II. INTERNATIONAL INITIATIVES

U.N. Security Council
In the aftermath of the September 11 attacks, the U.N. Security Council used its powers under Chapter VII of the U.N. Charter to mandate member states to adopt specific measures to combat terrorism. Resolution 1373 of September 28, 2001 takes many elements of existing counter-terrorism treaties and in one swift move makes them binding on all member states. The measures include:

• Prevention of the financing of terrorism, through, inter alia, freezing of the financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or who participate or facilitate the commission of terrorist acts;
  
  
• Establishment of terrorist acts as serious criminal offences in domestic laws and regulations, with commensurably serious punishment; and
  
  
• Taking appropriate measures before granting refugee status to ensure that the asylum seeker has not planned, facilitated, or participated in the commission of terrorist acts.

The resolution created a new entity called the Counter Terrorism Committee (CTC) of the Security Council, which oversees the implementation of Resolution 1373. It mandated that governments report to the CTC within ninety days, and periodically after that, on the measures adopted to implement the resolution.

Resolution 1373 calls for tough criminal, financial, and administrative measures aimed at individuals and entities considered supportive of or involved in terrorism. But it makes no positive reference to member states' obligations to respect international human rights, humanitarian, or refugee law.

Successive U.N. high commissioners for human rights have expressed serious concerns about the possible impact of Resolution 1373 on human rights worldwide. Soon after the passage of the resolution, then High Commissioner Mary Robinson initiated contacts with the CTC, chaired by U.K. Ambassador Sir Jeremy Greenstock.¹ This dialogue has since been followed up by new High Commissioner Sergio Vieira de Mello. In his meeting with CTC members on October 21, 2002, de Mello raised concerns about states enacting anti-terrorism legislation that is too broad in scope or seeking to fight terrorism outside the framework of the legal system.

• He offered the readiness of his office to assist the CTC in encouraging, as he put it, "the non-abuse of 1373."
  
  
• He reiterated an earlier recommendation put forward by Mary Robinson that the CTC appoint a human rights advisor.
  
  
• He suggested that the CTC place basic information on issues such as the non-derogation of certain rights, or relevant conclusions and recommendations of U.N. human rights mechanisms, on its website.
  
  
• He encouraged the CTC to establish links with the Human Rights Committee and other relevant treaty bodies and mechanisms of the United Nations human rights system.

The High Commissioner's office also produced a set of guidelines highlighting human rights obligations that should be actively considered by the CTC in reviewing country reports and developing further measures. The document focused on the legality of counter terrorism measures, dealing with issues such as non-derogability, non-discrimination, the right to seek asylum and non-refoulement, and due process.

While Human Rights Watch welcomes this initial dialogue between the CTC and the High Commissioner for Human Rights, we are dismayed by the CTC's refusal to date to act fully upon the High Commissioner's recommendations or integrate consideration of human rights into its work. For instance, while the High Commissioner's guidance was included on the CTC website, the CTC declined to make it an official document and circulate it to all member states. The CTC has also failed to appoint a human rights advisor to its staff. As a welcome step, Security Council Resolution 1456 of January 20, 2003 stressed in its paragraph 6 that "States must ensure that any measure taken to combat terrorism comply with all their obligations under international law, in particular international human rights, refugee, and humanitarian law." On March 6, 2003, during a special meeting of the CTC, Amb. Greenstock stressed that counter-terrorist measures had to be taken "without undue damage" to civil liberties. But he once again reminded those gathered that while the CTC did not ask states to do anything incompatible with their human rights obligations, monitoring such obligations was not the responsibility of the Committee.

U.N. General Assembly
In November 2002, at its 57^th session, the U.N. General Assembly adopted an important new resolution on Protecting human rights and fundamental freedoms while countering terrorism.² The resolution, initiated by Mexico, underscored the need for states to comply with their legal obligations under international human rights, refugee, and humanitarian law. It stressed that certain non-derogable rights must be fully observed at all times, and that where states derogated from their other obligations, they must meet the strict requirements of international law. The resolution asked the U.N. High Commissioner for Human Rights to monitor the protection of human rights in the fight against terrorism and to make recommendations to governments and U.N. bodies. It also requested the U.N. secretary-general to submit reports to both the U.N. Commission on Human Rights and the General Assembly on the implementation of the resolution, promising future attention to this important issue.

The General Assembly resolution came after the U.N. Commission on Human Rights failed to take up this issue at its 58th session last year. A similar draft resolution, circulated by Mexico, was withdrawn in the face of strong opposition by the United States, later joined by India, Pakistan, Algeria, and Saudi Arabia. In receiving the secretary-general's report at this 59th session, it is incumbent that the Commission take up this important challenge and consider an appropriate institutional response to the issue.

