Statement by Ms. Kyung-wha Kang, Deputy High Commissioner for Human Rights, to the 16th HRC Human Rights and issues related to Terrorist Hostage

11 March 2011

Mr. Vice-President,
Distinguished Members of the Human Rights Council,
Excellencies, distinguished panellists
Ladies and Gentlemen,

I am pleased to open this panel discussion on the issue of human rights in the context of action taken to address terrorist hostage taking.

As provided by the Council in decision 15/116, the focus of the discussion will be on: the primary responsibility of States to promote and protect human rights for all in their jurisdiction; the strengthening of international cooperation to prevent and combat terrorism while protecting human rights; and the protection of the rights of all victims of terrorism involved.

Hostage taking is a crime and should be dealt with as such.  The international Convention against the Taking of Hostages, which has been ratified by 168 States, defines hostage-taker as “any person who seizes or detains and threatens to kill, to injure or to continue to detain another person in order to compel a third party, namely, a State, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage.”

In the context of armed conflict, the taking of hostages is prohibited by international humanitarian law. Furthermore, the prohibition of hostage-taking has also been captured in the Statute of the International Criminal Court, which has codified hostage taking as a war crime in its Article 8.  

As you know, the existing binding international legal framework does not provide for a universal and comprehensive definition of terrorism. We may, however, refer to the 2004 Report of the High-level Panel on Threats, Challenges and Change, which provided elements for the definition of terrorism to include “any action, in addition to actions already specified by the existing conventions on aspects of terrorism, the Geneva Conventions and Security Council resolution 1566 (2004), that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act”. These elements were unanimously welcomed in the 2005 World Summit Outcome Document.

Thus, hostage taking may constitute an act of terrorism if pursued with the aforementioned intention and purpose.  Any measure or action of a State in response to hostage taking, whether it be qualified as a terrorist act or not, should be consistent with international human rights standards, and should not deny the legitimate expression of rights established in international human rights law.

States have to ensure that their criminal justice systems are equipped to deal adequately with acts of hostage taking.  The Convention against the Taking of Hostages requires States to make hostage taking an offense punishable by appropriate penalties and to take all measures considered appropriate to ease the situation of the hostages and facilitate their release. In addition, domestic criminal justice systems need to ensure that effective, prompt, thorough and impartial investigations are carried out and that the alleged perpetrators are duly prosecuted and brought to justice.

When so doing, however, States must ensure that the alleged perpetrators of terrorist hostage taking are treated at all times in accordance with international human rights standards. In particular, due regard must be given to compliance with the right of persons to equality before the law as well as before courts and tribunals, and to a fair trial. The fundamental right to liberty, security and dignity as well as the obligation to ensure adequate treatment of all individuals in all places of detention and the absolute and non-derogable right to life and prohibition of torture and other cruel, inhuman or degrading treatment or punishment must also be respected without any exception.

This said, States cannot effectively combat hostage taking in the context of terrorism by solely responding to terrorist acts that have already occurred. As recognized by the Security Council last year in resolution 1963, terrorism will not be defeated by military force, law enforcement measures and intelligence operations alone. Underscoring the need to address conditions conducive to the spread of terrorism, the Security Council highlighted the need to promote the rule of law, the protection of human rights and fundamental freedoms and to foster good governance, tolerance and inclusiveness in order to offer a viable alternative to those who could be susceptible to terrorist recruitment and to radicalization leading to violence.

As also emphasised in the United Nations Global Counter-Terrorism Strategy, adopted in 2006, effective counter-terrorism measures, including with regard to terrorist hostage-taking, need to address a spectrum of conditions that are conducive to the spread of terrorism, such as ethnic, national and religious discrimination, socio-economic marginalization, and the dehumanization of victims of terrorism. As part of the duty to actively prevent terrorist activity, including terrorist hostage taking, States need to put in place institutions and mechanisms that are mandated to effectively address human rights violations, including discrimination, and adopt legislation and policies that enhance the respect for the rule of law and tackle the underlying causes of terrorism, such as obstacles to the enjoyment of economic, social and cultural rights. In order to achieve sustainable and tangible results in this regard, the involvement of civil society is paramount in these processes.

I would also like to stress the importance for States, when combating and preventing terrorism, to cooperate in an effective manner and through properly mandated institutions, while respecting the rule of law and international human rights standards. As pointed out in the High Commissioner’s report to this session of the Human Rights Council, the increase in the sharing of information between law enforcement and intelligence agencies in different jurisdictions carries risks when the information may have been obtained by illegal means by another State and poses challenges to accountability. While the use of accurate intelligence is indispensible to preventing terrorist acts and bringing individuals suspected of terrorist activity to justice, States must ensure that regulatory frameworks are in place to ensure compliance with international human rights law in intelligence cooperation.

Mr. President,
Ladies and Gentlemen,

Allow me now to turn to the specific needs for protection of the rights of victims of hostage taking in the context of terrorism which require a tailored response.  I would first like to recall that in the UN Counter-terrorism Strategy, Member States have pledged to “consider putting in place, on a voluntary basis, national systems of assistance that would promote the needs of victims of terrorism and their families and facilitate the normalization of their lives.”

The point of departure for designing schemes and mechanisms of support to victims should be the fundamental principles and rights as enshrined in international human rights standards and instruments, in particular the right to an effective remedy of article 2 of the International Covenant on Civil and Political Rights.  The broad framework provided by the Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power as well as by the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of Human Rights and Serious Violations of International Humanitarian Law also deserves full consideration.

Those instruments stress that victims should be treated with compassion and respect for their dignity. In order to ensure an effective remedy for victims, equal and effective access to justice, including appropriate assistance throughout ensuing legal proceedings, is required. Through such a remedy, victims should benefit from adequate and prompt reparation for the harm suffered. Furthermore, there should be a possibility for victims to participate in judicial proceedings and other mechanisms aiming at establishing accountability of the perpetrators and to have their views and concerns presented. Such participation will entail appropriate protection against intimidation and retaliation as well as the protection of victims’ privacy.

Access to relevant information concerning the investigation, prosecution and trial of alleged hostage-takers is also of fundamental importance for the victims.  Information regarding States’ measures when dealing with a situation of hostage taking and possible violations that might have occurred in this connection, should also be made accessible to victims or their families.

Finally, concentrated efforts have to be made with a view to the recovery and social reintegration of the victims so as to enable them to rebuild their lives.  In this regard, due consideration should also be paid to victims’ needs for material, medical, psychological and social assistance and to access to a full range of support services. 

Mr. President,
Ladies and Gentlemen,

I trust that this panel will contribute to shedding some light on the complex issues involved when considering the human rights aspect of terrorist hostage taking and will provide an opportunity for a fruitful exchange of views and ideas on policy action to strengthen the capacity of States to respond to the multiple challenges entailed, while fully complying with their international human rights obligations.

I wish you a productive discussion.