You are on page 1of 242

OVERVIEW

OF COUNTER-TERRORISM LEGAL FRAMEWORK



1. Overview
This module gives an overview of the international legal framework governing counter-
terrorism responses. Its primary aims are to introduce the UN Global Counter-Terrorism
Strategy (UN Strategy), and to give an introduction to the complex matrix of legal tools and
legal regimes that make up the global counter-terrorism legal architecture that underpins the
UN Strategy. As it will become apparent during the course, a number of these legal regimes are
interdependent and mutually reinforcing, including in relation to human rights and criminal
justice approaches.
The module’s structure is as follows:
(1) It defines the concept of the ‘rule of law’ which underpins the course.
(2) It introduces and explains the UN Strategy, focussing especially on Pillar IV which specifies
that the common fight against terrorism should be founded on promotion for the rule of law,
respect for human rights and effective criminal justice systems.
(3) It considers the different types of binding and non-binding international, regional and
national legal instruments and sources relevant to counter-terrorism that fall within the
parameters of the UN Strategy.
(4) It briefly introduces legal regimes are of especial importance to current UN global counter-
terrorism efforts which will be revisited throughout the course: national/international criminal
law; international human rights law; international humanitarian law; and international refugee
law.
(5) It identifies some of the key challenges relevant to achieving the UN Strategy’s Pillar IV
goals.

2. Defining the ‘rule of law’
The concept of the ‘rule of law’ is a central one to the UN system, including in relation to its
counter-terrorism activities. As has been widely recognised by various UN organs, entities and
Member States, terrorism threatens both the rule of law and the fundamental freedoms of
citizens and entire societies; indeed, one of its central objectives is often to erode the rule of
law together with ‘human rights, fundamental freedoms and democracy…’. [ UN Strategy,
Preamble]. Consequently, inappropriate counter-terrorism responses which do not adhere to
the rule of law can both undermine their legality and effectiveness, while furthering such
terrorist agendas.
Though there is no single definition of the concept of the ‘rule of law’, its essence was captured
by former UN Secretary-General Kofi Annan in the context of transitional justice in conflict and

1
post-conflict societies when he described the ‘rule of law as ‘refer[ing] to a principle of
governance in which all persons, institutions and entities, public and private, including the State
itself, are accountable to laws that are publicly promulgated, equally enforced and
independently adjudicated, and which are consistent with international human rights norms
and standards.” (S/2004/616, para. 6)
In a counter-terrorism context, UN organs and entities regularly convey the strong message
that respecting human rights while countering terrorism is not only a matter of legal obligation,
but is critical to the ultimate success of any counter-terrorism strategy. For example, a recent
report of the UN High Commissioner for Human Rights noted that:
Effective counter-terrorism measures and the protection of human rights are
complementary and mutually reinforcing objectives, which must be pursued together
as part of States’ duty to protect individuals within their jurisdiction. Experiences
in countries around the world have demonstrated that protecting human rights and
ensuring respect for the rule of law itself contribute to countering terrorism, notably
by creating a climate of trust between the State and those under their jurisdiction.
(A/HRC/34/30 (2016) para. 56).
This is illustrated by the indivisible relationship between international human rights law and
criminal law (both national and international). From a rule of law perspective, the essence of
criminal law is to delineate the parameters of what constitutes acceptable and unacceptable
behaviour within a particular societal context. If, for example, the definitions of offences are
ambiguous then the main function of criminal law may be undermined, thereby facilitating the
possibility of other executive-led actions which may be contrary to upholding the rule of law.
Furthermore, UN organs and entities, including the UN General Assembly and Security Council,
regularly emphasize the importance of adhering not only to international human rights law, but
also to international humanitarian law and international refugee law,1 notably within the
context of the UN Global Counter-Terrorism Strategy which is discussed next.

3. UN Global Counter-Terrorism Strategy (UN CT Strategy)

3.1. Overview of UN CT Strategy
A central starting point for examining the framework governing global counter-terrorism efforts
is the UN CT Strategy. Adopted without a vote by the UN General Assembly in Resolution
60/288 on 8 September 2006,2 thereby reflecting a baseline of universal consensus and
legitimacy, this was the first time that the UN Membership had agreed and adopted a common
strategic approach and framework to fight terrorism. The Strategy is reviewed and updated bi-


1
E.g. UNSC Res 1373 (28 September 2001) para 3; [insert recent UNSC/UNGA res examples].
2
UN General Assembly (UNGA) Res 288/60 (8 September 2006) (UN CT Strategy).
2
ennially, to reflect changing priorities, by the UN General Assembly.3 In this way, the Strategy
remains a living document. This is illustrated by the most recent review on 1 July 2016 (UNGA
Res 70/826), which was linked to the consideration of the UN Secretary-General's Plan of Action
to Prevent Violent Extremism (A/70/674-A/70/675) as a matter of growing international
concern. [See further Module 2]. The changing environment, and accompanying priorities, are
reflected in the bi-ennial reports of the UN Secretary-General, 'Activities of the United Nations
system in implementing the United Nations Global Counter-Terrorism Strategy'4 which also give
a very helpful summary of current progress and challenges regarding implementation of the UN
CT Strategy.
The UN CT Strategy is a unique global instrument to enhance national, regional and
international efforts to counter terrorism, including by strengthening cooperation between all
key actors. [See further section 3.2 below] Its adoption demonstrated not only the agreement
of all Member States, for the first time, to a common strategic and operational approach to
fight terrorism, sending a clear message that terrorism is unacceptable in all its forms and
manifestation, but furthermore a resolve to take practical steps individually and collectively to
prevent and combat it. Those practical steps include a wide array of measures ranging from
strengthening state capacity to counter-terrorist threats to better coordinating the UN system’s
counter-terrorism activities.

UN Global Counter-Terrorism Strategy (2006)


The Strategy takes the form of a resolution with an annexed Plan of Action
(A/RES/60/288) comprising of 4 Pillars:

• I Addressing the conditions conducive to the spread of terrorism;


• II Measures to prevent and combat terrorism;
• III Measures to build states’ capacity to prevent and combat terrorism and to
strengthen the role of the United Nations system in that regard;
• IV Measures to ensure respect for human rights for all and the rule of law as the
fundamental basis for the fight against terrorism.

UN General Assembly in Resolution 60/288 (8 September 2006)


Modules 1, 2 and 14 consider Pillars 1 and 2; Pillar III is aimed at practitioners and, therefore is
beyond the scope of the current course. Therefore, the remainder of this module, as well as the
course as a whole, focuses on Pillar IV. As it is apparent from Pillar IV especially, the pivotal
importance of the rule of law is central to the realization of the UN CT Strategy’s overarching


3
UNGA Res 62/272 (5 September 2008); UNGA Res 64/297 (8 September 2010); UNGA Res 66/282 (12 July
2012); UNGA Res 68/276 (24 June 2014); UNGA Res 70/291 (1 July 2016) which have been adopted on the basis
of consensus.
4
The most recent UN Secretary-General Report was A/70/826 (12 April 2016).
3
goals. For example, its Preamble ‘Reaffirm[s] that the promotion and protection of human
rights for all and the rule of law is essential to all components of the Strategy…’.5

3.2. International cooperation and the UN Strategy
The need to continually strengthen existing levels of cooperation is central to international
counter-terrorism efforts, and, as such, it is embedded with the UN CT Strategy’s agenda and
framework. As it was examined in Module 1, terrorism is a complex and ever-changing
phenomenon. Its motivations, financing and support mechanisms, methods of attack and
choice of targets are constantly evolving, thus adding to the complexity of an effective strategy
to counter it. Moreover, its increasingly transnational nature requires enhanced criminal justice
cooperation among States to deny safe havens to those who commit or attempt to commit
terrorist crimes. Terrorism has truly become a global threat that requires a global and
prevention-focused response. Numerous UN outputs have stated and re-emphasized that such
cooperation needs to be strengthened at every level including bilaterally, regionally, and
internationally, between all relevant actors, especially States.6 For example, the UN’s High-Level
Panel Report in 2004 emphasized this matter in the following terms [A/59/565 paras 17, and
24]:
Today, more than ever before, threats are interrelated and a threat to one is a threat to
all. The mutual vulnerability of weak and strong has never been clearer….No State,
no matter how powerful, can by its own efforts alone make itself invulnerable to today’s
threats. Every State requires the cooperation of other States to make itself secure.
The Strategy enumerates the many levels on which that cooperation must take place and
highlights the various commitments of Member States in working together to combat
terrorism. The Strategy expresses the international community’s resolve to cooperate fully in
the fight against terrorism, in accordance with its obligations under international law, in order
to find, deny safe haven and bring to justice, on the basis of the principle of extradite or
prosecute, any person who supports, facilitates, participates or attempts to participate in the
financing, planning, preparation or perpetration of terrorist acts or provides safe havens. In
each of the Pillars of the Strategy, Member States resolve to undertake various measures in
pursuance of this goal.
Despite its many achievements, such as securing universal consensus, the UN CT Strategy has
yet to achieve its full potential in practice. Notable challenges remain that the necessary
political will and technical knowledge to translate its goals into national or regional law, policy
and practice, are sometime lacking.


5
Similarly, see Pillar I, Preamble, paras 1, and 7; Pillar II para 3; Pillar IV paras. 1-5.
6
See, e.g., UNSC Res 2370 (2017) para.s 12-15. See too, e.g., UNSC Res 2178 (2014),
especially paras. 11-14.
4
Tools
• For comprehensive list of UN reports, resolutions and tools supporting the UN CT
Strategy, see https://www.un.org/counterterrorism/ctitf/en/un-global-counter-
terrorism-strategy.
• A list of resolutions relating to the UN CT Strategy are available at
https://www.un.org/ counterterrorism/ ctitf/en/resolutions.

Further reading
• UN Secretary-General's Plan of Action to Prevent Violent Extremism (A/70/674-
A/70/675).
• Report of the Secretary-General, 'Activities of the United Nations system in
implementing the United Nations Global Counter-Terrorism Strategy, A/70/826
(12 April 2016).
• P. Romaniuk, Multilateral Counter-Terrorism: The Global Politics of Cooperation
and Contestation (Routledge, 2010)

• B Saul (ed), Research Handbook on International Law and Terrorism (Edward


Elgar, 2014):
o M Porret, 'The Role of the United Nations Counter-Terrorism
Implementation Task Force and the United Nations Counter-Terrorism
Centre', ch. 33.
o M Requena, 'The role of the United Nations Office on Drugs and Crime's
Terrorism Prevention Branch', ch. 34.
o J Cockayne, 'Challenges in United Nations counter-terrorism coordination'.
ch. 38.

• A.M. Salinas de Friás, K.L.H. Samuel and N.D. White (eds.), Counter-Terrorism:
International Law and Practice (Oxford University Press, 2012):
o N.D. White, ‘The United Nations and Counter-Terrorism: Multilateral and
Executive Law-Making’, ch. 3.
o N. el Khoury, ‘Implementing Human Rights and Rule of Law Aspects of the
UN Global Counter-Terrorism Strategy – the UNODC/TPB Experience’, ch. 37.

• N. Quenivet, ‘You are the Weakest Link and We will Help You! The
Comprehensive Strategy of the United Nations to Fight Terrorism’, (2006) 11
Journal of Conflict and Security 371.

• N. Quenivet, ‘The World After September 11: Has it Really Changed?’ (2005) 16
European JIL 561.

5
• E Rosand, ‘The UN-Led Multilateral Institutional Response to Jihadist Terrorism:
Is a Global Counterterrorism Body Needed?’ (2006) 11 Journal of Conflict and
Security Law 399.
• Surya P. Subedi, 'The UN Response to International Terrorism in the Aftermath
of the Terrorist Attacks in America and the Problem of the Definition of
Terrorism in International Law' International, 4 International Law FORUM Du
Droit International 159, 169 (2002).
• J Cockayne, A Millar, and J Ipe, ‘An Opportunity for Renewal: Revitalizing the
United Nations counterterrorism program’ (Center on Global Counterterrorism
Cooperation, Washington, DC, September 2010) i-ii, avaialble at
http://www.globalct.org/resources_publications.php.
• G. Guillaume,’ Terrorism and International Law’ (2004) 53 ICLQ 537.
• A. Cassese, ‘Terrorism is also Disrupting Some Crucial Legal Categories of
International Law’, (2001) 12 European JIL 993.
• G. Rona, ‘Legal Frameworks to Combat Terrorism: an Abundant Framework of
Existing Tools’ (2004-2005) 5 Chicago Journal of International Law 499.
• Nigel D. White, 'Preventive Counter-Terrorism and International Law', 18 J. of
Conflict & Sec. L. 181, 192 (2013)


4. Legal Sources and the UN Strategy
The previous section introduced the UN CT Strategy as the principal, universally agreed,
framework governing counter-terrorism responses. The discussion now moves to considering
the different types of binding and non-binding legal sources that come within the Strategy’s
parameters.
There are two categories of legal sources. One is ‘material’ sources, which is the instrument or
document in which obligations are found, for example treaties and judicial decisions. The other
type is a ‘formal’ source, which relates to an instrument's authority, that is the legal weight and
effect of particular rules.

4.1. Formal binding legally sources
Under Article 38(1) International Court of Justice Statute 1945 (ICJ Statute), there are two
principal sources of binding legal sources to consider here: international treaties (Article
38(1)(a)) and customary international law (Article 38(1)(b)). Additionally, national legislation is
binding within the context of the states concerned, and the jurisprudence of courts and
tribunals is binding on those parties involved in particular proceedings. Though these latter two
sources are not considered in any detail here, examples of both of them permeate the course,
including as case studies.

6

4.1.1. International treaties
There are two principal types of international treaty of especial relevance to international
counter-terrorism efforts: the UN Charter 1945, and international anti-terrorism (sectoral)
conventions.

4.1.1.1. UN Charter
With respect to the UN Charter, as its Article 1 purposes state, its primary objectives include
the maintenance of international peace and security (Article 1(1)). This is important since
terrorist activities are often regarded as posing a threat not only to targeted countries, but also
regional and global security more generally.7 It is in the interest of all states that the related
threats are countered in a manner that does not undermine wider international peace and
security. Since terrorist threats are generally transnational in nature, the Organization’s
underpinning principles articulated in Article 2 are significant too for governing related counter-
terrorism efforts. In particular, these principles state that: the resolution of ‘international
disputes [should be] by peaceful means in such a manner that international peace and security,
and justice, are not endangered’ (Article 2(3)); a presumption exists against ‘the threat or use of
military force against the integrity or political independence of any state‘ (Article 2(4), subject
to the exception of self-defence articulated in Article 51); there is a principle of non-
intervention by the UN ‘in matters which are essentially within the domestic jurisdiction of any
state’ (Article 2(7)). Therefore, for example, a state should not use military force against non-
state terrorist actors located in the territory of another sovereign state without its permission,
thereby violating its territorial integrity, unless certain, limited, exceptions permitted under
international law apply.
Notable too is Article 1(3) which seeks to achieve international cooperation ‘in promoting and
encouraging respect for human rights and for fundamental freedoms for all without distinction
as to race, sex, language, or religion’, which is reflected within other Charter provisions, notably
Article 55 (with accompanying Article 56 under which Member States commit to taking action,
both individually and collectively, to further Article 55 purposes). These principles permeate
other UN instruments dealing with counter-terrorism issues, including UN General Assembly
and Security Council resolutions, as well as the international anti-terrorism conventions
considered next.

4.1.1.2. International anti-terrorism (sectoral) conventions
In addition to the UN Charter, 19 international, legally binding, dedicated anti-terrorism
instruments have been developed over the past five decades. These have largely evolved as
responses to specific terrorist incidents or threats and cover offences related to civil aviation

7
See eg UNSC Res 1373 (28 September 2001) Preamble; UNSC Res 1540 (28 April 2004) Preamble.
7
(i.e. hijacking, aviation sabotage, use of an aircraft as a weapon); crimes against internationally
protected persons (i.e. the kidnapping of diplomats); hostage taking; illicit use or handling of
nuclear materials; acts against the safety of maritime navigation and fixed platforms located on
the continental shelf; terrorist bombings; financing of terrorism; and acts involving the criminal
use or handling of chemical, biological, radiological or nuclear materials or weapons.
In a nutshell, these instruments do not define terrorism but create obligations on state parties
to: criminalize the offences in question under domestic law; exercise jurisdiction over offenders
under prescribed conditions; establish the obligation to extradite or prosecute; and set up
mechanisms for enhancing international cooperation in criminal matters. They will be discussed
in more detail in Module 3 which examines international criminal justice instruments.

4.1.2. Customary international law
Another source of binding legal obligation recognized in the ICJ Statute 1945 is customary
international law (Article 38(1)(b)). Customary international law is an important source of law.
It consists of:
[R]ules of law derived from the generally consistent conduct of States, acting out of
the belief that the law required them to act that way. It results from a general and
consistent practice of States followed out of a sense of legal obligation, so much so
that it becomes custom. Customary international law must be derived from a clear
consensus among States as exhibited both by widespread conduct and a discernible
sense of obligation.8
Therefore, in a human rights law context, States parties to a particular treaty will not only have
obligations under that treaty, but also in relation to those rights and freedoms that have
become part of customary international law. Significantly, these obligations will bind those
States which are not parties to conventions in which such customary rights and obligations are
articulated since they bind all States, whether or not they are party to a particular treaty. For
example, many of the rights set out in the Universal Declaration of Human Rights, as well as
some of the rights defined in the International Covenant on Civil and Political Rights, reflect
norms of customary international law.
As the International Court of Justice found in the case of Nicaragua, a hierarchy of rules does
not exist in international law between international treaties (in that case Articles 2(4) and 51 of
the UN Charter) and customary international law.9 That means that one is not more important
than the other. As the Court further held, both sources of law have parallel, but separate,
existences which are not mutually dependent. Customary international law rules often form the
basis of international treaty texts, but may be further developed as part of the codification
process within the eventual text adopted. Consequently, some differences may exist between

8
Organization for Security and Cooperation in Europe, Office for Democratic Institutions and Human Rights,
Countering Terrorism, Protecting Human Rights: A Manual (Warsaw, ODIHR, 2007 p55.
9
Nicaragua ref
8
comparable rules existing within both of these legal sources. That said, practically speaking, it is
easier to identify treaty obligations in a written text.
A number of customary international law obligations are of especial relevance to global
counter-terrorism efforts, including under the auspices of the UN CT Strategy. Generally, these
have ‘jus cogens’ status,10 which means that they cannot be derogated from. Although no
universally agreed list of such principles exist, the prohibitions against the threat or use of
force, torture, genocide, slavery, racial discrimination and crimes against humanity are widely
recognized as peremptory norms. As it will be explored in subsequent modules, a number of
these jus cogens obligations have come under strain in the course of some national and
international counter-terrorism responses.

4.1.3. UN General Assembly and Security Council resolutions
The General Assembly and Security Council have engaged with terrorism related matters, to
varying degrees, during the past five (almost six) decades. The General Assembly especially has
been apprised of such issues since 1960, with the adoption of the Declaration on the Granting
of Independence to Colonial Countries and Peoples (UNGA Res 1514(XV) (1960)), adopting
many non-binding, but nevertheless influential resolutions in the process.
In terms of the division of labour between the two organs, they have different but
complementary functions. The Security Council is largely concerned with the effectiveness of
terrorism related measures, in performance its key role of seeking to maintain international
peace and security; whereas a principal focus for the General Assembly is that such measures
are just and consistent with the Organization’s purposes and principles as stated in Articles 1
and 2 UN Charter.
In terms of the approach of both organs towards terrorism matters, including how legal norms
were shaped, there are three discernible phases. The first is the period between the adoption
of the 1960 Declaration and the late 1980s, when much of UN General Assembly terrorism
related discourse centred around self-determination struggles from colonialism and other
forms of alien or foreign subjugation or domination. This reflected the fact that its Membership
was growing in number as previously colonized states achieved their independence. A
particular feature of this period were debates regarding whether or not persons and entities
engaged in armed struggles should be classified as non-state terrorist actors.
The second phase spans from the early 1990s until 2001, when the General Assembly shifted
away from its previous practice of generally affirming self-determination struggles, including
the means by which they were achieved. Of particular note in the shaping of the current
international counter-terrorism framework, after 1991 the General Assembly shifted away from
condemning ‘as criminal and unjustifiable, all acts, methods and practices of terrorism
wherever and by whomever committed’, whilst retaining a clear distinction between these
prohibited terrorist acts and the legitimate exercise of the right to self-determination as

10
See Article 53 Vienna Convention on the Law of Treaties 1969.
9
permitted under the UN Charter [e.g., UNGA Res 46/51 (1991) which was the last resolution of
this nature adopted), to an increased criminalization of all such acts regardless of their motive,
first reflected in UN General Assembly Resolution 49/60 (1994) (paras 1 and 3) and sustained
ever since.
During these two time phases, the Security Council’s involvement in terrorism related issues
was much more limited than that of the General Assembly. For example, its declarations that
the Lockerbie bombing in 1988 (UNSC Res 731 (1992), Preamble) and Libya’s failure to
demonstrate its renunciation of terrorism through concrete action in response (UNSC Res 748
(31 March 1992), Preamble) posed threats to international peace and security were very
infrequent. That all changed following the 9/11 terrorist attacks, since when the Security
Council has arguably become more apprised of terrorism related issues than the General
Assembly. That said, the Assembly remains actively involved including through its adoption of
resolutions (see further section 5.1), the anti-terrorism treaty negotiation work of the Sixth
Committee that has resulted in the adoption of sectoral conventions examined in Module 4, as
well as the bi-ennial review of the UN CT Strategy.
A notable feature of this current third phase, of particular relevance to legal sources, has been
the Council’s increased readiness to declare that a terrorist attack (or form and manifestation
of terrorism more generally) poses a threat to (international) peace and security. (E.g. UNSC Res
1566 (2004) para. 1). One of the associated implications of this is that it has more frequently
relied upon Article 39 UN Charter in invoking its Chapter VII UN Charter powers, which can lead
to non-forcible and forcible measures under Articles 41 and 42 UN Charter respectively. The
combined effect of such Chapter VII resolutions, together with Article 25 UN Charter which
states that ‘[t]he Members of the United Nations agree to accept and carry out the decisions of
the Security Council in accordance with the present Charter’, is to make them binding upon UN
Member States.
The potential law-making significance, and reach, of such resolutions is illustrated by UN
Security Council Resolutions 1373 (2001) and 1566 (2004). The former resolution was adopted
shortly after the 9/11 terrorist attacks. One particularly notable feature was the Security
Council’s reliance on its Chapter VII powers to require states to carry out a number of specified
measures, including legislating at the national level.11 Such previously unprecedented
invocation of its Chapter VII powers attracted much discussion, especially among academics,
regarding whether or not the Security Council technically possessed (quasi-) legislative powers
under the UN Charter.
In practice, however, Resolution 1373 did not appear to have been objected to by states.
Instead their resultant practices, notably in carrying out the required legislative activity,
indicates a high level of general acceptance and compliance, which may or may not have been
linked to the specific 9/11 context. 12 Certainly, Resolution 1373 had the desired effect in terms
of strengthening counter-terrorism frameworks, especially at the national level. In terms of its

11
UNSC Res 1373 (28 September 2001), para 2(e).
12
See, eg, ‘Country Reports: Reports by Member States pursuant to Security Council resolution 1624 (2005)’,
<http://www.un.org/en/sc/ctc/resources/1624.html.
10
legal effect, the Resolution has been described in terms of forming the lynch-pin of ‘a legal
architecture emerging which may, over time, impel the crystallisation and consolidation of a
customary international crime of terrorism’.13
Security Council Resolution 1566 was adopted similarly under Chapter VII UN Charter. One of its
notable law-making features is that it provided an extensive ‘working’ definition of terrorism
(para. 3) to assist in the harmonization of counter-terrorism instruments being developed in
response to the mandate of Security Council Resolution 1373. (See further Module 4). One way
of critiquing Resolution 1566 as a legal source is as an instrument forming part of state and UN
practice that may influence the emergence of a definition of terrorism in customary
international law.

Further reading
• UN General Assembly, 'Report of the Special Rapporteur on the promotion and
protection of human rights and fundamental freedoms while countering terrorism',
A/65/258 (6 August 2010), Section III.A-B.
• M Happold, ‘Security Council Resolution 1373 and the Constitution of the United
Nations’ (2003) 16 Leiden JIL 593-610; and E Rosand, ‘The Security Council as
“Global Legislator”: Ultra Vires or Ultra Innovative?’ (2004-2005) 28 Fordham ILJ
542.
• K Nuotio, ‘Terrorism as a Catalyst for the Emergence, Harmonization and Reform
of Criminal Law’, (2006) 4 Journal of International Criminal Justice 998.
• B Saul (ed), Research Handbook on International Law and Terrorism (Edward Elgar,
2014):
• J Boulden, ‘The United Nations General Assembly and terrorism’ pp555-571.
• LM Hinojosa-Martinez, ‘A critical assessment of United Nations Security Council
Resolution 1373’, pp 626-650.
• Falk, ‘On the Quasi-Legislative Competence of the General Assembly’ (1966) 60
American Journal of International Law 782.
• Guradze, Are Human Rights Resolutions of the United Nations General Assembly Law
Making? 4, H.R.J., 453.
• E. Rosand, ‘The Security Council as “Global Legislator”: Ultra Vires or Ultra
Innovative?’ (2004-2005) 28 Fordham International Law Journal 542.
• G.N. Okeke ‘The United Nations Security Council Resolution 1373: An Appraisal of
law fare in the Fight against Terrorism’ (2014) 6(3) Journal of Law and Conflict
Resolution 39 – 47.
• Frequently Asked Questions on International Law Aspects of Countering Terrorism
- http://www.unodc.org/documents/terrorism/Publications/FAQ/English.pdf.



13
B Saul (ed), Terrorism (Hart, Oxford 2012) lxxiii.
11
5. Non-formally binding legal sources
In addition to the formally binding legal sources just examined, a number of non-formally
binding instruments (often referred to as ‘soft law’) form part of the universal framework
governing counter-terrorism, including under the UN Strategy. The fact that they are not
formally binding does not mean that they are less important; often soft law instruments can be
more influential in practice, especially on matters where wide consensus does not yet exist. In
circumstances where states may be reluctant to commit to the text of a treaty and its
accompanying obligations, they may be more willing to support and, at least to some extent,
follow a non-binding instrument. Indeed, a well drafted, detailed soft law instrument can be
much more effective in practice than, for example, a weak, poorly drafted or ratified treaty
instrument. This section considers different types of non-binding sources that from part of the
international framework, namely UN General Assembly and Security Council resolutions,
jurisprudence, UN special mandates and procedures, and instruments like codes of practice and
guidelines.

Further reading
• Abbott and Snidal, ‘Hard and Soft Law in International Governance’ (2000) 54
International Organization 421.
• Aust, ‘Limping Treaties: Lessons from Multilateral Treaty-Making’, (2003) 50
Netherlands International Law Review 243.


5.1. Resolutions and other outputs of UN organs and entities
Technically speaking, most resolutions adopted within the UN system - with the exception of
the UN Security Council as was explained in the previous section - are technically non-binding.
That said, they and other such sources, such as influential reports like the High Level Panel
Report 2004,14 can play a pivotal role in the development of legal norms which eventually result
in their incorporation within a treaty text and/or their evolution into customary international
law rules. For example, General Assembly Resolution 60/158 (16 December 2005) provides the
fundamental framework for the 'Protection of human rights and fundamental freedoms while
countering terrorism'.15 The Assembly’s annual resolutions on ‘Measures to eliminate
international terrorism’, most recently UNGA Res 71/151 (13 December 2016), which also
played an important role in shaping legal principles regarding terrorism approaches which have
subsequently been incorporated into anti-terrorism instruments.
Notably, whereas the General Assembly was more actively engaged in terrorism and counter-
terrorism related issues prior to 9/11, since then there has been a role reversal in terms of the


14
ref
15
See Pillar IV para. 1.
12
Security Council now being the more active organ on some related issues. For example,
whereas the Council it has been quick to condemn terrorist atrocities, the Assembly has often
been criticised for being weak in its response or silent in relation to rule of law violations
committed by States in the name of counter-terrorism, such as targeted killings (See Module 9).
This is equally true of other UN organs and entities concerned with upholding the rule of law in
counter-terrorism responses, such as the Human Rights Council. Once again, though not
technically binding, their outputs can be influential, including in shaping increased rule of law
compliance. For example, most years, the Human Rights Council adopts a resolution on the
theme of ‘Protection of human rights and fundamental freedoms while countering terrorism’
(most recently, A/HRC/35/L.27 (2017)). Of particular relevance to this course, the Human Rights
Council regularly expresses, and keeps under review, its ‘concern at the violations of human
rights and fundamental freedoms and of international refugee law and international
humanitarian law in the context of countering terrorism and violent extremism conducive to
terrorism’ (para. 2). It routinely emphasizes the crucial important of respecting and adhering to
the rule of law, including the international legal framework explained in this module (para. 1);
as well as the importance of strengthening international cooperation in order to strengthen
existing efforts to prevent, counter and combat terrorism (para. 4).

Further reading
• UN High Commissioner for Human Rights on the ‘Negative effects of terrorism on the
enjoyment of all human rights and fundamental freedoms’ (A/HRC/34/30 (2016).
• UN Human Rights Council, 'Protection of human rights and fundamental freedoms
while countering terrorism’ resolutions, e.g. A/HRC/35/L.27 (2017).
• UN General Assembly, 'Report of the Special Rapporteur on the promotion and
protection of human rights and fundamental freedoms while countering terrorism',
A/65/258 (6 August 2010), Section III.A.


5.2. Jurisprudence of courts and tribunals
Another important legal source specified in Article 38(1)(d) ICJ Statute is ‘judicial decisions…..as
a subsidiary means for the determination of rules of law’. Generally, such decisions are only
legally binding on parties to legal proceedings, illustrated by Article 59 ICJ Statute.
Nevertheless, the resultant case law, of national, regional and international courts and
tribunals, can be an important legal source in terms of shaping future decision-making and
informing existing as well as new laws, policies and practices, including in relation to promoting
and upholding the rule of law in counter-terrorism approaches. A number of judicial decisions
are examined throughout the course, including as case studies.

5.3. UN treaty body outputs
13
The other form of jurisprudence considered here is that of UN treaty bodies (Committees)
which derive their mandate from each of the nine core international human rights treaties,
some of which are of particular relevance to counter-terrorism. Each treaty body comprising a
committee of 18 independent experts who monitor its implementation within national legal
systems. By ratifying these treaties, State parties have accompanying obligations to take steps
to ensure that everyone within their respective states can enjoy the rights set out in treaty
texts.
There are a number of outputs of treaty bodies which can be informative to States regarding
how treaty obligations should be implemented and interpreted by them. Such outputs also turn
make up part of the wider body of counter-terrorism norms. One output is the non-binding
'concluding observations' following the review of a State party's period report regarding the
implementation of its treaty obligations. Another source is the consideration by some of these
Committees of individual complaints, alleging violations of specific treaty obligations by States,
where there is an Optional Protocol to the main treaty instrument permitting this. It is through
individual complaints that human rights are given concrete meaning. Although the process is
quasi-judicial in nature and decisions on these Communications is not technically binding, such
decisions still make up an important body of jurisprudence regarding the interpretation of
treaty provisions. The other output considered here are the general comments adopted by
Committees regarding the interpretation of, as well as difficulties associated with
implementing, treaty provisions. Once again, such outputs are influential despite their
technically non-binding nature. Throughout this course, a number of these Treaty body outputs
are drawn upon.

Tools
• Monitoring the core international human rights treaties, available at
http://www.ohchr.org/EN/HRBodies/Pages/TreatyBodies.aspx.


5.4. Special Procedures of the Human Rights Council
Another important non-binding source are the outputs of the Special procedures of the Human
Rights Council. These procedures entail independent human rights experts with mandates to
report and advise on human rights from a thematic or country-specific perspective. The system
of Special Procedures is a central element of the UN human rights machinery and covers all
human rights. As of 1 August 2017, there are 44 thematic and 12 country mandates.
With the support of the Office of the United Nations High Commissioner for Human Rights
(OHCHR), Special procedures undertake various activities such as country visits; act on
individual cases and concerns of a broader; contribute to the development of international
human rights standards; engage in advocacy; provide advice for technical cooperation and so
forth. Their tasks are defined in the resolutions creating or extending their mandates.

14
Of particular significance here, there is a dedicated Special Rapporteur on the promotion and
protection of human rights and fundamental freedoms while countering terrorism, who is
currently Fionnuala Ní Aoláin (since 1 August 2017). As with other Special procedures mandates
holders, a regular report (normally annually) is made to the General Assembly and Human
Rights Council.16 These reports can cover a broad range of human rights issues, such as
violations of key human rights instruments in relation to arrest, detention, fair trial, prohibition
against torture, and erosion of democratic freedoms; identify examples of best practice which
may be transferrable to other jurisdictions; and make recommendations regarding how the
existing legal framework for counter-terrorism responses might be further strengthened.
Although these reports, their findings and recommendations are also not binding on States
parties, nevertheless they are influential including in relation to how States parties are and
should be applying the relevant legal frameworks.
In addition, the work of a number of other Special Rapporteurs and Working Groups is relevant
to, and considered throughout, this course, e.g. the Working Group on Arbitrary Detention, and
the Special Rapporteur on extrajudicial, summary or arbitrary executions.

Tools
• For a full list of Special procedures mandate holders see
http://spinternet.ohchr.org/_Layouts/SpecialProceduresInternet/ViewAllCountryMa
ndates.aspx?Type=TM.

Video: Special Rapporteur on the promotion and protection of human rights


while countering terrorism
Watch the following short video in which the first Special Rapporteur with this mandate,
Martin Scheinen, explains his role, available at
http://www.ohchr.org/EN/Issues/Terrorism/Pages/Videos.aspx.


5.5. Codes of practice, declarations and guidelines
Another important ‘soft law’ source that informs and facilitates the realization of the UN CT
Strategy’s objectives are instruments such as guidelines, codes of practice, and standards. A
considerable range of such non-binding instruments have been developed which are
complementary to binding obligations. Though not of themselves legally binding, they
represent agreed principles that should be adhered to by all States and can provide important
guidance for law and policy makers, as well as practitioners including the courts.

16
See, for example, the latest report to the General Assembly [A/71/384 (2016), ‘Report of the Special Rapporteur
on the promotion and protection of human rights and fundamental freedoms while countering terrorism’] and to the
Human Rights Council [A/HRC/34/61].
15
Relevant instruments are examined in topics specific modules, such as the Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power (1985); Principles on the Effective
Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (1989);
Declaration on the Protection of All Persons from Enforced Disappearance (1992); and
Principles on the Effective Investigation and Documentation of Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) (1999).

6. Regional frameworks
As was noted previously (Section 3.1-3.2), regional organizations also play an integral role in
multilateral counter-terrorism cooperative efforts,17 including for the realization of the UN
Strategy’s goals. These are examined in Module 5. As with the UN system just discussed, such
regional instruments and outputs can take the form of binding regional anti-terrorism
conventions (and, in some cases, regional customary international law), as well as (non-)
binding resolutions, codes of conduct, guidance, and jurisprudence.

7. National frameworks
Ultimately, though regional and international organizations and related legal frameworks play
an important role in counter-terrorism efforts, States remain the principal actors including in
terms of implementing and enforcing these principles. It is on their territory that terrorist
related activities occur and must be responded too, and decisions are made regarding
adherence to international agreed legal standards and principles.
In addition to national constitutional rights which guarantee fundamental human rights,
democratic and rule of law protections, many states have ratified, and therefore are States
parties to, at least some of the international treaties relevant to counter-terrorism responses,
including the international anti-terrorism conventions as well as international human rights,
international humanitarian, and international refugee law treaties. The effect of ratification is
to create binding obligations for states and requires states to incorporate these within their
national legal frameworks, often following a comprehensive review of existing national law.
Each State must opt for what it considers to be the most appropriate implementation
mechanism of treaty obligations. The legal framework can be established by one of the
following means: (1) A comprehensive review of national criminal law and its relevant
provisions, followed by amending legislation; (2) The inclusion in a State’s criminal law of a
special section of its criminal code, which may be especially suited to States intending to

17
See, eg: UN Security Council (SC) Res 1631 (17 October 2005) UN Doc S/RES/1631 para 6; ‘Measures to
Eliminate International Terrorism’ resolutions, most recently UN General Assembly (GA) Res 66/105 (9 Dec 2011)
UN Doc A/RES/66/105 Preamble, and para 2 (UN Global Counter-Terrorism Strategy 2006 (UN CT Strategy) in
UNGA Res 288/60 (8 September 2006) UN Doc A/RES/288/60 para 3(d), as reiterated during the subsequent
biennial reviews of the Strategy by the UNGA in: UNGA Res 62/272 (5 September 2008) UN Doc A/RES/62/272
paras 2, and 4-5; UNGA Res 64/297 (8 September 2010) UN Doc A/RES/64/297 paras 2, and 4-5; and UNGA Res
66/282 (29 June 2012) UN Doc A/RES/282 paras 2, 4, 5, 16, 17, and 26. [update]
16
undertake broader reforms to its criminal law; and the adoption of an autonomous law
containing all the elements required by international conventions. The resultant national
legislation also forms an integral element of the overall international legal framework
governing counter-terrorism responses.
Effective criminalization of various acts associated with terrorist activities is a prerequisite to
intervention by the criminal justice system. Criminalization is not only a legal obligation for
States parties to the various instruments against terrorism but also a prerequisite for effective
international cooperation. In practice, a number of challenges commonly exist, a number of
which are considered in more detail in other modules. These can range for inconsistent national
definitions of terrorism hindering rather than facilitating international cooperation; to only
partial implementation of treaty obligations within national legislation, thereby creating gaps in
rights and procedures provided for by the treaty instruments; and, as with any international
obligation, weak implementation and enforcement of treaty obligations even when provided
for in national legislation.

Tools
For more details about the national counter-terrorism instruments of specific states,
see:
• UNODC, 'Counter-terrorism legislation database' containing counter-terrorism
conventions, national criminal laws and case laws relevant to terrorism, available at
https://www.unodc.org/unodc/en/terrorism/technical-assistance-tools.html
• UNCTED, 'Compendium of Border Control Instruments, Standards and
Recommended Practices Related to Counter-Terrorism', a comprehensive
compilation of international legal instruments, standards, recommended practices
and other guidance material, https://creator.zoho.com/uncted/bordercontrol#.
• UNCTED, Recommended International Practices, Codes and Standards, a directory to
assist Member States in their implementation of Security Council Resolution 1624
(2005), https://www.un.org/sc/ctc/resources/databases/.

Further reading
• Isaac T Sampson and Freedom C Onuoba ‘Forcing the Horse to Drink or Making
it Realise its Thirst’? Understanding the Enactment of Anti-Terrorism Legislation (ATL)
in Nigeria’ (2011) 5 Perspectives in Terrorism 33-49.
• Don John O Omole ‘Terrorism and Counter-Terrorism in Nigeria: Theoretical
Paradigms and Lessons for Public Policy (2013) 9 Canadian Social Science 96 -103.
• C Campbell and I Connolly, ‘Making War on Terror? Global Lessons from Northern
Ireland’ (2006) 69(6) Modern Law Review 935-57.


17
8. Legal Regimes
The legal regimes primarily examined throughout this course are those which the international
community has agreed form the non-negotiable basis of the international framework within
counter-terrorism efforts and responses should occur, as is reflected in the UN CT Strategy itself
as was previously discussed (Section 3). These are the UN Charter; national/international
criminal law; international human rights law; international humanitarian law; and international
refugee law. Other applicable legal regimes include, for example, law governing the use of force
(jus ad bellum). These do not form part of the current course which focuses mainly on criminal
justice responses to terrorism since these should be the normal response, with the utilization of
military force remaining exceptional.
The section introduces the key principles and sources governing international human right law,
international humanitarian law and international refugee law, elements of which recur
throughout the remainder of the course. International criminal law principles are discussed in
Module 4. Legal principles relevant to particular issues are introduced and explained within the
relevant topic specific modules.

Further reading
• Frequently Asked Questions on International Law Aspects of Countering Terrorism
- http://www.unodc.org/documents/terrorism/Publications/FAQ/English.pdf.


8.1. International human rights law
8.1.1. Overview
The UN CT Strategy, and related legal framework, is premised on the understand that
effectively combatting terrorism while respecting human rights and fundamental freedoms is
not only possible, but also necessary. Indeed, effective counter-terrorism measures and respect
for the rule of law, human rights and fundamental freedoms are complementary and mutually
reinforcing objectives which must be pursued together as part of States' duty to protect
individuals within their jurisdiction.
Though out with the scope of the current course, brief mention must be made of the many
criticisms, complaints and litigation regarding the Security Council's own practices, particularly
in relation to its sanctions regime under Security Council Resolutions 1267 (1999) especially.
From these, it is clear that the UN is itself expected to abide by fundamental human rights
standards with respect to its own institutional counter-terrorism measures.18


18
See further Security Council Committee pursuant to Resolutions 1267 (1999), 1989 (2011) and 2253 (2015)
concerning ISIL (Da'esh), al-Qaida and associated individual groups undertakings and entities, available at
https://www.un.org/sc/suborg/en/sanctions/1267.
18
The scope of international human rights law principles is far reaching, with human rights
standards and obligations lying at the heart of national, regional and international counter-
terrorism responses. There is though an underlying, recurring tension between meeting
national security imperatives whilst upholding human rights which is explored in subsequent
modules. It is of especial importance to respect and abide by human rights principles in the
context of counter-terrorism, since a common goal of terrorist activities is to seek to undermine
those very rights and fundamental freedoms. [See further e.g. Module 2]. Due to the significant
negative impact that terrorism can have on human rights, any counter-terrorism measures that
ignore or damage human rights are self-defeating and unacceptable in a society guided by the
rule of law and democratic values.
Human rights are universal values and legal guarantees that protect individuals and groups
against actions and omissions, caused primarily by State action, that interfere with fundamental
freedoms, entitlements and human dignity. As such, they are universal, interdependent and
indivisible. In terms of their sources, a number of more general 'hard' and 'soft' law ones have
been considered already. Therefore, this section focuses on human rights specific instruments.

8.1.2. Universal Declaration of Human Rights 1948
In terms of the key legal instruments, the starting point is the Universal Declaration of Human
Rights 194819 (UDHR). The text was adopted as a ‘common standard of achievement for all
peoples and nations’, which identified common goals for states to work towards realizing. The
UDHR is notable for a number of reasons. One, is that it represents the first human rights
instrument of universal relevance, despite some ongoing debates regarding its cultural
relativity. Though only 48 UN Member States existed at the time of the UDHR’s adoption by the
General Assembly, at the World Conference on Human Rights in Vienna in 1993, 171 states
reiterated the universality, indivisibility and interdependence of human rights, and reaffirmed
their commitment to the UDHR.
Notably, the UDHR incorporates civil and political with economic, social and cultural rights,
though this was not reflected in the subsequent treaty negotiations, resulting in the adoption of
two treaty instruments, the International Covenant on Civil and Political Rights 1966 (ICCPR)
and parallel International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR). This
was due to factors such as differences of opinion regarding the nature of the accompanying
obligations, the relative importance of these rights, and so forth (which had also been evident
during the negotiation of the UDHR text). Furthermore, although not of itself a binding legal
instrument as a declaration (i.e. resolution) of the General Assembly, nevertheless its text has
been a source of inspiration to hundreds of other binding and non-binding instruments, such as
national constitutions and law, UN resolutions (it is often cited in their Preambles), and over 60
regional and international human rights treaties. It has also been translated into at least 439
different languages.


19
UNGA Res 217(III) 10 December 1948.
19
Overarching principles of the UDHR include that: ‘All human beings are born free and equal in
dignity and rights’ (Article 1); and basic principles of equality and non-discrimination on such
grounds as ‘race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status’. (Article 2) Of particular relevance to counter-terrorism
efforts are Articles 4-21 which detail civil and political rights (e.g., the right to life, liberty and
security of person, prohibition against torture). Articles 22-27 then focus on economic, social
and cultural rights.
Some argue that the UDHR itself has acquired customary international law status.20 Whilst it is
certainly the case that a number of its individual provisions have such status, e.g. the
prohibition against torture, it is questionable whether the whole instrument has entered into
customary international law despite the subsequent state practice. See, e.g. the vague and
general wording of Articles 10 and 19.

Further reading
• Alston, The Universal Declaration at 35: Western and Passé or Alive and Universal, 31,
Rev. of the I.C.J., 60.
• Cumaraswamy, The Universal Declaration of Human Rights - Is it Universal? 58/59,
Rev. of the I.C.J., 118.
• Ghandhi, The Universal Declaration of Human Rights at Fifty Years: Its Origins,
Significance and Impact, 41, G.Y.I.L., 206.
• Schwelb, The Influence of the Universal Declaration of Human Rights on International
and National Law, [1959] A.S.I.L., 217.
• Von Bernstorff, The Changing Fortunes of the Universal Declaration of Human Rights:
Genesis and Symbolic Dimensions of the Turn to Rights in International Law, 19,
E.J.I.L., 903.
• Waltz, Universalising Human Rights: The Role of Small States in the Construction of the
Universal Declaration of Human Rights, 23, H.R.Q., 44.
• Harland, “The Status of the International Covenant on Civil and Political Rights in the
Domestic Law of States Parties: An Initial Global Summary Through United Nations’
Human Rights Committee’s Documents”, 22, H.R.Q., 187.
• Hevener and Mosher, “General Principles of Law and the United Nations Covenant on
Civil and Political Rights”, 27, I.C.L.Q., 596.


8.1.3. International human rights law treaties


20
Eg Separate opinion of Judge Ammoun in the Namibia case; Judge Ammoun (dicta) in United
States Diplomatic and Consular Staff in Tehran ( USA v Iran).
20
Within the UN human right system, there are nine core international human rights instruments,
a number of which have optional protocols which enable individual complaints to be made
alleging human rights violations by States parties to the core human rights treaties.

International human rights conventions relevant to counter-terrorism


• International Convention on the Elimination of All Forms of Racial Discrimination
(adopted on 21 December 1965, entered into force 4 January 1969)
• International Covenant on Civil and Political Rights (adopted on 16 December 1966,
entered into force 23 March 1976)
o Optional Protocol (adopted on 16 December 1966, entered into force 23 March
1976)
o Second Optional Protocol to the International Covenant on Civil and Political Rights,
aiming at the abolition of the death penalty (adopted on 15 December 1989, entered
into force 11 July 1991)
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (adopted on 10 December 1984, entered into force 26 June 1987)
• Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (adopted on 18 December 2002, entered into force
22 June 2006)
• International Convention for the Protection of All Persons from Enforced Disappearance
(adopted on 20 December 2006, entered into force 23 December 2006)


Complying with these obligations requires States to develop national counter- terrorism
policies, laws and practices that seek to prevent terrorism and prosecute and punish those
responsible for terrorist acts in a manner that is consistent with the promotion of and respect
for human rights. These activities must also include measures to prevent the spread of
terrorism, including measures to reinforce human rights, prevent ethnic, national or religious
discrimination, political exclusion and socio-economic marginalization, as well as measures to
address impunity for human rights violations.
In terms of approach, the starting point for counter-terrorism responses, and any related
allegations of breach of treaty obligations, is the ICCPR, both in terms of its articulated core
human rights principles (Parts I-III) and monitoring mechanisms (Part IV).
The core principles, explored in subsequent modules, include:

• The right to life;


• The right to liberty and freedom of movement;
• The right to equality before the law;
• The right to presumption of innocence until proven guilty;

21
• The right to be recognized as a person before the law;
• The right to privacy and protection of that privacy by law;
• The right to legal recourse when rights are violated;
• Freedom of thought, conscience and religion or belief;
• Freedom of opinion and expression;
• Freedom of assembly and association;
• Non-discrimination on any basis, such as race, sex, colour, national origin or language.