Treaty Bodies and Special Procedures
Over the past year and a half, several rapporteurs and other specialists appointed by the U.N. Commission on Human Rights ("special procedures") as well as expert committees monitoring implementation of human rights treaties have addressed the negative impact of some counter-terrorist measures on human rights.

On August 31, 2002, just before the September 11 attacks, the Human Rights Committee set forth clearly the strict parameters within which states can justifiably derogate from their obligations in response to threats to public security. As the Committee observed, even in armed conflicts, states must show that the situation threatens the life of the nation and that the measures derogating from the Covenant are necessary, legitimate, and "limited to the extent strictly required by the exigencies of the situation." This proportionality requirement "relates to the duration, geographical coverage and material scope of the state of emergency and any measures of derogation."³

Since September 11, the Human Rights Committee has examined the human rights impact of counter-terrorism measures in its consideration of several periodic reports by states parties under article 40 of the Covenant. The Committee has repeatedly stressed that counter-terrorist measures taken under Security Council Resolution 1373 must be in full conformity with the Covenant.

In considering reports by New Zealand and Sweden, for instance, the Committee expressed concern about possible negative effects of new legislation and practices on asylum seekers, including the risk of refoulement and the absence of monitoring mechanisms with respect to the expulsion of those suspected of terrorism to their countries of origin.⁴ In its consideration of Yemen, the Committee expressed concern about the arrest and detention of terrorist suspects in violation of the guarantees set out in the Covenant, and the expulsion of foreigners without an opportunity to legally challenge such measures.⁵ In relation to Egypt, the Committee questioned the broad and general definition of terrorism in national law; noted with alarm that military courts and state security courts have jurisdiction to try civilians accused of terrorism without fair trial guarantees; and expressed concern about the incommunicado detention and treatment of Egyptian nationals arrested abroad and returned to Egypt.⁶

In considering the periodic report of the United Kingdom in December 2001, the Human Rights Committee noted with concern legislative measures being considered by the government which could have "far-reaching effects" and require derogations from its human rights obligations.⁷ The Committee also expressed concern at reports of attacks and harassment on the basis of religious beliefs and the use of religion to incite criminal acts, and called for criminal legislation to cover offences motivated by religious hatred and other steps to protect against religious discrimination.⁸ During questioning by the Committee, the United Kingdom reportedly invoked Article 103 of the U.N. Charter to argue that its obligations to the Counter Terrorism Committee under Resolution 1373 took precedence over its obligations to the Human Rights Committee.

In November 2001, the Committee against Torture (CAT) issued a statement reminding states parties of the non-derogable nature of most of their obligations and calling for states to ensure their responses to the threat of international terrorism were in full conformity with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The CAT has lately issued important recommendations related to counter-terrorism to specific countries such as Egypt, Sweden, and Russia. In the last case the Committee stressed that, in accordance with article 2 of the Convention, "no exceptional circumstance whatsoever ... may be invoked as a justification of torture."⁹

In January 2002, the Committee on the Elimination of Racial Discrimination (CERD) adopted a statement on racial discrimination and measures to combat terrorism.¹⁰ CERD emphasized that measures to combat terrorism should be in accordance with international human rights and humanitarian law, of which the prohibition of racial discrimination was a peremptory norm from which no derogation was permitted. It demanded that states and international organizations ensure that counter-terrorist measures did not discriminate in purpose or effect on grounds of race, color, descent, or national or ethnic origin, and pledged to monitor the potentially discriminatory effects of legislation and practice in its work. In its concluding observations on the 13^th and 14^th periodic report of Canada under the International Convention on the Elimination of All Forms of Racial Discrimination, CERD expressed concern about increased racial hatred, violence and attacks against Muslims and Arabs in the wake of the September 11 attacks.¹¹ It called on Canada to ensure application of Canada's Anti-Terrorism Act did not lead to negative consequences for ethnic and religious groups, refugees, and asylum seekers, particularly as a result of racial profiling.

