Human Rights Council discusses the protection of human rights while countering terrorism, and cultural rights

AFTERNOON

GENEVA (1 March 2018) - The Human Rights Council this afternoon began a clustered interactive dialogue with Fionnuala Ni Aolain, Special Rapporteur on the promotion and protection of human rights while countering terrorism, and with Karima Bennoune, Special Rapporteur in the field of cultural rights.

Presenting her report, Ms. Ni Aolain said that states of emergency had become synonyms of sustained and extensive human rights violations.  The report documented how the proliferation of counter-terrorism practices across the globe after 11 September 2001 had spawned a new set of de facto and permanent measures, which had been violating States’ treaty obligations.  Vague and overly broad definitions of terrorism were used to target civil society, human rights defenders, bloggers and activists, which in effect was abuse of the law.  States should undertake periodic reviews of counter-terrorism legislation to assess the impact on human rights, and ensure judicial oversight in all stages of emergency power practice.  

In her presentation, Ms. Bennoune highlighted the indivisibility of cultural rights and all other human rights.  Her report considered artistic and cultural practices aimed at addressing present cultural challenges and fostering the creation of peaceful societies.  Governments had the responsibility to preserve existing spaces for the exercise of cultural rights.  In the immediate aftermath of conflict, art provided the tools to understand divisions and respond to human rights violations.  In conclusion, Ms. Bennoune stressed that investing in cultural rights must be considered a critical part of human rights strategies.  She spoke about her mission to Serbia and Kosovo.

Serbia spoke as a concerned country.

In the ensuing discussion on counter-terrorism measures, speakers strongly agreed that counter-terrorism laws and measures had to be consistent with international law.  Effective counter-terrorism measures and the protection of human rights were not conflicting but complementary and mutually reinforcing.  Speakers welcomed the Special Rapporteur’s commitment to fully integrate a meaningful gender analysis in all aspects of her mandate.  Even though some actions during emergencies could be acceptable, the thresholds of legality and proportionality should always be met.  States should always safeguard non-derogable rights, such as freedom from torture.

On cultural rights, speakers highlighted the contribution of culture to the enjoyment of human rights because of the capacity to promote reconciliation in post-conflict scenarios and to achieve human development.  Culture could mediate against fears that existed between people along various lines of division, and facilitate the expression of thoughts and feelings in a non-threatening manner.  Advocating for the rights of artists had to form a key part of any strategy confronting cultural cleansing and the challenges of forced displacement.

Speaking were European Union, Jordan on behalf of the Arab Group, Togo on behalf of the African Group, Kuwait, Israel, Holy See, Russian Federation, Norway, Pakistan, Belgium, Egypt, Tunisia, Spain, Libya, Philippines, United States, South Africa, Côte d’Ivoire, United Nations Educational, Scientific and Cultural Organization, Australia, Cuba, Syria, France, China, Qatar, Ethiopia, Myanmar, Malaysia, Iraq, Mexico, Maldives, Iran, Netherlands, Georgia, Peru, Ecuador, Sudan, Burkina Faso, Djibouti, United Arab Emirates, Nigeria,  Bangladesh, United Kingdom, Bolivia, Ireland, Azerbaijan, Albania, Morocco, Saudi Arabia and Armenia.  

Brazil and China spoke in right of reply.

The Council will conclude its clustered interactive dialogue with the Special Rapporteur on the promotion and protection of human rights while countering terrorism, and with the Special Rapporteur in the field of cultural rights on Friday, 2 March, at 9 a.m.  It will then hold an interactive dialogue with the Special Rapporteur on freedom of religion, to be followed by a clustered dialogue with the Special Rapporteur on truth and justice, and with the Special Rapporteur on prevention of genocide.  In the afternoon, the Council is scheduled to hold a clustered interactive dialogue with the Special Rapporteur on the environment, and with the Special Rapporteur on the right to food.

Documentation

The Council has before it the Report of the Special Rapporteur on the promotion and protection of human rights while countering terrorism (A/HRC/37/52)

The Council has before it the Report of the Special Rapporteur in the field of cultural rights (A/HRC/37/55).

The Council has before it the Report of the Special Rapporteur in the field of cultural rights – mission to Serbia and Kosovo (A/HRC/37/55/Add.1).

