Jan 2, 2021

HUMAN RIGHTS AND TERRORISM

By Dr Baba J Adamu

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According to United Nations (UN) High Commissioner for Human Rights, terrorism has a very real and direct impact on human rights, with devastating consequences for the enjoyment of the right to life, liberty and physical integrity of victims. In addition to these individual costs, terrorism can destabilize Governments, undermine civil society, jeopardize peace and security, and threaten social, cultural, religious and economic development. All of these also have a real impact on the fulfilment of human rights.

 

Security of the individual is a basic human right and the protection of individuals is, accordingly, a fundamental obligation of Government. States, therefore, must ensure the human rights of their nationals and others by taking positive measures to protect them against the threat of terrorist acts and bringing the perpetrators of such acts to justice. In recent years, however, the measures adopted by States to counter-terrorism have themselves often posed serious challenges to human rights and the rule of law. Some countries have engaged in torture and other ill-treatment to counter-terrorism, while the legal and practical safeguards available to prevent torture, such as regular and independent monitoring of detention centres, have often been disregarded. Some other States have returned persons suspected of engaging in terrorist activities to countries where they face a real risk of torture or other serious human rights abuse, thereby violating the international legal obligation of non-refoulement. Non-refoulement is a fundamental principle of international law that forbids a country receiving asylum seekers from returning them to a country in which they would be in likely danger of persecution based on "race, religion, nationality, membership of a particular social group or political opinion" The independence of the judiciary has been undermined, in some places, while the use of exceptional courts to try civilians has had an impact on the effectiveness of regular court systems. Repressive measures have been used to stifle the voices of human rights defenders, journalists, minorities, indigenous groups and civil society. Resources normally allocated to social programs and development assistance have been diverted to the security sector, affecting the economic, social and cultural rights of many.

 

These practices, particularly when taken together, have a corrosive effect on the rule of law, good governance and human rights. They are also counterproductive to national and international efforts to combat terrorism. Respect for human rights and the rule of law must be the bedrock of the global fight against terrorism. This requires the development of national counter-terrorism strategies that seek to prevent acts of terrorism, prosecute those responsible for such criminal acts, and promote and protect human rights and the rule of law. It implies measures to address the conditions conducive to the spread of terrorism, including the lack of rule of law and violations of human rights, ethnic, national, cultural and religious discrimination, political exclusion, and socio-economic marginalization; to foster the active participation and leadership of civil society; to condemn human rights violations, prohibit them in national law, promptly investigate and prosecute them, and prevent them; and to give due attention to the rights of victims of human rights violations, for instance through restitution and compensation.

 

The human rights framework examines the impact that terrorism has on human rights concerning and other relevant international legal provisions, such as:

 

The Nature of Human Rights: Human rights are universal values and legal guarantees that protect individuals and groups against actions and omissions primarily by State agents that interfere with fundamental freedoms, entitlements and human dignity. The full spectrum of human rights involves respect for, and protection and fulfilment of, civil, cultural, religious, economic, political and social rights, as well as the right to development. Human rights are universal - in other words, they belong inherently to all human beings – and are interdependent and indivisible.

 

International Human Rights Law: International human rights law is reflected in some core international human rights treaties and customary international law. These treaties include in particular the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols. Other core universal human rights treaties are the International Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Discrimination against Women and its Optional Protocol; the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol; the Convention on the Rights of the Child and its two Optional Protocols; and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. The most recent is the International Convention for the Protection of All Persons from Enforced Disappearance, and the Convention on the Rights of Persons with Disabilities and its Optional Protocol, which were all adopted in December 2006. There is a growing body of subject-specific treaties and protocols as well as various regional treaties on the protection of human rights and fundamental freedoms.

 

International human rights law is not limited to the enumeration of rights within treaties, but also includes rights and freedoms that have become part of customary international law, which means that they bind all Countries even if they are not a party to a particular treaty. Many of the rights set out in the Universal Declaration of Human Rights are widely regarded to hold this character. The Human Rights Committee has similarly observed, in its general comments No: 24 (1994) and No: 29 (2001), that some rights in the International Covenant on Civil and Political Rights reflect norms of customary international law. Furthermore, some rights are recognized as having a special status as norms of jus cogens (peremptory norms, which refers to certain fundamental, overriding principles of customary international law), which means that there are no circumstances whatsoever in which derogation from them is permissible. The prohibitions of torture, slavery, genocide, racial discrimination and crimes against humanity, and the right to self-determination are widely recognized as peremptory norms, as reflected in the International Law Commission’s Articles on State responsibility. The International Law Commission also lists the basic rules of international humanitarian law applicable in armed conflict as examples of peremptory norms. Similarly, the Human Rights Committee has referred to arbitrary deprivation of life, torture and inhuman and degrading treatment, hostage-taking, collective punishment, arbitrary deprivation of liberty, and violations of certain due process rights as non-derogable (Derogable Rights means or describes: human rights that can be temporarily suspended by a state in a time of public emergency; for example, freedom of movement may be temporarily restricted or removed), while the Committee on the Elimination of Racial Discrimination, in its Statement on racial discrimination and measures to combat terrorism, has confirmed the principle of non-discrimination as a norm of jus cogens.

