Counter "Terror” must bend to Human Rights, Law

No need for balance between human rights and security. 

Proper balance can and must be found 

within human rights law itself. 

Law is the balance.

Edited by Carolyn Bennett

Independent of governments, UN Special Rapporteur Martin Scheinin was speaking late last year and just a few days about the critical issue of promoting and protecting human rights and fundamental freedoms while countering terrorism.

MUST BE 

Consistency of counter-terrorism law with 

human rights, humanitarian law, refugee law

“Together with the responsibility of States to protect those within their jurisdiction from acts of terrorism, States have an obligation to comply with international law, including human rights law, refugee law and humanitarian law.

“These legal obligations stem from customary international law, applicable to all States, and international treaties, applicable to States parties. Compliance with all human rights while countering terrorism represents a best practice because not only is this a legal obligation of States but it is also an indispensible part of a successful medium- and long-term strategy to combat terrorism.…

“… [C]ompliance with human rights is necessary in order to address the long-term conditions conducive to the spread of terrorism, which include lack of rule of law and violations of human rights, ethnic, national and religious discrimination, political exclusion, socio-economic marginalization and lack of good governance.…

“… [E]ffective counter-terrorism measures and the protection of human rights are not conflicting, but rather complementary and mutually reinforcing goals. … Through the careful application of human rights law, it is possible to respond effectively to the challenges involved in the countering of terrorism while complying with human rights.

“There is no need in this process for a balancing between human rights and security — as the proper balance can and must be found within human rights law itself. Law is the balance — not a weight to be measured.

Justice 

MUST BE 

Determined by Rule of Law

Not by caprice or political expediency of States, factions or individuals

GENEVA (May 6, 2011) — “Acts of terrorism are the antithesis of human rights, in particular the right to life,” said UN Special Rapporteurs Christof Heyns and Martin Scheinin. “In certain exceptional cases, use of deadly force may be permissible as a measure of last resort in accordance with international standards on the use of force, in order to protect life, including in operations against terrorists.

“However, the norm should be that terrorists be dealt with as criminals, through legal processes of arrest, trial and judicially decided punishment.…

“Actions taken by States in combating terrorism, especially in high profile cases, set precedents for the way in which the right to life will be treated in future instances.

“In respect of the recent use of deadly force against Osama bin Laden, the United States of America should disclose the supporting facts to allow an assessment in terms of international human rights law standards. For instance, it will be particularly important to know if the planning of the mission allowed an effort to capture Bin Laden.”

Sources and notes

United Nations A/HRC/16/51, General Assembly Distr.: General December 22, 2010, Original: English,

Human Rights Council Sixteenth session Agenda item 3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G10/178/98/PDF/G1017898.pdf?OpenElement

Martin Scheinin was appointed Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism by the former United Nations Commission on Human Rights in August 2005. In October 2010, the Human Rights Council renewed the mandate. As Special Rapporteur, he is independent from any Government and serves in his individual capacity. He is Professor of Public International Law at the European University Institute in Florence.  http://www2.ohchr.org/english/issues/terrorism/rapporteur/srchr.htm

“Consistency of counter-terrorism law with human rights, humanitarian law and refugee law”

Also in the December 22, 2010, report “Terrorism” defined

“Counter-terrorism laws, policies and practices must be limited to the countering of terrorism, as properly defined. The approach taken by most States is to link terrorist offences to a stand-alone definition of ‘terrorism’, a ‘terrorist act’, ‘terrorist activity’ or similar terms. Such definitions are very often also linked to the listing of proscribed organizations (either in conjunction with, or as a supplement to, the Consolidated List of the United Nations); powers of arrest, questioning and investigation; alterations in the rules concerning detention and trial; and administrative measures, such as deportation procedures and the forfeiture of property.

“The adoption of overly broad definitions of terrorism therefore carries the potential for deliberate misuse of the term – including as a response to claims and social movements of indigenous peoples – as well as unintended human rights abuses.

“Failure to restrict counter-terrorism laws and implementing measures to the countering of conduct which is truly terrorist in nature also pose the risk that, where such laws and measures restrict the enjoyment of rights and freedoms, they will offend the principles of necessity and proportionality that govern the permissibility of any restriction on human rights.”

May 2011 U.S. assassination(s)

“Osama bin Laden: statement by the UN Special Rapporteurs on summary executions and on human rights and counter-terrorism” GENEVA (May 6, 2011)  – The Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, issued the statement.

Christof Heyns

Special Rapporteur on extrajudicial, summary or arbitrary executions Christof Heyns is Professor of Human Rights Law at the University of Pretoria, South Africa, and Co-director of the Institute for International and Comparative Law in Africa. He is a former dean of the Faculty of Law and a former Director of the Centre for Human Rights at the same university. Heyns has engaged in wide-reaching initiatives on human rights in Africa and has advised a number of international, regional and national entities on human rights issues, http://www2.ohchr.org/english/issues/executions/index.htm

Martin Scheinin

Martin Scheinin was appointed Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism by the former United Nations Commission on Human Rights in August 2005. In October 2010, the Human Rights Council renewed the mandate. As Special Rapporteur, he is independent from any Government and serves in his individual capacity. He is Professor of Public International Law at the European University Institute in Florence.  http://www2.ohchr.org/english/issues/terrorism/rapporteur/srchr.htm

OHCHR Country Page – USA: http://www.ohchr.org/EN/Countries/ENACARegion/Pages/USIndex.aspx

http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=10987&LangID=E

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