Presentation of Reports by the Special Rapporteur on the Promotion and Protection of Human Rights while Countering Terrorism and by the Special Rapporteur in the Field of Cultural Rights

FIONNUALA NI AOLAIN, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, outlined four priorities of the mandate.  These were the proliferation of permanent states of emergency and the normalization of exceptional national security powers within ordinary legal and administrative systems; the need for greater clarity of the legal relationship between national security regimes and international legal regimes, as well as the relationship between human rights and international security regimes regulating terrorism; the advancement of normative attention to the gendered dimension of terrorism; and the importance of advancing the protection of civil society.  

The first thematic report presented to the Council had expressed deep concern about the normalization of emergency powers in national legal systems.  States of emergency had become synonyms with sustained and extensive human rights violations.  The report documented how the proliferation of counter-terrorism practices across the globe after 11 September 2001 had spawned a new set of de facto and permanent emergencies in national practise, which had been violating States’ treaty obligations.  A vague and overly broad definition of terrorism was used to target civil society, human rights defenders, bloggers and activists, which in effect had been abuse of the law.  Consequently, serious human rights violations and poor governance that accompanied them had contributed to the conditions conducive to terrorism.  The question was asked how could States remain in compliance with their human rights treaty obligations.  States had to fulfil their concrete international law obligations and when devising counter-terrorism legislation, a threshold of legality, legitimacy, necessity and proportionality had to be ensured.  Periodic reviews of counter-terrorism legislation had to be undertaken to assess the impact on human rights.  Judicial oversight was necessary in all stages of emergency power practice.  A practice of national benchmarking was strongly recommended, particularly on the effects the measures had on ethnic minorities.

KARIMA BENNOUNE, Special Rapporteur in the field of cultural rights, presenting her report on her visit to Serbia and Kosovo, said diverging narratives existed regarding events, including the break-up of the former Yugoslavia, repression, mass atrocities, armed conflict in 1998-1999, and riots in 2004.  Ms. Bennoune deeply regretted discourse that disputed the importance of the cultural heritage of the Serbian Orthodox Church in Kosovo and of Kosovo Albanians.  The notion of shared cultural heritage as a common good must be enhanced.  Joint events organized by civil society groups to bring together people of diverse backgrounds and arrange visits to sites of cultural significance was a positive step forward.  Still, the history of widespread destruction of cultural heritage in 1998-1999 and 2004 was appalling.  Destruction of such sites violated the right to access and enjoy cultural heritage and jeopardized the rights of future generations.  Serbia and Kosovo must perceive cultural heritage as an issue of universal human rights.  While there were institutions devoted to protecting cultural heritage, Serbia and Kosovo must increase funding devoted to culture.  There was an ongoing need for the implementation of the legal framework addressing cultural heritage.  Political will must be actively expressed and threats to cultural heritage must be condemned publicly.

Turning to her thematic report, she highlighted the indivisibility of cultural rights and all other human rights.  The report considered artistic and cultural practices aimed at addressing present cultural challenges and fostering the creation of peaceful societies.  In some contexts, simply engaging in arts could have a meaningful effect on human rights.  However, many artists were making a conscious choice to restore understanding between groups and their efforts must be recognized.   Proposed budget cuts in the cultural area were deeply worrying.  Accepting that some artistic and cultural works would be critical of some aspects of government and society was needed for Governments to refrain from censorship.  Governments had the responsibility to preserve existing spaces for the exercise of cultural rights.  In the immediate aftermath of conflict, art provided the tools to understand divisions and respond to human rights violations.  She closed by stressing that investing in culture must be considered a critical part of human rights strategies.

Statement by Concerned Country

Serbia, speaking as a concerned country, said under the United Nations Security Council resolution 1244 (1999), Kosovo was an integral part of the Republic of Serbia.  This implied that all Special Rapporteurs respect the sovereignty and territorial integrity of Serbia.  Additionally, the Special Rapporteur in implementing her mandate was obliged to abide by the resolution on establishing the Special Rapporteur in the field of cultural rights.  The report presented, unfortunately, did not comply with the abovementioned resolutions.  It contained many political assessments and observations which were not in accordance with the mandate of the Special Rapporteur in the field of cultural rights.  They undermined the sovereignty and territorial integrity of the Republic of Serbia, a United Nations Member State, which was unacceptable within the United Nations mechanisms.  Consequently, they undermined the entire report.  Furthermore, the report failed to give in some cases an objective, accurate and fair reflection of the cultural rights in Serbia, particularly in Kosovo and Metohija.