 

The Nature of States’ Obligations under International Human Rights Law: Human rights law obliges States (Countries), primarily, to do certain things and prevents them from doing others. States must respect, protect and fulfil human rights. Respect for human rights primarily involves not interfering with their enjoyment. Protection is focused on taking positive steps to ensure that others do not interfere with the enjoyment of rights. The fulfilment of those rights requires States to adopt appropriate measures, including legislative, judicial, administrative or educative measures, to fulfil their legal obligations. A State Party may be found responsible for interference by private persons or entities in the enjoyment of human rights if it has failed to exercise due diligence in protecting against such acts. For example, under the International Covenant on Civil and Political Rights, State parties should take positive measures to ensure that private persons or entities do not inflict torture or cruel, inhuman or degrading treatment or punishment on others within their power. Human rights law also places a responsibility on States to provide effective remedies in the event of violations. In the case of human rights treaties; those States that are party to a particular treaty have obligations under that treaty. There are various mechanisms for enforcing these obligations, including the evaluation by treaty-monitoring bodies of a State’s compliance with certain treaties and the ability of individuals to complain about the violation of their rights to international bodies. Moreover, and particularly relevant to some human rights challenges in countering terrorism, all Members of the United Nations are obliged to take joint and separate action in cooperation with the United Nations for the achievement of the purposes set out in Article 55 of its Charter, including universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. A key question is the territorial reach of a State’s international human rights obligations.

 

The Impact of Terrorism on Human Rights: Terrorism aims at the very destruction of human rights, democracy and the rule of law. It attacks the values that lie at the heart of the Charter of the United Nations and other international instruments: respect for human rights; the rule of law; rules governing armed conflict and the protection of civilians; tolerance among peoples and nations; and the peaceful resolution of conflict. As mentioned earlier, terrorism has a direct impact on the enjoyment of many human rights, in particular the rights to life, liberty and physical integrity. Terrorist acts can destabilize Governments, undermine civil society, jeopardize peace and security, threaten social and economic development, and may especially negatively affect certain groups. All of these have a direct impact on the enjoyment of fundamental human rights. The destructive impact of terrorism on human rights and security has been recognized at the highest level of the United Nations, notably by the Security Council, the General Assembly, the former Commission on Human Rights and the new Human Rights Council.

 

Specifically, Member States have set out that terrorism:

  • Threatens the dignity and security of human beings everywhere, endangers or takes innocent lives, creates an environment that destroys the freedom from fear of the people, jeopardizes fundamental freedoms, and aims at the destruction of human rights;

  • Harms the establishment of the rule of law and Good Governance, undermines pluralistic civil society, aims at the destruction of the democratic bases of society, and destabilizes legitimately constituted Governments;

  • Has links with transnational organized crime, drug trafficking, money-laundering and trafficking in arms, as well as illegal transfers of nuclear, chemical and biological materials, and is linked to the consequent commission of serious crimes such as murder, extortion, kidnapping, assault, hostage-taking, banditry and robbery;

  • Has adverse consequences for the economic and social development of States, jeopardizes friendly relations among States, and has a malicious impact on relations of cooperation among States, including cooperation for development; and

  • Threatens the territorial integrity and security of States, constitutes a grave violation of the purpose and principles of the United Nations, is a threat to international peace and security, and must be suppressed as an essential element for the maintenance of international peace and security.

International and regional human rights law makes clear that States have both a right and a duty to protect individuals under their jurisdiction from terrorist attacks. This stems from the general obligatory-duty of States to protect individuals under their jurisdiction against interference in the enjoyment of human rights. More specifically, this duty is recognized as part of the States’ obligations to ensure respect for the right to life and the right to security. The right to life, which is protected under international and regional human rights treaties, such as the International Covenant on Civil and Political Rights, has been described as “the supreme right” because, without its effective guarantee, all other human rights would be without meaning. As such, there is an obligation on the part of the State to protect the right to life of every person within its territory and no derogation from this right is permitted, even in times of public emergency. As part of this obligation, States must put in place effective criminal justice and law enforcement systems, such as measures to deter the commission of offences and investigate violations where they occur; ensure that those suspected of criminal acts are prosecuted; provide victims with effective remedies, and take other necessary steps to prevent a recurrence of violations.

 

To fulfil their obligations under human rights law to protect the life and security of individuals under their jurisdiction, States have a right and a duty to take effective counter-terrorism measures, to prevent and deter future terrorist attacks and to prosecute those that are responsible for carrying out such acts. At the same time, the countering of terrorism poses grave challenges to the protection and promotion of human rights. As part of States’ duty to protect individuals within their jurisdiction, all measures taken to combat terrorism must themselves also comply with States’ obligations under international law, in particular international human rights, refugee and humanitarian law.

 

Accountability and the Human Rights of Victims: From a human rights perspective, support for victims in the context of terrorism is a paramount concern. While efforts immediately following the events of 11 September 2001 largely failed to give due consideration to the human rights of victims, there is increasing recognition of the need for the international community to take fully into account the human rights of all victims of terrorism. In the 2005 World Summit Outcome (General Assembly resolution 60/1), for example, Member States stressed “the importance of assisting victims of terrorism and of providing them and their families with support to cope with their loss and their grief.” Similarly, the United Nations Global Counter-Terrorism Strategy reflects the pledge by the Member States to “promote international solidarity in support of victims and foster the involvement of civil society in a global campaign against terrorism and for its condemnation.” In addressing the needs of victims of terrorism, consideration must be given to the distinction between victims of crime, on the one hand, and victims of human rights violations, on the other, although this distinction is not always clear-cut. Acts constituting human rights violations are committed primarily by organs or persons in the name of, or on behalf of, the State. In some circumstances, however, the State may be responsible for the acts of private individuals that may constitute a violation of international human rights law.

