DIGEST OF INTERNATIONAL JURISPRUDENCE ON THE PROTECTION OF HUMAN RIGHTS WHILE COUNTERING TERRORISM

DIGEST OF INTERNATIONAL jurisprudence on THE protection of HUMAN RIGHTS while countering TERRORISM

Waliullah Ahmed Laskar

Even before the terrorist attack in Mumbai on 26 November, 2008 the demand for “stronger and tougher anti-terror laws” kept getting shriller and hasher and was being projected as panacea. It started after the present parliament repealed the Prevention of Terrorism Act, 2002 (POTA), although some provisions of POTA incompatible with human rights laws were incorporated into the Unlawful Activities (Prevention) Act, 1967 (UAPA) by way of amendment. The discourse of ‘tough’ laws is premised entirely on the misrepresentation of facts. It seems that the advocates of ‘tough’ laws want us to believe that there were no terrorist attacks in India when some of the “toughest” (read most draconian) laws in the civilised world were in force such as the Armed Forces (Special Power) Act, 1958 (AFSPA) and its other local variants; the National Security Act, 1980 (NSA); the Terrorist and Disruptive Activities Act, 1987 (TADA); POTA; UAPA and other state enactments. But the reality is that some of the worst terror offences were perpetrated when these “stronger and tougher anti-terror laws” were in force such as hijack of an air India flight from Kathmandu to Kandhahar, Red Fort attack, parliament attack etc.

New law becomes necessary when existing provisions are proved ineffective or counter effective. There are still many draconian and colonial provisions in our general criminal law composed of the Indian Penal Code, 1860 (IPC), the Criminal Procedure Code, 1973 (CrPC) the Evidence Act, 19.. and others. Records of implementation and effective implementation of laws in India is very dismal due to many factors including corruption and inadequacy in both quantity and quality of man-power in the Criminal Justice Administration System and the inefficacy of some of the provisions of law themselves. With registration of First Information Report the justice administration machinery gets into motion. There are hundreds of thousands of cases where police does not register FIR without being greased. It has become the rule in some part of the country. There are also numerous cases of custodial torture and death for not paying gratification by the detainee/arrestee or their relatives to the police. When the state of the things is this it is ridiculous to think that “stronger and tougher anti-terror laws” will free us from crimes and criminals, let alone the question of terrorism.

Terrorism is the worst form of crime. It is just a matter of common sense that the people who love to kill and get killed would not have any fear of law howsoever “tough” and “strong” that law may be. Soon after the terrorist attack in Mumbai, Barak Human Rights Protection Committee (BHRPC) reminded that “it has been seen that in countering terrorism the state often succumbs to the design of the terrorists by failing to respect the human rights of the people. When this happens the terrorism triumphs because the state itself does the act of terror. More over, failure to respect human rights creates breeding ground of terrorism” in a statement issued to condemn the attack. Counter terror laws and practice violating human rights are used by the terrorists to justify their heinous acts and the state cites these terrorist acts to justify its acts of violations of human rights. In the process the ordinary human beings are just sandwiched between state and non state terror. These two forms of terrorism feed on each other and are same for general population.

Unfortunately the Indian State has succumbed to the terror design and gave them the triumph after the Mumbai attack. A bill has been passed amending the UAPA after the November attacks in Mumbai which violates international human rights treaties.

New amendments to anti-terror laws include: 1. Sweeping and overbroad definitions of "acts of terrorism" in violation of the principle of legality, 2. No clear and strict definition of what constitutes "membership" of a "terrorist gang or organization" also violate the principle, 3. Minimum period of detention of persons suspected to be involved in acts of terrorism extended to 30 days from 15 days and the maximum period of detention of such persons to 180 days from 90 days – already far beyond international standards, 4. Denial of bail to foreign nationals who may have entered the country in an unauthorised or illegal manner, except in very exceptional circumstances, also violates international human rights standard, 5. The requirement, in certain circumstances, of accused people to prove their innocence, is in violation of basic principle of universal criminal jurisprudence and natural justice.

Another new legislation has been passed constituting the National Investigating Agency which, inter alia, authorises special courts to close hearings to public without defining or limiting the grounds under which they may do so. This is also in violation of the due process principle.

While introducing the bill for amendment of the UAPA, the government took plea in the preamble of the bill that it is bound under several international instruments to combat terrorism specifically citing some select United Nations Security Council Resolutions such as 1267 (1999), 1333 (2000), 1363 (2001), 1373 (2001), 1390 (2002), 1455 (2003), 1526 (2004), 1566 (2004), 1617 (2005), 1735 (2006) and 1822 (2008). But ignored the dictum of the resolution 1535 (2004) adopted by the Security Council at its 4936th meeting, on 26 March 2004 which reminded the “States that they must ensure that any measures 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”. More over, there are many international instruments acceded or ratified by India which put the state under obligation to adhere to the human rights norms in all its activities including counter terrorism.

When POTA was repealed by the government most of the resolutions cited were in existence. Citation of these resolution and invoking international obligations are nothing but taking recourse to false plea. A look into the jurisprudence of the united nations and regional organizations on the protection of human rights while countering terrorism would show the hypocrisy of the Indian State so far its invocation of the international obligations is concerned. A digest of the jurisprudence compiled by the Office of the High Commissioner of Human Rights is produced bellow:

For full text of the DIGEST click here: http://bhrpc.net.googlepages.com/DigestofJurisprudenceoftheUNandRegio.pdf

DIGEST OF jurisprudence of THE UNITED NATIONS and regional organizations on THE protection of HUMAN RIGHTS while countering TERRORISM

Introduction

This digest is a compilation of findings of judicial and quasi-judicial bodies of the United Nations and regional organizations on the issue of the protection of human rights in the struggle against terrorism. It has been prepared by the United Nations Office of the High Commissioner for Human Rights (OHCHR). Its aim is to assist policy makers and other concerned parties in developing a vision of counter-terrorism strategies that are fully respectful of human rights.

No one doubts that States have legitimate and urgent reasons to take all due measures to eliminate terrorism. Acts and strategies of terrorism aim at the destruction of human rights, democracy, and the rule of law. They destabilise governments and undermine civil society. Governments therefore have not only the right, but also the duty, to protect their nationals and others against terrorist attacks and to bring the perpetrators of such acts to justice. The manner in which counter-terrorism efforts are conducted, however, can have a far-reaching effect on overall respect for human rights.

