Keynote remarks by Assistant Secretary-General for Human Rights, Ivan Šimonović, at the regional meeting on “Fair trial and due process in the counter-terrorism context” on 5 July 2012 in Brussels, Belgium 

Ladies and Gentlemen,
Dear colleagues,

It is a great pleasure to be here today for this important regional event. Efforts to effectively fight terrorism and at the same time preserving human rights is a challenging and highly important task.

From a personal standpoint, the right to a fair trial and the principle of due process are topics I feel very strongly about. As a law school professor, I would highlight the necessary elements of the independence and impartiality of the judiciary in my lectures. As Minister of Justice in Croatia, I worked on improving access to justice and ensuring that the conditions were in place so that trials could be conducted in compliance with all aspects of the right to a fair trial. I am therefore particularly pleased to be here today, as Chair of the Counter-Terrorism Implementation Task Force Working Group on Protecting Human Rights while Countering Terrorism, to have this opportunity to look at the relevant issues from both a broader regional and international perspective, as well as a more focused one, through the lens of countering terrorism.

The human cost of terrorism has been felt in every corner of the globe, and Europe is unfortunately no exception. The UN family itself has suffered tragic losses as a result of terrorist acts, including the attack on our offices in Baghdad in August 2003 which claimed the lives of our own High Commissioner for Human Rights Sergio Viera de Mello - then Special Representative of the Secretary General - and 21 other women and men, as well as seriously injuring many others.

Let me be clear: there can be no justification or excuse for resorting to acts of terrorism and perpetrators of such acts must be brought to justice. This was recognized by all United Nations Member States when they adopted the Global Counter-Terrorism Strategy in 2006. The General Assembly reaffirmed the Global Strategy last week in New York at the third review of the Strategy. The Global Strategy recognises that prosecution of perpetrators of terrorist acts as critical to preventing and combating terrorism. It ensures accountability by punishing perpetrators, as well as providing a remedy for victims and a deterrent for future acts of terrorism.

Ensuring respect for human rights while countering terrorism confronts us with major challenges. Today I would like to address two such challenges: the perceived conflict between security and human rights in the context of the right to a fair trial and ensuring the right to a fair trial for individuals who are accused of acts of terrorism.

In the global context, particularly since 2001, it has often been argued that human rights considerations must be secondary to a State’s counter terrorism objectives. Human rights and security are seen as being at two opposite ends of a spectrum that cannot be reconciled. At best, according to this view, specific human rights or fundamental freedoms must be balanced against specific security requirements. By the same logic– Governments cannot be expected simultaneously to deliver - both security and freedom of expression, religion and belief; protection from acts of terrorism and freedom from torture and other forms of ill treatment, habeas corpus and the presumption of innocence.

This reasoning is flawed as it ignores two fundamental facts: Firstly, the international protection of human rights derives from a need for security and serves to enhance security. Secondly, the provision of security to individuals under their jurisdiction is itself a duty of States under human rights law. It is part of one of the most basic human rights obligations: the protection of the right to life.

Countering terrorism is therefore, in itself, a human rights objective. The provision of human rights protection and the provision of security are not competing, but complementary obligations; not subsequent, but simultaneous obligations. They should be part of the same strategy to effectively protect the population, and part of the same obligation of the State to provide human security.

This is recognised by all member States in the Global Counter-Terrorism Strategy, which states that “effective counter-terrorism measures and the protection of human rights are not conflicting goals, but are mutually reinforcing”.

Not only is there no contradiction between protecting human rights and countering terrorism, but protecting human rights itself actively contributes to the countering of terrorist activity effectively.  The Global Counter-Terrorism Strategy makes this clear by identifying respect for human rights and the rule of law as the fundamental basis of the fight against terrorism.

Some measures taken to counter terrorism pose grave challenges to the protection and promotion of human rights, and can be self-defeating.  Measures that violate human rights risk undermining the very goals that States seek to achieve in countering terrorism, and can even increase radicalization that can lead to extremist violence.

At the same time, in recent years, some States have argued that, without extraordinary measures, they lack the necessary tools to fight the threat of terrorism effectively.  They say that, in order to address transnational terrorism, we must operate outside of the established human rights law framework, for example by authorizing “enhanced” investigation and interrogation techniques. Some have even questioned the absolute prohibition of torture and non-refoulement, habeas corpus and the right of access to courts.  In some cases, laws contrary to human rights have been enacted. In others, counter-terrorism practices have developed outside of the legal framework altogether. 