 

According to the Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power, set out in UN General Assembly resolution 40/34, victims include “persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that violate criminal laws operative within the Member States, including those laws proscribing criminal abuse of power.” Importantly, the Declaration notes that an individual may be considered a victim “regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim”. The term victim may include “the immediate family or dependants of the direct victim, as well as persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.” The Declaration further outlines the minimum standards for the treatment of these victims according to several basic principles of justice. These require that victims should:

  • Be treated with compassion and respect for their dignity;

  • Be informed about, and have their views and concerns presented at, legal proceedings;

  • Be entitled to proper assistance throughout the legal process;

  • Be protected against intimidation and retaliation;

  • Have their privacy protected;

  • Be offered the opportunity to participate in informal mechanisms for the resolution of disputes, including mediation;

  • Enjoy restitution and compensation, as appropriate; and

  • Receive the necessary material, medical, psychological and social assistance.

The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted in 2005 by the General Assembly in its resolution 60/147, underscore the need for victims to be treated with humanity and respect for their dignity and human rights and emphasize that appropriate measures should be taken to ensure their safety, remedies, physical and psychological well-being and privacy, as well as those of their families.

 

Terrorism and other Aspects of International humanitarian law

Terrorism and International Humanitarian Law: International humanitarian law contains a set of rules on the protection of persons in “armed conflict”, as that term is understood in the relevant treaties, as well as on the conduct of hostilities. These rules are reflected in some treaties, including the four Geneva Conventions and their two Additional Protocols, as well as many other international instruments aimed at reducing human suffering in armed conflict. Many of their provisions are now also recognized as customary international law.

 

International humanitarian law prohibits many acts committed in armed conflict which would be considered terrorist acts if they were committed in times of peace. For example, deliberate acts of violence against civilians and civilian objects constitute war crimes under international law, for which individuals may be prosecuted. This rule derives from the fundamental principle of international humanitarian law related to the protection of civilians in armed conflict, namely the principle of distinction. According to this principle, all parties to a conflict must at all times distinguish between civilians and combatants. In essence, this means that attacks may be directed only at military objectives, i.e., those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances applicable at the time, offers a definite military advantage. Civilians lose their protection as civilians for such time as they participate directly in the hostilities. Furthermore, indiscriminate attacks are strictly prohibited according to international humanitarian law. This includes attacks that are not directed at a specific military objective, employ a method or means of combat which cannot be directed at a specific military objective, or employ a method or means of combat the effects of which cannot be limited as required by international humanitarian law, and consequently are of a nature to strike military objectives and civilians or civilian objects without distinction. Indiscriminate attacks include disproportionate attacks, which are also prohibited. International humanitarian law also specifically prohibits “measures of terrorism” or “acts of terrorism.” These prohibitions aim to highlight individual criminal accountability and protect against collective punishment and “all measures of intimidation or terrorism.”

 

The International Court of Justice has also affirmed the applicability of the Covenant during armed conflicts, stating that “the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis (Lex specialis, in legal theory and practice, is a doctrine relating to the interpretation of laws and can apply in both domestic and international law contexts. The doctrine states that if two laws govern the same factual situation, a law governing a specific subject matter (lex specialis) overrides a law governing only general matters [lex generalis]), namely, the law applicable in armed conflict.” In its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the Court further posited the applicability of human rights law in times of armed conflict, stating “the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in article 4 of the [International Covenant on Civil and Political Rights].” Another example, the Court applied both human rights law and international humanitarian law to the armed conflict between the Democratic Republic of the Congo and Uganda. Acts of terrorism that are committed outside of armed conflict generally constitute crimes under domestic and, depending on the circumstances, international criminal law and thus should be regulated through the enforcement of domestic and international criminal law.

 

Terrorism and International Criminal Law: Over four decades, the international community, under the auspices of the United Nations, has developed 13 conventions relating to the prevention and suppression of terrorism. These so-called sectoral instruments, which address issues ranging from the unlawful seizure of aircraft and the taking of hostages to the suppression of terrorist bombings, contribute to the global legal regime against terrorism and provide a framework for international cooperation. They require states to take specific measures to prevent the commission of terrorist acts and prohibit terrorist-related offences, including by obliging States parties to criminalize specific conduct, establish certain jurisdictional criteria (including the well-known principle of aut dedere aut judicare (In law, the principle of aut dedere aut judicare ( Latin for "either extradite or prosecute ") refers to the legal obligation of states under public international law to prosecute persons who commit serious international crimes where no other state has requested extradition), and provide a legal basis for cooperation on extradition and legal assistance. Most of these treaties relating to specific aspects of terrorism define specified acts as offences and require States to criminalize them. They cover offences linked to the financing of terrorism, offences based on the victim’s status (such as hostage-taking and crimes against internationally protected persons), offences linked to civil aviation, offences linked to ships and fixed platforms, and offences linked to dangerous materials. According to the International Convention for the Suppression of the Financing of Terrorism, for example, terrorism includes any “act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.” It requires the penalization of specific offences related to the financing of terrorism thus defined.

