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The Effect Of Terrorism On Human Rights: The Clash Between The Human Rights Advocates And Victims Of Terrorism

The human cost of terrorism has been felt in virtually every corner of the globe. The United Nations family has itself suffered tragic human loss as a result of violent terrorist acts. The attack on its offices in Baghdad on 19 August 2003 claimed the lives of the Special Representative of the Secretary-General, Sergio Vieira de Mello, and 21 other men and women, and injured over 150 others, some very seriously.

Terrorism clearly 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 and economic development. All of these also have a real impact on the enjoyment 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 have an obligation to 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 States 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.

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. 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 programmes 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. 2 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 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.

This Fact Sheet has been prepared with the aim of strengthening understanding of the complex and multifaceted relationship between human rights and terrorism. It identifies some of the critical human rights issues raised in the context of terrorism and highlights the relevant human rights principles and standards which must be respected at all times and in particular in the context of counter-terrorism. It is addressed to State authorities, national and international nongovernmental organizations (NGOs), national human rights institutions, legal practitioners and individuals concerned with ensuring the protection and promotion of human rights in the context of terrorism and counterterrorism.

Human Rights And Terrorism:

This chapter sets out the human rights framework before examining the impact that terrorism has on human rights. It then addresses the relationship between terrorism, human rights and other relevant international legal provisions.

What Are Human Rights?

  1. 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, 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.
     
  2. International human rights law

    International human rights law is reflected in a number of core international human rights treaties and in 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 are 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.
     
  3. The nature of States' obligations under international human rights law:

    Human rights law obliges States, primarily, to do certain things and prevents them from doing others. States have a duty to 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 human rights requires States to adopt appropriate measures, including legislative, judicial, administrative or educative measures, in order 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 have an obligation to take positive measures to ensure that private persons or entities do no inflict torture or cruel, inhuman or degrading treatment or punishment on others within their power.

    Those human rights that are part of customary international law are applicable to all States.4 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 a number of 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.

What is Terrorism?

Terrorism is commonly understood to refer to acts of violence that target civilians in the pursuit of political or ideological aims. In legal terms, although the international community has yet to adopt a comprehensive definition of terrorism, existing declarations, resolutions and universal "sectoral" treaties relating to specific aspects of it define certain acts and core elements.

In 1994, the General Assembly's Declaration on Measures to Eliminate International Terrorism, set out in its resolution 49/60, stated 6 that terrorism includes "criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes" and that such acts "are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them."

The General Assembly is currently working towards the adoption of a comprehensive convention against terrorism, which would complement the existing sectoral anti-terrorism conventions.

Its draft article 2 contains a definition of terrorism which includes "unlawfully and intentionally" causing, attempting or threatening to cause:
  1. death or serious bodily injury to any person; or
  2. serious damage to public or private property, including a place of public use, a State or government facility, a public transportation system, an infrastructure facility or the environment; or
  3. damage to property, places, facilities, or systems´┐Ż, resulting or likely to result in major economic loss, when the purpose of the conduct, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or abstain from doing any act.

The draft article further defines as an offence participating as an accomplice, organizing or directing others, or contributing to the commission of such offences by a group of persons acting with a common purpose. While Member States have agreed on many provisions of the draft comprehensive convention, diverging views on whether or not national liberation movements should be excluded from its scope of application have impeded consensus on the adoption of the full text.

The impact of terrorism on human rights:

Terrorism has a direct impact on the enjoyment of a number of 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. he 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.7

Specifically, Member States have set out that terrorism:

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.

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 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. While this distinction is not always clear-cut, it is important to note that, in most cases, terrorist-related acts will be addressed as criminal offences committed by individuals and a State will not, in principle, be responsible for the illegal conduct itself. 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.

While a comprehensive analysis of the needs of victims of crime and human rights violations in the context of terrorism, and of responses to those needs, is beyond the scope of this publication, several basic principles should be underscored. In particular, international and regional standards with regard to victims of crime and victims of gross violations of international human rights law and serious violations of international 10 humanitarian law may be instructive in addressing the needs of victims of terrorism.14 Certain provisions of the universal treaties relating to specific aspects of terrorism are also relevant to addressing the situations of victims of terrorism.

According to the Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power, set out in 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 are in violation of criminal laws operative within 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."

Terrorism and other aspects of international law:

  1. 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 a number of treaties, including the four Geneva Conventions and their two Additional Protocols, as well as a number of other international instruments aimed at reducing human suffering in armed conflict. Many of their provisions are now also recognized as customary international law.

    There is no explicit definition of "terrorism" as such in international humanitarian law. However, international humanitarian law prohibits many acts committed in armed conflict which would be considered terrorist acts if they were committed in times of peace.
     
  2. Terrorism and international criminal law

    Over the course of 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 or "extradite or prosecute"), and provide a legal basis for cooperation on extradition and legal assistance.
     
  3. Terrorism and international refugee law:

    Alongside the general obligations of human rights law, international refugee law is the body of law which 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.

Conclusion:

The International Criminal Police Organization (INTERPOL) initiates and coordinates numerous training programmes covering different priority crime areas and aimed at enhancing the capacity of States to combat terrorism. To complement the courses, INTERPOL provides corresponding Training Guides, including the "Bio-Terrorism Incident Pre-Planning and Response Guide".

INTERPOL has conducted to date five regional workshops on Bioterrorism, attended by delegates from over 130 countries and has commenced train-the-trainer sessions, which brought together police, health, prosecution and customs, promoting ways to work together.

The sessions identify effective strategies for prevention and response, forge subregional cooperation and assess the legal authorization for undertaking critical police functions. INTERPOL has provided support to member countries during major events by deploying specialized teams to bolster national efforts to secure and protect the event. It also developed a Best Practices Guide in Combating Terrorism, available on the CTC website.

As part of the CTITF Working Group on Strengthening the Protection of Vulnerable Targets, INTERPOL will establish a Referral Centre in order to facilitate the exchange of expertise, best practices and, where necessary, technical assistance.

References:
  1. United Nations Educational, Scientific and Cultural Organization.
  2. International Criminal Police Organization (INTERPOL).
  3. The International Bill of Human Rights.
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