Videos: Introduction to human rights

• The Universal Declaration of Human Rights, Human Rights Action Center, available
at https://www.youtube.com/watch?v=hTlrSYbCbHE.
• 'What are human rights?', Youth for Human Rights, available at
http://www.youthforhumanrights.org/what-are-human-rights.html.

Further reading
• UN Special Rapporteur on the promotion and protection of human rights and
fundamental freedoms while countering terrorism, 'Evaluation of the impact of the
Office of Ombudsperson on the 1267/1989 Al-Qaida sanctions regime, and its
compatibility with international human rights norms - Ben Emerson - (2012),
A/67/396.
• UN General Assembly, 'Report of the Special Rapporteur on the promotion and
protection of human rights and fundamental freedoms while countering terrorism',
A/65/258 (6 August 2010), Section III.B.
• L Doswald-Beck, Human Rights in Times of Conflict and Terrorism (Oxford University
Press, 2011)
• W Kalin and J Kunzli, The Law of International Human Rights Protection (Oxford
University Press, 2010), Part I The Foundations of International Human Rights Law.
• H. Duffy, The ‘War on Terror’ and the Framework of International Law (Cambridge
University Press, 2nd edn 2015), chapter 7.
• J. Fitzpatrick, ‘Speaking Law to Power: The War against Terrorism and Human Rights’
(2003) 14 European JIL 241.
• B. Dickson, ‘Law Versus Terrorism: Can Law Win?’ (2005) European Human Rights
Law Review 11.
• M. D. Kielsgard, ‘A Human Rights Approach to Counter-Terrorism’ (2006) 36(2)
California Western ILJ 249.
• C. Warbrick, ‘The European Response to Terrorism in an Age of Human Rights’ (2004)
15 European JIL 989.

22
• S. von Schorlemer, ‘Human Rights: Substantive and Institutional Implications of the
War against Terrorism’ (2003) 14 European JIL 265.
• Conor Gearty, 'Situating International Human Rights Law in an Age of Counter-
Terrorism', 10 Cambridge Y.B. Eur. Legal Stud. 167, 188 (2007).
• Mark D. Kielsgard, 'Counter-Terrorism and Human Rights: Uneasy Marriage,
Uncertain Future', 19 Journal Jurisprudence 163, 178 (2013).
• Jutta Limbach, 'Human Rights in Times of Terror', 1 Goettingen J. of Int'l L. 17, 28
(2009).
• Ali Ahmed Shaglah, 'Security Council Response to Human Rights Violation in Term of
Combating Terrorism: Retrospect and Prospect', 7 Beijing L. Rev. 114, 121.
• Andrew Hudson, 'Not a Great Asset: The UN Security Council's Counter-Terrorism
Regime: Violating Human Rights', 25 Berkeley J. Int'l Law 203, 227 (2007).
• E.J. Flynn, 'The Security Council's Counter-Terrorism Committee and Human Rights', 7
Human Rights Law Review. 371,384 (2007).
• L Ginsborg, ‘The United Nations Security Council’s counter-terrorism Al-Qaida
sanctions regime: Resolution 1267 and the 1267 Committee’ in B Saul (ed), Research
Handbook on International Law and Terrorism (Edward Elgar, 2014) 608-625.
• S. von Schorlemer, ‘Human Rights: Substantive and Institutional Implications of the
War against Terrorism’ (2003) 14 European JIL 265.


8.2. International humanitarian law

8.2.1. Overview
Sometimes counter-terrorism measures take place in the context of widespread armed
violence. In such situations, questions of compliance with the body of international law which
specifically regulates armed conflict, international humanitarian law (IHL), may arise. In general,
IHL becomes applicable where violence, involving armed parties, has reach an intensity
sufficient to amount to an “armed conflict”, whether international or non-international in
nature. IHL is also applicable in circumstances of military occupation. These issues are examined
in detail in Module 6.
The focus here is on IHL as one of the principal legal regimes making up the international legal
framework governing counter-terrorism measures, as is reflected in the UN CT Strategy, in
particular its accompanying sources.

8.2.2. International humanitarian law treaties

23
There are approximately 100 treaties aimed at reducing human suffering in times of war which
make up the body of law known as IHL. These include the Hague Conventions 1899 and 1907,
as well as topic specific treaties such as the Convention on the Prohibition of the Use,
Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction 1997.
For the current purposes, the treaties of most relevance are the four Geneva Conventions of
1949 and their two Additional Protocols of 1977.

International humanitarian law treaties


There are four Geneva Conventions of 1949:
• Convention (I) for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field. Geneva (adopted 12 August 1949, entered into force 21
October 1950).
• Convention (II) for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea. Geneva (adopted 12 August 1949,
entered into force 21 October 1950).
• Convention (III) relative to the Treatment of Prisoners of War (adopted 12 August
1949, entered into force 21 October 1950).
• Convention (IV) relative to the Protection of Civilian Persons in Time of War
(adopted 12 August 1949, entered into force 21 October 1950).

Additionally, there are additional protocols to the Geneva Conventions 1949:

• Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to


the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8
June 1977, entered into force 7 December 1978).
• Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to
the Protection of Victims of Non-International Armed Conflicts (Protocol II) (adopted
8 June 1977, entered into force 7 December 1978).


The commentaries accompanying these treaty instruments, as tools for interpreting and
applying them, are currently being updated by the International Committee of the Red Cross
(ICRC), the principal guardian of these treaty instruments, to reflect 21st century interpretations
and issues. This includes developments in law and practice since the Geneva Conventions were
adopted in 1949 when some of the current warfare related issues did not exist. It is hoped that
this will assist in the Conventions being applied more effectively to modern armed conflict
situations.
Customary IHL is important too as a legal source. During an extensive ten year ICRC study of
which rules of IHL had acquired customary IHL status, 161 were identified in the findings
published in 2005. This source of law is especially important in relation to States which are not

24
parties to all six of the core IHL treaties, since they still remain bound by parallel obligations
existing under customary IHL. Most of these treaty provisions are considered by most States to
have now acquired customary IHL status.
This source of law is of especial significance in situations of internal armed conflict, which are
currently the predominant form of armed conflict, for which the treaty framework is less well
developed and detailed than for international armed conflict. Customary international law also
possesses a number of advantages over treaty law in that it is constantly involving in parallel
with State practice and opinio juris. It can adapt more easily and quickly to new challenges and
legal developments than treaty law since it does not require any length negotiation process to
agree changes.

Tools
The ICRC has a number of excellent resources on IHL, such as:

• Database on Treaties, States Parties and Commentaries, https://ihl-databases.icrc.org/
ihl.
• Updated commentaries on the Geneva Conventions 1949, see e.g.
https://www.icrc.org/ en/document/updated-commentaries-first-geneva-convention.
• Customary IHL database, available at https://www.icrc.org/customary-ihl/eng/docs/
home.
• ICRC e-learning module, What are the sources of international humanitarian law?,
available at http://www.icrcproject.org/elearning/en/ihl/M3/index.html.
• The ICRC publishes the International Review of the Red Cross with many excellent
articles on IHL related issues, available at https://www.icrc.org/en/international-
review.

Further reading
• ICRC, ‘The Geneva Conventions of 1949 and their Additional Protocols’ (1 January
2014) https://www.icrc.org/en/document/geneva-conventions-1949-additional-
protocols
• Marco Sassòli, Antoine Bouvier and Anne Quintin, How Does Law Protect in War?,
ICRC, Geneva, 2011, Chapter 4: Sources of contemporary international humanitarian
law, pp. 149–162.
• Jean-Marie Henckaerts, “Study on customary international humanitarian law: A
contribution to the understanding and respect for the rule of law in armed conflict,”
IRRC, Vol. 87, No. 857, March 2005, pp. 175–212.

25

Activity: Introduction to IHL


Watch at least one of the following videos:
• 'Rules of war (in a nutshell), ICRC 2014, available at https://www.icrc.org/en/
document/rules-war-nutshell.
• An animated history of the creation of the Red Cross Red Crescent Movement and basic
introduction to IHL: Story of an Idea, ICRC 2008, available at
https://www.youtube.com/watch?v=oIwB-Y6FUjY.

Then put the class, depending on numbers, into smaller groups to discuss some of the
issues raised:

• Where you surprised by what international humanitarian law is and is not, e.g.
that it is not primarily about humanitarian issues such as rendering assistance?
• What issue(s) struck you the most and why as you watched the film(s)?
• Reflecting on recent conflicts, during which many human rights violations have
been perpetrated, do you think that international humanitarian law has made
any difference in practice 'on the ground'? Why do you think this, giving
examples?


8.3. International refugee law

8.3.1. Overview
The other key legal regime which forms an integral part of the international legal framework
governing counter-terrorism, as is reflected in the UN CT Strategy, is international refugee law.
Even though it is not their primary mandate, a number of UN agencies have become involved in
counter-terrorism issues through necessity rather than design. This includes the UN High
Commission for Refugees (UNHCR) which is seeking to inform and influence national and
international policies and practices in relation to the current migrant crisis. At present, there
are an estimated 21.7 million refugees worldwide, of whom more than five million are Syrians
who have fled more than six years of war. In response to refugee flows, together with
accompanying fears that the crisis may be facilitating terrorist activities, some countries have
imposed restrictive border controls or visa requirements, citing national security as a reason.

26
Consequently, UNHCR has been urging States to comply with this obligations under
international refugee law.21 [cross-reference Migration course]

8.3.2. International refugee law instruments
The principal legal instruments governing protection for refugees and asylum-seekers is the
Convention relating to the Status of Refugees 1951 (adopted 28 July 1951, entered into force
22 April 1954) (1951 Refugee Convention) and its accompanying Protocol Relating to the Status
of Refugees (adopted 31 January 1967, entered into force 4 October 1967) which removed the
geographic and temporal limits of the 1951 Refugee Convention, thereby giving it universal
coverage. The 1951 Convention, as a post-Second World War instrument, was originally limited
in scope to persons fleeing events occurring before 1 January 1951 and within Europe.
In terms of scope, under its Article 1 definition, the Refugee Convention applies to all ‘refugees’
regardless of what ethnic, racial, etc groups they may come from. Under Article 1(2) of the
Refugee Convention, a refugee is defined in the following terms:
As a result of events occurring before 1 January 1951 and owing to well-founded fear of
being persecuted for reasons of race, religion, nationality, membership of a particular social
group or political opinion, is outside the country of his nationality and is unable or, owing to
such fear, is unwilling to avail himself of the protection of that country; or who, not having a
nationality and being outside the country of his former habitual residence as a result of such
events, is unable or, owing to such fear, is unwilling to return to it.
As such, a ‘refugee’ is a person requiring protection from political or other forms of
persecution.
The Convention is both a status (Articles 12-16 juridical status) and rights-based (e.g., Articles
17-19 on gainful employment, and Articles 20-24 on welfare) instrument and is underpinned by
a number of fundamental principles, most notably non-discrimination (Articles 3 and 4), non-
penalization (Articles 31 and 32) and non-refoulement (Article 33 – see further Section 8.3.3
below). This approach establishes basic minimum standards for the treatment of refugees
without prejudice to States granting more favourable treatment. The Convention’s provisions,
such as its principle of non-discrimination and access to various civil, political, social, economic
and cultural rights, should be interpreted through subsequent developments in international
human rights law, including those reflected in the ICCPR and ICESCR including their
accompanying treaty body jurisprudence. That said, asylum-seekers and refugees are not
guaranteed the full benefit of all of the Covenants’ provisions.


21
See, e.g., Security and refugee protection are complementary, says UNHCR: UNHCR protection chief Volker
Türk tells the UN Security Council Counter-Terrorism Committee that refugee protection and state security are
compatible goals (5 April 2017) http://www.unhcr.org/uk/news/latest/2017/4/58e4c56a4/security-refugee-
protection-complementary-says-unhcr.html.

27
8.3.2.1. Exceptions
Significantly for States with security-related concerns, not all persons are entitled to protection
under the international refugee system. Article 1(F) of the 1951 Convention provides that it
‘shall not apply to any person with respect to whom there are serious reasons for considering
that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as
defined in the international instruments drawn up to make provision in respect of such
crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his
admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
The rationale behind Article 1F is to exclude those whose past acts are so grave that they are
undeserving of international protection as refugees. Terrorist acts may fall within the meaning
of Article 1F(b) Refugee Convention where they constitute serious non-political crimes, and
were committed outside of the country of refuge and prior to the person’s admission to the
host country. A specific challenge here though is that no consistency of approach exists in
relation to terrorist offences in the absence of a universal definition of terrorism, making it
difficult to determine when the necessary seriousness test has been satisfied. The anti-terrorist
legislation of some States is also very broad and ambiguous meaning that it incorporates the
activities of political activists and human rights defenders who have not perpetrated significant
(or any) crimes the current international legal regime reflected in the anti-sectoral conventions
(see Module 4) would classify as ‘terrorist’ in nature. Additionally, there can be many
associated challenges in enforcing/defending this provision, such as obtaining reliable,
admissible evidence.
Furthermore, under Article 32(1) of the 1951 Convention, States parties are permitted to expel
those entitled to ‘refugee’ status on grounds of national security or public order. I.e because
they pose a significant current or future threat to national security, countries of refuge are
permitted to expel such persons in order to protect themselves. Normally, as required by
Article 32(2), a refugee should only be expelled ‘in pursuance of a decision reached in
accordance with due process of law’, though the process exceptionally may be expedited and
shortened ‘where compelling reasons of national security otherwise require’. This could extend
to circumstances where a ‘refugee’ is engaging in terrorist activities against his/her host State.
This exception must be relied upon in a proportionate manner. This means that there must be a
causal link between the refugee and the danger posed; it must be demonstrated that the
danger is sufficiently serious and likely to be realized; that the removal is a proportionate
response to the perceived danger; that removal will alleviate or even eliminate the danger; and
such mechanism is used as a last resort where no other possibilities of alleviating the danger
exist. Such safeguards are important to try to ensure that States do not expel groups or
individuals based on religious, ethnic or national origin, or political affiliation, on the mere

28
assumption that they may be involved in terrorism. Certainly, there have been abuses, such as
the misuse of asylum procedures to by-pass normal criminal due process safeguards.
All this said, as with other elements of the international legal framework, there can be inherent
tensions between security and the upholding of these rights. An overriding concern is always
that the refugee system of protection is not undermined, deliberately or otherwise, by States in
their counter-terrorism responses. As UNHCR stated in 2001, which remains true today:
Any discussion on security safeguards should start from the assumption that refugees are
themselves escaping persecution and violence, including terrorist acts, and are not the
perpetrators of such acts. Another starting point is that the international refugee
instruments do not provide a safe haven to terrorists and do not protect them from criminal
prosecution. On the contrary, they render the identification of persons engaged in terrorist
activities possible and necessary, foresee their exclusion from refugee status and do not
shield them against either criminal prosecution or expulsion.

8.3.2.2. Other instruments
Another important instrument in this context is Security Council Resolution 1373, a central
focus of which is to ensure that no avenue exists for terrorists to secure access to territory,
whether to find a safe haven, avoid prosecution or to carry out further attacks. Therefore, the
Resolution touches upon a number of issues related to immigration and refugee status. States
are required to prevent the movement of terrorists by implementing effective border controls
and to take measures to secure the integrity of identity papers and travel documents (para. 2
(g)). States are also called upon to take measures to ensure that refugee status is not granted to
asylum seekers who have planned, facilitated or participated in terrorist acts (para. 3 (f)) and to
ensure that refugee status is not abused by perpetrators, organizers or facilitators of terrorist
acts.
Those requirements do not create new obligations under international refugee law. They simply
recognize that appropriate mechanisms need to be put in place in the field of asylum, as they
have been in other fields. At the same time, care should be taken to ensure a proper balance
with the principles of refugee protection. All persons have a right to seek asylum. Public safety
and security measures should not have the effect of criminalizing refugees. The Convention
relating to the Status of Refugees, when properly implemented, is sufficient to ensure that
international refugee protection is not extended to those who have induced, facilitated or
perpetrated serious crimes, a category that includes terrorist acts.
This legal regime has been supplemented by other refugee and subsidiary protection regimes,
as well as through the progressive development of international human rights law. For
example, the UN General Assembly ‘Declaration on the Human Rights of Individuals who are
not nationals of the country in which they live’ (UN Doc 40/144, 13 December 1985). This
articulates that ‘aliens’, that is individuals who are not nationals of the State in which they are

29
present, should be afforded basic rights and protections, similar to though not as extensive as
those articulated in the 1951 Convention and 1967 Protocol.
Furthermore, several regional human rights systems (see further Module 5) have adopted
instruments:

• Refugee Problems in Africa 1969, adopted in Addis Adaba, 10 September 1969;


• The European Union Council Directive 2004/83/EC of 29 April 2004 on minimum
standards for the qualification and status of third country nationals or stateless persons
as refugees or as persons who otherwise need international protection and the content
of the protection granted, Official Journal L 304, 30/09/2004 P. 0012 – 0023;
• The Cartagena Declaration on Refugees, adopted at a colloquium held at Cartagena,
Colombia, 19-22 November 1984, while non-binding, also sets out regional standards for
refugees in Central America, Mexico and Panama.

Further reading
• UN Special Rapporteur on the promotion and protection of human rights and
fundamental freedoms while counter terrorism, A/71/384 (2015) 'Impact of counter-
terrorism measures on the human rights of migrants and refugees'.
• Office of the United Nations High Commissioner for Refugees, “Addressing security
concerns without undermining refugee protection: UNHCR’s perspective”, statement
issued on 29 November 2001, available at
www.unhcr.org/refworld/docid/3c0b880e0.html.
• UNHCR Guidelines on International Protection: Application of the Exclusion Clauses:
Article 1F of the 1951 Convention relating to the Status of Refugees (HCR/GIP/03/05),
available at http://www.unhcr.org/afr/publications/legal/3f7d48514/guidelines-
international-protection-5-application-exclusion-clauses-article.html.
• UNHCR, ‘Convention and Protocol relating to the Status of Refugees’ (Geneva,
December 2010) -
http://www.unhcr.org/uk/protection/basic/3b66c2aa10/convention-protocol-
relating-status-refugees.html.
• G Gilbert, 'Terrorism and international refugee law' in B Saul (ed), Research Handbook
on International Law and Terrorism (Edward Elgar, 2014), pp470-485.
• E Guild, 'Terrorism and migration law' in B Saul (ed), Research Handbook on
International Law and Terrorism (Edward Elgar, 2014), 486-502.


8.3.3. Principle of non-refoulement
Probably the most significant single principle of international refugee law in terms of its impact
and reach, including in a counter-terrorism context, is that of ‘non-refoulement’. The starting

30
point for analysing this principle is Article 33 of the 1951 Refugee Convention, which prohibits
the expulsion or return (‘refoulement’) of refugees in the following circumstances:
1. No Contracting State shall expel or return (“refouler”) a refugee in any manner
whatsoever to the frontiers of territories where his life or freedom would be threatened on
account of his race, religion, nationality, membership of a particular social group or political
opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom
there are reasonable grounds for regarding as a danger to the security of the country in
which he is, or who, having been convicted by a final judgment of a particularly serious
crime, constitutes a danger to the community of that country.
This provision is intended to act as a safeguard against the expulsion (or deportation,
extradition or return) of refugees, and is regarded by many to be the cornerstone principle of
the international asylum and refugee law. It extends also to situations where any attempt is
made to prevent asylum-seekers from reaching their territory in order to make an asylum
request, a practice which may also amount to refoulement.
In fact, the principle of non-refoulement is so fundamental that no reservations or derogations
may be made to it, whether under international human rights law in respect of a public
emergency, or in situations of armed conflict. Many consider the principle to be underpinned
by the prohibition of torture, which is a non-derogable principle of jus cogens, thereby
representing the highest category of legal principle.22 As a principle of jus cogens, there are
associated erga omnes obligations upon the international community, including to respect and
uphold the principle in situations where the risk of torture, ill treatment or punishment,
enforced disappearance, and extra-judicial execution exists.
Notably, the principle of non-refoulement is provided for in Article 3 Convention against Torture
1985, which prohibits the expulsion of a person to States where there are substantial grounds
for believing he would be at risk of torture or other serious human rights violations. Similarly,
the principle is reflected in and has been developed under various regional and international
human rights instruments and mechanism. Even though the principle has not been provided for
expressly within other instruments, its existence and operation is reflected within the
jurisprudence of the associated human rights mechanisms, including in interpreting the ICCPR,
the American Charter on Human Rights 1969, and the European Convention on Human Rights
1950. This has been particularly evident in relation to the prohibition against torture and other
forms of cruel, inhuman, or degrading treatment or punishment. For example, as the European
Court of Human Rights held in unequivocal terms in the case of Chahal v United Kingdom,23 and
has repeated subsequently,24 States may not prioritize or balance national security interests


22
See, e.g., Prosecutor v Anto Furundzija (Judgment) IT-95-17/1-T-10 (10 December 1998) paras 144-54; Al-
Adsani v United Kingdom (Application No 35763/99) (2002) 34 EHRR 11, paras 60-1.
23
Chahal v United Kingdom (Application No 22414/93) 23 EHRR 413, para 80.
24
See, eg, N v Finland (Application No 38885/02) (2006) 43 EHRR 12, para 159; Saadi v Italy (Application No
37201/06) ECtHR Judgment of 28 February 2008, para 138; Shamayev and others v Georgia and Russia
31
over or against the individual right to be protected from refoulement if the risk of torture or ill
treatment after removal exists. When such a risk exists, no one can be removed by a state
because he has committed serious criminal offences, or because he poses a threat to the
national security of the state or its people.
Nor has the principle of non-refoulement has not been static, but continues to evolve including
in terms of its reach within counter-terrorism contexts.25 The relationship between this and
other human rights principles is examined in subsequent modules (e.g. Module 10 on
detention).

In some circumstances, diplomatic assurances may be sought and given. These are
commitments given by the State to which the deportee or extraditee is to be transferred as to
the treatment that he or she will receive upon transfer to the receiving State. These
commitments may simply amount to written or verbal undertakings given by diplomats or
other State representatives that an individual will be tried by a civilian court and not a military
court, or that the prosecution will not seek the death penalty, or they can take the form of a
formal memorandum of understanding between the States in question containing detailed
arrangements for supervision or oversight.

Diplomatic assurances can be a very important mechanism to enable international cooperation


in criminal matters in terrorism cases, and particularly the transfer of terrorism suspects from
one jurisdiction to another. Assurances that the death penalty will not be sought or imposed
are now given as a matter of course (in particular between the United States and the member
States of the Council of Europe), and ECtHR has been prepared to uphold such assurances on a
number of occasions.26 Diplomatic assurances can also be requested and given regarding fair
trial guarantees. For example, before approving an extradition the requested government
might seek assurances that the individual concerned will be tried by a regular civilian court. This
was the case in the Al-Moayad case.

They are not, however, without controversy especially due to their non-technically legally
binding status and the associated challenges of supervising them, both by the sending State as
well as internal bodies given that task.

Case Studies: Non-refoulement and diplomatic assurances

The Ismoilov case:* Mr Ismoilov and other Uzbek businessmen were arrested in June
2005 in the Russian Federation based on an extradition request from the government of
Uzbekistan, which claimed that they had nanced the May 2005 unrest in the Uzbek city
of Andijan. They were held in detention with a view to extradition until March 2007,
when they were released. In 2006 the United Nations High Commissioner for Refugees

(Application No 36378/02) ECtHR Judgment of 12 April 2005, para 368; Daoudi v France (Application No
19576/08) ECtHR Judgment of 3 December 2009.
25
See, e.g., Omar Othman (Abu Qataba) v the United Kingdom (Application No 8139/09) ECtHR Judgment of 17
January 2012.
26
ECtHR, Babar Ahmad v. the United Kingdom, Application No. 24027/07, Judgement of 10 April 2012.

32
granted them refugee status determining that they each had a well-founded fear of
being persecuted and tortured if returned to Uzbekistan. The Russian authorities,
however, refused to give them refugee status or asylum. Instead, a deputy prosecutor
general ordered their extradition to Uzbekistan after noting that they had committed
acts of terrorism and other criminal offences. The Russian authorities also noted that
they had received diplomatic assurances from the Uzbek government that Mr Ismoilov
and the others would not be tortured or sentenced to death upon their return. The
extradition orders were upheld by the Russian courts.

Mr Ismoilov applied to ECtHR, which issued an interim measure asking the Russian
authorities to put the extradition on hold until it had considered the case. In its decision
on the merits of the case, ECtHR set out to establish whether there existed a real risk of
ill-treatment in the event of Mr Ismoilov’s and the other applicants’ extradition to
Uzbekistan It considered the following factors:

• Past ill-treatment of the individuals opposing removal: ECtHR found that most of
the applicants had left Uzbekistan in order to flee persecution on account of their
religious beliefs or of successful businesses. Some of them had experienced earlier ill-
treatment at the hands of the Uzbek authorities, others had seen their relatives or
business partners arrested and charged with participation in illegal extremist
organizations.

• General situation in the requesting country regarding the treatment of terrorism


suspects: ECtHR reviewed reports by United Nations human rights mechanisms and non-
governmental organizations, regarding both safeguards against torture in general and
specifically the treatment of persons suspected of involvement in the unrest in Andijan.

• Measures taken by the State requesting extradition to combat torture: The


Russian Federation argued that Uzbekistan had adopted certain measures designed to
combat the practice of torture ECtHR recognized that such measures had been adopted,
but found that there was no proof that those measures had returned any positive
results and any fundamental improvement in the protection against torture.

• Assurances given by the Uzbek authorities to their Russian counterparts: ECtHR


reiterated that where the practice of torture or inhuman and degrading treatment is
widespread or systematic, diplomatic assurances do not offer a reliable guarantee
against the risk of ill-treatment. Finally, ECtHR observed (para 126) that it was “not
convinced by the Government’ argument that they had an obligation under
international law to cooperate in fighting terrorism and had a duty to extradite the
applicants who were accused of terrorist activities, irrespective of a threat of ill-
treatment in the receiving country [...]. The Court is well aware of the immense
difficulties faced by States in modern times in protecting their communities from
terrorist violence. However, even in these circumstances, the Convention prohibits in
absolute terms torture or inhuman or degrading treatment or punishment, irrespective
of the victim’s conduct. The prohibition provided by article 3 [ECHR] against ill-
treatment is equally absolute in expulsion and extradition cases. Thus, whenever
substantial grounds have been shown for believing that an individual would face a real
33
risk of being subjected to treatment contrary to article 3 if removed to another State,
the responsibility of the Contracting State to safeguard him or her against such
treatment is engaged in the event of expulsion or extradition. In these circumstances,
the activities of the individual in question, however undesirable or dangerous, cannot be
a material consideration”.

Al-Moayad case:**

Mr Al-Moayad, a Yemeni national, was arrested in Germany in January 2003 on the basis
of an arrest warrant issued by the United States of America, where he was charged with
providing money, weapons and equipment to terrorist groups. The United States then
made an extradition request pursuant to the extradition treaty between Germany and
the United States Mr Al-Moayad, supported by his lawyers, opposed the extradition and
asked to be repatriated to Yemen.

The extradition treaty provided that where a person is extradited from Germany to the
United States, the United States prosecuting authorities would not seek the death
penalty. Additionally, in the course of the extradition proceedings, the United States
Embassy in Germany gave an assurance to the German authorities that Mr Al-Moayad
would not be prosecuted by a military tribunal or an extraordinary court, and would not
be detained outside the United States (i.e. he would not be detained at Guantanamo or
Bagram air field in Afghanistan).

Before the German courts, and then before ECtHR, Mr Al-Moayad claimed that in case
of extradition to the United States he would, like other terrorism suspects, be detained
at the detention facilities in Guantanamo Bay indefinitely without access to a court and
a lawyer, be subjected to interrogation techniques violating the prohibition against
torture or inhuman or degrading treatment, and be tried before a military commission.
He supported his allegations with references to reports by non-governmental
organizations and newspapers.

ECtHR noted that all the reports referred to by Mr al-Moayad related to the situation of
persons detained at Guantanamo Bay or other United States detention facilities outside
United States territory. In light of the assurances that Mr Al-Moayad would be detained
in the United States and tried by a civilian court, ECtHR found that the assurances
obtained by Germany were sufficient to avert the risks alleged by Mr Al-Moayad. In this
regard, ECtHR also accepted that the German government was justified in relying on
these assurances, as the experience showed that assurances given in extradition
proceedings between Germany and the United States had always been respected in the
past ECtHR concluded that Germany would not violate Mr Al-Moayad’s human rights by
extraditing him to the United States.

Mr Al-Moayad was extradited to the United States and tried, convicted and sentenced
to a prison term in a civilian court.

*ECtHR, Ismoilov and others v. Russian Federation, Application No 2947/06, Judgement

34
of 24 April 2008.

**ECtHR, Al-Moayad v. Germany, Application No 35865/03, Decision on Admissibility of


20 February 2007.


8.3.4. Current challenges to the legal framework
Though the increased interrelationship between asylum and refugee principles and other legal
regimes forming the core international legal framework within which counter-terrorism
responses should occur is positive on the one hand, not least in terms of promoting the
principles of each of the identified legal regimes, it is not without its associated challenges.
One significant issue is that international refugee law was not originally designed and
implemented to be a counter-terrorism tool. As such, its identification as a key legal regime
within the international counter-terrorism legal framework has the potential to impact
adversely on the protection of asylum seekers and refugees, affording such persons less rather
than equivalent or more protection. Such sentiments were captured by UNHCR in response to
increased counter-terrorism measures following the 9/11 terrorist attacks:
Equating asylum with a safe haven for terrorists is not only legally wrong and thus far
unsupported by facts, but it serves to vilify refugees in the public mind and promotes the
singling out of persons of particular races or religions for discrimination and hate-based
harassment.
Since 11 September, a number of immigrant and refugee communities have suffered attacks
and harassment based on perceived ethnicity or religion, heightening social tensions. While
there are some asylum-seekers and refugees who have been, or will be, associated with
serious crime, this does not mean that the majority should be damned by association with
the few.27
Another issue has been that some States have applied any exclusion clause to ‘terrorists’ on a
collective basis, by relying on lists of proscribed terrorists and terrorists organizations such as
those of the UN and EU, rather than making individual assessments. From a rule of law
perspective, these approaches are concerning, especially because they normally deny basic
levels of due process and are very difficult to challenge successfully including in a court of law.
(See further Module 11 Section xx). In any event, the removal of suspected terrorists under
these provisions by denying them refugee protection does not ultimately serve international
security interests; it merely protects the national security interests of the removing state, and
passes the problem to the receiving state.
That said, a number of these challenges and risks could be regarded as being at least partially
offset by the benefits of integrating international refugee law within the international legal

27
UNHCR, “Addressing Security Concerns without Undermining Refugee Protection–UNHCR’s
Perspective”, 29 November 2001, available at http://www.refworld.org/docid/3c0b880e0.html.
35
framework. It could be argued that reconciling national security interests with the right to be
protected from refoulement is best served when different fields of law are combined.
Combining refugee law with criminal law, extradition law, and human rights law can serve an
important function in terms of ensuring that anyone involved in terrorist activities is denied
refugee protection. Conversely, protecting national security interests by prosecuting individuals
in accordance with due process, safeguarding the rights and protection of the most vulnerable,
and taking other appropriate measures to protect basic human rights, ensures the continued
respect for the rule of law which should underpin all counter-terrorism responses.

8.3.4.1. Statelessness
One other topical issue which should be mentioned at least briefly here is the issue of
statelessness. Some States are considering or are already rendering some of their nationals
stateless as a means of national counter-terrorism prevention. This has been especially the case
in the context of returning Islamic State jihadists from Iraq and Syria to their countries of origin,
often with the design to carry out terrorist activities there, as has been evident in relation to a
number of recent terrorist threats and attacks. Such an approach is contrary to international
human rights law and international refugee law which aim to ensure that all people, criminal or
not, are guaranteed basic rights, which include citizenship and nationality.
The key treaty instruments are the Convention relating to the Status of Stateless Persons
(adopted 28 September 1954, entered into force 6 June 1960) and the Convention on the
Reduction of Statelessness (adopted on 30 August 1961, entered into force 13 December 1975)
which are the key international conventions addressing statelessness, further complemented
by international human rights treaties and provisions relevant to the right to a nationality. The
1954 Convention is designed to ensure that stateless people enjoy a minimum set of human
rights. It establishes the legal definition of a stateless person as someone who is “not
recognized as a national by any state under the operation of its law” (Article 1). Simply put, this
means that a stateless person is someone who does not have the nationality of any country,
contrary to Article 15 of the UDHR. The 1954 Convention also establishes minimum standards
of treatment for stateless people in respect to a number of rights, such as the right to
education, employment and housing.
Of especial significance to the current discussion is the 1961 Convention, the overarching goal
of which is to prevent statelessness and reduce it over time. It establishes an international
framework to ensure the right of every person to a nationality. It requires that states establish
safeguards in their nationality laws to prevent statelessness at birth and later in life. Article 8 of
the 1961 Convention sets out very limited situations in which states may deprive a person of his
or her nationality, even if this would leave them stateless. For example, if the person concerned
"has conducted himself in a manner seriously prejudicial to the vital interests of the State"
(Article 8(3)(ii)) which would extend to terrorism related activities. Of equal note, ‘the person
concerned [has] the right to a fair hearing by a court or other independent body’ (Article 8(4)),
which often does not happen in practice since it requires permitting the individual access to the

36
State concerned in order to carry out such proceedings. There can be associated evidential
difficulties also, as well as political and diplomatic consequences in effectively passing on the
burden to issue to another State.

Activity: The conundrum of returning jihadists


Watch/listen to some of the following selected materials which given different
perspectives on the perceived terrorist threat posed by returning ISIS jihadists to their
State of origin and the approach of some States to render them stateless in order to bar
their entry on to their territory.

• Sky News, 'Homegrown extremists more of a threat than returning IS jihadists',


https://www.youtube.com/watch?v=gBMGimt6tw4.
• PBSO NewsHour, 'To some Tunisians, returning ISIS fighters are a threat. To others,
family', available at https://www.youtube.com/watch?v=ANARQNOJp18.
• Radio: 'UK stripping more British jihadists in Syria of citizenship', available at
https://www.youtube.com/watch?v=niic7B8YJjs
• CGTN, 'Australia to strip citizenship from terrorists', available at
https://www.youtube.com/watch?v=uHiEL9qYWJo.
• The National, 'Ottowa moves to revoke citizenship of convicted terrorist', available at
https://www.youtube.com/watch?v=hda0Za9PFwo.

Hold a debate. Put the class into three groups who should adopt one of the following
perspectives: a representative of the Ministry responsible for national security; a family
wanting the jihadist to return home; and a returning jihadist. Allow a little time (e.g. 10-15
minutes) for groups to consider their key arguments and then make a short presentation
(e.g. for 5 minutes each). Issues to explore could include:

• Whether or not the returning jihadist should be allowed to re-enter his/her


country of origin;
• What security threat he/she do/does not pose to the returning State;
• Where or not the person should be rendered stateless;
• What the implications of statelessness would be, e.g. on the individual, the family,
other States; whether (dis)proportionate, and so forth.

Further reading
• A.M. Salinas de Friás, K.L.H. Samuel and N.D. White (eds.), Counter-Terrorism:
International Law and Practice (Oxford University Press, 2012):
o A-M Salinas de Frías, ‘Counter-Terrorism Responses and Obligations under
37
Asylum and Refugee Law’, chapter 5.
o K. Wouters, ‘Reconciling National Security and Non-Refoulement: Exceptions,
Exclusion, and Diplomatic Assurances’, chapter 22.
• Frederico Lenzerini; Silvia Colombo, 'The Impact of Anti-Terrorism Policies in the
Operation of the Right of Asylum: An Implosion in the realization of Human Rights
Law', 6 International Studies Journal 17, 44 (2009).
• P.A. Fernandez-Sanchez, ‘The Interplay between International Humanitarian Law and
Refugee law’ (2010) 1(2) Journal of International Humanitarian Legal Studies 329.
• A Cullen, ‘Legal Standards for the Protection of Refoulement’ (2010) 1(2) Journal of
International Humanitarian Legal Studies 397.
• C. Forcese, ‘The Capacity to Protect: Diplomatic Protection of Dual Nationals in the
War on Terror’, (2006) 17 European JIL 369.
• K. Jones, ‘Deportations with Assurances: Addressing Key Criticisms’, (2008) 57(1)
International and Comparative Law Quarterly 183.
• H Duffy, ‘Expulsion to Face Torture? Non-Refoulement in International Law’, (2008)
20 Intern’l J Refugee Law 373.
• R. Bruin and K. Wouters, ‘Terrorism and the Non-Derogability of Non-Refoulement’,
(2003) 15 Intern’l J Refugee Law 5.
• Office of the UN High Commissioner for Refugees, ‘Advisory Opinion on the
Extraterritorial Application of Non-Refoulement Obligations under the 1951
Convention relating to the Status of Refugees and its 1967 Protocol’, (2007) 5
European HRLR 484.
• Shiva Jayaraman, 'International Terrorism and Statelessness: Revoking the Citizenship
of ISIL Foreign Fighters', 17 Chicago Journal of International Law 178, 216 (2016).
• Satvinder Singh Juss, 'Terrorism and the Exclusion of Refugee Status in the UK', 17 J.
of Conflict & Sec. L. 465, 500 (2012).
• Sibylle Kapferer, Legal and Protection Policy Research Series: 'The Interface between
Extradition and Asylum', UNHCR PPLA/2003/05 (November 2003), available at
http://www.unhcr.org/uk/protection/globalconsult/3fe84fad4/5-interface-
extradition-asylum-sibylle-kapferer.html.
• UNHCR, 'Guidelines on International Protection: Application of the Exclusion Clauses:
Article 1F of the 1951 Convention relating to the Status of Refugees', HCR/GIP/03/05
(4 September 2003), available at http://www.refworld.org/pdfid/3f5857684.pdf.
• UN Human Rights Committee, General Comment No 31, 'The Nature of the General
Legal Obligation imposed on States Parties to the Covenant',
CCPR/C/21/Rev.1/Add.1326 May 2004.
• The Committee Against Torture General Comment No 1: Implementation of article 3
of the Convention in the Context of article 22 (Refoulement and Communications),
A/53/44 (16 September 1988) Annex IX.

38
Assessment questions
• Critically evaluate the current international legal framework, as reflected in the
UN Global Counter Terrorism Strategy 2006, in terms of its overall coherence and
potential gaps.
• Identify and analysis current significant law, policy and/or practice hurdles
hindering the full and effective operationalisation of the UN Global Counter
Terrorism Strategy.
• Discuss whether binding 'hard' legal obligations are always more effective in
practice than non-binding 'soft' instruments, citing concrete examples to support
your answer.
• Which of the following UN organs/entities - Security Council, General Assembly or
Human Rights Council - do you consider to be currently the most significant and
active in furthering the goals of the UN Global Counter Terrorism Strategy, and
why? Give concrete examples to support your answer.
• Often key legal principles within the UN system are referred to in terms of being
"indivisibly interrelated" and "mutually reinforcing". Critically assess these
descriptions in relation to the relationship between international human rights
law, national/international criminal law, international humanitarian law and
international refugee law.
• Terrorists don’t follow the rules so why should states and governments?’

• Critically evaluate similarities and differences between the principle of non-


refoulement in article 33(2) Refugee Convention 1951 and article 3 Convention
against Torture 1985.

39
INTERNATIONAL CRIMINAL JUSTICE APPROACH

1. Overview
In the previous module (Module 3), two principal but very different approaches to counter-
terrorism responses were identified, each of which have their own applicable legal frameworks:
a criminal justice approach (sometimes referred to in such terms as a ‘criminal justice/law
enforcement’ or ‘criminal justice/preventive’ approach), and a military approach (Module 6).
Either may be valid, depending on particular factors, such as whether counter-terrorism
responses are occurring in a peacetime context or whether the legal threshold for an armed
conflict has been crossed. That said, as it was explained in Module 3, the normal response to
terrorist threats and activities should be a criminal justice approach, which is the premise upon
which the UN Strategy is based, with an armed conflict (or ‘military’) response remaining
exceptional. Certainly, the existence of robust, effective criminal law controls on terrorism may
avoid any perceived need by national authorities to resort to military force or other exceptional
emergency measures. Those each of these approaches have different applicable legal regimes
and rules, there is some overlap, notably in respect of international human rights law and
standards.
Although criminal justice responses to terrorist activities are not new, they have taken on new
significance as a central component of global counter-terrorist efforts since the 9/11 terrorist
attacks especially. This has resulted in a multitude of related activities, including the increased
ratification of existing anti-terrorist conventions (some of which were poorly ratified prior to
9/11), drafting and implementation of new counter-terrorism laws, policies and practices,
accompanied by capacity building activities including by the UN Office on Drugs and Crime
(UNODC). In addition to their crucial role in promoting and upholding the rule of law, criminal
justice approaches form an integral element of terrorist prevention.
This module introduces key concepts, principles and instruments underpinning international
criminal justice approaches envisaged in the UN CT Strategy, including an introduction to the
universal anti-terrorism conventions and their underpinning principles to facilitate international
cooperation. It also explores some of the underpinning reasons for, and criminal justice
challenges associated with, there being no universal consensus regarding how to define
terrorism. The module ends with examining some other important challenges and topical
issues, including enforcement mechanisms and the key role played by international courts and
tribunals. Regional criminal justice systems are examined in Module 4.

2. Legal framework

2.1. Introduction

40
Normally, the criminalisation of prohibited conduct within domestic jurisdictions is a matter for
States to determine. In certain situations, however, such conduct may be internationally
criminalized where it is ‘considered a grave matter of international concern and for some valid
reason cannot be left within the exclusive jurisdiction’ of the local state.28 This is true of
terrorism, especially since its associated threats and consequences are seldom confined to one
domestic jurisdiction, but instead are generally transboundary in nature.
In contrast to other established legal regimes though, such as international human rights and
international humanitarian law, a fully coherent international criminal law regime, with
accompanying mechanisms, governing terrorism and counter-terrorism does not yet exist.
Some of the reasons for this, including elusive universal agreement on defining terrorism (see
Section 2.3.2), will be explored in this module. That said, there is some general international
consensus on significant issues, such that terrorism constitutes a heinous crime which is
directed not only at innocent targets, but is also intended to undermine society.
Currently, the principal legal framework comprises 19 sectoral treaties and protocols
addressing most forms of terrorism, based on a criminal justice model requiring State Parties to
extradite or prosecute suspected terrorists, discussed in the next section. These treaties,
together with several Security Council resolutions relating to terrorism (e.g., Resolutions 1267
(1999), 1373 (2001) and 1540 (2004) discussed in Module 3) make up what is commonly
referred to as the universal legal regime against terrorism.
The obligations and principles articulated in these international instruments should in turn be
incorporated into and enforced within domestic criminal legal systems by those States which
elect to become parties to any of the treaties and/or are otherwise bound by the effect of
Chapter VII resolutions adopted by the Security Council (see Module 3). These instruments also
work in tandem with a State's other relevant and existing legal obligations, especially those of
international human rights law.

2.2. Approach of universal anti-terrorism conventions
2.2.1. Mechanics of treaty negotiation and adoption
In terms of the mechanics, since 1994, the UN General Assembly has been particularly involved
in the development of anti-terrorism instruments, following its important and often cited
"Declaration on Measures to Eliminate International Terrorism" (A/RES/49/60), normally
adopted on an annual basis. In 1996, as a supplement to its annual Declaration (A/RES/51/210)
it established an Ad Hoc Committee, supplemented by a working group, to develop additional
treaty texts which has facilitated the negotiation and adoption of sectoral conventions after
that date, such as the International Convention for the Suppression of Terrorist Bombings 1997,
as well as the ongoing discussions and negotiations regarding the development of a
Comprehensive Convention governing international terrorism (see Section 2.3.2).


28
Hostages case (1953) 15 Ann Dig 632, 636 (US Military Tribunal at Nuremberg).
41
Each of the 19 universal legal instruments have been developed under the auspices of the UN
and its specialized agencies, in particular the International Civil Aviation Organization, the
International Maritime Organization and the International Atomic Energy Agency, and are open
to participation by all Member States. They are based on a condemnation of international
terrorism as endangering international security and world peace.
The introduction of a number of these treaties has been ad hoc in the sense that they were
negotiated and adopted in response to specific terrorist incidents, such as ship and aircraft
hijacking during the 1960s and 1970s, or to the changing nature of terrorism, such as terrorist
financing or the potential use of Weapons of Mass Destruction since the 1990s.

2.2.2. Substantive content approach
The sectoral conventions create obligations for States parties to adopt substantive criminal and
procedural criminal law measures to counter various acts of terrorism, as well as administrative
measures to combat the financing of terrorism. Their goal is to ensure that criminal justice
practitioners are equipped with effective mechanisms to lawfully prevent and punish acts of
terrorism. These measures are designed to have both a preventive and a dissuasive impact on
terrorism. The dissuasive aspect of these international instruments is based in part on an
attempt to harmonize the criminal legislation of States and to strengthen law enforcement and
criminal justice cooperation. In parallel this has a preventive objective in that effective
criminalization of terrorist behaviour by all States is meant to eliminate safe havens for
perpetrators of terrorist crimes and to facilitate international cooperation among State
agencies involved in the fight against terrorism.
In some instances, the universal instruments expressly require compliance with various aspects
of human rights law. For example, the International Convention for the Suppression of the
Financing of Terrorism includes several such requirements in addition to Article 21 which makes
it clear that the Convention does not affect other rights, obligations and responsibilities of
States under international law.29
Normally, an international instrument such as a treaty defines all of its key terms at the outset.
In the absence of a universally agreed definition of terrorism, however, the sectoral
conventions do not include definitions of terrorist offences as crimes under international law.
They simply create an obligation for States parties to criminalize the offences in question under
their domestic law, exercise jurisdiction over offenders under prescribed conditions and
provide for international cooperation mechanisms that enable States parties to either
prosecute or extradite the alleged offender. That said, some of the more recent Conventions,
notably the 1997 Suppression of Terrorist Bombings (Article 5) and the Convention for the
Suppression of Acts of Nuclear Terrorism (Article 6), make reference to the mens rea element


29
Similarly, see Article 11 of the Beijing Convention 2010 guaranteeing 'fair treatment' in accordance with human
rights law.
42
which makes terrorism distinctive, namely acts 'intended or calculated to provoke a state of
terror in the general public or in a group of persons or particular persons'.

Sectoral anti-terrorism treaties and protocols


Existing international instruments provide for the following unlawful terrorist acts:

• Acts of aircraft hijacking;

• Acts of aviation sabotage;

• Acts of violence at airports;

• Acts against the safety of maritime navigation;

• Acts against the safety of fixed platforms located on the continental shelf;

• Crime against internationally protected persons (such as the kidnapping of


diplomats);

• Acts of unlawful taking and possession of nuclear material;

• Acts of hostage-taking;

• Acts of terrorist bombings;

• Acts of funding of the commission of terrorist acts and terrorist organizations;

• The use of an aircraft as a weapon.


As can be seen from the above list of criminalized activities, the international anti-terrorism
treaties anticipate most of the foreseeable forms of terrorist activities. Any extended modes of
criminal liability (commonly referred to in terms of inchoate, ancillary, or preparatory offences),
such as attempt, conspiracies, aiding and abetting terrorist acts, generally are legislated for at
the domestic level. In drafting these extended criminal acts, it is important that States ensure
that they are sufficiently proximate to, or that a causal connection exists with, actual or
eventual commission of terrorism to ensure that they are not misused to encompass non-
terrorist activities. The same is true of other types of offences, such as those which are speech-
related (for example, incitement, advocacy or glorification or terrorism) in order to safeguard
fundamental freedoms such as those of association and expression.

2.3. Overview of universal anti-terrorism instruments
The following is a brief overview of the key issues covered by each Convention and Protocol.

43
Since the adoption of Security Council resolution 1373 (2001), which calls on States to become
parties to these international instruments, the rate of their ratification has increased markedly
compared with the position prior to the 9/11 terrorist attacks: some two-thirds of UN Member
States have either ratified or acceded to at least 10 of the 16 instruments, and there is no
longer any country that has neither signed nor become a party to at least one of them.