 

The  UN Security Council has recognized the ratification and effective implementation of the universal anti-terrorism instruments as a top priority. On 28 September 2001, acting under Chapter VII of the Charter of the United Nations, it adopted resolution 1373 (2001), stating explicitly that every act of terrorism constitutes a “threat to international peace and security” and that the “acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations.” The resolution also requires all States to criminalize terrorist acts; to penalize acts of support for or in preparation of terrorist offences; to criminalize the financing of terrorism; to depoliticize terrorist offences; to freeze funds of persons who commit or attempt to commit terrorist acts, and to strengthen international cooperation in criminal matters. Depending on the context in which terrorist acts occur, they may also constitute crimes under international law. During the drawing-up of the Rome Statute of the International Criminal Court, several delegations argued for the inclusion of terrorism in the jurisdiction of the Court as a separate crime. The majority of States disagreed, however, precisely because of the issue of the definition. The Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of the International Criminal Court, adopted in Rome on 17 July 1998, recommended that a Review Conference of the Rome Statute, which may take place seven years following the entry into force of the Statute, namely in 2009, should consider several crimes, including terrorism, to arrive at an acceptable definition and their inclusion in the list of crimes within the jurisdiction of the Court. Although the Rome Statute does not include “terrorism” as a separate crime, it does contain various offences which may include terrorist conduct, depending on the particular facts and circumstances of each case. A terrorist act might constitute a crime against humanity, an offence defined under article 7 of the Rome Statute to include certain acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Moreover, acts such as deliberate or indiscriminate attacks against civilians or hostage-taking might fall under war crimes, as defined under article 8 of the Rome Statute. The international criminal law provisions against terrorism have also been addressed in practice by international tribunals. In 2003, the International Criminal Tribunal for the former Yugoslavia convicted, for the first time, an individual for his responsibility for the war crime of terror against the civilian population in Sarajevo, under article 3 of its statute. The Court concluded that the crime of terror against the civilian population was constituted of elements common to other war crimes, in addition to further elements that it drew from the International Convention for the Suppression of the Financing of Terrorism.

 

Terrorism and International Refugee Law: Alongside the general obligations of human rights law, international refugee law is the body of law that provides a specific legal framework for the protection of refugees by defining the term refugee, setting out States’ obligations to them and establishing standards for their treatment. Aspects of international refugee law also relate to persons seeking asylum. The 1951 Convention relating to the Status of Refugees and its 1967 Protocol relating to the Status of Refugees are the two universal instruments in international refugee law. About terrorism and measures taken to counter it, both incorporate a system of checks and balances that takes full account of the security interests of States and host communities while protecting the rights of persons who, unlike other categories of foreigners, no longer enjoy the protection of their country of origin.

 

For example, States are required to prevent the movement of terrorists by implementing effective border controls and to secure the integrity of identity papers and travel documents (UN Security Council resolution 1373 (2001) para. 2 (g)). States are also called upon to ensure 16 that asylum-seekers that have planned, facilitated or participated in the commission of terrorist acts are not granted refugee status (same resolution para. 3 (f)), and that refugee status is not abused by perpetrators, organizers or facilitators of terrorist acts (para. 3 (g)

 

If a person has already been granted refugee status under the 1951 Convention, such status may be cancelled if there are grounds for considering that the person should not have been recognized as a refugee in the first place. This is the case where there are indications that, at the time of the initial decision, the applicant did not meet the inclusion criteria of the 1951 Convention, or that an exclusion clause of that Convention should have been applied to him or her. This might include evidence that the person committed terrorist acts. Cancellation of refugee status is in keeping with the object and purpose of the 1951 Convention if it is established, in proper procedures, that the person did not fall within the refugee definition at the time of recognition. Counter-terrorism and national security measures undertaken by States have also had, in some cases, an adverse impact on refugee protection. These include unduly restrictive legislative and administrative measures, lack of access to asylum procedures, and the “criminalization” of refugees and asylum-seekers, which has negatively affected public perception.

 

Specific Human Rights Challenges in the Context of Counter-Terrorism

Both terrorism and counter-terrorism (see 2.13) affect the enjoyment of human rights, here are identified as a selection of current and emerging human rights challenges:

 

The Right to Life: Both international and regional human rights laws recognize the right and duty of States to protect those individuals subject to their jurisdiction. In practice, however, some of the measures that States have adopted to protect individuals from acts of terrorism have themselves posed grave challenges to the right to life. They include “deliberate” or “targeted killings” to eliminate specific individuals as an alternative to arresting them and bringing them to justice. The Human Rights Committee has stated that targeted killings should not be used as a deterrent or punishment and that the utmost consideration should be given to the principle of proportionality. State policies should be spelled out clearly in guidelines to military commanders and complaints about the disproportionate use of force should be investigated promptly by an independent body. Before any contemplation of resort to the use of deadly force, all measures to arrest a person suspected of being in the process of committing acts of terror must be exhausted. In other cases, states have adopted “shoot-to-kill” law enforcement policies in response to perceived terrorist threats. In the context of counterterrorism, the High Commissioner for Human Rights has emphasized the importance of ensuring that the entire law enforcement machinery, from police officers to prosecutors and officers operating detention and prison facilities, operates within the law. In the fight against terrorism, extreme vigilance should be applied by those in a position of authority against all forms of abuse of power, and that they should instil a culture of respect for the law above all by those entrusted with its application. As noted by the Special Rapporteur on extrajudicial, summary or arbitrary executions, “the rhetoric of shoot-to-kill and its equivalents poses a deep and enduring threat to human rights-based law enforcement approaches. Much like invocations of ‘targeted killing,’ shoot-to-kill is used to imply a new approach and to suggest that it is futile to operate inside the law in the face of terrorism.

