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.

    Comment

    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

    Comment

    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.

    Comment

    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.