National Human Rights Institutions (NHRI) the protection of by ijk77032

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									                    UNESCO World Forum on human rights
                              Nantes, France 16-19 May 2004

          Roundtable organized by the Office of the United Nations
             High Commissioner for Human Rights (OHCHR)
                               3.00 – 6.00 p.m. 17 May 2004

  National Human Rights Institutions (NHRI): the protection of
     international human rights while countering terrorism

Representatives of three NHRI particularly active on the issue of protection of
international human rights while countering terrorism were invited as panelists to the
Roundtable: the Danish Institute for Human Rights (also Chairperson of the
International Coordinating Committee of National Human Rights Institutions (ICC));
the French National Advisory Commission of Human Rights; and the Northern
Ireland Human Rights Commission. The OHCHR project coordinator on Human
Rights and Terrorism also participated in the panel which was facilitated by the
OHCHR National Institutions Unit. It was well attended by government
representatives, human rights activists, lawyers, non-governmental organizations
(NGO), United Nations agencies, academic institutions, representatives from NHRI,
the media and the Special Representative of the Secretary-General on Human Rights
Defenders.

The OHCHR Digest of Jurisprudence of the United Nations and Regional
Organizations on the Protection of Human Rights while Countering Terrorism
(www.unhchr.ch/html/menu6/2/digest.doc) was made available to all participants.
This publication, which aims to assist policy makers in developing a vision of
counter-terrorism that is fully respectful of human rights, is a compilation of findings
and judgments of human rights courts and committees of the United Nations, Europe,
the Americas and Africa.

                             Rationale and Objectives

The protection of human rights in counter-terrorism measures has long been a concern
of the United Nations human rights program; it has received even greater attention
following the tragic events of 11 September 2001, and the upsurge in acts of terrorism.
The United Nations, which was itself a victim of terrorism in Baghdad on 19 August
2003, has condemned terrorism unequivocally, and recognizes the duty of States to
protect those living within their jurisdictions from terrorism while ensuring the right
to life. The United Nations Secretary-General and serving High Commissioner for
Human Rights have expressed clearly that there is no need for a “trade-off “ between
human rights and terrorism. It is entirely possible to fight terrorism strongly and
effectively while fully respecting human rights obligations.

NHRI can play a vital role in helping states to identify security measures which both
address legitimate threats and ensure respect for fundamental rights and freedoms.
NHRI can review and analyze proposed legislation as well as engage in dialogue with
governments and legislatures to find the best way forward. They can promote respect
for human rights in time of crisis through public education campaigns and outreach.


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Because of their institutional role, they can raise sensitive questions that private
citizens, standing alone, might hesitate to express publicly.

The roundtable provided an opportunity to engage with NHRI experts on the role of
NHRI in promoting and protecting human rights while countering terrorism, to
exchange practices and expertise as well as to identify future challenges and strategies.

                                   Main principles

OHCHR recalled that though the mandate of NHRI varies from country to country a
definitive emphasis should be placed on the importance of the Paris Principles relating
to the status of NHRI, adopted by the United Nations General Assembly in resolution
48/134 of 1993. The key criteria are:

   !   independence guaranteed by Constitution and/or statute
   !   autonomy from government
   !   pluralism, including in membership
   !   a broad mandate based on universal human rights standards
   !   accessibility – physical, social, linguistic, cultural and financial
   !   adequate resourcing – a state obligation to ensure
   !   acting as a bridge between civil society and Government

The Secretary-General noted in his report A/57/387 of 2002 that “building strong
human rights institutions at the country level is what in the long run will ensure that
human rights are protected and advanced in a sustained manner … and should
therefore be a principal objective of the United Nations”.

NGO and NHRI representatives noted that the credibility and legitimacy of NHRI rely
on the implementation of actions reflected in their annual reports and that
accountability to NHRI colleagues and not only governments was important. It was
further stated that the independence of NHRI relies on guarantees provided for in their
constitutional and legislative texts and that the capacity of victims to seize justice is
dependent upon the political will of governments to allow NHRI to act. A credible
environment promotes viable NHRI. The strengthening of regional and international
NHRI networks in the fight against terrorism was strongly reaffirmed. In referring to
the vision of the late High Commissioner: “think globally, but work locally”, a NHRI
representative raised the need to organize conferences in countries where terrorism
takes place. OHCHR confirmed its support to institutions which operate in a difficult
environment.

