Cherniadeva
N.
Candidate
of Legal Sciences
Associate
Professor, Department of Labor
and the International Law
of
the Perm State National Research University
Oniskiv
M.
Bachelor
of Laws
Bond
University, Gold Coast, Australia
Bookireva
st., 15. 614000. Perm, Russian Federation
Defending Human Rights:
Practical Issues Covered by the UN Counter-terrorism Instruments and the ECHR
Case Law
Terrorism is a threat to
all countries and nations in the world that could occur at any moment and place.
It is a prima facie violation of the existing
basic principles of international law, including: an internationally determined
code of ethics, equality and non-discrimination, promotion of human rights and
disputes settlement by peaceful means in such a manner that international
peace and security, and justice, are not endangered.[1]
In the situation of a constant threat of terrorist attacks, some States could
face a choice between following the established imperative norms of
international law or, by acting in conflict with the basic principles of
international law, ensuring peace and security within a State. A States answer
to terrorism may by itself violate some human rights and fundamental freedoms,
which a State is aimed to protect at the first place, as well as endanger
international peace and security. Legal
norms or rules of international law must be aimed to prevent such possibilities
of human rights abuses.
The 2002 UN report of
the policy working group on the United Nations and Terrorism has states that
in general terms, the UN should uphold, bolster and reassert the leading
principles and purposes of the United Nations Charter, the core of which are
undermined and threatened by terrorism.[2]
In 1993, the Vienna
Declaration and Programme of Action of the World Conference on Human Rights[3]
has determined that terrorism in any of its forms and manifestations is an act
which is purported to violate fundamental human rights and freedoms, destroy
democracy and create threats to the States territorial integrity and security.[4]
1. The UN Counter-terrorism Instruments: Protecting
Human Rights while Countering Terrorism
International law, by aiming to protect human rights and freedoms, should facilitate States
functioning of the security measures taken to protect its citizens. Human
rights are both guaranties of and preconditions for the security of individual
freedoms. However, their observance is possible only if a State even in
challenging times would be committed to the supreme principles of international
law. The importance of such striking balance was highlighted by Benjamin
Franklin: "any society that would not give up
essential liberty to obtain a little temporary security will deserve them both.
Human
rights, which could be related to natural or legal rights, are recognized by
the international community and enshrined at the global and regional
international and state-national levels. In fact, almost all international instruments, which are devoted to
human rights protection, permit as an exceptional measure a temporary suspension
or restriction of human rights and fundamental freedoms in case of a threat to
national security and public safety.[5]
Importance
of human rights protection while combating terrorism has been highlighted by
the OSCE contribution to the world-wide effort to counter terrorism.[6]
In 2002, the OSCE report
concerning Human Rights and the fight against terrorism has noted that a
temporary suspension or restriction of the rights and freedoms is an exceptional
measure that applies in accordance with the least harm principle, which holds that the rights of minority could be limited
to protect the rights of majority.[7]
The grounds for such an exceptional
measure should constitute a threat to national and international security.
At the
same time, Article 4 of the International Covenant on Civil and Political Rights (ICCPR) provides for a derogation power. Thus, international human rights law allows government to
temporary suspend the application of certain rights in the exceptional
circumstances of a state of emergency and subject to certain conditions,
including:
·
to the extent required
by the circumstances;
· in accordance with the
international rule of law;
· with official notification of an acceptance of these exceptional
measures by the competent international bodies.
However, certain rights
cannot be limited for any reason and no circumstances justify a qualification
or limitation of these so-called absolute rights, including right to life, the
prohibition of torture or cruel and right to recognition before the law.
In the OSCE Human
Dimension Implementation Meeting on 2 to 13 October 2006, it was stated that a
large number of human rights violations have been committed in the name of
fighting terrorism pursuant to the rule of law: The concept of terrorism is
abused to silence political opponents; it carries out arbitrary arrests and
unjustified restrictions on freedom of expression; it maintains in secret
detention centers in order to effectively interrogate terrorism suspects, who
do not have access or have only limited to Court. Undoubtedly, the fight
against terrorism must be won, but States should carefully consider the delicate
balance between national security and human rights.[8]
It is important to note
that UN counter-terrorism instruments does not contain any clear and precise norms
or rules regarding issues of human rights protection while fighting terrorism.
Although the Security Council in its resolutions has repeatedly
condemned a number of States anti-terrorist actions considering human rights
violations, including, for instance, anti-terrorist actions of US in Libya and
Israel in Palestine, all its resolutions are concerned with issues of mass
violations, which are abstract in its evaluation.