Human rights law establishes a framework in which terrorism can be effectively countered without infringing on fundamental freedoms. The need to protect human rights in the struggle against terrorism has been highlighted by the UN Secretary-General, the High Commissioner for Human Rights and other leaders in the international community. The objective of this digest is to enhance the understanding of this framework.

Definition of terrorism

Twelve international conventions related to terrorism have been adopted within the UN context. One gap in these conventions is the lack of a clear and commonly-agreed definition of terrorism. A draft comprehensive convention on terrorism is currently being debated at the General Assembly which is grappling with this issue.

Although terrorism has yet to be authoritatively defined, States have already agreed on some of its core elements. On 9 December 1994, the General Assembly adopted the Declaration on Measures to Eliminate International Terrorism, in the annex to resolution 49/60. The Declaration stated that terrorism includes “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes”, and further held that such acts “are in any circumstances unjustifiable, whatever the consideration of a political, philosophical, ideological, racial, ethnic, religious, or other nature that may be invoked to justify them”.

States’ obligations under human rights law

Human rights law has sought to strike a fair balance between legitimate national security concerns and the protection of fundamental freedoms. It acknowledges that States must address serious and genuine security concerns, such as terrorism. The balance is reflected in the International Covenant on Civil and Political Rights (ICCPR), which has been ratified or acceded to by 151 States, as well as in regional human rights treaties such as the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the American Convention on Human Rights (ACHR), and the African Charter on Human and Peoples’ Rights. The “Guidelines on Human Rights and the Fight against Terrorism”, adopted by the Committee of Ministers of the Council of Europe on 11 July 2002, usefully articulate the balances in the context of the European system.

Terrorism may, under very specific conditions that will be considered below, lead to a state of emergency. Human rights law, notably article 4 of the ICCPR, article 15 of the ECHR and article 27 of the ACHR, recognizes that some rights can be derogated from in time of public emergency. (In contrast, the African Charter does not contain a derogation clause). The three conventions, however, mandate that certain rights are not subject to suspension under any circumstances. The three treaties catalogue these non-derogable rights. The list of non-derogable rights contained in the ICCPR includes the right to life; freedom of thought, conscience and religion; freedom from torture and cruel, inhuman or degrading treatment or punishment, and the principles of precision and of non-retroactivity of criminal law (except where a later law imposes a lighter penalty).

Derogation from other rights is only permitted in the special circumstances defined in each of the three treaties. According to the ICCPR and ACHR, any such measures must be of exceptional character, strictly limited in time and to the extent required by the exigencies of the situation, subject to regular review, consistent with other obligations under international law and must not involve discrimination. ECHR requires that such measures be limited to the extent required by the exigencies of the situation, provided that such measures are not inconsistent with other obligations under international law. The three treaties further require informing the Secretary-General of the UN or the relevant regional organization of the provisions from which a State has derogated and the reasons for such derogation.

Building on States’ other obligations under international law, the UN Human Rights Committee has developed a list of elements that, in addition to the rights specified in article 4, cannot be subject to lawful derogation (see General Comment No. 29 in Annex II, below). These elements include the following: all persons deprived of liberty must be treated with respect for their dignity; hostage‑taking, abduction, and unacknowledged detention are prohibited; persons belonging to minorities are to be protected; unlawful deportations or transfers of population are prohibited; and “no declaration of a state of emergency … may be invoked as justification for a State party to engage itself … in propaganda for war, or in advocacy of national, racial or religious hatred that would constitute incitement to discrimination, hostility or violence”. The Human Rights Committee is the body established to monitor the implementation by States Party of the ICCPR and its Protocols.

The right to a fair trial during armed conflict is explicitly guaranteed under international humanitarian law. Under the ACHR (article 27), the right to judicial guarantees essential for the protection of non-derogable rights cannot be suspended, even in time of war, public danger, or emergency. According to the Human Rights Committee in General Comment No. 29, the same principle applies in the context of the ICCPR. As the Committee explained, the principles of legality and the rule of law require that fundamental requirements of fair trial be respected during a state of emergency. The Committee stressed that it is inherent in the protection of rights explicitly recognized as non-derogable that they be secured by procedural guarantees including, often, judicial guarantees.

The provisions of the ICCPR relating to procedural safeguards may never be made subject to measures that would circumvent the protection of non-derogable rights. In particular, any trial possibly leading to the imposition of the death penalty during a state of emergency must conform to the provisions of the ICCPR, including those on fair trial. These include the right to equality before the courts and tribunals; the right to a fair hearing by a competent, independent and impartial tribunal; the presumption of innocence; the right of the accused to be informed of the nature and cause of the charge against him or her promptly and in detail in a language which he or she understands; the right to communicate with counsel of choice; the right to examine witnesses and secure the attendance and examination of witnesses on behalf of the accused; and the right not to be compelled to testify against oneself or to confess guilt.

In addition, the ICCPR, ECHR, ACHR, as well as the African Charter require that, in the exceptional circumstances where it is permitted to limit some rights for legitimate and defined purposes other than emergencies, the principles of necessity and proportionality must be applied. The measures taken must be appropriate and the least intrusive possible to achieve their objective. The discretion granted to certain authorities to act must not be unfettered. The principle of non-discrimination must always be respected and special effort made to safeguard the rights of vulnerable groups. Counter-terrorism measures targeting specific ethnic or religious groups are contrary to human rights and would carry the additional risk of an upsurge of discrimination and racism.

Recent action by the UN Security Council

The Security Council has adopted a number of resolutions concerning terrorism. Most were passed in the context of condemning specific terrorist acts. The condemned acts include the 11 September 2001 attacks in New York, Washington D.C., and Pennsylvania in the United States of America; the attacks in Bali, Indonesia on 12 October 2002; the hostage-taking acts in Moscow, Russian Federation on 23 October 2002; the bomb attack in Kikambala and the attempted missile attack on an airliner departing Mombassa, Kenya on 28 November 2002; and the bomb attack in Bogotá, Colombia on 7 February 2003.

