Counter Terrorism

By Sarthak Behera, NUALS

INTRODUCTION

In 1937, when the Convention for the Prevention and Punishment of Terrorism was prepared by the League of Nations, terrorism was for the first time addressed at an international level.1 Cut to the events that transpired on the fateful day of 9/11 in New York and Washington, after which the world had changed forever. The image of a plane flying into the World Trade Center, with the building crashing down in clouds of smoke, dust, and fire became the image of international terrorism constitute one of the defining moment of global security challenges of the twenty-first century.2

An attack of this scale was a wakeup call for all the democratic nations across the globe, towards the serious implications such actions of terrorism have on the foundations of the domestic social contract of the state. Such attack not only undermines a countries ability to protect its citizens but it undermines the ability of democratic process to solve pressing problems.

Post 9/11 the international community has resolutely and swiftly taken action and adopted measures to counter terrorism. The ‘War on Terror’ has led to a range of counter-terrorism measures across the globe, which include the introduction of anti-terrorism laws; changes in reporting requirements for civil society organizations; and the increased use of new border security technologies.3 Many countries around the world have enacted specific anti-terrorism legislation in the face of such threats and attacks.

Initially, these legislations were intended to be temporary with provisions to amend it or renew it within a specific timeframe, but inevitably anti-terrorism laws have now become a permanent feature of the legislative landscape of most states. However, many of these laws continue to raise serious concerns in relation to their impact on human rights and the rule of law. The Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights, an independent body of experts convened by the International Commission of Jurists, had observed in a major report in 2009:

Many States have fallen into a trap set by the terrorists. Ignoring lessons from the past, they have allowed themselves to be rushed into hasty responses, introducing an array of measures which undermine cherished values as well as the international legal framework carefully developed since the Second World War. These measures have resulted in human rights violations, including torture, enforced disappearances, secret and arbitrary detentions, and unfair trials”.4

Counter-terrorism policy and law have challenged civil society and civil liberties in a number of countries due to the clear disregard to human rights and fundamental freedoms. Defenders of incursive counter-measures may believe that for terrorists liberal democracy itself is the enemy and, an unprecedented threat to the life of masses warrants restriction of civil liberties and human rights. Sure, the government shall not be handicapped in its ability to respond effectively to any threat of terrorism because of any mechanisms in place to protect the individual from excessive state power, but it is particularly in times of crisis that the liberal democratic state must adhere strictly to its defining principles.5

Besides, the very notion of restricting human rights and civil liberties even for maintaining state security would put such countries on the same moral plane as the terrorists for whom the end justifies the means. When the end justifies the means the ‘difference between terror and those fighting it, becomes increasingly indistinct’.6

COUNTER TERRORISM MEASURES VIOLATING HUMAN RIGHTS 

Among the “International Initiative” to fight terrorism, there are many examples of measures in counter-terrorism, adopted by countries, which are in complete violation of human rights. Post 9/11, the government in China has re-categorized separatist acts making such acts “international terrorism” if they involve the use of force. The Chinese Government under its new mandate, made the calls for independence by the ethnic Uyghur community in the Xinjiang-Uyghur Autonomous Region and their separatists acts as acts of “international terrorism” reserving the term “separatism” for peaceful activities such as expressions of cultural identity, religion, literature, association, or rites of passage.

China alleges that Uyghur activists are responsible for explosions, assassinations, attacks on police and government institutions, and poison and arson attacks both inside China and abroad, in the past. The evidence on these allegations is debatable, but what is not justified is the Chinese Governments’ repression in the Xinjiang region.  Human Rights Watch7 has accused the Chinese government of waging an assault against the Uyghur’s, using tactics such as vetting imam, closing mosques, detaining thousands of people and executions. Reports in leading news channel have stated how Uighur women between the ages of 16 and 25 are being forcibly transferred to coastal cities to work as cheap labor.8

Amnesty International has reported “gross violations” of human rights, including arbitrary detention and arrests, torture, deaths during detention, and executions for vague political crimes such as “disrupting social order.” The mass immigration of Han Chinese, the country’s majority ethnic group, to Xinjiang is an effort to gradually curtail the Uyghur’s’ religious, commercial and cultural activities, by the Chinese state.9 Chinese authorities have used the global counter-terrorism effort as a justification for deepening crackdown in Xinjiang.

