Office
of the High Commissioner for Human Rights
Note to the Chair of the Counter-Terrorism Committee:
A Human Rights Perspective On Counter-Terrorist Measures
This note considers human rights
aspects of counter-terrorism measures taken by States. It begins by offering some general
considerations and elucidating key principles which can guide an analysis of
counter-terrorism measures from a human rights perspective. The note then proposes some questions
applicable to all States which can assist the Counter-Terrorism Committee in
exploring these issues further.
A. General Considerations
The Office of the High Commissioner
for Human Rights (OHCHR) welcomes the opportunity to contribute to the
Counter-Terrorism Committee’s consideration of reports submitted pursuant to
Security Council resolution 1373. From
the outset, OHCHR has considered it important that the CTC include a human
rights perspective in its analysis of measures taken by States to eliminate the
threat of terrorism. In this regard, reference
is made to the Proposals for “further guidance” for the submission of reports
pursuant to paragraph 6 of Security Council resolution 1373 (2001), regarding
Compliance with international human rights standards, which were intended to
supplement the Chairman’s note on “Guidance” of 26 October 2001. The Further
Guidance note was included in E/CN.4/2002/18.
The CTC will be aware that it is the intention of
the Secretary-General to publish the report of a policy working group he has
established on terrorism. The report
contains a number of recommendations, including that the UN should publish a
pamphlet on the main points of human rights jurisprudence in this area,
incorporating for example the findings of the UN, the Council of Europe, the
OAS, and the OSCE. The report of the
sub-group, which contains a concise analysis of the jurisprudence, is being
submitted concurrently with the present note.
There
are two central concerns that undoubtedly guide the CTC and the international
community in its work on this issue:
first, that pursuit of the struggle against terrorism must take place
within the framework of the rule of law, both nationally and internationally;
and second, that human rights must be safeguarded in the struggle against
terrorism. The purpose of security
measures is, fundamentally, to protect freedom and human rights.
Principles: Against this background, it would be important for the CTC to
have in view continually certain fundamental principles which are essential to
keeping the struggle against terrorism consistent with respect for human
rights. These include the following:
a)
Legality
All measures taken by States against terrorism must
be prescribed by law and set out with sufficient precision so as to preclude
arbitrary or discriminatory enforcement.
Measures against terrorism outside any legal framework should be
proscribed.
b)
Non-derogability
Certain rights are absolute and not subject to
derogation or curtailment under any circumstances. These include:
·
the right to life
·
the prohibition against torture and
cruel, inhuman or degrading treatment or punishment
·
the principles of precision and of
non-retroactivity of criminal law (except where a later law imposes a lighter
penalty)
·
the right to recognition everywhere as
a person before the law, and
·
the right to freedom of thought,
conscience and religion.
According to the UN Human Rights Committee’s
General Comment No. 29 on “States of Emergency",[1]
there are other elements of rights contained in the
International Covenant on Civil and Political Rights (ICCPR) which are
non-derogable. These include:
·
the right of all persons deprived of
liberty to be treated with humanity and respect for their human dignity
·
elements of the rights of persons belonging
to minorities
·
the prohibition against propaganda for
war or in advocacy of national, racial or religious hatred that would
constitute incitement to discrimination, hostility or violence
·
elements of the right to due process,
including the right to be tried by a court of law, the presumption of
innocence, and the right to judicial review of the lawfulness of detention (habeas corpus)
·
in any trial which could lead to the
imposition of the death penalty, strict respect for due-process rights
including the right to be informed of the nature of the charge(s), the right to
counsel, and the right to examine witnesses and evidence.
c)
Necessity and
Proportionality
Whether in an officially-proclaimed time of
emergency or at any other time, any restrictions placed on rights which are
subject to derogation must be limited to the extent strictly required by the
exigencies of the situation. According
to the Human Rights Committee, this principle relates, inter alia, to the duration, geographical coverage and material
scope of any special measures taken.
d)
Non-Discrimination
Counter-terrorism measures may never involve
discrimination solely on the ground of race, colour, sex, language, religion or
social origin.
e)
Due Process and Rule of Law
As noted above, certain elements of the right to
due process are not subject to derogation under any circumstances, including the right to be tried by a court of law, the presumption of innocence,
and the right to habeas corpus. Any restrictions placed on other due-process
rights, such as the right to counsel, are strictly limited by the principles of
necessity and proportionality.
f)
Right to seek
asylum/Non-refoulement
Everyone has the right to seek and enjoy in other
countries asylum from persecution.
