expert. This was not a justification, but an explanation of terrorism. The strengthening of repression in such cases would lead to the strengthening of terrorism.
A better method of collaboration between the CTC and the Human Rights Committee should be agreed, suggested one Expert, while another noted that the CTC had access to information on the violation of human rights, but not a mandate to address such violations. Conversely, other human rights bodies had the mandate to address them, but not the information available to the CTC. This showed a clear imbalance between the power of the human rights bodies and the CTC.
Response of Legal Expert
In reply to the issues raised by the Committee’s Experts, Mr. Ward said that part of the problem faced was that there was no universally accepted definition of terrorism. An Ad Hoc Committee of the General Assembly, mandated to provide such a universal definition, had been, thus far, unsuccessful in agreeing on a definition and while the CTC did not intend to provide its own definition of terrorism, it had identified certain acts as terrorist acts. It had also allowed States to define for themselves those acts which they considered constituted terrorist acts. However, the CTC had recognized that it was essential to ask States about the intentions of their legislation and to bring into their legislation those acts, which had been internationally defined as acts of terrorism.
Resolution 1373, said Mr. Ward, had brought to the fore the principle of “extradite-or-prosecute”, in which sense a certain amount of protection remained in regard to the concerns raised by the Committee on the extradition of terrorism suspects to countries where they might be subject to torture or capital punishment.
Addressing the Committee’s worries about the hastiness with which States’ legislation had been adopted, Mr. Ward used the example of Mauritius, which had been one of the first States to pass counter-terrorist legislation in the context of resolution 1373. However, upon the submission of that legislation to the President of Mauritius, the President had refused to sign it and resigned. The Vice-President then succeeded him in the same manner. When it came to the
Chief Justice of the Supreme Court, he had signed the legislation, but had personally told Mr. Ward that during his review of it, he would likely be inclined to treat the legislation differently.
There were bound to be aspects of legislation that would not be fully compatible with human rights concerns, acknowledged Mr. Ward. And in some cases, those needing to challenge these laws would not have the means to do so. Suggesting that the Human Rights Committee review the means by which such individuals might be aided, he said that this would be a critical stage for the human rights community in terms of how States interpreted the new legislation. The same law could be enacted in two States and interpreted in very different ways.
The role of the CTC was not merely that of a clearing house for information, said Mr. Ward; its mandate was to receive reports, but upon receipt, each State was engaged in a process to ensure that the appropriate laws were adopted. The CTC’s initial scrutiny had been focused on ensuring that the States’ legislation addressed (or intended to address): the financing of terrorism; the provision, support and the sheltering of individuals or organizations involved in terrorism; and international cooperation for the prevention and suppression of terrorism. Subsequent attention was devoted to the practical implementation of this legislation.
The CTC, noted Mr. Ward, was not responsible for determining terrorist organizations or for placing individuals upon an international watch-list; these responsibilities fell within the competence of another Committee.
There was much discussion of the root causes of terrorism, said Mr. Ward. And while there was no consensus on the root causes, per se, there was consensus that poverty, lack of human rights and other forms of deprivation did contribute to and provide a breeding ground for terrorism. Unfortunately, most of these issues did not fall within the mandate of the Security Council, but within the mandate of the Economic and Social Council. There had been various attempts to deal with these issues, such as the dialogue among civilizations; moreover, the Secretary-General had established a committee to deal with the causes of terrorism in terms of some of these issues.
Mr. Ward assured the Committee that all of their comments and questions would be communicated to the CTC.
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