Interactive Dialogue

European Union strongly agreed that counter-terrorism laws and measures had to be consistent with international law.  It noted that cultural rights were fundamental to creating and maintaining peaceful, inclusive and just societies.  Jordan, speaking on behalf of the Arab Group, stressed that the first step towards peace and social prosperity was respect for diversities.  Cultural heritage, thus, had to be protected from various threats, notably terrorism.  It was important to maintain the status of Jerusalem and the Arab Group called on the Special Rapporteur to consider that in her future reports.  Togo, speaking on behalf of the African Group, categorically condemned acts of terrorism and was committed to the values of the rule of law in countering terrorism.  Cultural rights were essential tools for development, peace, social cohesion, and mutual understanding.  

Kuwait stressed that terrorism was not linked to a specific religion or race.  Kuwait took part in international efforts to combat terrorism, hosting five meetings to that end, and it called for more international coordination in that respect.  Israel shared the view that culture could mediate against fears that existed between people along various lines of division, and facilitate the expression of thoughts and feelings in a non-threatening manner.  Holy See highlighted the contribution of culture to the enjoyment of human rights due to its capacity to promote reconciliation in post-conflict scenarios and to achieve human development.    

Russia said that during counter-terrorism activities, States had to abide by their national security interests, while respecting human rights.  The Special Rapporteur was asked how could the international community react when authorities of one country attacked the culture of another country for political reasons.  Norway shared awareness that art and culture could play a role in mitigating healing in societies in the aftermath of violence.  Member States had been called on to protect the universality of cultural rights and it was suggested for documentation of violations of cultural rights to be included in the Universal Periodic Review reports.  Pakistan said that robust action had been taken by Pakistan’s security forces to defeat terrorism.  Pakistan had a diverse cultural heritage built upon the five millennia’s old history of the Indus Valley civilization

Belgium said that the essence of the fight against terrorism went together with defense of principles enshrined in the Universal Declaration of Human Rights.  The Special Rapporteur was asked to suggest how to better mainstream human rights into the Security Council’s decisions.  Egypt hoped that the report would highlight recommendations to States on how to better fulfil commitments when combatting terrorism and suggested to the Special Rapporteur to assess the impact of terrorism on the enjoyment of human rights.  Art and culture could play a key role in fighting terrorism by promoting a culture of tolerance and building democratic institutions.  Tunisia said since 2011 the President had had to declare a state of emergency several times, however it had been done in strict compliance with the Constitution and freedoms and human rights had not been restricted.  The report on cultural rights was welcomed, as culture had a strong role in promoting human rights.

Spain agreed with the Special Rapporteur on counterterrorism measures with regard to the principle of proportionality.  Exceptional measures and their prolonging could turn this into practice, thus undermining human rights standards.  These exceptional measures must be clearly stated in State norms and must not affect minorities.  Libya supported strategic partnerships against terrorism, and called on the international community and friends to help it fight this scourge.  With the few resources it had, Libya had managed to free cities under Daesh occupation.  However other challenges remained.  Philippines recognized the threat terrorism posed to human rights and to the ability of States to achieve their development goals.  To effectively counter terrorism, national efforts had to have a holistic approach that recognized the root causes of terrorism.  Additionally, they had to be complemented through international cooperation.

United States said artistic freedom was a key component of the fundamental freedom of expression, and critical to culture, identity and heritage.  Artists in many parts of the world faced threats, censorship, and violations and abuses of their human rights.  Would the Special Rapporteur coordinate her work with the Special Rapporteur on the freedom of expression?  South Africa believed that cultural heritage was a very important referential element that defined cultural rights.  Cultural rights could assist in restoring human dignity, social cohesion and national identity between people along various lines of division.  South Africa served as a great example of a people that were divided along racial lines but with the focus on a united society.  Côte d’Ivoire shared the idea that promoting cultural rights and initiatives could favour diversity, strengthen resilience, and establish trust and reconciliation.  Unfortunately, these rights were often not protected, and were even often violated.  Terrorism was one of the most serious threats against the three pillars of peace and security, development and human rights.  

United Nations Educational, Scientific and Cultural Organization supported the intention of the Special Rapporteur to address the role of cultural expressions in fostering resilience, reconciling communities, preventing violent extremism and overcoming trauma.  Advocating for the rights of artists had to form a key part of any strategy confronting cultural cleansing and the challenges of forced displacement.  Australia noted that effective counter-terrorism measures and the protection of human rights were not conflicting but complementary and mutually reinforcing.  It welcomed the Special Rapporteur’s commitment to fully integrate a meaningful gender analysis in all aspects of her mandate.  Cuba warned that certain past practices were being repeated, leading to grave human rights violations.  It stated that people should be involved in different cultural processes and that more attention should be given to safeguarding cultural rights.  

