SUB-COMMISSION ON THE PROMOTION AND PROTECTION OF HUMAN RIGHTS DISCUSSES REPORT ON TERRORISM

Sub-Commission on the Promotion and
Protection of Human Rights
55th session
5 August 2003
Morning





The Sub-Commission on the Promotion and Protection of Human Rights this morning continued its debate on specific human rights, focusing on the definition of terrorism and the impact on human rights of counter terrorism measures adopted by States in their fight against that phenomenon.
Following the introduction of the report by the Special Rapporteur on human rights and terrorism, Kalliopi Koufa, during yesterday’s meeting, Sub-Commission Experts held an interactive discussion on the issue of terrorism.
During the discussion, Sub-Commission Expert Asbjorn Eide was of the view that definitions of terrorism were meaningless unless one knew the purpose for which the definitions were made. Legal definitions were often adopted in order to determine the scope of application of a particular instrument or rule. The contemporary legal search for a definition of terrorism intended to seek a consensus on which phenomena should be combated. There was no way in which all States could agree on a broad definition of terrorism applicable in all circumstances. The search for a comprehensive definition was futile.
Another Expert, Jose Bengoa, said that in the search for a definition, the international community was entering into dangerous grounds since many countries approached the issue by making any criminal act terrorism. The Sub-Commission was confronted with an issue that was therefore extremely urgent and was in the midst of building a concept on terrorism. Looking at historical incidents could help to establish a more objective approach to the discussion on terrorism. Terrorism was a subject closely related to issues the Sub-Commission was constantly reviewing.
Measures to combat terrorism had too often violated human rights, Sub-Commission Expert Abdul Sattar stated, adding that it was gratifying for the human rights community that the one-dimensional security approach had yielded some space for human rights concerns. A resolution on combating terrorism adopted by the General Assembly had now obliged States to adhere to human rights whilst combating terrorism. Human rights were the foundation of human existence and human co-existence and must receive equal attention in discussions on terrorism.
Sub-Commission Expert Yozo Yokota said that politically and theoretically, it would be difficult to define terrorism because of the fact that once defined, a State or armed group could try to evade the responsibility by narrowly interpreting such a definition. It was also unnecessary to find a uniform definition of terrorism. However, the culprits of any acts of aggression should not enjoy impunity by finding refuge in other countries. According to the United Nations Educational, Scientific and Cultural Organization (UNESCO), the notion of terrorism should not be associated with any groups of people or States.
In her concluding remarks, the Special Rapporteur on human rights and terrorism, Kalliopi Koufa, said that the discussion on terrorism and human rights was complicated. The current international tension had also somewhat affected the inability of the international community to identify a definition of terrorism. The Sub-Commission would be a most important body in this connection, and could serve a pivotal role in monitoring national and international counter-terrorism measures.
A representative of the non-governmental organization Himalayan Research and Cultural Foundation said that in the absence of a comprehensive definition of terrorism, a consensus should at least be reached in devising those mechanisms to control and suppress international terrorism. Non-governmental organizations, research institutions, human rights activists and academia had to contribute in addressing the issue of terrorism.
Taking the floor were Sub-Commission Experts Francoise Jane Hampson, Chen Shiqui, Soli Jehangir Sorabjee, Soo Gil Park, Oleg A. Malguinov (Alternate), Antoanella-Iulia Motoc, El Hadji Guisse, Leila Zerrouigui and Fisseha Yimer.
The representatives of the following non-governmental organizations contributed statements on terrorism as well as on other specific human rights issues: Indian Council of Education; International Institute for Non-Aligned Studies; World Federation of Trade Unions; Movement Against Racism and for Friendship among Peoples; and Transnational Radical Party.
The Sub-Commission will reconvene at 3 p.m. to continue its debate on specific human rights issues.

