|Department of Public Information • News and Media Division • New York|
Press Conference by Special Rapporteur on Protecting
Human Rights While Countering Terrorism
The counter-terrorism regime created by the Security Council was “outside the scope of its powers”, and while international terrorism remained a very serious threat and constituted an atrocious crime, it did not justify an exercise by the Security Council of supranational quasi-judicial sanctioning powers over individuals, said a United Nations human rights expert at a Headquarters press conference today
The Special Rapporteur on counter-terrorism and human rights, Martin Scheinin, today released his yearly report (A/65/258), which had as its thematic focus the United Nations compliance with human rights while countering terrorism.
He said many of the issues within the report related to counter-terrorism measures by the Security Council, in particular those exercised under the umbrella of Chapter VII under the United Nations Charter, which gave the Security Council extraordinary powers to “determine the existence of any threat to the peace, breach of the peace, or act of aggression”, and to decide with legally binding authority in respect to Member States what measures should be taken “to maintain or restore international peace and security”.
Mr. Scheinin noted that obligations in countering terrorism imposed on Member States by Security Council resolution 1373 (2001) “amount to a quasi-legislative measure that is unlimited in time and space”. In addition, he noted that “it has become detached from a concrete conflict situation, which Chapter VII of the Charter foresees and continues to pose risks to the protection of human rights and international rule of law.”
Scheinin argued that it was problematic to impose binding permanent obligations for acts of terrorism which had not yet taken place, because there was no universally accepted and precise definition of terrorism. He also noted that the rapid progress made in State ratifications of the International Convention for the Suppression of the Financing of Terrorism, since 2001, had provided a proper legal basis for States’ obligations in that field and made redundant the use of Chapter VII for the same purpose.
Equally problematic was that the Al-Qaida and Taliban sanctions regime, initiated by Security Council resolution 1267 (1999) as a reaction to a concrete threat to the peace, had subsequently expanded into an open system of sanctions without a link to a specific territory or State.
He mentioned that the Security Council had tried to reform the terrorist listing and delisting procedures, including the establishment of the Office of the Delisting Ombudsperson, but said the rights of due process remained at stake. According to Scheinin, there was a continuous lack of procedural fairness. “It is essential that listed individuals and entities have access to domestic courts to challenge any measure implementing the sanctions that are the result of political decisions taken by diplomats,” he said.
He recommended that the Security Council replace the regimes created by resolutions 1373 (2001) and 1267 (1999) with a single resolution that did not carry with it the binding legal force of Chapter VII of the Charter. That would place counter-terrorism measures and reporting obligations of States under one framework. Thus, the resolution could include explicit human rights provisions and reaffirm the obligations on the United Nations to comply with international human rights law. The listing of individuals by name at the United Nations level could be replaced by advice and assistance to Member States, including on due process guarantees in maintaining and reporting on national terrorist lists.
The report acknowledged and commended the increased attention paid by the General Assembly to the promotion and protection of human rights while countering terrorism, as reflected in a number of resolutions adopted on the subject and in the United Nations Global Counter-Terrorism Strategy. In particular, he was indebted to the General Assembly for its repeated request to all Governments to cooperate fully with his mandate.
In response to a question regarding reports of individual harm due to the Security Council framework, he said that there were flaws in the system, and in fact, he noted a family where both parents were listed, and faced travel bans and other hardships. He also noted that there was a feeling within the humanitarian field that the existence of resolution 1267 (1999) had a chilling effect on humanitarian aid, as there was a risk that charity aid would be identified as indirectly funding terrorist organizations.
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