The Chinese Government has periodically requested that authorities in Kyrgyzstan and Kazakhstan crack down on Uyghur secessionists, and suspected terrorists and separatists are extradited to China10. The Government of Kazakhstan has consistently extradited Uyghur terrorist suspects to China. More recently in October 2011, Chinese authorities began drafting a bill that would more clearly define terrorism.11 Human rights and international law experts have raised concerns over the implications of the bill in light of the lack of judicial independence in the People’s Republic of China.

United Kingdom (U.K.) is another such country whose response to terrorism has been an issue of great concern in the context of human rights. Post 9/11, U.K. introduced several laws, policies, and practices that undermine fundamental human rights protections, including the right to seek asylum and prohibitions against arbitrary detention and mistreatment. After the tragic events of 11 September 2001, under the emergency laws passed, indefinite detention of foreign nationals, who were suspected of being terrorists, was permitted. Under this law, individuals could be detained for an unlimited period at a maximum security prison despite never being charged, let alone convicted of any offense.

Out of the many pieces of legislation introduced by the legislators in UK to fight terrorism the major ones are the Terrorism Act 2000, the Anti-Terrorism, Crime and Security Act 2001, the Prevention of Terrorism Act 2005, the Terrorism Act 2006 and the Counter-Terrorism Act 2008 and Terrorism Prevention and Investigation Measures (TPIMs) introduced in 2011.12 TPIMs permit indefinite house arrest and other far-reaching restrictions on individual freedoms on the basis of, chiefly secret intelligence and suspicion. Schedule 7 of the Terrorism Act 2000 facilitates incredibly broad and intrusive power to stop, search and hold individuals at ports, airports and international rail stations, without any grounds of even raising suspicion as to the person’s involvement in terrorism in any way – or any other criminal activity.

Such extensive powers inefficiently administrated and regulated, only lead to overuse and abuse and invariably ends up being used in discriminatory fashion (mostly racial profiling) and stereotype rather than genuine suspicion. The ever-expanding definition of terrorism, the steep increase to periods of pre-charge detention, the control order regime and rising use of closed tribunal proceedings, the widespread use of stop and search powers, the limitation of the right to protest, and issues of state terrorism and the right to rebel are examples of real concerns of human rights violation being committed by U.K.13

The Government of United States of America, the country which waged the “War against Terrorism”, has adopted several measures in the name of countering terrorism, after the September 11 attacks which blatantly violated the fundamental provisions of international human rights and humanitarian law e.g extra-ordinary rendition. In an interview with the Washington Post, an unnamed U.S. Diplomat acknowledged that, “after September 11, renditions have been occurring all the time. It allows us to get information from terrorists in a way we can’t do on U.S. soil.”14

U.S counter-terrorism policies have violated the rights of individuals in Iraq, Afghanistan and Guantánamo, among many other places, which includes the arbitrary and secret detention of non-citizens, secret deportation hearings for persons suspected of connections to terrorism, the authorization of military commissions to try non-citizen terrorists, a failure to abide by the Geneva Conventions in the treatment of detainees held in US military custody in Cuba and elsewhere, and the military detention without charge or access to counsel of U.S. citizens designated as “enemy combatants.”15

America in its effort to circumvent international law designated the terrorists as “enemy-combatants” rather than the internationally accepted terms under the Geneva Convention: lawful and unlawful combatants. By changing what the term denotes, U.S. policy indicates that international law applicable during armed conflict does not apply to the detainees accused of terrorism. However, human rights law always applies and terrorist conduct does not remove a detainee from the protections of the Geneva Convention.16