2.3.1. Sectoral conventions
1963 Convention on Offences and Certain Other Acts Committed On Board Aircraft Applies to
acts affecting in-flight safety (adopted 14 September 1963, entered into force 4 December
1969)
This Convention authorizes the aircraft commander to impose reasonable measures, including
restraint, on any person he or she has reason to believe has committed or is about to commit
such an act, where necessary to protect the safety of the aircraft. It requires contracting States
to take custody of offenders and to return control of the aircraft to the lawful commander.

1970 Convention for the Suppression of Unlawful Seizure of Aircraft (adopted 16 December
1970, entered into force 14 October 1971)
This Convention makes it an offence for any person on board an aircraft in flight to “unlawfully,
by force or threat thereof, or any other form of intimidation, [to] seize or exercise control of
that aircraft” or to attempt to do so. It requires parties to the Convention to make hijackings
punishable by “severe penalties”. It further requires parties that have custody of offenders to
either extradite the offender or submit the case for prosecution. States parties must also assist
each other in connection with criminal proceedings brought under the Convention.

1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation
(adopted 23 September 1971, entered into force 26 January 1973)
This Convention makes it an offence for any person unlawfully and intentionally to perform an
act of violence against a person on board an aircraft in flight, if that act is likely to endanger the
safety of the aircraft; to place an explosive device on an aircraft; to attempt such acts; or to be
an accomplice of a person who performs or attempts to perform such acts. It requires parties to
the Convention to make offences punishable by “severe penalties”. It further requires parties
that have custody of offenders to either extradite the offender or submit the case for
prosecution.

1988 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International
Civil Aviation (adopted 24 February 1988, entered into force 6 August 1989)

44
This Protocol is supplementary to the 1971 Convention for the Suppression of Unlawful Acts
against the Safety of Civil. It extends the provisions of the Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation to encompass terrorist acts at airports serving
international civil aviation.

1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected
Persons, including Diplomatic Agents (adopted 14 December 1973, entered into force 20
February 1977)
This Convention defines an “internationally protected person” as a Head of State, Minister for
Foreign Affairs, representative or official of a State or international organization who is entitled
to special protection in a foreign State, and his or her family. It requires parties to criminalize
and make punishable “by appropriate penalties which take into account their grave nature” the
intentional murder, kidnapping or other attack upon the person or liberty of an internationally
protected person, a violent attack upon the official premises, the private accommodations or
the means of transport of such person; a threat or attempt to commit such an attack; and an
act “constituting participation as an accomplice”.

1979 International Convention against the Taking of Hostages (adopted 17 December 1979,
entered into force 3 June 1983)
This Convention provides that “any person who seizes or detains and threatens to kill, to injure
or to continue to detain another person in order to compel a third party, namely, a State, an
international intergovernmental organization, a natural or juridical person, or a group of
persons, to do or abstain from doing any act as an explicit or implicit condition for the release
of the hostage commits the offence of taking of hostages within the meaning of this
Convention”.

1980 Convention on the Physical Protection of Nuclear Material (adopted 26 October 1979,
entered into force 8 February 1987)
This Convention criminalizes the unlawful possession, use, transfer or theft of nuclear material
and threats to use nuclear material to cause death, serious injury or substantial property
damage. Amendments to the Convention on the Physical Protection of Nuclear Material add
the following: They make it legally binding for States parties to protect nuclear facilities and
material in peaceful domestic use, storage and transport; provide for expanded cooperation
between and among States regarding rapid measures to locate and recover stolen or smuggled
nuclear material, mitigate any radiological consequences or sabotage and prevent and combat
related offences.

45
2005 Amendments to the Convention on the Physical Protection of Nuclear Material (adopted 8
July 2005 by consensus by States parties to the 1980 Convention)
This Convention makes it legally binding for States Parties to protect nuclear facilities and
material in peaceful domestic use, storage as well as transport. It further provides for expanded
cooperation between and among States regarding rapid measures to locate and recover stolen
or smuggled nuclear material, mitigate any radiological consequences or sabotage, and prevent
and combat related offences.

1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation
(adopted 10 March 1988, entered into force 1 March 1992)
This Convention establishes a legal regime applicable to acts against the safety of international
maritime navigation that is similar to the regimes established for international aviation. It
makes it an offence for a person unlawfully and intentionally to seize or exercise control over a
ship by force, threat or intimidation; to perform an act of violence against a person on board a
ship if that act is likely to endanger the safe navigation of the ship; to place a destructive device
or substance aboard a ship; or commit other acts against the safety of ships.

2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of
Maritime Navigation (adopted 14 October 2005, not yet in force?)
This Protocol criminalizes: the use of a ship to further an act of terrorism; the transport of
various materials with the knowledge or intent that they will be used to cause death or serious
injury or damage; the transport on board a ship of persons who have committed an act of
terrorism; and introduces procedures for governing the boarding of a ship believed to have
committed an offence under the Convention.

1988 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms
Located on the Continental Shelf (adopted 10 March 1988, entered into force 1 March 1992)
This Protocol establishes a legal regime applicable to acts against fixed platforms on the
continental shelf that is similar to the regimes established against international aviation.

2005 Protocol to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed
Platforms Located on the Continental Shelf (adopted 14 October 2005, not yet in force?)
This Protocol adapted the changes to the Convention for the Suppression of Unlawful Acts
against the Safety of Maritime Navigation to the context of fixed platforms located on the
continental shelf.

46
1991 Convention on the Marking of Plastic Explosives for the Purpose of Detection (adopted 1
March 1991, not yet in force?)
This Convention is designed to control and limit the use of unmarked and undetectable plastic
explosives (negotiated subsequent to the 1988 bombing of Pan Am flight 103). Parties are
obligated to ensure effective control, in their respective territories, over “unmarked plastic
explosives”.

1997 International Convention for the Suppression of Terrorist Bombings (adopted 15 December
1997, entered into force 23 May 2001)
This Convention creates a regime of expanded jurisdiction over the unlawful and intentional
use of explosives and other lethal devices in, into or against various defined public places with
intent to kill or cause serious bodily injury, or with intent to cause extensive destruction of the
public place.

1999 International Convention for the Suppression of the Financing of Terrorism (adopted 9
December 1999, entered into force 10 April 2002)
This Convention requires parties to take steps to prevent and counteract the direct and indirect
financing of terrorists. It commits States to hold those who finance terrorism criminally, civilly
or administratively liable for such acts. It provides for the identification, freezing and seizure of
funds allocated for terrorist activities, as well as for the sharing of the forfeited funds with
other States on a case-by-case basis. Bank secrecy is no longer adequate justification for
refusing to cooperate.

2005 International Convention for the Suppression of Acts of Nuclear Terrorism (adopted 13
April 2005, entered into force 7 July 2007)
This Convention covers a broad range of acts and possible targets including nuclear power
plants and nuclear reactors. It encompasses threats and attempts to commit such crimes or to
participate in them as an accomplice. It stipulates that offenders shall be either extradited or
prosecuted. It encourages States to cooperate in preventing terrorist attacks by sharing
information and assisting each other in connection with criminal investigations and extradition
proceedings. It deals with both crisis situations (assisting States to solve the situation) and post-
crisis situations (rendering nuclear material safe through the International Atomic Energy
Agency).

2010 Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation
(adopted 10 September 2010, not yet in force)

47
This Convention criminalizes a number of activities involving aircraft, namely: the act of using
civil aircraft as a weapon to cause death, injury or damage; the act of using civil aircraft to
discharge biological, chemical and nuclear (BCN) weapons or similar substances to cause death,
injury or damage, or the act of using such substances to attack civil aircraft; the act of unlawful
transport of BCN weapons or certain related material. Furthermore, the commission of a cyber
attack on air navigation facilities constitutes an offence. A threat to commit an offence may be
an offence by itself, if the threat is credible. Conspiracy to commit an offence, or its
equivalence, is punishable too.

2010 Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of
Aircraft (adopted on 10 September 2010, not yet in force)
This Protocol supplements the Convention for the Suppression of Unlawful Seizure of Aircraft
by expanding its scope to cover different forms of aircraft hijackings, including through modern
technological means. Furthermore, it incorporates the provisions of Beijing Convention relating
to a threat or conspiracy to commit an offence.

2014 Protocol to Amend the Convention on Offences and Certain Acts Committed on Board
Aircraft (adopted on 4 April 2014, not yet in force)
The Protocol expands the jurisdiction over offences and acts committed on board aircraft from
the State of Registration of the aircraft to the State of the Operator (where the offence is
committed on an aircraft leased without crew to a lessee whose principal place of business is,
or who permanently resides, in that State), and the State of Landing (where the aircraft has its
last point of take-off or next point of intended landing within its territory and the aircraft
subsequently lands in its territory with the alleged offender still on board). Where the State of
Registration, the State of the Operator, or the State of Landing has become aware that one or
more of the other states are conducting an investigation, prosecution or judicial proceeding in
respect of the same offence or act, that state will consult the other states with a view to
coordinating their actions.

Further reading

• Gideon Boas and Pascale Chifflet, International Criminal Justice: Principles of


international law series (Edward Elgar 2017)

• Ben Saul (ed), Research Handbook on International Law and Terrorism (2014):
o Julie Atwell, 'Aviation and international terrorism', pp57-73
o Efthumios Papastavridis, 'Maritime terrorism in international law', pp74-99
o David Fidler, 'Nuclear, chemical and biological terrorism in international law',
48
pp100-120
o Antonio Cassese, Terrorism, Politics and Law: The Achille Lauro Affair
(Princeton University Press, 1989)
o Ilias Bantekas, 'The international law on terrorist financing', pp121-135
o Samuel Witten, 'The International Convention for the Suppression of Terrorist
Bombings', pp136-150
• R Abeyratne, 'The Beijing Convention of 2010 on the suppression of unlawful acts
relating to the international civil aviation - an interpretative study' 4 Journal of
Transportation Security (2011) 131-143.
• R Abeyratne, 'The Beijing Convention of 2010: An Important Milestone in the
Annals of Aviation Security' 36 Air and Space Law (2011) 243-255.
• A Piera and M Gill, 'Will the New ICAO-Beijing Instruments Build a Chinese Wall for
International Aviation Security? Vanderbilt Journal of Transnational Law 47 (2014)
pp 145-237, available at https://www.vanderbilt.edu/wp-
content/uploads/sites/78/Piera-Final-Look_rv-ap-23-jan-2014.pdf
• AL Liput, 'An Analysis of the Achille Lauro Affair: Towards an Effective and Legal
Method of Bringing International Terrorists to Justice', 9 Fordham International
Law Journal 328 (1995), available at http://ir.lawnet.fordham.edu/ilj/vol9/iss2/5.
• GR Constantinople, 'Towards a New Definition of Piracy; The Achille Lauro
Incident' 26 Virginia Journal of International Law (1986) 723
• S Labriola, 'La gestione costituzionale del caso Achille Lauro' 22 Rivista di diritto
internazionale privato e processuale (1986) 241.
• Ben Saul, 'The Emerging International Law of Terrorism', Indian Yearbook of
International Law and Policy, 2009, pp163-192; Sydney Law School Research Paper
No. 10/108, available at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1699568##
• Ben Saul, 'Defending Terrorism: Justifications and Excuses for Terrorism in
International Criminal Law; 25 Aust. YBIL 177, 226 (2006)
• C.C. Joyner, ‘Countering Nuclear Terrorism: A Conventional Approach’ (2007) 18
European JIL 225.
• M. C. Bassiouni, International Terrorism: A Compilation of UN Documents (1972-
2001): Vol 1 & 2, (Transnational, 2002)
• M.C. Bassiouni, International Terrorism: Multilateral Conventions (1937-2001),
(2001) (Transnational, 2001)
• Nigel D. White, 'Preventive Counter-Terrorism and International Law', 18 J. of
Conflict & Sec. L. 181, 192 (2013)


49
Tools
• UNODC has developed a number of separate modules examining anti-sectoral
conventions and related frameworks as well as practice in detail, available at
http://www.unodc.org/unodc/en/terrorism/technical-assistance-tools.html#
Curriculum:
o Module 2 The Universal Legal Framework against Terrorism
o Module 3 International Cooperation in Criminal Matters: Counter-Terrorism
o Module 4 Human Rights and Criminal Justice Responses to Terrorism
o Module 5 Transport-related (civil aviation and maritime) Terrorism Offences
o Module 6 The International Legal Framework against Chemical, Biological,
Radiological and Nuclear Terrorism


2.3.2. Draft Comprehensive Convention on International Terrorism
Unlike some other international legal regimes, including those governing human rights and
armed conflict, no foundational treaty or comprehensive legal regime currently exists governing
terrorism and counter-terrorism. Though the current legal regime has enabled States to
respond to existing forms of terrorism, many believe that it would be further strengthened
through the adoption of a multi-lateral, universally acceptable treaty. Certainly, reaching
universal agreement on how to define terrorism, which would form an integral aspect of the
final text adopted, could assist in ensuring great cohesion, consistency and certainty in
approach, with associated rule of law benefits. As the High Level Panel observed in 2004:
The norms governing the use of force by non-State actors have not kept pace with those
pertaining to States……The United Nations must achieve the same degree of normative
strength concerning non-State use of force as it has concerning State use of force. Lack of
agreement on a clear and well-known definition undermines the normative and moral
stance against terrorism and has stained the United Nations image.30
Some of the current challenges, such as insufficient harmonization between national, regional
and international instruments, are discussed further below (Section 5.2). While the working
definition of terrorism provided for in Security Council Resolution 1566 (2004) offered a
temporary solution, it does not benefit from the same universal agreement or legislative
legitimacy as treaty text does. Notably, too a comprehensive convention would further clarify
the basic nature and extent of counter-terrorism, e.g. by defining the limits of a criminal justice
approach.


30
Report of the UN Secretary-General’s High-Level Panel on Threats, Challenges and Change, ‘A More Secure
World: Our Shared Responsibility’ (2004) UN Doc A/59/565 (UN High-Level Panel Report), para 159.

50
For such reasons, since 2000, when India first informally circulated a revised draft treaty text
round the Ad Hoc Committee on International Terrorism,31 UN Member States have been
negotiating the text of the draft Comprehensive Convention on International Terrorism
(Comprehensive Convention). This is intended to complement the existing framework of
universal anti-terrorism instruments and would build on existing key guiding principles. These
include the following: the importance of the criminalization of terrorist offences, making them
punishable by law and calling for the prosecution or extradition of the perpetrators; the need to
eliminate legislation that establishes exceptions to such criminalization on political,
philosophical, ideological, racial, ethnic, religious or similar grounds; a strong call for Member
States to take action to prevent terrorist acts; and an emphasis on the need for Member States
to cooperate, exchange information and provide each other with the greatest measure of
assistance in the prevention, investigation and prosecution of terrorist acts. The significance of
the Comprehensive Convention is recognised by the UN CT Strategy also, which urges States
‘[t]o becom[e] parties without delay to the existing international conventions and protocols
against terrorism, and imple[ment] them, and to make every effort to reach an agreement on
and conclude a comprehensive convention on international terrorism.’32
In terms of its relationship with the existing sectoral treaties, the Comprehensive Convention
would sit like an umbrella over these other treaties, filling in gaps not least in relation to
defining terrorist offences - both the acts (actus reus) and accompanying mental element (mens
rea). It would not supersede the sector treaties or render them redundant. Furthermore, some
commentators suggest or envisage that the new Convention should or will prevail as lex
specialis over other anti-terrorism conventions, including in the event of any normative conflict
between them. Certainly, this could be especially beneficial in relation to a number of regional
treaties which have more ambiguous, sometimes overly broad, definitions of terrorism with the
accompanying potential to undermine rather than promote and strengthen the rule of law in
those contexts. The relationship between existing sectoral anti-terrorism treaties and a
Comprehensive Convention is likely to be less problematic since the former are already
relatively narrow in scope by their focus on particular physical manifestations of terrorist
activity.
This in turn has the potential to bring further clarity to national definitions of terrorism and
therefore increased rule of law certainty in domestic criminal justice system, consistent with
the principle of legality as provided for in Article 15 ICCPR, which requires that any criminal
offence and its related punishment is predictable and accessible. Ambiguously worded anti-
terror legislation has been, and continues to be, a cause of significant concern to many,
including the UN Human Rights Committee33 as well as the UN Special Rapporteur on


31
‘Report of the Working Group: Measures to Eliminate International Terrorism’ (2000) UN Doc A/C.6/55/L.2,
Annex II. In fact, the UN’s Sixth Committee and Ad Hoc Committee had been working on a draft Comprehensive
Convention text since 1997.
32
Plan of Action, Preamble para 2(a).
33
See, e.g., Concluding Observations of the Human Rights Committee, Russian Federation, CCPR/C/RUS/CO/6, 29
October 2009, para. 3; Concluding Observations of the Human Rights Committee, United Kingdom,
CCPR/C/GBR/CO/6, 21 July 2008.
51
promoting and protecting human rights and fundamental freedoms while countering terrorism.
Some of the primary concerns are captured in the following observations which, whilst made in
relation on one State, are of broader significance:
The vaguely defined crime of collaboration [with terrorist organizations] runs the risk of
being extended to include behaviour that does not relate to any kind of violent activity”
and “the vagueness of certain provisions on terrorist crimes in the … Penal Code carries
with it the risk of a ‘slippery slope’, i.e. the gradual broadening of the notion of
terrorism to acts that do not amount to, and do not have sufficient connection to, acts
of serious violence against members of the general population.34
In terms of drafting progress, much has been made since negotiations began, with most of the
Convention text now having been agreed. What remains elusive, however, is reaching final
agreement on a definition of terrorism. Since this represents the very cornerstone of the
treaty’s text and a key objective, it cannot be finalised and adopted without reaching
agreement. That said, consensus has been reached on a number of the key associated
elements, namely that the definition should cover serious criminal acts (the main examples of
which are those found in the existing suppression treaties) against civilians with the aim of
intimidating a population or part of it, or compelling a national government or international
organization from doing or abstaining from some act; irrespective of any political, ideological,
or religious motive behind it.35

Draft Comprehensive Convention text*


The most recent version of Article 2 of the draft UN Comprehensive Convention
governing the criminal acts is as follows:
1. Any person commits an offence within the meaning of the present Convention if that
person, by any means, unlawfully and intentionally, causes:
(a) Death or serious bodily injury to any person; or
(b) Serious damage to public or private property, including a place of public use, a State
or government facility, a public transportation system, an infrastructure facility or to the
environment; or
(c) Damage to property, places, facilities or systems referred to in paragraph 1 (b) of the
present article resulting or likely to result in major economic loss;
when the purpose of the conduct, by its nature or context, is to intimidate a population,


34
Report of the Special Rapporteur on Human Rights While Countering Terrorism, Spain, A/HRC/10/3/Add.2, 16
December 2008, paras. 9 and 52.
35
See Special Tribunal for Lebanon Interlocutory Decision (n 25) para 85; similarly, UNGA Res 49/60 (9 December
1994) UN Doc A/RES/49/60 para 3.
52
or to compel a Government or an international organization to do or to abstain from
doing any act.
*Letter dated 3 August 2005 from the Chairman of the Sixth Committee addressed to
the President of the General Assembly, UN Doc A/59/894, Appendix II Draft
Comprehensive Convention against International Terrorism, 9.

2.3.2.1. Current position
Though much negotiating and drafting progress has been made, a number of significant
obstacles remain which need to be successfully overcome if the Comprehensive Convention is
ever to adopted as a treaty text. The remaining primary obstacles relate to any permissible
exceptions to the Convention’s scope.
One remaining hurdle is how to define terrorism and terrorist offences, particularly with
respect to self-determination struggles and groups. A primary tension here has been between
those States and other actors seeking for the Convention to be comprehensive in its reach with
no exceptions, even for those engaged in self-determination struggles; and those States and
entities (such as the Organization of Islamic Cooperation, League of Arab States and many Non-
Aligned States) which do not regard those persons and groups engaged in what they consider to
be legitimate self-determination struggles to be terrorists.
Another sticking point has been trying to reach agreement regarding the scope of the
Convention, with respect to the activities of both non-state actors engaged in armed self-
determination struggles as well as those of state armed forces. A particular concern here has
been to ensure that any definition of terrorism developed for criminal justice purposes does
not confuse the existing regime applicable to situations of armed conflict or other situations
when international humanitarian law applies, since this regime already has clear provisions
dealing with terrorist means and methods of warfare.
Furthermore, State sponsorship of terrorism is a lingering source of concern too, especially for
the Organization of Islamic Cooperation and non-aligned states.
In 2011, the impasse on reaching agreement on a definition and therefore on the whole treaty
text due to such contentious issues led to the General Assembly’s Sixth Committee effectively
suspending treaty negotiations until 2013 when the Ad Hoc Committee reconvened, but once
again without making tangible progress towards reaching agreement. The Ad Hoc Committee
work on the basis that nothing is agreed until everything is agreed.
Since then, there have been no sessions of the Ad Hoc Committee (2014-2017), though work is
continuing within the framework of a working group of the Sixth Committee of the General
Assembly. In its most recent resolution on the issue (Resolution 71/151 (13 Dec 2016)), the
General Assembly once again recommended the establishment of a working group with a view
to finalizing the text of the draft Comprehensive Convention, encouraging all Member States to
redouble their efforts to resolve any outstanding issues. To date, agreement remains elusive.

53

Tools
• Ad Hoc Committee established by General Assembly resolution 51/210 of 17
December 1996, available at http://legal.un.org/committees/terrorism/.
• Reports of the Ad Hoc Committee and Sixth Committee Working Group are available
at http://legal.un.org/committees/terrorism/reports.shtml.
• For a useful summary of key developments, see e.g. UN General Assembly, Sixth
Committee (Legal) - 66th session, 'Measures to eliminate international terrorism
(Agenda item 109), available at
http://www.un.org/en/ga/sixth/66/ElimIntTerror.shtml.
• The Report of the Special Rapporteur on the promotion and protection of human
rights and fundamental freedoms while countering terrorism on Ten areas of best
practices in countering terrorism (A/HRC/16/51) provides a “model definition of
terrorism” (paras. 26-28), available at
http://www2.ohchr.org/english/bodies/hrcouncil/docs/16session/A-HRC-16-51.pdf.

2.3.3. UN Security Council Resolutions
As it was noted at the outset, what is regarded as the universal legal regime against terrorism
comprises not only international treaties, but also several particularly important Security
Council resolutions relating to terrorism issues. The two of most relevance here are Security
Council Resolutions 1373 (2001) and 1566 (2004) due to their influence regarding the
development of the international legal framework. Since both Resolutions were adopted under
Chapter VII UN Charter powers, they have a binding effect on all UN Member States.
With respect to Resolution 1373, this was adopted at time when many Member States did not
have dedicated anti-terrorism legislation, including where it was not a priority national issue
having not been encountered previously. Though terrorism was considered to represent a
significant threat to national security, within many domestic legal systems it was still framed as
an ordinary crime, with no special mens rea requirement (such as a political element).
Consequently, it was commonly prosecuted in terms of the associated criminal acts (especially
murder, assault, damage to property, and arson), or within the parameters of conventional
national security or public order offences (e.g. treason, rebellion, sedition, and treachery, or by
resort to offences under emergency laws in exceptional cases).
Specifically on terrorist financing, which has taken on new significance and urgency following
the 9/11 terrorist attacks, prior to Resolution 1373 only four States were parties to the 1999
Terrorist Financing Convention. In imposing a number of extensive counter-terrorism
obligations upon States, the Resolution effectively reiterated the central requirements of the
1999 Convention. This includes that all States shall “ensure that any person who participates in
the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist
acts is brought to justice'; and that all States afford one another “the greatest measure of
assistance” in investigating and prosecuting terrorist acts. As a Chapter VII resolution, its

54
practical effect was similar to that of a State becoming a party to the 1999 Terrorist Financing
Convention, but with immediate effect and without the delay (potentially of several years)
normally experienced by States when ratifying and implementing treaty obligations within their
domestic legal systems. Notably, the positive effect of Resolution 1373, which called upon
Member States to sign and ratify the international conventions and protocols against terrorism,
is illustrated by the current ratification status of the 1999 Convention which now has 188 States
parties.
Resolution 1566 (2004) was also of law-making significance in that it not only provided a
working definition of terrorism in the absence of a universally agreed one, but it further
required Member States to take a number of preventative counter-terrorism measures,
including to refrain from supporting by any means non-State actors that attempt to develop,
acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological
weapons and their delivery systems. Furthermore, it imposed binding obligations on all States
to establish domestic controls to prevent the proliferation of nuclear, chemical and biological
weapons and their means of delivery, including by establishing appropriate controls over
related materials.

Further reading

• J Friedrichs, 'Defining the International Public Enemy: The Political Struggle behind
the Legal Debate on International Terrorism' (2006) 19 Leiden JIL 69

• M. C. Bassiouni, ‘Legal Control of International Terrorism’, (2002) 43(1) Harvard ILJ 83


• B. Saul, ‘Criminality and Terrorism’ in A.M. Salinas de Friás, K.L.H. Samuel and N.D.
White (eds.), Counter-Terrorism: International Law and Practice, chapter 6
• A Cassese, ‘The Multifaceted Criminal Notion of Terrorism in International Law’
(2006) 4 J Int Criminal Justice 933.
• M. Hmoud, ‘Negotiating the Draft Comprehensive Convention on International
Terrorism: Major Bones of Contention’ (2006) 4(5) Journal of Intern’l Crim Justice
1031.
• T. Weigend, ‘The Universal Terrorist: the International Community Grappling with a
Definition’ (2006) 4(5) Journal of Int Crim Justice 912.
• M. Halberstam, ‘The Evolution of the United Nations Position on Terrorism: From
Exempting National Liberation Movements to Criminalizing Terrorism Wherever and
by Whomever Committed’ (2003) 41 Columbia Journal of Transnat’ Law 573.
• B. Saul, ‘Definition of “Terrorism” in the UN Security Council: 1985-2004’ (2005) 4
Chinese Journal of International Law 141.

55
• E. Chadwick, Self-Determination in the Post-9/11 Era (Routledge, 2011)

• J-M. Sorel, ‘Some Questions about the Definition of Terrorism and the Fight against
Its Financing’ (2003) 14 European JIL 365.
• Tomuschat Report: ‘Added Value of a Comprehensive Convention on Terrorism’
(2005) 26(5) Human RLJ 287.
• A. Aust, ‘Counter-terrorism: A New Approach – the International Convention for the
Suppression of the Financing of Terrorism’ (2001) Max Planck Yearbook of UN Law
287.
• R. Young, ‘Defining Terrorism: the Evolution of Terrorism as a Legal Concept in
International Law and its Influence on Definitions in Domestic Legislation’ (2006) 29
Boston College International & Comparative Law Review 23
• B. Saul, Defining Terrorism in International Law (Oxford University Press, 2006)

3. Absence of a universal definition of terrorism

3.1. Different definitional approaches
Currently, many different definitions of terrorism exist, at that national, regional and
international levels. Some of these will be considered here.

3.1.1. UN system
Even within the UN system, there are effectively three working definitions of terrorism.
The first is sourced in General Assembly Resolution 49/60 (1994) which is generally regarded as
marking a shift within the Assembly from its previous approach to armed self-determination
struggles to criminalizing all:
[A]cts intended or calculated to provoke a state of terror in the general public, a group
of persons or particular persons for political purposes are in any circumstance unjustifiable,
whatever the considerations of a political, philosophical, ideological, racial, ethnic,
36
religious or any other nature that may be invoked to justify them.
A particular strength of this definition is that it was adopted by consensus, without a vote, by
the General Assembly. Therefore, it enjoys high levels of legitimacy as the outcome of the fully
representational forum of the General Assembly and remains influential. As an output of the
General Assembly, however, it is not immediately binding in nature. Therefore, some would
regard its influence as representing political rather than legal agreement on the key elements of

36
UNGA Res 49/60 (9 December 1994) UN Doc A/RES/49/60 para 3.

56
terrorist crimes. This is suggested by the ongoing challenges to agree a universal definition in
the context of the draft Comprehensive Convention negotiations. Certainly, Resolution 49/60
itself recognised the need for the progressive development and codification of terrorism norms
(para 12). For such reasons, though the definition remains important and influential, including
through the annual adoption by the General Assembly of its ‘measure to eliminate terrorism’
resolutions, the issue as to whether or not this definition has now acquired customary
international law status is not settled.
The next definition of terrorism to be adopted within the UN system was the one articulated by
the Security Council in its Resolution 1566 (2004), which aimed to assist States in meeting their
obligations under Security Council 1373 (2001) to take domestic legislative action. It defined
terrorism as:
…. criminal acts, including against civilians, committed with intent to cause death or
serious bodily injury, or taking of hostages, with the purpose to provoke a state
of terror in the general public or in a group of persons or particular persons, intimidate a
population or compel a government of an international organization to do or to abstain
from doing any act, which constitute offences within the scope of and as defined in
the international conventions and protocols relating to terrorism, are under no
circumstances justifiable by considerations of a political, philosophical, ideological,
racial, ethnic, religious or other similar nature, and calls upon all States to prevent
such acts and, if not prevented, to ensure that such acts are punished by penalties
consistent with their grave nature.37
This definitional approach embedded, but also further developed, the earlier definition adopted
within General Assembly Resolution 49/60. In contrast, however, questions have arisen
regarding the exact status of the definition in Resolution 1566. Adopted as a Chapter VII
resolution, the resolution is technically binding on all Member States, but there is uncertainty
as to whether or not this extends to an obligation to accept and implement a definition. As with
Security Council Resolution 1373, though there was some initial debate as to whether or not
the Security Council possesses (quasi-) legislative powers under the UN Charter,38 in practice
neither resolution appears to have been objected to by states. Instead, the resultant State
practice suggests a level of general acceptance and compliance.39
In contrast to the General Assembly, however, the Security Council does not enjoy the same
levels of legitimacy since it comprises only 15 rather than all Member States. The implications
of this are especially pronounced in relation to an issue as politically and legally sensitive as

37
UNSC Res 1566 (8 October 2004) UN Doc S/RES/1566 para 3.
38
See, eg, M Happold, ‘Security Council Resolution 1373 and the Constitution of the United Nations’ (2003) 16
Leiden JIL 593-610; and E Rosand, ‘The Security Council as “Global Legislator”: Ultra Vires or Ultra Innovative?’
(2004-2005) 28 Fordham ILJ 542.
39
See, eg, ‘Country Reports: Reports by Member States pursuant to Security Council resolution 1624 (2005)’,
<http://www.un.org/en/sc/ctc/resources/1624.html> accessed 31 January 2012.

57
defining terrorism. That said, Resolution 1566 remains important, representing at least a ‘soft’
law definition which has influenced and assisted in the harmonization of definitions of
terrorism within national laws. It has been significant too in terms of closing gaps regarding
such offences within domestic criminal frameworks,40 and forms part of the body of norms
influencing how terrorism offences are categorised and dealt with.
The third definition currently in existence is the draft definition, still under negotiation, in the
context of the draft UN Comprehensive Convention (article 2, consider above in Section 2.3.2).
Once again, some important differences can be seen between this definition and previous ones.
On the one hand, it is clearer in scope than the General Assembly Declaration and Security
Council Resolution 1566 in expressly referring to property damage. On the other hand, it is less
extensive in articulating the grounds which will never justify terrorist acts. This may be
attributable to the fact that as a potentially legally binding treaty the draft Comprehensive
Convention is subject to a rigorous negotiation process that resolutions are not.


3.1.1.2. Customary definition of terrorism
One final observation here relates to whether or not at least a partial customary definition of
terrorism exists, as was suggested in 2011 by the Special Tribunal for Lebanon. It sought to
declare and thereby formalize the existence (since at least 2005) of a definition of
‘transnational terrorism’ in customary international law.41
In doing so, the Tribunal relied primarily upon related UN policies, practices, and norms,
including those of the General Assembly, as well as national and international jurisprudence.
Furthermore, it was stated that the necessary substantive (objective and subjective) elements
for two other classes of terrorist criminal conduct also existed within international law: war
crimes committed in the course of international or non-international armed conflict; and those
acts crossing the threshold to constitute crimes against humanity, whether perpetrated during
peace time or armed conflict.
While the existence (although not necessarily the interpretation) of the latter two categories of
offence are non-contentious and well established within international law (including treaties
and related jurisprudence), the existence of a peacetime international crime within customary
international law is not generally regarded as being settled. Certainly, the three existing
definitions of terrorism just considered do not suggest the existence of a customary definition.
Notably, the 1994 Declaration requires a political purpose, but the draft UN Comprehensive
Convention does not. Meanwhile Security Council Resolution 1566 focuses on reiterating


40
See further, eg, R Young, ‘Defining Terrorism: the Evolution of Terrorism as a Legal Concept in International Law
and its Influence on Definitions in Domestic Legislation’ (2006) 29 Boston College Int’l & Comp LR 23.
41
Special Tribunal for Lebanon (Appeals Chamber), Interlocutory Decision on the Applicable Law, STL-11-01/I (16
February 2011) (Special Tribunal for Lebanon Interlocutory Decision), para 85.
58
sectoral offences, does not incorporate all forms of terrorism, and does not require any special
intent or motive. The Tribunal’s ruling, together with its underlying legal basis, were
significantly criticised and not widely accepted, including for not meeting the necessary
threshold tests in terms of state practice and opinio juris. As leading commentator, Ben Saul,
noted at the time:
While there are numerous sector-specific treaties which address particular criminal means
and methods used by terrorists, none of [the treaties referred to by the Special Tribunal] –
individually or collectively – contains a comprehensive definition of terrorism or
establishes a general international crime of transnational ‘terrorism’. At most, specific
offences in some treaties may have entered into customary law, such as aircraft hijacking
or hostage taking. In the absence of a general crime of terrorism in treaty law, no parallel
customary rule can arise out of those treaties. The sectoral approach was adopted
precisely because states could not reach agreement on ‘terrorism’ as such.42
Indeed, as Saul further comments, though the Tribunal sought to rely on regional anti-terrorism
conventions as partial evidence of support for its findings, a correct reading of them in fact reveals that
no agreement exists regarding a common definition of terrorism.43

Further reading

• B Saul, ‘Legislating from A Radical Hague: The UN Special Tribunal for Lebanon
Invents an International Crime of Transnational Terrorism’ (2011) 24 Leiden Journal
of International Law 677

• K Ambos, ‘Judicial Creativity at the Special Tribunal for Lebanon: Is There a Crime of
Terrorism under International Law?’ (2011) 24 Leiden Journal of International Law
655

• M Gillett and M Schuster, ‘Fast-track Justice: The Special Tribunal for Lebanon
Defines Terrorism’ (2011) Journal of International Criminal Justice (Advance Access
published on 18 August 2011)

• MJ Ventura, ‘Terrorism According to the STL’s Interlocutory Decision on the


Applicable Law: A Defining Moment or a Moment of Defining’ Journal of
International Criminal Justice 9(5), 1021-1042

• MP Scharf, ‘Defining Terrorism as the Peacetime Equivalent of War Crimes:


42
B Saul (ed), Terrorism, Hart (Oxford 2012) lxxi.
43
B Saul (ed), Terrorism, Hart (Oxford 2012) lxxi.
59
Problems and Prospects’ (2006) 36 Case Western Reserve JIL 359.

• M Di Filippo, ‘Terrorist Crimes and International Co-operation: Critical Remarks on


the Definition and Inclusion of Terrorism in the Category of International Crimes’
(2008) 19 EJIL 533

• E. van Suedregt, ‘Introduction: The STL Interlocutory Decision on the Definition of


Terrorism – Judicial Ingenuity or Radicalism?’ (2011) 24(3) Leiden J Int Law 651.


3.1.2. Regional definitional approaches
The implications of the absence of a universal definition of terrorism are also very apparent in
regional anti-terrorism contexts. In particular the variation in definitional approaches can pose
challenges for counter-terrorism cooperation efforts, notably the harmonisation of national
anti-terrorism legislation to the extent that regional definitions are reflected within national
ones. These definitions represent a mixture of those that were adopted prior and subsequent
to Security Council Resolution 1373.
A careful reading of the regional definitions below reveals some important differences between
them. For example, the differing approaches of regional organisations to whether or not
persons and groups engaged in armed national liberation or self-determination struggles should
be exempt from their definitional approaches to terrorism. A significant concern here is that
such an exemption has the potential to create impunity gaps for any terrorists who seek to
justify their activities within the scope of its exemptions, for example violence committed as
part of a struggle against any occupation, aggression, or domination by foreign forces. Another
problematic issue has been the breadth in scope, and drafting ambiguities, which can pave the
way for non-terrorist crimes to fall within the scope of such conventions. Regional conventions
falling into this category are as follows:

The Arab Convention for the Suppression of Terrorism (adopted 22 April 1998, entered into
force 7 May 1999)
Article 1(2) ‘Any act or threat of violence, whatever its motives or purposes, that occurs in the
advancement of an individual or collective criminal agenda and seeking to sow panic among
people, causing fear by harming them, or placing their lives, liberty or security in danger, or
seeking to cause damage to the environment or to public or private installations or property or
to occupying or seizing them, or seeking to jeopardize a national resources.’
Article 2(a) ‘All cases of struggle by whatever means, including armed struggle, against foreign
occupation and aggression for liberation and self-determination, in accordance with the
principles of international law, shall not be regarded as an offence. This provision shall not
apply to any act prejudicing the territorial integrity of any Arab State.’

60
OIC Convention on Combating International Terrorism (adopted 1 July 1999, entered into force
7 November 2002)
Article 1(2) ‘……any act of violence or threat thereof notwithstanding its motives or intentions
perpetrated to carry out an individual or collective criminal plan with the aim of terrorizing
people or threatening to harm them or imperiling their lives, honor,44 freedoms, security or
rights or exposing the environment or any facility or public or private property to hazards or
occupying or seizing them, or endangering a national resource, or international facilities, or
threatening the stability, territorial integrity, political unity or sovereignty of independent
States.’
Article 2(a): ‘Peoples struggle including armed struggle against foreign occupation, aggression,
colonialism, and hegemony, aimed at liberation and self-determination in accordance with the
principles of international law shall not be considered a terrorist crime.’

OAU Convention on the Prevention and Combating of Terrorism (adopted 14 July 1999, entered
into force 6 December 2003)
Article 1(3) “Terrorist act" means:
(a) any act which is a violation of the criminal laws of a State Party and which may
endanger the life, physical integrity or freedom of, or cause serious injury or death to, any
person, any number or group of persons or causes or may cause damage to public or
private property, natural resources, environmental or cultural heritage and is calculated
or intended to:
(i) intimidate, put in fear, force, coerce or induce any government, body, institution, the
general public or any segment thereof, to do or abstain from doing any act, or to adopt or
abandon a particular standpoint, or to act according to certain principles; or
(ii) disrupt any public service, the delivery of any essential service to the public or to
create a public emergency; or
(iii) create general insurrection in a State;
(b) any promotion, sponsoring, contribution to, command, aid, incitement,
encouragement, attempt, threat, conspiracy, organizing, or procurement of any person,
with the intent to commit any act referred to in paragraph (a) (i) to (iii).
Article 3
1. Notwithstanding the provisions of Article 1, the struggle waged by peoples in
accordance with the principles of international law for their liberation or self-


44
The profound significance of such virtues as ‘honour’, together with the implications of humiliation, are
examined in Chapter 8.

61
determination, including armed struggle against colonialism, occupation, aggression and
domination by foreign forces shall not be considered as terrorist acts.
2. Political, philosophical, ideological, racial, ethnic, religious or other motives shall not be
a justifiable defence against a terrorist act.

The general approach of other regional conventions, which do not include armed struggle
exceptions, has been not to develop a regional definition of their own, but rather to cross-refer
to the approach of the sectoral anti-terrorism conventions which do not define terrorism but
rather refer to the criminal elements of particular offences. Regional conventions falling into
this category are:

Council of Europe Convention on the Prevention of Terrorism (adopted 16 May 2005, entered
into force 1 June 2007)
Article 1(1) For the purposes of this Convention, "terrorist offence" means any of the offences
within the scope of and as defined in one of the treaties listed in the Appendix. [ie all of the
sectoral conventions)
Note by Secretariat – ‘The activities of armed forces during an armed conflict, as those terms
are understood under international humanitarian law, which are governed by that law, are not
governed by this Convention, and the activities undertaken by military forces of a Party in the
exercise of their official duties, inasmuch as they are governed by other rules of international
law, are not governed by this Convention.’

Inter-American Convention against Terrorism (adopted 3 June 2002, entered into effect 6 July
2003)
Article 2(1) ‘For the purposes of this Convention, “offenses” means the offenses established in
the international instruments listed below’ [cross-referring to those sectoral conventions in
existence at the time of its adoption].

A similar approach to the Inter-American Convention is taken by SAARC Regional Convention on
Suppression of Terrorism (Article 1) and ASEAN Convention on Counter Terrorism (Article II)

A hybrid approach is adopted by the Shanghai Convention on Combatting Terrorism,
Separatism and Extremism (adopted 15 June 2001, entered into effect 29 March 2003). Article
1(a) cross refers to existing anti-sectoral treaties. In Article 1(b), however, a regional definition
is also given, reflecting regional priorities:

62
[A]ny other act intended to cause death or serious bodily injury to a civilian, or any
other person not taking an active part in the hostilities in a situation of 2 armed conflict
or to cause major damage to any material facility, as well as to organize, plan, aid and
abet such act, when the purpose of such act, by its nature or context, is to intimidate
population, violate public security or compel public authorities or an international
organization to do or to abstain from doing any act, and prosecuted in accordance with
the national laws of the Parties.
Regional anti-terrorism instruments are examined in more detail in Module 5.

4. Principles and mechanisms underpinning the sectoral conventions
An important and notable feature of the sectoral conventions is that they are premised on
common core legal principles and related mechanisms aimed at facilitating international
counter-terrorism cooperation.
Notably, these govern mutual legal assistance, extradition, transfer of prisoners, transfer of
proceedings in criminal matters, international cooperation for the purposes of confiscation of
criminal proceeds and asset recovery. These mechanisms, while essentially governed by
domestic law, are supported by regional or international agreements or arrangements,
including the universal legal instruments against terrorism, the Organized Crime Convention
and the United Nations Convention against Corruption. [cross refer other E4J courses on
organised crime and corruption] All these mechanisms are evolving rapidly to keep pace with
new technologies. In order for these principles and mechanisms to effective in practice, it is
important for them to be fully implemented within national legal systems.

4.1. Obligation to extradite or prosecute
The principle of aut dedere, aut judicare translates into the alternatives of extradite or
prosecute, which is an obligation expressed in the universal instruments against terrorism and
is implicit in Security Council resolution 1373 (2001). The principle expresses the common
objective of States in fighting serious forms of crime and sets out the alternatives for the
requested State whenever the extradition of an individual present in its territory is requested: a
State must either hand over the person concerned to the requesting State or investigate,
prosecute and try the case itself (as is appropriate on the facts and evidence, and in accordance
with national law and procedures). A key underpinning, guiding principle here is that in
determining whether or not to investigate, prosecute or extradite persons suspected of having
perpetrated terrorist offences, any decisions made and proceedings conducted must be
undertaken in good faith.
The principle of “extradite or prosecute” requires States to assert their jurisdiction, which can
be done in a number of ways: the principle of territorial jurisdiction, either ordinary or
extended, notably to flag vessels and State-registered aircraft; and the nationality principle, in

63
particular active nationality, establishing the jurisdiction of the State whose national is
suspected of committing the offence, but also passive nationality, whereby the State of which
the victim is a national has jurisdiction to prosecute the offender. Furthermore, some
conventions allow States to create optional jurisdiction over an alleged offender who is a
habitual resident of that State or if the offence involves State interests.
While the sectoral treaties provide a legal framework for the prosecution and punishment of
terrorists, they suffer from certain structural weaknesses, such as lack of supervision and
prosecutorial discretion for states holding any suspects, which may lead to competing claims to
jurisdiction and ultimately to lack of enforcement.
As the Lockerbie bombing case demonstrates, the system is not immune to politicization.

4.2. Extradition
Extradition is the procedure whereby a sovereign State, referred to as the “requested State”,
agrees to hand over an individual to another sovereign State, referred to as the “requesting
State”, for prosecution or, if that person has already been tried and convicted, for enforcement
of the sentence.
Under the requirement of dual criminality, extradition is possible only when the act is
punishable under the law of both the requested and the requesting States. The name of the
offence and the elements that make it criminal need not be precisely the same, provided that
the suspect could be punished for the act in both States. For that reason, the criminalization of
defined terrorist acts and their incorporation into national criminal law is a central element of
the relevant universal legal instruments against terrorism in order to facilitate such
international cooperation.
As noted above, when a person accused of having committed a terrorist offence is present in
the territory of a State party and the authorities of the State party are satisfied that the
circumstances so warrant, the State must, in accordance with its law, take the person into
custody or take other measures to enable any criminal or extradition proceedings to be
instituted. That is to be done independent of whether the crime was committed on its territory
and whether the State has received a request for provisional arrest pending a formal request
for extradition. The universal instruments against terrorism do not make the extradition of the
offender mandatory but define it as one possible course of action. The obligation to submit the
individual to prosecution depends on a decision not to extradite.
Recent trends in extradition treaties have focused on relaxing the strict application of certain
grounds for refusal of extradition requests. In addition, the principle of mutual recognition is
increasingly perceived as a means of improving judicial cooperation between countries with
different legal systems and replacing cumbersome procedures with swift procedures that
recognize the integrity of other legal systems. This can take various forms, such as bilateral
agreements between States, or regionally illustrated by the European arrest warrant.

64

4.3. Mutual legal assistance
With the globalization of crime, national authorities increasingly need the assistance of
authorities in other countries for the successful investigation, prosecution and punishment of
wrongdoers, in particular those who have committed international terrorist offences which is
often transnational in nature. This necessity is reflected in the text and related obligations of
Security Council Resolution 1373. For example, relevant evidence may exist in a number of
jurisdictions. It may be too that one State is in a stronger position to prosecute terrorist
suspects compared with another (e.g. due to the presence of evidence and witnesses), thereby
increasing the likelihood of a successful prosecution.
To achieve that objective, States most frequently make use of bilateral and multilateral treaties
on mutual legal assistance in criminal matters, in addition to existing informal cooperation
mechanisms. Those instruments assist the work of criminal justice officials in several ways. For
instance, they enable the authorities to obtain evidence abroad, through a procedure that is
admissible under their domestic law, in order to summon witnesses, trace individuals, secure
the production of documents and other evidentiary items and issue warrants.
Offences defined in the universal instruments against terrorism may not, for the purposes of
mutual legal assistance, be regarded as political offences, as offences related to political
offences or as offences inspired by political motives. Accordingly, a request for mutual
assistance based on any such offence may not be refused solely on such grounds.

Case Study: Lockerbie bombing*

This case study raises many interesting issues questions, including regarding the relationship
between sectoral anti-terrorism conventions - in this case, the Montreal Convention 1971 - and
Chapter VII resolutions of the UN Security Council; the potential influence of international politics
in criminal justice approaches; challenges (legal, diplomatic, practical, etc) associated with
investigating and prosecuting complex cases such as terrorist attacks; as well as the paucity of
review mechanisms for Security Council decision-making.

On 21 December 1988, Pan Am Flight 103 exploded above the Scottish town of Lockerbie, killing
all 259 passengers on board as well as 11 people on the ground; others were injured and
properties were damaged. Following extensive investigation, in 1990 the cause of the explosion
was attributed to a bomb and was traced back to two Libyan suspects, Abdelbeset Ali Mohamed
al Megrahi and Al Amin Khalifah Fhimah. In 1991, the two suspects were indicted for 270 counts
of murder by UK and US authorities. The principal states involved - the UK, US and Libya - were all
States parties to the Montreal Convention 1971.

