HUMAN RIGHTS & COUNTER TERRORISM - UiO

Right to Life States cannot invoke war or public emergency to justify the arbitrarydeprivation of life in counter-terrorismECHR- No violation where it results from the use of force which is no morethan absolutely necessary:A) Defence of any person from unlawful violenceB) In order to effect a lawful arrest or to prevent the escape of a personfrom unlawful violence C) In action lawfully taken for the purpose of quelling a riot or insurrection Threshold no more than absolutely necessary McCann v. UK – Violation of Article 2 disproportionate use of force,questions over level of training received by the marksmen

McCann v. UK – ECTHR Violation ofArt. 2 Disproportionate use of force, questions over levelof training received by the marksmenUse of force is not accompanied by the intention tokillUse of force is ’absolutely necessary’Strictly proportionateCT operations planned and controlled by theauthorities so as to minimize, to the greatest extentpossible, recourse to lethal forceSee also Ergi v. Turkey

Jean Charles de Menezes

Finogenov and others v. Russia (ECTHR 2012)Art.2 («Non-Lethal Weapons») Chechen terrorists took over 900 people as hostages in the Dubrovka theatre in Moscow on23-26 October 2002, they were armed with machine guns, used booby traps and positioned18 suicide bombers among the hostages. The Russian security forces released a narcotic gasthat affected the brain through the ventilation system, knocking out the terrorists. 102hostages died on the spot, during the faulty evacuation, or in the hospital due to lack ofproper medical assistance (including shortage of antidote Nalaxone).Court finds violations of Art. 2 on account of the inadequate planning and conduct of therescue operation and the authorities’ failure to conduct an effective investigation into therescue operation

Isayeva, Yusopeva and Bazayeva v.Russia ECTHR Art. 2 Massive use of indiscriminate weapons incompatible with thestandard of care required for the use of lethal force by stateagentsMilitary planes dropped explosives over convoy of internallydisplaced persons in Chechnya

UN Human Rights CommiteeGuerrero v. Colombia (1982) Violation of Art 6Non-International Armed ConflictColombian police opened fire on suspected rebelsdespite the fact that they had not taken hostages,disproportionate use of force, arrest could havebeen usedSee Body of Principles on the Use of Force andFirearms by Law Enforcement OfficialsPrinciples on the Effective Prevention andInvestigation of Extra-Legal, Summary, andArbitrary Executions

IBA Task Force on Terrorism Right not to be arbitrarily deprived of one’s life is nonderogableStates must take positive measures to protect individuals withintheir jurisdiction not only from unlawful killings by the state andits agents but also by non state actorsThe circumstances in which the state may use force or firearms,particularly lethal force, are sharply limited and must beconstrued narrowlyCT operations which use force must be carefully planned andcontrolled to avoid the risk of arbitrary deprivation of lifeAlleged unlawful killings must be investigated

Right to Liberty and Security of the PersonICCPR Art. 9, ECHR Art. 5 Prohibition on arbitrary arrest and detentionDeprivation of liberty must be on such grounds and in accordance with suchprocedure as are established by lawRequirement to inform individuals at the moment of arrest of the reasons forthat arrest, and to be promptly informed of any charges against themObligation to bring a detainee promptly before a judge or other officerauthorized by law to exercise judicial power and the detainee’s entitlementto trial within a reasonable time or to releaseProvision that pre-trial detention not be the general ruleThe right to take proceedings before a court, in order that that court maydecide without delay on the lawfulness of detention and order release ifthe detention is not lawful (habeas corpus or amparo)Enforceable right to compensation for victims of unlawful arrest or detention

Colombia-Police detain FARC

Isayeva v. Russia Art 2 ECTHRArbitrary Detention, Inhuman treatment, Liberty, Securityof the Persons, Arts, 3, 5, 13, 38

Detention and Interrogation ofDavid Miranda

UN Human Rights Committee GC29 & 8 States cannot invoke emergency relating toterrorism to justify suspension of right to liberty andsecurity of the person.Preventive detention for reasons of public securitymust not be arbitrary, must be based on groundsand procedures established by law, information ofreasons must be given, court control of the detentionmust be available, compensation in the case ofbreach

UN Special Rapporteur Arrest &Interrogation of Terrorist Suspects 1. Any form of secret or unacknowledged detention is prohibited.2. Every person has the right to contact a lawyer of his or her choice fromthe moment of arrest or detention. The scope of such choice may berestricted for genuine reasons of national security.3. Any form of torture or other cruel, inhuman or degrading treatment orpunishment is prohibited. Compliance with this prohibition shall beeffectively monitored.4. Information obtained through torture or other cruel, inhuman ordegrading treatment or punishment, anywhere in the world, shall not beused in any proceedings and shall never be solicited or condoned.5. Anyone arrested as a terrorist suspect who would face a real risk oftorture or other cruel, inhuman or degrading treatment or punishment shallenjoy the right of nonrefoulement, and may not be extradited, expelled orotherwise formally or informally removed to a country or area if theforeseeable consequence of that measure is the person’s exposure to such arisk.

