A Human Rights Watch Briefing Paper for the 59th Session of the United

Nations Commission on Human Rights, March 25, 2003

 INTRODUCTION

 On September 21, 2001, Ahmed Alenany, an Egyptian physician, was approached by a police officer after he had stopped by the roadside in New York City to look at a map. According to Alenany, the police officer questioned why he had stopped in a no-parking zone, asked to see his visa, and discovered it had expired. The police officer also noted two pictures of the World Trade Center in Alenany's car. Alenany was subsequently charged with overstaying his visa even though he had filed for an extension before it expired, and thus, was legally in the United States. Alenany agreed to be deported because the judge suggested that pursuing his case would keep him in jail for many weeks. He was detained for more than five months while waiting to be removed from the country, during which time the government presented no evidence linking him to terrorism. He is now free but still faces possible removal from the United States.

On June 24, 2002, Hassan Bility, the editor of one of Liberia's independent newspapers, and three other journalists were arrested in Monrovia by plain-clothes police and held incommunicado on suspicion of operating a rebel terrorist cell. The Liberian government twice failed to honor a court decision to produce the detainees in court. Echoing the terminology used by the Bush Administration to justify its handling of Taliban and al-Qaeda detainees, the Liberian authorities claimed that Bility was an “illegal combatant” who should be tried before a military tribunal. Judge Wynston Henries, the criminal court judge who ruled that the men be tried before a military court, reportedly claimed that an illegal combatant may not only be a person who carries arms, but also one who “collaborates and means to assist one side or the other.” Under pressure from the United States, Hassan Bility was finally released in December 2002. Information Minister Reginald Goodridge told the BBC's Network Africa that he had not been released because of humanitarian concerns, and maintained that Bility was “a terrorist involved in an Islamic fundamentalist war.”

In February 2002, in Godhra in the western state of Gujarat, a Muslim mob set fire to a train carrying Hindu activists. Fifty-eight people were killed in the attack. In the days that followed, Hindu nationalist groups in league with the ruling Bharatiya Janata Party (BJP) killed over 2,000 Muslims throughout the state. Local leaders and the vernacular press branded Muslims as terrorists while mobs were deployed to systematically destroy Muslim homes, businesses, and places of worship. Scores of

Muslim women and girls were gang raped before being mutilated and burned to death. The government charged 131 Muslims under its new anti-terrorism ordinance, but has failed to prosecute the perpetrators of attacks against Muslims that were carried out with extensive state participation and support.

At a time when the media prominently reports the latest arrests of alleged terrorist suspects, these cases show a different human face to the war against terrorism. Just as terrorism targets innocent civilians, so too are innocent civilians becoming casualties in the international campaign against terrorism.

Terrorism is the very antithesis of human rights. Indeed, it is the body of international human rights and humanitarian law—the limits placed on permissible means to political ends—that best explains why such acts are not legitimate acts of war or politics. Such law makes clear that governments have a responsibility to protect citizens from politically motivated violence of this kind and to cooperate internationally to bring to justice the perpetrators of such abuse.

In fighting terrorism, however, governments must also ensure they meet their other obligations to their people by ensuring that counter-terrorist measures respect and do not violate international human rights, humanitarian, and refugee law. As U.N. Secretary-General Kofi Annan has consistently stressed since September 11, 2001, there must be no tradeoff between human rights and fighting terrorism. In the

very first paragraph of his latest report on the Work of the Organization, he states: “I firmly believe that the terrorist menace must be suppressed, but States must ensure that counter-terrorist measures do not violate human rights.” True security is ultimately about ensuring an environment in which all human rights are fulfilled, respected and protected—this will not be achieved when basic freedoms are

undermined, democratic space is closed, and alienation and discontent are channeled into politically motivated violence.

The human rights framework is not soft on terrorism. It acknowledges that states must sometimes take exceptional measures to ensure public security. But whatever the emergency situation, some fundamental human rights and freedoms can 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. In addition, human rights treaties such as the International Covenant on Civil and Political Rights establish that any restrictions on other rights must be, among other requirements, exceptional and temporary in nature; limited to the extent strictly required by the exigencies

of the situation; non-discriminatory solely on the ground of race, color, sex, language, religion or social origin; and consistent with the state party’s other obligations under international law, particularly the rules of international humanitarian law.

