A panel composed of eight judges and lawyers took three years, conducting 16 hearings in 40 countries, to complete a 213-page report about the impact of counter-terrorism policies worldwide. The International Commission of Jurists (ICJ) organised an event, chaired by Baroness Helen Kennedy QC, for the London launch of its report Assessing Damage, Urging Action.
Panel chair Justice Arthur Chaskalson (South Africa) reminded the audience that terrorism is a real threat that should not be underestimated. Governments have a duty to take action, based in law. Justice Chaskalson is concerned the picture the panel developed while working on this report is worse than what they expected. There has been a paradigm shift from the second half of last century to the last seven years; from the development of the Universal Declarations of Human Rights to greater control, greater surveillance and less rights.
Hina Jilani (Pakistan) and Mary Robinson (Ireland) both reiterated how much they were taken aback by the amount of damage that has been done by counter-terrorism policies worldwide, by the cumulative impact, how much damage has been done. Talking about intelligence services and calling for effective monitoring and accountability, Ms Jilani pointed out collusion between as a key issue. Not just collusion in lawlessness, but also collusion in covering up. Another key issue is the secrecy that seeps into the system leading to detention incommunicado, practices leading to torture, etc. Ms Robinson concluded that it's time to take stock and act to repeal abusive laws and policies (see below for key recommendations).
After Eric Metcalfe, from Justice, went through Key issues in the UK counter-terrorism policy since 9/11, Roger Smith, Justice's director, suggested we need to go through a process of recognising what we have done and then disown it. One law that could follow this process is the Identity Cards Act!
To a question from Liberty about whether the panel would agree to recommend MPs to abandon control orders when they will be reviewed soon, Both Justice Chaskalson and Hina Jilani said that personally they dislike control orders. A reason for this dislike is that they are not sure what they achieve. Common outcomes for those subject to control orders are to either abscond or to end up being criminalised for breach of the conditions of the control order. Mary Robinson was also concerned by the extent of the conditions such as the up to 16 hours staying at home every day (for control orders that do not derogate from the European Convention of Human Rights).
To a question by this reporter about the many definitions of terrorism, Justice Chaskalson pointed out that creating a new definition was out of the scope set by the ICJ. However a definition of terrorism that has wide international agreement is that of 'criminal acts committed with the intent to cause death or serious bodily injury [(i.e., excluding damage to property)] with the purpose of provoking terror in order to compel governments or international organisations to do or abstain doing any act'. The focus in on the act rather than on the actor, i.e. anyone performing an act of terrorism is a terrorist - be it an individual, an organisation or a state.
UPDATE: There's a very good interview of Mary Robinson with Riz Khan on Al Jazeera (you can also get the video or just the audio on iTunes)
Key recommendations [from the report]
Each chapter of this report sets out the Panel's detailed recommendations and provides a fuller argumentation for each proposal. The following is a summary of the key recommendations:
1. stocktaking and repairing the damage
There is a need to take stock, take remedial action, and make a fresh start. Measures need to be taken at the international, regional and national levels:
a. Internationally: All UN bodies, including the Security Council, should take a leadership role in restoring respect for human rights in the counter-terrorism efforts of its agencies and member States. In particular, the Human Rights Council should develop a detailed plan of action and ensure a systematic follow-up to the recommendations of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.
b. Regionally: Relevant organisations should conduct a comprehensive review of regional agreements and measures on counter-terrorism, and review, where necessary, the mechanisms to ensure compliance with human rights standards, including mechanisms for monitoring implementation by member States.
c. Nationally: States should undertake comprehensive reviews of their counter-terrorism laws, policies and practices, including in particular the extent to which they ensure effective accountability, and their impact on civil society and minority communities. States should adopt such changes as are necessary to ensure that they are fully consistent with the rule of law and the respect for human rights, and to avoid all over-broad definitions which might facilitate misuse.
2. Preventing the normalisation of the exceptional
States should take explicit precautions to ensure that any measures, intended to be exceptional, do not become a normal part of the legislative framework. Precautions could include ensuring that any new counter-terrorist laws or measures:
• fill a demonstrable gap in existing laws;
• comply with all the requirements of international human rights law, and where relevant, international humanitarian law;
• are subject to clear time-limits;
• are subject to periodic independent review, not solely as to implementation, but also as to the continuing necessity and proportionality of the measure;
• and that the review process monitor that any formal derogations entered by the State are only in place for as long as terrorism poses a genuine threat to the life of the nation, and are in compliance with all substantive and procedural requirements of relevant instruments.
