HUMAN RIGHTS AND TERRORISM - Netherlands Helsinki Committee

APPENDICES
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appendix ii
Declaration of the Netherlands Helsinki Committee:
“A resolvable conflict”

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This Declaration of the Netherlands Helsinki Committee concerning the Fight Against Terrorism and the Protection of Human Rights (?) forms a contribution on the part of the Netherlands Helsinki Committee (NHC) to the seminar ‘Human Rights and Terrorism’. On the basis of the dilemmas sketched in Appendix I, the NHC has drafted its Declaration in the form of eight statements addressing said dilemmas. The statements are individually—and succinctly—explained. The NHC hopes that this Declaration will contribute to the forming of opinions both during the seminar and outside its confines.
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1. Whether a discussion on definition of terrorism is desirable and meaningful depends on the purpose this definition serves: scientific analysis, punishment or prevention. However, in all cases, a definition of terrorism (1) should have an “absolute” character, and (2) should not exclude specific actors.

Whether a definition of terrorism is sensible and meaningful is determined by the purpose of the definition. A scientific analysis of terrorism lays down other requirements for the definition of the notion of terrorism than a definition where, for example, certain forms of behaviour are considered to be punishable. It is also possible that a criminal law notion of terrorism has a different—more limited—definition than a legal administrative notion, which has, as its objective, controlling (international) funding. The importance of a clear definition of terrorism is underlined by international regulations that aim to oblige states to criminalize certain acts such as terrorism and to prosecute those who commit such acts or otherwise to extradite such persons to other states. In many such regulations a precise definition of terrorism is lacking. This can lead to the situation where states are confronted with, for example, requests to extradite persons who, in their opinion, have done nothing more than to make use of certain fundamental freedoms, such as the right to the freedom of expression. The Framework Decision of the European Union concerning the European Arrest Warrant of 13 June 2002 is a—potentially dangerous—example thereof (see also the fourth statement).

Variations in the definitions of terrorism notably concern the definitions of the “objective” element—the types of actions—and the “subjective” element—the intention or the objective of the actions. By means of these elements an attempt is made to differentiate between terrorist acts and “ordinary” punishable actions. This distinction, whereby terrorist actions are considered to be among the most serious of crimes, is only meaningful if two conditions are met. First, terrorist acts should have an “absolute” character, that is to say, that terrorism cannot be justified under any circumstances. This requirement will (very strictly) limit the scope of the notion of terrorism. The second condition for a differentiated and meaningful notion of terrorism is that the concept is not “actor specific”, that is to say that terrorism is not limited to actions by specific persons or groups. The limitation that terrorism can only be committed by individuals or private groups undermines the expressiveness of the notion of terrorism to an important extent as there is no convincing reason to exclude states or public bodies from the possible perpetrators of terrorist acts.

2. There is no irresolvable conflict between combating terrorism and respecting human rights.

The regulations on the protection of human rights have a twofold meaning in the fight against terrorism. In the first place, these regulations oblige states to the prevention and the combating of terrorism, in particularly on the ground of the right of everyone to life, liberty and the security of person. Secondly, in the prevention and combating of terrorism states have to fully observe the respect for human rights. If there is a question of dilemmas in combating terrorism, these dilemmas can be phrased in terms of the application of various human rights. In this regard, the problem of the fight against terrorism is not unique. The fundamental political, economic and social problems translate themselves—both on legal-policy and legal grounds—into the question concerning the permitted—i.e. lawful—limitations of certain human rights based on the fulfilment of other human rights. The doctrine of the permitted limitations of human rights amounts to an integral part of the international law of human rights, while a significant part of the—national and international—case law on human rights concentrates on the application of such limitations. In other words, the international regulations concerning the protection of human rights themselves provide, to a great extent, the guidelines for resolving the questions concerning the acceptable and unacceptable measures in the fight against terrorism.
International law offers very extensive and rather complex standards for the protection of human rights, consisting of international customary law norms as well as a wide range of regulations that are laid down in global and regional treaties. The customary law norms are binding on all states and their organizations; they apply universally. Although treaties only bind those states that are parties thereto, a large majority of the community of states indeed have ratified the most important human rights treaties, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

3. In the case of international and national regulations regarding measures against persons or groups of persons suspected of terrorism, the international human rights standards should be fully guaranteed. States of emergency and international and internal armed conflicts do not amount to a ground for deviating from these standards.