 

However, human rights law already permits the use of lethal force when doing so is strictly necessary to save human life. The rhetoric of shoot-to-kill serves only to displace clear legal standards with a vaguely defined licence to kill, risking confusion among law enforcement officers, endangering innocent persons, and rationalizing mistakes, while avoiding the genuinely difficult challenges that are posed by the relevant threat.” The Special Rapporteur has further suggested that States that adopt shoot-to-kill policies for dealing with, for example, suicide bombers “must develop legal frameworks to properly incorporate intelligence information and analysis into both the operational planning and post-incident accountability phases of State responsibility.” They must further ensure that “only such solid information, combined with the adoption of appropriate procedural safeguards, will lead to the use of lethal force.”

 

Under international and regional human rights law, the protection against arbitrary deprivation of life is non-derogable even in a state of emergency threatening the life of the nation. The Human Rights Committee has stated that “the protection against arbitrary deprivation of life… is of paramount importance. The Committee considers that States parties should take measures… to prevent arbitrary killing by their security forces. The deprivation of life by the authorities of the State is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities.” To comply with international human rights law, any State policy which allows the use of lethal force must, therefore, fall within those narrow cases in which the deprivation of life cannot be considered arbitrary. To be considered lawful, the use of lethal force must always comply with the principle of necessity and must be used in a situation in which it is necessary for self-defence or the defence of another’s life. It must always comply with the principle of proportionality, and non-lethal tactics for capture or prevention must always be attempted if feasible. In most circumstances, law enforcement officers must allow suspects to surrender and employ a graduated resort to force. “The State’s legal framework must ‘strictly control and limit the circumstances’ in which law enforcement officers may resort to lethal force.” International humanitarian law contains similar provisions against the “targeted killing” of civilians in the context of an armed conflict.

 

Challenges to the Absolute Prohibition against Torture: The prohibition of torture and other cruel, inhuman or degrading treatment or punishment is absolute under international law. It is a peremptory norm or a norm of jus cogens and is non-derogable even in states of emergency threatening the life of the nation under international and regional human rights treaties. The prohibition of torture and other cruel, inhuman or degrading treatment does not yield to the threat posed by terrorism or to the alleged danger posed by an individual to the security of a State. In practice, however, States have often adopted policies and methods to confront terrorism that, in effect, circumvent and undermine this absolute prohibition. For example, the use of torture and other cruel, inhuman or degrading treatment to elicit information from terrorist suspects is prohibited, as is the use in legal proceedings of evidence obtained by torture, whether at home or abroad, and of “secret evidence” put forward by prosecuting and other authorities in judicial proceedings, in violation of the principle of non-admissibility of evidence extracted by torture, contained inter alia in article 15 of the Convention against Torture.

 

Similarly, the International Court of Justice has stated that, while the jurisdiction of States is primarily territorial, the rights enshrined in the Covenant extend “to acts done by a State in the exercise of its jurisdiction outside its territory.” Regarding conditions of detention, practices such as the use of secret and incommunicado detention, as well as prolonged solitary confinement and similar measures aimed at causing stress, may amount to torture, cruel, inhuman or degrading treatment. States must ensure that the full range of legal and practical safeguards to prevent torture is available, including guarantees related to the right to personal liberty and security, and due process rights. These are, for instance, the right for anyone arrested or detained on criminal charges to be brought promptly before a judge and to be tried within a reasonable amount of time or to be released. They also include the right promptly to challenge the lawfulness of one’s detention before a court. The High Commissioner for Human Rights has encouraged all States to sign and ratify this instrument as an important practical measure and a demonstration of their commitment to preventing torture and ill-treatment and protecting the human rights of those within their jurisdiction.

 

Transfer of Individuals Suspected of Terrorist Activity: States must conduct any transfer of detainees in a manner which is transparent and consistent with human rights and the rule of law, including the right to respect for a person’s inherent dignity, the right of everyone to recognition before the law and the right to due process. The international human rights legal framework requires that any deprivation of liberty should be based on grounds and procedures established by law, that detainees should be informed of the reasons for their detention and promptly notified of the charges against them, and that they should be provided with access to legal counsel. Besides, prompt and effective oversight of detention by a judicial officer must be ensured to verify the legality of the detention and to protect other fundamental rights of the detainee. Even in a state of emergency, minimum access to legal counsel and prescribed reasonable limits on the length of preventive detention remain mandatory. Moreover, national authorities must prevent human rights abuses and to actively investigate and prosecute any allegation of practices that may involve the transfer or detention of individuals in a manner inconsistent with their obligations under international law.

 

Liberty and Security of the Person: All persons are protected against unlawful or arbitrary interference with their liberty. This protection is applicable in the context of criminal proceedings, as well as other areas in which the State might affect the liberty of persons. In practice, as part of their efforts to counter terrorism, States have adopted measures that have an impact on the liberty of persons, such as:

  • Pre-Trial procedures for terrorism offences, including provisions concerning bail and the remand of persons in custody awaiting trial;

  • Pre-Trial detention (detention before laying a criminal charge against a person to further investigate whether that person was involved in the commission, or assisted in the commission, of a terrorist offence);

  • Administrative detention (detention to prevent a person from committing, or assisting in the commission of, a terrorist offence);

  • Control orders (imposing conditions on a person, short of detention, to prevent that person from committing, or assisting in the commission of, a terrorist offence, including the detention of a person awaiting determination of immigration or refugee status); and

  • Compulsory hearings (detention and compulsory questioning of a terrorist suspect, or non-suspect, to gather intelligence about terrorist activities).

