Annual report of the United Nations High Commissioner
for Human Rights and reports of the Office of the
High Commissioner and the Secretary-General Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the United Nations High Commissioner for Human Rights on the protection of human rights and fundamental freedoms while countering terrorism
The present report highlights developments since the last report of the United Nations High Commissioner for Human Rights in the protection of human rights and fundamental freedoms while countering terrorism, in particular the relevant developments within the Counter-Terrorism Implementation Task Force, other recent activities of the Office of the High Commissioner, and relevant recent activities of the Security Council Counter-Terrorism Committee and its Executive Directorate
The challenges to human rights in the context of counter terrorism, including legislative measures adopted by States, are examined, as are human rights issues related to the phenomenon of foreign fighters. The High Commissioner emphasizes the importance of ensuring that States integrate compliance with their obligations under international human rights law into their efforts to stem the flow of foreign fighters by stepping up initiatives to address the conditions conducive to terrorism and take measures to counter violent extremism; combat impunity and ensure accountability for any gross violation of international human rights law and serious violation of international humanitarian law; and ensure that any measures they adopt in their efforts to stem the flow of foreign fighters and prevent the commission of criminal acts comply with their obligations under international human rights law.
I. Introduction 1 – 3 3
II. Recent developments 4 – 17 3
A. Activities of the Office of the High Commissioner 4 – 9 3
B. Activities of the Counter-Terrorism Implementation Task Force 10 – 14 4
C. Cooperation with the Counter-Terrorism Committee and its
Executive Directorate 15 – 17 6
III. Issues of human rights concern 18 – 53 7
A. Legislative measures taken by States 21 – 30 8
B. Foreign fighters 31 – 53 11
IV. Conclusions and recommendations 54 – 57 16
In its resolution 25/7, the Human Rights Council reaffirmed its unequivocal condemnation of all acts, methods, practices and financing of terrorism as criminal and unjustifiable. It also expressed its serious concern at the violations of human rights and fundamental freedoms, as well as of refugee and international humanitarian law, in the context of countering terrorism, and again called upon all States to ensure that any measure taken to counter terrorism complied with international law, in particular international human rights, refugee and humanitarian law. It called upon States and other relevant actors to continue to implement the United Nations Global Counter-Terrorism Strategy and its four pillars, which reaffirms respect for human rights for all and the rule of law as the fundamental basis of the fight against terrorism.
Also in resolution 25/7, the Human Rights Council encouraged the United Nations bodies, agencies, funds and programmes involved in supporting counter-terrorism efforts to continue to facilitate the promotion and protection of human rights and fundamental freedoms, as well as due process and the rule of law, while countering terrorism. It requested the United Nations High Commissioner for Human Rights to report to the Council, bearing in mind the content of resolution 25/7, in accordance with its annual programme of work. The present report is submitted pursuant to that request.
In the present report, the High Commissioner highlights relevant developments since the previous report,1 in particular the recent activities of the Office of the High Commissioner (OHCHR); developments in the Counter-Terrorism Implementation Task Force; and cooperation with the Security Council Counter-Terrorism Committee and its Executive Directorate. He outlines the issues of human rights concern in the context of counter terrorism, in particular in relation to legislative measures taken by States, and addresses human rights issues relating to foreign fighters and measures taken by States to stem their flow.
II. Recent developments
A. Activities of the Office of the High Commissioner
In accordance with its thematic strategies for the period 2014-2017, OHCHR has prioritized support for Member States in their efforts to ensure that their security policies, strategies and measures are grounded firmly in respect for human rights and the rule of law. This includes assisting in the development and implementation of human rights-compliant security legislation; supporting security sector reform through a review of legal frameworks and support for the establishment of effective procedural safeguards and independent mechanisms for oversight; and supporting the design and delivery of human rights training to justice and security entities.