ECTHR Art. 5 Lawful detention when it is reasonably considered necessary toprevent a detainee committing an offenceNo legal black hole- must have charge, trial, right to challengelawfulness of detention before ct.Aksoy v. Turkey – violation due to 14 day detention prior tobeing brought before a judge, Ct states that this did notconform to the exigencies of the public emergencyA and Others v. UK, Discriminatory and Disproportionatenature of detention regimeSee also Inter American Commission on Human Rights,precautionary measures relating to indefinite detention withoutcharge or trial of detainees in Guantanamo (2002-2006)

UN Working Group on ArbitraryDetention- Categories When it is clearly impossible to invoke any legalbasis justifying the deprivation of libertyWhen the deprivation of liberty results from theexercise of specifically enumerated rights orfreedoms in the UDHR or ICCPR orWhen the total or partial non-observance of theinternational norms relating to the right to a fairtrial is of such gravity as to give the deprivation ofliberty an arbitrary character (secret evidence,miltary commissions deprive right to challenge)

UN Working Group on ArbitraryDetention Principles (a) Terrorist activities carried out by individuals shall be considered as punishable criminal offences,which shall be sanctioned by applying current and relevant penal and criminal procedure lawsaccording to the different legal systems;(b) Resort to administrative detention against suspects of such criminal activities is inadmissible;(c) The detention of persons who are suspected of terrorist activities shall be accompanied by concretecharges;(d) The persons detained under charges of terrorist acts shall be immediately informed of them, andshall be brought before a competent judicial authority, as soon as possible, and no later than within areasonable time period;(e) The persons detained under charges of terrorist activities shall enjoy the effective right to habeascorpus following their detention;(f) The exercise of the right to habeas corpus does not impede on the obligation of the law enforcementauthority responsible for the decision for detention or maintaining the detention, to present the detainedperson before a competent and independent judicial authority within a reasonable time period. Suchperson shall be brought before a competent and independent judicial authority, which then evaluatesthe accusations, the basis of the deprivation of liberty, and the continuation of the judicial process;(g) In the development of judgments against them, the persons accused of having engaged in terroristactivities shall have a right to enjoy the necessary guarantees of a fair trial, access to legal counseland representation, as well as the ability to present exculpatory evidence and arguments under thesame conditions as the prosecution, all of which should take place in an adversarial process;(h) The persons convicted by a court of having carried out terrorist activities shall have the right toappeal against their sentences.

Guantanamo

Use of special security courts or military commissions forprosecution of terrorism suspects EgyptJordanSyriaTurkeyUSUN Human Rights Committee, Mandani v. Algeria(2007)- Only exceptional circumstances that renderit unavoidable for a civilian to be tried by amilitary ct. would be acceptable

Freedom of Expression Internet controlDisproprotionate criminal pernaltiesSurek v. Turkey ECTHR (1999) owner of anewspaper convicted and fined due to publicationof an editorial which supported the liberation ofKurdistan. The Court found that the editorial wascapable of inciting violence and the owner wasvicariously responsible.Journalists, academics, human rights defenders,lawyers, and judges harrassed and targeted

Freedom of Expression Urper v. Turkey, European Court of Human Rights (2009)Newspapers were suspended from publication several weeksbecause they had allegedly published articles supportingterrorism.The Court found a violation noting that the State oversteppedthe narrow margin of appreciation and unjusifiably restrictedthe essential role of the press as a public watchdog in ademocractic society. It was not necssary to restrict futurepublication of entire newspapers, the State could haveconfiscated particular issues or restricted specific articles.

UN Special Rapporteur Model offence of incitement to terrorismIt is an offence to intentionally and unlawfullydistribute or otherwise make available a messageto the public with the intent to incite the commissionof a terrorist offence, where such conduct, whetheror not expressly advocating terrorist offences,causes a danger that one or more such offencesmay be committed.Intent risk

Freedom of association The fact that an association calls for achieving endsthat are contrary to the interest of the State is notsufficient to characterize an association as terrorist.It is only when the association engages in or calls forthe use of deadly or otherwise serious violenceagainst persons that it may be characterized as aterrorist group.Does the group use terrorist means, which arefundamentally contrary to democracy and aim at itsdestruction.

UN Human Rights Committee- Lee v. Republic of Korea (2005) The State must demonstrate that the prohibition ofthe association and the criminal prosecution ofindividuals for membership of such organizationsare in fact necessary to avert a real, and not onlyhypothetical danger to the national security ordemocratic order and that less intrusive measureswould be insufficient to achieve this purpose.State failed to explain precise nature of threat

Edward Snowden

The Right to Privacy Stop and Search- racial, ethnic, national, religiousprofilingUse of biometric techniques- facial recognition,fingerprinting, iris-scanningWatch list monitoringCheckpoints and bordersCommunications surveillance, financial transactionsurveillance, travel dataMedia, Human rights workers, government officials,peace activists, environmental protestors

Right to Private and Family Life Control order or assets freezing order is imposedUN HRC Nabil Sayadi & Patrick Vinck v. Belgium(2008) wrongful listing on terrorism sanctions listDeportation or transfer of terrorism suspectsECTHR Al-Nashif v. Bulgaria (2003) statelessPalestian detained and deported from Bulgariawhere he was legally resident with his wife andchildren to Syria. Prevented from challenging thelawfulness of detention and denied effective remedy.