65
Libya refused to hand over the suspects, stating that as provided for under the Montreal
Convention 1971, it had elected to investigate and prosecute the two suspects itself. The States of
nationals who were killed, especially the UK and US, were concerned about the impartiality,
effectiveness and bona fide nature of any such criminal investigation and proceedings, especially
since many considered the suspects to be Libyan intelligence officials. Therefore, as Permanent 5
members of the Security Council, they persuaded the Council to adopt two Security Council
Resolutions: first, Resolution 731 (21 January 1992) putting political pressure on Libya to extradite
the suspects as sought by the UK and US; and Resolution 748 (15 April 1992) imposing sanctions
on air travel and arms sales to Libya when Libya continued to refuse to extradite the suspects. The
effect of these Chapter VII resolutions was to override the treaty obligations of the Montreal
Convention 1971.

After several years of intensive political negotiations, on 5 April 1999, Libya handed over the
suspects to the United Nations to be tried by a Scottish Court convened in the Netherlands. In
response, Security Council sanctions are suspended immediately. On 31 January 2001, al Megrahi
is found guilty and sentenced to a minimum of 27 years imprisonment; Fhimah is found to be not
guilty. On 14 March 2002, al Megrahi loses his appeal against his murder conviction.

In 2003, President Gadhafi agrees to pay $2.7 billion in compensation to the relatives of those
killed, and in June 2004, the US resumes diplomatic relations with Libya. in August 2009, al
Megrahi is returned to Libya on compassionate grounds with terminal cancer and dies in May
2012. In October 2015, both the UK and US announce that they believe that other suspects were
involved in the plane's bombing; some have doubted al Megrahi's innocence. Investigations
continue.

*Lockerbie Cases [1992] ICJ Rep 126

Case Studies:

Ukraine v. Russian Federation:*

As reported in the International Court of Justice’s Press Release No. 2017/15 of 19 April 2017,
“[o]n 16 January 2017, Ukraine instituted proceedings against the Russian Federation with
regard to alleged violations of the International Convention for the Suppression of the Financing
of Terrorism (ICSFT) and the International Convention on the Elimination of All Forms of Racial
Discrimination (CERD). On the same day, Ukraine submitted a request for the indication of
66
provisional measures, aimed at safeguarding the rights it claims under those two conventions
pending the Court’s decision on the merits”.*

The Court recalled in the same Press Release that “[…] for the purposes of the request for the
indication of provisional measures, Ukraine invoke[d] its rights and the respective obligations of
the Russian Federation solely under Article 18 of the ICSFT. This Article provides in substance
that States parties are obliged to co-operate to prevent the financing of terrorism, i.e., the
provision or collection of funds with the intention that they should be used or in the knowledge
that they are to be used in order to carry out acts of terrorism as defined in Article 2 of the
Convention. Consequently, for the purposes of a request for the indication of provisional
measures, a State party to the Convention may avail itself of the rights under Article 18 only if it
is plausible that the acts complained of constitute acts of terrorism. The Court observes that the
acts to which Ukraine refers have given rise to the death and injury of a large number of
civilians. However, in order to determine whether the rights for which Ukraine seeks protection
are at least plausible, it is necessary to ascertain whether there are sufficient reasons for
considering that the elements set out in Article 2, such as intention and knowledge, as well as
the element of purpose, are present. The Court is of the view that, at this stage of the
proceedings, Ukraine has not put before it evidence which affords a sufficient basis to find it
plausible that these elements are present. Therefore, it concludes that the conditions required
for the indication of provisional measures in respect of the rights alleged by Ukraine on the basis
of the ICSFT are not met”. Proceedings continue.

Kazakhstan holds its nationals criminally responsible for participation in the ongoing armed
conflict in Ukraine:

Kazakhstan reportedly** held several of its nationals criminally responsible for participation in
the ongoing armed conflict*** in Ukraine. In December 2014, Evgeny Vdovenko was sentenced
by the Astana city court to five years’ deprivation of liberty for participation in the armed
conflict in Ukraine on separatists’ side. In April 2015, a 27-year old resident of Atyrau was
convicted under Article 172 of Kazakhstan’s Criminal Code, and sentenced to a three-year prison
term. In August 2015, the Ust-Kamenogorsk city court sentenced Ivan Dubovsky, conditionally,
to a three-year prison term. According to the materials of the case, Mr Dubovsky did not
participate in hostilities but rendered medical aid to the wounded.

* “The Court finds that Russia must refrain from imposing limitations on the ability of the
Crimean Tatar community to conserve its representative institutions, including the Mejlis, and
ensure the availability of education in the Ukrainian language”, ICJ Press Release No. 2017/15,
available at: http://www.icj-cij.org/files/case-related/166/19412.pdf (last visited 13 November
2017).

** See Radio Azattyk, “Zaverbovalsya k boevikam v Donbass, popalsya – v tyurmu” [Recruited by

67
the Donbas fighters, got apprehended – go to jail], 12 August 2015, available at:
https://rus.azattyq.org/a/osuzhdennye-za-uchastie-v-voyne-v-donbasse/27182916.html (last
accessed 15 November 2017).

*** See Article 172 of the Criminal Code of the Republic of Kazakhstan (“Participation in foreign
armed conflicts”): “Intentional unlawful participation of a national of the Republic of Kazakhstan
in an armed conflict or hostilities in the territory of a foreign State in the absence of attributes of
mercenarism shall be punishable by deprivation of liberty for a term between five and nine
years”.

Further reading

• M. Plachta, ‘The Lockerbie Case: The Role of the Security Council in Enforcing the
Principle Aut Dedere Aut Judicare’, (2001) 12 European JIL 125.

• A. Aust, ‘Lockerbie: The Other Case’, (2000) 49(2) International and Comparative Law
Quarterly 278.

• OSCE, Background Paper on Extradition and Human Rights in the Context of Counter-
Terrorism, ODIHR.GAL/22/07 (20 March 2007),
http://www.osce.org/odihr/24392?download=true

• J.R. Schwartz, ‘Dealing with a Rogue State: The Libyan Precedent’ (2007) 101 American
JIL 553.

• M.C. Bassiouni and E. Wise, Aut Dedere Aut Judicare: The Duty to Prosecute or
Extradite in International Law (Martinus Nijhoff, 1995).

• P. Romaniuk, Multilateral Counter-Terrorism: The Global Politics of Cooperation and


Contestation (Routledge, 2010)

Activity: Moot before the International Court of Justice


This moot exercise is based upon, but further develops aspects of, the Lockerbie
bombing case study.
(1) The facts are as follows:

68
In January 2017, an al Qaeda cell based in the state of Arcadia successfully carried out a
terrorist bombing on board FlyGlobal Airline Flight 231, registered in the state of Curia,
detonating explosives members of the cell had smuggled on board hidden in their
electronic devices such as mobile phones and laptops. Since Flight 231 was flying
between Arcadia and Butavia via Curia, predominantly nationals of all three states were
killed in the bombing. Additionally, the explosion of Flight 231 took place over the
territory of Curia, causing significant deaths, casualties and damage to property due to
falling pieces of aircraft. The inhabitants of that city remain traumatized to this day.
Unfortunately, before the masterminds behind this terrorist attack could be identified
and apprehended in Aracadia, they managed to escape to Duradia which is likely to
become a failed state imminently and, as such, has little in the way of effective
resources to investigate and prosecute suspected criminals of any nature, never mind
suspects of international terrorist crimes. Additionally, it is suspected that Duradia has
harboured al Qaeda and permitted its training activities in recent years. Although the
terrorists who committed this terrorist attack now operate out of Duradia, they are all
nationals of Eqatoria which has adopted a robust anti-terrorism stance which is
reflected within its domestic legislation and policies.
In March 2017, under considerable international pressure, Duradia apprehended three
suspects. It has elected to investigate the offences itself and, if appropriate, try the
suspects. However, Arcadia and Butavia jointly, Curia, and Eqatoria, all wish for the
suspects to be extradited to them for both investigation and any subsequent trial since
they do not believe that justice will be achieved if Duradia carries out this process.
However, Duradia has refused to extradite the suspects. Consequently, Arcadia and
Butavia, as P5 Members, persuaded the Security Council to pass SCR 2002 (2 May 2017)
to put further political pressure on Duradia to extradite the three suspects to either
Arcadia or Butavia, threatening the imposition of smart sanctions if Duradia did not
comply by 30 June 2017.
However, Duradia refused to comply and, in response, issued proceedings at the
International Court of Justice for a declaration on the legality of its actions. In response,
and following the expiry of the 30 June 2017 deadline, Arcadia and Butavia persuaded
the Security Council to pass SCR 2010 (10 July 2017) which mandated Duradia to
extradite the suspects to Arcadia or Butavia, imposing severe economic sanctions on
Duradia with immediate effect until they complied. During the past 7 months, the
sanctions have had a significant impact on the economy and infrastructure of Duradia,
which claims that already several hundred citizens have died due to inadequate food
and access to essential healthcare. Meanwhile, Curia is seeking a declaration that should
the suspects be extradited out of Duradia, that they be extradited to Curia since it has
the most interest in trying the suspects, and not to Arcadia or Butavia; while Equatoria is
seeking a declaration that the suspects be extradited to it as the country of citizenship.
All five states are parties to the Montreal Convention 1971, the Beijing Convention 2010

69
(assume for the purpose of this exercise that it has come into effect), as well as the
Suppression of Terrorist Bombings Convention 1997. The case has now come before the
International Court of Justice (ICJ).

(2) Moot exercise
Put the students into 5 groups representing one of the following positions: (a) the joint
position of Arcadia and Butavia; (b) Curia; (c) Duradia; (d)Eqatoria; and (e) the judges of
the ICJ.
Ensure that they all have access (whether in hard copy and/or electronically) to the
Montreal Convention 1971; Suppression of Terrorist Bombings Convention 1997; Beijing
Convention 2010 [you may wish to give advance warning to them to bring these
materials to class with them].
Allow the students e.g. 20 minutes to prepare the case for their client State(s),
identifying the key issues and relevant provisions of the treaty texts; or, in the case of
the ICJ judges group to consider the key issues each State is likely to raise and their
planned to response to these.
Allow each of the groups e.g. 5 minutes to present their case to the ICJ (this may be
made by one or more students).
After hearing all of the submissions, there should be a short adjournment (e.g. 5-10
minutes) for the ICJ judges group to consider the arguments made and their
deliberations as to which State, and why, should try the terrorist suspects. The judges
group should then give its decision and brief reason for it.
At the end, give a few reflections and feedback of your own to the groups, whether
individually or as class.
Estimated length of time: 45-60 minutes


5. Key remaining challenges
Much progress has been made in developing and strengthening an effective international legal
framework to facilitate counter-terrorism cooperation. Nevertheless, some key challenges
remain, some of which are outlined here.

5.1. Criminal justice as a tool of prevention
To the extent that counter-terrorist activities are grounded in an efficient criminal justice
process that respects the principles of rule of law and human rights, they can offer a peaceful,
accountable and legitimate response to terrorism. This kind of criminal justice response to
terrorism can help avoid an escalation of violence and the use of force outside the protections
and procedural guarantees offered by the due process of law. It can reinforce a society’s
commitment to the rule of law and human rights, even when under terrorist threats.
70
The role of the criminal justice system in countering terrorism is a challenging one. Indeed, the
primary objective of counter-terrorism strategies must be to prevent terrorist incidents from
taking place. The reality, however, is that many criminal justice systems are currently better at
responding to and punishing crimes after the fact than at preventing them in the first place.
Often, existing criminal justice practices are ineffective when it comes to preventing terrorist
conspiracies from achieving their aim. A forward-looking, preventive criminal justice strategy
against terrorist violence requires a comprehensive system of substantive offences,
investigative powers and techniques, evidentiary rules and international cooperation. The goal
is to proactively integrate substantive and procedural mechanisms to reduce the incidence and
severity of terrorist violence, and to do so within the strict constraints and protections of the
criminal justice system and the rule of law.
Criminal justice systems have approached these challenges differently, depending on their legal
tradition, their level of development, their relative institutional sophistication and their own
circumstances. In some instances, a perceived urgent need to respond to a specific threat has
led States to improvise new approaches and, in so doing, stretch the limits of their criminal law
and due processes to the extreme. Furthermore, many criminal justice systems have to devote
considerable efforts to increasing the effectiveness of their terrorism prevention measures and,
in particular, their ability to cooperate at the international level with various counter-terrorism
initiatives. This has resulted in additional stress being placed on the already limited capacity of
many criminal justice systems and has perhaps weakened or compromised their ability to
function within basic rule of law and human rights principles.

5.2. Effective implementation of universal anti-terrorism instruments within States
There is no shortage of international, regional and national rules and standards governing
counter-terrorism. Instead, another key challenge has been to ensure that universal (and where
appropriate regional) instruments are implemented effectively within States.
As was noted previously, a key objective of Security Council Resolution 1566 (2004) was to
assist this process by providing states with a working definition of terrorism to assist them in
the process of developing more robust national criminal justice systems for dealing with
terrorist offences. Unfortunately, by the time that Resolution 1566 was adopted - 3 years after
Resolution 1373 - many States had already adopted their own inconsistent and sometimes
ambiguously drafted national definitions.
In addition to hindering the sought harmonisation of international standards and cooperation,
some of these definitions further created their own rule of law concerns. For example, some
vaguely and broaded worded anti-terrorism instruments have been utilized to curb non-
terrorist (or even criminal), legitimate activities such as democratic protest or the advocacy
activities of human rights defenders. Even in the absence of an internationally agreed definition
of terrorism, it is still important for States to abide by other fundamental rule of law principles,
such as that of legality (nullum crimen, nulla poena sine lege), which requires that any

71
prohibited acts under criminal offences are strictly defined, without doubt or ambiguity, and
may not be applied retroactively.
Strong criminal justice systems are not solely about the ratification and effective
implementation of international instruments, including the sectoral conventions, but as much
about their use and enforcement in practice. Often the translation of the theory of agreeing to
international treaties to implementing and enforcing them in practice can be very challenging
for States, effectively where they lack the capacity to do so, for example in terms of technical
expertise or necessary resources. In the context of counter-terrorism, these challenges relate
not only to the anti-terrorism instruments themselves, but also other associated obligations
and standards, such as in relation to human rights understanding and compliance. A number of
UN agencies, including UNODC, offer technical assistance and training on such issues.
Furthermore, in order to enable effective criminal justice responses to terrorism, States need
adequately functioning counter-terrorism legal regimes and criminal justice systems, as well as
the related capacity to deal with potentially complex criminal cases and engage effectively in
international criminal justice cooperation. This requires a firm commitment by States to pursue
common objectives at the national, subregional and regional levels.

Further reading

Below are selected examples of national anti-terrorism instruments:

• Cephas Lumina, ‘Counter-Terrorism Legislation and the Protection of Human


Rights: A Survey of Selected International Practice’, 7 Afr. Hum. Rts. L.J. 35, 67
(2007)
• Tuba Turan, 'War on Terror in the US and UK: An Evaluation with Regard to Civil
Liberties' 1 USAK Y.B. Int'l Pol. & L. 31, 50 (2008)
• Dianne Otto, Dr. Joo-Cheong Tham, 'The Perils of Countering Terrorism by Eroding
Human Rights', 2 Asia-Pacific Yearbook of IHL, 156 (2005)
• Minodora-Ioana Balan-Rusu, 'The Fight against Terrorism and Cross-Border Crime
in the European Union', 2012 Acta Universitatis Danubius Juridica 57, 71 (2012)
• Pan Xinrui, 'Collation and Thoughts of Perfection About Laws of Anti-Terrorism:
From the Ninth Amendment to the Anti-Terrorism Law (Draft)', 3 China Legal
Science 101, 122 (2015)
• Arie Perliger; Badi Hasisi; Ami Pedahzur, 'Policing Terrorism in Israel', 36 Crim. Just.
& Behavior 1279 (2009)
• Steven Dewulf, 'Human Rights in the Criminal Code: A Critique of the Curious
Implementation of the EU and Council of Europe Instruments on Combating and

72
Preventing Terrorism in Belgian Criminal Legislation', 22 European Journal of
Crime, Criminal Law and Criminal Justice. 33 (2014)
• Liane Worner, 'Expanding Criminal Laws by Predating Criminal Responsibility -
Punishing Planning and Organizing Terrorist Attacks as a Means to Optimize
Effectiveness of Fighting against Terrorism', 13 German L.J. 1037 (2012)
• Hikmahanto Juwana, Anti-Terrorism Efforts in Indonesia', 11 Indonesian J. of Int'l
L. 151 (2014)
• Laurent Mayali; John Yoo, 'A Comparative Examination of Counter-Terrorism Law
and Policy', 16 J. of Korean Law. 93 (2016)
• A. Hasyim Nawawie, 'Criminal Law Review of Islamic on 6-19 Article Law Number
15-2003 Crime on Combating Terrorism', 51 Journal of Law, Policy and
Globalization 77 (2016)
• Dersolegn Yeneabat Mekonen, 'The Principle of Proportionality of Punishment in
Criminal Law: An Appraisal of the Ethiopian Anti-Terrorism Law', 48 Journal of Law,
Policy and Globalization 94 (2016)
• Hoiruddin Hasibuan; Sudarsono; Nyoman Nurjaya; Bambang Sugiri, 'Political
Motive in Terrorism Criminal Act', 61 Journal of Law, Policy and Globalization 77,
82 (2017)
• Dersolegn Yeneabt Mekonen, 'Assessing Controversial Issues of the Ethiopian Anti-
Terrorism Law: A Special Focus on Substantive Matters', 40 Journal of Law, Policy
and Globalization 54 (2015)
• Mtendeweka Owen Mhango, Taking Human Rights Higher in the Fight against
Terrorism in South Africa, 19 Michigan State University College of Law Journal of
Int'l Law 105 (2010)
• Wodowssen Demissie Kassa, 'Examining Some of the Raisons d'Etre for the
Ethiopian anti-Terrorism Law', 7 Mizan Law Review 49, 66 (2013)
• Wondwossen Demissie Kassa, 'The Scope of Definition of a Terrorist Act under
Ethiopian Law: Appraisal of Its Compatibility with Regional and International
Counterterrorism Instruments', 8 Mizan Law Review 371, 405 (2014)
• Mrinal Satish; Aparna Chandra, 'Of Maternal State and Minimalist Judiciary: The
Indian Supreme Court's Approach to Terror-Related Adjudication', 21 National Law
School India Review 51, 88 (2009)
• Emmanouela Mylonaki, 'An Overview of the Western African Response to the
International Counter-Terrorism Legal Framework', 2015 Pecs Journal of
International and European Law 18, 27 (2015)
• Kent Roach, 'Be Careful What You Wish for - Terrorism Prosecutions in Post-9/11
Canada', 40 Queen's Law Journal 99, 140 (2014)
• George Williams, 'Anti-Terrorism Laws and Human Rights', 19 Review of
Constitutional Studies 127, 146 (2015)

73
• Shylasri Shankar, 'Judicial Restraint in an Era of Terrorism: Prevention of Terrorism
Cases and Minorities in India', 11 Socio-Legal Review 103, 124 (2015)
• K Roach, The 9/11 Effect: Comparative Counter-Terrorism (Cambridge University
Press, 2011)
• Walter et al (eds.), Terrorism as a Challenge for National and International Law
(Berlin-Heidelberg, 2003)
• V. Ramraj, M. Hor and K. Roach (eds.), Global Anti-Terrorism Law and Policy
(Cambridge University Press, 2nd ed., 2011)

Research Activity: National anti-terrorism legislation


• Select three journal articles from the further reading list above on national anti-
terrorism instruments, drawn from different jurisdictions.
• Identify 2-3 common themes and issues raised in your reading that struck you, e.g
of gaps or weaknesses in the legal instruments, challenges of effective
implementation, rule of law concerns (e.g. non-compliance with international
human rights standards).
• Prepare a short presentation (e.g. 5 minutes) to share with your class (e.g. at the
start of the next class together).


6. International courts and tribunals
Another key challenge relates to the availability of effective enforcement mechanisms to
investigate, prosecute, try and punish individuals, particularly when the persons concerned are
believed to have been involved in complex and serious terrorist crimes.
Despite being regarded by the Security Council as a threat to international peace and security,
for the most part acts of international terrorism do not fall (at least, not explicitly) into the
category of “core international” crimes such as genocide, war crimes and crimes against
humanity. Consequently, there are few international criminal courts or tribunals with express
jurisdiction over these crimes. The principal exception to this is the Special Tribunal for Lebanon
which is the only international or internationalised court with jurisdiction over a separate,
expressly provided terrorism offence.45 In addition, several international courts and tribunals
make some provision for terrorism related offences, such as the Statute of the International
Criminal Tribunal for Rwanda (Article 4(d)), Statute of the Special Court for Sierra Leone (Article
3(d)), and the Law on Establishment of the Extraordinary Chambers in the Courts of Cambodia
(Article 8). This void has necessitated that these crimes of international concern be tried within

45
Created as a Chapter VII resolution, UNSC Res 1757 (30 May 2007) UN Doc S/RES/1757.
74
national criminal justice systems, with States being responsible for determining if, when and
how to bring criminal proceedings.
In turn, whether or not these are successful and rule of law compliant will be dependent, at
least in part, on factors such as a State’s capacity to successfully navigate the many legal and
practical complexities associated with prosecuting and trying a case effectively in a manner
consistent with all requisite due process standards; together with the necessary accompanying
political will, e.g. the extradition of suspects, mutual legal assistance with witnesses, and so
forth. Often complex, large scale terrorism cases will be beyond a State’s capacity, which was
one of the factors which led to smaller, less resourced States, such as Trinidad and Tobago,
seeking the creation of the International Criminal Court (ICC), originally to deal with complex
transnational drug offences.
Although they can be financially very costly and take a long time to get up and running, as
demonstrated by the recent experiences of the ICC, international courts and tribunals have
accompanying benefits too. These can include the necessary technical and administrative
expertise to manage sensitive and voluminous materials; existing developed best practices,
notably for securing justice and reparations for victims when national systems are often weak in
this regard. That said, these courts and tribunals can encounter many of the same difficulties
experienced by national courts, such as the reluctance or refusal of even States parties to the
Rome Statute to disclose or hand over important evidence or suspects despite their obligations
under the treaty to cooperate fully with the Court. That said, various mechanisms exist for
dealing with such issues. For example, any citing of national security reasons as grounds for a
refusal to cooperate are reviewable by Chambers and many result in negative inferences for the
State concerned. Ultimately and exceptionally, in the most serious instances, compliance may
be forced through the adoption of a Chapter VII Security Council resolution.46
Ultimately, the Statute of Rome 1998 creating the ICC did not include terrorism offences
despite their inclusion being proposed by several States47 and lengthy related debates taking
place during the treaty negotiations. Though the merits of including terrorist offences within
the Court's remit were recognised - which would most likely have been achieved by including
the "treaty crimes" articulated in the sectoral anti-terrorism conventions within the Statute's
scope - the Preparatory Committee was of the opinion that the Rome Statute should be
restricted to defining the crimes within its jurisdiction. Other significant factors underpinning
this decision included the jurisdictional differences regarding the prosecution of terrorism
related crimes: whereas the sectoral conventions are based on, and limited to, the principle of
aut dedere aut judicare as previously explained (Section 4), the other crimes falling with the
Court's jurisdiction benefit from universal jurisdiction; and the legal and political difficulties
associated with the absence of a universal definition of terrorism, including the possibility of
deterring a number of States from signing up to the treaty.


46
See, eg, UNSC Res 1207 (17 November 1998) UN Doc S/RES/1207.
47
Algeria, Armenia, Congo, India, Israel, Kyrgyz Republic, Libya, Macedonia, Russia, Sri Lanka, Tajikistan and Turkey.
75
For these and other reasons, the Statute's jurisdiction is limited to the crimes of genocide,
crimes against humanity, war crimes and the crime of aggression which were already
established crimes under customary international law. Notably, despite the often heinous
consequences of terrorist attacks, technically terrorism is not regarded by many to fall into the
category of most serious crimes. Indeed, even though terrorism related offences have been
high on the international political agenda since the 9/11 terrorist attacks, and the possibility of
treaty amendment to the Rome Statute has been mooted, in practice this is most unlikely to
occur. Treaty amendments would be accompanied by many complexities and hurdles, together
with the likelihood of not of not achieving the requisite levels of consensus, demonstrated by
recent experience to reach international agreement regarding the crime of aggression already
included with the Statute's scope. Furthermore, there are many other delicate political factors
currently surrounding the ICC and its longer term future, including the recent withdrawals, and
threats of withdrawal, from the Rome Statute by a number of States parties.48
In practice, however, such formal exclusion of terrorism related offences from the express
jurisdiction of most international courts and tribunals has not prevented such offences from
being tried indirectly in practice where the nature and gravity of terrorism offences has met the
criteria of the other offences falling within the jurisdiction of these courts and tribunals.
Certainly, the international crimes of genocide, war crimes, and especially crimes against
humanity,49 may encompass the most serious terrorist acts, so long as they cross the high legal
threshold in terms of establishing the necessary legal elements. It also avoids the need to agree
a universal definition of terrorism. Indeed, this is already the practice of a number of
international courts and tribunals, as is reflected within their jurisprudence, notably the ad hoc
tribunals of the Former Yugoslavia and Rwanda, Special Court for Sierra Leone, and the ICC.
There is a developing body of case law which supports such approaches, influenced by more
general trends towards closing existing impunity gaps for non-state (terrorist) actors.50
Such an approach though does not represent a full replacement for the direct inclusion of
terrorism related offences within the scope of existing and future international courts and
tribunals if more coherent international criminal justice mechanisms are to exist, capable of
dealing with the most serious of terrorist activities and attacks such as those of ISIS and its
global affiliates.

48
See, e.g., 'African leaders plan mass withdrawal from international criminal court', The Guardian, 31 January
2017. Most recently, Burundi announced its withdrawal - see Jennifer Trahan, 'Reflections on Burundi's
Withdrawal from the International Criminal Court', Opinio Juris (30 October 2017), available at
http://opiniojuris.org/2017/10/31/reflections-on-burundis-withdrawal-from-the-international-criminal-court/.
49
See, eg, arts 6-8 ICC Statute.
50
See, e.g. terrorist acts as crimes against humanity: Prosecutor v Stanislav Galić (Judgment) IT-98-29-T (5
December 2003) para 598; Prosecutor v Brima, Kamara and Kanu (AFRC case) (Trial Chamber Judgment) Case 16
SCSL (20 June 2007) paras 224-39; and as war crimes: Prosecutor v Zejnil Delalić, Zdravko Mucić aka “Pavo”, Hazim
Delić and Esad Landzo aka “Zenga” (Judgement) IT-96-2-T (16 November 1998) paras 1086-91; Prosecutor v
Tihomir Blaškić (Judgment) IT-95-14-T (3 March 2000) (Blaškić Trial Judgment); Prosecutor v Radislav Krstić
(Judgment) IT-98-33-T (2 August 2001); Prosecutor v Martić (Rule 61 Decision) IT-95-11-R61 (8 March 1996) paras
23-31; Prosecutor v Nikolić (Sentencing Judgment) IT-02-60/1-S (2 December 2003) para 38; Prosecutor v Brima,
Kamara and Kanu (AFRC case) (Trial Chamber Judgment) Case 16 SCSL (20 June 2007) e.g. paras 661and 1446 et
seq.
76

Video: The Reckoning - History of the ICC - POV/PBS


• This video traces the history of the International Criminal Court from the Nuremberg
Trials and the Yugoslav and Rwanda Tribunals to the international response to
conflicts in Uganda, Sudan and Colombia, available at
https://www.youtube.com/watch?v=--m3foHOecE.

Further reading

• Ruwantissa Abeyratne, 'Terrorism and State Accountability - The Aviation Perspective',


3 Journal of International and Comparative Law 97, 126 (2016)

• Aviv Cohen, 'Prosecuting Terrorists at the International Criminal Court: Reevaluating


an Unused Legal Tool to Combat Terrorism', 20 Michigan State University College of
law Int'l L. Rev. 219, 258 (2012)

• S.Y. Surendra Kumar, Suicide Terrorism and International Criminal Court, 8 More
Information

• ISIL Year Book of International Humanitarian and Refugee Law 194, 206 (2008)

• Leandro Moll, 'Developments in the Bases of the International Obligation to Repress


the Crime of Terrorism', 10 ISIL Year Book of International Humanitarian and Refugee
Law. 1, 20 (2010)

• Ridarson Galingging, 'Prosecuting Acts of Terrorism as Crimes against Humanity under


the ICC Treaty', 7 Indonesian J. of Int'l L. 746, 774 (2010)

• G. Paraschiv, 'The Necessity of Terrorism Inclusion in the Category of International


Crimes Stricto Sensu', 2013 AGORA International Journal of Juridical Sciences. 155, 159
(2013)

• Vincent-Joel Proulx, 'Rethinking the Jurisdiction of the International Criminal Court in


the Post-September 11th Era: Should Acts of Terrorism Qualify as Crimes against
Humanity?', 19 Am U Int'l Rev 1009, 2004, p5.

• Anna Marie Brennan, 'Holding Members of Transnational Terrorist Groups


Accountable under Article 25 of the Rome Statute: Effectiveness, Legitimacy and
Impact', 18 Spanish Yearbook of International Law 115, 140 (2013-2014)

77
• William A. Schabas, 'Is Terrorism a Crime against Humanity, 8 Int'l Peacekeeping 255,
262 (2004)

• Lucy Martinez, 'Prosecuting Terrorists at the International Criminal Court: Possibilities


and Problems', 34 Rutgers LJI, Fall 2002, p6?

• Richard J Goldston and Janine Simpson, 'Evaluationg the Role of the International
Criminal Court as a Legal Response to Terrorism', 16 Harv Hum Rts J 13, spring 2003,
p2.

• Ian D. Seiderman, Impact of Counter-Terrorism on Human Rights: Towards an


International Monitoring Mechanism, The, 1 Yearbook of the International
Commission of Jurists 399, 422 (2004)

• M Di Filippo, ‘Terrorist Crimes and International Co-operation: Critical Remarks on the


Definition and Inclusion of Terrorism in the Category of International Crimes’ (2008)
19 EJIL 533.

• M. Lawless, ‘Terrorism: An International Crime’ (2007-08) 63 International Journal


139.

• G. Marston, ‘Early Attempts to Suppress Terrorism: The Terrorism and International


Criminal Court Conventions of 1937’ (2002) 73 British YBIL 293.

• Sergey V. Sayapin, 'The Spread of Terror among the Civilian Population- a war crime', 2
Asia-Pacific Yearbook of IHL, 196 (2006)

• Patrick I Labuda, 'The African Union's Collective Withdrawal from the ICC: Does Bad
Law make for Good Politics?' 15 February 2017, EJIL: Talk!, available at
https://www.ejiltalk.org/the-african-unions-collective-withdrawal-from-the-icc-does-
bad-law-make-for-good-politics/

• Rod Rastan and Olympia Bekou, 'Terrorism and Counter-Terrorist Responses: The Role
of International Criminal Jurisdiction' in A.M. Salinas de Friás, K.L.H. Samuel and N.D.
White (eds.), Counter-Terrorism: International Law and Practice (Oxford University
Press, 2012), Chapter 32
• Kamari M Clarke, Abel S Knottnerus and Eefje de Volder (eds), Africa and the ICC:
Perceptions of Justice, (Cambridge University Press, 2016).

Assessment questions
• Explain and evaluate, though the lens of international law, the commonly cited phrase that
'one man’s freedom fighter is another man’s terrorist’.
• Looking at the different approaches of regional organisations to defining terrorism, explain
78
which approach you believe to be the most reflective of existing international law norms
and why.

• Identify and critically assess the impact of the absence of a universal definition of terrorism
on international criminal justice cooperation.
• Do you believe that a Comprehensive Convention on International Terrorism is really
necessary, e.g. that it will assist in preventing terrorist acts or facilitate bringing suspected
terrorists to justice? Discuss with reference to the existing 19 sectoral anti-terrorism
conventions.
• Are there any circumstances in which it is legitimate for the UN Security Council to override
anti-terrorism treaty obligations in the interest of international peace and security?
• Discuss whether or not the inclusion of explicit terrorist offences within the jurisdiction of
international courts and tribunals would strengthen international criminal justice efforts.
• Critical evaluate the definition of terrorism used for criminal justice purposes in your
country, including its adherence to international due process obligations.

79

MILITARY/ARMED CONFLICT APPROACH



1. Overview
The previous three modules examined the principal legal instruments governing regional
and international criminal justice/human rights approaches to countering terrorism. As it
was observed, criminal justice approaches, underpinned by the rule of law, should be the
normal response to terrorist threats and crimes. Generally, terrorist actors and their actions
are (extreme) criminals justifying a criminal justice response.
On occasion, however, a military (or armed conflict) approach to counter-terrorism may be
appropriate. Importantly, it is not political rhetoric, such as ‘the war on terror’, that
determines which approach and underpinning legal regime is appropriate; instead, what
determines is whether specific legal criteria, examined in this module, are satisfied. The
correct legal classification of the context in which counter-terrorism responses occur is
important since this will determine which legal regime(s) apply: criminal justice responses,
underpinned by international human rights standards, govern peacetime responses;
whereas international humanitarian law (IHL) is the lex specialis (reflecting fundamental,
non-derogable human rights principles) governing armed conflict responses. Though a
military response can be justifiable in some circumstances where strict criteria are met, it
should remain the exception rather than the norm for countering terrorism.
The circumstances leading to a situation of armed conflict can be contentious and political,
with lingering uncertainties. Though military measures could be authorized under a
collective security approach adopted under the umbrella of the UN, generally the UN’s
approach has been to tackle non-State actors by means of non-forcible measures or
targeted sanctions (e.g. the UN Security Council sanctions regime pursuant to 'Resolutions
1267 (1999), 1989 (2011) and 2253 (2015) concerning ISIL (Da'esh) Al-Qaida and Associated
Individuals Groups Undertakings and Entities'. Related uncertainties leave the issue open
and unclear as to whether States may unilaterally or in conjunction with allies, use force (jus
ad bellum) against terrorist threats and attacks – whether against non-State actors in a third
party State (examined further in Module 8 regarding targeted killings), or against a State
itself that is believed to be assisting unlawful terrorist activities. Where military force is
used, regardless of any unresolved questions regarding the legality of the decision to use it
(jus ad bellum), the military conduct itself is governed by IHL (jus in bello) which is the focus
here.
Significant rule of law concerns have arisen in this context where executive-led, militarily-
orientated responses - while not completely replacing consensual, criminal justice/human
rights approaches - have challenged or eroded the implementation and enforcement of
other legal regimes comprising the international counter-terrorism framework. One source
of such concern has been where governments have engaged all elements of their national
power - legal, economic, diplomatic, financial, military, intelligence, information, etc – in an
attempt to neutralize the threat posed by non-State terrorist actors. While this of itself is
not problematic, concerns arise when this results in disproportionate responses that erode
human rights and fundamental democratic freedoms [see further Module 13 on democratic
80

freedoms], and facilitates increased impunity. Where this has occurred, it is important to
ensure that the relationship between military and criminal justice responses to terrorism
are rebalanced in order to maintain clear parameters between the two paradigms.
Building on the core objectives and sources of IHL explained in Module 3, this module
focuses on issues of particular relevance to counter-terrorism efforts within an armed
conflict setting. In particular, it focuses on recent and currently contentious issues that have
arisen, namely in response to the classification of different types of conflict and applicable
bodies of rules; and, the existence and implications of the categorisation of persons as
combatants, protected persons or criminals (some use the term ‘unlawful combatants').
Such legal complexities have arisen with respect to non-State actors, including al Qaeda and
now Islamic State.

2. Core principles of IHL
An often cited source of IHL when identifying its underpinning principles is the ‘Martens
Clause’. This was introduced for the first time in the Preamble to the 1899 Hague
Convention II and has since acquired customary international law status. The Martens
Clause states that even in situations not covered expressly by codified IHL instruments, both
combatants and civilians have a minimum level of protection, namely that all hostilities
should be regulated by the principles of the law of nations as they result from the usages of
international law, from the laws of humanity, and from the dictates of public conscience.
This reflects the overarching goal of IHL which is to establish minimum, non-derogable
standards of restraint which apply in all situations of armed conflict.
The principles are sourced in both customary international law as well as the sources
examined in Module 3, in particular the four Geneva Conventions 1949 and two Additional
Protocols 1977.
The core fundamental principles of IHL are:
• the distinction between civilians and combatants.
• the prohibition to attack those hors de combat (i.e those not directly engaged in
hostilities).
• the prohibition to inflict unnecessary suffering.
• the principle of necessity.
• the principle of proportionality.
There are certain aspects that IHL does not regulate. For example, it does not prohibit the
use of violence per se, nor is it concerned with the purpose of any conflict. It does not
protect all persons affected by armed conflict, especially combatants directly engaged in
hostilities who may lawfully be killed.
IHL is both simple and complex in terms of its objectives, underpinning principles and
related challenges:
To put things as simply as possible, these rules can be summed up in four precepts:
do not attack non-combatants, attack combatants only by legal means, treat persons in
your power humanely, and protect the victims. [...] At the same time, the law of
81

armed conflicts is complex since it does apply only in certain situations, those
situations are not always easily definable in concrete terms and, depending on the
situation, one and the same act can be lawful or unlawful, not merely unlawful but a
criminal offence, or neither lawful nor unlawful! ...51

Tools
• ICRC e-learning module, 'What is international humanitarian law?', available at
http://www.icrcproject.org/elearning/en/ihl/M1/index.html. [Further guidance on
how to teach IHL is available here also].

• ICRC, database on customary international law, available at https://ihl-


databases.icrc.org/customary-ihl/eng/docs/home.

• ICRC, Treaties, States Parties and Commentaries, available at https://ihl-


databases.icrc.org/applic/ihl/ihl.nsf/vwTreaties1949.xsp?redirect=0.

• ICRC. 'International Humanitarian Law: Answers to your Questions', (22 January 2015),
available at https://www.icrc.org/en/publication/0703-international-humanitarian-
law-answers-your-questions.

• A number of the US Naval War College’s International Law Studies volumes are of
relevance to this topic, including volumes 88 (on non-international armed conflicts),
86 (on Iraq), and 85 (on Afghanistan), all available online at:
https://www.usnwc.edu/Publications/International-Law-Studies-(1).aspx.

Videos: IHL Principles

The ICRC has developed a number of advanced IHL learning series videos, available at
https://www.icrc.org/en/document/advanced-ihl-learning-series:

• Series 1 – IHL and humanitarian principles


• Series 2 – Use of explosive weapons in populated areas
• Series 3 – Recent developments in the interplay between IHL and IHRL

Further reading
• Rules of war (in a nutshell), ICRC (2014), available at https://www.icrc.org/eng/
resources/documents/audiovisuals/video/2014/ rules-of-war.htm.


51
Éric David, Principes de droit des conflits armés, Brussels, Bruylant, 3rd ed., 2002, pp. 921-922; original in
French, unofficial translation.] cited in https://casebook.icrc.org/law/fundamentals-ihl.
82

• N Melzer, 'International Humanitarian law: A Comprehensive Introduction', ICRC


(August 2016), available at https://www.icrc.org/en/publication/4231-international-
humanitarian-law-comprehensive-introduction.
• I Henderson, ‘The Contemporary Law of Targeting: Military Objectives, Proportionality
and Precautions in Attack under Additional Protocol I’ (2011) 16 Journal of Conflict
and Security Law 411.
• E. Wilmshurst and S. Breau (eds), Perspectives on the ICRC Study on Customary
International Humanitarian Law, (Cambridge University Press, 2007).
• D Fleck (ed), The Handbook of International Humanitarian Law (3rd edn, OUP, Oxford
2013).
• Y Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict
(3rd edn, CUP, 2016).
• S Sivakumaran, The Law of Non-International Armed Conflict (OUP, 2012).
• H. Duffy, The ‘War on Terror’ and the Framework of International Law (Cambridge
University Press, 2nd edn 2015), Chapter 6.
• Thomas R Mockaitis, Charles Tucker and Augustus Invictus, 'The Military and the Role
of Law in Countering Terrorism' in A.M. Salinas de Friás, K.L.H. Samuel and N.D. White
(eds.), Counter-Terrorism: International Law and Practice (Oxford University Press,
2012), Chapter 15.


3. Categorisation of an armed conflict
The correct categorization of whether or not an armed conflict exists is important since this
will determine whether or not IHL applies, which permits the lawful killing of some persons
and destruction of certain property. IHL does not apply to all uses of inter-State
confrontation nor to the employment of all forms of violence such as during riots or during
isolated acts (see Additional Protocol II Article 1(2)). It requires that a minimum threshold of
violence is crossed first, or a military occupation occurs. Where this threshold is not met,
then the rights and treatment of individuals will be determined by human rights law and any
unlawful violence will be regulated by domestic criminal law.
There is no treaty definition of "armed conflict", including within the text of the Geneva
Conventions 1949 or Additional Protocols 1977. Therefore, international case law, State
practice and academic scholarship have been especially important in determining the legal
meaning and parameters of this concept.
Two categories of armed conflict are identified under the existing treaty regime:
international armed conflicts (IAC) occurring between two or more States; and (b) non-
international armed conflicts (NIAC) which occur between State and non-governmental
armed groups, or only between armed groups.
Significantly, the International Committee of the Red Cross (ICRC), as the guardian of IHL,
has never recognised the existence of any global "war on terrorism", nor does it consider
non-State actors, perceived by some as having global reach - such as al Qaeda and Islamic
State and their affiliated groups - as being party to a global conflict. The ICRC does not
83

consider that IHL applies beyond the geographical boundaries of the territory of parties to a
conflict in a manner that permits the global targeting of any individuals believed (sometimes
incorrectly) to be associated with non-State armed groups. Instead, the ICRC determines on
a case by case evidential basis whether or not the criteria for the existence of an armed
conflict have been satisfied.

3.1. International Armed Conflict (IAC)
The level of violence necessary to constitute an armed conflict differs between IAC and
NIAC. With respect to IACs, since there is a general prohibition against the use of force
between States (as is reflected within Article 2(4) UN Charter), it is generally presumed that
any use of such military force which is governed by IHL is attributable to deliberate
belligerent intent. This is regardless of the factors leading to the use of force or its degree of
intensity. As the International Criminal Tribunal for the former Yugloslavia (ICTY)
determined in the case of Tadić, even minor instances of armed violence, such as an
individual border incident or capture of a single prisoner, may suffice to cross the threshold
for IHL to apply.52
In an IAC context, under common Article 2(1) to the Geneva Conventions the two
determining factors are: (1) the legal status of the belligerent parties to the conflict
(normally States), and (2) the nature of the military confrontation between them (e.g.
declared war, partial or total occupation of the territory of a State party to the Geneva
Conventions). Under Article 1(4) Additional Protocol I, for those States which are parties to
it, the test in Article 2(1) also extends to armed self-determination struggles. This means
that the notion of being a party to a conflict in this situation can encompass certain
categories of national liberation movements. Nowadays, IACs are the exception rather than
the norm in terms of the prevalence of armed conflict situations.

3.2. Non-international armed conflict (NIAC)
In contrast to an IAC context, the threshold for NIACs is significantly higher to allow for the
fact that during peacetime law enforcement activities (including to counter terrorism) may
necessitate the use of force against individuals or groups (or may be used against each
other) which is appropriately governed by domestic criminal as well as human rights law.
Specifically, Article 2(2) Additional Protocol II expressly excludes the following categories
from coming within the scope of a NIAC: 'situations of internal disturbances and tensions,
such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not
being armed conflicts', for these reasons.
Generally, the threshold is crossed when peacetime law enforcement approaches are
unable to deal with the intensity of violence, thereby necessitating the deployment of the
State's armed forces. The test for this, articulated by the ICTY, is the existence of a situation
of 'protracted armed violence' between a State and organized armed groups or between

52
ICTY, The Prosecutor v. Dusko Tadić a/k/a “Dule,” Decision on the Defence Motion for Interlocutory
Appeal on Jurisdiction, Appeals Chamber, 2 October 1995, Case No. IT-94-1-AR72 para 70.
84

such groups.53 Evidential factors for determining whether or not the armed conflict
threshold test has been crossed in NIAC situations include:
[T]he number, duration and intensity of individual confrontations; the type of
weapons and other military equipment used; the number and calibre of munitions
fired; the number of persons and type of forces partaking in the fighting; the number
of casualties; the extent of material destruction; and the number of civilians fleeing
combat zones. The involvement of the UN Security Council may also be a reflection
of the intensity of a conflict.54
Article 3 common to each of the Geneva Conventions governs persons taking no active part
in hostilities in the case of an armed conflict not of an international character and seeks to
guarantee minimum levels of protection for them. One significant effect that it has had is
the recognition that parties to a conflict are not limited to States, but can also extend to
non-State actors in this context. This is regardless of their legal personality, status or
legitimacy under international law. They are, however, expected to be sufficiently organized
such that they are able collectively to comply with IHL (something that is presumed for State
parties to a conflict). This is through such factors as the existence of some form of command
structure and accompanying disciplinary rules and mechanisms governing the group.55

Such requirements are reflected also in Article 1(1) Additional Protocol II which states that
NIACs 'take place in the territory of a High Contracting Party between its armed forces and
dissident armed forces or other organized armed groups which, under responsible
command, exercise such control over a part of its territory as to enable them to carry out
sustained and concerted military operations and to implement this Protocol'. The more
extensive rights available under Additional Protocol II only apply in NIAC situations where
the armed forces of the State on whose territory the conflict is taking place is a party to the
conflict and the other criteria, such as effective control of at least part of the State's
territory by the armed group is met. Otherwise, if the violence is only between non-state
actors, common Article 3 alone will apply.

If the intervention by third party States is to support an insurgency against the territorial
State, the legal relationship between the territorial State and armed groups will remain the
same (NIAC rules), whereas the armed confrontations between the States will be governed
by IAC rules. If the degree of direction and control exercised by the third party State over
the insurgency group(s) is such that the group(s) could be considered to be military
interventions by the State itself, the relationship between the groups and territorial State
will be changed and also governed by IHL as a IAC. In situations where a third party State or
coalition of States intervene in a pre-existing NIAC situation to support the State on whose
territory the conflict is occurring (an 'internationalized' armed conflict), thereby becoming a
(co-belligerent) party to the conflict, IHL governing NIAC will continue to apply.


53
Tadić ibid.
54
ICTY, The Prosecutor v. Ramush Haradinaj et al., op. cit. (note 102), para. 49.
55
See e.g. ICTY, The Prosecutor v. Ramush Haradinaj et al., Trial Chamber I (Judgment), Case No. IT-04-84-T,
3 April 2008, para. 60.

85

Sometimes the categorization of the conflict can change. For example, with respect to the
US led coalition armed conflict with the governing Taliban regime in Afghanistan in 2001,
initially this constituted an IAC. Once the Karzai Government was established and
recognized internationally, the armed conflict became a NIAC with multinational forces
present to assist the Afghan regime with its consent.

Significantly, armed confrontation between other entities which do not fall into these strict
categories cannot be treated under IHL as an armed conflict, but rather remain under the
auspices of domestic law or NIAC depending on the level of violence. This is very important
in the context of counter-terrorism since generally the non-State actor groups involved will
fall into one of these two situations. In turn, the appropriate categorization determines
which acts are provided for and which are not (IHL does not "permit" types of fighting), and
what rights may or should be available to them. The latter are less extensive under common
Article 3 and Additional Protocol II compared with IACs, though should be regarded as the
bare minimum with ideally more basic rights being given in practice.
Customary international law is of especial importance for covering issues not specifically
provided for under treaty law, hence the significance of the major ten year study on
customary international law undertaken by the ICRC [see 'tools' box in Section 2 above].
Even with its provision of rights and standards, determining the exact rights and boundaries
of legality can often be less clear and more complex in a NIAC context compared with the
more clearly defined and regulated IAC, e.g. regarding the treatment of detainees.