In her keynote statement to the International Counter-Terrorism Focal Points Conference on 13 June 2013, the previous High Commissioner urged States to take measures to address the linkages between a lack of respect for human rights and the conditions conducive to terrorism, alongside efforts to ensure effective human rights-compliant criminal justice responses to terrorism, and highlighted the critical role of civil society in this regard. In her briefing to the Counter-Terrorism Committee in October 2013, she highlighted areas of ongoing concern and urged the Committee to continue its efforts to address all human rights issues relevant to the implementation of Security Council resolutions 1373 (2001) and 1624 (2005), including by promoting such good practices as reviewing counter-terrorism legislation before adoption, time-limited laws, independent oversight bodies for law enforcement and intelligence agencies, and periodic review of sanction measures.
OHCHR has continued to address complex legal and policy challenges relating to new technologies that are of direct relevance to States’ efforts to counter terrorism. From November 2013 to March 2014, the Office partnered with the United Nations University in a research project on the application of international human rights law to national regimes overseeing governmental digital surveillance. It also launched an open consultation in February 2014, inviting the input of stakeholders on the basis of a questionnaire on the right to privacy in the context of domestic and extraterritorial surveillance. Also in February, the previous High Commissioner delivered a keynote address to an expert seminar organized by a group of States led by Germany and Brazil, and facilitated by the Geneva Academy on International Humanitarian Law and Human Rights, in which she outlined challenges to ensuring the right to privacy in the context of domestic and extraterritorial surveillance.
Drawing on these and other sources of information, as mandated by the General Assembly in its resolution 68/167, OHCHR prepared a report on the right to privacy in the digital age to the Human Rights Council.2 In the report, OHCHR examined the protection afforded by international human rights law regarding privacy, including the meaning of “interference with privacy” in online communications, the definition of “arbitrary and unlawful” interference in this context, and the question of whose rights are protected, and where. Following consideration of the report by the Human Rights Council at its twenty-seventh session and the General Assembly at its sixty-ninth session, the Assembly adopted resolution A/C.3/69/L.26/Rev.1, which included a number of proposed follow-up measures.
Issues of relevance in the context of counter-terrorism were also addressed during expert panel discussions organized by the Office, on the right to privacy in the digital age, pursuant to Human Rights Council decision 25/117, held on 12 September 2014, 3and on ensuring the use of armed drones in counter-terrorism and military operations in accordance with international law, pursuant to Council resolution 25/22, held on 22 September 2014.4
The Office promoted a greater integration of a gender perspective into the context of counter-terrorism by contributing to a workshop held on 21 and 22 October 2014 on the theme “Advancing women’s roles in countering violent extremism and radicalization that lead to terrorism”, organized in Vienna by the Global Counterterrorism Forum and the Organization for Security and Cooperation in Europe, and a panel discussion on the theme “The role of women in countering violent extremism” organized by the United Arab Emirates and the United Nations Entity for Gender Equality and the Empowerment of Women, held on 27 October 2014 within the framework of the open debate of the Security Council on women, peace and security.
B. Activities of the Counter-Terrorism Implementation Task Force
The Office is an active member of the Counter-Terrorism Implementation Task Force and promotes the mainstreaming of human rights across the work of the Task Force and its working groups. In 2014, following a process of re-structuring of Task Force working groups, OHCHR co-chaired the Task Force Working Group on Promoting and Protecting Human Rights and the Rule of Law While Countering Terrorism, together with the Rule of Law Unit of the Executive Office of the Secretary-General. The Working Group supports the implementation of Pillar IV of the United Nations Global Counter-Terrorism Strategy and the mainstreaming of human rights and the rule of law into the implementation of all pillars of the Global Strategy.
Since October 2012, the Working Group, with the support of Denmark, Switzerland and the United States of America, has been implementing a long-term global project on human rights capacity-building for law enforcement officials involved in counter-terrorism that will provide States with training and technical assistance, thereby increasing their knowledge, understanding and implementation of the international human rights framework and the rule of law in preventing, responding to and investigating terrorism threats. The project has included needs-assessment workshops, held in Amman in April 2013, and Ouagadougou, in October 2013. Following the workshops, the Working Group has focused on the development of human rights training modules on the international legal and policy framework, special investigation techniques, countering violent extremism, community-oriented policing, detention, interviewing techniques and the use of force, all with a specific focus on the context of counter-terrorism.