Two Security Council resolutions also established a collective framework for action. In resolution 1269 (1999), the Security Council expressed its deep concern over the increase in acts of international terrorism which endangered the lives and well-being of individuals worldwide as well as the peace and security of all States. The Council condemned all acts of terrorism, irrespective of motive, wherever and by whomever committed, as criminal and unjustifiable, in particular those which could threaten international peace and security. The Council called upon all States to cooperate with one another, to prevent and suppress terrorist acts, to protect their nationals and other persons against terrorist attacks, and to bring to justice the perpetrators of such acts. It further called upon all States to take appropriate measures, in conformity with the relevant provisions of national and international law, including international standards of human rights, before granting refugee status, for the purpose of ensuring that the asylum-seeker has not participated in terrorist acts. The Council urged all States to exchange information in accordance with international and domestic law, and to cooperate on administrative and judicial matters in order to prevent the commission of terrorist acts.

Subsequent resolutions of the Security Council have built on this policy foundation to strengthen the framework for international and national action, particularly following the 11 September 2001 attacks. Resolution 1373 was adopted on 28 September 2001 under Chapter VII of the UN Charter. It established new international legal obligations on States to take measures and to cooperate against terrorism. The measures include criminalizing the collection of funds for terrorist acts and freezing the assets of terrorists; refraining from providing any support to entities or individuals involved in terrorist acts; preventing terrorist acts through early warning and exchange of information with other States; denying safe haven to terrorists; preventing the State’s territory from being used by terrorists or supporters of terrorists; criminalizing terrorist acts and prosecuting supporters of terrorism; assisting other States in prosecuting terrorism and the financing of terrorist acts; preventing the movement of terrorists through effective border controls and effective issuance of identity documents, including measures to prevent their forgery; intensifying and accelerating the exchange of operational information concerning terrorists; and ensuring that refugee status is not abused by terrorists.

Resolution 1373 established a Committee of the Security Council, consisting of all the Council members, known as the Counter-Terrorism Committee (CTC). The Committee is tasked with monitoring implementation of resolution 1373. All States were called upon to report to the Committee on the steps they have taken to implement this resolution.

OHCHR carried out a preliminary review of some of these reports and noted several common tendencies. A large number of reports focus mainly on the legal framework to counter-terrorism, but do not address how these measures operate in practice. Some measures may appear benign but could have a negative impact on the enjoyment of human rights. For instance, some States include in their domestic definition of terrorism certain non-violent activities. Several States have granted law enforcement agents additional search, arrest and detention powers and added limitations on legal representation. The distinction between minors and adults is not always clear. Some laws place severe and unwarranted restrictions on the right to seek asylum, which may violate the non-refoulement right of refugees.

OHCHR has exchanged views with the CTC, briefing it three times since its inception in 2001. In September 2002, the High Commissioner for Human Rights submitted a “Note to the Chair of the Counter-Terrorism Committee: A Human Rights Perspective On Counter-Terrorist Measures”, in which general principles of law were set out to help guide States in protecting human rights in the context of their efforts to eradicate terrorism (see http://www.un.org/Docs/sc/committees/1373/ , Briefings, 24 September 2002). A briefing was also arranged by CTC to the Human Rights Committee in Geneva on 27 March 2003, followed by a briefing of the CTC by a member of the Human Rights Committee on 19 June 2003 in New York.

Recent action by the UN General Assembly

The issue of combating terrorism has been on the agenda of the UN General Assembly for decades. The General Assembly passed numerous resolutions on the issue of human rights and terrorism. The first such resolution was adopted on 14 February 1994. It unequivocally condemned all acts, methods and practices of terrorism in all its forms and manifestations, wherever and by whomever committed, as activities aimed at the destruction of human rights, fundamental freedoms and democracy, threatening the territorial integrity and security of States, destabilizing legitimately constituted Governments, undermining pluralistic civil society and having adverse consequences on the economic and social development of States. It called upon States, in accordance with international standards of human rights, to take all necessary and effective measures to prevent, combat and eliminate terrorism. Resolutions with similar approaches have been adopted in the General Assembly and the Commission on Human Rights since then.

A resolution specifically focusing on the need to protect human rights and fundamental freedoms while countering terrorism was adopted for the first time by the General Assembly on 18 December 2002 (A/RES/57/219). It affirmed that States must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular international human rights, refugee and humanitarian law. The resolution requests the High Commissioner for Human Rights to take a number of actions, including examining the question of the protection of human rights and fundamental freedoms while countering terrorism, taking into account reliable information from all sources; making general recommendations concerning the obligation of States to promote and protect human rights while countering terrorism; and providing assistance to States, upon their request, on the protection of human rights and fundamental freedoms while countering terrorism. A resolution with similar approach was adopted on 25 April 2003 by the Commission on Human Rights at its 59^th session (E/CN.4/RES/2003/68).

Recent action by UN Human Rights Mechanisms

Human rights bodies, whether at the international or regional level, have for many years recognized the legitimate security concerns of States and their duty to protect their citizens from terrorist acts. The focus has been on how this could be done while respecting States’ human rights obligations. An analysis of the issue of human rights and terrorism is contained in the reports of Professor Kalliopi Koufa, the Special Rapporteur on Terrorism and Human Rights of the UN Sub-Commission on the Promotion and Protection of Human Rights.

On 22 November 2001, the UN Committee against Torture issued a statement (CAT/C/XXVII/Misc.7) reminding States parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the non-derogable nature of most of the obligations undertaken by them in ratifying the Convention. Condemning utterly the terrorist attacks of 11 September and expressing “profound condolences to the victims, who were nationals of some 80 countries, including many States parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, the Committee highlighted the obligations contained in article 2 (prohibition of torture under all circumstances), article 15 (prohibiting confessions extorted by torture being admitted in evidence, except against the torturer), and article 16 (prohibiting cruel, inhuman or degrading treatment or punishment). The Committee stated that such provisions must be observed in all circumstances, and expressed its confidence that “whatever responses to the threat of international terrorism are adopted by States parties, such responses will be in conformity with the obligations undertaken by them in ratifying the Convention against Torture”.