As part of its efforts to counter terrorism, a State may lawfully detain persons suspected of terrorist activity, as with any other crime. However, if a measure involves the deprivation of an individual’s liberty, strict compliance with international and regional human rights law related to the liberty and security of persons, the right to recognition before the law and the right to due process is essential. Any such measures must, at the very least, provide for judicial scrutiny and the ability of detained persons to have the lawfulness of their detention determined by a judicial authority. Adherence to due process and the right to a fair hearing is essential for the proper safeguarding of a person’s liberty and security.

 

Profiling and the Principle of Non-Discrimination: The principles of equality and non-discrimination are central to human rights law and are recognized as norms of jus cogens. The Inter-American Court of Human Rights, for example, has stated that “the principle of equality before the law, equal protection before the law and non-discrimination belong to jus cogens because the whole legal structure of national and international public order rests on it and it is a principle that permeates all law.” In the specific context of counter-terrorism, the Committee on the Elimination of Racial Discrimination has said that the principle of non-discrimination is not capable of limitation since it has become a norm of jus cogens. This is reflected within various international and regional documents on the promotion and protection of human rights while countering terrorism.

 

The use of indicator clusters to profile potential suspects may, in principle, be a permissible means of investigation and can be an important law enforcement tool. Profiling is a filtering process involving a single indicator or a cluster of indicators that, when grouped, present the characteristics of a high-risk person, passenger, group or consignment. When law enforcement agents use broad profiles that reflect unexamined generalizations, including counter-terrorism, these practices may constitute a disproportionate interference with human rights. In particular, if one of the indicators on which profiling is based is a person’s ethnic, religion or national origin, this raises the question of the conformity of profiling with the principle of non-discrimination.

 

In its general recommendation, the Committee on the Elimination of Racial Discrimination has called on States to ensure that any measures taken in the fight against terrorism do not discriminate, in purpose or effect, on the grounds of race, colour, descent, religion or national or ethnic origin and that non-citizens are not subjected to racial or ethnic profiling or stereotyping. At the regional level, the Inter-American Commission on Human Rights has cautioned that “any use of profiling or similar devices by a State must comply strictly with international principles governing necessity, proportionality and non-discrimination, and must be subject to close judicial scrutiny.” The European Commission against Racism and Intolerance has asked Governments to ensure that no discrimination ensues from legislation and regulations, or their implementation, in the field of law enforcement checks. Finally, the European Union Network of Independent Experts on Fundamental Rights has expressed serious concerns about the development of terrorist profiles; profiling based on characteristics such as nationality, age or birthplace, the Experts have cautioned, “presents a major risk of discrimination.” This is also applicable to the profiling of persons based on their religion. Profiling or similar devices must strictly comply with the principles of necessity, proportionality and non-discrimination; they should be subject to close judicial scrutiny and should be periodically reviewed.

 

Due Process and the Right to a Fair Trial: Guaranteeing due process rights, including for individuals suspected of terrorist activity, is critical for ensuring that anti-terrorism measures are effective and respect the rule of law. The human rights protections for all persons charged with criminal offences, including terrorism-related crimes, include the right to be presumed innocent, the right to a hearing with due guarantees and within a reasonable time, by a competent, independent and impartial tribunal, and the right to have a conviction and sentence reviewed by a higher tribunal satisfying the same standards. International humanitarian law provides for substantially similar protections for the trial of persons in the context of armed conflicts.

 

Freedom of Association: The right to freedom of association, like the right to freedom of expression, is a platform for the exercise and defence of other rights, such as political participation rights and cultural rights or religious rights. Human rights defenders often use this right as a legal basis for their action. It is central to a democratic society. However, it is often limited by States in their response to a real or perceived terrorist threat. While the right to freedom of association may be subject to derogations and limitations under most human rights treaties, clear safeguards must exist to ensure that they are not used to curb the rights of political opposition parties, trade unions or human rights defenders. As such, the onus must be on the State to show that the measures taken to fall within the permissible aims under international human rights law. This implies that States must not claim that the rights-limiting measures are taken to preserve national security when they are taken to effectively stifle all opposition or to repress its population. In addition to ensuring that the principles of necessity and proportionality are respected in all cases, specific safeguards are required to ensure that the limitations to the right to freedom of association are construed narrowly.

 

All measures which result in a limitation on the right to freedom of association must be subject to judicial oversight. “Civilian courts must have jurisdiction to review the provisions and supervise the application of all counter-terrorism measures without any pressure or interference, particularly from the other branches of government.” This principle is fundamental in the context of counter-terrorism, where classified or confidential information may be used as the basis for a decision to proscribe an organization or to place an organization on a terrorist list. The Special Rapporteur on human rights and counter-terrorism has, likewise, stressed the importance of ensuring that all decisions which limit human rights are overseen by the judiciary, so that they remain lawful, appropriate, proportionate and effective, and so that the Government may ultimately be held accountable for limiting the human rights of individuals.

