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HUMAN RIGHTS AND TERRORISM | contents | < previous | next > |

APPENDICES
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 appendix i
Background paper
“Dilemmas with regard to terrorism and human rights”

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 As a preparation for the seminar, a background paper was sent to the participants in which the OSCE Chairmanship outlines some dilemmas between respect for human rights and effectively fighting terrorism.
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Introduction
Terrorism is an evil that now affects a growing number of countries on a regular basis. Acts of terrorism impair or even nullify the enjoyment of human rights and fundamental freedoms of innocent civilians. Against this background, a policy of actively fighting terrorism also serves to promote and protect human rights and fundamental freedoms.
From the same human rights perspective, however, there are limitations as to what methods can be used to fight terrorism. Terrorists, no matter how despicable their behaviour, are human beings and as such they themselves have human rights and fundamental freedoms. Admittedly, in times of public emergency, as is often the case when a state is confronted with a major terrorist attack, it is possible to temporarily derogate from certain human rights and fundamental freedoms. But there are human rights from which derogation is never permitted under any circumstances.
Tensions between the need for an effective policy against terrorism, and respect for human rights and fundamental freedoms, are very real. It is well understood that lack of respect for human rights and fundamental freedoms can render any measures against terrorism ineffective. It severely undermines the moral authority of those fighting terrorism. Ultimately, the means used to fight terrorism may be just as despicable as the terrorist acts themselves. However, there are also grey areas that raise dilemmas. This paper focuses on a number of these grey areas.
Definition problem
Attempts to arrive at a universal definition of terrorism have not been successful. Article 2 of the International Convention for the Suppression of the Financing of Terrorism, as adopted by the General Assembly on 9 December 1999, gives some idea of what “terrorism” is taken to mean. It reads as follows:
  1. Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and willingly, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out:
    1. an act that constitutes an offence within the scope of and as defined in one of the treaties listed in the Annex; or
    2. any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.
The treaties listed in the Annex relate to the unlawful seizure of aircraft, to unlawful acts against the safety of civil aviation, to crimes against internationally protected persons, to the taking of hostages, to the physical protection of nuclear material, to unlawful acts against the safety of maritime navigation or of fixed platforms, and to terrorist bombings.
Although this provision gives a general idea of what terrorism entails, it is still relatively vague. The question therefore arises of whether the international community actually agrees on what exactly the fight against terrorism is aimed at. Some states have proposed that an exception be made for acts that can be seen as acts of liberation directed against a repressive regime. Moreover, serious crime can have the effect of intimidating a population, although it would not normally be considered terrorism. In view of these difficulties, it is unlikely that the international community will soon reach agreement on a more precise definition.

Dilemmas regarding criminal law and the human rights of suspected terrorists
In neither the UN Covenant on Civil and Political Rights, nor the European Convention on Human Rights, is the right to a fair trial included in the list of non-derogable rights. At the same time, in its General Comment No. 29 of 31 August 2001, the Human Rights Committee stated that “States Parties may in no circumstances invoke art. 4 of the Covenant as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance … by deviating from fundamental principles of fair trial, including the presumption of innocence”. Assuming that it is fair to say that in the case of severe terrorist acts, a state can invoke a state of public emergency, what are the implications for the type of criminal procedures that can be applied against terrorists?

Questions:
  • Can alleged terrorists be detained indefinitely? How does this relate to the non-derogable right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment?
  • Is it necessary for such detention to be based on a concrete accusation or can it be based on general indications (e.g. the person belongs to a certain group)?
  • When should the arrested or detained person be brought before a judge?
  • Is it possible to deal with terrorists outside the normal criminal law system (e.g. special tribunals)?
Dilemmas regarding aliens law and the human rights of suspected terrorists
Terrorists normally have some ulterior political motive. In other words, they represent some kind of political ideology. Sometimes, this ideology is connected with a region or with a certain religion or belief. It may then be tempting to single out, as an immediate reaction in the context of the fight against terrorism, members of a group belonging to the nationalities or adhering to the religions or beliefs involved. If these are non-nationals of the State concerned, this may lead to a number of measures in the field of aliens law.
It is generally understood that human rights and fundamental freedoms apply to all persons within the territory and subject to the jurisdiction of the State concerned. This includes non-nationals. Tension may therefore arise between an anti-terrorist policy that singles out certain nationalities, or certain religions or beliefs, and, for example, the general right to non-discrimination. However, the right to non-discrimination is not a non-derogable right.

Questions:
  • Are measures singling out certain nationalities or religions or beliefs permissible under international human-rights law in times of public emergency?
  • Is the answer to this question different if the measures concern:
    1. visa policies;
    2. admission policies;
    3. detention (e.g. to obtain information about (the background of) terrorist organizations);
    4. expulsion?
Dilemmas regarding international human-rights law and the fight against terrorism
Terrorism poses a threat to national security and can cause unrest within large segments of society. Hence the call for swift and effective action. When facing this challenge, governments are often confronted with tensions between this need for effective measures and restrictions stemming from international human-rights law.
For example, this can come to the fore when governments want to obtain access to information that may be helpful in tracking down terrorists. The right not to be subjected to arbitrary or unlawful interference with one’s privacy may restrict their ability to do so. Similarly, governments might be tempted to restrict freedom of expression, especially in the case of manifestations of that freedom that may be seen to incite terrorist acts.

Questions:
  • Does international human-rights law undermine the effectiveness of the fight against terrorism?
  • When faced with tensions between human rights and measures against terrorism, can governments solve the problem by making use of derogation provisions or limitation clauses? Or is it possible to find alternative methods for dealing with terrorism that are fully in line with international human-rights law?
  • If international human-rights law does undermine the effectiveness of the fight against terrorism, should this lead to a fundamental discussion on the interpretation of human-rights law in view of the changing international situation? Or should such a discussion be avoided, given that it could be abused for political objectives unrelated to the fight against terrorism (e.g. by those who want to restrict the scope of human rights obligations anyway)?
Dilemmas regarding institutional arrangements
The international bodies that are responsible for the fight against terrorism are not normally part of the international human rights machinery. For example, within the United Nations measures against terrorism are normally discussed within the Counter-Terrorism Committee (CTC), created by the Security Council. Although the UN High Commissioner for Human Rights has initiated contacts between the CTC and the Human Rights Committee, this is only a recent action and it remains to be seen what effect it will have.
More generally, the Council of Europe has set out Guidelines on terrorism and human rights (?). But the effect of these guidelines on discussions in other fora where concrete measures against terrorism are developed, remains unclear.
One general trend within current human rights policies is the mainstreaming of human rights. Since human rights standards have evolved greatly in recent decades, it is almost impossible for any particular body to be responsible for implementing and monitoring all of them. Instead, it is much more effective to incorporate respect for human rights and fundamental freedoms in all policies. To mainstream human rights, in other words. If there is a certain degree of receptiveness, this policy will indeed be much more efficient and probably more effective. But if human rights and fundamental freedoms are in fact largely ignored, mainstreaming will fail.

Questions:
  • Is mainstreaming of human rights the right approach in the case of the fight against terrorism?
  • What is the role of existing international human rights institutions in this regard?
  • Should there be special institutional provisions to provide certain special control mechanisms, examining the extent to which anti-terrorism measures are in line with international human rights obligations?
  • Is there a need for further clarification of the OSCE commitments with regard to terrorism and human rights?



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