When it
comes to the States anti-terrorist actions associated with the targeted
killings, the disapproval of such practices of the Security Council could be
seen as an exception rather than the rule.[9]
However, the existence of the UNs condemnation of such States practices has
been highlighted by the resolution 1988, which has condemned the Israels
targeted killing of Khalil Ibrahim Mahmoud al-Wazir.[10]
According
to the experts opinion of the International Helsinki Federation for Human
Rights, modern anti-terrorism regulatory regime threatens or even violates
human rights and fundamental freedoms in the established democracies of Western
Europe and US, that constitutes an gangrenous example and suggests a new sense
of impunity.[11]
Thus, with
reference to V. Simonov,[12]
the USA Patriot Act 2000[13]
contains provisions which prima facie
violate the right to privacy. This legislation gives the US Intelligence Agencies
powers to invade the privacy of Americans by spying on their private under the pretext
of protecting them from terrorism. The Patriot
Act introduced immediately after the 11 October 2001 and legitimised the
following: wiretapping, perlustration of post and electronic mail, mass
surveillance, secret seizure of business documents and medical history. US
Government agencies were given the right to get acquainted with the library
form of US citizens in order to ensure that they do not read seditious literature.
The Patriot Act does not provide any
need for a Court authorisation for the organization and conduct of such
activities.
At the
same time, the US Government has established a military commissions for the
trial of foreign nationals, which were suspected in terrorist activities. The
status of these governmental bodies did not provide a clear presumption of
innocence. The US executives
empowered themselves with the right to declare certain foreign nationals the
enemy combatants and interrogate them with passion in secret prisons in
Europe. The following statements of the Patriot
Act are considered to be the gross violations of human rights: the suspects
could be detained indefinitely without a charge by denying their right to
counsel and, consequently, their right to a fair trial.
The Council of
Europes Convention on Cybercrime (the
Convention) is one more illustration of an international agreement that could
potentially violate human right, considering the need for the preventive protection
against terrorist attacks. Russia has not signed the Convention yet, but made
an official promise to do so in the foreseeable future.[14]
Although Russia accepts the spirit of the Convention, Russia strongly opposes
some of its provisions. In particular, Article 32(b) could affect the States
sovereignty and national security as well as endanger the rights of their
citizens. The current Article 32(b) states that a Party may, without the
authorisation of another Party: access or receive, through a computer system in
its territory, stored computer data located in another Party, if the Party
obtains the lawful and voluntary consent of the person who has the lawful
authority to disclose the data to the Party through that computer system. In
other words, a Party to the Convention may without the authorization of another
Party access its computer databases which are for public use, regardless of
where the data is located geographical. Although the Convention has a clause
covering the Partys choice whether or not to grant an authorization to another
Party, Russia considers that national security could be endangered by virtue of
Article 32 of the Convention.[15]
According to the
fighters for digital rights, there is a danger that States would use the
Convention to spy on citizens of each other, even if they are suspected of an
activity that in their home country is not a crime. "We are most concerned
about the fact that the points of mutual assistance does not say anything about
the differences in the criminal law, - says the coordinator of the Electronic
Frontier Foundation Danny O'Brien.[16]
Similar opinion was
expressed by some international organisations, including the Internet Society,
the organization Cyber-Rights and Cyber-Liberties (UK), Kriptolis (Spain) and
others. [17] Authors of
these organisations are against the provisions, which require the Internet service
providers to keep records of their customers activities. In the introduction
of the providers liabilities for the content - some authors see "a
senseless burden that encourages surveillance of private communications."
It is noted that such provisions may become the basis for testimony against the
users themselves, that is contrary to Article 4 of the European Convention on Human Rights.
2. Defending Human Rights and freedoms: the ECHR Case
Law
International judicial
bodies have also not developed any norms or rules which would underline an
absolute priority of human rights over the States national interests while fighting
against terrorism. For example, the decision of the Grand Chamber of the ECHR
on 29 January 2008 in the case of Shayan
Saadi and the United Kingdom[18] is affirming the absence of such
priority.
Iranian doctor - a
member of the working Kurdish party, who has requested political asylum in
Britain, was, as he claimed, illegally and without sufficient grounds
imprisoned while checking his involvement in the terrorist organisations and
terrorist activities. The Grand Chamber acknowledged that the United Kingdom
had violated the Shayan Saadis right to receive prompt and genuine explanation
of the reason for his detention, but the majority (11/06) of judges ruled that
the detention was permissible within the meaning of Article 5 (1) (f) of the European Convention on Human Rights,
which allows the detention of a person to prevent its implementation illegal
entry into the country. The Court held that the detention was permissible
because it was not "arbitrary" and was "closely linked in order
to prevent illegal entry of a person into the country" and that "the
place and conditions of detention [were] appropriate"; and that the
duration of detention "is not more than reasonably necessary for that
purpose." Interestingly, the dissenting judges position was considered by
the Amnesty International as "strong and convincing."[19]
Dissenting judges
considered that the position taken by the majority of the Court that "the
detention of individual asylum-seekers was in their best interest, since it
contributed to the expeditious processing of their claims" is "extremely
dangerous." They criticized the court's refusal to give due consideration
to the question whether in the UK have been in this situation more legitimate
(literally: a less invasive) alternatives than detention: "With regard to detention, as a rule, [that is, in
conditions other than the detention of asylum seekers], the requirements of
necessity and proportionality, obliges the state to provide relevant and
sufficient reasons for the measures taken and to consider other less coercive
measures, as also explain the reasons why these measures are considered
insufficient to provide private or public interests underlying the deprivation
of liberty. Only administrative expediency and convenience is not enough. We
are not able to see that the significance or high percentage [of potentially
dangerous asylum seekers] can justify the notion that the basic guarantees of
freedom of the individual in the state based on the rule of law can not or
should not apply to detained asylum seeker."[20]
In summary,
considering the issue of the primacy of the human rights protection principle
in the fight against terrorism, at the moment the international community has
not developed any logical and clear regulatory regime. The concept of the anti-terrorist
activities should be based on a model protecting human rights and fundamental
freedoms. There are no doubts that those who have committed any acts of a
terrorist nature should be treated as criminals and brought to justice.
