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The ASEAN Regional Forum: Human Rights and Counter-terrorism
Letter delivered on the Eve of ASEAN Regional Forum Security Talks in Cambodia
June 13, 2003

Your Excellency,

The ASEAN Regional Forum has rightly focused on the threat international terrorism poses to the security and stability of the Asia-Pacific region. At your last meeting in Bandar Seri Begawan in July 2002, you pledged full support to the international campaign against terrorism, the ratification of relevant international conventions and protocols and the implementation of Security Council Resolution 1373. But across the region this strategy is being undermined by repressive measures and human rights abuses committed in the name of counter-terrorism.

Effective security will only be achieved in an environment in which human rights and democratic space are protected. Terrorism will not be defeated solely by military or security means. By indiscriminately attacking civilians, terrorism breaches the most basic values of human rights. Combating terrorism requires reaffirming human rights values, not setting them aside. State repression and human rights abuse closes off the peaceful and political expression of dissent and can channel alienation and grievance into extremism and violence.

The United Nations has stressed the importance of protecting human rights in the context of counter-terrorist measures in various resolutions adopted by the Security Council, the General Assembly and the Commission on Human Rights. But ASEAN and its dialogue partners have been conspicuously silent on this point, sending an unfortunate signal that human rights abuses can be justified in the campaign against terrorism. For instance, previous ASEAN statements on this issue, most notably the 2001 ASEAN Declaration on Joint Action to Counter Terrorism, make absolutely no reference to human rights principles. Nor do some of the major bilateral agreements between ASEAN and its dialogue partners, for instance the US-ASEAN Joint Declaration on Combating Terrorism or statements from the ASEAN-Australia ministerial forum.

This stands in marked contrast to other comparable regional organizations that have sought to build human rights safeguards into their counter-terrorist initiatives. In June 2002, the Organization of American States adopted the Inter-American Convention Against Terrorism, which makes explicit commitments on human rights. The Inter-American Commission on Human Rights has played an important role in monitoring states' compliance with their human rights obligations in the context of new security measures. 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 limits to derogation from internalized human rights treaties, 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 seek asylum and prohibition of refoulement, and safeguards on extradition. And in December 2002, the Ministerial Council of the Organization for Security Cooperation in Europe (OSCE) adopted a Charter on Preventing and Combating Terrorism in which it undertook to implement counter-terrorism measures "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."

These human rights safeguards are urgently needed in the Asia-Pacific region. Many members of the ASEAN Regional Forum have followed the terrible example set by some of their western dialogue partners, including the United States, and have used the campaign against terrorism as a pretext for human rights abuse. In some cases, they have enacted new security laws that violate basic rights and freedoms, or have denied terrorist suspects due process and the protection of law. In other cases, they have used the campaign against terrorism to justify the repression of opponents or arbitrary and punitive measures against asylum seekers and other non-nationals.

  • The Australian government has used the rhetoric of counter-terrorism to justify its hard-line policies on refugee and asylum issues and has sought extended powers of detention for its domestic security agency.

  • The Chinese government has stepped up its campaign against Uighur separatists in Xinjiang province by invoking the war on terror, blurring the distinction between peaceful activists and those with genuine connections to international terrorist organizations.

  • In many European Union member states, new laws, policies, and practices have undermined fundamental human rights protections, including the right to seek asylum and prohibitions against arbitrary detention and torture.

  • The Indian government, in the wake of an attack on its own national parliament, enacted the new Prevention of Terrorism Act (POTA) in March 2002. POTA creates an overly broad definition of terrorism and expands the state's investigative and detention powers. It closely resembles a discredited earlier security law which led to tens of thousands of politically motivated detentions, acts of torture, and other human rights violations against perceived political opponents in the late 1980s and early 1990s. Since its passage, POTA has been used against political opponents, religious minorities, Dalits, tribals and even children. In February 2003 alone, over three hundred people were arrested under the act.

  • Following the Bali bomb attack in October 2002, Indonesian President Megawati issued decrees on terrorism that the Indonesian parliament subsequently allowed to become law that seriously curb fundamental rights, invoking broad definitions of terrorism that could be used to target political opponents. Indonesian officials have begun to incorporate the term "terrorist" into their rhetoric when talking about domestic groups perceived to be a threat to the unity of Indonesia, for instance in Aceh and Papua.

  • Malaysia continues to use its widely feared and condemned Internal Security Act (ISA) to indefinitely detain terrorism and other suspects without trial. The ISA is also used to encourage self-censorship among opposition politicians, political organizers, human rights workers, and journalists.

  • Singapore now uses its own ISA to detain terrorism suspects, including dozens of members of the Islamist group Jemaah Islamiyah. The ISA does not meet basic standards for due process or fair trial as it allows for the arrest and detention without trial of those suspected of being involved in activities that might threaten national security. The Act has been regularly used against political opponents and to chill free expression and criticism of the government.

  • Russia has continued to justify its actions in Chechnya as a tightly focused counter-terrorism operation, despite the fact that these actions have produced vast civilian casualties, including extrajudicial executions and forced disappearances.

  • Many of the measures adopted by the U.S. government after the September 11 attacks have violated fundamental provisions of international human rights and humanitarian law. These included the arbitrary detention of non-citizens, secret immigration hearings for persons suspected of links to or knowledge of terrorism, the authorization of military commissions to try non-citizens suspected of terrorism that will not meet international fair trial standards, a failure to abide by the Geneva Conventions in the treatment of detainees held in US military custody in Cuba and elsewhere, and the military detention without charge or access to counsel of U.S. citizens designated as "enemy combatants."

    Safeguards are also needed to ensure that military and security cooperation among ARF members does not contribute to repression and human rights abuse. The Bush administration has renewed links with Indonesia's military (TNI) - cut off in the wake of the atrocities committed in East Timor in 1999 - as part of its counter-terrorist strategy, even though the military had not instituted any demonstrable reforms or shown any willingness to tackle impunity. Despite its well-documented record of systematic human rights abuses, Malaysia has been rewarded for its cooperation in anti-terrorism with the establishment of a U.S.-sponsored regional anti-terrorism center. American military forces have also returned to the Philippines for operations in Mindanao against the Abu Sayyef group. While Abu Sayyef has been presented as an ally of al-Qaeda, many observers in the Philippines view it as more of a kidnapping and extortion ring than a radical Islamic group. Whatever the group's underlying motives, they see it as a law enforcement problem, not one that requires a military response.

    Human Rights Watch calls on ARF members to:

  • affirm, clearly and strongly, that counter-terrorist measures must comply fully with international human rights, humanitarian and refugee law;

  • include human rights experts in all ARF working groups and discussions on counter-terrorism measures;

  • develop a dialogue and exchange program on protecting human rights in counter-terrorism with the OSCE and OAS;

  • invite the U.N. High Commissioner for Human Rights and relevant experts of the U.N. Commission on Human Rights to analyze and make recommendations at your next meeting on measures against terrorism and transnational organized crime;

  • consider fully recommendations made by the Judicial Advisory Panel of the Asia-Pacific Forum of National Human Rights Institutions which is currently examining the question of counter-terrorism;

  • include specific conditions for the protection of human rights in all bilateral treaties and agreements on security cooperation, military assistance, extradition and readmission.

    We wish you a successful meeting and look forward to continued dialogue on these important issues.

    Yours sincerely,

    Brad Adams
    Executive Director
    Asia Division
    Rory Mungoven
    Global Advocacy Director