3.3. Ending hostilities
Historically, IACs tended to terminate hostilities with some intentional act such as a peace
treaty, declaration of surrender or complete withdrawal from territory being contested.
Nowadays, both IAC and NIAC tend to be marked by a more gradual, progressive reduction
in the intensity of violence being used, ceasefires and/or the involvement of third parties
such as peacekeepers, or the complete defeat of either party. Even once an armed conflict
has ceased, elements of IHL will continue to apply, for example regarding the treatment of
detainees/internees and various humanitarian endeavours until '....a general conclusion of
peace is reached...'.56

Further reading
• Marco Sassòli, Antoine Bouvier and Anne Quintin, How Does Law Protect in War?,
ICRC, Geneva, 2011, available at https://www.icrc.org/eng/assets/files/
publications/icrc-0739-part-i.pdf:
o Chapter 2: 'International humanitarian law as a branch of public international
law', pp. 121–136.


56
ICTY, the Prosecutor v. Dusko Tadić a/k/a “Dule,” Decision on the Defence Motion for Interlocutory Appeal
on Jurisdiction, Appeals Chamber, 2 October 1995, Case No. IT-94-1-AR72 para 70.

86

o Chapter 12: The law of non-international armed conflicts, pp. 327–350.


• On the relevance and definition of armed conflict, see ICRC, 'How is the Term “Armed
Conflict Defined in International Humanitarian Law', Opinion Paper (March 2008),
available at https://www.icrc.org/eng/resources/documents/article/other/armed-
conflict-article-170308.htm.
• 'Scope of application of the law in armed conflict', IRRC, Vol. 96, No. 893, Spring 2014
[several articles of interest in this edition, available from IRRC
websitehttps://www.icrc.org/en/international-review].
• Sylvain Vité, 'Typology of armed conflicts in international humanitarian law: Legal
concepts and actual situations', IRRC, Vol. 91, No. 873, March 2009, pp. 69–94,
available at https://www.icrc.org/eng/assets/files/other/irrc-873-vite.pdf.
• E. Crawford, ‘Unequal Before the Law: The Case for the Elimination of the Distinction
between International and Non-International Armed Conflicts’ (2007) 20 Leiden
Journal of International Law 441.
• D. Kretzmer, ‘Rethinking the Application of IHL in Non-International Armed Conflicts’
(2008) 42 Israel Law Review 8.
• J.G. Stewart, ‘Towards a Single Definition of Armed Conflict in International
Humanitarian Law: A Critique of Internationalized Armed Conflict’ (2003) 85
International Review of the Red Cross 313, available at https://www.icrc.org/eng/
resources/documents/article/other/ 5pyaxx.htm.
• Panel Discussion on 'Scope of the law in armed conflict', ICRC (February 2015).
Recording available at: https://www.icrc.org/en/event/scope-of-law.
• R. Bartels, ‘Timelines, borderlines and conflicts: The historical evolution of the legal
divide between international and non-international armed conflicts’ (2009) 91
International Review of the Red Cross 35, available at IRRC website
https://www.icrc.org/en/international-review.
• A. Duxbury, ‘Drawing Lines in the Sand – Characterising Conflicts for the Purposes of
Teaching International Humanitarian Law’ (2007) 8 Melbourne Journal of
International Law 259.


4. Classification of persons
The cornerstone principle of IHL is that of distinction which all parties to a conflict must
abide by at all times, namely to 'distinguish between the civilian population and combatants
and between civilian objects and military objectives and accordingly [to] direct their
operations only against military objectives'. [Article 48 Additional Protocol I] This means that
there must be clear definitional boundaries between the "civilian population" (who are
protected persons and may never be deliberately targeted unless they change status to
combatants/take up arms, see e.g. Article 50(1) Additional Protocol I), and "combatants"
(who may be deliberately targeted). The correct classification is important since, in
situations of IAC, under Geneva III combatants are entitled to protection as prisoners of war
following capture; and 'can be prosecuted only for violations of international humanitarian

87

law, in particular for war crimes'. [Article 43(2) Additional Protocol I]. Though States did not
agree to extend such combatant's privileges in NIACs to members of organized armed
groups or civilians directly participating in hostilities, they may elect to treat captured
fighters as prisoners of war as a matter of policy.

This section gives an overview of the rules governing the classification of combatants (IAC)
and fighters (NIAC), and identifies some of the key areas of contention that have
surrounded the classification of non-State terrorist actors such as al Qaeda and Islamic
State.


4.1. Combatants and IAC
The starting position is that all members of a belligerent party to a conflict, State or non-
State in nature, are combatants. The exception to this general rule are those personnel
engaged solely in humanitarian functions (medical and religious personnel). [AP I, Art. 43(2)]
Combatants (and therefore also prisoners of war), as defined by IHL, are members of the
armed forces of a State or of groups assimilated to a State as is defined by Geneva
Convention III [Articles 4(A)(1)-(3), and (6)]. Notably, Article 4(A)(2), in relation to non-
regular army combatants, such as those fighting for militias and resistance movements,
identifies four key criteria that must be fulfilled in order to fall within the Convention’s
scope:
a) that of being commanded by a person responsible for his subordinates;
b) that of having a fixed distinctive sign recognizable at a distance;
c) that of carrying arms openly;
d) that of conducting their operations in accordance with the laws and customs of war.
These original criteria were modified, however, by Additional Protocol I in order to bring
non-conventional warfare, such as armed struggles against colonial domination and alien
occupation – whom some would consider to be terrorist - within the parameters of the
Geneva Conventions (Article 1(4)). Though there were some benefits, such as the protection
of civilian populations, associated with reflecting the reality of guerrilla warfare, this also led
to the relaxing of the original criteria with resultant less clarity as to who constitutes a
combatant for the purposes of IHL. Such uncertainties are not assisted by ongoing
disagreements regarding whether or not at least some armed groups are engaged in
legitimate self-determination struggles or criminal terrorist activities (e.g. Hezbollah is
regarded by some States as a legitimate organization engaged in a self-determination
struggle against Israel, whereas many other States categorize it as an unlawful terrorist
organization).
Additional Protocol I defines armed forces as comprising 'all organized armed forces, groups
and units which are under a command responsible to that Party for the conduct of its
subordinates'. [Article 43(1)] Notably, under Article 44(3) Additional Protocol I, there was
the relaxing of the obligation of combatants to distinguish themselves. These changes have
been described in the following terms:
88

[W]hile, traditionally, belligerents who did not distinguish themselves from the civilian
population in a permanent manner lost their right to combatant status, Additional
Protocol I now allowed combatants in certain circumstances to distinguish themselves
only by carrying arms openly during a military engagement and while they are visible to
the enemy in a military deployment preceding an attack.
That said, adverse consequences may arise for individuals who do not fully comply with IHL.
For example, they may not be afforded prisoner of war status if captured [see Article 46
Additional Protocol I]. As with those combatants who comply with all four criteria, those
combatants who do not may similarly be criminally prosecuted for violations of IHL.
As the travaux preparatoires reveal, such changes were understood and expected by
participating delegates to apply only in exceptional circumstances. For example, in contexts
where ‘owing to the nature of hostilities’ it was not possible for an armed combatant to
distinguish himself except by carrying arms openly during a military engagement or prior to
it, namely during wars of national liberation and situations of occupation. There was,
however, significant concern among some States, including the US which continues to
refuse to ratify Additional Protocol I (and Protocol II), that such modifications risked
extending to and protecting ‘terrorists’.
In practice, however, the significance of such concerns has been minimal in that the
obligations, such as to protect civilian populations, under the Geneva Conventions are
absolute; acts of violence carried out between recognised combatants are lawful and do not
constitute terrorism; the number of national liberation movements or other situations
provided for by Article 1(4) Additional Protocol I is very small; and most States have become
parties to Additional Protocol I,57 suggesting that they do not agree that the modifications
facilitate terrorist acts.
Notably too, direct participation by civilians in hostilities is not in and of itself a war crime
(unless carried out perfidiously) since it is an inevitable fact of armed conflict. A person's
loss of protection against direct attack (only applicable to civilians not engaged in hostilities)
may only be determined by those factors recognised by IHL, namely membership of an
armed force which is a belligerent party to a conflict, or a civilian directly participating via a
levée en masse or otherwise in the hostilities for the period that they are so engaged. A
number of international and domestic sanctions, however, do regulate such conduct. As has
been mentioned already, under IHL civilians lose their protected status when actually
engaged in direct hostilities, meaning that they can be lawfully targeted and killed by the
adversary as for any combatant.
IHL applicable to IACs also permits such civilians to be interned for so long as they are
considered to pose a threat to the detaining power, which may be until the end of active
hostilities. As, e.g., the ongoing conflict in Afghanistan between the Government and the
Taliban demonstrates, this may mean internment for many years if authorised by the UN.
Furthermore, as with regular armed forces combatants, such civilians may be prosecuted for
the commission of war crimes should they attack civilians or civilian objects. In addition,

57
Up-to-date treaty ratification details are available on the ICRC's treaty database, at https://ihl-
databases.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_NORMStatesParties&xp_treatySelected
=470.
89

since participating civilians do not enjoy the same combat immunity status as regular armed
forces, they may also be criminally prosecuted under domestic law by the detaining State
for having taken up arms and committed acts of violence, including against military
objectives permitted under IHL, but constituting domestic criminal offences. With such
sanctions, the practical and political benefits associated with branding certain acts as
‘terrorist’ in nature are limited other than their related political and ideological
connotations.

4.2. "Fighters" and NIAC
In contrast to situations of IAC, no such detailed rules exist for NIAC, notably regarding key
concepts such as "civilians", "armed forces" and "attacks", nor the regulating of the conduct
of military operations in any detail. This is largely due to the concern by many contracting
States not to give any impression of legitimacy or privilege to entities operating against
them such as dissident armed forces, insurgent groups and other non-State belligerents
taking up arms against them. That said, common Article 3 to the Geneva Conventions and
Additional Protocol II offer some guidance regarding the conduct of hostilities in NIAC
situations.
Significantly, the same cornerstone principle of distinction applies equally during NIACs,
between fighters (rather than "combatants") and between fighters and State forces and
civilians. The former category comprises "armed forces", "dissident armed forces" and
"other organized armed groups" who are carrying out 'sustained and concerted military
operations' under 'responsible command'. The principal purpose of categorizing such
persons should relate to their conduct of hostilities and should not affect their treatment if,
e.g., captured and deprived of their liberty. [See GC I–IV, common Art. 3(1); AP II, Arts 1(1)
and 13(1)]. Therefore, anyone captured, detained or interned in situations of NIAC may be
entitled to the same level of protection under IHL, regardless of their status or involvement
in hostilities, and regardless of who detains them (state or non-state parties). [GC I–IV,
common Art. 3(1); AP II, Arts 4 and 5], though this remains a highly contested matter
including among States.
The other category of "civilians" are members of the "civilian population" and "individual
civilians" who 'enjoy general protection against the dangers arising from military operations'
conducted by these armed forces or groups.[GC I–IV, common Art. 3; AP II, Arts 1(1) and
13(1)] Therefore, any direct attacks against this latter category of persons, together with any
acts or threats of violence the primary purpose of which is to spread terror among the
civilian population, are prohibited. [AP II, Art. 13(2)]
In situations of NIAC, where no formal privilege of combatancy exists as for IACs, a
distinction is made between civilians and those fighting forces of the belligerent parties. It is
generally accepted that the effect of common Article 3 and Additional Protocol II is that
organized armed groups, as with the armed forces of a State, do not qualify as civilians.
Generally, such groups are considered to lose their civilian status and be liable to lawful
attack as with combatants in IAC contexts. Consequently, terms such as "fighters",

90

"unlawful" or "unprivileged" combatants or belligerents, are sometimes used to describe


such persons.
Such terms, however, have no formal legal status in IHL which does not use them.
Significantly, even where such terminology is used, it has no impact on the legal status of or
humanitarian protections afforded such persons under IHL. Technically, the term
"unprivileged combatant" means that a person does not have the legal right to participate
directly in hostilities (such as a member of the armed forces). Since he does not have
combatant privilege, he may be prosecuted for any act or omission provided for under
relevant domestic law, even if such conduct is provided for under IHL. In contrast, the
activities of a State's armed forces and law enforcement agencies, that comply with IHL, will
generally be regarded as permissible and lawful under the state concerned national laws.
The term "unlawful combatant" is potentially even more problematic in that though IHL
restricts the right to directly engage in hostilities to privileged combatants, it does not
prohibit anyone, including civilians, from taking up arms in situations of armed conflicts; it
only suspends their protected status during the period of such activity and prohibits certain
conduct. In contrast, it is possible for States to adopt legislation that criminalises the
conduct of "unprivileged combatancy", therefore making it "unlawful" under their domestic
law.

4.3. Terrorist actors and groups
The classification of non-State terrorist actors, such as al Qaeda and Islamic State, has been
contentious, especially since there is no classification of "terrorist" in IHL, though it does
recognise and prohibit terrorist acts (see further Section 5.1 below). Are they parties to a
conflict with the obligations but also privileges associated with IHL? Are they distinguishable
from "guerrilla" forces which fall within the parameters of Additional Protocol I
determination of combatants if they meet the required minimum criteria? Or are they
civilian criminals who enjoy no such protection (e.g. from prosecution for targeting
combatants) and are governed by national and international criminal law? In part, this may
depend on whether and to what extent such terrorist groups are connected to a party to a
conflict, including in terms of the level of command and control being exercised by and over
them. Additionally, even if connected to a party, a further issue to determine is whether or
not their activities have any nexus (i.e. connection) to the situation of armed conflict. Do
their activities form an integral part of the military activities of a party to the conflict, in
which case they may come within the category of combatants (e.g. al Qaeda's direct support
of the Taliban in Afghanistan in 2001)? Or does it just so happen that terrorist activities are
carried out by a group which is not a party to the conflict but which, e.g., is taking advantage
of the weakened position of the State in the territory in which it carries out terrorist
activities for its own ideological purposes (in which case they are criminals and should be
treated the same as any other terrorist group during peacetime) and which are not linked to
or in support of the parties or military objectives of the ongoing conflict.

For such reasons, many controversies and complexities have arisen regarding the
classification of terrorist non-State actors who often do not fit comfortably within either of

91

the two categories recognised under IHL governing IAC, namely "combatants" and
"civilians". Therefore, descriptive terms (without legal recognition) such as "unlawful"
combatants have been used to refer to non-State actors such as al Qaeda and Islamic State
who are engaged in armed activities, but who are not combatants as understood by IHL in
that they do not satisfy the necessary legal criteria as explained above. This "category" of
persons, which is not formally recognised by IHL as previously noted, is different to civilians
who may directly participate in hostilities and only lose their protected status whilst so
doing, as well as from "unprivileged" members of the armed forces engaged in hostilities on
an organized and continuous basis. This is because the acts of terrorist non-State actors
generally do not generally have a sufficiently close or causal relationship with, or, indeed,
reach the required threshold of harm in support of a coordinated military operation to
achieve a lawful military objective. The criminal acts of non-State terrorist actors are
designed instead to take advantage of any weakness of the system of law and order.

These issues are further complicated by the fact that a terrorist may have concurrent
classifications, under both criminal justice and IHL approaches. For example, he may be
regarded and treated as a terrorist under domestic law in the State he is operating in, but be
a member of an organized armed group for the purposes of IHL. Furthermore, it is possible
for a person or group to be designated as "combatants" for the purposes of IHL, but to carry
out unlawful terrorist activities which IHL prohibits and would generally treat as war crimes
(e.g. wilful killing, torture or inhuman treatment, extensive destruction of property not
justified by military necessity and carried out unlawfully and wantonly). Similarly, in
situations of NIAC, terrorist violence may be perpetrated by any of the entities involved,
including the State's armed forces, organized armed groups or civilians participating in
hostilities. [See Common Article 3(2) to the Geneva Conventions and Article 6(5) Additional
Protocol II].

A specific concern relating to the use of such terms as "unprivileged" or "unlawful"


combatant is that they will be misused to afford certain types of combatants or fighters
lesser rights and protection than they are entitled to under IHL. This has been the case
especially since the categorization, and subsequent detention, of hundreds of "unlawful
combatants" in detention facilities at the Guantanamo Bay Naval Station, Cuba as well as in
other locations, such as Afghanistan, in the "war against terror", which became the "war
against al Qaeda", following the 9/11 terrorist attack.

4.4. Current phenomenon of 'foreign fighters'

A current phenomenon of growing concern relates to that of "foreign fighters", namely the
nationals of one State who travel abroad to fight alongside non-State armed groups in the
territory of another State. Recently, the key focus has been on the foreign fighters who have
joined Islamic State in Syria and Iraq, and who are now posing increased threats to their
countries of origin as Islamic State weakens and fighters return home to continue their
violent terrorist activities. Though the exact number of such foreign fighters is unknown,
current estimates tend to be between 30,000 to 40,000, though not all of these fighters are
expected to try to return home.

92

The international community, both through the Security Council and nationally, is trying to
curb the related threats in a number of ways, including through military methods,
detention, prosecution for terrorist offences, travel bans or even the denial of statehood
[see Module 3 Section 8.3.4.1]. Though most of the methods being used relate to criminal
justice/law enforcement approaches, IHL can play an important role too. As with any other
non-State actors, IHL applies where such fighters have a nexus with an ongoing armed
conflict, in the same manner as for any other belligerents.

So far as the nationality of a fighter is concerned, this will only have some relevance in IAC
situations for determining whether or not a captured fighter is given prisoner of war status
by the detaining State (a State may or may not give this protected status to its own captured
nationals, there is no consistent State practice on this) or treated as a protected person for
the purposes of Geneva Convention IV. Even if a fighter is afforded neither protected status,
in a IAC context he will be entitled to the minimum protections guaranteed by Article 75
Additional Protocol I which is reflective of customary international law. In NIAC situations
the nationality of foreign fighters has no significance on their status or how they should be
treated if captured; the same applicable rules as for any hors de combat fighter, namely
common Article 3 and Additional Protocol II in addition to other customary international law
norms such as the Martens Clause.

Tools
The ICRC has a number of very helpful resources which explore current topical, and
often also complex and controversial, issues, both generally and in relation to IHL and
terrorism specifically. See, e.g.:

• 'Contemporary challenges for IHL', available at https://www.icrc.org/en/war-and-


law/contemporary-challenges-for-ihl.

Further reading
• E. Crawford, The Treatment of Combatants and Insurgents under the Law of Armed
Conflict (Oxford University Press, 2010)
• David Turns, 'Classification, Administration and Treatment of Battlefield Detainees' in
A.M. Salinas de Friás, K.L.H. Samuel and N.D. White (eds.), Counter-Terrorism:
International Law and Practice (Oxford University Press, 2012), Chapter 17.
• Jelena Pejic, 'The protective scope of common Article 3: More than meets the eye',
IRRC, Vol. 93, No. 881, March 2011, pp. 189–225, available at https://www.icrc.org/
spa/assets/files/review/2011/irrc-881-pejic.pdf
• K. Dormann, ‘The Legal Situation of “Unlawful/Unprivileged Combatants”’ (2003) 85
International Review of the Red Cross 45-74.
• Marco Sassòli, 'The status of persons held in Guantánamo under international
93

humanitarian law', Journal of International Criminal Justice, Vol. 2/1, March 2004, pp.
96–106.
• R.S. Schöndorf, ‘Extra-State Armed Conflicts: is There a Need for a New Legal Regime?’
(2004-2005) 37 New York University Journal of International Law and Politics 1.
• A Bellal, G Giacca and S Casey-Maslen, ‘International law and armed non-state actors
in Afghanistan’ (2011) 93 International Review of the Red Cross 47.
• J. Callen, ‘Unlawful Combatants and the Geneva Conventions’, (2004) 44 Virginia JIL,
1025.
• G. Aldrich, ‘The Taliban, al-Qaeda and the Determination of Illegal Combatants’, (2002)
96 American JIL 891.
• S.D. Murphy, ‘International Law, the United States, and the Non-Military ‘War’ against
Terrorism’, (2003) 14 European JIL 347.
• ICRC, 'Interpretive Guidance on the Notion of Direct Participation in Hostilities under
International Humanitarian Law', Adopted by the Assembly of the ICRC on 26 February
2009, 90(872) International Review of the Red Cross 991-1047 (2008), available at
https://www.icrc.org/eng/assets/files/other/irrc-872-reports-documents.pdf.
• Veronika Bilkova, 'Talking about Unlawful Combatants? A Short and Concise
Assessment of a Long and Multifaceted Debate?', Central European Journal of
International and Security Studies 2 (2009), 2012, available at https://ssrn.com/
abstract=2080470.
• R. Geiß and M. Siegrist, ‘Has the armed conflict in Afghanistan affected the rules on
the conduct of hostilities?’ (2011) 93 International Review of the Red Cross 11,
available at https://www.icrc.org/eng/assets/files/review/2011/irrc-881-geiss-
siegrist.pdf.
• A. Bellal, G. Giacca and S. Casey-Maslen, ‘International law and armed non-state actors
in Afghanistan’ (2011) 93 International Review of the Red Cross pp47-79, available at
http://www.corteidh.or.cr/tablas/r27089.pdf.
• Z. Dabone, ‘International Law: Armed Groups in a State-Centric System’, (2011), 93
International Review of the Red Cross 395, available at https://www.icrc.org/en/
international-review/article/international-law-armed-groups-state-centric-system.
• 'Understanding armed groups and the applicable law' (2011), 93 International Review
of the Red Cross [includes a number of relevant articles], available at
https://www.icrc.org/ eng/resources/international-review/review-882-armed-
groups/review-882-all.pdf.
• S. D. Murphy, ‘POW Status and the Question of the Guantanamo Bay Detainees’
(2003) 3 HRLR 2.
• Martin Chulov, 'Isis faces exodus of foreign fighters as its 'caliphate' crumbles', The
Guardian (26 April 2017), available at https://www.theguardian.com/world/2017/
apr/26/isis-exodus-foreign-fighters-caliphate-crumbles.
• A Reed, Johanna Pohl and M Jegerings, 'The Four Dimensions of the Foreign Fighter
Threat: Making Sense of an Evolving Phenomenon', ICCT Policy Brief June 2017,
available at https://icct.nl/wp-content/uploads/2017/06/ICCT-Reed-Pohl-The-Four-
94

Dimensions-of-the-Foreign-Fighters-Threat-June-2017.pdf.


5. IHL, terrorism and counter-terrorism

5.1. Conflation of terrorism and conflict
In terms of IHL’s application to situations of terrorism and counter-terrorism, it is important
understand that the term "terrorist" in situations of armed conflict has no associated special
legal significance and is not defined within IHL. As has been noted previously, acts which are
permitted during armed conflict under IHL, such as the targeting of legitimate military
targets, do not constitute terrorist acts. Instead, such acts constitute the very nature of
armed conflict and, as such, should never be legally defined as "terrorist", whether under
IHL or any other body of international law (including international anti-terrorism
conventions). To do so would incorrectly suggest that such acts are unlawful and should be
criminalized. Instead, persons lawfully engaged in IAC direct hostilities, as defined by IHL,
enjoy combatants' immunity from prosecution by the detaining State for lawful acts of war.
In contrast, they may be criminally prosecuted for the commission of unlawful acts, such as
perfidy which constitutes a war crime.
Whilst IHL does not recognise "terrorists" as their own discrete category of actors during
situations of armed conflict, it does recognise and prohibit "terrorist" activities. Any acts
which would normally be categorized as "terrorist" as understood within the context of
universal anti-terrorism instruments and criminal justice approaches during peacetime, such
as the deliberate perpetration of acts of violence against civilians or civilian objects,
constitute war crimes under IHL which should be prosecuted accordingly. For example, the
taking of hostages is categorized as an offence under the International Convention against
the Taking of Hostages 1979. It is similarly prohibited by common Article 3 of the Geneva
Conventions in situations of NIAC, and by Article 34 of Geneva Convention IV which governs
situations where individuals who, during an IAC or occupation, find themselves in the hands
of a party to the conflict or Occupying Power of which they are not nationals. Hostage taking
is further prohibited by the two Additional Protocols to the Geneva Conventions. [Articles
75(2)(c) Additional Protocol I; article 4(2)(c) Additional Protocol II]. Significantly too, IHL
prohibits indiscriminate and disproportionate attacks which have similar characteristics to
terrorist attacks whether perpetrated during peacetime or in situations of armed conflict.
[See further, e.g. Article 51 Additional Protocol I].
Additionally, the two Additional Protocols specifically prohibit acts or threats of violence the
primary purpose of which is to spread terror among the civilian population or those no
longer taking part in hostilities. Articles 51(2) Additional Protocol I and 13(2) Additional
Protocol II specifically prohibit these acts of terrorism in the conduct of hostilities, providing
that ‘[a]cts or threats of violence the primary purpose of which is to spread terror among
the civilian population are prohibited’. The wording of this provision is important since it is
intended to distinguish between acts which have the primary purpose of spreading terror
(prohibited under IHL) from acts or threats of violence in the normal conduct of conflict

95

which, whilst likely to cause terror among the civilian population, do not have that as their
primary objective and are permissible under IHL so long as all other rules are complied with.
The ICTY in the Galic case, in reiterating this criminal mental intent (mens rea) requirement,
stated that such acts fall within the general prohibition of attacks against civilians and that
the nature of the acts or threats of violence can vary. It further stated that this prohibition is
sourced not only in treaty law, but in customary international law as well, the violation of
which constitutes a war crime. "Terrorism" is also expressly not permitted by Article 33
Geneva Convention IV which prohibits ‘all measures of intimidation or of terrorism’ as part
of collective punishment, which could induce a state of terror, and by Article 4(2)(d)
Additional Protocol II which simply prohibits 'at any time and in any place whatsoever....acts
of terrorism'.
Many of the international conventions and protocols related to the prevention and
suppression of terrorism contain clauses of exception in relation to the military and times of
war, stating that activities of armed forces during an armed conflict, governed by IHL, are
not governed by the conventions. For example, Article 19(2) of the International Convention
for the Suppression of Terrorist Bombings 1997 states the following:
The activities of armed forces during an armed conflict, as those terms are understood
under international humanitarian law, which are governed by that law, are not governed
by this Convention, and the activities undertaken by military forces of a State in the
exercise of their official duties, inasmuch as they are governed by other rules of
international law, are not governed by this Convention.
It should be understood that the application of IHL does not in any way prevent or obstruct
a criminal justice response to terrorist acts, including the criminalization of incitement,
conspiracy and the financing of terrorist acts. It does not prevent offenders from being held
accountable by criminal justice systems. The ICRC has frequently reiterated that compliance
with IHL is in no manner an obstacle to the lawful conduct of effective counter-terrorism
operations. In fact, full respect for IHL in counter-terrorism activities is a positive
contribution to the eradication of terrorism, a key objective of which is to erode the rule of
law. Any "grave breaches" of IHL may be criminally prosecuted not only by those States in
which the crime occurred or whose citizens were affected, but by any State under the
principle of universal jurisdiction; otherwise international jurisdiction applies.

5.2. Ongoing controversies and complexities

Such complexities and related controversies are likely to continue. The nature of current
warfare by well-equipped and organized States against often poorly organized and/or
equipped armed groups has resulted in an increasingly asymmetric style of conflict. This is
illustrated by the technological and military superiority of the US led coalition against the
Taliban and al Qaeda in Afghanistan after its military intervention in 2001 and until its
withdrawal in 2016 (but which is likely to see the redeployment of significant numbers of
troops including by the US), and more recently by international efforts to counter Islamic
State in Syria and Iraq. The unequal balance of military power often results in such
opposition groups going underground and adopting styles of warfare contrary to IHL.
96

Examples include locating themselves in the midst of civilian populations, thereby exposing
civilians to increased risk and potentially using them as a human shield (prohibited by IHL);
and engaging in unlawful, sometimes perfidious, forms of warfare (e.g. wearing civilian
clothing when attacking the adversary, conducting indiscriminate attacks, and targeting
unlawful civilian targets and protected persons). In addition, incorrect designation of acts
that are lawful under IHL as "terrorist" further de-incentivizes non-State armed groups to
comply with IHL, with similar consequences. The terrorist label can also impact negatively
upon the prospect of an amnesty to bring a NIAC to an end [Article 6(5) Additional Protocol
II].

These and other challenges have put fundamental principles of IHL under strain, such as the
concepts of non-reciprocity and the equality of belligerents. IHL is not concerned with the
legitimacy of any cause pursued by belligerents (except perhaps self-determination); rather
it seeks to ensure that all parties to an armed conflict possess the same rights and
obligations in order to ensure equal protection to protected persons and objects impacted
by any conflict, which is not provided for within anti-terrorism legal frameworks.
Significantly too, IHL does not confer legitimacy upon non-State armed groups which are a
party to a NIAC. [See. e.g., Article 3 of Additional Protocol II which reaffirms the sovereignty
of States including their responsibility to maintain domestic law and order]. Where the
principle of non-reciprocity is not respected, it reduces the willingness of both State armed
forces and non-State armed groups to fully comply with IHL, thereby further endangering
the civilian population.

These and other erosions of foundational principles of IHL have been, and continue to be, a
cause for great concern for the ICRC as the guardian of IHL. Indeed, some recent forms of
counter-terrorism responses and rhetoric have resulted in the blurring of the parameters
between armed conflict and terrorism, thereby risking the very tenets upon which IHL is
premised. For instance, a common response by some States to violence perpetrated by non-
State armed groups is to determine this as "terrorist" in nature when, in fact, it is provided
for under IHL. This is in part explicable by the reluctance of States to afford any form of
recognition or legitimacy to non-State armed groups operating on their territory, including
through classifying any internal armed struggle as a NIAC.

One further potential impact of States too readily utilising the "terrorist" label is that it can
have unintended negative consequences, such as the criminalization of otherwise legitimate
and appropriate provision of humanitarian assistance. This situation can arise where a non-
State armed group, which is a party to a NIAC, is categorized as a terrorist organization. This
can result in the group becoming a proscribed terrorist organization at the governmental
and intergovernmental levels, including the UN. Such proscription, in turn, can debar normal
humanitarian support which may constitute criminal (unqualified) acts of rendering
"material support", "services" and "assistance to", or "association with" terrorist
organizations.58 In response, in its report of 2011,59 the ICRC highlighted the need for

58
See, e.g., Holder v Humanitarian Law Project 561 U.S. 1 (2010).
59
ICRC, 'International humanitarian law and the challenges of contemporary armed conflicts' Report (32nd
International Conference of the Red Cross and Red Crescent, Geneva, Switzerland, 8-10 December 2015),
available at https://www.icrc.org/en/document/international-humanitarian-law-and-challenges-contemporary-
armed-conflicts.
97

increased understanding by States of the need to better harmonize humanitarian and


counter-terrorism policies and legal obligations in order to realize and not undermine their
respective objectives. Notably, the ICRC has a treaty-based and statutory mandate, including
under the Geneva Conventions, to engage with non-state armed groups, including as part of
its key role in encouraging the promotion and respect of IHL by all parties to a conflict.

Videos: Interplay between the conduct of hostilities and law enforcement


paradigms

• This webinar discussed the conclusions set forward in an Expert Meeting Report* on
the distinction between the conduct of hostilities and law enforcement paradigms,
available at https://www.icrc.org/eng/resources/documents/event/2014/webinar-
use-of-force.htm.

* Gloria Gaggioli (ed.), 'The Use of Force in Armed Conflicts: Interplay between the
Conduct of Hostilities and Law Enforcement Paradigms ', Expert Meeting, Report, ICRC,
Geneva, November 2013, 92 pp, available at https://www.icrc.org/eng/
assets/files/publications/icrc-002-4171.pdf.

Further reading
• Jelena Pejic, 'Armed Conflict and Terrorism: There is a (Big) Difference in A.M. Salinas
de Friás, K.L.H. Samuel and N.D. White (eds.), Counter-Terrorism: International Law
and Practice (Oxford University Press, 2012), Chapter 7.
• Ben Saul, 'Terrorism and international humanitarian law' in Ben Saul (ed), Research
Handbook on International Law and Terrorism (Edward Elgar, 2014), Chapter 13.
• C. Greenwood, ‘International Law and the “War Against Terrorism,”’ (2002) 78(2)
International Affairs 301.
• N Lamp, ‘Conceptions of War and Paradigms of Compliance: The ‘New War’
Challenge to International Humanitarian Law ‘ (2011) 16 Journal of Conflict and
Security Law 225.
• D. Jinks, ‘The Applicability of the Geneva Conventions to the "Global War on
Terrorism”’ (2005) 46(1) Virginia JIL 165.
• R. Cryer, ‘The Fine Art of Friendship: Jus in Bello in Afghanistan’ (2002) 7 Journal of
Conflict and Security Law 37.
• G. L. Neuman, ‘Humanitarian Law and Counterterrorist Force’ (2003) 14 European JIL
283.
• S.P. Marks, ‘Rebranding the “War on Terrorism”: is There a “New Paradigm” of
International Law?’ (2006) 14 Michigan State Journal of International Law 71.
• J. Klabbers, ‘Rebel with Cause? Terrorists and Humanitarian Law’ (2003) 14 European

98

JIL 299.
• T. Ansah, ‘War: Rhetoric and Norm Creation in Response to Terror’, (2003) 43 Virginia
JIL 797.
• ICRC, 'The applicability of IHL to terrorism and counterterrorism', Report (1 October
2015), available at https://www.icrc.org/en/document/applicability-ihl-terrorism-
and-counterterrorism.
• ICRC, 'Terrorism, counter-terrorism and international humanitarian law', (17 October
2016), available at https://www.icrc.org/en/document/terrorism-counter-terrorism-
and-international-humanitarian-law.


6. Relationship between IHL and international human rights law
One final area to comment upon here is the relationship between IHL and international
human rights law since this dichotomy permeates a number of other issues examined during
this course, such as the right to life and deprivation of liberty during situations of armed
conflict.
The starting premise is that in situations of armed conflict, IHL is the principal applicable
legal regime, i.e. the lex specialis, governing the conduct of hostilities and the protection of
persons in situations of armed conflict. This requires that a nexus exists between particular
activities or treatment and any ongoing conflict. Where such a nexus cannot be established,
normal peacetime criminal justice approaches apply.
In terms of its relationship with human rights law, IHL already reflects fundamental, non-
negotiable, minimum human rights standards. In contrast to international human rights law
which permits derogation from some human rights during times of public emergency [see
further Module 7], including in situations of armed conflict where it continues to apply, IHL
already represents the minimum standards which cannot be reduced further. That said, IHL
and international human rights law still share ‘a common nucleus of non-derogable rights
and a common purpose of protecting human life and dignity’.60 Often both legal regimes will
apply simultaneously, governing such issues as the right to a fair trial, humane treatment in
detention, and the prohibition against torture. The protections afforded by international
human rights law, however, generally afford broader and more extensive levels of
protection (e.g. in relation to abusive or arbitrary treatment by State authorities) and
remain relevant in situations of armed conflict.
A number of important conceptual differences exist between the two legal regimes. One is
that international human rights law is linked to the jurisdiction of States which is normally
its physical territory, though in some situations, where certain criteria are met, its
obligations may extend extraterritorially into the physical territory of another State.61


60
IACHR, Juan Carlos Abella v. Argentina (La Tablada case), Case No. 11.137, Report No. 55/97, 18
November 1997, para. 158. See also ICTY, Prosecutor v. Anto Furundzija (Trial Judgment), IT-95-17/1-T, 10
December 1998, para. 183.
61
See further eg ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
(Advisory Opinion) (The Wall Opinion), 9 July 2004, ICJ Reports 2004, para. 109. See also ECHR, Loizidou v.
99

Another is that, unlike international human rights law, IHL does not offer any enforcement
mechanism to persons whose basic rights have been violated, instead focussing on
international criminal law approaches for prosecuting those persons who violate such rights,
e.g. as war crimes. That said, the scope of IHL is broader than international human rights law
in some respects. For example, IHL is not limited to protecting persons, but also extends to
livestock, civilian objects, cultural property, the environment and so forth. Additionally,
unlike international human rights law which is only binding on States, IHL is binding on all
parties to an armed conflict, including non-State actors who currently pose some of the
most significant terrorism related challenges in situations of armed conflict.

On occasion, important conceptual and legal differences can lead to tensions between the
two legal regimes. One example of especial relevance to counter-terrorism responses
relates to the right to life. IHL permits those persons directly participating in hostilities, such
as non-State armed actors, to be deprived of this right on grounds of military necessity. In
contrast, international human rights law aims to protect life, prohibiting any "arbitrary" and
unnecessary deprivation of life irrespective of a person's status including under IHL. Where
such tensions arise between two or more legal regimes, the issues are normally reconciled
through the lex specialis principle where appropriate. This allows a specialist legal regime
such as IHL to prevail over any conflicting, more general law (lex generalis). Therefore, any
issues arising regarding, for example, the arbitrary deprivation of life during hostilities will
be determined through the legal lens of IHL.62 Similarly, although the internment /detention
of a civilian or a prisoner of war is technically contrary to the principle of liberty and security
under international human rights law [see further Module 10], it is permissible under the lex
specialis of IHL (specifically the Geneva Conventions 1949 III and IV).

Further reading
• W. Abresch ‘A Human Rights Law of Internal Armed Conflict: The European Court of
Human Rights in Chechnya’ (2005) 16 European Journal of International Law 741.
• J. Cerone, ‘Jurisdiction and Power: The Intersection of Human Rights Law & The Law
of Non-International Armed Conflict in an Extraterritorial Context’ (2007) 40 Israel
Law Review 396.
• L. Hill-Cawthorne, ‘Humanitarian Law, Human Rights Law and the Bifurcation of
Armed Conflict’ (2015) 64 International & Comparative Law Quarterly 293.
• C. Droege, ‘Elective Affinities? Human Rights and Humanitarian Law’ (2008)
90 International Review of the Red Cross 501.
• F. Hampson, ‘The Relationship between International Humanitarian Law and Human
Rights Law From the Perspective of a Human Rights Treaty Body’ (2008) 90
International Review of the Red Cross 549.
• L. Hill-Cawthorne, ‘The Role of Necessity in International Humanitarian and Human

Turkey (Preliminary Objections), Case No. 15318/89, Report No. A310, 23 March 1995, paras 62–63; ECHR,
Öcalan v. Turkey, Case No. 46221/99, Judgment of 12 March 2003 (Chamber), § 93 and ECHR, Öcalan v.
Turkey, Case No. 46221/99, Judgment of 12 May 2005 (Grand Chamber), § 91.
62
ICJ, Legality of the reat or Use of Nuclear Weapons (Advisory Opinion), 8 July 1996, ICJ Reports 1996,
para. 25.
100

Rights Law’ (2014) 47 Israel Law Review 225.


• A. Lindroos, ‘Addressing Norm Conflicts in a Fragmented Legal System: The Doctrine
of Lex Specialis’ (2005) 74 Nordic Journal of International Law 27.
• T. Meron, ‘The Humanization of Humanitarian Law’ (2000) 94 American Journal of
International Law 239.
• Symposium on relationship between IHL and IHRL in (2009) 14 Journal of Conflict &
Security Law 441-527.
• Symposium on relationship between IHL and IHRL in (2007) 40 Israel Law Review
306-660.
• J Pejic, ‘The European Court of Human Rights’ Al-Jedda Judgment: The Oversight of
International Humanitarian Law’, (2011) 93 International Review of the Red Cross
837, available at https://www.icrc.org/spa/assets/files/review/2011/irrc-883-
pejic.pdf.
• S. Sivakumaran, ‘Re-envisaging the International Law of Internal Armed Conflict’
(2011) 22 EJIL 219.
• E. Tamura, ‘The Isayeva Cases of the European Court of Human Rights: The
Application of International Humanitarian Law and Human Rights Law in Non-
International Armed Conflicts’ (2011) 10(1) Chinese Journal of International Law 129.
• L. Doswald-Beck, Human Rights in Times of Conflict and Terrorism (Oxford University
Press, 2011).
• W. Kalin and J Kunzli, The Law of International Human Rights Protection (Oxford
University Press, 2010).

Case studies: IHL, armed conflict and terrorism

101

(1) Prosecutor v Miloševi* In this case, the meaning of ‘armed conflict’ continued to
be developed by the ICTY. Specifically, the Court considered the essential criteria for
a non-international armed to exist, as opposed to ‘terrorism’ or mere internal
unrest, after an amici curiae motion was brought arguing that no armed conflict in
Kosovo existed prior to 24 March 1999 (the start of the NATO bombing campaign).
As the facts of the case arose before this date, it was argued there was no case to
answer for war crimes under Article 3 of the ICTY Statute. It was argued that, prior to
24 March 1999, the conflict between Serbia and the Kosovo Liberation Army (KLA)
did not involve protracted armed violence; it was only “acts of banditry, unorganized
and short-lived insurrections or terrorist activities”. Further, the Security Council, in
UNSC Resolution 1160 (31 March 1998), had condemned the outbreak of violence
both of the Serbian ‘police’ and the ‘terrorist acts’ of the Kosovo Liberation Army
(KLA).
Nonetheless, the Trial Chamber approved the test for the existence of an internal
armed conflict in the case of Prosecutor v. Dusko Tadić [IT-94-1-AR72, Appeals
Chamber, Decision, 2 October 1995, paras. 67 – 70], and took into account the
factors with which to assess intensity: the size of the Serbian response to the actions
of the KLA; the spread of the conflict over territory; the increase in number of
government forces and the type of the weapons used. The Chamber said that
control over territory by insurgents was not a requirement for the existence of a
non-international armed conflict. Reference was also made to the decisions of other
Chambers that had considered such factors as the seriousness of attacks and
whether there had been an increase in armed clashes, the spread of clashes over
territory and over a period of time, any increase in the number of government
forces, mobilisation and the distribution of weapons among both parties to the
conflict, as well as whether the conflict had attracted the attention of the Security
Council and whether any resolutions had been passed. The Chamber pointed to the
fact that the KLA had a general staff that appointed zone commanders, gave
directions to units and issued public statements. Unit commanders gave orders and
subordinate units generally acted in accordance with those orders. Steps had been
taken to introduce disciplinary rules and military police and to recruit, train and
equip new members.

(2) Italy v. Bouyahia Maher Ben Abdelaziz, et ors** In this case the Italian Court of
Cassation had to distinguish between acts of terrorism, as defined in international
law, from other similar phenomena, such as actions perpetrated by fighters
belonging to a national liberation movement. Italian law previously had treated such
concepts as guerrilla warfare, guerrillas, wars of national liberation and freedom
fighters as synonyms. Further, such terms were also employed generally to denote
the acts of those engaged in struggles elsewhere against oppression and occupation,
and as such, the non-state fighters should receive protection in so far as they
exercise their right to self-determination.
The defendants were foreign nationals charged, along with aiding and abetting

102

illegal immigration, with the offence of ‘association for the purpose of international
terrorism in Italy and abroad’ under Article 270bis of the Italian Criminal Code. They
were accused of having recruited and sent to Iraq and other war zones, volunteers
to be trained as Islamic fighters. They were also connected in Italy to a group
connected to an organization called Ansar-al-Islam having headquarters in Iraq. The
issue before the court was whether supporting paramilitary training in the Middle
East to carry out violent acts in Iraq or elsewhere should be classed as terrorism in
domestic law.
The courts of first and second instance (i.e. the Tribunal and the Court of Appeal),
relying on the Geneva Convention legal regime, acquitted the defendants of
terrorism as the acts in question were deemed in pursuit of a liberation conflict
occurring elsewhere. The Supreme Court reached the opposite conclusion,
considering the stronger definition of terrorism to be that contained in the 1999
International Convention for the Suppression of the Financing of Terrorism, as
reinforced by UN Security Council Resolution 1373 (28 September 2001).

KJ (Sri Lanka) v SOS Home Dept*** The case was an Appeal from the UK Asylum and
Immigration Tribunal, and concerned questions as to the application of article 1F(c)
of the Convention relating to the Status of Refugees of 1951. Article 1F precludes
from asylum those persons (a) suspected of having participated in the perpetration
of crimes against peace, war crimes, or crimes against humanity, (b) serious non-
political crimes outside the country of refuge prior to entry, (c) found guilty of acts
contrary to the purposes and principles of the United Nations. KJ was a Sri Lankan
national who, as a Tamil, had served with the LTTE military. He had escaped to
Britain, after suspicions were raised he had defected to the Sri Lankan military, and
claimed asylum and humanitarian protection on grounds of his fear of persecution
by government forces and retribution from the LTTE if he returned to Sri Lanka.

The Asylum and Immigration Tribunal had held that he was not entitled to refugee
status, even though he would be put at risk from the LTTE if he returned (but not
from government forces), because there were serious reasons for considering that
he had been guilty of acts contrary to the purposes and principles of the United
Nations within the meaning of Article 1F(c) of the Asylum Convention.

The appeal concerned, among other issues, the finding under Article 1F(c). On this
point, the Appeal Court held that acts of terrorism, in particular, the deliberate
killing or injuring of civilians in pursuit of political objects, were clearly “acts contrary
to the purposes and principles of the United Nations”. In contrast, it did not consider
that acts of a military nature committed by an independence movement (such as the
LTTE) against the military forces of the government are themselves acts contrary to
the purposes and principles of the United Nations. The Court stated that the
application of Article 1F(c) was straightforward in the case of an active member of
an organisation that promotes its objects only by acts of terrorism. In contrast, the
application of Article 1F(c) was less straightforward as regards the LTTE during the
period when KJ was a member, as it pursued its political ends in partby acts of
103

terrorism and in part by military action directed against the armed forces of the
government of Sri Lanka.

*Case No. IT-02-54-T, Decision on Motion for Judgement of Acquittal Under Rule 98
bis, 16 June 2004. See further, e.g., K. Obradovíc, ‘International humanitarian law
and the Kosovo crisis’ (the conflict between the KLA and Serbia as a Geneva Protocol
2 situation, not terrorism), available at
http://www.icrc.org/eng/resources/documents/misc/57jqqb.htm.
** Final Appeal Judgement, Supreme Court of Cassation (Italy), No 1072 (Official
Case No) (2007) 17 Guida al Diritto 90, ILDC 559 (IT 2007), available at
www.geneva.academy.ch/RULAC/pdf_state/Abdelaziz.pdf;
http://oxfordindex.oup.com/view/10.1093/law:ildc/559it07.case.1. See further
Lucia Aleni, ‘Symposium: Some Problems in the Fight Against Terrorism:
Distinguishing Terrorism from Wars of National Liberation in the Light of
International Law: A View from Italian Courts’ [2008] 6(3) J. Int’l. Crim. Just. 525; and
Antonio Cassese, ‘The multifaceted criminal notion of terrorism in international law’
[2006] 4(5) JICJ 933.

*** [2009] EWCA Civ 292, http://www.refworld.org/cases,GBR_CA_CIV,49da
232f2.html. See further Mark Henderson and Alison Pickup, ‘Armed Opposition
Groups: Best Practice Guide to Asylum and Human Rights Appeals’, Chapter 14, 30
November 2014, electronic immigration network,
https://www.ein.org.uk/bpg/chapter/14; and Antonio Coco, ‘The Mark of Cain: The
Crime of Terrorism in Times of Armed Conflict as Interpreted by the Court of Appeal
of England and Wales in R v. Mohammed Gul’ [2013] 11 J. Int’l. Crim. Just. 425 – 440.
Available at SSRN: https://ssrn.com/abstract=2669151.

104

Assessment questions
• What are the main characteristics of a military approach to counter-terrorism?
How does its legal framework differ from that of a criminal justice approach?
• ‘The War on Terrorism will end when terrorism is defeated’ When, if ever, will
that be?

• Why does IHL differentiate between international armed conflicts and non-
international armed conflicts? What is the consequence of this distinction?
• Critically evaluate the legal status of ISIS "fighters" in Iraq involved in military
activities through the lens of IHL. Were they terrorists, parties to a conflict (if
so, what type of conflict) or both?
• What are the legal consequences for terrorists committing criminal acts
during situations of armed conflict who are not parties to the conflict? How
would the implications of their actions differ, if at all, in situations of armed
conflict?
• Discuss in what ways international human rights law applies in situations of
armed conflict, with examples of specific rights. How would the scope and
application of the same rights be different in peacetime?
• Critically evaluate the principal arguments for and against a third category of
"unlawful" or "enemy" combatants. Explain, with reasons, which position you
believe be the correct one.