Syria noted that foreign support for terrorism was used as a tool against sovereign States, leading to catastrophic results for human rights inside countries.  The rights of Syrians were being violated on a daily basis under the guise of counter-terrorism.  France welcomed the insistence of the Special Rapporteur on the rule of law, and on legal proportionality in the fight against terrorism.  On cultural rights, France underlined the importance of socially engaged art for open and diverse societies.  China said that the international community should enhance dialogue, cooperation and exchange to remove the breeding ground for terrorism.  It was committed to inclusive cultural development.  

Qatar said emergency laws were enacted during exceptional circumstances and some rights were non-derogable during national emergencies and a balance between freedoms and security was needed.  Ethiopia strongly agreed with the promotion of fundamental rights by promoting respect for cultural diversity.  Artists played robust roles in developing and maintaining fundamental rights.  Myanmar strongly condemned all forms of terror and extremism, noting it was confronting the challenge of Rohingya militants.  Security forces were working to restore law and order in Rakhine state.  

Remarks by the Special Rapporteurs

FIONNUALA NI AOLAIN, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, said her report identified counter-terrorism oversight powers in the United Kingdom and New Zealand as examples of best practice.  In response to Spain, she said notification of counter-terrorism measures to human rights treaty bodies was an absolute necessity.  Notification of best practices also included efforts to ensure all parts of the State were aware of what counter-terror efforts were being undertaken.  Responding to Belgium with regard to integrating human rights into the United Nations counter-terrorism context, she stressed that human rights remained on the margins of the Organization’s counter-terror architecture.  Turning to questions on technical expertise, she said expertise had to account for human rights implications.  She closed by stating that many non-derogable rights were increasingly being encroached upon.

KARIMA BENNOUNE, Special Rapporteur in the field of cultural rights, thanked all delegations for their questions and comments and expressed her desire to work together with all delegations in implementing recommendations.  Artists could do important work in the promotion of human rights if countries supported them.  An entire section of the report explored the work of educational institutions.  Cultural rights education, arts education and human rights education were critical to support, making the budget cuts in those areas devastating.  In post-conflict societies, it was particularly important to promote diversity and a culture of tolerance.  Cultural initiatives could create a safe space for expressing grief, dealing with loss after the conflict and letting go of bitterness.  Adoption of a human rights approach to cultural heritage had been necessary.  

As a response to the Serbian delegation’s comment on respect of territorial integrity, Ms. Bennoune said that the standard footnote had been applied in all references to Kosovo, as advised by the Special Procedures.  Concerning the damage of monuments associated with the Serbian Orthodox Church, the report cited numerous burnings and destruction of cultural monuments, as well as killings.  The report also enlisted Kosovo monuments destroyed in 1998 and 1999 and the overarching view was that mutual responsibility had to be present on both sides.  

Interactive Dialogue

Malaysia agreed that the promotion and protection of cultural rights could contribute to a country’s development, peace and stability.  It also noted that the “lip service” to human rights norms in the Security Council resolutions was a fundamental failure of leadership in counter-terrorism regulation.  Iraq noted that all counter-terrorism measures should conform to international human rights principles.  The cornerstone of fighting terrorism was upholding the rule of law.  The Iraqi Constitution guaranteed the exercise of cultural rights without any discrimination.  Mexico expressed concern about the effect of terrorism on both collective and individual security.  The anti-terrorism measures taken had to guarantee freedom of expression and of civil society to act.  What were good practices in preventing terrorism?  

Maldives stated that combatting terrorism and violent extremism were its national priorities.  It had established a national counter-terrorism centre in 2016, and it had continued to work with international partners to protect its citizens, tourists and critical infrastructure from terrorist attacks.  Iran strongly condemned all acts of terrorism and emphasized the need for an international consensus to prevent violent extremism.  It remained deeply concerned about the rising Islamophobia and agreed that the protection of cultural rights could spread tolerance, peaceful coexistence and mutual understanding.  Netherlands stressed that even though some actions during emergencies could be acceptable, the thresholds of legality and proportionality should always be met.  States should always safeguard non-derogable rights, such as freedom from torture.

