Counter-terrorism ‘a Catch-all to Throttle Flow of Information’ Justify Detention of Journalists, says Special Rapporteur on Freedom of Opinion
Human rights defenders including journalists, lawyers and judges were suffering repression, harassment and censorship as States struggled against terrorism, the Third Committee (Social, Humanitarian and Cultural) heard today as special mandate holders presented their reports.
David Kaye, Special Rapporteur on the promotion and protection of the right to freedom of expression of opinion and expression, said the reliance on counter-terrorism served as a catch-all to throttle the flow of information and justify the detention of journalists, bloggers and others working in the media. Old tools of repression and new forms of censorship in the digital age had combined with punitive laws and policies to harass, threaten, chill and punish expression around the world.
The extrajudicial killing of journalists by non-State actors was also a question considered by Agnes Callamard, Special Rapporteur on extrajudicial, summary or arbitrary executions, who in the interactive discussion with delegates, said she wanted to explore the human rights responsibilities of non-State actors through case studies. For his part, Michel Forst, Special Rapporteur on the situation of human rights defenders, said that every week, three environmental defenders were assassinated, according to Global Witness. The impunity with which those attacks were carried out sent the message that certain lives were worth less than profit.
Javier Hernandez Valencia, speaking on behalf of Monica Pinto, Special Rapporteur on the independence of judges and lawyers, underscored that lawyers fell under the protective scope of the Declaration on Human Rights Defenders. The misuse of contempt of court charges affected the independence of lawyers and their freedom of expression. Previous Special Rapporteurs, he said, had received complaints alleging physical attacks against lawyers, as well as harassment and intimidation. International human rights law required States to take measures to both prevent and address such abuse, he warned.
Those same trends, however, also endangered the human rights of groups beyond those exercising their professional mandates, said Ben Emmerson, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. The link between displaced people and security risks in countries where they had sought refuge had been “irresponsibly and misleadingly” overblown. There was almost no evidence that refugees were more prone than others to radicalization, or that terrorist groups would take advantage of refugee flows to carry out acts of terrorism.
Virginia Dandan, Independent expert on human rights and international solidarity, presented her report summarizing five regional consultations held in 2015 and 2016 on a draft declaration on the right to international solidarity.
The President of the General Assembly delivered opening remarks to the Committee this morning.
The Third Committee will reconvene at 10 a.m. on Monday, 24 October, to continue its discussions on the promotion and protection of human rights.
The Third Committee (Social, Humanitarian and Cultural) met today to continue its debate on the promotion and protection of human rights. For further information, see Press Release GA/SCH/4172.
PETER THOMSON (Fiji), President of the General Assembly, recalled this year’s fiftieth anniversary of the adoption of the International Covenant on Economic Social and Cultural Rights, and the International Covenant on Civil and Political Rights, which formed the sophisticated global human rights framework in place today. Yet, millions of people continued to flee armed conflict, violence, persecution and natural disasters in unprecedented numbers. The impacts of climate change must be looked at not only as a security, development and environmental issue, but as a human rights concern.
As part of the global commitment to address the refugee and migration crisis, Member States had adopted the New York Declaration, he said. His Office would soon designate co-facilitators to begin negotiations on a “modalities resolution”, laying the groundwork to adopt a Migration Compact and a Refugees Compact in 2018. The 2030 Agenda for Sustainable Development was a critical tool in realizing the human rights of all.
He urged the Committee to shine light on situations where restrictions were tightening civil and political rights, and to advance critical social and economic issues, including the right to development and the right to self-determination, as well as social justice and equality. “Despite differences, diversity makes humanity stronger,” he declared, stressing that the promotion and protection of human rights was not only the right thing to do, it was the smart thing to do. A world where every person’s human rights were respected was one that was inherently more safe, more just and more stable, he concluded.
JAVIER HERNANDEZ VALENCIA, delivering a statement on behalf of Monica Pinto, Special Rapporteur on the Independence of Judges and Lawyers, said the right to access to a lawyer was firmly established in international law and represented an essential precondition for the exercise and enjoyment of a number of other rights. While lawyers were not expected to be independent or impartial in the same way as a judge, they should nonetheless be free from any external pressure or interference, including from State authorities and non-State actors. Noting that lawyers defending clients fell under the protective scope of the Declaration on Human Rights Defenders, he said attacks on lawyers were frequently a direct consequence of their identification with their clients or their clients’ causes.