                      Terminology and fundamental rights

Concern was raised by participants regarding the use of the term “terrorist” by several
governments in order to counteract political opposition. The panellists agreed that a
clear definition of terrorism as a crime against humanity will help avoid the
legitimization of any kind of oppression. As voiced by the human rights treaty bodies
restrictions have to be proportional to the offence and one should bear in mind the
bodies of rights which may never be derogated from or suspended in order to avoid
that states are reduced to the same level as those people who violate the laws. The
human rights treaty bodies and mechanisms have emphasized that international norms


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contain elaborate provisions which seek to assist states to search for security while
respecting human rights. Genuine emergencies can lawfully lead to exceptional
measures, as long as they are properly implemented and strictly limited by the
principles of necessity and proportionality. Nevertheless, even in times of emergency,
certain core elements of international law may never be suspended. These include,
for example, the right to life; right to freedom from torture; right to freedom from
arbitrary detention; right to freedom from discrimination; fundamental principles of
fair trial, including the presumption of innocence; and respect for the principle of
legality.1 It is essential that there is a voice in national debates which represents this
human rights point of view and which can assist states to translate the requirements of
international law into effective and legitimate security measures.

During the interactive dialogue it was noted that societies which perceive themselves
to be under threat need to engage in a social dialogue and examine this perception in
the full light of public discourse, because often rational analysis gives way to
emotional interpretations which present genuine dangers to respect for human rights.
The level of public debate over security measures is a test of a society’s commitment
to the right to freedom of expression and information. Human rights violations can
sometimes help to provoke terrorism.

In referring to the report of the Special Rapporteur on the promotion and protection of
the right to freedom of opinion and expression, OHCHR acknowledged that the
freedom of expression and association are often derogated while countering terrorism.
As noted by the late High Commissioner in October 2002 “the only strategy to isolate
and defeat terrorism is by respecting human rights, fostering social justice, enhancing
democracy and upholding the primacy of the rule of law.”

                                         Case studies

The panellists drew the attention of participants to their respective country situations
as well as the experience of their NHRI in countering terrorism and lessons learned.

The French National Advisory Commission of Human Rights has developed close
working relations with the Steering Committee for Human Rights of the Council of
Europe, as a member of the European network of National institutions. In 2002, the
Committee of Ministers of the Council of Europe, provided “guidelines on human
rights and the fight against terrorism”, based on the case-law of the European Court of
Human Rights. The French Commission remains vigilant regarding its national laws
so as to avoid any challenge to the rule of law. Though the phenomena of terrorism
has been known for years by European states, which have adapted themselves within
the frame of law, the countering of terrorism needs to be closely monitored within
three levels: international measures through United Nations bodies as the Security
Council and its working group; European cooperation as a space of liberty, security
and justice; and domestic measures regarding the rights of victims to be reflected in
all legislation.

The Northern Ireland Human Rights Commission has been involved with anti-terrorist
measures since its conception. The representative noted that a balance is needed

1
    ICCPR, article 4 and UN Human Rights Committee, General Comment N°29


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between the requirements of minorities (e.g.. interaction between Catholics and
Protestants). He further stated that the Government and Parliament should avoid
rushing to enact new laws against terrorism when existing criminal laws could be used.
The Commission stated that many “ordinary” criminals had been charged under
“emergency” laws, that many detainees had been deprived of access to lawyers and to
their families, and that special courts had been set up (without juries). Over time,
special anti-terrorist measures had begun to infiltrate ordinary law.

The Danish Institute for Human Rights monitors fair trials and restrictions in access to
information by lawyers as well as the use of internet by extremist groups. Following
complaints by teachers, human rights are discussed within a new programme to raise
awareness among high school students who are under the influence of extremist
groups. A parallel dialogue has started with the Islamic Clerics. The information is
disseminated in cooperation with NGOs.

                                             Partners

Throughout the interactive dialogue it was emphasized that OHCHR relies strongly on
its international partners, including Governments, regional organizations, NHRI and
NGO to implement its Commission on Human Rights and General Assembly
mandates on the protection of human rights while countering terrorism.2

OHCHR exchanges views with the Security Council Committee on countering
terrorism 3 on concerns and observations of the United Nations human rights treaty
bodies and mechanisms with respect to counter-terrorism measures. OHCHR has
further been a member of the Secretary-General’s Policy Working Group on
Terrorism, which has made important recommendations to assist States in ensuring
that the struggle against terrorism is carried out with full respect for their human
rights obligations.