The Working Group has progressed with the development of a series of reference guides aimed at providing practical guidance for national action on human rights-compliant counter-terrorism measures. With financial support through the United Nations Counter-Terrorism Centre, reference guides on the stopping and searching of persons and on security infrastructure have been updated.5 Other guides, on detention in the context of countering terrorism, conformity of national counter-terrorism legislation with international human rights law and the right to a fair trial and due process in the context of countering terrorism are in process of publication. A guide on the proscription of organizations is also under development.
In implementing its workplan for 2015, the Working Group will continue to facilitate information exchange on priority human rights and rule of law concerns, including on examples of good practices in the protection of human rights in the context of counter-terrorism, drawing on experiences at the national and regional levels. It will also assess the support and assistance currently given to Member States to ensure the promotion and protection of human rights in the context of counter-terrorism, identify gaps and weaknesses, and develop proposals for strengthening support for Member States in the protection of human rights in the context of counter-terrorism at the national level.
The Office also contributed to the United Nations Counter-Terrorism Centre workshop on the role of the United Nations in addressing conditions conducive to the spread of terrorism in the context of the post-2015 development agenda debate, held in New York on 7 and 8 April 2014. Chairing the session on United Nations cooperation and assistance in the fields of rule of law, human rights and good governance to address the conditions conducive to the spread of terrorism, the Assistant Secretary-General for Human Rights highlighted the significance of the protection of human rights and the rule of law for sustainable development and of addressing the conditions conducive to the spread of terrorism. At the Global Experts Meeting on Building Capacity for Terrorist Designations and Asset Freezing Regimes, held in New York on 13 and 14 May 2014, under the auspices of the Counter-Terrorism Implementation Task Force Working Group on Tackling the Financing of Terrorism, OHCHR briefed participants on human rights concerns relating to the listing of persons and organizations and the freezing of assets. OHCHR contributed to the Counter-Terrorism Implementation Task Force /European Union dialogues held on 13 June 2014 in New York and 20 October in Brussels. OHCHR also contributed to the United Nations Victims of Terrorism Support portal, a project of the Task Force Working Group on Supporting and Highlighting Victims of Terrorism.
C. Cooperation with the Counter-Terrorism Committee and its Executive Directorate
The Counter-Terrorism Committee and its Executive Directorate continue to take account of relevant human rights concerns in their work programmes focused on the implementation of Security Council resolution 1373 (2001) and 1624 (2005). On 24 October 2013, the Committee, under the chairmanship of Morocco, was briefed by the High Commissioner and discussed the impact of broad and abusive counter-terrorism laws on dissident voices, human rights defenders, journalists, minorities and indigenous peoples. The Committee also held thematic discussions on several issues relevant to resolutions 1373 (2001) and 1624 (2005) all of which had human rights aspects. This included consideration of adoption by Member States of special criminal procedures to investigate and prosecute terrorism-related offences and the human rights safeguards adopted in this regard, such as sunset clauses, the independent review of counter-terrorism legislation and consultations with civil society on draft counter-terrorism legislation.
Under the chairmanship of Lithuania since January 2014, the Counter-Terrorism Committee has held discussions on the use of the Internet for terrorist purposes and on respect for freedom of expression and the right to privacy, as well as a discussion on the need for counter-terrorism laws and policies not to unduly hinder humanitarian access to populations in need. The Committee also held an open special meeting on kidnapping for ransom and terrorist hostage-taking in which a member of the Human Rights Council Advisory Committee participated. In its revised process for assessing implementation of Security Council resolutions 1373 (2001) and 1624 (2014), the Committee routinely discusses with Member States a variety of human rights issues. In addition, the Committee recently conducted a preliminary analysis of gaps in the capacity of Member States to implement resolutions 1373 (2001) and 1624 (2005) that may hinder the ability of States to stem the flow of foreign terrorist fighters, as requested by the Council in its resolution 2178 (2014). This included gaps in compliance with human rights obligations and the rule of law, in particular those relating to the lack of clarity or precision in counter-terrorism laws, failure to ensure fair treatment and due process for persons accused of terrorist offences, and issues relating to compliance with international refugee law.