Statements
ASBJORN EIDE, Sub-Commission Expert, said that the progress report presented by Ms. Koufa was outstanding in its rigorous analysis. It focused mainly on the problem of definition. The Special Rapporteur had admitted that finding an all-encompassing definition of terrorism was too ambitious an aim. Definitions were nearly meaningless unless one knew the purpose for which the definitions were made. Legal definitions were often adopted in order to determine the scope of application of a particular instrument or rule. The contemporary legal search for a definition of terrorism was intended to seek a consensus on which phenomena should be combated by which means. She had also pointed out that there were already in existence several international instruments that defined some particular activities to be combated, and with the means to combat them set out in the instrument.
There was no way in which all States could agree on a broad definition of terrorism applicable in all circumstances. The search for a comprehensive definition was futile. He did not consider it possible to have a comprehensive approach. It was his understanding that the Rapporteur was moving towards a recognition that the role of the Sub-Commission was not to define terrorism, but to spell out the human rights concerns in addressing phenomena popularly referred to as terrorism. The Sub-Commission had an important role to play regarding the human rights approach to terrorism, and Ms. Koufa had given an admirable contribution to the role that the Sub-Commission could play in that regard.
JOSE BENGOA, Sub-Commission Expert, said terrorism was a subject of great complexity and importance. The presentation made by Kalliopi Koufa was to be praised and her report was a very detailed document which reflected a sound tradition of human rights. There was a sense of urgency in this matter, because as it was being discussed in the Sub-Commission, a draft convention was being discussed within the European Union. On definition, discussions taking place elsewhere either had no definition of terrorism or there was no wish to have a definition. In the search for a definition, the international community was entering into dangerous grounds since many countries approached the issue by making any criminal act terrorism. The Sub-Commission was confronted with an issue that was therefore extremely urgent and was in the midst of building a concept on terrorism. The debate that was going on today was both theoretical and political. If one could not come up with a definition, at least there would have to be some headway in a description of the concept of terrorism. A phenomelogical perspective, a descriptive approach, would allow pinpointing the concept in a more appropriate manner. It was a slippery ground but a first solid suggestion. Another interesting aspect was the historical perspective. As the world was faced with highly charged emotional situations, it was sometimes difficult to remain level headed. In this context, the historical approach would prove useful. Looking at historical incidents could help to establish a more objective approach to the discussion on terrorism. Terrorism was a subject closely related to issues the Sub-Commission was constantly reviewing. Finally, the document differentiated between State-terrorism and individual acts, and these different phenomena must be dealt with in differentiated ways.
FRANCOISE JANE HAMPSON, Sub-Commission Expert, said she agreed with what the previous speaker Mr. Bengoa said. States could be contended with a narrow definition of terrorism if international human rights instruments were not taken into consideration. There should be reasons to believe that an organization was a terrorist group before freezing its assets. Any Islamic charity organization could not be considered as terrorist before any evidence was discovered concerning that organization. The Security Council had said that anti-terrorism measures should not violate human rights, but its Anti-Terrorism Committee had not yet appointed a human rights expert. The Human Rights Committee could not do anything on its own. The Committee considered 15 reports per year. The Sub-Commission should examine not only national legislation but also what the States say. Ms. Koufa should be congratulated for her excellent work on terrorism.
SHIQIU CHEN, Sub-Commission Expert, said the issue of terrorism and human rights was very important and sensitive. In this context, he expressed his appreciation to Kalliopi Koufa for accomplishing such a difficult task. It was important to admit that terrorism was an international public danger, endangering world peace, security, and economic development and threatening human rights. Efforts against terrorism must respect the sovereignty and integrity of States and follow accepted international laws and guidelines on relationships between countries. In this connection, wars should not be launched in the name of counter-terrorism. The label of terrorism should not be branded on people carelessly, especially not when people were defending their sovereignty or were part of freedom struggles. All criminal activities aimed at threatening Governments and societies, involving the killing of innocent civilians, must be opposed. The term terrorism must not be assigned to a specific people or a specific religion. One must try to reduce the hostility and misunderstandings between different peoples. Counter-terrorism must not violate human rights law, including the prohibition of detention without trials, arbitrary or summary executions. Efforts must be focused on eradicating the very root of terrorism, a strong part of which was the lack of justice and equal development between rich and poor countries. The international society must therefore undertake efforts to establish a new and fair economic, political, social and cultural order.