Commenting on the failure to shut down the Guantanamo prison the UN High Commissioner for Human Rights had described the US government’s anti-terror policies as a gross violation of human rights. United States also faces frequent condemnation on their drone strike projects and the lack of transparency in such actions.17 The US Congress, by passing the Authorization for Use of Military Force (AUMF) in the immediate aftermath of the attacks of 11 September 2001, had authorized the President to use “all necessary and appropriate force” but targeted killings of foreign nationals under international law would be referred to as “extra-legal, arbitrary or summary executions”.

It is unlawful to engage in any form of targeted killing under the framework of international human rights law, where situations fall outside recognized international armed conflict. The standards set out in Covenant on Civil and Political Rights, and particularly the provisions of Article 6 which protects the right to life, permit the use of lethal force only where it is strictly necessary only as a matter of immediate self-defense.

For a country which championed the Universal Declaration of Human Rights (UDHR) the world has witnessed a hypocritical turn of events where policies are being adopted that are clearly violating at least 10 of the UDHR’s 30 articles, including the prohibition against “cruel, inhuman or degrading treatment or punishment.” Moreover many States have collaborated with the United States and facilitated detention, torture and ill treatment of terrorist detainees. States including “Bosnia and Herzegovina, Canada, Croatia, Georgia, Indonesia, Kenya, the former Yugoslav Republic of Macedonia, Pakistan and the United Kingdom of Great Britain and Northern Ireland” have acted in concert in obtaining information and seizures of individuals, who were transferred to detention facilities engaging in torture and other severe human rights violations.18

FIGHTING TERRORISM WITHIN THE BOUNDARY OF HUMAN RIGHTS 

Terrorism is the exact opposite of human rights. Terrorism can never be a justifiable act of war or politics and International human rights and humanitarian law validates this principle. Such laws create a responsibility upon governments to protect its citizens from politically aggravated violence of this kind and to cooperate internationally to bring to justice the perpetrators of such abuse, but in fighting terrorism, governments must also ensure that they are meeting their other obligations to their people by ensuring that counter-terrorist measures respect and do not violate international human rights, humanitarian, and refugee law.

The human rights framework shall not be construed as weak in face of terrorism, as the fact that states must sometimes take exceptional measures to ensure public security is very well understood. But whatever the emergency situation, some fundamental human rights and freedoms can and shall never be suspended or derogated, such as the right to life; the right to freedom from torture and all forms of cruel, inhuman, or degrading treatment; and the right to freedom of thought, conscience, and religion. Although terrorism constitutes a unique and complex threat to security, measures taken must also comply with international law and must not violate fundamental human rights. So the question arises – how to achieve a balance between the fight against terrorism and human rights within the boundaries of international human rights law and international humanitarian law?

The law of human rights is a division of international law that deals with the obligations of States with respect to the observance and guarantee of fundamental rights of individuals. Although individuals are beneficiaries of the law it is the States, and not individuals, who are the subjects of this law, and under its provisions individuals have remedies for violation of these legal obligations.19 In the fight against terrorism, States often invoke exceptional powers in international and regional treaties which allow them derogation and limitation of certain rights acceptable in terms of being necessary, legal and temporary.

But more often than not countries while exercising these exceptional measures restrict such rights which are not allowed any derogation within the ambit of international law or international humanitarian law. Article 4 of the International Covenant on Civil and Political Rights (ICCPR) constitutes the legal foundation which the States invoke to make use of their power to derogate to certain provisions.20 There are four qualifying requirements for exercising Article 4, the first being a public emergency that threatens the life of the nation.21 When proclaiming a state of emergency, States must act within their constitutional and other provisions of law that govern such proclamation and the exercise of emergency powers.22

The next condition calls for adopting such measures only to the strictest degree of requirement necessitated by the situation. The third qualifying condition for adopting any measure which imposes derogation of rights is that the measures adopted should not be incompatible with the other obligations under international law. But this power of a State to derogate certain rights under specific circumstances cannot and must not be used for any illegal purpose or any purpose which contradicts the provisions of international human rights law in this context. Article 5, section 1 of the ICCPR plainly indicates that with careful scrutiny of the motives behind a decision to derogate from a right may be allowed, with the condition that the rights recognized by the Covenant cannot under any circumstance be destroyed completely.