Underscoring the importance of confidentiality between lawyers and their clients, as well as freedom of movement and association, he said the misuse of contempt of court charges affected the independence of lawyers and their freedom of expression. Previous Special Rapporteurs had received many complaints alleging physical attacks against lawyers, as well as harassment and intimidation, he said, stressing that international human rights law required States to take measures to both prevent and address such attacks. Expressing concern about the situation of lawyers in countries that lacked independent bar associations or whose bar associations were controlled by the State, he said silencing or controlling bar associations not only posed great risks to the legal community, but also had far-reaching consequences, as that eroded the rule of law and possibility for ordinary people to claim their human rights.
AGNES CALLAMARD, Special Rapporteur on extrajudicial, summary or arbitrary executions, presented the key points from the final report of her predecessor, Christof Heyns. The report covered a range of issues related to the arbitrary deprivation of the right to life — from the death penalty, to unmanned drones, the use of lethal force by law enforcement and killings motivated by prejudice. The outgoing Special Rapporteur had recommended six key areas for attention: the relationship between the right to life and technology; discrimination in the use of force by law enforcement; progressive abolition of the death penalty; the impact of terrorism on the right to life; the use of force by non-State actors and their accountability and the accessibility of the Minnesota Protocol.
The report raised concerns that the use of armed drones and fully autonomous weapons had led to a “depersonalization of the use of force”, with consequences for the legal principles of prevention and accountability, she said. Drones could only be justified if they saved lives against a truly imminent threat, she explained, while recalling that the law of self-defence could not be used as a “stand-alone” basis for the use of force against an individual. Autonomous weapons – weapons platforms that, once activated, could select and engage targets without further human intervention — raised a vast number of questions in terms of their human rights compliance, including over what would happen to the central legal principle of accountability in the absence of human control. Automated mechanisms to deprive life could be considered arbitrary, since they did not involve a deliberative human decision. The report also outlined concerns that the use of military-style weapons by law enforcement suggested that citizens were being treated as a threat. Given all those questions, he called for a moratorium on the development of autonomous weapons and on weapons with full autonomy – that is, those without meaningful human control.
When the floor was opened, many delegations questioned whether the death penalty fell under the mandate of the Special Rapporteur, with China’s representative expressing agreement with those from Singapore and Egypt that it was a domestic matter. Both the representatives of Mexico and the European Union requested further information on executions by non-State actors, with the latter asking whether the Special Rapporteur for extrajudicial, summary or arbitrary executions would focus on the killing of journalists, while Liechtenstein’s delegate asked whether she had engaged with the Philippines on extrajudicial executions as a result of the war on drugs. Canada’s representative asked for information about the gender aspect of extrajudicial killings, noting that so-called “honour killings” involved male perpetrators and female victims.
Ms. CALLAMARD, responding, noted that several questions had been asked regarding her priorities and those of her predecessor, Mr. HEYNS. The protection of the right to life, and to human rights more generally, was confronting three broad challenges in the fields of implementation, complex contexts, and invisibility of victims, who were outside the orthodox understanding of human rights. Those three challenges had led her to identify priorities, the first of which was gender. The importance of a gender-sensitive approach to extrajudicial executions had been underlined by her predecessor, and she said she wanted to ensure the same “from the start”.
Secondly, she noted that she wanted to explore the human rights responsibilities of non-State actors through case studies, and called for contributions. Her third focus would be exploring normative gaps around prevention. More broadly, she acknowledged that extrajudicial executions in the context of anti-drug campaigns had emerged as a topic. To numerous questions about the death penalty, she underscored that her predecessor had been careful to ensure that his investigations into that practice had fit within his mandate. He had not expanded his mandate to include the death penalty, she said, but she would exercise her mandate to look at that practice when imposed in an arbitrary or extrajudicial manner.
The representative of the Philippines noted his country’s development efforts for years had been hampered by the illegal drug trade, which threatened peace and order. The Philippines had 3 million drug users needing help, and in response, the President had launched an unparalleled war on illegal drugs, but taken care to reaffirm his commitment to international human rights law. There was no State policy condoning extrajudicial killings. Police who abused their authority would be investigated. He extended an invitation to the Special Rapporteur to look into deaths resulting from the campaign against illegal drugs.
Ms. CALLAMARD took the floor again to express gratitude to the Philippines for the news about an invitation, noting that she had submitted a demand for visit with the Special Rapporteur on the right to health, with whom she hoped to undertake a joint mission and link the two issues, as they were highly intertwined. She had also submitted a proposal for an expert meeting on the best practices responses to drug addiction and the drug trade, as they were global concerns with many human rights implications.
Also participating in the interactive dialogue were representatives of Cuba, Australia, Iran, Iraq, France, Papua New Guinea, and Cameroon, as well as of the State of Palestine.