SOLI JEHANGIR SORABJEE, Sub-Committee Expert, said that although one could not find a universally acceptable definition of terrorism, there was always a consensus to be observed. In many official documents, terrorism had been defined, including UN documents. Whatever its legitimate aim might be, no one had the right to use acts of terrorism to justify its legitimacy. That was equally applicable to States and non-state actors. Also, it should not be used to demonize political opponents. The definition of terrorism under national legislation should not be narrow. There should be safeguards in the legislation in the form of monitoring and rights for judicial review with regard to acts taken against terrorism – anti-terrorism measures. The measures taken by a State against terrorism should not affect the civil liberties of citizens.
ABDUL SATTAR, Sub-Commission Expert, said every year since 1997, when Ms. Koufa had first presented her work on terrorism, her work had been complimented. Her analysis of the subject had earned her a role in the jurisprudence of the United Nations on terrorism. Her study had been started before the events of 11 September and she had therefore been able to bring in a balanced approach to human rights. Measures to terrorism had too often violated human rights. It was gratifying for the human rights community that the one-dimensional security approach had yielded some space for human rights concerns. A resolution on combating terrorism adopted by the General Assembly had now obliged States to adhere to human rights whilst combating terrorism. The United Nations Committee against Torture had also, while condemning attacks of 11 September, prohibited torture, cruel or inhuman treatment or punishment. The Secretary-General had observed that the United Nations must ensure that human rights must be a central concern that must not be derogated from. Ms. Kalliopi Koufa should assimilate some of the United Nations concerns for protecting human rights while combating terrorism in her final report.
Human rights were the foundation of human existence and human co-existence and must receive equal attention in discussions on terrorism. Many human rights activists had stated that freedom struggles must not be equated with terrorism. Furthermore, States that had found independence after the Second World War still had the memory of the battles fought for freedom. Human rights were not realized by humanity as a result of the generosity of rules, but had been achieved through heroic struggles. Unfortunately vestiges of alien rule persisted, and those who had the right to self-determination were bound to continue their struggles. The Secretary-General himself had expressed concerns about the exploitation of the “T-word”, meaning terrorism, to justify approaches to existing conflicts. The case for self-determination made a compelling argument. Ms. Koufa must complete her study before the next session, and expand it to include the human rights of those who had been victims of human rights violations in measures to combat terrorism. The suggestion made by Mr.Eide to waiver the limit of the length of the paper by Ms. Koufa was supported.
YOZO YOKOTA, Sub-Commission Expert, said that Ms. Koufa had presented an excellent work which analyzed the legal aspects of defining terrorism. Politically and theoretically, it was difficult to define terrorism. Once defined, a State or armed groups could try to evade the responsibility by narrowly interpreting such a definition. It was also unnecessary to find a uniform definition of terrorism. However, its effects against the right to life and property were known, and it should always be punished. Governments should take measures to safeguard the civilian population from any form of aggression. The culprits of any acts of aggression should not enjoy impunity by finding refuge in other countries. According to the United Nations Educational, Scientific and Cultural Organization (UNESCO), the notion of terrorism should not be associated with any groups of people or States. However, indiscriminate violent attacks against civilian populations should be punished. Ms. Koufa should be congratulated for her report and should continue her excellent work.
SOO GIL PARK, Sub-Commission Expert, joined others in expressing congratulations to Kalliopi Koufa, whose excellent paper was constructive. The bulk of the paper was enmeshed in the problem of defining terrorism and the Herculean task of monitoring various anti-terrorism measures undertaken by States since 11 September. There was a tendency of many States to use terrorism to infringe on the human rights of political opponents. Human rights communities were well aware that human rights were indivisible and holistic, and that there was no such thing as a trade-off between human rights and security. One must also be aware of the view of the Security Council; otherwise the human rights community might lose its position and voice in the development of this debate. In a post-11 September world, the human rights community had indeed contributed to the respect for human rights in approaches to combat terrorism.