On 10 December 2001, on the occasion of Human Rights Day, 17 special rapporteurs and independent experts of the UN Commission on Human Rights issued a joint statement reminding States of their obligations under international law to uphold human rights and fundamental freedoms in the context of the aftermath of the tragic events of 11 September 2001. The special rapporteurs and experts expressed their deep concern over anti-terrorist and national security legislation and other measures adopted or contemplated that might infringe upon the enjoyment by all of their human rights and fundamental freedoms. They warned against human rights violations and measures that have targeted particular groups such as human rights defenders, migrants, asylum-seekers and refugees, religious and ethnic minorities, political activists and the media. They addressed their concerns to the relevant authorities, requesting them to take appropriate action to guarantee respect for human rights and fundamental freedoms. The special rapporteurs and experts particularly reminded States of the fundamental principle of non‑discrimination under which everyone is entitled to all rights and freedoms “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. Since then, several Special Rapporteurs intervened on individual cases of concern. These include the Special Rapporteur against Torture, the Special Representative on Human Rights Defenders, and the Special Rapporteur on the Independence of Judges and Lawyers, in addition to special rapporteurs with country-specific mandates who have raised relevant concerns.

On 8 March 2002, the UN Committee on the Elimination of Racial Discrimination issued a statement recalling that the prohibition of racial discrimination is a peremptory norm of international law from which no derogation is permitted, and requesting States and international organizations to ensure that measures taken in the struggle against terrorism do not discriminate in purpose or effect on grounds of race, colour, descent or national or ethnic origin. The Committee insisted that the principle of non-discrimination must be observed in all areas, in particular in matters concerning liberty, security and dignity of the person, equality before tribunals and due process of law, as well as international cooperation in judicial and police matters in these fields.

The Human Rights Committee systematically raises questions during its examination of State reports regarding the compatibility of measures taken by States to counter terrorism with States’ obligations under the ICCPR. Many of the Committee’s concluding observations on this issue are contained in this digest.

The Report of the Policy Working Group on the United Nations and Terrorism

In October 2001, the UN Secretary-General established the Policy Working Group on the United Nations and Terrorism. The aim of the Working Group was to identify the longer-term implications and broad policy dimensions of terrorism for the United Nations and to formulate recommendations on steps that the United Nations system might take to address the issue. On 6 August 2002, the Secretary-General submitted the report of the Policy Working Group to the General Assembly and the Security Council (A/57/273 – S/2002/875).

The report observed that the United Nations must ensure that the protection of human rights is conceived as an essential concern. Terrorism often thrives where human rights are violated, which adds to the need to strengthen action to combat violations of human rights. Terrorism itself should also be understood as an assault on basic rights. In all cases, the fight against terrorism must be respectful of international human rights obligations. The report contained the following four human rights-related recommendations:

· All relevant parts of the United Nations system should emphasize that key human rights must always be protected and may never be derogated from. The independence of the judiciary and the existence of legal remedies are essential elements for the protection of fundamental human rights in all situations involving counter-terrorism measures.

· The Department of Public Information should be requested, in consultation with the Office of the UN High Commissioner for Human Rights, to publish a digest of the core jurisprudence of international and regional human rights bodies on the protection of human rights in the struggle against terrorism. Governments and human rights organizations could find such a compilation of direct use in the development of counter-terrorism policies.

· The High Commissioner for Human Rights should convene a consultation of international, regional and sub-regional organizations and non-governmental organizations on the protection of human rights in the struggle against terrorism. Smaller, regional gatherings should also be considered. The Office of the High Commissioner should also make maximum use of its field presences and its regional experts, as well as the findings of the human rights treaty bodies and special rapporteurs.

· Together with the High Commissioner for Human Rights, a dialogue should be maintained with the Counter-Terrorism Committee on the importance of ensuring respect for human rights in the implementation of legislation, policies and practices to combat terrorism.

The Digest

This digest is prepared in implementation of the recommendation of the report of the Policy Working Group on the United Nations and Terrorism mentioned above. It contains a selection of relevant observations and decisions of international and regional human rights bodies on issues related to human rights and terrorism.

The digest is divided into three chapters: general observations, states of emergency, and specific rights. Each section starts with a short introduction, followed by some of the relevant principles developed by the United Nations system. Illustrative jurisprudence from regional systems then follows. The cases selected from the regional systems represent the most recent cases. Citations of previous judgments are omitted. The digest does not claim to be comprehensive.

The digest is followed by two annexes. The first contains the text of relevant provisions of international instruments that are mentioned in the digest. The second contains the full text of General Comment 29 of the UN Human Rights Committee, because of its high relevance to this discussion.

OHCHR hopes that this publication will help policy makers, including government officials, parliamentarians, judges, lawyers and human rights defenders, in developing counter-terrorism strategies that are fully respectful of human rights.

Contents

INTRODUCTION

I. GENERAL CONSIDERATIONS

A. State duty to protect

B. Compatibility of counter-terrorism measures with human rights obligations

C. Relation of human rights and international humanitarian law in their application to counter-terrorism measures

II. STATES OF EMERGENCY

A. Rules concerning derogation measures

B. Procedural aspects

III. SPECIFIC RIGHTS

A. Right to life

B. Prohibition of torture and cruel, inhuman or degrading treatment

C. Conditions of detention

D. Pre-trial and administrative detention

D.1 Judicial control and prohibition of arbitrary detention

D.2 Charges and right to be informed of the reasons for arrest

D.3 Prolonged pre-trial or administrative detention

D.4 Incommunicado detention

E. Right to fair trial

E.1 Presumption of innocence and other rights

E.2 Military and other special courts

E.3 Right to appeal

F. Principle of legality (nullum crimen, nulla poena sine lege)

G. Access to counsel

H. Freedom of thought, conscience and belief

I. Right to political participation, freedom of opinion, expression and assembly

J. Freedom of movement

K. Freedom from discrimination

L. Treatment of non-nationals (including asylum, expulsion and non-refoulement)

Annex I: Relevant provisions of international instruments

Annex II: General Comment No. 29 of the UN Human Rights Committee

To download the pdf version of the full text of the digest please click the link given bellow or copy and paste it in your browser: http://bhrpc.net.googlepages.com/DigestofJurisprudenceoftheUNandRegio.pdf