3. Equality and non-discrimination
States must ensure that counter-terrorist measures are non-discriminatory, and that due respect be paid to the rights of those, such as juveniles, women and minority communities, who may experience terrorism and counter-terrorism measures differentially. A particular effort must be made to ensure that people are not treated as terrorist suspects on the sole basis of their ethnicity, religion, or similar identity.
4. accountability in counter-terrorism measures
States should ensure that where human rights violations have been alleged, effective inquiries, with proper disclosure, should be established. Accountability should be strengthened on all levels and, in particular, provisions for immunity, indemnity clauses, and limitations on access to courts should be removed. Effective remedies and accountability depend to a large extent on a strong, independent and knowledgeable judiciary and legal profession: efforts should be made to strengthen the criminal justice system, including the provision of technical assistance where needed.
5. Repudiating the war paradigm
The incoming US administration should reaffirm the US's historic commitment to fully uphold and faithfully apply the laws of war during situations of armed conflict and recognise that human rights law does not cease to apply in such situations. Accordingly, it should seek the repeal of any law and repudiate any policies or practices associated with the “war on terror” paradigm which are inconsistent with international humanitarian and human rights law. In particular, it should renounce the use of torture and other proscribed interrogation techniques, extraordinary renditions, and secret and prolonged detention without charge or trial.
It should also conduct a transparent and comprehensive investigation into serious human rights and/or humanitarian law violations committed in the course of the “war on terror” and should take active steps to provide effective remedies to the victims of such abuses. The military detention centre at Guantánamo Bay should be closed in a human rights compliant manner and persons held there should be released or charged and tried in accordance with applicable international law standards.
Other countries that have been complicit in human rights violations arising from the war paradigm should similarly repudiate that behaviour and review legislation, policies and practices to prevent any such repetition in future.
6. Human rights compliant intelligence efforts
States should take steps to ensure that the work of intelligence agencies is fully compliant with human rights law. The powers of intelligence and law enforcement should be separated and intelligence agencies should not in principle have the power to arrest, detain and interrogate; if intelligence agencies are assigned such powers, the powers should be exercised in conformity with human rights standards.
Care should be taken to regulate by law the powers of intelligence agencies, the gathering of intelligence and the sharing of intelligence with other agencies. It is also imperative to establish independent oversight mechanisms. There should be precise rules on the protection of privacy and measures such as surveillance and interception of communications should require judicial authorisation.
States should provide effective remedies and reparation for human rights violations (including those carried out by their intelligence services) and conduct thorough and independent investigations into allegations of human rights violations, such as renditions and secret detentions or ill-treatment. The need to maintain secrecy of intelligence services' activities must not deprive victims access to an effective remedy and reparation.
7. The prevention of terrorism
Measures to prevent terrorism, especially when based on secret intelligence, must be mindful of the fundamental rights of the individuals concerned. Administrative detention, control orders, the freezing of assets and other actions on the basis of terrorist lists, must in the first place be necessary and proportionate, limited in time, non-discriminatory and subject to independent periodic review. Furthermore, those affected must have an effective and speedy opportunity to challenge the allegation before a judicial body.
States should repeal laws authorising administrative detention without charge or trial outside a genuine state of emergency; even in the latter case, States are reminded that the right to habeas corpus must be granted to all detainees and in all circumstances.
States should ensure that immigration law does not serve as a substitute for criminal law in its counter-terrorism efforts and should, in particular, reaffirm their commitment to the principle of non-refoulement. They should not rely on diplomatic assurances or other forms of non-binding agreements to transfer individuals when there is a real risk of serious human rights violations.
The UN Security Council, the Council of the European Union and other organisations using a listing system should urgently comply with basic standards of fairness and due process, including, as a minimum, allowing affected persons and organisations the right to know the grounds of listing and the right to challenge such listing in an adversarial hearing before a competent, independent and impartial body.
8. Reasserting the value of the criminal justice system
States should ensure that their criminal justice law, and the various agencies of the criminal justice system, are ‘fit for purpose’ so that they can meet the long-term challenges posed by terrorism. Priority should be given to efforts to strengthen the capacity of ordinary law enforcement and judicial systems to enforce their existing criminal law and to improve international judicial cooperation. The international community should support such efforts, including by providing technical assistance where needed to strengthen States' ability to investigate complex crimes within a framework of the rule of law.
9. Repudiation of serious human rights violations
The international community should repudiate the serious human rights and humanitarian law violations that have been committed worldwide by many States in the name of countering terrorism. Given the ambiguity that has arisen around previously uncontested truths, it is vital to reiterate that all forms of torture, cruel, inhuman or degrading treatment, extra-ordinary renditions, and secret detention are illegal and unacceptable.
First published on 2009-02-17; Last updated on 2009-02-19.