Security Council Counter-Terrorism Committee UN Headquarters, 19 June 2003, Briefing by Sir Nigel Rodley, Vice-Chairperson Human Rights Committee

Human Rights and Counter-Terrorism Measures

Mr Chairman, Distinguished Committee Members.

1. I appear before you as the representative of the Human Rights Committee, the body established under the International Covenant on Civil and Political Rights to monitor compliance with the provisions of the Covenant by the States parties to it. I should first of all like to express our appreciation for the continued willingness of the Counter-Terrorism Committee to engage in exchanges with voices from the United Nations’ human rights community. As far as the Human Rights Committee is concerned, this involved the very useful briefing that Ambassador Ward gave us at our 77th session in March of this year. We are also aware of the briefings your Committee has received from the former and present High Commissioners for Human Rights, as well as from the head of their office here in New York.

2. I should like to preface my remarks by being very clear about one thing. It is evident that the Security Council, in adopting resolution 1373 (2001) so soon after the atrocity of 11 September 2001, was acting true to its solemn responsibilities under the Charter for the maintenance of international peace and security. The programme contained in the resolution, and the setting up of your Committee to pursue its implementation, represented a serious response to the need to protect the whole international community from the sort of horror of which the 9/11 attack was the culmination. Numerous subsequent murderous terrorist attacks, spread around the globe, have only served to underscore the importance of preventing and repressing such crimes against humanity.

3. For some time after the adoption of resolution 1373, there were fears that the resolution might become an instrument for circumventing States’ human rights obligations. Despite the fact that preambular paragraph 5 of the resolution spoke of employing means ‘in accordance with the charter of the United Nations’ to combat threats to international peace and security caused by terrorist acts, the Human Rights Committee has heard Charter article 103 being invoked to justify departures from obligations under international human rights law, including the International Covenant on Civil and Political Rights. Fortunately, the Council itself acted to foreclose that approach in its ministerial declaration annexed to resolution 1456 (2003), operative paragraph 6 of which removed any ambiguity by demanding:

‘states must ensure that any measure 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.’

4. I do not propose to belabour the importance of addressing human rights matters in this context. As the Secretary-General said to the Council on the day resolution 1456 was adopted, ‘we must never lose sight of the fact that any sacrifice of freedom or the rule of law within States … is to hand the terrorists a victory that no act of theirs alone could possibly bring.’ Far from being an unwelcome fetter on the combat against terrorism, respect for human rights is an integral component of an effective universal counter-terrorist strategy.

5. It follows inexorably from this that the Council has a direct interest in ensuring that the human rights component is not lost sight of. And, however inconvenient it may appear, the Council should not leave it wholly to those parts of the United Nations system that have a specific human rights mandate. Political and legal reasons support this contention. What resolutions 1373 and 1456 represent is a paradigm shift towards depoliticization and a professionalization of what had been a supremely political discourse in our organization, that is, the discourse on terrorism. Like the earlier discourse on terrorism, human rights discourse in the inter-governmental organs of the United Nations dealing with human rights, notably, the Commission on Human Rights, has suffered from the same political manipulation and has not yet begun to transcend it. Accordingly, the Council cannot rely on those bodies to monitor the human rights dimension with the methodology necessary to make their monitoring reliable. Moreover, from the legal perspective, their findings would not, of themselves, have the same binding force that decisions of the Security Council adopted under chapter VII of the Charter evidently have. It is true that the thematic special procedures of the Commission on Human Rights do not suffer from the problem of politicization, but the legal limitation remains.

6. Nor, as things stand, can the task be left to human rights treaty bodies, such as the Human Rights Committee which is responsible for monitoring compliance with the international Covenant on Civil and Political Rights, that is, the treaty whose provisions articulate the human rights most at stake in the context of counter-terrorism activities. Certainly, the Human Rights Committee does take cognisance ex officio of Member State reports to the Counter-Terrorism Committee in reviewing reports periodically submitted to us by States parties to the Covenant (our main function under the Covenant and the only one to which all 149 States parties are subject). However, our mandate excludes the almost one quarter of United Nations Member States that are not party to the Covenant. In addition, the reports of many States parties are seriously overdue. And, since in practice we can only consider some 15 reports per year (five per session), even in a period of, say, three years from the adoption of resolution 1373, we shall only have considered some 45 State reports.