DIGEST OF INTERNATIONAL JURISPRUDENCE ON THE PROTECTION OF HUMAN RIGHTS WHILE COUNTERING TERRORISM

DIGEST OF INTERNATIONAL jurisprudence on THE protection of HUMAN RIGHTS while countering TERRORISM

 

Waliullah Ahmed Laskar

 

Even before the terrorist attack in Mumbai on 26 November, 2008 the demand for “stronger and tougher anti-terror laws” kept getting shriller and hasher and was being projected as panacea. It started after the present parliament repealed the Prevention of Terrorism Act, 2002  (POTA), although some provisions of POTA incompatible with human rights laws were incorporated into the Unlawful Activities (Prevention) Act, 1967 (UAPA) by way of amendment. The discourse of ‘tough’ laws is premised entirely on the misrepresentation of facts. It seems that the advocates of ‘tough’ laws want us to believe that there were no terrorist attacks in India when some of the “toughest” (read most draconian) laws in the civilised world were in force such as the Armed Forces (Special Power) Act, 1958 (AFSPA) and its other local variants; the National Security Act, 1980 (NSA); the Terrorist and Disruptive Activities Act, 1987 (TADA); POTA; UAPA and other state enactments. But the reality is that some of the worst terror offences were perpetrated when these “stronger and tougher anti-terror laws” were in force such as hijack of an air India flight from Kathmandu to Kandhahar, Red Fort attack, parliament attack etc.

 

New law becomes necessary when existing provisions are proved ineffective or counter effective. There are still many draconian and colonial provisions in our general criminal law composed of the Indian Penal Code, 1860 (IPC), the Criminal Procedure Code, 1973 (CrPC) the Evidence Act, 19.. and others. Records of implementation and effective implementation of laws in India is very dismal due to many factors including corruption and inadequacy in both quantity and quality of man-power in the Criminal Justice Administration System and the inefficacy of some of the provisions of law themselves. With registration of First Information Report the justice administration machinery gets into motion. There are hundreds of thousands of cases where police does not register FIR without being greased. It has become the rule in some part of the country. There are also numerous cases of custodial torture and death for not paying gratification by the detainee/arrestee or their relatives to the police.   When the state of the things is this it is ridiculous to think that “stronger and tougher anti-terror laws” will free us from crimes and criminals, let alone the question of terrorism.

 

Terrorism is the worst form of crime. It is just a matter of common sense that the people who love to kill and get killed would not have any fear of law howsoever “tough” and “strong” that law may be. Soon after the terrorist attack in Mumbai, Barak Human Rights Protection Committee (BHRPC) reminded that “it has been seen that in countering terrorism the state often succumbs to the design of the terrorists by failing to respect the human rights of the people. When this happens the terrorism triumphs because the state itself does the act of terror. More over, failure to respect human rights creates breeding ground of terrorism” in a statement issued to condemn the attack. Counter terror laws and practice violating human rights are used by the terrorists to justify their heinous acts and the state cites these terrorist acts to justify its acts of violations of human rights. In the process the ordinary human beings are just sandwiched between state and non state terror. These two forms of terrorism feed on each other and are same for general population.

 

Unfortunately the Indian State has succumbed to the terror design and gave them the triumph after the Mumbai attack. A bill has been passed amending the UAPA after the November attacks in Mumbai which violates international human rights treaties.

New amendments to anti-terror laws include: 1. Sweeping and overbroad definitions of "acts of terrorism" in violation of the principle of legality, 2. No clear and strict definition of what constitutes "membership" of a "terrorist gang or organization" also violate the principle, 3. Minimum period of detention of persons suspected to be involved in acts of terrorism extended to 30 days from 15 days and the maximum period of detention of such persons to 180 days from 90 days – already far beyond international standards, 4. Denial of bail to foreign nationals who may have entered the country in an unauthorised or illegal manner, except in very exceptional circumstances, also violates international human rights standard, 5. The requirement, in certain circumstances, of accused people to prove their innocence, is in violation of basic principle of universal criminal jurisprudence and natural justice.

 

Another new legislation has been passed constituting the National Investigating Agency which, inter alia, authorises special courts to close hearings to public without defining or limiting the grounds under which they may do so. This is also in violation of the due process principle.

 

While introducing the bill for amendment of the UAPA, the government took plea in the preamble of the bill that it is bound under several international instruments to combat terrorism specifically citing some select United Nations Security Council Resolutions such as 1267 (1999), 1333 (2000), 1363 (2001), 1373 (2001), 1390 (2002), 1455 (2003), 1526 (2004), 1566 (2004), 1617 (2005), 1735 (2006) and 1822 (2008). But ignored the dictum of the resolution 1535 (2004) adopted by the Security Council at its 4936th meeting, on 26 March 2004 which reminded the “States that they must ensure that any measures 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”. More over, there are many international instruments acceded or ratified by India which put the state under obligation to adhere to the human rights norms in all its activities including counter terrorism.  

 

When POTA was repealed by the government most of the resolutions cited were in existence. Citation of these resolution and invoking international obligations are nothing but taking recourse to false plea. A look into the jurisprudence of the united nations and regional organizations on the protection of human rights while countering terrorism would show the hypocrisy of the Indian State so far its invocation of the international obligations is concerned. A digest of the jurisprudence compiled by the Office of the High Commissioner of Human Rights is produced bellow:

For full text of the DIGEST click here: http://bhrpc.net.googlepages.com/DigestofJurisprudenceoftheUNandRegio.pdf

DIGEST OF jurisprudence of THE UNITED NATIONS and regional organizations on THE protection of HUMAN RIGHTS while countering TERRORISM

 

 

Introduction

 

This digest is a compilation of findings of judicial and quasi-judicial bodies of the United Nations and regional organizations on the issue of the protection of human rights in the struggle against terrorism.  It has been prepared by the United Nations Office of the High Commissioner for Human Rights (OHCHR).  Its aim is to assist policy makers and other concerned parties in developing a vision of counter-terrorism strategies that are fully respectful of human rights.

 

No one doubts that States have legitimate and urgent reasons to take all due measures to eliminate terrorism.  Acts and strategies of terrorism aim at the destruction of human rights, democracy, and the rule of law.  They destabilise governments and undermine civil society.  Governments therefore have not only the right, but also the duty, to protect their nationals and others against terrorist attacks and to bring the perpetrators of such acts to justice.  The manner in which counter-terrorism efforts are conducted, however, can have a far-reaching effect on overall respect for human rights.