The respect for human rights in no way excludes measures against terrorism, although it is often argued differently. The international treaties on the protection of human rights allow for a number of limitations, within certain boundaries, to the application of human rights. Most human rights are not absolute rules, but are principles that in concrete situations often come into conflict with one another. These legal conflicts should be resolved by means of striking a balance between the relevant principles. For the purpose of striking such a balance, the case law of international and national courts provides a guideline.
A very recent example of striking such a balance is the decision by the District Court of Rotterdam of 5 June 2003 whereby 12 suspected Muslim extremists were acquitted. A large part of the criminal files in this case was based on “official reports” from the AIVD (the General Information and Security Service). Considering the fact that the court could neither verify the origin nor the factual accuracy of this information, it could not use it as evidence. At the same time the court established that, from the point of view of protecting state security, the obligation to observe secrecy with regard to the AIVD information was completely justified.
Combating terrorism cannot provide any justification for deviating from the fundamental standards of humanity. International treaties on human rights recognize a number of rights that also in states of emergency remain applicable. In this category are the right to life, the prohibition of torture, the principle of legality and the right of freedom of thought. Important guidelines for such a legal state of affairs are formulated in the “General Comment on States of Emergency” produced by the Human Rights Committee of the International Covenant on Civil and Political Rights (31 August 2001).
General international law—which binds all states—in addition provides a number of fundamental rights from which no deviation can be made under any circumstances, including international and national armed conflicts (such as wars and civil wars). Examples are the prohibition of collective punishments and the prohibition of arbitrary deprivation of liberty. Such fundamental laws of humanity are laid down in the so-called humanitarian law of armed conflict and they have—as confirmed by the International Criminal Tribunals—a general customary law character. They should therefore also be observed with respect to all persons and groups that are suspected of having committed acts of terrorism.

4. Making terrorism an international and a national offence is only permitted if there are sufficient legal guarantees to allow an independent court to assess any (alleged) misuse thereof.

An inventory of national and international (draft) regulations wherein terrorism as such is criminalized or against which intervening administrative measures, such as the freezing of financial bank balances, are made possible, tends to demonstrate, practically without exception, that definitions of terrorism can turn out to encompass too much. An obvious example thereof is the EU-definition that is applicable to the extradition of persons who are suspected of terrorism and that, at least taken literally, does not exclude the possibility that peaceful demonstrators could also be regarded as terrorists.

In order to minimalize the dangers of these serious disadvantages inherent in the formulation of general definitions of terrorism, the guarantee of a realistic access to an independent court is a fundamental requirement (as provided in the case of the aforementioned EU-regulation). The special guarantee thereof is significant because the right of access to an independent court does not belong to those rights that, according to international treaties on human rights, should be fully respected in all circumstances. This standard is not met by, for example, the British Anti-Terrorism Act, which makes it possible to imprison aliens indefinitely without any access by an independent court.

This access to the courts is often not guaranteed with respect to decisions of the UN Security Council whereby member states are obliged to take far-reaching measures against named persons who are suspected of having ties with terrorist groups. Therefore, the UN—and other international organizations—must in any case create their own adequate judicial process for dealing with complaints about possible violations of individual rights as a consequence of their actions.

5. When taking measures against terrorism, alongside the rights of suspects the rights of other citizens should likewise be expressly included, especially the right to the protection of privacy, the right to information, the right to the freedom of expression and—more generally—the right to democratic decision-making and transparency.

A number of measures for the purpose of combating terrorism place limitations on civil rights and political rights and thereby change the balance between freedom and security in favour of more security. Such measures may indeed be in conformity with international standards. As already stated, however, international treaties limit the restrictions permitted for security reasons. The legality of such security measures should therefore be thoroughly investigated and determined, especially from the point of view of the principle of proportionality and the principle that any potential misuse should be excluded. The instrument of judicial control is one way. It is also very plausible that far-reaching permitted limitations of certain rights—such as the right to privacy—could be “compensated” by means of a legislative or judicial wide interpretation of other rights—such as the freedom of expression.

6. In international and national anti-terrorism policy, economic, social and cultural human rights should have equal standing alongside political and civil rights.