 

Surveillance, Data Protection and the Right to Privacy: Article 17 of the International Covenant on Civil and Political Rights prohibits States parties from interfering with the privacy of those within their jurisdiction and requires them to protect those persons by law against arbitrary or unlawful interference with their privacy. Privacy includes information about an individual’s identity, as well as the private life of the person. Most states have stepped up security at airports and other places of transit, for instance by collecting biometric data from passengers (such as eye scans and fingerprints), photographs, passport details and the like. States have for a long time provided their security intelligence services with powers of surveillance, including wiretapping and the use of tracking devices. Some States have significantly extended these surveillance powers in recent years. All of these practices involve the collection of information about a person. They, therefore, limit the privacy of such persons, as well as raising questions about how the data are to be protected. Interference with privacy also arises in the security screening and searching of persons. Any act which has an impact on a person’s privacy must be lawful, i.e., it must be prescribed by law. This means that any search, surveillance or collection of data about a person must be authorized by law. The extent to which this occurs must not be arbitrary, which in turn requires that the legislation must not be unjust, unpredictable or unreasonable.

 

The law authorizing interference with privacy must specify in detail the precise circumstances in which the interference is permitted and must not be implemented in a discriminatory manner. This does not mean, however, that States enjoy an unlimited discretion to interfere with privacy since any limitation on rights must be necessary to achieve legitimate purposes and be proportionate to those purposes. Regard must also be had to the obligation of States to protect against the arbitrary exercise of such authorizations. Thus, in Klass v. Germany for example, the European Court of Human Rights stated that it must be satisfied that any system of secret surveillance conducted by the State must be accompanied by adequate and effective guarantees against abuse.

 

The Council of Europe’s Guidelines on human rights and the fight against terrorism, for example, state: “Within the context of the fight against terrorism, the collection and the processing of personal data by any competent authority in the field of State security may interfere with the respect for private life only if such collection and processing, in particular:

  • Are governed by appropriate provisions of domestic law;

  • Are proportionate to the aim for which the collection and the processing were foreseen;

  • May be subjected to supervision by an external independent authority.

Another individual privacy concern is the Covid-19 “immunity passports” which the World Health Organization has been critical of. The expected rollout of a Covid-19 vaccine is raising interest in creating ways to quickly recognize who has been immunized and who has not, that could allow people who can prove they have received the full vaccine dose - or have already survived the disease and may have immunity that way - to travel with fewer restrictions, or attend concerts and sporting events without getting tested. “Identity systems based on globally unique identifiers are by nature against privacy, and putting them on a blockchain does not change this fundamental dichotomy,” said Halpin, the author of the paper “Vision: A Critique of Immunity Passports and the World Wide Web Consortium (W3C) Decentralized Identifiers.” He further stressed that “In fact, putting this data on a blockchain tends to make privacy problems worse, and it’s not clear that hand-waving about zero-knowledge proofs changes the situation”. According to Alexandra Phelan, an assistant professor at Georgetown University Medical Center “Immunity passports would impose an artificial restriction on who can and cannot participate in social, civic and economic activities,”

 

The idea of immunity passports has been around for months. The idea is that if someone had Covid-19, they would be immune for some time and could have their status verified digitally. The concerns with such proposals are numerous, including the ways such sensitive information is stored, how it’s verified and how it curtails or impacts upon people’s rights.

 

Generally, a digital identity is seen as a unique identifier connected to a set of variables, like a person’s name, citizenship or, in this case, immunity status. A goal of many companies in the blockchain space is the creation of a “self-sovereign identity,” which gives people the ability to control the way their identifiers can be accessed by others, without giving up their identity or information, as opposed to relying on a centralized government or company.

 

The United Kingdom was the first Western nation to approve a Covid-19 vaccine for emergency use and the first nation in the world to approve Pfizer/BioNTech vaccine on December 2, 2020. Though the vaccine candidate has been developed by pharma collaboration between the US and Germany, the UK raced past both of them in approval. The island kingdom of Bahrain became the second nation to grant emergency-use authorization to Pfizer. Its approval came on December 5, 2020. Bahrain announced a free Covid-19 vaccine for its public. On December 9, 2020, Canada’s health regulator approved the Pfizer vaccine. Canada is set to receive up to 249,000 doses in December and 4 million doses of the vaccine by March 2021. The Kingdom of Saudi Arabia Food and Drug Authority on December 10, 2020, approved the Pfizer vaccine candidate for emergency use in the kingdom. The Mexican government’s medical safety commission approved the emergency use of the Pfizer-BioNTech coronavirus vaccine. Mexico is set to receive 250,000 doses of the vaccine, enough for 125,000 people because each person requires two shots. Israel has already received its first batch of Pfizer vaccine and the mass vaccination drive will start from December 27, 2020, though the vaccine is yet to receive approvals from its regulatory body. Prime Minister Benjamin Netanyahu may receive the first vaccine in the state of Israel. The United States on Saturday, Dec 12, 2020, became the latest addition to the number of countries that have already given nod to emergency-use vaccination. “We have delivered a safe and effective vaccine in just nine months. This is one of the greatest scientific accomplishments in history. It will save millions of lives and soon end the pandemic once and for all. I am thrilled to report that the FDA has authorized the Pfizer vaccine,” US President Donald Trump said.