But of course there exist certain rights which are so inherent to the life and dignity of the person that no derogations can be granted; nay allowed. Most human rights instruments specify rights that cannot be derogated, such as the right to life; freedom from torture and cruel, inhuman and degrading punishment; slavery and servitude; debt imprisonment; ex post facto criminal liability and punishment; recognition as a person before the law; and freedom of conscience and religion.23

The American Convention on Human Rights expressly includes “judicial guarantees essential for the protection of [non-derogable] rights,” as certain judicial procedural guarantees are non-derogable since they are provided for even in situations of armed conflict. For the protection of non-derogable rights, it is of utmost importance that State party categorically guarantees the right to take proceedings before a court, to enable the court to decide without delay on the lawfulness of detention.24

Although the United Nation’s Human Rights Committee has noted that the enumerated list of non-derogable rights is not exhaustive; nevertheless it is essential to ensure that emergency measures taken against terrorism must be compliant with the international obligations of States. The main rights and freedoms that have been most violated and that are likely to be violated in the name of anti-terrorism can be grouped under the following: 1) guarantees related to arrest and detention, 2) guarantees related to conditions of trial, 3) guarantees related to the right to life.

Under international and regional human rights law, it is the right and duty of States to protect those individuals who can be subjected to their jurisdiction. This makes the right to life the most essential and fundamental right that States must avail to its people. If the right to life is not appreciated, then no other rights or freedoms can be effectively guaranteed or exercised. Measures of targeted killing are in complete violation of the right to life. The Human Rights Committee has stated that targeted killings should not be used either as an incentive to deter or as a measure of retribution, in order to protect individuals from acts of terrorism.

In the context of counterterrorism, the entire law enforcement machinery must operate within the law. In the fight against terrorism, extreme vigilance should be exercised, especially on those who are in position of authority, against all forms of abuse of power. A culture of respect for the law must be instilled in those who are entrusted with its application. Under international and regional human rights law, the protection against arbitrary deprivation of life is non-derogable even in a state of emergency which threatens 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 measure to prevent arbitrary killing by their own 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.”25

To comply with international human rights law, any State policy which permits the use of lethal force must, therefore, fall within those constricted circumstances in which the deprivation of life cannot be considered arbitrary.

The prohibition of torture and other cruel, inhuman or degrading treatment or punishment is unconditional under international law. It is a peremptory norm—or a norm of jus cogens26 —and is non-derogable even in states of emergency threatening the life of the nation under international and regional human rights treaties.27 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.28

Regarding conditions of detention, practices such as the use of secret and incommunicado detention, 29  as well as long-drawn-out solitary confinement, sleep deprivation and similar measures aimed at causing stress, may amount to torture, cruel, inhuman or degrading treatment.30 States’ policies that aim to exclude the application of human rights law to individuals outside their territory would, in fact, erode the absolute prohibition of torture, cruel and degrading treatment or punishment. The International Court of Justice has stated that, while the jurisdiction of States is primarily territorial, the rights enshrined under International Covenant on Civil and Political Rights also extend to acts done by a State in the exercise of its jurisdiction outside its own territory.

As part of their efforts to counter terrorism, countries have also adopted measures which have an impact on the liberty of persons, such as: pretrial procedures for terrorism offences, including provisions concerning bail and the remand of persons in custody awaiting trial; pretrial detention (detention before laying a criminal charge against a person for the purpose of further investigating whether that person was involved in the commission, or assisted in the commission, of a terrorist offense); 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 offense, 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)31.

