The western war of terror against its own citizens

W.J.C. Rhys-Burgess

In an address to the UN Human Rights Council on 13 December 2007, the International Commission of Jurists expressed particular concern as to the human rights implications of the recent proliferation of so-called counter-terrorism legislation.

In its intervention, the Commission particuarly mentioned the practice of “rendition” or abduction of suspects, without due process of law, to places of secret or arbitrary detention, and highlighted how protection of human rights and the rule of law had been gravely undermined by the purported grant of impunity to state agents, as well as of private contractors engaged by them, for serious human rights violations.

For example, under section 7 of the UK’s Intelligence Services Act 1994, the Foreign Secretary is ostensibly permitted to grant immunity from civil proceedings or criminal prosecution to any member of the security services (including private “contractors”) in respect of any tortious or unlawful act, which would presumably include abduction, false arrest, wrongful imprisonment, torture and extrajudicial killing.

In July 2007, The Eminent Jurists’ Panel heard testimony expressing concerns about serious departures from international human rights law arising from State counter-terrorist measures. The Panel is composed of eight judges, lawyers and academics from all regions of the world and is supported by the ICJ.

Of particular concern to the Panel was the role of some European states in supporting or facilitating the US-led system of “extraordinary renditions”, including secret and incommunicado detention, and the use of internationally proscribed methods of interrogation; the use of some European States of information secured through such methods and the presence of or participation by members of the security services of some European states in the interrogation of persons prior to or following their rendition. The Panel considered that it was wholly unacceptable that any country, in Europe or elsewhere, should co-operate in renditions, with the multiple violations of human rights this involved, including the prohibitions on torture, enforced disappearances, and arbitrary or incommunicado detention. It strongly recommended that institutions of the EU and Council of Europe should hold those responsible for such practices accountable, and to ensure that the victims of renditions are accorded effective remedies for violations of their human rights. It held that such effective accountability was vital to deter continuation of this practice in other parts of the world.

The Panel also heard evidence relating to the apparent failure of some European states to establish meaningful oversight and effective accountability of intelligence services, in particular military intelligence services; and the reliance on secret intelligence by various European countries as a basis for administrative measures of a punitive nature, including deportations of persons suspected of involvement in or support for terrorism. It was satisfied from the testimony it had heard, including in Europe, as to the importance of effective supervision and accountability of all branches of the intelligence services, including military intelligence. It urged all European states to review and where necessary strengthen their systems of supervision of intelligence services, to ensure respect for human rights and the rule of law in all aspects of intelligence operations.

Evidence was heard of the failure by some European states to respect the basic principle of non-refoulement, recognised by the European Convention on Human Rights and the United Nations Convention Against Torture, and the reliance on diplomatic assurances against torture to justify the deportation of suspects to states known to use torture. The Panel was especially concerned that deportations were being undertaken on the basis of diplomatic assurances, as a preventative counter-terrorism measure by some European states. The Panel considered that it was unacceptable to deport persons to states that use torture, on the basis of such assurances in that they were unenforceable and that reliance on them in these circumstances was contrary to the obligation of non-refoulement whereby there was a grave risk of torture or cruel, inhuman or degrading treatment, and that such renditions undermined the absolute prohibition of such treatment in international law.

Concern was particularly expressed as to the wide definition of offences in anti-terrorism legislation, including offences of membership of a terrorist organization, and offences of incitement to and apology for terrorism, which could result in persons engaged in legitimate political or social dissent being branded as terrorist.

The tendency to increase periods of detention incommunicado prior to charges being brought against suspects, without adequate safeguards, including access to counsel during detention was also condemned.

Also of concern was the increasing scope of the collection of personal data for law enforcement, immigration and related purposes, without adequate safeguards being established to guard against the misuse of such information; as well as the alienating effect of counter-terrorism measures on minority communities, particularly Muslims, who bear the brunt of powers vested in security services, sometimes applied in a discriminatory way. The Panel condemned the particularly disproportionate impact of counter-terrorism measures on members of Muslim communities and considered that such measures had an alienating (and therefore counter-productive) effect. It considered it essential that the concerns of these communities are addressed by making anti-discrimination measures a central part of counter-terrorism policies, at both national and European inter-governmental levels.

The Panel heard concerns regarding the absence of fair and credible procedures for the inclusion of individuals or organisations on national, European Union or United Nations so-called “blacklists” that may seriously prejudice the rights of those affected. Concern was also expressed about the lack of fair procedures to remove persons wrongly “blacklisted” and compensated for the injury suffered by such conduct.

The Panel whilst acknowledging the need for effective cooperation between states to counter terrorism, emphasised that such cooperation must take place within a human rights framework, and must be subject to appropriate limitations and safeguards.

The Panel held hearings in Australia, Colombia, East Africa (Kenya, Tanzania and Uganda), the United Kingdom (in London on current counter-terrorism policies and in Belfast on lessons from the past), North Africa (Algeria, Morocco and Tunisia), the United States, the Southern Cone (Argentina, Brazil, Chile, Paraguay and Uruguay), South-East Asia (Indonesia, Malaysia, the Philippines and Thailand), the Russian Federation, South Asia (India, Sri Lanka, Nepal, Pakistan, Bangladesh and the Maldives), Canada, and the Middle East (Egypt, Yemen, Jordan and Syria).