The recommendation that the Security Council Counter-Terrorism Committee include human rights considerations into its decisions was appropriate; however, it was important to remember that some States were not interested in including provisions of human rights in the work of the Committee. The Sub-Commission could play an important role in this regard. In her last report, Ms. Koufa had discussed the causes of terrorism, as opposed to this year’s report. Finally, many articles in informal journals had been referred to in the paper referring to the emergence of a new international law. Looking at these articles might add to the report, or at least provide a different perspective of interest to Sub-Commission members.
OLEG S. MALGUINOV, Alternate Sub-Commission Expert, said that the problem of defining terrorism was a very delicate issue. It involved historical and philosophical subjects. The actual report showed that the Sub-Commission and its Experts were merely recording what was going on in the world. The most important study carried out by the Sub-Commission was to help the combating of terrorism. Ms. Koufa’s report had suggested the parameters in which terrorism could be combated by respecting human rights. He thanked Ms. Koufa for her report.
ANTOANELLA-IULIA MOTOC, Sub-Commission Expert, said that this was a very complicated question and the Sub-Commission had been lucky to have a Special Rapporteur on this subject with such an in-depth perspective. The task had been difficult; however the report must be published even at its current length. The subject had evolved since 2001 and there were conflicts of the various thinking on terrorism. If one looked at developments in this area, there were a number of legal systems that might enter into conflict. How could one resolve conflicts between these various legal systems, she asked. There were two different systems emerging, one focusing on human rights and the other on national security concerns. It was up to the Sub-Commission to work on the definition of terrorism in its relation to other fields, including international minorities. It was particularly difficult to define the concept of terrorism in a time of such international tension. In contemporary doctrines on terrorism, a number of comprehensive definitions had been put forward including those dealing with the question of legitimacy. It would be difficult for Kalliopi Koufa to produce a definition, even though she had suggested the establishment of a sectoral definition. There was, however, a risk that a sectoral definition could lead to increased fragmentation in an already conflict-ridden arena. Some of the recommendations in the paper were to do with the proposals of the Sub-Commission in its first days, along the lines of appointing counter-terrorism Special Rapporteur to report to the Sub-Commission on a yearly basis.
EL HADJI GUISSE, Sub-Commission Expert , said that the concept of terrorism was flexible and not easy to seize. It was also a complicated issue to ask why acts of terrorism were committed. In some cases, acts of terrorism were expressions against dominations, as had been the case during the apartheid era. The problem of terrorism and the task of defining it would be complicated. Each could have its own philosophical definition. However, any violence against humanity was illegal. The legal framework of the definition could be provided. The study carried out by the Special Rapporteur, Ms. Koufa, was very difficult and needed further in-depth thought. She should continue her work.
LEILA ZERROUGUI, Sub-Commission Expert, expressed her gratitude for the efforts undertaken by Kalliopi Koufa in producing her paper. Joining other speakers, she said that this paper must become an official United Nations document. Given the complexity of the question, and the lack of consensus on a definition of terrorism, an exception must be made.
FISSEHA YIMER, Sub-Commission Expert, said that even before the 11 September events, the issue of the study of terrorism was considered to be a difficult issue. In the final analysis, before and after the 11 September events, the issue of terrorism and its combat within the framework of the international humanitarian law was valid. Measures taken against terrorism should always be taken within the international instruments already laid down. Ms. Koufa should examine how to define terrorism and should tackle States practices against terrorism. A universal definition of terrorism could always have lacunae. In a legitimate exercise by States, acts of terrorism had been criminalized. The issue of political offences had also appeared in the report for the first time in connection with acts of terrorism. Ms. Koufa had suggested that the Sub-Commission should monitor the counter terrorism legislation adopted by States.