 

Human rights law establishes a framework in which terrorism can be effectively countered without infringing on fundamental freedoms.  The need to protect human rights in the struggle against terrorism has been highlighted by the UN Secretary-General, the High Commissioner for Human Rights and other leaders in the international community. The objective of this digest is to enhance the understanding of this framework.

 

Definition of terrorism

Twelve international conventions related to terrorism have been adopted within the UN context.  One gap in these conventions is the lack of a clear and commonly-agreed definition of terrorism. A draft comprehensive convention on terrorism is currently being debated at the General Assembly which is grappling with this issue. 

 

Although terrorism has yet to be authoritatively defined, States have already agreed on some of its core elements. On 9 December 1994, the General Assembly adopted the Declaration on Measures to Eliminate International Terrorism, in the annex to resolution 49/60.  The Declaration stated that terrorism includes “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes”, and further held that such acts “are in any circumstances unjustifiable, whatever the consideration of a political, philosophical, ideological, racial, ethnic, religious, or other nature that may be invoked to justify them”.

 

States’ obligations under human rights law

Human rights law has sought to strike a fair balance between legitimate national security concerns and the protection of fundamental freedoms. It acknowledges that States must address serious and genuine security concerns, such as terrorism. The balance is reflected in the International Covenant on Civil and Political Rights (ICCPR), which has been ratified or acceded to by 151 States, as well as in regional human rights treaties such as the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the American Convention on Human Rights (ACHR), and the African Charter on Human and Peoples’ Rights.  The “Guidelines on Human Rights and the Fight against Terrorism”, adopted by the Committee of Ministers of the Council of Europe on 11 July 2002, usefully articulate the balances in the context of the European system.

 

Terrorism may, under very specific conditions that will be considered below, lead to a state of emergency.  Human rights law, notably article 4 of the ICCPR, article 15 of the ECHR and article 27 of the ACHR, recognizes that some rights can be derogated from in time of public emergency.  (In contrast, the African Charter does not contain a derogation clause).  The three conventions, however, mandate that certain rights are not subject to suspension under any circumstances.  The three treaties catalogue these non-derogable rights. The list of non-derogable rights contained in the ICCPR includes the right to life; freedom of thought, conscience and religion; freedom from torture and cruel, inhuman or degrading treatment or punishment, and the principles of precision and of non-retroactivity of criminal law (except where a later law imposes a lighter penalty).

 

Derogation from other rights is only permitted in the special circumstances defined in each of the three treaties.  According to the ICCPR and ACHR, any such measures must be of exceptional character, strictly limited in time and to the extent required by the exigencies of the situation, subject to regular review, consistent with other obligations under international law and must not involve discrimination. ECHR requires that such measures be limited to the extent required by the exigencies of the situation, provided that such measures are not inconsistent with other obligations under international law. The three treaties further require informing the Secretary-General of the UN or the relevant regional organization of the provisions from which a State has derogated and the reasons for such derogation. 

 

Building on States’ other obligations under international law, the UN Human Rights Committee has developed a list of elements that, in addition to the rights specified in article 4, cannot be subject to lawful derogation (see General Comment No. 29 in Annex II, below).  These elements include the following:  all persons deprived of liberty must be treated with respect for their dignity; hostage‑taking, abduction, and unacknowledged detention are prohibited; persons belonging to minorities are to be protected;  unlawful deportations or transfers of population are prohibited; and “no declaration of a state of emergency … may be invoked as justification for a State party to engage itself … in propaganda for war, or in advocacy of national, racial or religious hatred that would constitute incitement to discrimination, hostility or violence”. The Human Rights Committee is the body established to monitor the implementation by States Party of the ICCPR and its Protocols.

 

The right to a fair trial during armed conflict is explicitly guaranteed under international humanitarian law. Under the ACHR (article 27), the right to judicial guarantees essential for the protection of non-derogable rights cannot be suspended, even in time of war, public danger, or emergency.  According to the Human Rights Committee in General Comment No. 29, the same principle applies in the context of the ICCPR. As the Committee explained, the principles of legality and the rule of law require that fundamental requirements of fair trial be respected during a state of emergency.  The Committee stressed that it is inherent in the protection of rights explicitly recognized as non-derogable that they be secured by procedural guarantees including, often, judicial guarantees. 

 

The provisions of the ICCPR relating to procedural safeguards may never be made subject to measures that would circumvent the protection of non-derogable rights.  In particular, any trial possibly leading to the imposition of the death penalty during a state of emergency must conform to the provisions of the ICCPR, including those on fair trial.  These include the right to equality before the courts and tribunals; the right to a fair hearing by a competent, independent and impartial tribunal; the presumption of innocence; the right of the accused to be informed of the nature and cause of the charge against him or her promptly and in detail in a language which he or she understands; the right to communicate with counsel of choice; the right to examine witnesses and secure the attendance and examination of witnesses on behalf of the accused; and the right not to be compelled to testify against oneself or to confess guilt.

 

In addition, the ICCPR, ECHR, ACHR, as well as the African Charter require that, in the exceptional circumstances where it is permitted to limit some rights for legitimate and defined purposes other than emergencies, the principles of necessity and proportionality must be applied. The measures taken must be appropriate and the least intrusive possible to achieve their objective.  The discretion granted to certain authorities to act must not be unfettered.  The principle of non-discrimination must always be respected and special effort made to safeguard the rights of vulnerable groups.  Counter-terrorism measures targeting specific ethnic or religious groups are contrary to human rights and would carry the additional risk of an upsurge of discrimination and racism.

 

Recent action by the UN Security Council

The Security Council has adopted a number of resolutions concerning terrorism. Most were passed in the context of condemning specific terrorist acts. The condemned acts include the 11 September 2001 attacks in New York, Washington D.C., and Pennsylvania in the United States of America; the attacks in Bali, Indonesia on 12 October 2002; the hostage-taking acts in Moscow, Russian Federation on 23 October 2002; the bomb attack in Kikambala and the attempted missile attack on an airliner departing Mombassa, Kenya on 28 November 2002; and the bomb attack in Bogotá, Colombia on 7 February 2003.