BEN EMMERSON, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, said the link between displaced people and risks to national security in countries in which they had sought refuge had been “irresponsibly and misleadingly” overblown in many States. There was almost no evidence that refugees would be more prone to radicalization or that terrorist groups would take advantage of refugee flows to carry out acts of terrorism, he said, adding that those claims were analytically and statistically unfounded. According to the Office of the United Nations High Commissioner for Refugees, 70 per cent of displaced people had come from the 20 countries with the highest number of terrorist fatalities. Refugees and migrants did not pose a risk – they were at risk, he said, stressing that “migrants and refugees fleeing from the devastating consequences of terrorist activity are entitled to protection, rather than being stigmatised as potential terrorists themselves”.
International borders were not zones of exclusion or exception with respect to a State’s human rights obligations, he said. Among the measures of greatest concern were ethnic and religious profiling, disproportionate collection of often inaccurate biometric data, forced fingerprinting and the criminalisation of irregular migration. The General Assembly should convey the message that the right to reach another State to seek protection from conflict was a cornerstone of international refugee protection. Additionally, the principle of non-refoulement was a fundamental norm in international refugee law. Any State that carried out interception operations was obliged to respect that principle and not return people to countries where they would face human rights violations. Regarding the European Union/Turkey agreement, concerns had been expressed about the absence of case-by-case considerations, including the risk of detention or ill-treatment in Turkey, and he urged the Assembly to keep a close watch on the accord’s implementation. The detention of migrants and refugees should be a measure of last resort and comply with principles of necessity, legality and proportionality, he said, stressing that the detention of children could not be justified.
Delegations asked for recommendations on how to prevent refugees from being stigmatized. They further asked what could be done about the protection of privacy and the unlawful collection of information, as well as about resolving the dilemma for States to both combat terrorism and protect refugees. A related question dealt with how to collect evidence on international crimes perpetrated by fighters who had travelled between countries.
Mr. EMMERSON replied that addressing the stigmatization of refugees and migrants must start with a look at Government actions. A response could not merely be based on security concerns, and profiling based on inaccurate data and criminalization must be avoided. Strict border protection did not, in fact, foster national security. Irregular migration was not a crime; rather, it was a cornerstone of international refugee law and must be protected, he said, calling the links among displacement, refuge-seeking and security threats “overblown and misused for fearmongering”.
He said the international community must always guard against xenophobia and racism, stressing that evidence collection for international crimes came with the same issues as that for war crimes. It must be gathered on the ground, which could be a challenge, and it was not enough to prosecute individuals. On the dilemma between simultaneous respect for refugee law and the protection of citizens from terrorism and security threats, he said measures were underway to reduce risks “prophylactically” through the prudent use of passenger information. The Office of the United Nations High Commissioner for Human Rights (OHCHR) was monitoring that process to ensure it complied with international human rights law, offering a “paradigm” way forward to prevent terrorism without abandoning human rights law.
Participating in the interactive dialogue were representatives of Morocco, Mexico, Iran, Brazil, United States, Iraq, Netherlands, United Kingdom, Turkey and Switzerland, as well as the European Union.
MICHEL FORST, Special Rapporteur on the situation of human rights defenders, said that it was with anger and sadness that he addressed the Committee. Every week three environmental defenders were assassinated, according to Global Witness. The impunity with which those attacks were carried out sent the message that certain lives were worth less than profit.
“Our goals for a sustainable future are doomed to fail if those on the frontline of defending such future are not protected”, he said, reminding States of their duty to respect the right to protect the environment. Policies and mechanisms were urgently needed to empower and protect environmental defenders, he said. He had received a number of requests for action from civil society, human rights institutions, regional networks and United Nations country offices, but had received few responses from States. He thanked those States that had cooperated with his Office and said he looked forward to continuing dialogue with Governments to improve the human rights situation of activists.
During the interactive dialogue, delegates asked about efforts to better protect environmental human rights defenders and about best practices to be shared. A few speakers asked how the Guiding Principles on Business and Human Rights could protect human rights defenders, and about how to improve engagement with all stakeholders at the local, national and international levels. Regarding the Special Rapporteur’s recommendations, delegates asked about the potential content of an international treaty for transnational business enterprises and whether other actors in the environmental field, such as rangers, deserved protection as well.
Mr. FORST said he continued to work with regional organizations in Africa and Europe. Business enterprises were often responsible for attacks on human rights defenders and must be engaged more actively through a “value chain” approach. Best practices could be advanced if championed by States, he said, noting that robust commitments had already been made. The situation of female human rights defenders was a particular concern, he said, reiterating the importance of country visits in his work and encouraging States to both invite him and respond to his requests. Follow-up visits were also important.
Participating in the interactive dialogue were representatives of Norway, Mexico, United States, United Kingdom, Switzerland, Colombia, Iran, Russian Federation, Slovenia, Netherlands, Spain, Brazil, Ireland, Canada, Czech Republic, Poland, France, Morocco and Cameroon, as well as the European Union.
