October 22, 2001
Human Rights Watch Commentary 2 on the Draft Comprehensive Convention on Terrorism:
Articles 2 and 18
As the United Nations (UN) General Assembly’s Sixth Committee continues to discuss the Draft Comprehensive Convention on International Terrorism (“the Comprehensive Convention”) Human Rights Watch believes that it is crucial that the Comprehensive Convention’s text uphold longstanding and universally-recognized international human rights standards.
Human Rights Watch is concerned that certain provisions of the draft Comprehensive Convention could be interpreted in such a way as to undermine and conflict with fundamental principles of international humanitarian law and human rights law. Human Rights Watch is aware that provisions similar to those discussed below do appear in UN Conventions aimed at curbing specific terrorist activities, in particular the International Convention for the Suppression of Terrorist Bombings, adopted on 15 December 1997, and the International Convention for the Suppression of the Financing of Terrorism, adopted on 9 December 1999. We believe, however, that the current draft, which is intended to be a more comprehensive instrument, requires a special effort to achieve thorough human rights protections and guarantees.
In this our second commentary, we offer three recommendations for your consideration. We address in particular Articles 2 and 18 of the current draft.
Recommendation 1: Maintain general conformity with international humanitarian law and human rights law
The text should include an operative provision that guarantees that the Comprehensive Convention fully take into account the fundamental principles of international humanitarian law and human rights law.
As set out in our first commentary of October 17, we believe that the Comprehensive Convention should contain an article that guarantees the Convention be in conformity with international humanitarian law and human rights law. Such a provision should state that nothing in the Convention should be construed as impairing, contradicting, restricting or derogating from the provisions of the Universal Declaration of Human Rights, the International Covenants on Human Rights, and other international instruments of human rights law, refugee law, and international humanitarian law applicable to the specific situations and circumstances dealt with by the Convention.
Recommendation 2: Preserve principles of international humanitarian and human rights law in the definition of terrorism
The wording of Article 2(1)(a) and (b) and Article 18 should not allow interpretations that could weaken accepted principles and practices of international humanitarian or human rights law
The current wording of Article 2(1) and (b) could be interpreted as making certain acts committed during non-international armed conflicts, which are not presently prohibited by international humanitarian law, into international crimes. For example, international law regulating non-international armed conflicts does not prohibit members of rebel forces from using force against enemy government soldiers or property, provided the basic tenets governing such use of force are respected. Such use of force is not currently an international crime, although it could well be a criminal act under national laws. Members of rebel forces can thus be prosecuted under ordinary criminal law for acts of violence if they fall into the hands of national authorities.
The fact that more than 150 states have become parties to Protocol II Additional to the Geneva Conventions is an indication of the overwhelming acceptance of an international legal regime that does not criminalize certain acts of violence committed during internal armed conflicts, unless such acts in themselves constitute international crimes, such as crimes against humanity. Many countries currently choose to grant asylum to members of foreign rebel forces who may have fought against their own governments, but who have not contravened international humanitarian law. Most countries have also freely undertaken international legal obligations that prevent them from returning, expelling or extraditing a person to his or her country of origin if there is sufficient reason to believe that the person is at risk of torture or other violations of fundamental human rights. The current wording of Article 2(1) and (2) would create an obligation on all states parties to the Comprehensive Convention to prosecute those individuals or extradite them to their countries of origin. This would significantly weakens important protections afforded by principles and practice of international law.
That the acts listed in Article 2 must be committed “unlawfully” does not dispel the concerns addressed above, since it is not clear that the word “unlawfully” in the Comprehensive Convention equates with unlawfulness under international law.
Article 18 may also be subject to a variety of interpretations, some of which could undermine human rights protections. The wording of Article 18(1) appears to be clear in relation to the rights, obligations and responsibilities that “States” have under international humanitarian law while conducting hostilities. However, this clarity is not mirrored in relation to non-governmental forces taking part in an internal conflict. Indeed, the term “individuals” does not clearly or necessarily encompass the concept of “dissident armed forces or other organized armed groups,” as specified in Article 1 of Protocol II Additional to the Geneva Conventions, which establishes the material field of application of the Protocol.
The wording of 18(2) is likewise confusing and ambiguous. The article appears to distinguish between two types of military activity, both of which are to be excluded from the material field of application of this Convention. The first is “the activities of armed forces during an armed conflict,” which suggests that the second, “activities undertaken by the military forces of a State in the exercise of their official duties,” is intended to cover military activities carried out in the absence of an armed conflict. If this is the case, a potential situation of impunity may have been allowed for, in that some serious human rights violations carried out by military personnel in times of peace – which are thus not covered by international humanitarian law – may not be covered either by the Comprehensive Convention. Further, it is not entirely clear why Article 18(2) makes a distinction between “armed forces” and “military forces of a State.”
Recommendation 3: Avoid concepts that would contradict principles of international human rights aw in the specification of acts of terrorism
The wording of Article 2(3) should not allow interpretations that could undermine the exercise of freedom of expression.
The wording of Article 2(3)(c) is confusing and could be read in a dangerously expansive manner. According to this text, an individual could be considered to have committed an offense within the meaning of the Comprehensive Convention if, for example, he or she proclaims or publishes views or opinions that are deemed to contribute “in any other way” to the commission of the other offenses described in Article 2. Thus, publishing an article expressing political purposes similar to those of, say, an armed pro-independence or autonomist group, could be seen as furthering the “purpose of the group,” even if the author of the article does not belong to or directly participate in the activities of such a group. Human Rights Watch urges that if Article 2(3) is retained, it should be modified so as to ensure that it cannot be read in any way which would allow it to be used to penalize any form of freedom of expression falling short of criminal incitement.