As this document highlights, the campaign against terrorism has led to human rights violations in many countries worldwide. In some cases, governments have enacted new security laws that violate basic rights and freedoms, or have denied terrorist suspects due process and the protection of law. In other cases, the war against terrorism has been used by governments opportunistically to justify the repression of opponents or arbitrary and punitive measures against asylum seekers and other non-nationals.

Protecting human rights during counter-terrorist efforts is more than a legal requirement. It is integral to the success of the campaign against terrorism itself. Terrorism will not be defeated solely by military or security means. By indiscriminately attacking civilians, terrorism breaches the most basic values of human rights. Combating terrorism requires a reaffirmation of human rights values, not their rejection. State repression and human rights abuse closes off peaceful and political channels for political dissent and can channel alienation and grievance into extremism and violence. As the U.N secretary general told an open debate of the Security Council’s Counter Terrorism Committee in October 2002, “to pursue security at the expense of human rights is short-sighted, self-contradictory, and, in the long run,

self-defeating.”

INTERNATIONAL INITIATIVES

 U.N. Security Council

In the aftermath of the September 11 attacks, the U.N. Security Council used its powers under Chapter VII of the U.N. Charter to mandate member states to adopt specific measures to combat terrorism. Resolution 1373 of September 28, 2001 takes many elements of existing counter-terrorism treaties and in one swift move makes them 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 offences 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.

Successive U.N. high commissioners for human rights have expressed serious concerns about the possible impact of Resolution 1373 on human rights worldwide. Soon after the passage of the resolution, then High Commissioner Mary Robinson initiated contacts with the CTC, chaired by U.K. Ambassador Sir Jeremy Greenstock.1 This dialogue has since been followed up by new High Commissioner Sergio Vieira de Mello. In his meeting with CTC members on October 21, 2002, de Mello raised concerns about states enacting anti-terrorism legislation that is too broad in scope or seeking to fight terrorism outside the framework of the legal system.

He offered the readiness of his office to assist the CTC in encouraging, as he put it, “the nonabuse of 1373.”

He reiterated an earlier recommendation put forward by Mary Robinson that the CTC appoint a human rights advisor.

He suggested that the CTC place basic information on issues such as the non-derogation of certain rights, or relevant conclusions and recommendations of U.N. human rights mechanisms, on its website.

He encouraged the CTC to establish links with the Human Rights Committee and other

relevant treaty bodies and mechanisms of the United Nations human rights system.

U.N. General Assembly        

In November 2002, at its 57th session, the U.N. General Assembly adopted an important new resolution on Protecting human rights and fundamental freedoms while countering terrorism.² The resolution, initiated by Mexico, underscored the need for states to comply with their legal obligations under international human rights, refugee, and humanitarian law. It stressed that certain non-derogable rights must be fully observed at all times, and that where states derogated from their other obligations,

they must meet the strict requirements of international law. The resolution asked the U.N. High Commissioner for Human Rights to monitor the protection of human rights in the fight against terrorism and to make recommendations to governments and U.N. bodies. It also requested the U.N. secretary general to submit reports to both the U.N. Commission on Human Rights and the General Assembly on the implementation of the resolution, promising future attention to this important issue.

The General Assembly resolution came after the U.N. Commission on Human Rights failed to take up this issue at its 58th session last year. A similar draft resolution, circulated by Mexico, was withdrawn in the face of strong opposition by the United States, later joined by India, Pakistan, Algeria, and Saudi Arabia. In receiving the secretary-general’s report at this 59th session, it is incumbent that the  Commission take up this important challenge and consider an appropriate institutional response to the issue.

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1 In April, the chairmanship of the CTC will be passed on to Spain’s Ambassador Inocencio Arrias.

The High Commissioner’s office also produced a set of guidelines highlighting human rights obligations that should be actively considered by the CTC in reviewing country reports and developing further measures. The document focused on the legality of counter terrorism measures, dealing with issues such as non-derogability, non-discrimination, the right to seek asylum and non-refoulement, and due process.