In accordance with General Assembly resolution 68/178, the Counter-Terrorism Committee Executive Directorate continued to liaise with OHCHR, the Special Rapporteur on the promotion and protection of human rights while countering terrorism and other human rights mechanisms and mandate holders, including in relation to the preparation of and follow-up to country visits and the facilitation of technical assistance. The Executive Director of the Executive Directorate met both with my predecessor and me and the Special Rapporteur on the promotion and protection of human rights while countering terrorism to discuss issues of mutual interest and concern. In October 2013, OHCHR human rights experts participated in a workshop in Islamabad convened by the Executive Directorate for South Asian police officers, prosecutors and judges on enhancing domestic and international cooperation in counter-terrorism investigations, and in December 2013, a workshop in Tunis convened by the Executive Directorate for prosecutors on the challenges of bringing terrorists acting alone or in small cells to justice. In May 2014, the Office also contributed to a workshop in Nairobi, held pursuant to Security Council resolution 1624 (2005), on countering incitement to terrorism and enhancing cultural dialogue. The Executive Directorate continued its dialogue on relevant human rights issues with regional and subregional organizations, as well as with national and international civil society organizations. It also continued its active contribution to the Counter-Terrorism Implementation Task Force Working Group on Protecting Human Rights and the Rule of Law while Countering Terrorism, including by means of contributions to knowledge products issued by the Working Group, as well as to the design and implementation of capacity-building and technical assistance initiatives undertaken by the Working Group.
III. Issues of human rights concern
Events in recent months have highlighted the immense, persistent challenges faced by States in preventing acts of violence and safeguarding the security of individuals within their jurisdiction. At its open debate on terrorism in November 2014, the Security Council emphasized the expanding threat of terrorism due to “global recruitment networks, the spread of violent extremist ideologies that can be conducive to terrorism, ease of movement of terrorists, including foreign terrorist fighters, and access to significant funding streams.6 During the open debate of the Council on international cooperation and violent extremism on 19 November 2014, the Secretary-General highlighted the fact that technology and globalization had made it easier for groups spurred by violent extremist ideologies to cause harm, exploit narratives and profit from illicit financing, while terrorism, drug trafficking and transnational crime grew in intensity and fed off each other.
The measures taken by a number of States in the wake of recent security threats have continued to raise serious human rights concerns. States have rushed to adopt emergency legislation, modify detention policies, revise criminal justice rules and practices and impose limitations to the freedoms of expression, peaceful assembly and movement. Broad-reaching surveillance practices have continued to infringe on individuals’ human rights, in particular the right to privacy, owing to a lack of adequate national legislation and enforcement, weak procedural safeguards and ineffective oversight that all contribute to a climate of impunity. Reports show that surveillance practices have had a chilling effect on freedom of expression, particularly affecting journalists whose sources are reportedly less willing to be in contact with the press out of fear that any interaction may leave a digital mark that could be used against them.
While States have a duty to take measures to protect populations from violence and insecurity and to deliver justice, such measures must be anchored in respect for international human rights law. Experience at the national level has demonstrated that protecting human rights and ensuring respect for the rule of law contribute to countering terrorism in particular by creating a climate of trust between the State and those under its jurisdiction, and supporting resilience of communities to threats of violent radicalism. From a criminal justice perspective, ensuring that counter-terrorism legislation and policy are grounded in human rights also helps to promote the prosecution and conviction in accordance with legally established procedures of individuals engaged in acts of terrorism. This also encourages legal consistency between national jurisdictions, thereby facilitating international cooperation. Conversely, compromising on human rights has proven corrosive to the rule of law and undermines the effectiveness of any counter-terrorism measure.