KALLIOPI KOUFA, Sub-Commission Expert, said that terrorism and human rights represented a complicated topic. With regard to historical concepts, she said she did not know how useful they would be since there were different schools of thought. Concerning the roots of terrorism, she said that she felt that this was another topic that would require another study. Dealing with the root causes, the Sub-Commission would have to appoint a sociologist or political scientist, since the root causes were not per definition legal. She reaffirmed that ends could never justify the means when it came of counter-terrorist measures. On the difference between freedom fighters and terrorism, she said that the preambular paragraph 3 of the Universal Declaration could provide an answer in this connection. Events since 11 September and the subsequent wars in Afghanistan and Iraq had forced her to shift her focus somewhat and the ideas contained in the report needed further development. On the key elements defining terrorism, she agreed and disagreed with some of the remarks made by Experts. The current international tension had also somewhat affected the inability of the international community to identify a definition of terrorism. The Sub-Commission would be a most important body in this connection, and could have a pivotal role in monitoring national and international counter-terrorism measures. Given the lack of support for finding a definition of terrorism even within the Sub-Commission, she said that she would probably never be able to identify a definite definition of terrorism, and would instead focus on key elements of terrorism.
A.S. NARANG, of Indian Council of Education, said that the enormity and sheer scale of the suicide attack on 11 September 2001 had shown that no country on the globe was immune to the scourge of modern terrorism. However, what had emerged after 11 September was close to a panic reaction in much of the political and legal activity relating to terrorism. The land where civil liberties had been a religion had began to have departments such as home land security. The High Commissioner had said that an effective international strategy to counter terrorism must use human rights as its unifying framework. It was essential that all States implemented the operational measures sought by the Security Council in resolution 1373 (2001) in a manner consistent with human rights. What was important was to maintain a balance between imperatives of securing and defending democratic society, and of safeguarding civil liberties and human rights. For this what was required was to begin with a dispassionate and objective study on the phenomenon of terrorism, it nature and motives. Terrorism was a perennial, ceaseless struggle and there was no doubt that the way and form that terrorism had emerged it could threaten democratic society in various ways. At the same time, it could not be denied that counter-terrorism by itself had the potential to be a worse form of terrorism and violator of human rights, as it was emerging in many ways at present.
TATIANA SHAUMIAN, of International Institute for Non-Aligned Studies, said it was the solemn responsibility of the entire human rights community in general and bodies such as the Sub-Commission in particular, to help in maintaining the fine balance between the needs of international and national security on the one hand and core civil liberties such as the right to life, freedom of thought and expression and freedom of peaceful assembly that made human life worth living on the other. Some outstanding work on examining the multi-faceted dimensions of the evil of terrorism had already been undertaken by the Sub-Commission. Further work of this kind was, doubtless, essential for a better understanding of the linkages between terrorism and human rights. One of the fundamental issues engaging the attention of all those involved in studying the menace of terrorism was whether it had any root causes and whether it would wither away if the root causes were tackled effectively. There was no denying that terrorism, like various other social malaises, did have underlying causes, although it was itself the root cause of a great deal of avoidable human suffering. Experience in many parts of the world had shown that the following factors were powerful catalysts that promoted the growth of terrorism: crises of national identity, authoritarianism and lack of democracy, erosion of the values of tolerance, pluralism and diversity, and unequal sharing of the benefits of development. It was up to the Sub-Commission and its experts to suggest viable approaches, grounded in the bedrock of human rights, that could eradicate terrorism.
HELENE DUSSOLIET-GOND, of World Federation of Trade Unions, said there was no doubt that throughout history almost all societies had subjected women to a sexual division of labour. Women had also been subjected to a pitifully unequal economic division of property, wealth and income either through inheritance or low wages which characterized the jobs women held. Even in countries where women had been educated, their upward mobility had been much less than their efforts deserved. Many professions considered sacred such as priesthood were closed to women, while millions of females were sold into sexual slavery as prostitutes. The present unequal access for women to elementary civic facilities such as secondary school education was the real cause why women could not compete with men in their careers to gain equal economic empowerment. Findings in the United Nations Development Programme’s Human Development Report of 2002 showed that wherever women were kept backward, underdevelopment and feudalism continued to prevail. Unless the international organizations of the United Nations and the governments remedied this situation and provided resources and infrastructure for educating more and more women, gender inequality would not be removed.