Moreover, States shall not expel or return a person to another State
where there are substantial grounds for believing that person’s life, physical
integrity or freedom may be threatened on account of his or her race, religion,
nationality, membership in a particular social group or political opinion. States shall also not expel or return a
person to another State where there is a substantial risk generally of torture
or cruel, inhuman or degrading treatment or punishment.
5. OHCHR believes that the CTC’s study of
State reports under SC resolution 1373 could benefit from the objective and
reliable assessment of counter-terrorism measures, much of it in the light of
the foregoing principles, made by the following sources in the field of human
rights:
·
The six United Nations human rights
treaty bodies
·
The reports and communications of
special rapporteurs, representatives and working groups of the Commission on
Human Rights
·
Human rights reports and other material
from regional organizations recognized by the UN: the Council of Europe, OAS, OSCE, AU, et al[2]
·
Analysis by OHCHR based on the
above-stated principles.
The lines of inquiry
suggested below are based on the above-mentioned principles and the jurisprudence of the
above-mentioned sources.
The following illustrative and non-exhaustive list
of questions may assist the CTC in questioning States and assessing the human
rights implications of counter-terrorism measures.
General
1.
What legislation exists in
your country for the declaration of a state of emergency or similar state of
exception? Has your Government made
such a declaration? If so, when did it
become effective, and under what circumstances will it end? Has a notification of the declaration been
submitted to the Secretary-General?
2.
If a state of emergency has
been declared, what measures exist to ensure respect for the non-derogability
of certain rights?
Legality
3.
Does your legislation
include (as an autonomous basis for criminal conviction, deprivation of
liberty, denial of immigration benefits or similar measures) references to
“terrorism”, “terrorist acts”, “support to terrorist groups” and similar
notions? If so, how precisely does your
legislation define such notions?
4.
Can the legislation
referred to be used to criminalize peaceful activity protected by human rights
law, such as the holding of beliefs or the peaceful, private discussion of
ideas?
5.
When did the legislation
referred to come into effect? How does
the legislation ensure that any penalties incurred by a person accused and
convicted of terrorist activities were provided for by law at the time the acts
were committed, and that no heavier penalty is imposed than the one applicable
at the time the acts were committed?
Non-Derogability/Torture
6.
Do your counter-terrorist
measures provide for exceptional treatment of persons detained under
terrorism-related charges, such as prolonged detention without charges,
incommunicado detention or restrictions on access to counsel? If so, what are the provisions? How are these measures justified, and what
limits are placed on their applicability?
7.
What protective measures
(e.g., judicial supervision, access to medical assistance) exist to prevent
torture and similar rights violations from occurring under these exceptional
procedures?
8.
Does your Government
maintain independent complaints mechanisms, outside prosecutorial mechanisms,
which are accessible to persons held in custody? What provisions exist to ensure impartial and full investigations
into allegations of torture reported to the authorities, and the prosecution
and punishment, as appropriate, of perpetrators?
9.
What safeguards exist to
ensure that confessions or other evidence obtained under torture or duress are
not admitted as evidence?
Necessity
and Proportionality
10.
With respect to your
counter-terrorism legislation, what specific steps has your Government taken to
ensure that its provisions are applied only to the extent strictly required by
the exigencies of the situation? For
example, are there limits on the duration, geographical coverage and material
scope of such measures?
11.
Are counter-terrorism
measures in your country subject to judicial review or any other form of
review? Is the applicability of these
measures re-assessed on a regular basis?
Non-Discrimination
12.
Could your
counter-terrorism legislation have any discriminatory effect on certain sectors
of society based on race, colour, sex, language, religion, social origin,
migration status or similar distinctions?
What measures are in place or are envisaged to prevent any
discriminatory effect?
Due
Process/Rule of Law
13.
Do all persons detained
under counter-terrorism measures enjoy the right to take proceedings before a
court to enable the court to decide without delay on the lawfulness of
detention (habeas corpus)?
14.
For all persons detained on
account of suspected terrorist activities and held pending trial, what
provisions exist for regular judicial supervision of the lawfulness of the
detention?
15.
Do persons in proceedings
related to alleged terrorist activities enjoy the right to presumption of
innocence? How does your Government
ensure that this presumption is safeguarded?
16.