In combating terrorism, the necessity to pay attention to the causes of terrorism is also a direct consequence of international and national obligations in the field of human rights. To put it more strongly: a fully-fledged and effective policy to combat terrorism should, for legal-policy as well as legal reasons, also be grounded on economic, social and cultural human rights. The resulting claims to a dignified existence should not be ignored. These rights are often erroneously considered to be purely moral or political rights. However, as their point of departure, the international treaties on the protection of human rights take these rights as an integral part of universally recognized ‘bill of human rights’.
Peculiarly, within the Organization for Security and Co-operation in Europe (OSCE) little attention has been paid to these rights, although the much praised ‘comprehensive security concept’ of this organization also expressly encompasses the socio-economic dimension. For a balanced fight against terrorism socio-economic human rights should not be considered “second grade” rights, but they should have equal standing with civil rights and political rights. This point of departure has fundamental consequences for the position and the policy of in particular the wealthy states in relation to those parts of the world where large groups of people live beneath the absolute poverty line. Considering its objectives, the OSCE has a special task of narrowing the existing socio-economic divide also within international security policy.

7. In international and national anti-terrorism policy, collective human rights should have equal standing alongside individual human rights.

The status of the right to self-determination, the right to development and the right to peace as human rights is controversial. However, these so-called collective rights are to be seen as further elaborations of the right of everyone to a social and international order in which the human rights can be fully realized, as laid down in the Universal Declaration of Human Rights. Collective human rights express that the political and economic structure of international and national societies can form an important barrier to the realisation of human rights. In as far as the violation of human rights is a cause of terrorism, a (preventive) anti-terrorism policy that does not pay attention to social structures of oppression, exploitation and marginalization is doomed to failure. Fighting against political oppression has a strong international legal basis in the right to self-determination, which can be realized by the secession of peoples and minorities from an existing state, as well as by the attainment of an autonomous political status of such groups within an existing state.
An independent international supervisory mechanism for the maintenance of collective rights, in particular the right to self-determination of peoples and minorities, could contribute to the prevention and the combating of terrorism. However, recognising the essential significance of the implementation of collective rights while combating terrorism does not mean that the maintenance of or a change to an existing social or international order can ever amount to a justification for committing terrorist acts. For example, the struggle for or against self-determination does not permit the use of methods that, in different circumstances, would be qualified as terrorist.

8 International co-operation is a necessary condition for effectively combating terrorism. This co-operation is notably to be organized within international organizations. A number of these organizations must play a crucial role. Considering its objectives and competences, in particular the OSCE can be a forum for the establishment of an international policy directed towards removing the breeding ground for terrorism.

Due to its objectives and competences, the OSCE’s role in combating terrorism will perhaps not be spectacular, but it will still be very important. In preparation for the Netherlands chairmanship of the OSCE, the NHC has explained its view on the (possible) significance of the organization and the problems it is currently facing. (?) The potential strength of the OSCE in the fight against terrorism is to be found in its position as the only European security organization that has all the European states (as well as the United States and Canada) as its members. Moreover, the OSCE is characterized by its previously mentioned comprehensive security concept, on the basis of which the politico-military, the economic and the humanitarian aspects of the fight against terrorism can and indeed must be taken into consideration.
On the basis of these points of departure the OSCE should formulate an international and national anti-terrorism policy. At the end of 2001, a first initiative in this respect was taken by the adoption of the “Declaration on Terrorism” (?). However, the policy embodied in this document should be further elaborated, also with regard to the concrete obligations of OSCE-participating states. As stated above, for this purpose the legal-policy and legal framework can be found in generally accepted human rights and this includes, as said, the collective rights, the socio-economic rights as well as the political and civil rights. On this basis the OSCE can apply its existing and relatively successful set of instruments for preventive action—including its operational activities and the less visible actions of the High Commission on National Minorities—also towards preventing terrorism.

As a regional security organization the OSCE forms part of the United Nations’ collective security system. Based on the Charter of the United Nations, the use of armed force in the fight against terrorism is only allowed with the express authorization of the UN Security Council. The question whether the OSCE—just like any other regional organization or individual state—has the competence under general international law and without such UN Security Council authorization to resort to armed force to combat terrorism currently divides the world. However, the inherent dangers of a (further) erosion of the international prohibition of the use of force and the primacy of the UN Security Council for the maintenance of peace and security should not be underestimated. Both developments could lead to fundamental damage to the rule of law in international relations. They produce the very result they want to fight: victory for terrorism.

The Hague, September 17, 2003

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