BRIGITTE BAMBERG, of the Movement Against Racism and for Friendship among Peoples, said that contemporary forms of slavery were to be found in all aspects of life. The caste system was among the persisting phenomenon of discrimination against people. The International Labour Organization (ILO) had also recognized the slave-like labour involving children and other vulnerable groups, such women. The trafficking in migrants was also an issue that drew the attention of the international community. The issue of forced labour and trafficking in human beings had organic relationships, as recognized by the ILO. In order to create a healthy atmosphere in all labour relations, the trafficking in migrant persons should be dealt with.
MARINA SIKOZA, of Transnational Radical Party said female genital mutilation included practices that went from the most cruel infibulation to other types of mutilation of a woman’s body. These violent acts were not simply traditional practices that deeply affected so many women and children in several countries around the world, but a violation of their psycho-physical integrity – an attack on human dignity. According to the latest studies in the field, today the number of women who had suffered female genital mutilation ranged from 98 per cent in Somalia to five per cent in the Democratic Republic of the Congo. These practices involved African and Arab countries, as a result of increased south-north migration; the practice had also spread in Europe and North America, where it usually happened underground. The Sub-Commission must look into the issue of female genital mutilation and issue a clear condemnation of the violence against women that it represented. Invoking customs, traditions or practices, whether in the name of religion or culture, to avoid the granting of protection of physical integrity to millions of women was no longer acceptable. The Sub-Commission could set up an “Observatory on Infibulation” which could permit a coordinated monitoring of this phenomenon as well as reliable and veritable data gathering on the practice.
RAVINDER KAUL, of Himalayan Research and Cultural Foundation, said that in her working paper, Ms. Kalliopi Koufa had raised some valid issues, which remained unresolved today. She had raised the issue of absence of unified thinking on some of the core issues involved in the intrinsic relationship between terrorism and human rights. The main issues of the definition of terrorism, which was raised in 1997, eluded consensus even today. The United Nations had been approaching the problem of international terrorism through conventions and resolutions for a long time now. Since there had been no consensus, the United Nations had taken a different route in addressing the issue. It approached the issue through devising control and preventive mechanisms in dealing with the acts of terrorism without defining the phenomenon itself. In the absence of a comprehensive definition of terrorism, a consensus must at least be reached in devising these mechanisms to control and suppress international terrorism. Non-governmental organizations, research institutions, human rights activists and academia had to contribute in addressing this issue. Three approaches could help the fruition of a consensus: laying down a legal framework and creating mechanisms within States to deal with terrorists for acts committed within States; inter-state cooperation in dealing with global terrorism; and identifying and censuring States which were sponsoring and sustaining terrorism in order to achieve their strategic objectives.

CORRIGENDUM
In press release HR/SC/03/9 of 5 August, 2003, the statement by Sub-Commission Expert Soli Jehangir Sorabjee on page 4 should read as follows:
SOLI JEHANGIR SORABJEE, Sub-Commission Expert, said that although one could not find a universally acceptable definition of terrorism, there was always a consensus to be observed. In many official documents, terrorism had been defined, including UN documents. Whatever its legitimate aim might be, no one had the right to use acts of terrorism to justify its legitimacy. That was equally applicable to States and non-state actors. Also, it should not be used to demonize political opponents. The definition of terrorism under national legislation should be narrow. There should be safeguards in the legislation in the form of monitoring and rights for judicial review with regard to acts taken against terrorism – anti-terrorism measures. The measures taken by a State against terrorism should not affect the civil liberties of citizens.



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