In its efforts to counter terrorism, a State may lawfully detain persons suspected of terrorist activity, as with any other crime. And, circumstances are such that it calls for a measure which would amount to deprivation of an individual’s liberty, it shall be ensured that strict compliance with international and regional human rights law related to the liberty and security of persons, such as the right to recognition before the law and the right to due process, is guaranteed. 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.32 Adherence to due process and the right to a fair hearing is essential for the proper safeguarding of a person’s liberty and security.

For ensuring that anti-terrorism measures are effective and respect the rule of law, it is critical to guarantee due process rights, even for the individuals suspected of terrorist activity. Both International humanitarian law and human rights law provide for protections for the trial of persons in the context of armed conflicts, 33 protections for all persons charged with criminal offences, including terrorism-related crimes by including 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.34

To safeguard the rule of law by procedural means, the right to a fair trial and equality before the courts and tribunals is a key element in human rights protection. Article 14 of the ICCPR aims at ensuring the proper administration of justice and to this end guarantees a series of specific rights, including that all persons should be equal before the courts and tribunals, that in criminal or civil cases everyone has a right to a fair and public hearing by a competent, independent and impartial tribunal, that everyone charged with a criminal offense should have the right to be presumed innocent until proved guilty according to law, and that everyone convicted of a crime should have the right to have his or her conviction and sentence reviewed by a higher tribunal according to law.35

At the very least, the standards required to ensure fair and clear procedures must include: the right of an individual to be informed of the measures taken and to know the case against him/her as soon as, and to the extent, possible, without thwarting the purpose of the sanctions regimes; the right to be heard within a reasonable time by the relevant decision-making body; the right to effective review by a competent and independent review mechanism; the right to counsel with respect to all proceedings; and the right to an effective remedy.36

Within the framework of the United Nations, 18 universal instruments (14 instruments and four amendments) 37 against international terrorism have been elaborated relating to specific terrorist activities. In the aftermath of the September 11 attacks, the U.N. Security Council under Chapter VII of the U.N. Charter mandated member states to adopt specific measures to combat terrorism through Resolution 1373 of September 28, 2001 which were made binding on all member states. The measures include:

  • Prevention of the financing of terrorism, through, inter alia, freezing of the financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or who participate or facilitate the commission of terrorist acts;
  • Establishment of terrorist acts as serious criminal offenses in domestic laws and regulations, with commensurably serious punishment; and
  • Taking appropriate measures before granting refugee status to ensure that the asylum seeker has not planned, facilitated, or participated in the commission of terrorist acts.

The Counter Terrorism Committee (CTC) of the Security Council was created primarily to oversee the implementation of Resolution 1373. Under the CTC mandate, the governments have to report to the CTC within 90 days, and periodically after that, on the measures adopted to implement the resolution. The Security Council is not a human rights body, but as an organ of the UN it is required to act compatibly with the UN Charter and human rights standards, and including with jus cogens norms.

Resolution 1373 gave very little attention to human rights.38 However, Security Council Resolution 1456, adopted eighteen months later, requires that “States must ensure that any measures are taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular, international human rights, refugee, and humanitarian law.”39

There is, therefore, an obligation to ensure that all domestic counter-terrorism measures are human rights compliant. As part of the CTC’s efforts to ensure that human rights are taken seriously by states when implementing Security Council Resolution 1373, the Committee has now created an Executive Directorate (CTED) which liaises directly with the High Commissioner for Human Rights. However, concern over the lack of transparency and judicial oversight are raised mostly because many counter-terrorism measures are shrouded in secrecy, creating further difficulties for human rights protection. Transparency and judicial oversight of State counter-terrorist measures must be promoted to ensure State compliance with international human rights.