 

Two Security Council resolutions also established a collective framework for action. In resolution 1269 (1999), the Security Council expressed its deep concern over the increase in acts of international terrorism which endangered the lives and well-being of individuals worldwide as well as the peace and security of all States.  The Council condemned all acts of terrorism, irrespective of motive, wherever and by whomever committed, as criminal and unjustifiable, in particular those which could threaten international peace and security.  The Council called upon all States to cooperate with one another, to prevent and suppress terrorist acts, to protect their nationals and other persons against terrorist attacks, and to bring to justice the perpetrators of such acts.  It further called upon all States to take appropriate measures, in conformity with the relevant provisions of national and international law, including international standards of human rights, before granting refugee status, for the purpose of ensuring that the asylum-seeker has not participated in terrorist acts.  The Council urged all States to exchange information in accordance with international and domestic law, and to cooperate on administrative and judicial matters in order to prevent the commission of terrorist acts.

 

Subsequent resolutions of the Security Council have built on this policy foundation to strengthen the framework for international and national action, particularly following the 11 September 2001 attacks.  Resolution 1373 was adopted on 28 September 2001 under Chapter VII of the UN Charter. It established new international legal obligations on States to take measures and to cooperate against terrorism. The measures include criminalizing the collection of funds for terrorist acts and freezing the assets of terrorists; refraining from providing any support to entities or individuals involved in terrorist acts; preventing terrorist acts through early warning and exchange of information with other States; denying safe haven to terrorists; preventing the State’s territory from being used by terrorists or supporters of terrorists; criminalizing terrorist acts and prosecuting supporters of terrorism; assisting other States in prosecuting terrorism and the financing of terrorist acts; preventing the movement of terrorists through effective border controls and effective issuance of identity documents, including measures to prevent their forgery; intensifying and accelerating the exchange of operational information concerning terrorists; and ensuring that refugee status is not abused by terrorists.

 

Resolution 1373 established a Committee of the Security Council, consisting of all the Council members, known as the Counter-Terrorism Committee (CTC). The Committee is tasked with monitoring implementation of resolution 1373.  All States were called upon to report to the Committee on the steps they have taken to implement this resolution.

 

OHCHR carried out a preliminary review of some of these reports and noted several common tendencies. A large number of reports focus mainly on the legal framework to counter-terrorism, but do not address how these measures operate in practice. Some measures may appear benign but could have a negative impact on the enjoyment of human rights. For instance, some States include in their domestic definition of terrorism certain non-violent activities. Several States have granted law enforcement agents additional search, arrest and detention powers and added limitations on legal representation. The distinction between minors and adults is not always clear. Some laws place severe and unwarranted restrictions on the right to seek asylum, which may violate the non-refoulement right of refugees.

 

OHCHR has exchanged views with the CTC, briefing it three times since its inception in 2001.  In September 2002, the High Commissioner for Human Rights submitted a “Note to the Chair of the Counter-Terrorism Committee: A Human Rights Perspective On Counter-Terrorist Measures”, in which general principles of law were set out to help guide States in protecting human rights in the context of their efforts to eradicate terrorism (see http://www.un.org/Docs/sc/committees/1373/ , Briefings, 24 September 2002). A briefing was also arranged by CTC to the Human Rights Committee in Geneva on 27 March 2003, followed by a briefing of the CTC by a member of the Human Rights Committee on 19 June 2003 in New York.

 

Recent action by the UN General Assembly

The issue of combating terrorism has been on the agenda of the UN General Assembly for decades. The General Assembly passed numerous resolutions on the issue of human rights and terrorism. The first such resolution was adopted on 14 February 1994. It unequivocally condemned all acts, methods and practices of terrorism in all its forms and manifestations, wherever and by whomever committed, as activities aimed at the destruction of human rights, fundamental freedoms and democracy, threatening the territorial integrity and security of States, destabilizing legitimately constituted Governments, undermining pluralistic civil society and having adverse consequences on the economic and social development of States. It called upon States, in accordance with international standards of human rights, to take all necessary and effective measures to prevent, combat and eliminate terrorism. Resolutions with similar approaches have been adopted in the General Assembly and the Commission on Human Rights since then.

 

A resolution specifically focusing on the need to protect human rights and fundamental freedoms while countering terrorism was adopted for the first time by the General Assembly on 18 December 2002 (A/RES/57/219).  It affirmed that States must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular international human rights, refugee and humanitarian law.  The resolution requests the High Commissioner for Human Rights to take a number of actions, including examining the question of the protection of human rights and fundamental freedoms while countering terrorism, taking into account reliable information from all sources; making general recommendations concerning the obligation of States to promote and protect human rights while countering terrorism; and providing assistance to States, upon their request, on the protection of human rights and fundamental freedoms while countering terrorism. A resolution with similar approach was adopted on 25 April 2003 by the Commission on Human Rights at its 59^th session (E/CN.4/RES/2003/68).

 

Recent action by UN Human Rights Mechanisms

Human rights bodies, whether at the international or regional level, have for many years recognized the legitimate security concerns of States and their duty to protect their citizens from terrorist acts. The focus has been on how this could be done while respecting States’ human rights obligations. An analysis of the issue of human rights and terrorism is contained in the reports of Professor Kalliopi Koufa, the Special Rapporteur on Terrorism and Human Rights of the UN Sub-Commission on the Promotion and Protection of Human Rights.

 

On 22 November 2001, the UN Committee against Torture issued a statement (CAT/C/XXVII/Misc.7) reminding States parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the non-derogable nature of most of the obligations undertaken by them in ratifying the Convention.  Condemning utterly the terrorist attacks of 11 September and expressing “profound condolences to the victims, who were nationals of some 80 countries, including many States parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, the Committee highlighted the obligations contained in article 2 (prohibition of torture under all circumstances), article 15 (prohibiting confessions extorted by torture being admitted in evidence, except against the torturer), and article 16 (prohibiting cruel, inhuman or degrading treatment or punishment).  The Committee stated that such provisions must be observed in all circumstances, and expressed its confidence that “whatever responses to the threat of international terrorism are adopted by States parties, such responses will be in conformity with the obligations undertaken by them in ratifying the Convention against Torture”.