A. Legislative measures taken by States
Some States have enacted broadly formulated national counter-terrorism legislation containing a definition of terrorism that lacks precision and allows for arbitrary or discriminatory enforcement by authorities, or otherwise undermines the enjoyment of human rights. An imprecise definition of a crime can lead to the criminalization of innocent conduct and to the broadening of proscribed conduct in judicial interpretation. Legislation of this type has led to the infringement of the rights to liberty and security of the person and the freedom of expression, association and assembly, and to violations of due process-related rights, including the right to a fair trial. Legislation also has been misused to curb otherwise legitimate activities and to target journalists, human rights defenders, minority groups, members of the political opposition or other individuals, some of whom have been arbitrarily detained and subjected to torture or cruel, inhuman or degrading treatment or punishment while in custody.7 These concerns are equally relevant to measures taken by States to curb the flow of foreign fighters (see paras. 49-50 below).
Legislation in some States has equated legitimate expressions of protest and opposition to the Government with terrorism, thereby effectively criminalizing freedom of expression.8 For example, one jurisdiction has adopted legislation that defines terrorism to include such acts as “insulting the reputation of the State or its position”, which could result in the criminalization of any discourse critical of the Government or its policies. In some jurisdictions, authorities have used broadly worded counter-terrorism laws to charge journalists and members of the political opposition with, inter alia, “encouraging terrorism”, thereby imposing an unjustified limitation on their right to freedom of expression. In their efforts to counter incitement to terrorism, States parties to the International Covenant on Civil and Political Rights should ensure that counter terrorism measures are compatible with article 19, paragraph 3 of the Covenant. In its general comment No. 34, the Human Rights Committee specified that offences such as the “encouragement of terrorism”, and “extremist activity” or “praising”, “glorifying” or “justifying” terrorism should be clearly defined to ensure that they do not lead to unnecessary or disproportionate interference with freedom of expression.9
States have resorted to detaining persons accused of terrorism without respect for the safeguards that are due under international law to all persons deprived of their liberty. Some have expanded the power of security forces to arrest “suspected criminals” without warrant. In some jurisdictions, legislation allows for preventive detention without appropriate safeguards, including by extending the permissible period for pre-charge detention of persons suspected of terrorist activity and the length of time a person may be held without judicial authorization or review of the reasons for detention. As a result, individuals accused of terrorist activity have been held for prolonged periods without charge or trial, in some cases without proper access to legal counsel or recourse to independent judicial review.10 Such practices violate the rights to liberty and to be free from arbitrary detention. Recently adopted legislation in one jurisdiction allows for the retrospective authorization of arrests and administrative detention, secret and undisclosed detention and, in certain cases, the non-disclosure of grounds for detention. Not only are such measures inconsistent with international human rights standards, they also significantly increase the risk of torture and other ill-treatment and preclude accountability where such violations are perpetrated. In its general comment No.35, the Human Rights Committee highlighted the absolute nature of the prohibition of arbitrary detention reflected in article 9 of the International Covenant on Civil and Political Rights, pointing out that administrative detention raises a severe risk of arbitrary deprivation of liberty and should only be employed in exceptional circumstances, when a present, direct and imperative threat justifies its use, and should be limited in time. Habeas corpus is a non-derogable guarantee that must be complied with in all circumstances.11
In some States, the powers of intelligence services have been broadened to resemble those of the police, conferring upon them the powers of arrest, detention, search and seizure.12 In certain cases, intelligence services have been afforded powers to make arrests without a warrant and to detain, with no explicit guarantee of basic due process rights, such as the right to counsel.13 Concerns have been raised at legislation governing the functioning of intelligence services that does not provide for sufficient control and oversight, thereby creating an accountability gap.14 The functioning of intelligence services must be subject to adequate safeguards to protect against human rights violations and to ensure accountability when violations do occur.