On Human Rights Day in 2001, seventeen thematic rapporteurs and independent experts of the CHR issued a joint statement in which they expressed deep concern about the adoption of certain national counter-terrorism laws and reminded states of their obligations to uphold human rights and fundamental freedoms in the aftermath of the events of September 11.¹²

Many of these rapporteurs have underscored specific concerns relating to their specific mandates. For example, the special rapporteur on migrant workers has noted how "In the context of anti-terrorism measures adopted after 11 September 2001, the legislation of some countries allows for long periods of detention of non-nationals, without basic guarantees."¹³ The special rapporteur on torture has warned that, "the provisions of some new anti-terrorist legislation at the national level may not provide sufficient legal safeguards as recognized by international human rights law in order to prevent human rights violations, in particular those safeguards preventing and prohibiting torture and other forms of ill-treatment."¹⁴ The special rapporteur on freedom of expression has stressed that "the fight against terrorism, (...) is more and more frequently resorted to by the authorities in many countries to infringe-through, inter alia, the adoption of restrictive laws, arrest, detention, censorship, bans, surveillance of and restrictions on publications or the use of the Internet-the right to freedom of opinion and expression, in particular for journalists, members of political opposition groups and parties and human rights defenders."¹⁵ The special rapporteur on extrajudicial, summary or arbitrary executions has emphasized the fact that even in time of public emergency the right to life allows for no derogations, and that this is "particularly relevant at the present juncture, when Governments should not be tempted to misuse the international war against terrorism as a justification for human rights abuses, including extrajudicial, summary or arbitrary executions."¹⁶

This increased attention afforded by treaty bodies and special procedures to the counter-terrorist measures adopted by states is very welcome. But it remains limited in scope and fails to provide comprehensive scrutiny and analysis of the human rights impact of counter-terrorist measures. The treaty bodies are only able to review the performance of states in the context of their periodic reports, and may therefore only raise concerns sometimes years after the event, or in the context of individual communications, which are limited to specific cases. The special procedures, for their part, focus only on those issues that fall within their mandates, failing to give a complete and holistic picture of the problem. As noted above, the Counter Terrorism Committee of the Security Council is receiving more regular reports from states of their actions under Resolution 1373, but it has to date largely excluded human rights considerations from its work.

Regional Organizations
A number of regional and other intergovernmental organizations have taken initiatives in the context of the international campaign against terrorism. Many of these initiatives follow the template of Resolution 1373, highlighting its far-reaching, "trickle down" effect. But all too often they use broad and sweeping definitions of terrorism which could encompass peaceful opposition, and they make little or no reference to international human rights standards.

• In September 2002, the African Union/Organization of African Unity's Convention on the Prevention and Combating of Terrorism, adopted at the 1999 OAU Summit, came into force. The Convention includes a broad definition of terrorist acts and, while invoking numerous international counter-terrorist conventions and measures, makes no reference to international human rights standards.

• In May 2002, the Organization of the Islamic Conference finalized the Convention on Combating International Terrorism. Terrorism is given a very broad definition, framed in terms of national law rather than international human rights standards. In adopting the Convention, member states condemned terrorism as "a gross violation of human rights," but failed to affirm the positive obligations of states to respect human rights when combating terrorism.

• The Association of South East Asian Nations (ASEAN) is still working on a regional agreement to combat terrorism. However, neither the 2001 ASEAN Declaration on Joint Action to Counter Terrorism nor the 2002 Joint Communiqué on the Special ASEAN Ministerial Meeting on Terrorism addressed human rights.

Some regional bodies, however, have addressed human rights concerns more positively:

• In December 2001, the Inter-American Commission on Human Rights adopted a resolution and comprehensive report on Terrorism and Human Rights, affirming states' human rights obligations. In June 2002, the Organization of American States General Assembly adopted the Inter-American Convention Against Terrorism. The new Convention makes explicit commitments on human rights.¹⁷

• On July 15, 2002, the Committee of Ministers of the Council of Europe adopted guidelines on human rights and the fight against terrorism. The guidelines address many important human rights concerns, including the prohibition of arbitrariness and any discriminatory or racist treatment, the absolute prohibition of torture, protection of privacy, arrest procedure and pre-trial detention, due process in legal proceedings, conditions of detention, prohibition of the death penalty, the right to asylum and prohibition of refoulement, and safeguards on extradition. The guidelines set out clearly the strict limitations on derogation contained in international human rights instruments.

• In December 2002, the Ministerial Council of the Organization for Security Cooperation in Europe (OSCE) adopted a Charter on Preventing and Combating Terrorism. The OSCE undertook "to implement effective and resolute measures against terrorism and to conduct all counter-terrorism measures and co-operation in accordance with the rule of law, the United Nations Charter and the relevant provisions of international law, international standards of human rights and, where applicable, international humanitarian law."¹⁸

In light of the above, Human Rights Watch believes there is an urgent need for a dedicated mechanism to address these issues, most appropriately a special representative of the secretary-general on human rights and counter-terrorism. This would provide an appropriate institutional link between the United Nations human rights machinery, the Security Council, and other international and regional bodies. This new mandate should be complemented by continued scrutiny by the treaty bodies and special procedures, and effective coordination of activities across their mandates by the Office of the High Commissioner for Human Rights.