105

Emergency Powers and Derogations



1. Overview
Most counter-terrorism measures can be adopted and carried out without any interference
with or restriction on human rights. In some circumstances, however, there will be a need –
whether actual or perceived – to limit the enjoyment of certain human rights for the
purpose of protecting the life, physical integrity and fundamental freedoms of others.
Indeed, the protection of the right to life and other rights against violence by terrorist
groups is in itself a primary obligation on states under international human rights law.
The international framework governing counter-terrorism responses recognises the
importance and associated challenges for all States in ensuring national security, including
against asymmetric terrorist activities, and the difficult choices that may need to be made.
Consequently, it has inbuilt mechanisms for accommodating exceptional responses by
States, including declarations of emergency, and the temporary suspension - known as
derogation - of some human rights protections. An underlying principle, however, is that any
state of emergency should be within the law and not exceptional to the law.
Situations of armed conflict, governed by international humanitarian law [see further
Module 6], already represent exceptional contexts in which reduced human rights
protection is permissible. Though not examined in any detail in this module, throughout the
course guide many examples are given of when and how human rights protections differ in
times of armed conflict compared with peacetime contexts.
Whenever emergency powers are invoked and derogations are made, there is always the
risk that what should be exceptional measures become more permanent and erode the rule
of law in the process.63 Indeed, during its significant study in 2009, Assessing Damage:
Urging Action, the International Commission of Jurists coined the phrase 'the normalization'
of exceptional responses64 to describe this risk. There is also the accompanying risk of abuse
of power resulting in human rights violations for which it may be more difficult to secure
redress. Therefore, international, regional and many national legal frameworks (e.g. national
constitutions) have inbuilt safeguards to limit the circumstances in which human rights
protection may be reduced, including through the declaration of a state of emergency and
any resultant derogations.
This module introduces and explains the international legal framework governing states of
emergency and any resultant derogation from human rights, drawing upon regional
perspectives. It further sets up key themes of tension between security imperatives and the
rule of law which can result in the erosion of the latter. This can range from denial of the
right to life or commission of torture or other forms of ill-treatment (despite their non-
derogable status), discriminatory measures, unlawful detention, dilution of due process in
relation to the right to a fair trial, or restrictions on the fundamental democratic freedoms of

63
For a recent example, the French Senate approved a draft law to 'Strengthen Internal Security and the Fight
against Terrorism' on 18 July 2017, which is being debated by the National Assembly at the time of writing.
Concern has been expressed that this could perpetuate the emergency measures introduced in 2015 and
establish a permanent state of emergency. See further 'Two UN rights experts urge France to bring its draft
counter-terrorism law in compliance with its international human rights obligations', available at
http://www.ohchr.org/ EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22165&LangID=E.
64
Report of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights, ‘Assessing Damage:
Urging Action’, Executive Summary (Geneva, 2009) 6, available at http://ejp.icj.org/IMG/ExecSumm.pdf.
106

religion, expression, assembly or association. Examples of excesses and abuses in the


context of emergency powers and counter-terrorism are explored in subsequent, topic
specific, modules.

2. International human rights framework



2.1.1. Limitations permitted by human rights law
Not all human rights principles enjoy the same level of protection. Instead, they can have
different legal characteristics, being absolute or non-absolute in nature or having inherent
limitations.
Some of the most fundamental human rights are “absolute”. Such rights include the
prohibitions on torture, on slavery and on retroactive criminal laws. The absolute character
of these rights means that it is not permitted to restrict these rights by balancing their
enjoyment against the pursuit of a legitimate aim. For example, article 2 UN Convention
against Torture provides that “[n]o exceptional circumstances whatsoever, whether a state
of war or a threat of war, internal political instability or any other public emergency, may be
invoked as a justification of torture.” Similarly, in response to the practice of some States,
the Human Rights Committee has stated that "[t]he prohibitions against the taking of
hostages, abductions or unacknowledged detention are not subject to derogation. The
absolute nature of these prohibitions, even in times of emergency, is justified by their status
as norms of general international law.65
Most rights, however, are not absolute in character. States can limit the exercise of these
rights for valid reasons, including the needs of countering terrorism, as long as they respect
a number of conditions.
In the case of some rights, the conditions for legitimate limitations are spelled out in the
treaty provisions enshrining the right. Examples are the rights to freedom expression,
freedom of association, freedom of assembly and freedom of movement, and the
requirement of publicity of court hearings. These rights are accompanied by various
grounds, such as national security or public order, as well as conditions to be met in order
for them to be legitimately limited. Notably, the restrictions provided for in the text, such as
in Article 18(3) and 19(3) ICCPR, exist and may be relied upon independently of the issue of
derogability. Indeed, even in times of public emergencies as understood in Article 4 ICCPR
explained below, States may elect to rely upon these restrictions instead of seeking
derogations.

The conditions for legitimate limitation of non-absolute rights


On the basis of provisions such as article 19 ICCPR protecting the right to freedom of
expression (other examples in the ICCPR are articles 12, 18, 21, and 22), human rights
courts and treaty bodies have developed a test to establish whether a measure limiting a
non-absolute right is legitimate. The following questions must be asked:

• Is there a legal basis for the measure limiting the right?
• Does the limitation on the right pursue a legitimate aim such as respect of the rights

65
CCPR GC 29 para xx (b).
107

or reputations of others, the protection of national security, the maintenance of


public order or public health or morals?
• If so, is the limitation necessary to achieve the legitimate aim, and is the extent of
the limitation proportionate in pursuit of the identified legitimate aim? The
existence and effectiveness of procedural safeguards will be a key aspect of the
assessment whether the limitation of the right is proportionate.
• Does the restriction respect the principle of equality? Is it non-discriminatory?
Measures that limit rights in a discriminatory way will fail the test of proportionality.
Therefore, the question of discrimination is generally considered one aspect of the
necessity and proportionality test.

Only if all of these questions can be answered in the affirmative in a specific case will a
restriction on a non-absolute right be permissible under international human rights law.

Note that this test was developed to examine the permissibility of measures interfering
with rights explicitly permitting restrictions and spelling out the legitimate aims justifying
restrictions. However, very similar reasoning is in fact used to assess whether measures
limiting other non-absolute rights are permissible. An example: as stated above, detention
will be considered arbitrary not only if it is devoid of a legal basis, but also if it is
discriminatory, or completely disproportionate to the legitimate aim to be achieved (this
is illustrated by the Mukong case discussed in Chapter 4).


In the case of some other rights, the human rights treaty provision limits itself to stating that
the right may not be interfered with “arbitrarily”. This is, for instance, the case of Article 9
ICCPR, which requires that deprivation of liberty must not be arbitrary. The notion of
“arbitrariness” is not to be equated with “against the law”, but must be interpreted more
broadly to include elements of inappropriateness, injustice, lack of predictability and due
process of law.
Finally, some rights are subject to what could be termed “inherent” limitations. The right of
an accused person in a criminal case to be tried without “undue delay” is an example. What
is a reasonable delay has to be assessed in the circumstances of each case, taking into
account the complexity of the case (which in terrorism cases may be considerable), the
conduct of the accused, and the manner in which the matter was dealt with by the
investigating and judicial authorities. These limitations are not articulated in the texts of
human rights treaties, but have been developed by national and international courts and
other treaty monitoring bodies applying human rights norms to specific cases before them.

Research Activity
• Does your country’s constitution and legislation regulate the conditions for
legitimate limitations of human rights (or constitutional rights and freedoms)?
Are any rights established as absolute? Which rights can be limited? Is there case
law of the highest courts in your country regarding the conditions for valid
limitations of human rights?


108

2.1.2. Derogation in times of public emergency


In extreme circumstances, “in time of public emergency which threatens the life of the
nation” (Article 4(1) ICCPR), States may take measures to derogate from the ICCPR, i.e. to
temporarily suspend or adjust their obligations under the treaty, provided a number of
conditions are met. The importance of adhering to these criteria has been emphasized by
inter alia the UN General Assembly.66 At regional level, article 15 European Convention on
Human Rights67 and Article 27 American Charter on Human Rights68 contain similar
provisions. Their overarching principles and approaches are largely the same, though some
regional variations exist regarding their respective texts and approaches.
For example, in delineating strict limits to the utilization of executive power in this way, the
Inter-American Court on Human Right has stated that ‘[t]he starting point for any legally
sound analysis of Article 27 [American Convention] and the function it performs is the fact
that it is a provision for exceptional situations only. It applies solely “in time of war, public
danger, or other emergency that threatens the independence or security of a State Party”.’69
Furthermore, the Court has stated, in the important case of Habeas corpus in Emergency
Situations, that the American Convention ‘permits the suspension of certain rights and
freedoms only “to the extent and for the period of time strictly required by the exigencies of
the situation”.’70 Similarly, in articulating the threshold to be crossed, the European Court on
Human Rights has determined that three conditions are necessary: there must exist an
exceptional situation of crisis or emergency; which affects the whole population; and which
constitutes a threat to the organized life of the community.71 As with the approach of the
Inter-American Court, the European Court of Human Rights permits States some discretion -
a "margin of appreciation" in their assessment of perceived security threats and responses
to them.72
In contrast, the African Charter on Human and People's Rights does not provide for states of
emergency nor the possibility of derogations being made. This reflects the text of Article 22
OAU Convention on the Prevention and Combating of Terrorism 1999 [discussed in Module
4] which states that 'Nothing in this Convention shall be interpreted as derogating from the
general principles of international law, in particular the principles of international
humanitarian law, as well as the African Charter on Human and Peoples’ Rights'. Article 22 is


66
E.g. UNGA Res 60/158 (16 December 2005) para 3. See too UNGA Res 61/171 Protection of human rights
and fundamental freedoms while countering terrorism (2007) para 3.
67
Article 15(1) ECHR: “In time of war or other public emergency threatening the life of the nation any High
Contracting Party may take measures derogating from its obligations under the Convention to the extent
strictly required by the exigencies of the situation, provided that such measures are not inconsistent with
other obligations under international law.”
68
Article 27(1) American Charter on Human Rights states: ' In time of war, public danger, or other emergency
that threatens the independence or security of a State Party, it may take measures derogating from its
obligations under the present Convention to the extent and for the period of time strictly required by the
exigencies of the situation, provided that such measures are not inconsistent with its other obligations under
international law and do not involve discrimination on the ground of race, color, sex, language, religion, or
social origin.'
69
Case of Durand and Ugarte (Judgment on the merits) IACtHR Series C No 68 (16 August 2000) para 99.
70
Habeas corpus in Emergency Situations (Arts 27(2), 25(1) and 7(6) American Convention on Human Rights),
Advisory Opinion OC-8/87 IACtHR A Series No 8 (30 January 1987) para 19; see also Case of Zambrano Vélez et
al v Ecuador (Judgment on Merits, Reparations and Costs) IACtHR C Series No 166 (4 July 2007) para 43.
71
See case of Lawless v Ireland (No 3) (App No 332/57) ECtHR Judgment 1 July 1961 para 28.
72
See, e.g., A and ors v United Kingdom (App no 3455/05) judgment of 19 February 2009 paras 171, 173.
109

regarded to be a "safeguard" clause to prevent States parties from invoking any provisions
under the Convention to justify diluting or even violating human rights protections.

This absence has been endorsed by the ACommHPR, which has confirmed that the rights
recognized in the African Charter cannot be limited or restricted on account of emergency
or special situations.73 That said, this may be achievable in practice under art 27(1) African
Charter which establishes that the rights recognized by the Charter must be exercised with
consideration of the rights of others, collective security, morality, and common interests.
Notably too, the African Charter has a unique provision in Article 23 regarding the right of all
peoples to national and international peace and security. Notably, this places obligations on
its State Parties under Article 23(2) to ensure that no-one enjoying the right to asylum
engages in subversive activities against his country of origin or any other State Party; and
that their territories are not used as bases for "subversive or terrorist activities" against the
people of any other State Party.

A number of rights are “non-derogable”, meaning that they may not be suspended even in
times of the most serious public emergency. It should be noted too that non-derogable
rights exist not only under the ICCPR, but also under customary international law. This is
especially important in relation to non-State Parties to the ICCPR. In some states, there are
additional constitutional safeguards to prevent the abuse of emergency powers. For
example, under Article 137 of the Peruvian constitution, the right to habeas corpus and
"amparo"74 may never be suspended.

Non-derogable rights in the ICCPR

Article 4(2), ICCPR specifies those rights which are non-derogable:


• Article 6 (right to life);
• Article 7 (prohibition on torture, cruel, inhuman or degrading treatment);
• Article 8, paragraphs 1 and 2 (prohibition of slavery, slave-trade and servitude);
• Article 11 (prohibition on imprisonment on the basis of inability to pay a
contractual obligation);
• Article 15 (principle of legality in the field of criminal law);
• Article 16 (right to recognition as a person before the law); and
• Article 18 (freedom of thought, conscience and religion).

According to the Human Rights Committee (General Comment No. 29, paragraphs 13-16),
there are elements in some of the rights not listed in article 4(2) ICCPR which cannot be
lawfully derogated from. Of particular relevance to human rights while countering

73
ACommHPR, Communications 279/03 – Sudan Human Rights Organisations and the Sudan 296/05 – Centre
on Housing Rights and Evictions/The Sudan’ EX.CL/600(XVII) 135, para 167.See too ACommHPR,
Communication 224/98 Media Rights Agenda v Nigeria, (6 November 2000) paras 68-69, available at
http://caselaw.ihrda.org/doc/224.98/.
74
Amparo’ is a remedy through the courts for acts of authority that violate fundamental rights, which also
forms the basis of American Convention art 25 (right to judicial protection). Judicial Guarantees in States of
Emergency (Articles 72(2), 25 and 8 ACHR), Advisory Opinion OC-9/87 IACtHR A Series No 9 (6 October 1987)
paras 38-40.
110

terrorism, these include:


• All persons deprived of their liberty shall be treated with humanity and with respect
for the inherent dignity of the human person (article 10 ICCPR);
• Prohibition against taking of hostages, abductions and unacknowledged detention;
and
• The fundamental requirements of a fair trial.

Certain other rights are also considered to be non-derogable under general international
law and/or in practice too despite not being provided for expressly under Article 4(2)
ICCPR. These include the right for those deprived of their liberty to be treated humanely
(Article 10), the right to a fair trial (Article 14) and elements of the principle of non-
discrimination e.g. to the extent that this protects non-derogable rights. [See e.g. CCPR
General Comment No. 29 paras 7-8].


The application of emergency measures derogating from human rights obligations is subject
to strict requirements and principles in an attempt to prevent their abuse. As the UN Human
Rights Committee observed in their General Comment No. 29 regarding Article 4 ICCPR:75
On the one hand, it allows for a State party unilaterally to derogate
temporarily from a part of its obligations under the Covenant. On the other hand,
article 4 subjects both this very measure of derogation, as well as its material
consequences, to a specific regime of safeguards. “The restoration of a state of
normalcy where full respect for the Covenant can again be secured must be the
predominant objective of a State party derogating from the Covenant." (para 1)
Significantly, '[n]ot every disturbance or catastrophe qualifies as a public emergency which
threatens the life of the nation” (para 3) thereby permitting derogations to be made. This
applies equally to terrorist acts which need to be assessed on a case by case basis to see if
the criteria are fully met before any state of emergency may be declared, essentially
whether they threaten the very independence and integrity of the nation.

Regarding situations of armed conflict, Article 4(1) requires that no measure derogating
from the provisions of the ICCPR may be inconsistent with the State Party’s other
obligations under international law. This extends to international humanitarian law which
governs any reliance upon emergency powers, including to prevent their being abused by
States. Even in this context, derogations may only be permitted to the extent that the
situation poses a threat to the life of the nation (paras 3 and 9). They are subject to the
same principles of constraint detailed below. That said, the practice of derogations in the
context of an armed conflict is not common. For example, though several Contracting
Parties to the ECHR have been involved since 2001 in extra-territorial armed conflicts, no
derogations have been made in relation to them. Consequently, the ECtHR has not had the


75
For a comparative approach, the Council of Europe's Parliamentary Assembly's Committee on Legal Affairs
and Human Rights recently issued equivalent guidance to that of General Comment No. 29 in its 'State of
emergency: proportionality issues concerning derogations under Article 15 of the European Convention on
Human Rights', AS/Jur (2017) 03 (27 February 2017), available at http://www.assembly.coe.int/Committee/
JUR/2017/20170227-ejdoc03-EN.pdf.
111

occasion to consider whether any interpretative differences exist between 'war' and 'other
public emergency' in relation to Article 15 ECHR.76 In situations of armed conflict, the
European Court of Human Rights has though determined that the starting point is the
established jurisprudence of the International Court of Justice that 'the protection offered
by human rights conventions does not cease in cases of armed conflict, save through the
effect of provisions for derogation'.77

Requirements for permissible derogation under the ICCPR

Substantive requirements and principles*

• Existence of a public emergency: there must be a “public emergency which


threatens the life of the nation”, such as armed conflict, civil and violent
unrest, a terrorist emergency, or a severe natural disaster, such as a major
flood or earthquake.
• Principle of conformity with international obligations: Derogations should not be
inconsistent with other obligations under international law. In no circumstances
can the right to derogate from human rights obligations be invoked to justify a
violation of international humanitarian law or of a peremptory norm of
international law. For instance, while derogations from article 14 ICCPR (right to a
fair trial) may be permissible to the extent strictly required by the emergency
situation created by an armed conflict, this can never justify a violation of the fair
trial rights of prisoners of war under the Third Geneva Convention relative to the
treatment of prisoners of war.
• Principle of proportionality: Permissible derogation measures must limit the
derogated rights only to the extent strictly required by the exigencies of the
situation (see article 4(1) ICCPR). In determining whether a derogation is
proportionate, the question to be asked is whether there are other means, less
restrictive of the rights in question, which would provide a similarly effective
means of responding to the exigencies of the situation.
• General Comment No. 29 of the Human Rights Committee makes clear that the
requirement of strict necessity relates to the duration, geographical coverage and
material scope of the derogation. In particular, in relation to the duration of a
derogation, the Human Rights Committee states that “measures derogating from
the provisions of the Covenant must be of an exceptional and temporary nature”.
• Principle 54 of the Siracusa Principles on the Limitation and Derogation Provisions
in the International Covenant on Civil and Political Rights (which have been
endorsed by the United Nations Economic and Social Council) states that “[t]he
principle of strict necessity shall be applied in an objective manner. Each measure
shall be directed to an actual, clear, present, or imminent danger and may not be
imposed merely because of an apprehension of potential danger”.
• Principle of non-discrimination: Derogation must be applied in a non-

76
See Hassan v. United Kingdom, 29750/09, 16 September 2014 (GC), para. 101.
77
See Advisory Opinion on the legality of the threat of use of nuclear weapons, 8 July 1996, para 25; also
Advisory Opinion on legal consequences of the construction of a wall in the occupied Palestinian territory, 9
July 2004, para 106.
112

discriminatory manner, without a distinction solely founded on grounds of race,


colour, sex, language, religion or social origin.

Procedural requirements

• Official proclamation: Derogation measures are only permissible in respect of


public emergencies which are “officially proclaimed”. When proclaiming a public
emergency, States must abide by their constitutional and other provisions of law
which govern such a proclamation. As the Human Rights Committee stated in
General Comment No. 29, this “requirement is essential for the maintenance of
the principles of legality and rule of law at times when they are most needed”.
• International notification: Article 4(3) ICCPR requires States seeking to declare a
public emergency and to derogate from the requirements of the ICCPR to inform
the United Nations Secretary General of this position.

*CCPR General Comment No. 29: Article 4: Derogations during a State of Emergency


Requirements for permissible derogation under the ECHR*

Substantive requirements and principles

• Existence of a war or other public emergency threatening the life of the nation:
there must be a “public emergency which threatens the life of the nation”.
• Principle of conformity with international obligations: Derogations should not be
inconsistent with the State's other obligations under international law.
• Principle of proportionality: only derogating from ECHR obligations 'to the extent
strictly required by the exigencies of the situation'.
• Certain ECHR rights do not allow for any derogation.
Procedural requirements

• The State availing itself of this right of derogation must keep the Secretary
General of the Council of Europe fully informed.

* European Court of Human Rights, 'Guide of Article 15 of the European Convention on
Human Rights: Derogation in time of emergency', updated on 30 April 2017, available at
http://www.echr.coe.int/Documents/Guide_Art_15_ ENG.pdf.


Research Activity:
Undertake research to identify the key substantive and procedural requirements
articulated by the Inter-American Court on Human Rights in relation to derogations.
113

Identify some of its key cases examining these issues. In what ways does the
approach of the Court differ with that of the UN Human Rights Committee and
European Court of Human Rights? Compare and contrast the approach of each of
the three mechanisms. E.g. you could identify and compare one of the leading cases
from each of the three mechanisms.


Regarding the importance of adhering to these criteria, in its 'Declaration on Upholding
Human Rights and the Rule of Law in Combating Terrorism’ in 2004 (Berlin Declaration), the
International Commission of Jurists stated that:
These [rule of law] principles, standards and obligations define the boundaries of
permissible and legitimate state action against terrorism. The odious nature of
terrorist acts cannot serve as a basis or pretext for states to disregard their
international obligations, in particular in the protection of fundamental human rights.
A pervasive security-oriented discourse promotes the sacrifice of fundamental rights
and freedoms in the name of eradicating terrorism. There is no conflict between the
duty of states to protect the rights of persons threatened by terrorism and their
responsibility to ensure that protecting security does not undermine other rights.78
Due to the potential for states of emergency and resultant derogations to be misused and
exceed what is permissible, it is important that they are kept under regular review to ensure
that the threshold criteria are still met. As the Siracusa Principles envisage, '[t]he national
constitution and laws governing states of emergency shall provide for prompt and periodic
independent review by the legislature of the necessity for derogation measures.' [Principle
55]. The importance of such ongoing review was reiterated by the Council of Europe
Parliamentary Assembly Committee on Legal Affairs and Human Rights in its State of
emergency: proportionality issues concerning derogations under Article 15 of the European
Convention on Human Rights Information Note:

The judicial supervision of derogations is necessary to preserve the rule of law,


protect non-derogable rights and prevent arbitrariness. As a former Council of
Europe Commissioner for Human Rights has noted, “[i]t is precisely because the
Convention presupposes domestic controls in the form of a preventive
parliamentary scrutiny and posterior judicial review that national authorities enjoy
a large margin of appreciation in respect of derogations. This is, indeed, the
essence of the principle of subsidiarity in the protection of Convention rights.79

As the Information Note further states, all human rights, including those subject to
derogations, remain justiciable by the courts. Therefore, any individual alleging the violation
of their ECHR rights retains the right to an effective domestic remedy under Article 13 ECHR

78
International Commission of Jurists, 'The Berlin Declaration: The ICJ Declaration on Upholding Human Rights
and the Rule of Law in Combating Terrorism', adopted 28 August 2004, 1, available at
http://www.refworld.org/docid/41dec1f94.html. Similarly, see UN CT Strategy, Action Plan: Pillar IV, Preamble,
that ‘effective counter-terrorism measures and the protection of human rights are not conflicting goals, but
complementary and mutually reinforcing’.
79
Referring to “Opinion 1/2002 of the Commissioner for Human Rights, Mr Alvaro Gil-Robles, on certain
aspects of the United Kingdom 2001 derogation from Article 5 par. 1 of the European Convention on Human
Rights”, CommDH(2002)7, 28 August 2002, para. 9.
114

(para 2). This is reflected too in Siracusa Principle 56 that '[e]ffective remedies shall be
available to persons claiming that derogation measures affecting them are not strictly
required by the exigencies of the situation.'

Another core aspect of preserving adequate safeguards is ensuring that the rule of law is
maintained within national legal systems, notably the separation between the executive,
legislature and judiciary in order to maintain appropriate levels of checks and balances.
One further issue relates to the language used and approach adopted. Though the language
of balancing national security needs against international obligations, including human
rights law, is often used in discourse and the jurisprudence of courts regarding the
utilization of derogations as a counter-terrorism tool, there is the accompanying risk that
this may facilitate the misuse of derogations. The language of balancing may invite the
belief that the higher the perceived security threats including from terrorism, the greater
the justification is to argue exceptionality and the accompanying temptation for States to
depart from established rule of law norms. Therefore, consideration should be given to an
alternative language of accommodating security imperatives within existing legal obligations
in an attempt to dissuade exceptional practices out with the established legal framework by
States. The ultimate goal underpinning any declaration of emergency and resultant
derogations should be to enable a State's executive branch especially to re-establish law and
order whether a danger or threat to public order risks national security and social peace.
Once again, the courts have a key role to play here. Though they are generally deferential
towards the executive regarding such factors as national security assessments, it is
important that the courts ensure that strict limitations are maintained regarding the
exercise of such discretion.80 That said, seeking to reconcile national security requirements
with preserving the integrity of the rule of law can be a fine line to tread and is often a
source of significant tension between the executive and judiciary.

Two case studies on the validity of derogations


The Landinelli Silva case*: Mr. Landinelli Silva and others were members of certain
political parties in Uruguay and ran for public office as candidates of those parties in
elections. Following a change in the political regime, these parties were declared illegal
by government decree, which also deprived the parties’ candidates at previous elections
of the right to vote for 15 years. Uruguay sought to justify these measures by reference
to a purported state of emergency. In its note to the UN Secretary-General, which was
designed to comply with the requirements laid down in article 4(3) ICCPR, the
Government of Uruguay made reference to an emergency situation in the country. No
factual details were given. The note confined itself to stating that the existence of the
emergency situation was "a matter of universal knowledge", without attempting to
indicate the nature and the scope of the derogations actually implemented or the
necessity of the measures in question.
The Human Rights Committee concluded that the conditions for a valid derogation were
not satisfied. It observed that, “even on the assumption that there exists a situation of
emergency in Uruguay, the Human Rights Committee does not see what ground could

80
See, eg, Klass and others v Germany (n 63) paras 48-9; and A and others v The United Kingdom (n 147) para
173.
115

be adduced to support the contention that, in order to restore peace and order, it was
necessary to deprive all citizens, who as members of certain political groups had been
candidates in the elections of 1966 and 1971, of any political right for a period as long as
15 years. […] The Government of Uruguay has failed to show that the interdiction of any
kind of political dissent is required in order to deal with the alleged emergency situation
and pave the way back to political freedom.”
Case of A and Others**: Following the terrorist attacks on the United States of America
of 11 September 2001, the United Kingdom adopted legislation allowing the arrest and
administrative detention of foreign nationals suspected by a government minister to be
“international terrorists”. The detention decision was subject to review by a special
immigration appeals court. Accepting that these detention powers might be
inconsistent with article 5(1) of the ECHR (which protects the right to liberty), the
government sought to avail itself of the right of derogation under article 15(1) of the
ECHR. The government argued that foreign nationals present in the United Kingdom
suspected of being involved in the commission, preparation or instigation of acts of
terrorism constituted a threat to the national security of the United Kingdom and a
public emergency.
A and others were foreign nationals living in the United Kingdom. The government
suspected them of being international terrorists. However, the government considered
that human rights law, specifically the principle of non refoulement (see further Module
3 Section 8.3.3), prevented their deportation, as they would have been at risk of torture
in their countries of origin. The government also considered that their prosecution in
the United Kingdom would not be possible. The men were therefore placed in
administrative detention under the new anti-terrorism legislation.
The validity of the UK’s derogation was examined by both the House of Lords as the
United Kingdom’s highest court, and the ECtHR. The ECtHR observed that national
authorities enjoyed a wide margin of appreciation in assessing whether the life of their
nation was threatened by a public emergency. Weight had, therefore, to attach to the
judgment of the government, Parliament and national courts in this regard. With some
hesitation, both the House of Lords and the ECtHR accepted the government’s view that
there was a public emergency threatening the life of the nation which could justify
derogations from the ECHR.
However, the House of Lords and the ECtHR also both took issue with the fact that the
special administrative detention powers could be exercised only against foreign
nationals and not against UK citizens suspected of being international terrorists. The
two courts were not persuaded by the government’s reasons for this difference in
treatment. The House of Lords and the ECtHR concluded that the derogating measures
were disproportionate in that they discriminated unjustifiably against non-nationals,
and therefore did not accept the validity of the derogation.
As a result of these judgments, the UK changed the law and abolished the specific
administrative detention powers that had been successfully challenged.
*Human Rights Committee, Landinelli Silva v. Uruguay, Communication no. 8/34, U.N.
Doc. Supp. No. 40 (A/36/40) at 130, 8 April 1981.
** ECtHR, A. and Others v. the United Kingdom, Application no. 3455/05, Judgment of
19 February 2009.

116

Activities - Essay Questions


• Has your country every declared a state of emergency? If so, in what
circumstances? What impact did this have on the rule of law in your country?
• Has your country ever taken measures derogating from its obligations under a
United Nations or regional human rights treaty? Is there any relevant national
case law that you can analyse?
• Is the approach of the national courts (unduly) deferential or (appropriately)
robust towards the executive? If so, in what ways?
• Is the separation of powers - between the executive, legislature and judiciary -
maintained in your country?
• Does your country’s constitution and legislation regulate the conditions for
derogation from human rights norms (or constitutional rights and freedoms) in a
state of emergency? Are any rights established as non-derogable?
For each of the above questions, if your own country has not declared a state of
emergency, then select another country in your own region which has.
• A close reading of the judgments in the A. and Others case summarised above
shows that several of the judges dealing with the case, both in the House of Lords
and the ECtHR, had significant doubts as to whether the terrorist threat in the
United Kingdom at the time really constituted an emergency justifying derogation
from human rights obligations. Article 4(2) ICCPR allows derogations in time of
“public emergency threatening the life of the nation”. How would you assess
whether the threat to public security due to terrorism in your country at a given
time meets that threshold?

Further reading
• Human Rights Committee, 'General Comment 29: States of Emergency (article 4)',
available at http://www.unhchr.ch/tbs/doc.nsf/0/71eba4be3974b4f7c1256
ae200517361.
• Council of Europe Parliamentary Assembly Committee on Legal Affairs and Human
Rights, 'State of emergency: proportionality issues concerning derogations under
Article 15 of the European Convention on Human Rights', AS/Jur (2017) 03 (27
February 2017), available at http://www.assembly.coe.int/Committee/JUR/2017/2017
0227-ejdoc03-EN.pdf.
• European Court of Human Rights, 'Terrorism and the European Convention on Human
Rights' Factsheet (August 2017), available at http://www.echr.coe.int/
Documents/FS_Terrorism_ENG.pdf.
• European Court of Human Rights, 'Derogation in time of emergency', Factsheet (July
2017), available at http://www.echr.coe.int/Documents/FS_Derogation_ENG.pdf.
• European Commission for Democracy through Law (Venice Commission), 'Opinion on
Protection of Human Rights during States of Emergency', available at
http://www.venice.coe.int/WebForms/pages/?p=01_Presentation.
117

• European Commission for Democracy through Law (Venice Commission), 'Report on


Counter-Terrorism Measures and Human Rights', adopted by the Venice Commission
at its 83rd Plenary Session, CDL-AD(2010)022 (Venice, 4 June 2010) section IV,
available at https://rm.coe.int/1680640e49.
• European Court of Human Rights, 'Guide of Article 15 of the European Convention on
Human Rights: Derogation in time of emergency', updated on 30 April 2017, available
at http://www.echr.coe.int/Documents/Guide_Art_15_ ENG.pdf.
• Chapter 16 of Human Rights in the Administration of Justice: A Manual on Human
Rights for Judges, Prosecutors and Lawyers, published by the Office of the High
Commissioner for Human Rights, deals with the administration of justice during public
emergencies, available at http://www.ohchr.org/
Documents/Publications/training9chapter16en.pdf
• Siracusa Principles on the Limitation and Derogation Provisions in the International
Covenant on Civil and Political Rights (E/CN.4/1985/4, annex), available at
http://www.refworld.org/docid/4672bc122.html.
• International Commission of Jurists, 'The Berlin Declaration: The ICJ Declaration on
Upholding Human Rights and the Rule of Law in Combating Terrorism', adopted 28
August 2004, 1, available at http://www.refworld.org/ docid/41dec1f94.html.
• Report of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human
Rights, ‘Assessing Damage: Urging Action’, Executive Summary (Geneva, 2009) 6,
available at http://ejp.icj.org/IMG/ExecSumm.pdf.
• Richard Burchill, 'When does an Emergency Threaten the Life of the Nation -
Derogations from Human Rights Obligations and the War on International Terrorism',
8 Y.B. of N.Z. Jurisprudence. 99, 118 (2005).
• Ben Chigara, 'The Unfinished Business of Human Rights Protection and the Increasing
Threat of International Terrorism', 13 Asian Yearbook of International Law (2007).
• Angelika Siehr, 'Derogation Measures under Article ICCPR, with Special Consideration
of the War against International Terrorism', 47 German Y.B. Int'l L. 545, 593 (2004).
• Julian M Lehmann, 'Limits to Counter-Terrorism: Comparing Derogation from the
International Covenant on Civil and Political Rights and the European Convention on
Human Rights', available at http://projects.essex.ac.uk/ehrr/V8N1/Lehmann.pdf.
• Emilie M Hafner-Burton, Laurence R Helfer, and Christopher J Fariss, 'Emergency and
Escape: Explaining Derogations from Human Rights Treaties' International
Organization 65, Fall 2011, pp673–707, available at
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2947&context=faculty_s
cholarship.
• C Michaelsen, 'Derogating from International Human Rights Obligations in the "War
against Terrorism"? - A British-Australian Perspective (2005) 17 Terrorism and Political
Violence 131-155, available at http://archives.cerium.ca/IMG/pdf/
MICHAELSEN_2005_Derogating_from_International_Human_Rights_Obligations_in_t
he_War_Against_Terrorism.pdf.
• Başak Bağlayan, The Turkish State of Emergency under Turkish Constitutional Law and
International Human Rights Law ASIL Insights volume 21 issue 1 (3 January 2017),
available at https://www.asil.org/insights/volume/21/issue/1/turkish-state-
emergency-under-turkish-constitutional-law-and.
• 'Two UN rights experts urge France to bring its draft counter-terrorism law in
compliance with its international human rights obligations', available at
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22165&Lan
118

gID=E.
• International Federation for Human Rights, 'Egypt: Counter-Terrorism against the
background of an endless state of emergency', January 2010, available at
https://www.fidh.org/IMG/pdf/Egypt_Antiterro_EN.pdf.
• International Federation for Human Rights, 'Counter-Terrorism Measures and Human
Rights: Keys for Compatibility Human rights Violations in Sub-Saharan African
Countries in the Name of Counter-Terrorism: A High Risks Situation', November 2007,
available at https://www.fidh.org/IMG/pdf/afriqueantiterr483eng2007.pdf.
• Daniel E Abbiboa, 'Peace at Daggers Drawn? Boko Haram and the State of Emergency
in Nigeria, Studies in Conflict and Terrorism, vol 37, 2014, pp41-67, available at
http://www.tandfonline.com/doi/full/10.1080/1057610X.2014. 853602?src=recsys.
• University of Leiden, ‘Counter-terrorism Strategies, Human Rights and International
Law: Identifying the Challenges’ (31 May 2007) 12, available at
http://media.leidenuniv.nl/legacy/Final%20Report%20Counter%20Terrorism %20Expe
rt%20Seminar.pdf.
• A Atta-Asamoah, ‘Counter-Terrorism and the National Security of African States:
Points of Convergence and Departure’ (2008) 6 Journal of Security Sector
Management 1, available at
https://www.researchgate.net/publication/315677215_Counter-
Terrorism_and_the_National_Security_of_African_StatesPoints_of_Convergence_and
_Departure.


2.1.3. Examples of terrorism related states of emergency and derogations
The formal reporting of derogations, as is required by Article 14(3) ICCPR to reduce the
potential for their misuse, on the grounds of terrorism/counter-terrorism do not occur
often. In addition to the potential for human rights violations to occur, there is always the
risk that any suspension of normal rule of law systems and processes, such as regarding due
process, may result in the longer term undermining of the rule of law within a State,
including its ordinary due process guarantees and sanctions for suspected or convicted
terrorists.

In terms of the form that restrictions resulting from a state of emergency and any related
derogations may take, commonly these will give the executive special powers regarding
arrest, searches, restrictions of liberty including longer periods of pre-charge and pre-trial
detention, suspension or limitation of habeas corpus, reduced access to legal representation
and advice, the utilization of military courts or commissions to try civilian suspects,
restrictions on disclosure of and access to classified evidence, the lowering of evidentiary
standards, limitation on appeal rights, the imposition of curfews, the prohibition of public
meetings, the disbanding of associations/groups, restrictions on media reporting and social
media, border restrictions, the mobilisation of the army, and so forth.

Terrorism related derogations under Article 4(3) ICCPR*

Azerbaijan:
• 20 hour state of emergency following an attack on 4 October 1994; later
extended for a period of 60 days.
119

• Derogation made from Articles 9, 12, 19 and 22 ICCPR



Chile:
• State of emergency declared following wave of terrorist aggression on 16
September 1986.
• Derogation made from Articles 9, 12, 13 and 19 ICCPR

Colombia:
• Declared a state of emergency three times in response to terrorist activities by
guerilla organisations and organised crime syndicates on 16 July 1992, 10
November 1992 and 3 November 1995.
• Derogations made from Articles 12, 17, 21 and 22 ICCPR.
• Further derogations made from Articles 9 and 12 on 18 June 1996 'to control the
activities of criminal and terrorist organizations in special public-order zones'.
France:
• Declared a state of emergency on 23 November 2015 following terrorist attacks
in Paris.
• Derogations made from Articles 9, 12 and 17 ICCPR.
• Has been renewed periodically since 26 February 2016 with the most recent
extension made on 14 July 2017. Currently considering a permanent state of
emergency.

Israel:
• Declared on 3 October 1991 that the state of emergency proclaimed in May 1948
has remained in force ever since due to the 'continuous threats and attacks on its
very existence as well as on the life and property of its citizens'.
• Derogations made from Article 9 ICCPR.
Nepal:
• Declared a state of emergency on 26 November 2001 in response to the 'serious
situation arising out of terrorist attacks perpetrated by the Maoists in various
districts, killing several security and civilian personnel and attacking the
government installations'.
• Suspended numerous rights under its own constitution, including the right to
freedom of opinion and expression, freedom to assemble peacefully, right to
press and publication, right against preventive detention, the rights to
information, property, privacy and constitutional remedy; but declared that the
rights contained in Articles 6, 7, 8 (1) and (2), 11, 15, 16 & and ICCPR remained in
effect.
• Further declared a state of emergency on 1 February 2005 in response to a threat
to the nation’s sovereignty and the ‘untold sufferings brought about by the rise in
terrorist activities throughout the country’.
• Derogated from Articles 2(3), 12(1) and (2), 17 and 19 ICCPR.
Russia:
• Declared a state of emergency on 22 June 1993, 'in view of the deterioration of
120

the situation and the increased frequency of terrorist acts and widespread
disorder on national soil involving the use of firearms'.
• Derogated from Articles 9, 12, 19, 21 and 22 ICCPR.
• Declared state of emergency on 30 September 1993 in several districts due to
‘the increase in the number of acts of terrorism and violence’.
• Derogated from Articles 12(1), 13, 19(2) and 22 ICCPR.
• Declared a further state of emergency on 4 April 1994 due to continuing tensions
and ‘unceasing acts of terrorism and violence, including violence against the
civilian population’
• Derogated from Articles 12(1), 19(2), 21, 22(1) and 22(2) ICCPR.
Sri Lanka

• Promulgated constitutional emergency regulations on 2 May 2010 to deal with


the threat of terrorism posed by the Liberation Tigers of Tamil Eelam (LTTE).
• Following elimination of the threats posed by the LTTE emphasised the need for
vigilance to prevent potential future threats, but nonetheless enumerated the
terminations of derogations from Articles 9(2), 12, 14(3), 17(1), 19(2), 21 and
22(1) ICCPR.

United Kingdom
• On 17 May 1976, no state of emergency was declared; but a declaration was
made to extend powers in response to ‘campaigns of organised terrorism related
to Northern Irish affairs’.
• On 18 December 2001, following the 9/11 attacks, recognised that there ‘exists a
terrorist threat to the United Kingdom from persons suspected of involvement in
international terrorism’ and that ‘[a]s a result, a public emergency, within the
meaning of Article 4(1) of the Covenant exists’.
• Derogated from Article 9 ICCPR.

*Treaty ratification status: https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&
mtdsg_no=IV-4&chapter=4&clang=_en.

Terrorism related derogations under Article 15 ECHR*


Eight Contracting Parties to the ECHR have derogated from its provisions as it is
permitted under Article 15. To date, this has included Albania, Armenia, France,
Georgia, Greece, Ireland, Turkey and the United Kingdom.

The most recent declarations of states of emergency which have or which may result in
derogations are:

Ukraine
121

• 5 June 2015 notification to the Council of Europe due to deteriorating security


situation in the East of Ukraine (subsequently renewed on 4 November 2015, 30 June
2016, 2 February 2017).
• Derogated from Articles 5, 6, 8 and 13 ECHR.


France
• 24 November 2015 notification to Council of Europe, following large scale terrorist
attacks, initially in Paris (subsequently renewed on 25 February 2016, 25 May 2016, 22
July 2016, 21 December 2016 and 13 July 2017).
• Kept open option of derogation.

Turkey
• 21 July 2016 notification to Council of Europe,** following attempted coup d'état
(subsequently renewed on 17 October 2016, 5 January 2017 and 19 July 2017).
• Kept open option of derogation.


* European Court of Human Rights, 'Derogation in time of emergency', Factsheet (July
2017), available at http://www.echr.coe.int/Documents/FS_Derogation_ENG.pdf.
**Notification of Communication by Turkey, dated 25 July 2016, available at
https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet
&InstranetImage=2930086&SecMode=1&DocId=2380804&Usage=2.


Videos:

States of emergency can take many different forms and result in a range of human
rights concerns. Watch a selection of the following short films drawn from different
contexts around the world, and discuss them as a class:

• Ethiopia: Hundreds Of Protesters Killed; State Of Emergency Promotes Human Rights


Abuse, 20 October 2016, available at https://www.youtube.com/watch?v=
K4FmT1Mzy68.
• Turkey suspends human rights convention, 22 July 2016, https://www.youtube.com/
watch?v=N8BbnztPvjE.
• French state of emergency explained, 14 November 2015, available at
https://www.youtube.com/watch?v=4bHbBNKoctA.
• Martial Islands, the Philippines: Duterte's anti-terrorism policy sparks fears from
human rights groups, 26 May 2017, available at https://www.youtube.com/watch?v=
dEpBZJewUNg.

122

Assessment scenario
• You are the senior legal officer to the Government of Arcadia. Two days ago, the
capital of Arcadia, Arkis, sustained multiple, simultaneous suicide bomber attacks
against different sports stadiums that were full of supporters, including young
families. The current death toll is currently over 100 people, with an estimated
500 people injured some of whom are in a critical condition. It is believed that
the leaders of the terrorist group responsible for the attack, the DDD, are still at
large and in hiding in Arcadia. An urgent search is currently under way, not only
to bring those responsible for the recent attacks to justice, but because there is
credible intelligence to suggest that a similar attack is being planned in another
city.
• In response to this emergency situation, the Government of Arcadia has declared
a state of emergency. You have been asked for the following assistance:
(1) Advice on which human rights obligations under the ICCPR may lawfully be
derogated from, including which ones it would be justifiable to derogate from in the
circumstances;
(2) To draft the "Communication Notification" to the UN Secretary-General, giving
the background to the declaration of a state of emergency, reasons why it has been
declared, and explaining which ICCPR obligations have been derogated from and
why. The Communication should be framed around key legal principles and the
interpretation of them by (quasi-)judicial bodies.
• The communication should be, e.g., between 1000-1500 words in length.
• You should use your imagination to make up necessary fictious information, such
as background information on the DDD terrorist group; relevant national
legislation, and so forth.
• You should consider previous actual communications made under the ICCPR or
regional human rights conventions to reflect their style and approach.



123

SUPPLEMENTARY MATERIALS

• C Landa, ‘Los Derechos Fundamentales como Límites a la Legislación Antiterrorista’ in D


García Belaunde (ed), La Constitución y su Defensa (Algunos problemas
contemporáneos) (Instituto Iberoamericano de Derecho Constitucional, Lima 2005)

• Cour européenne des droits de l'homme, 'Sécurité nationale et jurisprudence de la Cour
européenne des droits de l'homme', Conseil de l'Europe 2013, available at
http://www.echr.coe.int/Documents/Research_report_national_security_FRA.pdf.

124

Privacy and Intelligence Gathering

1. Overview

A very important element of any State's counter-terrorism efforts is to gather intelligence


regarding those plotting and perpetrating terrorist acts against it. The overarching goal is to
maintain the integrity of national security, keeping the population safe in the process.
Intelligence plays a pivotal role in preventing terrorist attacks from occurring and in assisting
law enforcement officers in apprehending persons suspected of committing terrorist acts
whether before or after an actual attack has occurred. Intelligence has also played a central
role during recent and ongoing situations of armed conflict, including in identifying, locating
and "neutralising", i.e. killing, these non-State actors.

Both peacetime and armed conflict contexts require complex and extensive intelligence
gathering efforts due to the transnational and global nature and activities of some terrorist
groups including al Qaeda and Islamic State. Therefore, multinational inter-agency
cooperation plays a critical role in counter-terrorism prevention.81

The topic of intelligence gathering, however, is often an emotive one since commonly it is
associated with rule of law concerns regarding the infringement of fundamental human
rights through executive excesses. These can range from the utilization of 'coercive
interrogation techniques' amounting to torture [Module 9], to violations of the right to life
through extrajudicial killings or enforced disappearances [Module 8], to discriminatory
practices [Module 13], to the unlawful interference with privacy which is a principal focus in
this module. For example, civil society groups have expressed repeated concern regarding
legislation that increases the surveillance powers of intelligence and law enforcement
officials which have the accompanying potential to significantly reduce the right of
individuals to privacy and erode democratic principles in the process.

This is explicable, at least in part, by the rule of law tensions inherent in intelligence
gathering activities. The International Commission of Jurists, in its global report Assessing
Damage: Urging Action described this in the following terms:

There is a genuine problem involved. The prevention of terrorist acts relies on good
intelligence, and intelligence gathering by its very nature requires some degree of
secrecy. Sometimes to reveal covert intelligence-gathering methods, or the
extent of what is already known or not known, will undermine the effectiveness of
the operation and put lives at risk. At the same time, secrecy can sometimes be no more
than a cloak to avoid proper accountability.82


81
See, e.g., article 20(1) The United Nations Convention against Transnational Organized Crime date which
requires States Parties, if permitted by the basic principles of their national legal systems, to allow for the
use, where appropriate, of undercover operations or infiltration of criminal operations in their territory, for
the purpose of combating organized crime.
82
ref ICJ report exec summary p10.
125

Particular difficulties have arisen when the practices of some States have crossed the line of
legality and legitimacy, thereby hindering rather than facilitating multinational cooperation
and undermining the rule of law in the process. That said, some of the illegal practices
relating to intelligence gathering have been outsourced to third party States which have
been willing participants in such collaborative activities. [see further e.g. Module 9].

A contributing factor here has been where States have broadened the mandate of
intelligence agencies thereby blurring the line between the operation of intelligence
agencies and law enforcement officials. Normally, intelligence agencies are focused
primarily on gathering information aimed at preventing terrorist attacks from occurring and
are not directly involved in any subsequent criminal justice processes including its
accompanying procedural requirements; whereas law enforcement officers are responsible
for the maintenance of public order through the investigation of crime and are concerned
with the procedural requirements of due process, including the gathering of admissible
evidence through lawful means which may be relied upon during subsequent court
proceedings.

As a consequence, a number of significant human rights concerns have arisen due to such
factors as the differing ethos and goals between intelligence agencies and law enforcement
officers not being reconciled; the lack of adequate training of intelligence agencies in
criminal justice due process requirements including human rights obligations; and,
significantly in the absence of adequate oversight and accountability mechanisms. In some
instances, rule of law excesses have been attributed to executive policies and orders which
have either directed that such excesses be perpetrated or which have facilitated their
commission.