Georgia said confidence-building projects were being implemented to assist populations afflicted by conflict.  Georgia expressed concern that Russian authorities were not granting access to Georgian observers to sites of cultural heritage in occupied regions of Abkhazia and Tskhinvali.  Peru said its citizens used artistic expression to commemorate and remember acts of resistance.  Artistic expressions of the sort came out of a need to understand periods of violence.  Peru asked how States could promote artistic expression to promote reconciliation.  Ecuador underscored that cultural rights could contribute to developing peaceful societies.  States and other stakeholders must support acts of cultural expression.  Ecuador’s Constitution safeguarded cultural heritage as part of a strategy to promote cultural expression in an equitable environment.

Sudan said the promotion and protection of human rights, including the right to a fair trial, was embedded in its national values.  Terrorism was not connected to a specific religion and its eradication was based on the promotion of peace and tolerance.  Burkina Faso said countries in the Sahel region were dealing with the consequences of terrorism.  Reforms were established to combat terror while respecting human rights and poverty was identified as one of the main causes of terror in the region.  Djibouti said initiatives in the area of arts helped build a more respectful society.  Djibouti asked how cultural diversity and plurality could be protected in a time when the world was increasingly connected and cultural hegemony was a legitimate threat.

United Arab Emirates said that decisions on states of emergency had been taken by States in line with their national legislation and under international law it was legal to restrict human rights, so the Special Rapporteur was asked to clarify this delicate issue between national security and human rights considerations.  Hedayah was established as a centre of excellence to research violent extremism’s drivers.  Nigeria called on countries to cooperate in trying to defeat terrorism.  The national action plan for countering terrorism focused on strengthening institutional cooperation and the rule of law.  Bangladesh agreed that while terrorism was an old and global phenomenon it lacked a comprehensive definition under international law.  Counter-terrorism initiatives and subsequent prolonged emergency situations should not be used as tools for abusing civilian populations.

United Kingdom stressed that the fight against terrorism had to be conducted with full respect for human rights and the rule of law.  A question was raised about what support could the international human rights bodies and the United Nations institutions provide to States to ensure human rights protection during states of emergency.  Bolivia affirmed that arts offered alternative communication paths and an approach to cultural rights was worth expanding as it would allow for expression of marginalized groups.  Ireland had continually recommended for close attention to be paid to the views of human rights experts, including the High Commissioner and Special Rapporteurs.  The Special Rapporteur was asked to offer guidance on a consistent definition of terrorism to ensure the uniform application of counter-terrorism measures.

Azerbaijan said that as a country that had repeatedly been targeted by terrorism, it strongly condemned terrorism, violent extremism, and armed separatism in all their forms and manifestations.  It concurred with the idea that cultural rights were essential tools for achieving development, peaceful coexistence and for building social cohesion, as well as mutual respect and understanding.  Albania agreed that States needed guidelines and good practices which should help governments in their work to adopt and implement them while countering terrorism, so as to systematically address the pernicious problem of permanent states of emergency.  It remained committed to broadly promoting tolerance and equal enjoyment of human rights for all, including cultural rights.  Morocco shared the opinion concerning the importance of cultural heritage as a reflection of society in all its diversity.  Morocco’s society was underpinned by cultural heritage and it placed a great importance on this.

Saudi Arabia said it attached a great deal of importance to cultural rights.  One of the aims of the Kingdom was to build the largest Islamic museum in the world.  This was one of the ways in which people could learn about the long history of Islam.  Armenia said it placed great importance on cultural rights, and had been one of the first six countries to sign the Council of Europe Convention on this issue.  Regarding the important issue of states of emergency, it agreed that it should be proportionate to the threat.

Right of Reply

Brazil, speaking in a right of reply, responded to the statement made by Conectas Direitos Humanos and clarified that the visit to Brazil by the Independent Expert on foreign debt had been postponed and not cancelled due to ministerial reshuffling.  Brazil had extended an invitation to all Special Procedures and had already received 25 visits since 2001 from 20 different mandates.  Brazil was back on track: inflation was under control, interest rates were at historic low levels, and unemployment was declining.  A number of measures had been adopted to secure and strengthen social programmes, and the budget for health and education had been expanded.  As for the new migration law, it introduced comprehensive discipline on migration, and it ensured due process for all migrants, regardless of their legal status.

China, speaking in a right of reply, firmly opposed the unfounded allegations made by certain civil society organizations.  The Chinese people enjoyed unprecedented freedoms and the Tibetan people had the right to use their language, and to exercise their freedom of religion and culture.  Certain criminals had been arrested because they had incited secession.  Everyone was equal before the law and all those who committed crimes had to be prosecuted.

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