However, the international legal framework should have some well-structured
norms and rules in order to protect human rights and fundamental freedoms while
countering terrorism.
[1]
Article 2(3) of the UN Charter
[2]
General Assembly, Fifty-seventh session, Item 162
of the provisional agenda.
Measures to eliminate international terrorism, A/57/273 and S/2002/875//
http://www.un.org/ru/events/hrconf1990-_1999.shtml ((
11 2015 .)
[3]
(
. 25.06.1993
2- ,
1425 1993 ) / A/CONF.157/24 (Part1) P. 19-48// http://www.un.org/ru/events/hrconf1990-_1999.shtml ( 17 2012 .)
[4]
16 1966 .//
. 1976. 17. . 291;
//
2 08 2001 , . 163 .
[5]
16 1966 .
// . 1976. 17. . 291; // 2 08 2001 , . 163 .
[6]
Ministerial Council Declaration No. 5/14 on The OSCE Role in
Countering the Phenomenon of Foreign Terrorist Fighters in the Context of the
Implementation of UN Security Council Resolutions 2170 (2014) and 2178 (2014)
(MC.DOC/5/14) // http://www.osce.org/what/terrorism (
11 2015 .)
[7]
Human rights and the fight against terrorism. Final Report of
OSCE Supplementary Human Dimension Meeting. Vienna, 14 - 15 July 2005. P. 3 // http://www.sova.gov.si/media/osce_2005_human_rights_terrorism.pdf. (
17 2012 .)
[8]
OSCE Human Dimension Implementation Meeting. Varsovie, 2 13
Octobre 2006. Etat de Droit I. Lutte
anti-terroriste, respect des droits humains et du droit humanitaire. Déclaration
de la délégation Suisse.
HDIM.DEL/219/06. 6 October 2006. // http://www.osce.org/search/pages/Human%20rights%20and%20t
he%20fight%20against%20terrorism (
11 2015 .)
[9]
As an example, US exercised a veto against the draft
resolution on Libya in relation to the targeted killing of Hamas leaders.
[10] ..,
.. //
. 2001. 4.. 4064.
[11]
Human rights and the fight against terrorism. Final Report of
OSCE Supplementary Human Dimension Meeting. Vienna, 14 - 15 July
2005. P. 3 // http://www.sova.gov.si/media/osce_2005_human_rights_terrorism.pdf ( 11
2015 .)
[12] . " "
// http://www.rian.ru/-analytics/20060130/43246300.html ( 11 2015 .)
[13] USA
PATRIOT Act (H.R.
3162)// http://epic.org/privacy/terrorism/hr3162.html ( 11
2015 .)
[14]
Convention on Cybercrime,
23.XI.2001 European Treaty Series - No. 185
Council of Europe.
[15]
// http://habrahabr.ru/blogs/Dura_Lex/107991/#habracut (
: 15.04.2012)
[16]
// http://-www.securitylab.ru/news/274797.php ( 11 2015 .)
[17]
See Cyber-Rights and Cyber-Liberties Response to MEP Elena
Paciotti // http://gilc.org/cyber-_response_52902.html (
17.04.2012)
[18]
Saadi c. Royaume-Uni/v. the
United Kingdom, no/no. 13229/03// http://www.echr.coe.int-/ECHR/EN/Header/Case-Law/Decisions+and+judgments/Lists+of+judgments/ (
11 2015 .)
[19]
Saadi Asylum Detention Ruling: Detention must be a last
resort, not a first response// http://www.amnesty.-org.uk/news_details.asp?NewsID=17629 (
11 2015 .)
[20]
Saadi c. Royaume-Uni/v. the
United Kingdom, no/no. 13229/03// http://www.echr.coe.int-/ECHR/EN/Header/Case-Law/Decisions+and+judgments/Lists+of+judgments/(
11 2015 .)