 

But the idea of an immunity passport as it relates to individual privacy still lingers. Think of it a bit as a bitcoin wallet address, which lets a user-pay you without ever having to know your name, for example. Compare this transaction to sending money to someone’s bank account: The bank needs to know both who you are as well as the individual to whom you’re sending money. A core part of resolving this problem was that it seemed a central database was needed to resolve or verify these unique identifiers. Block-chain technology seemingly resolved this need by letting information be stored in a decentralized manner, and prompted a resurgence of interest, along with W3C to put forth standards for this idea.  At the core of Halpin’s critique of VCs is that they are made for data integration rather than privacy. The standards can be based on the Semantic Web (an extension of the internet based on standards set by the W3C), to make data readable by machines. The details of the argument are quite technical but hit on a couple of key points. One is that W3C VCs are just signed digital documents. They use a serialization or the process by which code and data are converted into a form where it can be transmitted, whose only use case is data fusion. Data fusion is the process of integrating data from multiple sources. In other words, on a technical level, the standards data model isn’t built with privacy at its core. Instead, it’s an optional add-on. “The Semantic Web is useful for data fusion across databases, which is useful for open public data,” said Halpin. “When you combine the Semantic Web with personal data and globally unique identifiers like DIDs, it conceivably could be used in use cases like tracking down immigrants by the [U.S.] Department of Homeland Security. I honestly can’t see any reason why corona test results would be attached to a DID, and the only answer that seems plausible is dangerous data fusion with other sensitive data by governments.”

 

Halpin writes that this model based on data integration can be exploited by signature exclusion and signature replacement attacks. In such an attack, a bad actor removes the signature of a signed message or digital document, and replaces it with another signature, thereby tricking a verifier into accepting the invalid message as valid. According to Renieris, the biggest problem with the DID specifications is they are just a data format, something that’s poorly understood by the community and for-profit companies pushing this narrative. Elizabeth Renieris is a data privacy lawyer and a Technology & Human Rights Fellow at the Carr Center for Human Rights Policy at the Harvard Kennedy School in Cambridge, USA.

 

“It does not embed any security protocols or access controls and there is no way to prove that the holder of a credential is even the subject of that credential,” she said in an email. “This opens the door to massive fraud,” Halpin argues that DIDs are also, by nature, contradictory to privacy. At the heart of arguments about privacy is how to link one entity to an action. If the goal of an adversary is to identify you, then assigning you a globally unique identifier that is reused makes uncovering your identity much easier.

 

“The most concrete immunity passport proposal dangerously puts the hash of personal data on the block-chain. Even the use of blockchain technology by specifying the resolution of an on-chain mapping of an identifier to a key in systems like Sovrin ends up being a redirect to centralized servers, undermining a claim of the block-chain promoting decentralization,” wrote Halpin. “As the use of block-chain technology does not seem necessary for the goals of the immunity passports and likely hinders rather than helps privacy, immunity passports - and more widely both W3C DIDs and VCs - use block-chain for blockchain's sake.” Privacy needs to be at the core of such systems, not an optional afterthought, he said.

 

Economic, Social, Cultural and Religious Rights: Efforts to address the human rights implications of terrorism and counterterrorism measures have tended to focus on the protection of civil and political rights, with little attention paid to their impact on the enjoyment of economic, social, cultural and religious rights, as well as on broader development objectives. It will be impossible to achieve global security objectives without concerted efforts towards the realization of all human rights. Greater efforts must therefore be made to understand and address the linkages between terrorism and the enjoyment of economic, social and cultural rights. This is important first, to prevent the conditions conducive to the spread of terrorism; and second, the impact of certain counter-terrorism measures on the enjoyment of such rights.

 

Through the Global Counter-Terrorism Strategy Plan of Action, Member States recognize the need to tackle the conditions conducive to the spread of terrorism, including by addressing issues such as socio-economic marginalization, failure to respect human rights and a lack of good governance. These linkages are complex and require careful consideration and analysis. It is clear, for example, that economic and social development, including through international cooperation and assistance, can play a role in reducing support for terrorism by preventing the conditions that give rise to violence in general and to terrorism in particular, and by contributing to long-term social and economic stability. This may include measures to support structural stability, deny groups or individuals the means to carry out acts of terrorism and sustain international cooperation. Conversely, the diversion of resources normally allocated to social and economic programmes and sectors (such as education, health, water and sanitation), development assistance and poverty reduction, in favour of security and counter-terrorism programming may have serious consequences for the affected countries and communities.

 

As stated by the Development Assistance Committee of the Organisation for Economic Development and Co-operation (OECD), aid allocations should be calibrated carefully where the prevention of terrorism is a relevant development objective. In particular, “budget reallocations [should be] preceded by in-depth analysis of need and aid effectiveness so that development aid contributes to long-term structural stability and does not become an instrument of non-development interests.” The adoption of specific counter-terrorism measures may also have a direct impact on the enjoyment of economic, social, cultural and religious rights. For example, targeted sanctions against individuals suspected of involvement in terrorist activity, such as freezing their financial assets or imposing travel restrictions on them, maybe an effective means for tracking, and even preventing, terrorist activity.

 

However, the current targeted sanctions regime poses some serious challenges, in particular related to the lack of transparency and due process in listing and de-listing procedures. Targeted sanctions that result in freezing assets, imposing travel bans and other restrictions may also have serious consequences for the ability of the affected individuals and their families to enjoy economic and social rights, as their access to education and employment may be severely restricted. The effective use of humanitarian exemptions may be one important means for limiting the negative impact of targeted sanctions on the enjoyment of economic, social and cultural rights. Similarly, repressive security measures (such as control orders and the construction of physical barriers to limit the movement of certain individuals and groups), adopted to counter-terrorism, have severely restricted the ability of certain individuals and populations to work, and their rights to education, health services and family life. A human rights analysis of the impact of these counter-terrorism measures merits particular consideration in the light of the serious consequences they may have for the individual, as well as for his or her family and community.

 
 
 

 

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