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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