PROTECTING HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS WHILE COUNTERING TERRORISM

Transcription

1 PROTECTING HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS WHILE COUNTERING TERRORISM 61 st session of the General Assembly (September to December 2006, New York) 1. Overview The General Assembly considered the protection of human rights and fundamental freedoms while countering terrorism through its Third Committee under Agenda Item 67(b). 1 Both the Secretary- General and the Special Rapporteur on protecting human rights and fundamental freedoms while countering terrorism, Mr. Martin Scheinin, submitted reports to the Third Committee. Both reports noted that other special procedure mandate-holders, such as the Special Representative of the Secretary- General on the situation of human rights defenders, address a broad range of issues related to the impact of terrorism on human rights. This year, the Special Rapporteur particularly focused on the impact of counter-terrorism strategies on freedom of association and peaceful assembly. The Resolution on the protection of human rights and fundamental freedoms while countering terrorism did not incorporate the Special Rapporteur's specific concerns and recommendations regarding threats to freedoms of association and peaceful assembly. However, the Resolution does feature a new operative paragraph opposing deprivations of liberty that amount to placing a detained person outside the protection of the law. 2. Report of the Secretary-General on protecting human rights and fundamental freedoms while countering terrorism 2 On 11 September 2006, the Secretary-General submitted a report to the Third Committee in accordance with General Assembly Resolution 60/158 and Commission on Human Rights Resolution 2005/80. The report gives an account of the recent developments within the United Nations system in relation to human rights and counter-terrorism, such as the establishment of the Human Rights Council (the Council), which, according to the Secretary-General, 'offered another opportunity to incorporate human rights into global counter-terrorism efforts'. The report praises the Council's adoption of the International Convention for the Protection of All Persons from Enforced Disappearance as a significant step strengthening the rule of law in counter-terrorist activities. The report also highlights the report of the Special Rapporteur on the promotion and protection of human rights while countering terrorism, which was considered by the Council and discusses: collaboration between the Special Rapporteur and the Security Council's Counter Terrorism Committee; the rights of victims of terrorism; root causes of terrorism; and the human rights obligations of non-state actors. 3 1 Agenda Item 67(b) was entitled Promotion and protection of human rights: human rights questions including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms. 2 General Assembly, 61st Session, A/61/353 (11 September 2006), available at List of Reports to the Plenary, 3 Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism Commission on Human Rights, 62 nd Session, E/CN.4/2006/98 (28 December 2005). For more

2 The report also notes that other special procedures mandate-holders, such as the Special Rapporteur on the question of torture, 4 the Chairperson on the Working Group on Arbitrary Detention, 5 the Independent Expert on minority issues, 6 and the Special Representative of the Secretary-General on the situation of human rights defenders 7, address a broad range of issues related to the impact of terrorism on human rights. The report describes how these mandate-holders, along with the High Commissioner for Human Rights, share concerns regarding some States' use of secret detention centres and the practice of irregular transfers of persons suspected of engagement in terrorist activities. According to the report, another serious concern to the United Nations system is the return and transfer of suspects to countries where they face the risk of torture. 3. Report of the Special Rapporteur on Protecting Human Rights and Fundamental Freedoms While Countering Terrorism 8 The main theme of the Special Rapporteur's report 9 is the impact of counter-terrorism strategies on the freedoms of association and peaceful assembly. The report criticises national legislation that goes beyond the scope of countering terrorism and actually threatens the rights of political parties, trade unions or human rights defenders. The report specifically refers to legislation that contains a vague or overly broad definition of 'terrorism' or 'terrorist activities' or invokes 'national security' as a means to address local or isolated threats to law and order. The report compliments the Special Representative of the Secretary-General on the situation of human rights defenders, who has expressed concern about strict registration requirements for NGOs. The report recommends that clear safeguards be put into place by law to prevent abuse and, if abuses occur, ensure that remedies are provided. It stresses that any decisions that limit human rights must be overseen by the judiciary, so that they remain lawful, proportionate and effective. 3.1 Presentation of the Special Rapporteur on protecting human rights and information, please see ISHR's unofficial summary, available at 4 Report of the Special Rapporteur on the question of torture, Commission on Human Rights, 62 nd Session, E/CN.4/2006/6 (23 December 2005). For more information, please see ISHR's website, available at 5 Report of the Working Group on Arbitrary Detention, Commission on Human Rights, 62 nd Session, E/CN.4/2006/7 (12 December 2005). For more information, please see ISHR's unofficial summary of the report, available at 6 Annual report of the Independent Expert on minority issues, Commission on Human Rights, 62 nd Session, E/CN.4/2006/74 (6 January 2006). For more information, please see ISHR's unofficial summary of the report, available at 7 Annual report of the Special Representative of the Secretary-General on the situation of human rights defenders, Commission on Human Rights, 62 nd Session, E/CN.4/2006/95 (23 January 2006). For more information, please see ISHR's unofficial summary, available at 8 The mandate of the Special Rapporteur was established by the Commission on Human Rights by Resolution 2005/80 (21 April 2005). For more information on this mandate and others please see ISHR's fact sheets available at One of the Human Rights Council's first tasks, as stipulated by Resolution 60/251, is to review and maintain a system of special procedures. In June 2006, to help facilitate this review process and avoid any protection gap, the Council extended all mandates for one year.. 9 General Assembly, 61st Session, A/61/267 (16 August 2006), available at:

3 fundamental freedoms while countering terrorism On 25 October 2006, the Special Rapporteur presented his report to the Third Committee, reiterating his concerns regarding the threats posed by national counter-terrorism legislation to the freedoms of association and assembly. The Special Rapporteur did note, growing support for the position that human rights strengthen any successful counter-terrorism strategy, as reflected in the Global Counter- Terrorism Strategy adopted by the General Assembly on 8 September Mr. Scheinin also explained that violations of human rights, notably based on ethnic, national and religious discrimination, create conditions conducive to the spread of terrorism. The Special Rapporteur thanked many States for supporting his mandate, but regretted that his communications or requests for country visits were not always met by rapid and full responses. He noted several outstanding requests to visit countries, including Algeria, Egypt, Malaysia, the Philippines, South Africa, Tunisia and the United States of America (USA) Interactive Dialogue Eight delegates participated in the ensuing interactive dialogue, and expressed their support for the mandate. Mexico enquired whether States should share counter-terrorism strategies with civil society. The USA asked how the lack of a single definition of terrorism impeded the Special Rapporteur's mandate. Cuba wanted the Mr. Scheinin to discuss his future report to the Human Rights Council, in particular, how the report will explore the relationship between counter-terrorism strategies and racial, ethnic and religious profiling. The Special Rapporteur indicated that, while defining terrorism in a comprehensive manner does not go to the heart of his mandate, the absence of an internationally-agreed definition does signal a problem as it allows States to freely define terrorism in vague and broad terms that threaten human rights. Furthermore, he noted that the absence of a definition requires him to employ a case-specific methodology. This last comment also answered a question by the EU regarding the Special Rapporteur's consideration of regional perspectives. In response to Cuba, Mr. Scheinin stated that his future report on racial, ethnic and religious profiling will examine international human rights instruments like the International Convention on the Elimination of All Forms of Racial Discrimination in the examination of the link between counter-terrorism measures and racial, ethnic and religious profiling. Benin, Cuba and Switzerland addressed the issue of placing individuals or entities on 'terrorist lists'. In response to Benin's question about challenging the entire listing process, Mr. Scheinin argued that listing, while not perfect, is at least a targeted sanction. However, he underscored that listing must be a temporary measure, to be revisited at regular intervals. 4. Resolutions and Outcome 4.1. Resolution on the Protection of Human Rights and Fundamental Freedoms While