The Office has highlighted ongoing concerns regarding the potential for arbitrary or unlawful interference in the right to privacy in the context of domestic and extraterritorial surveillance.15 Concerns were raised in one State where recently adopted legislation has broadened surveillance powers by allowing for surveillance of multiple computers, including whole networks, under a single warrant; established harsher penalties for the disclosure of intelligence material; provided intelligence agents with legal immunity; and allowed for greater sharing of personal information between agencies, without either adequate safeguards or oversight, or recourse for individuals in cases where personal information has been subsequently misused or released without authorization.16 Draft legislation under consideration in another jurisdiction would allow for the outsourcing of surveillance on nationals abroad to allied foreign intelligence services, in spite of a federal court decision admonishing the intelligence service for such practices.17 Another State recently adopted emergency surveillance legislation that allows the Government to require telephone companies and Internet providers in the country and abroad to collect and store metadata of communications for a period of up to 12 months. Concerns have been expressed that such blanket data retention may allow for the monitoring of communications of persons, even those outside of the State’s jurisdiction and those not suspected of any illegal activity.18 These developments all raise serious concerns about their compliance with the right of individuals to be protected by law against arbitrary or unlawful interference in their privacy.
States have adopted national legislation to implement targeted sanctions against individuals and organizations. While such measures can serve as an important tool for the prevention of terrorist acts, their serious potential repercussions on the human rights of those affected make efforts to ensure the right to due process of individuals affected essential.19 In some cases, such measures have given rise to the arbitrary banning of organizations based on ill-defined or vague legislation, sometimes with the objective of banning political dissent or otherwise peaceful means of expression. National legislation that fails to define “membership” or to require a link between the membership and the prohibited status or activity would be contrary to the principle of legality, in particular where such membership leads to targeted sanctions or criminal penalties, such as imprisonment. Any sanctions imposed by proscription should be a result of a clear indication, based on reasonable grounds, that the individual or entity has knowingly carried out, participated in or facilitated a terrorist act.20
The adoption of exceptional counter-terrorism legislation may be particularly problematic when it is not a stand-alone piece of legislation but rather an amendment to existing criminal laws and procedures. Experience has shown that counter-terrorism measures introduced in moments of crisis or extreme political stress and which are intended as short-term measures can readily become entrenched with the passage of time and invoked routinely by law enforcement authorities.21 Much of the emergency legislation enacted by States in the wake of the terrorist attacks of 11 September 2001, for example, is still in force today. A sense of political urgency also may obstruct a proper a priori scrutiny of draft laws, and has led to the adoption of legislation that included imprecise definitions in counter-terrorism laws, opening the door for abuses in implementation.
I fully endorse the calls made in reports of the previous High Commissioner and underscore the importance of ensuring that counter-terrorism laws are consistent with human rights standards and comply with the principle of legality. Laws must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly, and must be made accessible to the public. Laws must not confer unfettered discretion but rather provide sufficient guidance to those charged with their application to enable them to ascertain the sort of conduct that falls within their scope.
Regular review of the compliance of counter-terrorism laws and practices with human rights standards is critical in order to ensure that counter-terrorism measures are specific, necessary, effective and proportionate. Good practices highlighted by the High Commissioner in previous reports include a review of counter-terrorism legislation before adoption, time-limited laws, independent oversight bodies for law enforcement and intelligence agencies, and periodic reviews of sanction measures. The validity of any exceptional measure should be restricted in time through the inclusion of a sunset clause. The compliance of such laws with human rights standards must also be subject to regular review.
I welcome the dialogue held at national level that accompanies the legislative process in some States, and urge all States to ensure broad and inclusive consultation with all relevant stakeholders. The experience of previous years demonstrates the benefits of the review of draft legislation by relevant domestic bodies before adoption, in particular to ensure its consistency with relevant international human rights standards.