To live in a climate of fear induced by horrific acts of terrorism is indeed unfortunate as fear breeds’ repression. And, too often, sinister threats to human rights and international humanitarian law are concealed under the patriotic cloak of anti-terrorism. It’s far easier to fight for principles than to live up-to them. In the fight against terrorism, human rights standards have been set aside far too often in favor of illegal arrests, renditions, torture or inhuman treatment, racial profiling and other human rights violations.

Human rights activists or critics of government policies are portrayed as terrorist sympathizers when question is raised against state policies in the context of counter terrorism; and as a measure of appeasement, the decision makers include watered down standards of human rights into such policies to make them appear as human rights compliant. States should take an unwavering stand to ensure that their counter-terrorism legislation protects human rights and rule of law, to keep itself from falling into the trap of flouting the fundamental principles of liberal democracy —-the same principles that terrorists do not abide by and wish to annihilate. International human rights and human rights monitoring organizations must acknowledge and provide well defined legal frameworks for rights that can adapt to the dangers that threaten nations, without altering the nature of these rights. The idea that counter-terrorism measures and human rights are irreconcilable is absolutely indefensible.

Formatted on 28th February 2019.

 BIBLIOGRAPHY

  1. United Nations Office on Drugs and Crime. “Global Action Against Terrorism,” available at: http://www.unodc.org/unodc/en/terrorism/global-action-against-terrorism.html
  1. Kelly, “How 9/11 changed the world,” The Australian (Sydney), 8 September 2006; R. Jervis, “An Interim Assessment of September 11: What Has Changed and What Has Not?,” Political Science Quarterly 117, no. 1 (2002): 37–52.
  1. Counter-terrorism and civil society: What are the effects of the ‘War on Terror’ and counter-terrorism measures on civil society, National Council for Voluntary Organisations/Economic & Social Research Council, seminar series available at: http://www.lse.ac.uk/internationaldevelopment/research/ngpa/publications/counter-terrorism%20and%20civil%20society%20final%20version.pdf
  2. Assessing Damage, Urging Action, Report of the Eminent Jurists Panel on Terrorism, Counter- Terrorism and Human Rights, International Commission of Jurists, Geneva, 2009; Post 9/11 and the State of Permanent Legal Emergency Series by IUS GENTIUM: Comparative Perspectives on Law and Justice, London School of Economic.
  1. Cole and J. X. Dempsey, Terrorism and the Constitution: Sacri fi cing Civil Liberties in the Name of National Security (Los Angeles: The New Press, 2002); see also: C. Brown, Lost Liberties: Ashcroft and the Assault on Personal Freedom (New York: The New Press, 2003).
  1. Gross, “Legal Aspects of Tackling Terrorism: The Balance Between the Right of a Democracy to Defend Itself and the Protection of Human Rights,” UCLA Journal of International Law & Foreign Affairs 6 (2001): 167–168.
  1. World’s leading independent organizations dedicated to defending and protecting human rights.
  1. XinJiang Separatism and Human Rights, available at: http://factsanddetails.com/china/cat5/sub89/item163.html
  1. Who are the Uighurs, BBC News China, available at: http://www.bbc.co.uk/news/world-asia-china-22278037  
  2. Frederick Starr, Graham Fuller and Jonathan Lipman , Xinjiang: China’s Muslim Borderland, Chapter “Islam in Xinjiang”, ME Sharpe, 2004.
  3. China draft bill defines terrorism amid ‘real threat, BBC News Asia-Pacific, http://www.bbc.co.uk/news/world-asia-pacific-15444081
  4. Natalie Hanman, The Guardian, Explianer: Terrorism Legislations, available at: http://www.theguardian.com/commentisfree/libertycentral/2009/jan/22/explainer-terrorism-legislation
  5. Duncan Campbell, “September 11: six months on: U.S. sends suspects to face torture,” GUARDIAN (London), Mar. 12, 2002.
  6. Human Rights Watch Briefing Paper for the 59th Session of the United Nations Commission on Human Rights March 25, 2003