The Right to Privacy- Surveillance European Court of Human Rights, Klass and others v.Germany (1978)«Democratic societies nowadays find themselves threatened by highly sophisticated forms ofespionage and by terrorism, with the result that the State must be able, in order effectively tocounter such threats, to undertake the secret surveillance of subversive elements operatingwithin its jurisdiction. The Court has therefore to accept that the existence of some legislationgranting powers of secret surveillance over the mail, post and telecommunications is, underexceptional conditions, necessary in a democratic society in the interests of national securityand/or for the prevention of disorder or crime.»State (Executive) has some discretion but there needs to be adequate and effectiveguarantees against abuse (Judiciary preferred, but parliamentary body and commission ok).Here, law required measures to be renewed every three months, discontinued when no longerneeded, and use of the material only for the stated purpose, not any other end.Notification after end of surveillance not required because it may jeopardise the long termpurpose of surveillance.

Louise Doswald-Beck, Human Rights in Times of Conflict andTerrorism (OUP 2011)- Right to Privacy «The European Court will not look into the actualreasons for the secret surveillance, but rather willevaluate whether the legislation is precise enough,whether the grounds for supervision in thelegislation are reasonable, and, most crucially,whether the actual measures are subject tosupervision by a person or body other than theexecutive, preferably of a judicial character.»See Malone v. United Kingdom ECTHR (1984) secrettelephone tapping illegal because it was carriedout entirely at the discretion of the executive.

Internet Privacy- Berkman Center forInternet & Society There is not expectation of privacy for anything posted on awebsite or for communications in chat rooms.Email- government needs probable cause and search warrantto intercept email.Phone calls- when you dial digits you tell the phone companythe digits you are dialing- is there an expectation of privacy?The intelligence agencies install pen registers on the phone lineand Internet Service Provider to record telephone numbersdialed and internet communications and views the headers ofincoming and outgoing emails (but not content) and registersURL addresses of every website visited. If this is done withouta judicial order is there a violation of privacy?

UN Special Rapporteur Privacy 60. The Special Rapporteur recommends again that any interference with theright to privacy, family, home or correspondence should be authorized byprovisions of law that are publicly accessible, particularly precise andproportionate to the security threat, and offer effective guarantees againstabuse. States should ensure that the competent authorities apply less intrusiveinvestigation methods if such methods enable a terrorist offence to be detected,prevented or prosecuted with adequate effectiveness. Decision-making authorityshould be structured so that the greater the invasion of privacy, the higher thelevel of authorization needed.61. Adherence to international standards for privacy and human rightsprotection must be a tenet national law. Accordingly, a comprehensive dataprotection and privacy law is necessary to ensure that there are clear legalprotections for individuals to prevent the excessive collection of personalinformation, that ensures measures are in place to ensure the accuracy ofinformation, that creates limits on the use, storage, and sharing of theinformation, and which mandates that individuals are notified of how theirinformation is used and that they have a right to access and redress, regardlessof nationality and jurisdiction.

UN Special Rapporteur Surveillance 62. Strong independent oversight mandates must be established toreview policies and practices, in order to ensure that there is strongoversight of the use of intrusive surveillance techniques and theprocessing of personal information. Therefore, there must be no secretsurveillance system that is not under the review of an effectiveoversight body and all interferences must be authorized through anindependent body.63. All current and proposed counter-terrorism policies must includeprivacy impact assessments to review and communicate how the policyand technologies ensure that privacy risks are mitigated and privacy isconsidered at the earliest stages of policymaking.64. The Special Rapporteur recommends that stronger safeguards bedeveloped to ensure that the sharing of information betweengovernments continues to protect the privacy of individuals.65. The Special Rapporteur also recommends that stronger regulationsare developed to limit Government access to information held by thirdparties, including reporting schemes, and to minimize the burden placedon third parties to collect additional information, and that constitutionaland legal safeguards apply when third parties are acting on behalf ofthe State.

UN Special Rapporteur Surveillance 67. The Special Rapporteur urges Governments to articulate in detailhow their surveillance policies uphold the principles of proportionalityand necessity, in accordance with international human rights standards,and what measures have been taken to ensure against abuse.68. The Special Rapporteur recommends open discussion and regularreporting on information-based surveillance programmes. Reports tolegislative and oversightbodies, as well as independent reviews ofpractices wi

The counter-terrorism laws of some States expressly recognize the application of the principle of legality, the rule of law and human rights to the countering of terrorism, which should be seen as an essential check on the implementation in practice of the obligation to comply with human rights while countering terrorism.