7. Even with these limitations, we have been moved to express concerns to a number of States parties to the Covenant in respect of counter-terrorism measures adopted pursuant to resolution 1373, namely, Egypt (CCPR/CO/76/EGY, para. 16), Estonia (CCPR/CO/77/EST, para. 8), Moldova (CCPR/CO/75/MDA, para. 8), New Zealand (CCPR/CO/75/NZL, para. 11), Sweden (CCPR/CO/74/SWE, para. 12; see also State party response in CCPR/CO/74/SWE/Add.1, paras. 9-17) and the United Kingdom of Great Britain and Northern Ireland (CCPR/CO/73/UK; CCPR/CO/73/UKOT, para. 6; see also State party response in Add.2, paras. 2-25).

8. The kinds of issues generating our expressions of concern stem from measures contemplated or adopted (sometimes before 9/11) in respect of:

– administrative detention without effective judicial review (ICCPR, art. 9(4) [right to challenge before a court the lawfulness of detention]);
– denial of entry, or expulsion of, persons at risk of being subjected to torture or to cruel, inhuman or degrading treatment or punishment (art. 7 [prohibition of torture and cruel, inhuman or degrading treatment]);
– loose definitions of ‘terrorism’ or ‘terrorist organization’, capable of resulting in breaches of the principle of legality (art. 15 [non-retroactivity of crime and penalty]) and in the removal of safeguards, such as those against prolonged incommunicado detention, that would prevent torture or cruel, inhuman or degrading treatment or punishment or even violations of the right to life (various combinations of violations of articles 6 [right to life], 7, 10(1) [right to be treated with humanity and respect for human dignity] and 14 [right to fair trial]).

9. In this connection, I should note that articles 6, 7 and 15 are all non-derogable, which means that under article 4 they cannot be suspended even in time of a public emergency threatening the life of the nation. Moreover, in its General Comment 29 on article 4 [annexed to this statement], adopted only seven weeks before 9/11, the Human Rights Committee expressed its understanding that the principle of proportionality ensures that ‘no provision of the Covenant, however validly derogated from, will be entirely inapplicable to the behaviour of a State party’ (General Comment 29, para. 4). In particular, this principle together with ‘the principle of legality and the rule of law inherent in the Covenant as a whole’ have the effect of preserving the essence of articles 9(4), 10(1) and 14 (General Comment 29, para. 16).

10. In the light of these considerations, it will presumably come as no surprise that I find myself urging the Counter-Terrorism Committee to give serious consideration to proposals of the Office of the High Commissioner of Human Rights. It would, I believe, be desirable for the Counter-Terrorism Committee to pose questions to Member States on the human rights dimensions of their reports to the Counter-Terrorism Committee. Apart from the questions suggested in the Office’s "Note to the Chair of the Counter-Terrorism Committee: A Human Rights Perspective on Counter-Terrorist Measures" and the "Further Guidance Note on Compliance with International Human Rights Standards", those listed on page 4 of Mary Robinson’s 19 February 2002 address to the Counter-Terrorism Committee are of interest and summarize the general concerns. I would add that the Counter-Terrorism Committee might pose the question as to the effect on, or relevance of, any human rights treaties the State in question has ratified to the counter-terrorism measures it has adopted, including whether or not it is up-to-date in its reporting under the treaties, especially the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

11. If, as would be eminently desirable, the Counter-Terrorism Committee were to include human rights expertise among the complement of expertise it has at its disposal, the Committee could then frame questions more specifically focussed on the details of the State’s report. One important benefit of that would be the avoidance of seeming to suggest that the Counter-Terrorism Committee was expecting measures to be taken that could be at odds with a State’s human rights obligations. For example, it seems from Slovakia’s reply to Counter-Terrorism Committee questions on that State's report to the CTC (S/2002/730, Annex) that the Counter-Terrorism Committee's questions could be understood to be urging that State to overlook the principle that in no case should a person be sent to a territory where he or she faces torture or cruel, inhuman or degrading treatment or punishment, or a violation of the right to life.

12. Let me at once point out that this does not imply the granting of safe havens. Measures may be taken to ensure that, if returned, the person will not in fact be subjected to the feared violation. But those measures would need to be serious and effective. Alternatively, the State in whose territory the person is found should have in place the power to bring the suspect before its own system of justice.

13. Mr. Chairman, let me conclude by reiterating the Human Rights Committee’s appreciation of the continuation of our dialogue through this meeting, its concern that terrorism be effectively combatted and its belief that respect for human rights will assist, not hamper that combat. We look forward to considering suggestions as to how we might more effectively monitor the human rights dimensions of counter-terrorism, notably in a manner that might be complementary to the work of the CTC.

Thank you, Mr Chairman.