  7. Martin Scheinin. “Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. Addendum: Mission to the United States,” A/HRC/6/17/Add.3, para. 6, 22 (21 November 2007).
  8. No disclosure of the legal criteria governing the lethal targeting operations.
  9. Martin Scheinin, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, A/HRC/10/3, para. 51 (4 February 2009).
  10. The “Universal Declaration of Human Rights”, Art. 7; the “International Covenant on Civil and Political Rights”, Art. 3; the “European Convention on Human Rights”, Art. 6.1; the “American Convention on Human Rights”, arts. 1.1, 2 & 25.
  11. Article 4 of the ICCPR 
  12. Principle 39, Under the Siracusa Principles on the Limitation and Derogation provisions in the International Covenant on Civil and Political Rights, Human Rights Quaterly, vol. 7, No. 1 (1985)
  13. Human Rights Committee, General Comment No. 29, para 2.
  14. Art 4.2 ICCPR, Art 15 of the “European Convention for the Protection of Human Rights and Fundamental Freedoms”, Art 27.2 of the “American Convention on Human Rights”, the “African Charter on Human and People’s Rights”
  15. Human Rights Committee, General Comment No. 29, para. 15 & 16.
  16. See Human Rights Committee, general comment N° 6 (1982). See also Inter-American Commission on Human Rights, “Report on terrorism and human rights” (paras. 87 and 89), citing Inter-American Court of Human Rights, Neira Alegría et al. Peru, Judgement of 19 January 1995 (paras. 74–75).
  17. Prosecutor Furundžija, para. 144.
  18. Articles 7 and 4 (2) of the International Covenant on Civil and Political Rights, articles 3 and 15 (2) of the European Convention on Human Rights, articles 5 and 27 (2) of the American Convention on Human Rights, article 5 of the African Charter on Human and Peoples’ Rights, and common article 3 of the four Geneva Conventions
  19. Tapia Páez Sweden, 28 April 1997: “The test of article 3 of the Convention is absolute. Whenever substantial grounds exist for believing that an individual would be in danger of being subjected to torture upon expulsion to another State, the State party is under obligation not to return the person concerned to that State. The nature of the activities in which the person concerned engaged cannot be a material consideration when making a determination under article 3 of the Convention.”
  20. Commission on Human Rights Resolution 2005/39: “prolonged incommunicado detention or detention in secret places may facilitate the perpetration of torture and other cruel, inhuman or degrading treatment or punishment and can in itself constitute a form of such treatment, and urges all States to respect the safeguards concerning the liberty, security and the dignity of the person” (para. 9).
  21. Human Rights Committee, General Comment No. 20 (1992), para. 6.
  22. Human Rights Committee, General Comment No. 8 (1982) on the right to liberty and  security of persons (art. 9), paras.1 and 4.
  23. African Commission on Human and Peoples’ Rights, International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organisation Nigeria, communications N° 137/94, N° 139/94, N° 154/96 and N° 161/97, para. 83.
  24. Report of the Independent Expert on the Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, Robert K. Goldman, 61st session of the Commission on Human Rights, E/CN.4/2005/103, para. 44.
  25. Human Rights Committee, General Comment No. 13 (1984).
  26. Human Rights Committee, General Comment No. 32.
  27. Report of the United Nations High Commissioner for Human Rights on the protection of human rights and fundamental freedoms while countering terrorism, 9th March 2007, A/HRC/4/88, paras. 17–22.
  28. http://www.un.org/en/terrorism/instruments.shtml
  29. The exception is a provision calling on states to ensure that measures to prevent abuse of asylum procedures take place “in conformity with the relevant provisions of national and international law, including international standards of human rights”, Security Council Resolution 1373, para. 3(f).
  30. UN Security Council Resolution 1456 of 20 January 2003, doc. S/RES/1456 (2003), para. 6.

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