 

On 10 December 2001, on the occasion of Human Rights Day, 17 special rapporteurs and independent experts of the UN Commission on Human Rights issued a joint statement reminding States of their obligations under international law to uphold human rights and fundamental freedoms in the context of the aftermath of the tragic events of 11 September 2001.  The special rapporteurs and experts expressed their deep concern over anti-terrorist and national security legislation and other measures adopted or contemplated that might infringe upon the enjoyment by all of their human rights and fundamental freedoms.  They warned against human rights violations and measures that have targeted particular groups such as human rights defenders, migrants, asylum-seekers and refugees, religious and ethnic minorities, political activists and the media.  They addressed their concerns to the relevant authorities, requesting them to take appropriate action to guarantee respect for human rights and fundamental freedoms.  The special rapporteurs and experts particularly reminded States of the fundamental principle of non‑discrimination under which everyone is entitled to all rights and freedoms “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.  Since then, several Special Rapporteurs intervened on individual cases of concern.  These include the Special Rapporteur against Torture, the Special Representative on Human Rights Defenders, and the Special Rapporteur on the Independence of Judges and Lawyers, in addition to special rapporteurs with country-specific mandates who have raised relevant concerns.

 

On 8 March 2002, the UN Committee on the Elimination of Racial Discrimination issued a statement recalling that the prohibition of racial discrimination is a peremptory norm of international law from which no derogation is permitted, and requesting States and international organizations to ensure that measures taken in the struggle against terrorism do not discriminate in purpose or effect on grounds of race, colour, descent or national or ethnic origin. The Committee insisted that the principle of non-discrimination must be observed in all areas, in particular in matters concerning liberty, security and dignity of the person, equality before tribunals and due process of law, as well as international cooperation in judicial and police matters in these fields.

 

The Human Rights Committee systematically raises questions during its examination of State reports regarding the compatibility of measures taken by States to counter terrorism with States’ obligations under the ICCPR.  Many of the Committee’s concluding observations on this issue are contained in this digest.

 

The Report of the Policy Working Group on the United Nations and Terrorism

In October 2001, the UN Secretary-General established the Policy Working Group on the United Nations and Terrorism. The aim of the Working Group was to identify the longer-term implications and broad policy dimensions of terrorism for the United Nations and to formulate recommendations on steps that the United Nations system might take to address the issue. On 6 August 2002, the Secretary-General submitted the report of the Policy Working Group to the General Assembly and the Security Council (A/57/273 – S/2002/875).

 

The report observed that the United Nations must ensure that the protection of human rights is conceived as an essential concern. Terrorism often thrives where human rights are violated, which adds to the need to strengthen action to combat violations of human rights. Terrorism itself should also be understood as an assault on basic rights. In all cases, the fight against terrorism must be respectful of international human rights obligations. The report contained the following four human rights-related recommendations:

·        All relevant parts of the United Nations system should emphasize that key human rights must always be protected and may never be derogated from. The independence of the judiciary and the existence of legal remedies are essential elements for the protection of fundamental human rights in all situations involving counter-terrorism measures.

·        The Department of Public Information should be requested, in consultation with the Office of the UN High Commissioner for Human Rights, to publish a digest of the core jurisprudence of international and regional human rights bodies on the protection of human rights in the struggle against terrorism. Governments and human rights organizations could find such a compilation of direct use in the development of counter-terrorism policies.

·        The High Commissioner for Human Rights should convene a consultation of international, regional and sub-regional organizations and non-governmental organizations on the protection of human rights in the struggle against terrorism. Smaller, regional gatherings should also be considered. The Office of the High Commissioner should also make maximum use of its field presences and its regional experts, as well as the findings of the human rights treaty bodies and special rapporteurs.

·        Together with the High Commissioner for Human Rights, a dialogue should be maintained with the Counter-Terrorism Committee on the importance of ensuring respect for human rights in the implementation of legislation, policies and practices to combat terrorism.

The Digest

This digest is prepared in implementation of the recommendation of the report of the Policy Working Group on the United Nations and Terrorism mentioned above. It contains a selection of relevant observations and decisions of international and regional human rights bodies on issues related to human rights and terrorism.

 

The digest is divided into three chapters: general observations, states of emergency, and specific rights. Each section starts with a short introduction, followed by some of the relevant principles developed by the United Nations system.  Illustrative jurisprudence from regional systems then follows. The cases selected from the regional systems represent the most recent cases. Citations of previous judgments are omitted. The digest does not claim to be comprehensive.

 

The digest is followed by two annexes. The first contains the text of relevant provisions of international instruments that are mentioned in the digest. The second contains the full text of General Comment 29 of the UN Human Rights Committee, because of its high relevance to this discussion.

 

OHCHR hopes that this publication will help policy makers, including government officials, parliamentarians, judges, lawyers and human rights defenders, in developing counter-terrorism strategies that are fully respectful of human rights.

 

Contents

 

 

INTRODUCTION

 

I. GENERAL CONSIDERATIONS

 

A. State duty to protect 

B. Compatibility of counter-terrorism measures with human rights obligations

C. Relation of human rights and international humanitarian law in their application to counter-terrorism measures

 

 

II. STATES OF EMERGENCY

 

A. Rules concerning derogation measures

B. Procedural aspects

 

 

III. SPECIFIC RIGHTS

 

A. Right to life

B. Prohibition of torture and cruel, inhuman or degrading treatment

C. Conditions of detention

D. Pre-trial and administrative detention

D.1 Judicial control and prohibition of arbitrary detention

D.2 Charges and right to be informed of the reasons for arrest

D.3 Prolonged pre-trial or administrative detention

D.4 Incommunicado detention

E. Right to fair trial

            E.1 Presumption of innocence and other rights

E.2 Military and other special courts

E.3 Right to appeal

F. Principle of legality (nullum crimen, nulla poena sine lege)

G. Access to counsel

H. Freedom of thought, conscience and belief

I. Right to political participation, freedom of opinion, expression and assembly

J. Freedom of movement

K. Freedom from discrimination

L. Treatment of non-nationals (including asylum, expulsion and non-refoulement)

 

Annex I:  Relevant provisions of international instruments

Annex II: General Comment No. 29 of the UN Human Rights Committee

 

 

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