HUMAN RIGHTS AND COUNTER-TERRORISM -- INTERNATIONAL MONITORING SYSTEMS

Opening Address of Bertrand Ramcharan
Acting UN High Commissioner for Human Rights
At Conference organized by the International Commission of Jurists
Geneva, 23 October, 2003

The subject we have come here today to discuss is indeed an important and topical one: human rights, counter-terrorism, and international monitoring systems. I am pleased to be with you on this occasion and greet you warmly on behalf of all my colleagues in the Office of High Commissioner for Human Rights. Having been a Commissioner of the International Commission of Jurists (ICJ) before becoming a United Nations human rights Commissioner, you will understand my pleasure, and gratitude, that this conference is being organized by the I.C.J., with whom we have had a long and fruitful partnership for human rights going back for years. Some years ago, the I.C.J. did an important study on human rights and states of emergency and, more recently, it has done an important study on human rights and terrorism. The I.C.J. has thus made foundation contributions to the topics of interest to us today for which we are all grateful.
I should like, in these opening remarks, to take each of the topics of our conference in turn: human rights, counter-terrorism, and international monitoring systems. First, human rights. What are the considerations that should be in our minds today as we commence this conference? It would be important, I believe, to remind ourselves of the international code of human rights that all Governments are pledged to live by. Can one say that the basic norms of international human rights law are in fact influencing all countries and that they are seeking in good faith to implement those norms? Many countries are indeed striving, in sometimes difficult circumstances, to follow the human rights path. Many are way off course. Gross violations of human rights abound in the world. Women are the victims of pervasive injustice. Trafficking in human beings is a blot on our civilization. Poverty is the ruination of millions of lives. Indigenous peoples, minorities, refugees, internally-displaced persons, and migrants experience diverse problems when it comes to the practical enjoyment of basic human rights.
The United Nations Secretary-General, in his efforts to strengthen the human rights activities of the United Nations, has placed emphasis on the development and strengthening of national protection systems, the better implementation of human rights treaties, and the enhancement of the functioning of the special procedures system. We in the Office of the High Commissioner are placing increasing emphasis on working with Governments and with United Nations country teams on practical projects to enhance national protection systems, with particular emphasis on the role of the courts in the protection of human rights nationally. In the first instance, human rights must be protected at home. International efforts reinforce national protection.
Why is this important? It tells us, in my view, where our priorities must lie in the human rights movement: in fostering and helping strengthen national protection
systems. It also invites us to ask questions such as the following: How are the acts of terrorists adversely affecting efforts to protect human rights at home? What are the dangers to human rights in the struggle against terrorism? Is the terrorism issue being exploited as a subterfuge to suppress human rights and what is the scale and dimension of this?
Attempting to answer these questions, one needs to recognize that the acts of terrorists threaten innocent lives in all parts of the world. A government which has to act to counter terrorism is one that is being obliged to deploy resources that might otherwise have been used for nation-building and for the promotion and protection of human rights. Terrorism thus has an adverse effect on global efforts to uphold human rights.
The danger to human rights in countering terrorism -- which one has seen in many situations -- is that there might be departures from the rule of law, or from the principle of proportionality, or that one might have recourse to methods that are fraught with danger -- such as resort to military tribunals to try civilians. There are also dangers when persons suspected of terrorist acts are detained or imprisoned -- that they may be treated inhumanely or without regard to basic international standards.
International human rights treaty bodies, special rapporteurs and working groups, and reputable non-governmental organizations have been pointing up extensive evidence of abuses of human rights in different parts of the world that have taken place on the ground of countering terrorism. One of the contributions that might be made by this conference is to help assess the scale and extent of such abuses. It is important that we follow this carefully.
I turn now to the second item in the title of the conference: counter-terrorism. What are the considerations that we should have in mind when contemplating this aspect? First, as we have already said, terrorism has an adverse effect on global efforts to uphold human rights. Second, the Security Council has held, under Chapter VII of the United Nations Charter, that all Governments have a duty to act to prevent and counter terrorism. Third, there is a duty of international cooperation among Governments in acting against terrorism. Fourth, as we have already mentioned, terrorism must be fought within the framework of the law and with respect for the principle of proportionality. Fifth, there are certain norms from which there may be no derogation in any circumstances. The interdiction of torture is an example of this. Sixth, there must be access to the Courts to test particular instances of the application of counter-terrorism law and practice. Without the arbitration of the Courts there is grave danger of abuse.
A particular area of the law regulating counter-terrorism activities that requires urgent clarification relates to the role of the Courts in evaluating threat assessments by Governments. The measures a Government takes to counter terrorism will be
influenced by its assessment of the degree and level of threat. This can have far-reaching consequences for law and order and for human rights. Is threat assessment to be left to the Executive alone'?
Historically, the practice has varied in different jurisdictions. In Common Law countries the Courts have been reluctant to question the judgment of the Executive,
leaving it to the electorate to make the ultimate judgment. The European Court of Human Rights has accorded a margin of appreciation to Governments, distinguishing between a democratic and a non-democratic government. In Civil Law systems it does not seem that the Courts have been ready to challenge the judgment of the Executive when it comes to threat assessment. At the international level, the issue has been moot so far. The Security Council is a political rather than a judicial body and the issue of threat assessment has hardly exercised bodies such as the International Court of Justice.
I believe, however, that at a conference organized by the International Commission of Jurists, it is of the utmost importance to reflect on this issue. Unless there can be some possibility of judicial monitoring of threat assessment one would be condemned to dealing with situations after the fact. From a human rights standpoint this would be ominous.
I turn now to the third component of the conference: international monitoring systems. The first thing to note about this component is that monitoring is of two kinds: monitoring of compliance with the duty to act against terrorism; and monitoring of compliance with international human rights norms. Monitoring of compliance with the duty to act against terrorism is a leading task of the Counter--Terrorism Committee of the Security Council. It has had a good beginning with Governments submitting their initial reports but, more recently, reports have been lagging. The quality and depth of monitoring is open to study. While the CTC has been willing to receive information and presentations on human rights issues, there is no evidence that it has so far developed an approach to monitoring of compliance with international human rights norms.
Monitoring of compliance with international human rights norms has been carried out largely by the international human rights treaty bodies, the special procedures of the United Nations, NGOs, and the media. The idea has been discussed around the Commission on Human Rights of designating a Special Rapporteur to monitor compliance with international human rights norms in counter-terrorism activities, but it has so far not come to decision because views have differed. There has been some monitoring of compliance with human rights norms in regional and similar bodies such as the Council of Europe and the Organization for Security and Cooperation in Europe (OSCE).
One could also mention, in this context, the Special Rapporteur of the Sub-Commission on the Promotion and Protection of Human Rights, who has been engaged in a study of the topic of terrorism and human rights.

Having now touched upon the three components of our conference's topic, human rights, counter-terrorism, and international monitoring systems, what insights should we seek to derive as we set about our deliberations? I would suggest the following: it would be important to identify best practices when it comes to safeguard measures against abuses. Prevention of abuses is crucial. Preventive measures need to be examined at the national, regional and international levels. It would be important to place before Governments examples of successful safeguard measures. This is what moved us to prepare a digest of human rights jurisprudence of United Nations and regional courts and commissions so as to sound a note of caution to Governments and
to provide a source of guidance to them. Out of this conference could come a compendium of safeguard measures to protect against abuses in the struggle against terrorism.
Thank you.