This module examines these and other issues relating to intelligence gathering techniques
and how they sit within the existing legal framework, including in relation to the right to
privacy.

Further reading
• The UN Special Rapporteur on the Protection of Human Rights while Countering
Terrorism, has produced a report on good practice by intelligence agencies in
counter-terrorism efforts, including in respect of the use of agents. See Report
of the Special Rapporteur on Human Rights and Counter-terrorism,
A/HRC/14/46, available at:
http://www.ohchr.org/EN/Issues/Terrorism/Pages/Issues.aspx.
• The 2010 annual Report of the United Nations High Commissioner for Human
Rights on the protection of human rights and fundamental freedoms while
countering terrorism, A/HRC/16/50, discusses specific challenges concerning
the use of intelligence in the context of criminal justice processes:
http://www2.ohchr.org/english/bodies/hrcouncil/docs/16session/A-HRC-16-
50.pdf
• For an overview of international practice in relation to issues arising in the
126

context of the investigation of terrorist incidents, including practice relating to


the relationship between intelligence gathering and the gathering of evidence
in relation to terrorist offences is set out in the UNODC Digest of Terrorist Cases,
especially Chapter V (B). The publication is available here:
http://www.unodc.org/documents/terrorism/Publications/Digest_of_Terrorist_
Cases/English.pdf.
• For examples of good practice in dealing with the various problems that can
arise in the context of electronic surveillance UNODC’s Current Practices in
Electronic Surveillance in the Investigation of Serious and Organized Crime
available at: https://www.unodc.org/documents/organized-crime/Law-
Enforcement/Electronic_surveillance.pdf.
• The UNODC publication The Use of the Internet for Terrorist Purposes provides
(in chapter IV) examples of investigative techniques used in the investigation of
terrorism-related internet activities. The publication is available at:
http://www.unodc.org/documents/terrorism/Publications/12-
52159_Ebook_Internet_TPB.pdf.
• Council of Europe, Committee of Ministers Recommendation 10 (2005) on
Special Investigative Techniques in respect of Serious Crime including Terrorism
adopted by the Committee of Ministers on 20 April 2005 is available at:
https://wcd.coe.int/ViewDoc.jsp?id=849269&Site=CM. There is also an
Explanatory Report to the Recommendation providing useful legal analysis:
http://www.coe.int/t/dlapil/codexter/Source/Rec%20_2005_%2010%20E%20Ex
planatory%20memorandum.pdf.

• Ian Brown, Morton H Halperin, Ben Hayes, Ben Scott and Mathias Vermeulen,
'Towards Multilateral Standards for Surveillance Reform', https://cihr.eu/wp-
content/uploads/2015/01/Brown_et_al_Towards_Multilateral_2015.pdf.
• Report of the Eminent Jurists Panel on Terrorism Counter-Terrorism and Human
Rights, Assessing Damage Urging Action (2009), http://ejp.icj.org/IMG/EJP-Report.pdf.
p69-74.

2. Legal framework

2.1. International legal framework governing privacy

The importance, as well as the related rule of law challenges, of the right to privacy in a
counter-terrorism context has been succinctly captured by the UN Special Rapporteur on
the promotion and protection of human rights and fundamental freedoms while countering
terrorism in the following terms:

127

In addition to constituting a right in itself, privacy serves as a basis for other rights
and without which the other rights would not be effectively enjoyed. Privacy is
necessary to create zones to allow individuals and groups to be able to think and
develop ideas and relationships. Other rights such as freedom of expression,
association, and movement all require privacy to be able to develop effectively.
Surveillance has also resulted in miscarriages of justice, leading to failures of due
process and wrongful arrest.”83

Such sentiments are reflected also in UN General Assembly outputs. Recently, it adopted
unanimously Resolution 68/167 (18 December 2013) entitled 'Right to privacy in the digital
age'. The preamble of the resolution states that 'unlawful or arbitrary surveillance and/or
interception of communications, as well as unlawful or arbitrary collection of personal data,
as highly intrusive acts, violate the rights to privacy and freedom of expression and may
contradict the tenets of a democratic society.' It notes 'that while concerns about public
security may justify the gathering and protection of certain sensitive information' States
must ensure that they fully comply with their existing obligations under international
human rights law.

The right to privacy is enshrined in international and regional human rights treaties. The
starting point here is Article 17(1) ICCPR which states that 'No one shall be subjected to
arbitrary or unlawful interference with his [or her] privacy, family, home or correspondence,
nor to unlawful attacks on his honour and reputation. Moreover, 'Everyone has the right to
the protection of the law against such interference or attacks.' (Article 17(2)).

In terms of its meaning, privacy has been defined as:

[T]he presumption that individuals should have an area of personal autonomous


development, interaction and liberty free from State intervention and excessive
unsolicited intrusion by other uninvited individuals… The duty to respect the
privacy and security of communications implies that individuals have the right to
share information and ideas with one another without interference by the State (or
a private actor), secure in the knowledge that their communications will reach
and be read by the intended recipients alone. The right to privacy also
encompasses the right of individuals to know who holds information about them and
how that information is used.84

Privacy as a derogable right


The right to privacy is not one of the non-derogable rights specified in Article 4(2)
ICCPR. That said, the UN Special Rapporteur on the promotion and protection of human
rights and fundamental freedoms while countering terrorism has observed the
following with respect to derogations:

Article 17 ICCPR: Derogations can be made only during a state of emergency

83
Report of the United Nations Special Rapporteur on the promotion and protection of human rights and
fundamental freedoms while countering terrorism (A/HRC/13/37), 28 December 2009, para. 33.
84
Special Rapp on HRs and CT UN Doc. A/69/397 GA report on Counter terrorism and mass digital surveillance
- Ben Emmerson - (2014) para. 28.
128

threatening the life of the nation and they are subject to several conditions…. fewer
than 10 States parties have introduced a state of emergency with reference
to acts, or the threat of, terrorism. Four of them have in that context sought to
derogate also from article 17 of the Covenant… However, the notifications in
question have remained rather generic, instead of specifying, in line with the
requirements under article 4, what concrete measures derogating from article 17
are necessary within the exigencies of the situation. Overall, there is not a single
case of a State seeking to derogate from article 17 with reference to terrorism that
would demonstrate compliance with all requirements of article 4.
Report of the Special Rapporteur on the promotion and protection of human rights and
fundamental freedoms while countering terrorism, Martin Scheinin: HRC report on The
right to privacy (UN Doc. A/HRC/13/37, 28 December 2009) para 14.


The state is obligated to adopt legislative, and other measures to ensure that government
organs, and private entities do not unlawfully or arbitrarily interfere with the right to
privacy, and that this right is protected.
Interference with privacy is lawful provided that it is: (1) prescribed by law, (2) has a
legitimate aim, (3) is reasonable, (4) is necessary, (5) there is proportionality between the
aim pursued and the interference with the right, and (6) the interference is not
incompatible with the provisions and aims of the ICCPR.

Guidance has been given by the Human Rights Committee regarding the interpretation of
Article 17 ICCPR rights and accompanying obligations, including these underpinning
principles.

Prescribed by law: The laws promulgated to limit the enjoyment of the right to privacy
should be “accessible.” This means that the government should make the legislation
publicly available and individuals should be able to access the legislation. The language of
the legislation should be sufficiently precise to enable individuals to understand how it
applies to them. The legislation should (1) specify in detail in what circumstances the
government authorities may interfere with the right to privacy, (2) what categories of
persons are covered by the law, (3) what procedure the government agent should use in
order for the gathering of information to be authorised, (4) what limitations are placed on
the duration of the surveillance, and (5) what procedures regulates the use and storage of
collected data.85

Legitimate aim: The UN Human Rights Committee in its General Comment 16 explains that
because individuals necessarily interact with one another in society 'the protection of
privacy is necessarily relative'.86 General Comment 27 further stipulates that legitimate aims
include the protection of national security, public order (ordre public), public health or
morals, and the rights and freedoms of others. A key concern, however, which has been


85
Concluding Observations of the Human Rights Committee, United States of America (CCPR /C/USA/CO/4),
23 April 2014, para. 22.
86
Human Right Committee, General Comment No. 16 (HRI/GEN/1/Rev.1), 8 April 1988, para. 7.
129

expressed by the UN Special Rapporteur on freedom of expression is the risk of that the
undefined and broad concept of national security may be misused including in relation to
intelligence gathering techniques.87 Therefore, States should be specific regarding what
goals they are trying to achieve. It has been suggested that 'the prevention, suppression and
investigation of acts of terrorism clearly amount to a legitimate aim for the purposes of
article 17'.88

Reasonableness: Arbitrary interference with the right to privacy is unlawful. In order not to
be arbitrary, the interference should be 'reasonable in the particular circumstances'.89 The
interference is reasonable when it is a necessary and proportionate measure.90
Necessity: The interference should be necessary to protect the invoked legitimate aim.91
Proportionality: The Human Rights Committee in the General Comment 27 clarified that the interference is
proportionate when it is the least intrusive measure available.92 The measure should have
“some chance of achieving the desired goal.”93
Compatibility with the aims and provisions of ICCPR: The interference with the right to
privacy should not undermine the state’s ability to respect and protect other rights
enshrined in the ICCPR. Neither should the interference be incompatible with the aims of
the ICCPR.94

Further reading
• UN General Assembly Resolution 68/167 (2013) on the “Right to privacy in the digital
age”. In the Resolution, the General Assembly requested that OHCHR prepare a report
on the right to privacy in the digital age. It is to examine, in the words of the
resolution: “the protection and promotion of the right to privacy in the context of
domestic and extraterritorial surveillance and/or interception of digital
communications and collection of personal data, including on a mass scale”. The
submissions received by OHCHR in response are publicly available at
http://www.ohchr.org/EN/Issues/DigitalAge/Pages/ DigitalAgeIndex.aspx.
• Report of the Special Rapporteur of the Human Rights Council on the right to privacy,
A/72/540 (19 October 2017), available at https://documents-dds-ny.un.org/doc/
UNDOC/GEN/N17/335/64/PDF/N1733564.pdf?OpenElement.


87
Report of the United Nations Special Rapporteur on Freedom of Expression (A/HRC/23/40), 17 April 2013,
para. 58.
88
Special Rapp on HRs and CT UN Doc. A/69/397 GA report on Counter terrorism and mass digital surveillance
- Ben Emmerson - (2014) para 33.
89
Human Right Committee, General Comment No. 16 (HRI/GEN/1/Rev.1), 8 April 1988, para. 4.
90
Human Rights Committee, Toonen v. Australia, Communication No. 488/1992 (CCPR/C/50/D/488/1992), 31
March 1994, para. 8.3.
91
Human Rights Committee, General Comment No. 27 (CCPR/C/21/Rev.1/Add.9), 2 November 1999, paras.
11-16.
92
Ibid. paras. 11-16.
93
Report of the Office of the United Nations High Commissioner for Human Rights, The right to privacy in the
digital age (A/HRC/27/37), 30 June 2014, para. 23.
94
Human Right Committee, General Comment No. 16 (HRI/GEN/1/Rev.1), 8 April 1988, para. 3.
130

• Report of the Special Rapporteur on the Promotion and Protection of Human Rights
and Fundamental Freedoms While Countering Terrorism (A/HRC/34/61), 21 February
2017, available at http://www.ohchr.org/Documents/Issues/Terrorism/A-HRC-34-
61.pdf.
• Report of the Special Rapporteur on the Promotion and Protection of Human Rights
and Fundamental Freedoms While Countering Terrorism (A/HRC/25/59), 10 March
2014, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/119/49/PDF/
G1411949.pdf?OpenElement, p. 6-10 and 18-20.
• Report of the Special Rapporteur on the Promotion and Protection of Human Rights
and Fundamental Freedoms While Countering Terrorism (A/HRC/13/37) 28 December
2009, available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A-
HRC-13-37.pdf.
• Report of the United Nations Special Rapporteur on Freedom of Expression
(A/HRC/23/40), 17 April 2013.
• Report of the United Nations Special Rapporteur on the promotion and protection of
human rights and fundamental freedoms while countering terrorism (A/HRC/13/37),
28 December 2009.
• UN Human Right Committee, General Comment No. 16 (HRI/GEN/1/Rev.1), 8 April
1988.
• UN Human Rights Committee, General Comment No. 27 (CCPR/C/21/Rev.1/Add.9), 2
November 1999.
• Human Rights Council- Report of the United Nations High Commissioner for Human
Rights: Negative effects of terrorism on the enjoyment of all human rights and
fundamental freedoms (Thirty-fourth session 27 February-24 March 2017 UN Doc.
A/HRC/34/30).
• Report of the Office of the United Nations High Commissioner for Human Rights, The
Right to Privacy in the Digital Age (A/HRC/27/37), 30 June 2014, available at
http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session27/
Documents/A.HRC.27.37_en.pdf.
• International Code of Conduct for Information Security (A/69/723) 13 January 2015,
available at http://undocs.org/A/69/723.
• National Research Council, Individual Privacy in the Struggle Against Terrorists: a
Framework for Program Assessment, (2008), available at https://www.nap.edu/
catalog/12452/protecting-individual-privacy-in-the-struggle-against-terrorists-a-
framework, especially Appendices H and K.

2.2. Regional legal framework

Article 8 ECHR and Article 11 American Convention on Human Rights enshrine the right to
privacy. As with the ICCPR, the right to privacy is not a non-derogable, absolute right under
Article 15 ECHR and Article 27(1) American Convention respectively.

The African Charter on Human and Peoples Rights does not contain a provision directly
referring to the right to privacy. The ACommHPR streamlined the African Charter with the
international approach in adopting “Principles and guidelines on human and peoples’ rights
while countering terrorism in Africa” in 2016. It was of the view that the Charter protects
the right to privacy indirectly, through such provisions as freedom of conscience, freedom of

131

expression, right to receive information, freedom of association, the duty on the state to
protect the family and the right to participate freely in the governance of one’s country.95

Case studies: The rationales for the protection of the right to privacy
Contrast the way in which regional human rights bodies justify the need for public
authorities to respect the right to privacy.

• The ECtHR held in Botta v. Italy* that “Private life, in the Court’s view, includes a
person’s physical and psychological integrity; the guarantee afforded by Article 8
of the Convention is primarily intended to ensure the development, without
outside interference, of the personality of each individual in his relations with
other human beings.”
• The IACtHR in the case of Fontevecchia and D’Amico v. Argentina** treated the
right to privacy as “among other dimensions, the freedom to make decisions
related to various areas of a person’s life, a peaceful personal space, the option
of reserving certain aspects of private life, and control of the dissemination of
personal information to the public".

* ECtHR, Botta v. Italy, Application No. 153/1996/772/973, Chamber Judgement of 24
February 1998, para. 32.

** IACtHR, Fontevecchia and D’Amico v. Argentina, Case No. Series C No. 238, 29
November 2011, para. 48.

All human rights bodies emphasize the importance of individuals having a private sphere
free from State interference in order to develop themselves and their relationships with
others. The ECtHR additionally links psychological wellbeing to the enjoyment of the right to
privacy. The Human Rights Committee and IACtHR frequently discuss the right to privacy in
conjunction with the protection of other rights, such as freedom of expression.

Regional human rights bodies apply similar criteria to the UN bodies when evaluating
whether an interference with the right to privacy is lawful. However, there are some subtle
variations in which regional and international bodies may interpret particular criteria. For
example, in relation to the right to privacy regarding interference, the ECtHR has
determined that in order for a limitation to the right to privacy to be in accordance with the
law, domestic law has to contain clear provisions explaining in what circumstances the
government officials could monitor an individual’s communications, how such officials take
decisions related to intercepting communications and the procedure the officials have to
follow in order to intercept information.96 Compare this with the ICCPR standard which
prescribes that in order to be characterized as “law” the provision in question has to be
accessible and has to enable persons to regulate their conduct.97 This means that individuals


95
African Commission on Human and Peoples’ Rights, Principles and guidelines on human and peoples’ rights
while countering terrorism in Africa, 7 May 2015, p. 36.
96
ECtHR, Liberty and others v. United Kingdom, Application No. 58243/00, Chamber judgment of 1 July 2008,
paras. 59 and 69.
97
Report of the Office of the United Nations High Commissioner for Human Rights, The right to privacy in the
digital age (A/HRC/27/37), 30 June 2014, para. 23.
132

should be able to find out what laws regulate state surveillance practices, how such laws
apply to them and to plan their affairs accordingly.98 States should not have secret
surveillance programs.

There are also some differences in terms of the wording and the parameters of different
regional provisions. Unlike the ICCPR and American Charter, Article 8 ECHR expressly lists
legitimate aims a State may invoke to interfere with the right to privacy. It stipulates that,
'There shall be no interference by a public authority with the exercise of this right except
such as is in accordance with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic well-being of the country, for
the prevention of disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.' This means that the Court has little or no
discretion to determine what types of grounds a state may invoke to restrict the enjoyment
of the right to privacy. The ECHR is unique in its reference to the economic well-being of the
country. In practice, the grounds States may invoke to limit the right to privacy are well
settled. The Inter-American system, e.g., recognizes the protection of the rights of others,
national security, public order, and public health or morals as legitimate aims.99
International human rights bodies and the IACtHR give considerable attention to examining
whether a legitimate aim the State invoked was sufficiently specific.100

Turning to the test of necessity, the approach of the Human Rights Committee and the
ECtHR is comparable. The ECtHR has interpreted the test of necessity as the requirement
that the measure limiting the enjoyment of the right to privacy be “strictly necessary” to
safeguard the democratic institutions.101 Since terrorists operate in a sophisticated manner,
the court concluded that States may pass a law authorizing secret surveillance of individuals
as long as such laws are promulgated under “exceptional conditions.”102 The Special
Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights
interprets “necessity” as requiring that any restriction be adequate and sufficiently justified.
The criterion of necessity is met when there are “exceptional circumstances” warranting an
authorization to access an individual’s communications and personal information. There
should be a “clear” risk to the protected interests.103

With respect to the application of the principle of proportionality, the greater the
interference with the right to privacy, the more justifications human rights bodies require
the state to provide. In the case of Uzun v. Germany the ECtHR found that it was a
proportionate measure to monitor Mr. Uzun’s movements using a global positioning system
device because Mr. Uzun was suspected of having committed a serious offence of a terrorist
bombing, because Mr. Uzun destroyed telephone tapping devices the authorities had

98
Concluding Observations of the Human Rights Committee, United States of America (CCPR /C/USA/CO/4),
23 April 2014, para. 22.
99
IACHR Annual Report of the Office of the Special Rapporteur for Freedom of Expression (OEA/Ser.L/V/II.
Doc. 51), 30 December 2009, para. 75.
100
See eg IACHR Freedom of Expression and the Internet, (OEA/Ser.L/V/II. CIDH/RELE/INF. 11/13), 31
December 2013, para. 63 regarding use of the Internet.
101
ECtHR, Klass and others v. Germany, Application No. 5029/71, Chamber judgment of 6 September 1978,
para. 42.
102
Ibid. para. 48. See too ECtHR, Uzun v. Germany, Merits, Application No. 35623/05, Chamber judgment of 2
September 2010, para. 77-80.
103
IACHR Freedom of expression and the internet, (OEA/Ser.L/V/II. CIDH/RELE/INF. 11/13), 31 December
2013, paras. 61-62, 168.
133

installed earlier and because the police had monitored his movements over a short period
of time.104 According to the Special Rapporteur for Freedom of Expression of the Inter-
American Commission on Human Rights, authentication requirements for internet users are
only proportionate if the internet activity in question poses high risk.105

In addition to treaty obligations, some regions have introduced additional standards and
regulations governing privacy related issues, including the protection of data and metadata.
A recent development is the EU's adoption of the European General Data Protection
Regulation 2018.106 Among its detailed requirements, the Directive requires private
businesses and public bodies which process or control the personal data of private
individuals to inform individuals how they use their personal data and for how long the data
is retained, and to only process information for which they have an individual's consent.

Further reading
• IACHR Freedom of Expression and the Internet, (OEA/Ser.L/V/II. CIDH/RELE/INF. 11/13),
31 December 2013,
http://www.eods.eu/library/IACHR.Freedom%20of%20Expression%20and%20the%20Int
ernet.pdf, p. 53-79.
• IACHR Annual Report of the Office of the Special Rapporteur for Freedom of Expression
(OEA/Ser.L/V/II. Doc. 51), 30 December 2009.
• African Commission on Human and Peoples’ Rights, Principles and Guidelines on Human
and Peoples’ Rights While Countering Terrorism in Africa, 7 May 2015, p. 36.
• The African Declaration on Internet Rights and Freedoms, available at
http://africaninternetrights.org/articles.
• International Federation for Human Rights, Human Rights Violations in Sub-Saharan
African Countries in the Name of Counter-Terrorism: A High Risks Situation (2007),
available at https://www.fidh.org/en/region/Africa/Human-rights-Violations-in-Sub
• Council of Europe, Parliamentary Assembly, Report of the Rapporteur Committee on
Legal Affairs and Human Rights Pieter Omtzigt, Mass Surveillance (Doc. 13734), 18 March
2015, http://www.assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-
EN.asp?fileid=21692&lang=en.
• European General Data Protection Regulation 2018. For a summary of the provisions see
http://www.eugdpr.org/article-summaries.html.

3. Key contemporary issues


3.1. Introduction

104
Ibid. para. 78-80.
105
IACHR, Freedom of expression and the internet, (OEA/Ser.L/V/II. CIDH/RELE/INF. 11/13) 31 December
2013, par. 136.
106
European General Data Protection Regulation 2018. For a summary of the provisions see
http://www.eugdpr.org/article-summaries.html.
134

In terrorism prevention and in the investigation of suspected terrorist plots, which are by
their very nature clandestine, there is little doubt that the acquisition, analysis and use of
information about terrorist groups by intercepting communications and other means of
electronic surveillance are essential tools to pursue legitimate and vital objectives, namely
the protection of lives and national security as well as securing justice for victims of terrorist
attacks. The intelligence community generally focuses on terrorism prevention, whereas law
enforcement officials are primarily concerned with bringing any alleged perpetrators to
justice though an element of their role is inherently preventative in nature also.

With developments in modern technology a wide array of investigative techniques lies at


the disposal of law enforcement agencies when combating terrorism. The continuous
technological innovation further enables governments to use more intrusive techniques for
monitoring individuals’ activities. The individuals in question, however, have fewer
opportunities to detect that they had been placed under surveillance. To illustrate, before
the advent of modern technologies government agencies relied mainly on recruiting
informants and on sending undercover agents to gather information about an individual.
Law enforcement and intelligence services used to distinguish between covert and overt
intelligence. The distinction was based on how much contact a government agent had with
the target. Modern surveillance technologies erased this distinction. One now discusses
surveillance in terms of its function, namely to collect information and to monitor the
behaviour of individuals.107

Modern technologies allow the government agents to penetrate into many aspects of an
individual’s life. This can take many different forms, such as the utilization of hidden
miniature cameras;108 the employment of facial recognition software to establish the
identities of individuals captured on the video surveillance system through linking the video
footage to a database containing the photographs of citizens;109 the utilization of software
to identify suspicious activities based on the captured video surveillance in public places;110
and various forms of tapping and recording devices such as forwarding conversations made
through a voice over the Internet protocol to a special server; the monitoring of an
individual’s movement through placing a global positioning system device on a vehicle or
through monitoring an individual’s mobile telephone; or the accessing of files stored on a
computer and the intercept of communications sent over the internet.111 There are not
necessarily unlawful in and of themselves, so long as they are accompanied by appropriate
and adequate accountability and review mechanisms as well as meeting the legal
requirements of privacy described earlier. [Section xx]

Despite the significant benefits that such technologies bring, including in terms of counter-
terrorism prevention, there are also important accompanying concerns regarding the

107
Chapter 1.2, UNODC Current practices in electronic surveillance in the investigation of serious and organized
crime, p. 2.
108
Ibid.
109
Daily Mail Journalist Harry Pettit, Facial recognition software can now identify people even if their face is
covered in a breakthrough that will help quickly unmask criminals, 7 September 2017, available at
http://www.dailymail.co.uk/sciencetech/article-4860908/Facial-recognition-software-soon-ID-covered-
faces.html#ixzz4v62BpJQQ .
110
Wired Journalist Laura Mallonee, Can you spot the suspicious behavior in these photos?, 3 October 2017,
available at https://www.wired.com/2016/02/esther-hovers-false-positives.
111
Chapter 1.2, UNODC Current practices in electronic surveillance in the investigation of serious and organized
crime, p. 2.
135

impact that such measures may have on the enjoyment of human rights, in particular the
right to privacy. The ECtHR has warned of 'the risk that a system of secret surveillance for
the protection of national security may undermine or even destroy democracy under the
cloak of defending it'.112

One particular issue that has arisen in relation to international cooperation on intelligence
sharing is the practice of some States whereby they engage their allies in States with weaker
data protection legislative safeguards and intelligence oversight mechanism to collect and
to transfer intelligence which it is unlawful for State organs of their own country to gather.
Such practices undermine the essence of the right to privacy and the requirement of
lawfulness.113

Another separate, though often related, area of concern is regarding the effect of poorly
drafted, often vague and overly broad, anti-terrorism legislation, including of their
accompanying definitions of key concepts such as "terrorism" or "organised criminal group".
This can facilitate otherwise impermissible interferences with the privacy of individuals or
organisations.114

3.2. Special investigation techniques

With respect to law enforcement activities, any related covert investigation techniques are
often referred to as “special investigation techniques” (“SITs”). There is no universally
accepted definition or list of SITs, and indeed their constantly evolving nature as the
technologies used evolve, makes a comprehensive list elusive. In 2005, the Council of
Europe adopted recommendations to member States on SITs, and in that context defined
them as follows: ' "Special investigation techniques" means techniques applied by the
competent authorities in the context of criminal investigations for the purpose of detecting
and investigating serious crimes and suspects, aiming at gathering information in such a way
as not to alert the target persons.'115 Significantly and reflecting their differing priorities and
role, in contrast to the intelligence agencies, a significant concern for law enforcement
officials is to ensure that information gathered is admissible subsequently in court as
evidence against any accused persons. Therefore, the manner in which it is obtained must
be consistent with national and international legal requirements.


112
ECtHR, Weber and Saravia v. Germany, Application no. 54934/00, Decision of 29 June 2006, para.106.
113
Joint Declaration on Freedom of Expression and the Internet, 1 June 2011, para. 5. Report of the Eminent
Jurists Panel on Terrorism Counter-Terrorism and Human Rights, Assessing damage urging action (2009) 85,
available at http://ejp.icj.org/IMG/EJP-Report.pdf.
114
Letter of the Special Rapporteur on the right to privacy Joseph Cannataci to Japan (OL JPN 3/2017), 18 May
2017. An example referred to is the Act on Punishment of Organised Crimes and Control of Crime Proceeds
adopted in June 2017 in Japan as part of implementing the United Nations Convention Against Transnational
Organized Crime 2000.
115
Council of Europe, Recommendation Rec(2005)10 of the Committee of Ministers to member states on
“special investigation techniques” in relation to serious crimes including acts of terrorism, Adopted by the
Committee of Ministers on 20 April 2005.
136

While these and other investigative techniques are useful and, indeed, often necessary in
combating terrorism, their very aim, i.e. to gather information about persons in such a way
CURRENT PRACTICES IN ELECTRONIC SURVEILLANCE IN THE INVESTIGATION OF SERIOUS ORGANIZED CRIME
as not to alert the target, means that the use of SITs will nearly always involve an
interference with the right to private life of the target and other persons. Moreover, the
investigative agencies making use of SITs will often feel the need to prevent disclosure at
the pre-trial and trial stages of how SITs were used, which can raise questions regarding the
fairness of any trial. [see further Module 11]. Additional human rights concerns surrounding
1.2 Electronic surveillance
the use of SITs include the risk of a discriminatory use in racial, political or religious profiling
practices, and the impact of covert surveillance on the fundamental freedoms of religion,
The term “electronic surveillance” covers an array of capabilities and practices. To better
thought, expression, assembly and association [see further Module 13]. For all these
understand what is meant by electronic surveillance, it is useful to break it down into parts.
reasons, the use of SITs must be regulated and carefully supervised, including judicially, in
Surveillance has previously been defined on the basis of covert/overt distinctions, or
order to ensure that human rights are respected. [see further section xx below]
determined according to the level of contact with the target, whether remote or direct.
These distinctions might, arguably, create a false dichotomy, particularly in the context
of modern surveillance technologies, where overt/covert lines are not as easy to draw. Thus,
a framework based on function is perhaps more useful. The table below provides some
examples.
Electronic surveillance: what is it?
Although this too is flawed in that modern surveillance technologies will often
To better understand the kind of measures involved in electronic surveillance it is helpful
have multiple capabilities (see below discussion at section 5.2 on regulating technologies
to break this concept down into different illustrative elements.
with multiple capabilities).

Audio surveillance Visual surveillance Tracking surveillance Data surveillance

Phone-tapping. Hidden video surveillance Global positioning systems Computer/internet
devices. (GPS)/transponders. (spyware/cookies).
Voice over internet In-car video systems. Mobile phones. Blackberries/mobile

protocol (VOIP). phones.
Listening devices Body-worn video devices. Radio frequency identifi- Keystroke monitoring.
(room bugging). cation devices (RFID).
Thermal imaging/forward Biometric information
looking infrared. technology (retina scans

at airports etc).
CCTV.
*Source: Chapter 1.2, UNODC Current Practices in Electronic Surveillance in the
This document confines its consideration of surveillance practices to electronic surveillance
Investigation of Serious and Organized Crime, p. 2.
and not other forms of surveillance such as the use of covert operatives. Thus, for the
purposes of this document, the terms “surveillance” and “electronic surveillance” are
synonymous and used interchangeably.
The legal framework regulating surveillance measures must fulfil the requirements of
sufficient clarity and precision, foreseeability as to its application, and accessibility, such
that the legal framework in question is transparent and publicly accessible. Because of
the 1.3 The process
constantly evolving techniques of electronic surveillance, legislators have to take
particular care in crafting a legal framework that is sufficiently precise to fulfil these
In December 2007 the United Nations Office on Drugs and Crime (UNODC) com-
requirements while maintaining a degree of flexibility that ensures its ability to remain
menced the first of a series of meetings with expert representatives from law enforcement
relevant as technologies evolve.
and prosecutorial and judicial authorities of Member States. The first informal expert group
meeting on electronic evidence gathering was held from 3-5 December 2007 at the Vienna
International Centre. A second regional expert group meeting for South-East Asian
countries was held 17-18 March 2009 at the Digital Forensic Centre in Seoul. The
meetings each brought together a small group of law enforcement officials and legal experts
from different countries and regions. It is anticipated that more regular expert group 137

Safeguards regarding the interception of communications


As the ECtHR points out, “especially where a power vested in the executive is
exercised in secret”, as is the case with the interception of communications, “the risks
of arbitrariness are evident”.* The establishment of a range of procedural safeguards
to prevent the arbitrary or unlawful use of the power is therefore essential for the
protection of human rights. Below is a non-exhaustive list of some of the key
procedural safeguards in respect of methods of interception of communications.

• A clear and precise legal framework setting out the circumstances in which
electronic surveillance is permissible and the procedures which must be
followed prior to its implementation;
• A requirement that where an individual, a communications system or premises
are to be placed under electronic surveillance in circumstances potentially
interfering with an individual or organization’s right to privacy, independent
authorization be obtained before a measure is implemented;
• Precise criteria specifying the basis on which such approval may be granted as
well as a requirement that the justification for an interference must be
sufficient to merit the nature and degree of interference with privacy implied
by the measure in question;
• Any authorization for surveillance in a particular instance must be sufficiently
clear and precise, narrowly tailored to the purpose for which authorization has
been granted and clear as to the person, premises or communications system
to be targeted;
• Authorization for surveillance should be time-limited rather than open-ended;
and
• Domestic law should ensure that measures are in place to safeguard the
confidentiality of the material, including measures to prevent the unauthorized
disclosure of the information to third parties or for purposes other than that
for which authorization was granted.
The ECtHR decision in the Weber and Saravia case* provides an illustration of a very
thorough examination of domestic (in this case, German) legislation regarding the
interception of communications for national security purposes. The ECtHR examines
the extent to which the German legislation contains the above safeguards. In the
end it concludes that, although the legislation provides extensive powers of secret
surveillance to the authorities, the safeguards are sufficient.
*ECtHR, Weber and Saravia v. Germany, Application no. 54934/00, Decision of 29
June 2006, para. 93.

Not all electronic surveillance techniques have the same level of intrusiveness into the
private sphere of individuals: a hidden video surveillance device recording a public place

138

constitutes much less of an invasion of the private sphere of individuals than the
interception of phone calls or e-mails. The graver the interference with legitimate
expectations of privacy, the greater the need for a detailed legal framework and strong
procedural safeguards and oversight.

International human rights bodies and most countries’ national legislation and case-law
agree that the interception of contents of communications (whether by phone, e-mail, or
voice-over-internet-protocol, or through a listening device placed in a private premise) must
be authorised by judicial order.

3.3. Surveillance and interception of communications

3.3.1. Metadata

Public authorities involved in the prevention and investigation of acts of terrorism and
potential terrorist conspiracies have also shown great interest in ensuring that the records
generated by communications service providers (e.g. public and private companies
providing telecommunications and internet services) are available to them for the purpose
of the prevention, investigation and prosecution of serious crime, including terrorism.

An accompanying and increasing source of privacy related concern has been the growing
practice of some intelligence agencies to gather bulk information about their citizens using
telephone and internet networks as part of their counterterrorism efforts.116 Such bulk
information usually contained descriptive information about other data and is called
"metadata".117 An example of metadata is the Internet Protocol address associated with a
computer from which an individual had sent an email.118 Another example of metadata is a
list of telephone numbers which an individual dialled on a particular day or a list of websites
which an individual visited.

The fact that the causes of terrorism are psychological and sociological provide one of the
explanations for why intelligence services may want to collect metadata as part of
identifying terrorist networks. It is known that terrorists recruit through social networks and
social media.119 If one can monitor individuals who actively expand their networks and post
ideological messages on social media then one could come closer to identifying individuals
involved in recruiting for terrorist groups. Additionally, social groups use symbols to identify
themselves and their cause as part of marshalling individuals around a cause. By gathering
metadata which is associated with particular symbols intelligent agents could locate
individuals who support a terrorist cause.


116
Council of Europe, Parliamentary Assembly, Resolution 2045 on mass surveillance (12th Sitting) 21 April
2015, paras. 1-3.
117
Report of the Rapporteur Committee on Legal Affairs and Human Rights Pieter Omtzigt, Mass surveillance
(Doc. 13734), 18 March 2015, p. 8 para. 12.
118
Ibid.
119
CNBC Journalist Harriet Taylor, Most young terrorist recruitment is linked to social media, said D.O.J. official,
5 October 2016, https://www.cnbc.com/2016/10/05/most-young-terrorist-recruitment-is-linked-to-social-
media-said-doj-official.html.
139

Moreover, one can learn about the mood in society through collecting information about
the types of internet activities individuals engage in. The intelligence agencies could use this
information to engage more effectively local communities as part of terrorism prevention
strategies. Despite such potential benefits, including regarding national security, a recent
poll among Americans found that three quarters of adults opposed sharing their metadata
with the intelligence agency to help thwart terrorist plots.120

3.3.1.1. Privacy concerns relating to metadata

While some governments argue that metadata collection attracts less protection under the
right to privacy than the direct interception of communications because metadata does not
contain the content of communications,121 such assertions are strongly contested by civil
society human rights defenders. Of particular concern has been how to hold governments
adequately to account for the data they collect, through what means and how they use as
well as share the information. Due to its often "liquid" nature, being fluid and movable, it
can be very difficult to detect where the information goes and how government organs use
it. 122 A related concern is that States with strong human rights protections acquire
intelligence from allies who gather information about individuals in violation of the right to
privacy including under their national laws.123 [See too section 3.2.1 above]

Metadata presents a unique challenge for lawyers because a single piece of metadata may
reveal little about an individual. The American Civil Liberties Organisation advocated for the
treatment of metadata on the same footing as content under the auspices of the right to
privacy.124 It used the mosaic theory to argue that it is misleading to distinguish between
data and metadata.125 The core of the mosaic theory is that while one may learn little from
one piece of information, one can acquire an in-depth understanding about an individual’s
activities through combining multiple pieces of information contained in metadata.126 For
instance, computer scientists found that they can determine an individual’s ethnicity and
relationship status based on the location of that person’s mobile telephone.127 The contacts
an individual has on social media, such as Facebook, can reveal the individual’s interests and
his or her social circle. By looking at the locations of mobile telephones of individuals


120
Newsweek, Most unwilling to give up privacy to thwart attacks new poll finds, 4 April 2017, available at
http://www.newsweek.com/privacy-terrorism-surveillance-online-privacy-terrorist-attack-poll-reuters-
579206.
121
Report of the Office of the United Nations High Commissioner for Human Rights, The right to privacy in the
digital age (A/HRC/27/37), 30 June 2014, para. 19.
122
David Lyon, “Liquid” surveillance, digital citizenship and new ways of living online, 21 June 2016, available at
https://www.coe.int/en/web/portal/-/online-surveillance.
123
Report of the Rapporteur Committee on Legal Affairs and Human Rights Pieter Omtzigt, Mass surveillance
(Doc. 13734), 18 March 2015, p. 12 para. 30.
124
American Civil Liberties Organisation, Metadata: piecing together a privacy solution (2014), p. 2.
125
Ibid. 17-20.
126
United States Court of Appeals for the District of Columbia, United States v. Maynard, Case No. 615 F.3d
544, Judgment of 6 August 2010, paras. 561-63
127
Yaniv Altshuler et al., Incremental learning with accuracy prediction of social and individual properties from
mobile-phone sata (2012), available at
http://ieeexplore.ieee.org/xpl/mostRecentIssue.jsp?punumber=6403618.
140

someone associates with, one can predict where the individual in question will travel in the
future.128

Clearly, such intelligence gathering tools are of considerable benefit to intelligence agencies
and law enforcement officials though, interestingly, the Parliamentary Assembly of the
Council of Europe has questioned their efficacy in terms of counter-terrorism prevention.129
The use of new artificial intelligence technologies enables government officials to learn a
great deal from metadata. Such technologies can sift through vast amounts of data and
organise it into categories.130 For example, in analysing small bank transactions to identify
suspicious money transfers, artificial intelligence software could build a complex snapshot
of how account holders manage their money131 which could facilitate the detection of
money laundering or terrorist financing activities.

Indeed, the collection of metadata can reveal more information about an individual’s
behaviour, preferences and social relationships than an interception of the content of a
single communication. See Digital Rights Ireland Ltd. v. Ireland [Section xx below]

Activity
• Play the following short YouTube film which simply and graphically explains what
metadata is and its accompany privacy concerns: The NSA and surveillance....made simple -
animation, https://www.youtube.com/watch?v=GoM4jIZbTtQ

• Allow a few minutes of reflection and comment by your students on their initial
thoughts about metadata. Was this already familiar to them, or were they surprised
about what they have just learned?


3.3.1.2. Concerns expressed by the UN and regional human rights systems

Similar sentiments have been raised within the UN as well as other regional human rights
systems. In December 2013, the UN General Assembly adopted Resolution 68/167,
motivated by concern regarding the potential negative consequences of such mass data
surveillance capability and techniques. In addition to urging States to protect the right to
privacy of individuals when they are both on and offline, the General Assembly called on all
States to review their legislation, procedures and practices related to communications
surveillance, collection of personal data and interception of personal communications.


128
American Civil Liberties Organisation, Metadata: piecing together a privacy solution (2014), p. 6.
129
Council of Europe, Parliamentary Assembly, Resolution 2045 on mass surveillance (12th Sitting) 21 April
2015, para. 11.
130
Forbes Journalist Tim Coughlin, Artificial intelligence in digital storage, 29 May 2017, available at
https://www.forbes.com/sites/tomcoughlin/2017/05/29/artificial-intelligence-in-digital-
storage/#34c164a73c84.
131
Wired Journalist Issie Lapowsky, Banks deploy AI to cut off terrorists’ funding, 7 September 2017, available
at https://www.wired.com/story/quantaverse-ai-terrorist-funding.
141

More recently, in 2017, the Human Rights Council adopted a resolution in which it urged
States to respect and protect the right to privacy while countering terrorism, including in the
context of digital communication. It encouraged States to adopt procedures, practices and
legislation which complies with international human rights standards regarding the
surveillance of communications, their interception and the collection of personal data.
Furthermore, the Council called on States to undertake prompt, independent and impartial
fact-finding inquiries in cases where there is an indication that a government agent had
breached international human rights obligations, and to punish such violations using
criminal sanctions.132

Other UN entities have expressed concern also regarding such “dragnet” surveillance
measures contravening the right to privacy. Notably, whilst confirming that States could
invoke the ground of national security as a legitimate aim to limit the enjoyment of the right
to privacy in order to counter the threat of terrorism, the Office of the United Nations High
Commissioner for Human Rights considers mass surveillance programs which collect bulk
information about individuals to be arbitrary despite this legitimate aim. It regarded the
impact of such programs on the enjoyment of the privacy of the citizens to be greater than
the harm being averted.133 Parallel concerns have been expressed by the UN Special
Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms
While Countering Terrorism,134 and other regional special mandates holders such as the
Special Rapporteur for Freedom of Expression of the Inter-American Commission of Human
Rights who was of the opinion that the practice of mass surveillance constitutes an arbitrary
collection of personal data.135

Similarly, there have been cross-regional human rights system outputs, such as the joint
statement issued in June 2013 by the UN Special Rapporteur on the Protection and
Promotion of the Right to Freedom of Opinion and Expression and the Special Rapporteur
for Freedom of Expression of the Inter-American Commission on Human Rights. One notable
recommendation that they made was that States should make certain information about
surveillance programs public, such as details regarding their regulatory framework. They
were further of the view that any information collection activities of those suspected of
involvement with terrorist organizations should be targeted in nature.136 This has been the
view also of the Parliamentary Assembly of the Council of Europe.137 On a separate

132
Human Rights Council, Protection of human rights and fundamental freedoms while countering terrorism
(A/HRC/35/L.27), 20 June 2017, paras. 20 and 24.
133
Report of the Office of the United Nations High Commissioner for Human Rights, The right to privacy in the
digital age (A/HRC/27/37), 30 June 2014, paras. 15, 23 and 25.
134
Report of the Special Rapporteur on the promotion and protection of human rights and fundamental
freedoms while countering terrorism (A/HRC/34/61), 21 February 2017, para. 36. Referring to the U.K.
Investigatory Powers Act 2016.
135
IACHR Annual report of the Office of the Special Rapporteur for Freedom of Expression, Freedom of
expression and the internet (OEA/Ser.L/V/II. CIDH/RELE/INF. 11/13), 31 December 2013, paras. 150-151.
136
Joint Statement of the United Nations Special Rapporteur on the Protection and Promotion of the Right to
Freedom of Opinion and Expression Special Rapporteur for Freedom of Expression of the Inter-American
Commission on Human Rights, Joint declaration on surveillance programs and their impact on freedom of
expression, 21 June 2013, available at
http://www.oas.org/en/iachr/expression/showarticle.asp?artID=927&lID=1. This was the view shared by the
Parliamentary Assembly of the Council of Europe, Council of Europe, Parliamentary Assembly, Resolution 2045
on mass surveillance (12th Sitting) 21 April 2015 [paras 3, 4, 11, 19].
137
Council of Europe, Parliamentary Assembly, Resolution 2045 on mass surveillance (12th Sitting) 21 April
2015, para. 3.
142

occasion, a 'Joint Declaration on Freedom of Expression and the Internet' was issued by the
UN and regional special mandate holders on freedom of opinion and expression, seeking to
re-iterate basic norms regarding the treatment of internet data.138
A further area of concern that has been raised by some, including the UN Special on the
situation of human rights defenders, is the misuse of digital surveillance by some States as a
means of monitoring, collecting data and in some cases also intimidating political
opponents, human rights defenders and journalists. This can have the effect of not only
violating the right to privacy, but also other democratic rights such as freedom of opinion
and expression.139 Some such measures are also discriminatory in that they target only non-
nationals.

3.3.1.3. Regional jurisprudence
Both the Court of Justice of the European Union (CJEU) and the ECtHR have made
determinations regarding interference with privacy attributable to mass data surveillance
measures.
In a very important case, the CJEU in the case of Digital Rights Ireland Ltd. v. Ireland held
that the Data Retention Directive was a disproportionate interference with the right to
privacy.140 in doing so, it made a number of observations of wider relevance. One was that
metadata about communications in which an individual engaged 'taken as a whole may
allow very precise conclusions to be drawn concerning the private lives of the persons
whose data has been retained'.141 Another was that the storage and potential subsequent
use of metadata without the user being informed is likely to generate in the persons
concerned a feeling that their private lives are the subject of constant surveillance [at para.
37]. The overall impact of this case would appear to be that individuals have an equal
expectation to privacy in regard to both communication content and metadata.

Case study: ECJ judgment on the European Data Retention Directive*


In 2006, the European Union adopted legislation (the Data Retention Directive) intended
to harmonize member States’ provisions concerning the retention of data which are
generated or processed by providers of communications services. The Directive provides
that the service providers must retain traffic and location data as well as related data
necessary to identify the subscriber or user for all fixed telephony, mobile telephony,
Internet access, Internet e-mail and Internet telephony traffic. By contrast, it does not


138
the Organization for Security and Co-operation in Europe Representative on Freedom of the Media, the
Organization of American States Special Rapporteur on Freedom of Expression and the African Commission on
Human and Peoples’ Rights Special Rapporteur on Freedom of Expression and Access to Information The
document is available at http://www.osce.org/fom/78309?download=true.
139
See eg Council of Europe Parliamentary Assembly, Committee on Legal Affairs and Human Rights, 'Mass
Surveillance' Report, AS/Jur (2015) 01,
http://website-pace.net/documents/19838/1085720/20150126-MassSurveillance-EN.pdf.
140
Court of Justice of the European Union, Digital Rights Ireland and Seitlinger and others v. Ireland, Joined
Cases C-293/12 and C-594/12, Judgement of 8 April 2014, para. 69. Another important case is Court of Justice
of the European Union, Maximillian Schrems v. Data Protection Commissioner, Case C-362/14, 6 October
2015.
141
Court of Justice of the European Union, Judgement in joined cases C-293/12 and C-594/12, Digital Rights
Ireland and Seitlinger and others v. Ireland, Judgement of 8 April 2014, paras. 26-27.
143

permit the retention of the content of the communication or of information consulted.


The Data Retention Directive was challenged before the Court of Justice of the European
Union (CJEU) as a disproportionate interference with the right to privacy.
The CJEU observed that, while the Directive does not permit the acquisition of knowledge
of the content of the electronic communications as such, the collection and retention of
traffic and location metadata constitutes a serious interference with the right to privacy.
The CJEU then proceeded to examine this interference with the right to privacy in the
light of the requirements of a legitimate aim and of proportionality. It noted that the
purpose of the retention of the data is their possible transmission to the competent
national authorities for the investigation, prosecution and adjudication of serious crime,
which genuinely satisfies an objective of general interest [at 41].
Although the retention of the data was thus justified by a legitimate aim, the CJEU
concluded that it was not sufficiently circumscribed to be considered strictly necessary,
and therefore failed the proportionality test and constituted a violation of the right to
privacy. The reasons for this finding included that:

• The Directive failed to lay down objective criteria which would ensure that the
competent national authorities have access to the data and can use them only for the
purposes of prevention, detection or criminal prosecutions concerning offences that
may be considered to be sufficiently serious to justify such an interference [at 61].

• Regarding the duration of data retention period, the Directive imposed a minimum
retention period of at least six months and a maximum of 24 months. It failed,
however, to provide objective criteria on the basis of which the period of retention
must be determined in order to ensure that it is limited to what is strictly necessary [at
64].