In what ways do
counter-terrorism measures in your country impact on fundamental aspects of due
process, including the rights in article 14 of the International Covenant on
Civil and Political Rights? If enjoyment of any of the listed rights is restricted as a
consequence of a state of emergency or similar state of exception, what steps
have been taken to limit such restrictions to the extent strictly required by
the exigencies of the situation?
17.
What are the legal
provisions for persons arrested or detained for terrorist activities to be
brought promptly before a judge? How
long is the permissible period of police custody? Is this subject to judicial review? What steps have been taken to limit the impact of any exceptional
measures in this regard to the extent strictly required by the exigencies of
the situation?
18.
[If the State retains capital punishment] In capital cases, what steps does the
Government take to ensure the protection of due process rights, including the
right to be informed of the nature and cause of the underlying charge, the
right to counsel, and the right to examine witnesses and evidence?
Special courts/Military
tribunals
19.
Do your counter-terrorism
measures allow for the trial of civilians on terrorism-related charges by
special or military courts? If so, how
is this considered compatible with the provisions of article 14 of the International
Covenant on Civil and Political Rights?
Right to seek
asylum/Non-refoulement
20.
With respect to claims to asylum made either at a border or
following entry into your country, what procedures are in place to deal with
asylum seekers where there are reasons to believe that they may be responsible
for terrorist act? Do these procedures ensure that such individuals are
guaranteed access to asylum procedures where their possible exclusion from
refugee protection can be determined by qualified personnel familiar with
refugee law and the complicated issues associated with exclusion from refugee
status?
21.
In the case of extradition requests for asylum seekers suspected
of responsibility for terrorist acts, are procedures in place to ensure that
the extradition is not being requested solely or principally as a means to
return a person to a country for purposes which in fact amount to persecution?
22.
In the cases of individuals deemed to be excluded from refugee
protection as a result of their responsibility for terrorist acts, what
procedures are in place to ensure that such individuals are brought to justice,
as asserted in Security Council Resolution 1373 of 28 September 2001? Do these
procedures take into account the need to ensure that such persons are not returned
to countries where they may be subject to torture, or other cruel, inhuman and
degrading treatment? If there is a possibility of torture in the receiving
state, do these procedures envisage the possibility of prosecution in the state
where the asylum claim was made?
Annex
Article 14 of
the International Covenant on Civil and Political Rights
1.
All persons shall be equal before the courts and tribunals. In the
determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by law.
The press and the public may be excluded from all or part of a trial for
reasons of morals, public order (ordre public) or national security in a
democratic society, or when the interest of the private lives of the parties so
requires, or to the extent strictly necessary in the opinion of the court in
special circumstances where publicity would prejudice the interests of justice;
but any judgement rendered in a criminal case or in a suit at law shall be made
public except where the interest of juvenile persons otherwise requires or the
proceedings concern matrimonial disputes or the guardianship of children.
2. Everyone charged with a
criminal offence shall have the right to be presumed innocent until proved
guilty according to law.
3. In the determination of
any criminal charge against him, everyone shall be entitled to the following
minimum guarantees, in full equality:
(a) To be informed promptly and in detail in a
language which he understands of the nature and cause of the charge against
him;
(b)
To have adequate time and facilities for the preparation of his defence and to
communicate with counsel of his own choosing;
(c)
To be tried without undue delay;
(d)
To be tried in his presence, and to defend himself in person or through legal
assistance of his own choosing; to be informed, if he does not have legal
assistance, of this right; and to have legal assistance assigned to him, in any
case where the interests of justice so require, and without payment by him in
any such case if he does not have sufficient means to pay for it;
(e)
To examine, or have examined, the witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same conditions
as witnesses against him;
(f)
To have the free assistance of an interpreter if he cannot understand or speak
the language used in court;
(g)
Not to be compelled to testify against himself or to confess guilt.
4.
In the case of juvenile persons, the procedure shall be such as will take
account of their age and the desirability of promoting their rehabilitation.
5. Everyone convicted of a
crime shall have the right to his conviction and sentence being reviewed by a
higher tribunal according to law.
6. When a person has by a
final decision been convicted of a criminal offence and when subsequently his
conviction has been reversed or he has been pardoned on the ground that a new
or newly discovered fact shows conclusively that there has been a miscarriage
of justice, the person who has suffered punishment as a result of such
conviction shall be compensated according to law, unless it is proved that the
non-disclosure of the unknown fact in time is wholly or partly attributable to
him.
7. No one shall be liable
to be tried or punished again for an offence for which he has already been
finally convicted or acquitted in accordance with the law and penal procedure
of each country.