1 In April, the chairmanship of the CTC will be passed on to Spain's Ambassador Inocencio Arrias.

2 A/RES/57/219.

3 Human Rights Committee, States of Emergency (article 4): CCPR General comment 29. (General Comments), U.N. Doc. CCPR/C/21/Rev.1/Add.11, 31/08/2001, paragraph 4.

4 Human Rights Committee, Consideration of reports submitted by States parties under article 40 of the Covenant, Concluding observations of the Human Rights Committee: New Zealand, 07/08/2002, U.N. Doc. CCPR/CO/75/NZL, paragraph 11; Human Rights Committee, Consideration of reports submitted by States parties under article 40 of the Covenant, Concluding observations of the Human Rights Committee: Sweden, 24/04/2002, U.N. Doc. CCPR/CO/74/SWE, paragraph 12.

5 Human Rights Committee, Consideration of reports submitted by States parties under article 40 of the Covenant, Concluding observations of the Human Rights Committee: Yemen, 26/07/2002, U.N. Doc. CCPR/CO/75/YEM, paragraph 18.

6 Human Rights Committee, Consideration of reports submitted by States parties under article 40 of the Covenant, Concluding observations of the Human Rights Committee: Egypt, 28/11/2002, U.N. Doc. CCPR/CO/76/EGY, paragraph 16.

7 Human Rights Committee, Consideration of reports submitted by States parties under article 40 of the Covenant, Concluding observations of the Human Rights Committee: United Kingdom and Northern Ireland, 06/12/2001, U.N. Doc. CCPR/CO/73/UK; CCPR/CO/73/UKOT, paragraph 6.

8 Human Rights Committee, Consideration of reports submitted by States parties under article 40 of the Covenant, Concluding observations of the Human Rights Committee: United Kingdom and Northern Ireland, 06/12/2001, U.N. Doc. CCPR/CO/73/UK; CCPR/CO/73/UKOT, paragraph 14.

9 Conclusions and recommendations of the Committee against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Russian Federation, 28^th Session, U.N. Doc. CAT/C/CR/28/4, paragraph 4.

10 Committee on the Elimination of Racial Discrimination, Statement on racial discrimination and measures to combat terrorism, U.N. Doc. A/57/18 (Chapter XI)(C.). (Statement), 01/11/2002.

11 Committee on the Elimination of Racial Discrimination, Concluding Observations: Canada, 01/11/2002, U.N. Doc. A/57/18, paragraph 338.

12 December 10, 2001, http://193.194.138.190/huricane/huricane.nsf/newsroom

13 Report of the Special Rapporteur on the human rights of migrants, Ms. Gabriela Rodríguez Pizarro, submitted pursuant to Commission on Human Rights resolution 2002/62, 59^th Session of the Commission on Human Rights, ECOSOC, E/CN.4/2003/85, December 30, 2002, paragraph 25.

14 Report of the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment, Theo van Boven, presented to the General Assembly in accordance with resolution 56/143 of 19 December 2001, General Assembly, A/57/173, July 2, 2002, paragraph 5.

15 Report of the Special Rapporteur on the right to freedom of opinion and expression, Mr. Ambeyi Ligabo, submitted in accordance with Commission on Human Rights resolution 2002/48, 59^th session of the Commission on Human Rights, ECOSOC, E/CN.4/2003/67, December 30, 2002, paragraph 34.

16 Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Ms. Asma Jahangir, submitted in accordance with paragraph 23 of General Assembly resolution 55/111 of 4 December 2000, General Assembly, A/57/138, paragraph 16.

17 Article 15 of the Convention states: (1) that measures should fully respect the rule of law, human rights, and fundamental freedoms; (2) that nothing in the Convention shall be interpreted as affecting other rights and obligations of states and individuals under international law, in particular the Charter of the United Nations, the Charter of the Organization of American States, international humanitarian law, international human rights law, and international refugee law; and (3) that any person whom measures are taken in compliance with the Convention shall be given a fair treatment, including the enjoyment of all rights and guarantees in conformity with the law of the state in the territory of which that person is present and applicable provisions of international law.

18 Significantly, the Charter also underlined "the need to address conditions that may foster and sustain terrorism, in particular by fully respecting democracy and the rule of law, by allowing all citizens to participate fully in political life, by preventing discrimination and encouraging intercultural and inter-religious dialogue in their societies, by engaging civil society in finding common political settlement for conflicts, by promoting human rights and tolerance and by combating poverty.

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