4 Countering Terrorism 10 The Resolution:! Reaffirms the fundamental importance of respecting all human rights and fundamental freedoms and the rule of law when responding to terrorism and the fear of terrorism;! Welcomes the establishment of the Human Rights Council and recognises the importance of the Global Counter-Terrorism Strategy;! Reaffirms that terrorism cannot and should not be associated with any religion, nationality, civilisation or ethnic group and that counter-terrorism measures should not be discriminatory on the grounds of race, colour, sex, language, religion or social origin;! Urges States to ensure due process guarantees, consistent with the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, while countering terrorism;! Opposes any form deprivation of liberty that amounts to placing a detained person outside the protection of the law;! Requests the Secretary-General to submit a report on the implementation of the present Resolution to the General Assembly's 62 nd session and to the Human Rights Council;! Decides to consider the Special Rapporteur's report on the promotion and protection of human rights and fundamental freedoms while countering terrorism at the General Assembly's 62 nd session. The Resolution on the protection of human rights and fundamental freedoms while countering terrorism, introduced by the delegation of Mexico, builds on General Assembly Resolution 60/ The Resolution adds operative paragraphs on: implementing non-discriminatory counter-terrorism measures; ensuring due process guarantees while countering terrorism; and opposing deprivations of liberty that amount to placing a detained person outside the protection of the law. However, the Resolution does not incorporate any of the Special Rapporteur's recommendations. During a lengthy informal consultation process, the Mexican chair emphasised its intent to create a streamlined edition of last year's text reflecting both the Human Rights Council's review of the mandate and the General Assembly's adoption of the Global Counter-Terrorism Strategy. However, there was still much debate on the focus of the Resolution. For instance, India suggested a new preambular paragraph emphasising 'the need to make every effort to reach an agreement on and conclude a comprehensive convention on international terrorism at the earliest', arguing that a better understanding of terrorism would ensure better ways of protecting human rights. The EU, Mexico, Norway, Pakistan and the USA successfully opposed this new preambular paragraph. 12 The issue of special procedures mandate-holders also received considerable attention throughout the informal consultation process. The Mexican chair mentioned that she had refrained from including 10 General Assembly Resolution 61/ General Assembly Resolution 60/ Another instance of disagreement regarding the focus of the Resolution came with Venezuela's request that Preambular Paragraph 14 speak of 'respect for all models of democracy'. The Mexican chair raised the concerns expressed by other delegates that a reference to democracy suffices and that the resolution is not the proper venue to debate what is and is not a democracy. As a compromise, the chair proposed the addition of a footnote after 'democracy', containing a reference to the exact language of paragraph 135 of the World Summit Outcome Document. However, delegates from Costa Rica, Canada and the USA successfully opposed both the Venezuelan proposal and the footnote, arguing against the use of footnotes in resolutions.

5 recommendations to the Special Rapporteur so as not to prejudge the review process taking place in Geneva. The draft text did request all States, 'as a matter of priority', to cooperate fully with the Special Rapporteur, responding to concerns expressed in his report. Venezuela called for the deletion of the phrase, while the EU suggested that language be included requesting a favourable, rapid response to requests to conduct a country visit. Ultimately, Belarus, China, Cuba, Egypt, Russia, Singapore and Venezuela, as well as the chair, suggested using the language of last year's text. Finally, the wording of the operative paragraph on deprivations of liberty placing detainees outside the protection of the law was the result of extensive bilateral discussions between the USA and Mexico. Both the Third Committee and the General Assembly adopted the Resolution without a vote. 4. Looking Forward The Council is currently reviewing the entire special procedures system. This process will be concluded in June 2007, and, until then, it remains unclear what the fate of the Special Rapporteur on protecting human rights and fundamental freedoms while countering terrorism will be. Nonetheless, the Special Rapporteur intends to carry out his mandate and meet regularly throughout He hopes to follow-up on his study on human rights compliance while countering terrorism, which he conducted in Australia from January to August He also indicated that future themes to be covered in his reports include the promotion and protection of economic, social and cultural rights in the fight against terrorism; and the impact of counter-terrorism laws and measures on the right to privacy, specifically as a consequence of broadening powers of surveillance and the sharing of information between different authorities and States.