DAVID KAYE, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, presented his report (document A/71/373) resulting from a survey of communication between his mandate and Governments, which had shown major challenges to those freedoms. Old tools of repression and new forms of censorship in the digital age had combined with punitive laws and policies to harass, threaten, chill and punish expression around the world. Article 19 of the International Covenant on Civil and Political Rights, which provided unconditional protection of the right to hold opinions and exchange information of any kind, guided the framework of his mandate, he said, noting that restrictions on the freedom of expression were limited.
Expressing concern about Government laws and practices that did not meet requirements for legitimate restrictions on the freedom of expression, he said Governments often treated national security or public order as a label legitimizing any restriction. Tools used to criminalize criticism were also used against reporters; the reliance on counter-terrorism served as a catch-all to throttle the flow of information and justify the detention of journalists, bloggers and others in the media. The widespread failure to hold perpetrators accountable for attacks on journalists suggested the absence of concern for the media’s role in democratic societies. He expressed hope that States would revise national laws that were inconsistent with human rights law, and take measures to prevent intimidation and reprisals against people who cooperated with the United Nations.
In the ensuing dialogue, delegates asked questions about the freedom of journalists; the balance between security and privacy, particularly in the context of counterterrorism; the balance between freedom of expression and protection of religion, and digital privacy.
Mr. KAYE, to questions about press freedom, replied that the privacy of both journalists and their sources must be secured. On the relationship between freedom of religion and freedom of expression, he cited three processes that promoted cross-cultural and international dialogue - Human Rights Council resolution 16/18, the Rabat Plan of Action, and the Istanbul Process – all of which he hoped would be reinvigorated in the future.
Regarding digital rights, he said that both mass and targeted surveillance must be avoided in order to widen the civic space, stressing that encryption and anonymity were critical to protecting freedoms of expression, association and protest. On the relationship between business and human rights, he said that there were guiding principles for transparency, due diligence and the availability of remedies that could govern the private sector.
Regarding counterterrorism and expression, he recalled that Article 19 provided standards by which to judge whether restrictions were necessary and proportionate, and that protecting freedom of expression was about more than finding a “balance” between two priorities. Governments must demonstrate the proportionality of any restrictions on freedom. As for how to support mechanisms and special procedures, he urged Governments to be responsible when his Office issued communications and called for greater funding to the Office of the High Commissioner, which had been constrained by low resources.
Also participating in the interactive dialogue were representatives of the United States, Iran, Latvia, Mexico, Austria, Indonesia, Iraq, Czech Republic, European Union, Russia, United Kingdom, Brazil, Norway, Ethiopia and Cameroon.
VIRGINIA DANDAN, Independent expert on human rights and international solidarity, presented her report summarizing five regional consultations held in 2015 and 2016 on a draft Declaration on the Right to International Solidarity. Four key issues requiring further analysis had emerged: deriving the right to international solidarity from international law; the nature of that right; the exterritorial obligations of States; and the role of non-State actors in international solidarity. Many had expressed the view that international solidarity was not a legal concept, giving rise to the question of whether that right could be considered a “claimable right”, meaning that it must have identifiable rights holders and duty bearers. On that basis, the right to international solidarity was indeed a claimable right.
As with all human rights, the right to international solidarity could only come into existence as an “enforceable claim” through continuous development and hands-on work by local actors to establish new norms, she said. The International Covenant on Economic, Social and Cultural Rights had been approached with scepticism when first proposed. Today, however, the General Comments interpreting its provisions constituted a “soft law”, establishing the norms and standards in connection with treaty provisions. Further, many States already had institutions and agencies to implement the right to international solidarity; resistance, therefore, was not related to its feasibility or enforceability. She would present the final draft of the Declaration to the Human Rights Council in July 2017.
When the floor opened for questions, Cuba’s representative asked which possible actions could be taken by the United Nations to overcome resistance in some parts of the system to the right to international solidarity. Morocco’s representative observed that South-South cooperation should be considered as an expression of solidarity, and asked the Independent Expert about regional consultations on the draft Declaration on International Solidarity.
Ms. DANDAN replied that details of the regional consultations were available in her previous report to the Human Rights Council. She would deliver the final draft Declaration to the Human Rights Council in June, she said, adding that regional consultations attested to the fact that many States already had agencies to implement the right to international solidarity. Opposition to it did not come from those working on the ground. Human rights were a work in progress that could only come into existence as enforceable claims through work done on the ground by local actors themselves, and by the human rights system of the United Nations, including special procedures. Standards came to life when the need for them arose; States themselves must surmount obstacles to them.