It is important to feed related information on timely warning about human rights
implications of anti-terrorism laws, measures and strategies at the national level into
the human rights machinery, including treaty bodies and Commission on Human
Rights special procedures mandate holders, so that they continue to monitor the
human rights dimension in the fight against terrorism and make recommendations in
this regard. NHRI can play a critical role in all these endeavors.

OHCHR further relies on NHRI and NGO when gathering information on relevant
developments in different regions; supporting regional and national meetings on the
issue; and making recommendations for action concerning the obligation of states to
promote and protect human rights and fundamental freedoms while taking actions
against terrorism. Additional support from NHRI is required when providing
assistance and advice to states at their request. A panellist recalled that NHRI have no
executive or legislative power with respect to recommendations and therefore rely on
support from civil society. It was further recommended that NHRI should engage pro-
actively with the media.


2
    GA resolution 58/174; CHR resolutions, 2004/44, 2003/68 and 2003/37.
3
    Security Council decisions 1456 and 1535


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The need to strengthen collaboration between NHRI and NGO was highlighted by
many participants and panellists, who were informed that for the first time a global
network of NGO will engage in a strategic manner with NHRI during a NGO Forum
at the forthcoming 7th International Conference for NHRI on “Upholding Human
Rights during Conflict while Countering Terrorism”, to be held in Seoul, Republic of
Korea, from 14 to 17 September 2004 (www.nhri.net). Major human rights issues
arising out of conflict and counter-terrorism have been categorized into themes to be
discussed in Working Group sessions, allowing participants to share experiences and
engage in a dialogue on how various NHRI cope with these issues, working towards
combating human rights violations at domestic, regional and international levels.

             Treaty Bodies & Special Procedures mandate holders

The growing awareness of the role of NHRI in interacting at the national, regional and
international levels with treaty bodies and special procedures was emphasized. The
treaty body representatives have recently agreed to draft a general recommendation
concerning NHRI while the special procedures will engage more actively with NHRI
prior, during, and in follow-up to their missions. NHRI can assist states in complying
with treaty obligations by commenting on draft laws, addressing urgent actions, in
following-up on recommendations and their implementation as well as putting
pressure on Governments to sign and ratify international instruments. NHRI can
provide supplementary parallel reports to those of State Party reports.

OHCHR highlighted that the United Nations special mechanisms and the human
rights treaty bodies have expressed concern about the protection of human rights in
counter-terrorism measures worldwide, and have placed a priority on examining the
issue. The Office recalled that front-liners such as the Special Rapporteurs on Torture,
on the Independence of Judges and Lawyers and on Human Rights Defenders,
respectively, as well as the Working Group on Arbitrary Detention have drawn up the
basic principles and that the Sub-Commission member and Independent Expert on
terrorism already worked on the subject before the 11 September 2001.

It was noted that the special procedures issued a joint statement in June 2003 in which,
while fully condemning terrorism, they voiced “profound concern at the
multiplication of policies, legislation and practices increasingly being adopted by
many countries in the name of the fight against terrorism, which negatively affect the
enjoyment of virtually all human rights: civil, cultural, economic, political and
social.” They underlined the danger in the indiscriminate use of the term ‘terrorism’
and resulting new categories of discrimination, and called on Governments and
international organizations, including the United Nations, to be vigilant to prevent any
abuse of counter-terrorism measures.

Participants were of the opinion that a plan of action on how to deal with terrorism
needs to be developed. OHCHR reminded participants that several NHRI voice their
concerns during the annual meetings of the Commission on Human Rights and that
many other mechanisms are at one’s disposal (treaty bodies, special procedures,
General Assembly, Sub-Commission on the Promotion and Protection of Human
Rights, etc).




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                                  Information

Participants were finally informed that NHRI have raised the issue of human rights
and terrorism during a number of workshops, seminars and regional meetings of their
networks and they were therefore encouraged to consult the OHCHR (www.ohchr.org)
and NHRI websites (www.nhri.net) in order to consult the various reports, action
plans and future meetings of NHRI.




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