While ensuring respect for human rights and implementing effective counter-terrorism measures can raise serious practical challenges for States, international human rights law provides for the flexibility States may need to respond to exceptional circumstances, within a clear framework for and the legitimate, temporary restriction on the enjoyment of certain rights, provided a number of conditions are respected, including compliance with the principles of necessity, proportionality, equality and non-discrimination.

Under a very limited set of circumstances, States may even take temporary measures to derogate from certain provisions of the International Covenant on Civil and Political Rights. Such circumstances are highly exceptional, arising only where a public emergency threatens the life of a nation, and has been officially declared. Moreover, the non-derogable nature of certain human rights - many of which are relevant to our discussions here - even in times of emergency, further reinforces the importance of strictly upholding these rights in the counter-terrorism context. These issues will, I’m sure, be addressed in the course of the next two days.

During the next two days we will be addressing specific challenges in the context of the right to a fair trial and due process for those alleged to have committed acts of terrorism. The range from challenges to the primacy of criminal justice through the adoption of administrative counter-terrorism measures, including administrative - or “preventive” or “security” or “pre-charge-“, detention; control orders; terrorist listings; and the use of immigration and deportation laws. These administrative measures are at times used in lieu of the ordinary criminal justice system and criminal prosecutions where terrorist acts have occurred, or as preventive measures against individuals seen as posing a threat.

Another challenge is the increased reliance on intelligence information in criminal proceedings. While the use of accurate intelligence is essential to preventing terrorist acts and bringing terrorist suspects to justice, increased reliance on intelligence information, without sufficient consideration for safeguards against abuses, represents a serious challenge to the right to a fair trial. In particular, problems arise when the need for State secrecy is invoked to avoid disclosing information, while also being used as a basis for detention; or when secret information is used as evidence and not shared with the defendant or the defence. It can also lead to problems in view of the differing evidentiary standards applied in intelligence gathering versus those required in a court of law. Furthermore, intelligence sharing among States is at times done without regard to the origin of the intelligence information and can thus even include information obtained through torture and other forms of ill-treatment.

Other key challenges include recourse to military or special courts to try terrorist suspects. In extradition cases, the principle of non-refoulement as part of the non-derogable right to be free from torture or other forms of ill-treatment has come under attack. Compliance with the principle of legality with respect to defining terrorist acts as crimes recognizable under international human rights law that form the basis of a trial poses another challenge to States. An overly broad definition of the crime of terrorism can lead, by way of judicial interpretation, to a broadening of proscribed conduct. This can result in the criminalization of non-violent acts or even innocent conduct, leading to prosecutions for the legitimate exercise of the right to freedom of expression, association or assembly, and as such be self-defeating. Finally, ensuring accountability for human rights violations occurring in the context of the fight against terrorism represents a consistent challenge.

Ladies and Gentlemen,

Let me conclude, upholding human rights, creates a climate of trust between States and those under their jurisdiction, which is the very foundation of effective responses to global challenges such as terrorism. This increases both the legitimacy and the effectiveness of counter-terrorism measures, while upholding human dignity.  Ultimately, this was the core commitment that States signalled when they adopted the Global Counter-Terrorism Strategy, and the fundamental objective of all States, striving to provide security to all those in their territory. I am also encouraged by the recent adoption of the EU Strategic Framework and Action Plan on Human Rights and Democracy on 25 June 2012, which explicitly provides that the EU will promote human rights in all areas of its external action without exception. The Strategic Framework provides that, in particular, the EU will integrate the promotion of human rights in the area of freedom, security and justice, including counter-terrorism policy. The EU also undertakes to step up its efforts to promote the right to a fair trial and equality before the law.

We hope this meeting will provide us with an opportunity to assess and analyse the obstacles and challenges to implementing fair trials according to international human rights norms, and to identify other rights that are key in securing the fundamental requirements of the right to a fair trial in the context of counter-terrorism. As I noted earlier, there are challenges, but there are also human rights-compatible solutions to those challenges. We need to identify good practices, so that they can be applied elsewhere.

While these symposia take place at the regional levels, the topic is universal, and therefore the conclusions and recommendations that emerge from the next two days of discussions should be as well. A report on the outcome of the meeting will be produced, with a view to providing guidance to all United Nations Member States on how the right to a fair trial can best be protected. In this respect, I will highly appreciate your contribution and an open and frank discussion.

Finally, I appreciate very much the support of all who enabled this regional symposium to take place, including the Human Rights Regional Office in Brussels.