• The Directive it does not provide for any exception, with the result that it applies even
to persons whose communications are subject, according to rules of national law, to
the obligation of professional secrecy [at 58].

Nor was the Court of the view that the collection of a wide array of information was
strictly necessary to prevent the commission of crimes. This would have required the
Directive to have specified objective criteria for ensuring that the competent authorities
only used the information in question to detect and prevent the commission of particular
criminal offences [at 62].
Finally, the Directive did not provide for sufficient safeguards to ensure effective
protection of the data against the risk of abuse and against any unlawful access and use
of the data [at 66].
* Court of Justice of the European Union, Judgment in Joined Cases C-293/12 and C-
594/12, Digital Rights Ireland and Seitlinger and Others, Judgment of 8 April 2014.

144

The interpretation of the right to privacy of the CJEU is wider than that adopted by the
ECtHR. In the case of Szabó and Vissy v. Hungary the claimants argued that the authorities
could interpret the legislation as allowing them to intercept the communications of any
citizen in Hungary.142 The ECtHR held that states enjoy “a certain margin of appreciation” in
accommodating the right to privacy and the legitimate aim of protecting national security
against the terrorist threat. Since surveillance measures may undermine democracy in the
guise of defending it, it is important that states adopt adequate and effective guarantees
when they authorise interferences with the right to privacy. In reviewing the lawfulness of
the interference, the Court has to determine whether the procedures for supervising the
ordering and implementation of the restrictive measures are such as to keep the
“interference” to what is “necessary in a democratic society.”143

In assessing the necessity of the measure, the Court takes into account the nature of the
measure interfering with the right to privacy, its scope and duration, the grounds required
for ordering the measure, the authorities competent to authorise the interference, what
mechanisms of supervision are employed over the relevant bodies, and what remedies are
available. The Court will focus on whether the state adopted sufficient safeguards rather
than on whether a particular measure was disproportionate. For example, although the
conduct of surveillance over citizens without their knowledge and the interception of their
communications may be necessary in exceptional circumstances, the legislation should give
citizens an adequate indication as to the circumstances in which and the conditions on
which public authorities can resort to such measures.144 By focusing on whether the
interference with the right to privacy was absolutely necessary in a democratic society to
achieve a legitimate aim and on whether the state adopted adequate procedural
safeguards, the court sidestepped addressing directly the practice of mass surveillance over
the citizens.

3.3.1.4 National approaches

A number of different measures have been taken throughout national regional human
rights systems in response to growing concerns about surveillance of metadata. Though
they reveal a high degree of similarity in terms of approach, there are also some important
distinguishing features.

The domestic courts in the Americas adopt varying approaches to how the right to privacy
governs metadata. Some of them interpret state obligations less stringently than the human
rights bodies. In North America, the United States Court of Appeals for the Second Circuit in
the case of American Civil Liberties Union v. Clapper declared section 215 of the Patriot Act
requiring telephone companies to collect bulk metadata associated with the telephone calls
the clients had made unlawful. This measure violated the principles of necessity and was
not the least restrictive interference available. Notably, the Court explained that the
principles of necessity and proportionality require that law enforcement officials request
and collect only that data which is relevant to an investigation of a particular incident rather

142
ECtHR, Szabó and Vissy v. Hungary, Application No. 37138/14, Chamber judgment of 12 January 2016, para.
69.
143
Ibid. para. 57.
144
Ibid. paras. 57-58, 64-65, 80. See too 69-70 and 75-77.
145

than to preventing terrorist acts in general.145 Another significant development in the


practice of the United States took place in 2017. The American National Security Agency
officially halted a surveillance program whereby it collected emails and text messages the
Americans sent over mobile telephones to individuals located overseas.146

In Latin and Central America, the Argentine Supreme Court has also interpreted the right to
privacy as conferring an equal protection on metadata and communications content. It held
in the case of Ernesto Halabi v. PEN that the same procedures and safeguards apply for the
collection of metadata as for the interception of content.147 The Mexican Supreme Court on
the other hand took a narrower approach to the protection of privacy in the case
concerning “The inviolability of content of communications and data which permits
personal identification.” It first explained that the right to privacy covers metadata, and that
government organs can access information stored by communication companies with a
court order. The court then entered a caveat that the public interest in the prevention of
the commission of crimes justifies the government passing a law requiring
telecommunication companies to store metadata relating to the client’s telephone use. The
legislation giving law enforcement officials the authority to access information about the
location of a particular individual through a mobile telephone without a court order is
lawful.148

In the Middle East, oversight bodies in Lebanon adopted the same position as the United
Nations High Commissioner for Human Rights on the issue of how the right to privacy
protects metadata. They stated that any capture and retention of communications data is
potentially an interference with the right to privacy even if the public officials did not use
the intercepted data. The Internal Security Forces breached the right to privacy of the
Lebanese citizens when they intercepted in bulk without judicial authorization the log files,
Internet Protocol addresses, usernames, phone numbers, addresses, names, and passwords
of mobile phone users. Equally, it was unlawful for the Internet Security Forces to store this
information in a database as part of a car bombing investigation. The view of the
Commission was that not every citizen can be a suspect of a crime.149

A different, more intrusive interpretative approach has been taken by the courts in Japan. In
the first case in which mass surveillance practices were challenged, the Japanese Supreme
Court in 2016 upheld a ruling of the lower court that the creation of a database by law
enforcement officials with profiles of the Muslim citizens was a necessary measure to
prevent the commission of crimes. The government monitored Muslim places of worship,
halal restaurants and Islam-related organisations across the capital in order to create files
on Muslim individuals. The files contained personal information, including an individual’s

145
United States Court of Appeals for the Second Circuit, American Civil Liberties Union v. Clapper, Case No.
F.3d 787, Judgment of 7 May 2015, p. 82, pp 58-59, 91-93.
146
New York Times Journalist Charlie Savage, N.S.A. halts collection of Americans’ emails about foreign targets,
28 April 2017, available at https://www.nytimes.com/2017/04/28/us/politics/nsa-surveillance-terrorism-
privacy.html.
147
The Supreme Court of Argentina, Ernesto Halabi v. PEN, Case No. 1563/04, Judgment of 24 February 2009,
para. 1.1.
148
The Second Chamber of the Supreme Court of Mexico, Inviolabilidad del contenido de las comunicaciones
y de los datos que permitan identificarlas (The inviolability of content of communications and data which
permits personal identification), Case No. 077/2016, Judgment of 4 May 2016.
149
Privacy International, Social media exchange, and the association for progressive communication, The right
to privacy in lebanon, March 2015, paras. 32 and 34.
146

name, personal relationships and comments on whether the individual had engaged in
“suspicious” conduct.150

In Europe, the picture is mixed in terms of approaches, attributable in part to the fact that
the ECtHR is willing to allow States a wider margin of appreciation than other European
national courts are willing to regarding any restrictions on the right to privacy. For example,
the German Federal Constitutional Court reviewed the legality of requesting information
from public bodies about the gender, age, country of origin and religious affiliation of
persons in order to create datasets. The German government argued that while each
individual piece of information revealed little, when taken together the information allowed
it to prevent acts of terrorism. The Court found that the government organs would need to
provide a very strong justification to satisfy the test of necessity to create such datasets. An
example would be where government officials knew about an imminent threat of a specific
terrorist attack and took measures to prevent particular individuals from launching such an
attack. The requirement of necessity was not satisfied in the circumstances because the
state officials screened the names of Muslim males in anticipation of hypothetical attacks
which could occur in the aftermath of the 9/11 terrorist attacks.151

3.3.1.5. Recent technological developments affecting the treatment of metadata

Computer scientists are developing new protocols to enable law enforcement officials to
access metadata possessed by communication companies to investigate crimes without
interfering with the right to privacy of individuals. The implementation of such protocols will
create a situation where law enforcement officials will be able to have partial access to
metadata without the requirement to obtain a court order. They will have greater freedom
to use metadata in the course of investigating crimes, such as terrorist bombings.

An example of such a protocol would be where law enforcement agencies can locate the
suspect of a crime by establishing that that individual was at particular locations at
particular points in time through intersecting information. For example, a telephone
number located in locations A and B between 3pm and 4pm on a particular date. Mobile
telephone data can yield such information. Multiple independent agents should be involved
so that each one would have only partial access to the information and therefore would be
unable to associate the data with any particular individual. The agents would then share
their findings. In cases where the cumulative information satisfies the requisite evidentiary
requirement and a judge issues a warrant authorising the interception of mobile telephone
information, the agents can decrypt the information to identify the user of the telephone
number in question.152

Some argue that selective searches enhance national security while strengthening the
protection of civil liberties. What is important is not the quantity of information. Rather the


150
Japan Times Journalist Jarni Blakkarny, Shadow of surveillance looms over Japan’s Muslims, 13 July 2016,
available at https://www.japantimes.co.jp/community/2016/07/13/issues/shadow-surveillance-looms-japans-
muslims/#.Wdz7abpuJhh.
151
Bundesverfassungsgericht (BverfG—Federal Constitutional Court) of 4 April, 2006 (1 BvR 518/02).
152
Aaron Segal, Bryan Ford, Joan Feigenbaum, “Catching Bandits and Only Bandits: Privacy-Preserving
Intersection Warrants for Lawful Surveillance” (2014).
147

quality of the data and its analysis matter for identifying terrorists. Agencies should have
partial access to metadata. They should search for associations between individuals and
particular subject based queries, such as locations or should analyse metadata to identify
“suspicious” patterns of activity.153

A potential shortcoming of privacy-preserving protocols is that they are harder to use to


detect the planning of terrorist offences. Law enforcement and intelligence officials need to
know what kind of information to look for as well as the type of association which exists
between the suspect and the information in order to know what sample of metadata to
sweep through.

Further reading
• Council of Europe, Recommendation Rec(2005)10 of the Committee of Ministers to
member states on “special investigation techniques” in relation to serious crimes
including acts of terrorism, Adopted by the Committee of Ministers on 20 April 2005.
• Council of Europe, Parliamentary Assembly, Resolution 2045 on mass surveillance
(12th Sitting) 21 April 2015.
• Council of Europe Parliamentary Assembly, Committee on Legal Affairs and Human
Rights, 'Mass Surveillance' Report, AS/Jur (2015) 01, http://website-
pace.net/documents/19838/1085720/20150126-MassSurveillance-EN.pdf
• IACHR Annual report of the Office of the Special Rapporteur for Freedom of
Expression, Freedom of expression and the internet (OEA/Ser.L/V/II. CIDH/RELE/INF.
11/13), 31 December 2013.
• Joint Statement of the United Nations Special Rapporteur on the Protection and
Promotion of the Right to Freedom of Opinion and Expression Special Rapporteur for
Freedom of Expression of the Inter-American Commission on Human Rights, Joint
declaration on surveillance programs and their impact on freedom of expression, 21
June 2013, available at
http://www.oas.org/en/iachr/expression/showarticle.asp?artID= 927&lID=1.
• Letter of the Special Rapporteur on the right to privacy Joseph Cannataci to Japan (OL
JPN 3/2017), 18 May 2017
• Japan Times Journalist Jarni Blakkarny, Shadow of surveillance looms over Japan’s
Muslims, 13 July 2016, available at https://www.japantimes.co.jp/
community/2016/07/13/issues/shadow-surveillance-looms-japans-
muslims/#.Wdz7abpuJhh.
• Aaron Segal, Bryan Ford, Joan Feigenbaum, “Catching Bandits and Only Bandits:
Privacy-Preserving Intersection Warrants for Lawful Surveillance” (2014).
• Robert Popp and John Pindexter, “Countering Terrorism through Information and
Privacy Protection Technologies,” (2006) 4(6) IEEE Security & Privacy 23.


153
Robert Popp and John Pindexter, “Countering Terrorism through Information and Privacy Protection
Technologies,” (2006) 4(6) IEEE Security & Privacy 23 and 24.
148

• Maria Xynou and Elonnai Hickok “Security, Surveillance and Data Sharing Schemes
and Bodies in India” (2015) The Centre for Internet & Society, available at https://cis-
india.org/internet-governance/blog/ security-surveillance-and-data-sharing.pdf.
• Nick Taylor, To find the needle do you need the whole haystack? Global surveillance
and principled regulation, (2014) 18(1) The International Journal of Human Rights 47.
• Steven I. Friedland, The difference between invisible and visible surveillance in a mass
surveillance world (2014).
• Mahesh Saptharishi, The New Eyes of Surveillance: Artificial Intelligence and
Humanizing Technology, 2017, available at
https://www.wired.com/insights/2014/08/the-new-eyes-of-surveillance-artificial-
intelligence-and-humanizing-technology
• Daniel Wagner, Artificial Intelligence and Virtual Terrorism, 17 August 2017,
available at http://www.huffingtonpost.com/entry/artificial-intelligence-and-virtual-
terrorism_us_5995c144e4b00dd984e37d08.
• David Lyon, “Liquid” Surveillance, Digital Citizenship and New Ways of Living Online,
21 June 2016, available at https://www.coe.int/en/web/portal/-/online-surveillance.
• Nick Taylor “To Find the Needle Do You Need the Whole Haystack? Global
Surveillance and Principled Regulation” (2014) 18(1) The International Journal of
Human Rights 45.
• Fleur Johns “Global Governance Through the Pairing of List and Algorithm” (2016)
34(1) Environment and Planning D: Society and Space 126.
• Eliza Watt (2017) ‘The right to privacy and the future of mass surveillance’, The
International Journal of Human Rights, 21:7, 773-799
• Paul Bernal (2016): Data gathering, surveillance and human rights: recasting the
debate, Journal of Cyber Policy
• Ilina Georgieva, ‘The Right to Privacy under Fire – Foreign Surveillance under the NSA
and the GCHQ and Its Compatibility with Art. 17 ICCPR and Art. 8 ECHR’ (2015) 31(80)
Utrecht Journal of International and European Law 104, DOI:
http://dx.doi.org/10.5334/ujiel.cr
• Ian Brown, Douwe Korff, 'Foreign Surveilance: Law and practice in a global digital
environment', 3 European Human Rights Law Review, 243-251 (2014).
• American Civil Liberties Organisation, Metadata: Piecing Together a Privacy Solution
(2014).
• Marko Milanovic, Human Rights Treaties and Foreign Surveillance: Privacy in the
Digital Age, 56 Harv. Int'l L.J. 81, 146 (2015)
• Michael JV White, 'A 21st Century Qaugmire: Surveillance Law and International
Human Rights Norms', available at https://www.victoria.ac.nz/law/centres/nzcpl/
publications/human-rights-research-journal/previous-issues/volume-8,-
2013/MICHAEL-WHITE-HRR-2013.pdf.
• Stephanie Hankey Daniel Ó Clunaigh, 'Rethinking Risk and Security of Human Rights
Defenders in the Digital Age’, Journal of Human Rights Practice, Volume 5, Issue 3, 1
November 2013, Pages 535–547, https://doi.org/10.1093/jhuman/hut023.
• Letta Tayler, Overreach: How New Global Counterterrorism Measures Jeopardize
Rights (2017), available at https://www.hrw.org/world-report/2017/country-
chapters/global.
• Joergensen, R. (2014). Can human rights law bend mass surveillance?. Internet Policy

149

Review, 3(1). DOI: 10.14763/2014.1.249


• Binoy Kampmark (2014) ‘Restraining the Surveillance State: A Global Right to Privacy’,
Journal of Global Faultlines, 2(1), 1-16
• Cristina Siserman, A Global Perspective on the Protection of Privacy and Related
Human Rights in Countering the Use of Internet for Terrorist Purposes, 7 Masaryk U.
J.L. & Tech. 401, 422 (2013)
• Gross, Emanuel (2004) "The Struggle of a Democracy against Terrorism - Protection of
Human Rights: The Right to Privacy versus the National Interest - the Proper Balance,"
Cornell International Law Journal: Vol. 37: Iss. 1, Article 2. Available at:
http://scholarship.law.cornell.edu/cilj/vol37/iss1/2
• Federico Fabbrini, 'Human Rights in the Digital Age:The European Court of Justice
Ruling in the Data Retention Case and Its Lessons for Privacy and Surveillance in the
United States', available at harvardhrj.com/wp-content/uploads/2009/09/human-
rights-in-the-digital-age.pdf.
• Paul Rosenzweig, 'Privacy and Counter-Terrorism: The Pervasiveness of Data', 42 Case
Western Reserve Journal of International Law. 625, 646 (2010)
• Michael Head, 'A disturbing convergence? Civil Liberties and the "War on Terror"' 1
Asia-Pacific Yearbook of IHL, 63 (2005)
• David Goldberg, 'Europe Bans Terrorist Media: what Sort of Antidote to Poisonous
Voices', 17 Cardozo Journal of International and Comparative Law. 445, 470 (2009)
• Mehmet Ozcan; Fatma Yilmaz, 'Pendulum Swings in between Civil Rights and Security:
EU Policies against Terrorism in the Light of the PNR Case', 1 USAK Y.B. Int'l Pol. & L.
51, 72 (2008)
• Quirine Eijkman; Bibi van Ginkel, 'Compatible or Incompatible - Intelligence and
Human Rights inTerrorist Trials', 3 Amsterdam Law Forum 3, 16 (2011)
• Felicity Hammond, Terrorism's Next Victim - Judicial Review of the Malaysian Internal
Security Act 1960, 8 Asian-Pacific Law & Policy Journal 270, 291 (2007)
• K.J. Lawner, ‘Post-Sept. 11th International Surveillance Activity – A Failure of Intelligence: The
Echelon Interceptions System and the Fundamental Right to Privacy in Europe’, (2002) 14 Pace
ILR 435.
• Daily Mail Journalist Harry Pettit, Facial recognition software can now identify people
even if their face is covered in a breakthrough that will help quickly unmask criminals, 7
September 2017, available at http://www.dailymail.co.uk/sciencetech/article-
4860908/Facial-recognition-software-soon-ID-covered-faces.html#ixzz4v62BpJQQ
• Wired Journalist Laura Mallonee, Can you spot the suspicious behavior in these
photos?, 3 October 2017, available at https://www.wired.com/2016/02/esther-
hovers-false-positives.
• CNBC Journalist Harriet Taylor, Most young terrorist recruitment is linked to social
media, said D.O.J. official, 5 October 2016, https://www.cnbc.com/2016/10/05/most-
young-terrorist-recruitment-is-linked-to-social-media-said-doj-official.html.
• Newsweek, Most unwilling to give up privacy to thwart attacks new poll finds, 4 April
2017, available at http://www.newsweek.com/privacy-terrorism-surveillance-online-
privacy-terrorist-attack-poll-reuters-579206.
• David Lyon, “Liquid” surveillance, digital citizenship and new ways of living online, 21
June 2016, available at https://www.coe.int/en/web/portal/-/online-surveillance.
• American Civil Liberties Organisation, Metadata: piecing together a privacy solution
(2014),
150

• Yaniv Altshuler et al., Incremental learning with accuracy prediction of social and
individual properties from mobile-phone sata (2012), available at
http://ieeexplore.ieee.org/xpl/mostRecentIssue.jsp?punumber=6403618.
• Forbes Journalist Tim Coughlin, Artificial intelligence in digital storage, 29 May 2017,
available at https://www.forbes.com/sites/tomcoughlin/ 2017/05/29/artificial-
intelligence-in-digital-storage/#34c164a73c84.
• Wired Journalist Issie Lapowsky, Banks deploy AI to cut off terrorists’ funding, 7
September 2017, available at https://www.wired.com/story/quantaverse-ai-terrorist-
funding.
• Privacy International, Social media exchange, and the association for progressive
communication, The right to privacy in lebanon, March 2015.
• Peter Moskowitz, The Future of Policing Is Here, and It’s Terrifying, 9 November 2015,
available at http://www.gq.com/story/the-future-of-policing-is-here-and-its-terrifying
Protecting.
• Dave Gershgorn, The Age of AI Surveillance is Here, 27 August 2017, available at
https://qz.com/1060606/the-age-of-ai-surveillance-is-here.
• Space Watch Middle East, Egypt and Syria Propose Using Satellites to Counter
Terrorism at U.N. Space Meeting, 2017, available at
https://spacewatchme.com/2016/07/egypt-syria-propose-using-satellites-counter-
terrorism-un-space-meeting.

3.3.2. GPS surveillance

Similarly, the gathering of global positioning system (GPS) surveillance information (whether
through the surreptitious placement of a GPS device in a suspect’s car, or by obtaining
location information through the metadata generated by a mobile phone) has the potential
to interfere seriously with the right to privacy, as well as rights to freedom of expression
and association. As pointed out in a recent judgment of the United States Supreme Court:

151

GPS monitoring generates a precise, comprehensive record of a person’s public


movements that reflects a wealth of detail about her familial, political, professional,
religious, and sexual associations. […] The Government can store such records and
efficiently mine them for information years into the future. … And because GPS
monitoring is cheap in comparison to conventional surveillance techniques and, by
design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive
law enforcement practices: ‘limited police resources and community hostility....’.

Awareness that the Government may be watching chills associational and expressive
freedoms. And the Government's unrestrained power to assemble data that reveal private
aspects of identity is susceptible to abuse. The net result is that GPS monitoring – by making
available at a relatively low cost such a substantial quantum of intimate information about
any person whom the Government, in its unfettered discretion, chooses to track – may
‘alter the relationship between citizen and government in a way that is inimical to
democratic society’”.154

Case study regarding electronic surveillance (GPS)


The Uzun case:*
Mr. Uzun was suspected of involvement with a terrorist group and a criminal
investigation had been launched into charges that he, together with an accomplice, had
participated in a number of bomb attacks designed to kill members of the public. The
investigation by German police into the activities of the applicant involved surveillance
and the use of phone taps and wireless transmitters. When the applicant and his
accomplice destroyed the transmitters and stopped using the telephone, a global
positioning system (GPS) device was placed in a car which they regularly used. At trial,
the GPS evidence was used to corroborate information received through other
surveillance methods and Mr. Uzun was convicted of attempted murder and causing
explosions. Mr. Uzun submitted that the authorities' use of the GPS had breached his
right to privacy in that it had enabled them to draw up a comprehensive pattern of his
movements, to share that with third parties, and to initiate further investigations.
The ECtHR found that, although the actions of the police had interfered with Mr. Uzun’s
rights, his rights had not been violated by the placing of the GPS and the collation and
storage of information from it.
The ECtHR noted that that extensive safeguards were available (and had been properly
applied in the instance case) to prevent misuse of the power of surveillance. These
included (i) the operation had been subject to judicial supervision throughout (ii) the
duration of the operation had to be authorized and approved by a court (iii) an operation
involving the tracking of an individual’s movements with GPS could only be ordered in
relation to a crime of particular gravity (iv) evidence obtained through use of GPS could
be challenged and, if necessary, excluded at trial.
Finally, the ECtHR noted that the surveillance measures had been proportionate in that (i)
other investigative means had been tried and failed owing to the conduct of the applicant


154
Supreme Court of the United States of America, United States v. Jones, 132 S.Ct. 945 (2012), Concurring
Opinion of Justice Sotomayor, at 955-956.
152

(ii) the investigation was into a serious matter, involving terrorist bombing and (iii) the
measures had only been employed for a short period of time.
Given the safeguards and proportionality of the measures applied, the ECtHR considered
that Mr. Uzun’s right to privacy had not been violated.

* ECtHR, Uzun v Germany, Merits, Application no. 35623/05, Judgment of 2 September
2010.

Activity: Group discussion on surveillance and privacy


Sarland experienced a number of consecutive terrorist attacks. In response to these
events, it passed a law regulating the provision of communication services by telephone
companies. The law obligates individuals to provide their biometric details to the
telephone company as a condition for entering into a contract. It requires telephone
companies to collect information on the users. The companies are to keep a database
with the client’s name, biometric data, associated account, a record of telephone calls,
the locations from which the individual made the calls, the times of the day during which
the individual made the telephone call and the record of the conversation. The law allows
law enforcement agents to use artificial intelligence programs to scan the sets of data
held by telephone companies in order to identify suspicious patterns. To enable the law
enforcement officials to achieve this, the law requires the companies to disclose to the
government its encryption protocols. A separate clause stipulates that the law
enforcement officials should obtain a court order in order to be entitled to request the
telephone company to disclose the information associated with the client’s account. Ask
the students to work in teams and to comment on the following:
• Whether the law complies with international human rights standards.
• Advise the government how it can amend the law in order to appropriately
balance the need to protect its citizens and their right to privacy.

4. Privacy, intelligence gathering and armed conflict

Issues relating to intelligence gathering methods as well as privacy can also arise in
situations of armed conflict. In this context, a principle role that intelligence gathering can
play is regarding the identification of military targets. As was explained in Module 6 on
armed conflict/military approaches, a key principle of international humanitarian law (IHL) is
distinction.155

The rule of target verification is designed to enable those who plan or execute an attack to
comply with the principle of distinction. It obligates the relevant individuals to do everything

155
Article 48 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection
of Victims of International Armed Conflicts 1977.
153

“feasible” to verify that the objectives to be attacked are neither civilians nor civilian objects
and are not subject to special protection.156 The rule envisages attackers using intelligence
gathering, surveillance and reconnaissance resources to identify the character of the
proposed target in order to ensure that they only attack lawful military targets. This rule too
binds parties to the conflict in both international (IAC) and non-international (NIAC) armed
conflicts.157

Moreover, parties to the conflict collect intelligence in order to be in a position to comply


with the principle of proportionality. The rule prohibits attacks 'which may be expected to
cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a
combination thereof, which would be excessive in relation to the concrete and direct
military advantage anticipated' from the attack.158 The principle of proportionality requires
the attacker to balance the military value of the destruction, neutralization or capture of the
target and the incidental harm which the attack is expected to inflict onto civilians and
civilian objects. Through collecting intelligence, those who plan an attack determine
whether there are civilians and civilian buildings in close proximity to the target as well as
what scale of harm the attack is likely to cause to civilians. States have not disclosed how
they determine the value commanders should attach to military gains and humanitarian loss
when applying the principle of proportionality. The rule is binding in both IACs and NIACs.159

IHL does not directly address the fact that efforts to gather intelligence may lead to parties
to the conflict to interfere with the privacy of individuals. This is illustrated by the increased
use of drones and accompanying drone strikes in Afghanistan, Pakistan, Yemen, Somalia and
Syria against members of armed groups which it regards as a threat to its national
security.160 International law gives little attention to the issue of the protection of privacy
during armed conflict, particularly when they are engaged on information gathering
missions. Drones have an ability to hover over an area for hours and to transmit video
footage of the events on the ground. They are equipped with specialist equipment to
facilitate the ability of the user to pick out military targets. For instance, the infrared video
cameras capture objects emitting heat. The Pentagon maintains that one in around 300
airstrikes results in an incorrect identification of a target.161 Instead, the preoccupation of
IHL is on protecting the right to life through preventing the erroneous targeting of
individuals not taking a direct part in hostilities162 and the violent nature of armed conflicts

156
Article 57(2)(a)(i) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts 1977.
157
Jean-Marie Henckaerts and Louise Doswald-Beck, Customary international humanitarian law, vol. 1 (2005),
3-4.
158
Articles 57(2)(a)(iii) and 57(2)(b) API Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of International Armed Conflicts 1977.
159
Jean-Marie Henckaerts and Louise Doswald-Beck, Customary international humanitarian law, vol. 1 (2005),
46.
160
Associated Press Journalist Josh Lederman, From Afghanistan to Syria: U.S. military forays in the 21st
century, 6 April 2017, available at https://globalnews.ca/news/3362936/syria-strikes-us-military-campaigns.
161
The Washington Spectator Journalist Avi Asher-Schapiro, How many civilian casualties of U.S. drone
strikes?, 17 October 2016, available at https://washingtonspectator.org/drones-syria-obama. Though NGOs
contest such statements - eg Retired United States Air Force General Michael V. Hayden, To keep America
safe, embrace drone warfare, 19 February 2016, available at
https://www.nytimes.com/2016/02/21/opinion/sunday/drone-warfare-precise-effective-imperfect.html.
162
Retired United States Air Force General Michael V. Hayden, To keep America safe, embrace drone warfare,
19 February 2016, available at https://www.nytimes.com/2016/02/21/opinion/sunday/drone-warfare-
precise-effective-imperfect.html.
154

leads to a situation where the interest of protecting privacy is subordinated to other


interests.

States use a variety of technologies to conduct surveillance during armed conflict which it
would have been unlawful for them to employ without a court order during peacetime.
States have used signals generated by telephone communications to map the network of
contacts with whom an individual is affiliated.163 Another practice has been to pay
informants to plant locator chips in houses,164 on the clothing and inside the telephones of
individuals. The chips emitted infrared light and could be detected through night vision
equipment. The drones can easily detect these signals.165 The preoccupation of IHL with
accurate target identification reflects the fact that international community treats the
erroneous targeting of civilians as a serious crime, but not any accompanying invasions of
privacy. This is reflected also in parallel obligations under international criminal law. Whilst
this provides for criminal accountability for individuals who target civilians either
intentionally or recklessly166 in an IAC or NIAC,167 which is considered to constitute a war
crime, it pays little attention to the enjoyment of privacy.

One other matter should be noted regarded the increasing reliance upon drones, which
raises other human rights concerns, namely their psychological impact. Doctors in Yemen
report that over a half of civilians are psychologically impacted due to hearing drones
hovering above them for hours, days or even weeks. Since civilians do not know whether
and when a drone might release a missile injuring those nearby, they live in a continuous
state of fear. As a result of experiencing continuous feelings of anxiety, many individuals
develop post-traumatic stress disorder. The symptoms of this disorder include
sleeplessness, anxiety, short-temper, difficulty concentrating and paranoia.168 Doctors in
Afghanistan and Pakistan report a similar situation.169 Although non-governmental
organisations and scholars have tried to reinterpret existing rules of international
humanitarian law so as to address the mental trauma individuals experience due to being
under constant surveillance, it remains to be seen whether their efforts succeed. Despite
these effects on civilians, the armed forces are now developing miniature drones which will
be able to conduct surveillance anywhere, including in private homes.


163
Foreign Policy Journalist Kate Clark, Targeted killings and two worlds in Afghanistan: inside the Takhar
attack, 11 May 2011, available at http://afpak.foreignpolicy.com/
posts/2011/05/11/the_takhar_attack_targeted_killings_and_two_worlds_in_afghanistan?
wp_login_redirect¼04.
164
Toronto Star Journalist Olivia Ward, Earthlings, there is no place to hide-drone strikes blur the laws of war,
3 February 2013, available at
http://www.thestar.com/news/world/2013/02/03/earthlings_there_is_no_place_to_hide_dron
e_strikes_blur_the_laws_of_war.html4.
165
Adam Rawnsley and Noah Shahtman, Crazy military tracking tech, from super scents to quantum dots, 18
May 2011, available at https://www.wired.com/2011/05/crazy-military-tracking-tech.
166
Articles 8(2)(b)(i) and 8(2)(e)(i) Rome Statute of the International Criminal Court 1998.
167
International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Dusko Tadić Decision on Defence
Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1, Judgment of 2 October 1995, paras. 84 and
91.
168
Rolling Stone Journalist Vivian Salama, Death from above: how American drone strikes are devastating
Yemen, 14 April 2014, available at, http://www.rollingstone.com/politics/news/death-from-above-how-
american-drone-strikes-are-devastating-yemen-20140414.
169
Al Jazeera, Afghanistan: living beneath the drones, 23 July 2015, available at
http://www.aljazeera.com/programmes/specialseries/2015/07/living-beneath-drones-
150719090817219.html.
155

Further reading
• Nils Melzer, Human Rights Implications of the Usage of Drones and Unmanned Robots in
Warfare (2013), available at
http://www.europarl.europa.eu/RegData/etudes/etudes/join/2013/410220/EXPO-
DROI_ET(2013)410220_EN.pdf, p. 1-37.
• Robin Geiss, “Asymmetric conflict structures,” IRRC, Vol. 88, No. 864, December 2006,
pp. 757–777.
• “New technologies and warfare,” IRRC, Vol. 94, No. 886, Summer 2012.
• “Contemporary challenges for IHL,” webpage, ICRC, https://www.icrc.org/en/war-and-
law/contemporary-challenges-for-ihl.
• Associated Press Journalist Josh Lederman, From Afghanistan to Syria: U.S. military
forays in the 21st century, 6 April 2017, available at
https://globalnews.ca/news/3362936/syria-strikes-us-military-campaigns.
• The Washington Spectator Journalist Avi Asher-Schapiro, How many civilian casualties of
U.S. drone strikes?, 17 October 2016, available at
https://washingtonspectator.org/drones-syria-obama.
• Retired United States Air Force General Michael V. Hayden, To keep America safe,
embrace drone warfare, 19 February 2016, available at
https://www.nytimes.com/2016/02/21/opinion/sunday/drone-warfare-precise-
effective-imperfect.html.
• Foreign Policy Journalist Kate Clark, Targeted killings and two worlds in Afghanistan:
inside the Takhar attack, 11 May 2011, available at
http://afpak.foreignpolicy.com/posts/2011/05/11/the_takhar_attack_targeted_killings_
and_two_worlds_in_afghanistan?wp_login_redirect¼04.
• Toronto Star Journalist Olivia Ward, Earthlings, there is no place to hide-drone strikes
blur the laws of war, 3 February 2013, available at
http://www.thestar.com/news/world/2013/02/03/earthlings_there_is_no_place_to_hid
e_dron e_strikes_blur_the_laws_of_war.html4.
• Adam Rawnsley and Noah Shahtman, Crazy military tracking tech, from super scents to
quantum dots, 18 May 2011, available at https://www.wired.com/2011/05/crazy-
military-tracking-tech.
• Rolling Stone Journalist Vivian Salama, Death from above: how American drone strikes
are devastating Yemen, 14 April 2014, available at,
http://www.rollingstone.com/politics/news/death-from-above-how-american-drone-
strikes-are-devastating-yemen-20140414.
• Al Jazeera, Afghanistan: living beneath the drones, 23 July 2015, available at
http://www.aljazeera.com/programmes/specialseries/2015/07/living-beneath-drones-
150719090817219.html.
• Abigail Fielding-Smith and Crofton Black, When You Mess Up, People Die: Civilians Who
are Drone Pilots' Extra Eyes, 30 July 2015, available at https://www.theguardian.com/us-
news/2015/jul/30/when-you-mess-up-people-die-civilians-who-are-drone-pilots-extra-
eyes.

156

5. Accountability and procedural oversight of intelligence gathering methods

The module so far has focused on the substantive aspects of the right to privacy and
intelligence gathering methods. This section now turns to considering some of the
procedural safeguards necessary to address at least some of the concerns identified during
the substantive rights discussion, namely judicial and non-judicial oversight in order to
ensure that appropriate checks and balances are in place. Such oversight and accountability
mechanisms play a pivotal role in promoting adherence to the rule of law by States, and
should extend to intelligence gathering activities during both peacetime and in situations of
armed conflict. [See further too Module 14]

One of the most important mechanisms here is that of the judicial oversight of interception
and surveillance activities, procedures and so forth, which is what many of the UN and
regional human rights bodies and independent special mandates holders have argued for.
For instance, the Human Rights Committee has recommended that courts have oversight
over the authorization of surveillance measures, and over the performance of law
enforcement and intelligence agencies.170 According to the UN High Commissioner for
Human Rights, an independent, impartial and transparent judiciary is the minimum
safeguard the international human rights law requires. The Committee, like many others,
advocates against the sufficiency of any oversight offered by an executive official, such as a
Cabinet minister, to authorise interceptions of communications and surveillance measures.
Not only do such measures lack any semblance of independence or impartiality since
intelligence agencies are entities of the executive, but often such officials lack any power to
make binding decisions on compliance of the decisions with international human rights
standards.171

Consequently, they argue that law enforcement and intelligence officials should seek a
court order to intercept an individual’s communications or to conduct surveillance in order
for an interference to be lawful in accordance with the principles and tests explained earlier
in the module, including necessity and proportionality. [section 2?] Independent officials,
namely judges, benefit not only from necessary standards of impartiality and independence,
but are also more likely to apply uniform criteria proscribed by law to assess whether a
particular interference with an individual’s right to privacy is lawful.172

In addition to judicial oversight, all branches of the government should be involved in


overseeing the surveillance programmes of intelligence agencies.173 This is conducive to
individuals having an effective remedy. The Human Rights Committee has emphasized that
states should establish “strong and independent” institutions to oversee the work of
government agencies involved in gathering intelligence so as to prevent abuses.174 The UN

170
Concluding Observations of the Human Rights Committee, United States of America (CCPR /C/USA/CO/4),
23 April 2014, para. 22.
171
Report of the Office of the United Nations High Commissioner for Human Rights, The right to privacy in the
digital age (A/HRC/27/37), 30 June 2014, paras. 38 and 41.
172
See,eg, the Supreme Court of India, State (N.C.T. of Delhi) v. Navjot Sandhu @ Afsan Guru, Case No. 373-
375, Judgment of 4 August 2005, section 16.
173
Ibid. para. 37. ?
174
Concluding Observations of the Human Rights Committee, United States of America (CCPR /C/USA/CO/4),
23 April 2014, para. 22.
157

High Commissioner for Human Rights explained that Parliamentary committees may lack
independence and should therefore be supplemented by the establishment of independent
bodies to oversee the work of intelligence agencies.175 Moreover, the possibility of
sanctions being imposed on law enforcement and intelligence for failure to respect the right
to privacy creates an impetus for public officials to adhere to the law.

There is some variation between what kind of oversight measures international and regional
human rights bodies require over the law enforcement and intelligence agencies. Unlike the
Human Rights Committee, the ECtHR pronounced that it is not mandatory to have judicial
supervision over the decision of government organs to intercept communications or to
conduct surveillance. As the Court explained in Klass and others v. Germany, although it is
desirable that a judge supervises the decision of a government organ to limit an individual’s
enjoyment of the right to privacy, the State is entitled to use alternative supervision
mechanisms. For instance, in this particular case the Court thought that it was sufficient
that an official qualified for judicial office supervised the decision to intercept an individual’s
personal communication. Moreover, a Parliamentary Board which was independent of the
Parliament exercised oversight over the law enforcement and intelligence agencies.176
Applying the same principles, in the case of Roman Zakharov v. Russia the ECtHR held that,
in contrast, the Russian legislation granting a permission to the police and secret services to
access by technical means the mobile telephone communications of any user was
“arbitrary.”177 It reached this different conclusion on the basis of the fact that the Russian
law 1) lacked procedures which the public authorities had to follow in order for an
interception of communications to be authorised, 2) did not provide for independent organs
to supervise the decision to intercept communication, 3) did not provide for procedures
relating to how to store data, and 4) did not place limitations on the duration of the
surveillance.178

The Inter-American human rights system has also considered issues relating to procedural
safeguards. Its approach has been to require that independent authorities should be
established which authorize an interference with the right to privacy, and which monitor
the operation of law enforcement and intelligence agencies.179 The IACtHR places
considerable importance on the use of procedural safeguards. Government officials should
obtain orders from independent officials. Such officials should not rubber stamp the
decisions of law enforcement and intelligence organs. The IACtHR found in the case of
Escher et. al. v. Brazil that the police may monitor the telephone conversations of a social
organisation only in cases where the judge in issuing the order explained how the law
applied to the factual situation at hand.180


175
Report of the Office of the United Nations High Commissioner for Human Rights, The right to privacy in the
digital age (A/HRC/27/37), 30 June 2014, para. 38.
176
ECtHR, Klass and others v. Germany, Application No. 5029/71, Chamber judgment of 6 September 1978,
para. 55-56, 58-59.
177
ECtHR, Roman Zakharov v. Russia, Application No. 47143/06, Grand Chamber judgment of 4 December
2015, para. 230.
178
Ibid. paras. 230-231.
179
Joint Statement of the United Nations Special Rapporteur on the Protection and Promotion of the Right to
Freedom of Opinion and Expression Special Rapporteur for Freedom of Expression of the Inter-American
Commission on Human Rights, Joint declaration on surveillance programs and their impact on freedom of
expression, 21 June 2013: http://www.oas.org/en/iachr/expression/showarticle.asp?artID=927&lID=1.
180
IACtHR, Escher et al. v. Brazil, Judgement of 6 July 2009, para. 132.
158

A further safeguard proposed by Special Rapporteurs to the UN and to the Inter-American


Commission has been that private entities which collect information about their clients
should inform their customers as soon as is possible about any requests for information
they receive from government organs, and about the number and scope of such requests.
Furthermore, they have proposed that States should raise awareness among the citizens
about their right to privacy.181

Case study regarding procedural safeguards for electronic surveillance


The Escher case:*
In the late 1990’s social conflict, including disorder and violence, arose out of issues of
land reform in Paraná, a municipal state within Brazil. A number of social organizations
were involved in campaigning around these issues. The Military Police of Paraná
requested that a specific phone number be monitored. Permission was granted by the
court. A second request was subsequently submitted in relation to a phone line used by a
different organization without any accompanying justification. This was also granted.
Subsequently, various recorded conversations between those using the phone line were
broadcast on national television.
The case was brought before the Inter-American Court of Human Rights alleging
violations of the rights to judicial guarantees, privacy, freedom of association and judicial
protection established in the American Convention. In its judgment, the Court
emphasized the importance of independent supervision of surveillance. The Court
acknowledged that Brazil had a system for judicial authorization of telephone intercepts
in place, and that applications had been filed and approved by a judge in the case at
hand.
The Court underscored, however, that the judge has a special role to play in dealing with
ex parte applications, such as applications for surveillance measures: “In proceedings
whose juridical nature requires the decision to be issued without hearing the other party,
the grounds and justification must show that all the legal requirements and other
elements that justify granting or refusing the measure have been taken into
consideration. Hence, the judge must state his or her opinion, respecting adequate and
effective guarantees against possible illegalities and arbitrariness in the procedure in
question.” (at 139)
In considering the way the Brazilian judge in the case had dealt with the applications
submitted by the military police, the Court found that these requirements had not been
met: “Contrary to the foregoing, [the judge] authorized the telephone interceptions with
a mere annotation that she had received and examined the requests and granted them …
. In her decision, the judge did not explain her analysis of the legal requirements or the


181
Joint Statement of the United Nations Special Rapporteur on the Protection and Promotion of the Right to
Freedom of Opinion and Expression Special Rapporteur for Freedom of Expression of the Inter-American
Commission on Human Rights, Joint declaration on surveillance programs and their impact on freedom of
expression, 21 June 2013, available at
http://www.oas.org/en/iachr/expression/showarticle.asp?artID=927&lID=1.
159

elements that caused her to grant the measure, or the way in which the procedure
should be carried out or its duration” (at 140). The Court also found that there had been
insufficient safeguards to ensure that the private information was not obtained by third
parties.

* Inter-American Court of Human Rights, Escher et al. v. Brazil, Judgment of 6 July 2009.

Further reading
• UN Joint Statement of the United Nations Special Rapporteur on the Protection and
Promotion of the Right to Freedom of Opinion and Expression Special Rapporteur for
Freedom of Expression of the Inter-American Commission on Human Rights, Joint
declaration on surveillance programs and their impact on freedom of expression, 21
June 2013: http://www.oas.org/en/iachr/expression/showarticle.asp?artID=927&lID=1.
• Quirine A.M. Eijkman and Daan Weggemans “Visual Surveillance and the Prevention of
Terrorism: What About the Checks and Balances?” (2011) 25(3) International Review of
Law 143.

160

Assessment questions
• Compare and contrast the differences in the legal framework governing the right to
privacy in peacetime and war time, and the implications for these for individual rights
and freedoms.
• What criteria need to be satisfied in order for an interference with the right to privacy
to be compatible with ICCPR? How does this vary across different regional human
rights mechanisms, and with what implications?

• What are the similarities and differences between the way in which international and
regional human rights bodies have interpreted criteria concerning lawful interferences
with the right to privacy?

• Identify and critically assess legislative restrictions on the enjoyment of the right to
privacy provided for in your country, including to what extent it is consistent and
inconsistent with international human rights standards and obligations.
• Critically evaluate the impact on the right to privacy that different types of
technologies employed by government authorities to intercept communications and
to conduct surveillance may have. Consider at least two different forms of technology
available.

• Discuss the human rights implications (privacy and other rights) associated with the
gathering and use of metadata by the intelligence and law enforcement communities.
How does this differ, if at all, from the gathering of ordinary data? Would
governments be able to carry out counter-terrorism prevention activities as effectively
without relying on megadata?

161

PROHIBITION AGAINST TORTURE


1. Overview

Torture, under international law, is deemed absolute and prohibited under international law. Yet,
the practice of torture continues around the world and is often justified for the purposes of security
within a framework of counter-terrorism.182 Whilst there is a Convention against Torture clarifying
and guiding other bodies, there is no precise definition of torture; some practices may be torture in
the legal sense and others may not be, themes which are explored in this module. The ambiguity is
amplified due to the lack of a universally agreed definition, together with the close relationship that
torture has to cruel, inhuman and degrading treatment where the exact cross-over parameters are
not always entirely clear. These different categories of treatment, whilst overlapping at times, must
also be understood to be distinct. That said, one positive outcome of the surrounding case law is
that this has assisted in further clarifying and strengthening law and practice governing the
prohibition of torture. This module will discuss the closeness in nature of both of these terms and
delineate how the various international and regional systems have interpreted them.

The law surrounding torture et al in a counter-terrorism context also has close connections to issues
such as non-refoulement (see further Modules 3 and 10), discrimination (see further Module 13),
treatment in detention (see further Module 10) and practices of extraordinary rendition. In some
instances, violations of the prohibition of torture are so severe that they can also result in death,
thereby violating the right to life also (see further Module 8). These issues further raise important
issues of accountability and impunity, as well as seeking adequate reparations for victims of torture
perpetrated in the name of counter-terrorism (see further Module 14).

This module considers the primary legal frameworks governing the prohibition against torture and
related mechanisms when violations occur, namely international and regional human rights law,
international criminal law and international humanitarian law, examining these issues in both
peacetime and armed conflict settings. Though not considered in any great detail here, the
importance of national criminal approaches are recognised too from the outset.

Throughout, the term "torture" is used to denote all forms of mistreatment explored in this module
except where differences exist between this most extreme form of mistreatment and other forms,
such as cruel, degrading or inhuman treatment.

Tools:
There are a number of non-governmental organisations which specialise in the prohibition
against torture and related violations which have many useful materials, such as:

• REDRESS, available at http://www.redress.org.


• International Rehabilitation Council for Torture Victims, available at http://irct.org.
• World Organization against Torture, available at http://www.omct.org.
• Centre for Victims of Torture, available at https://www.cvt.org.


182
See eg CAT, Committee against Torture examines Report of Cameroon, 9 November 2017
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22384&LangID=E
162

2. Legal Framework

2.1. International human rights treaties

2.1.1. International Covenant on Civil and Political Rights (ICCPR)

Although there is no universally agreed definition of torture, much consensus exists regarding its key
attributes. This is reflected within the text of the ICCPR which was the first human rights treaty to
expressly include its prohibition. Article 7 states that no person ‘shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment’. As is provided for under Article 4(2) ICCPR,
reflecting its jus cogens character, no derogation from Article 7 is permitted in any circumstances.
This has been confirmed by the Human Rights Committee (HRC) in its General Comment on Article 7,
where ‘no justification or extenuating circumstances may be invoked to excuse a violation of article
7 for any reasons, including those based on an order from a superior officer or public authority’.

The contents of Article 7 are complemented by the positive requirements of Article 10(1) ICCPR
which requires that ‘all persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person’. This Article prohibits less serious forms of
treatment than that which is prohibited by Article 7. Whilst Article 10 is not within the list of non-
derogable rights in Article 4 ICCPR, the Human Rights Committee has declared that in practice Article
10(1) reflects a general international law norm which cannot be subject to derogation. Article 10 also
allows within its remit a range of treatment, which may not necessarily fulfil the requirements of
Article 7 and therefore allows for a lower threshold of severity. The HRC’s work points to evident
commonality between the application of Article 7 and Article 10(1), where infringements of both can
be founded in certain situations.

2.1.1.1. ‘Torture’

The ICCPR does not contain a definition of torture. On this, the Human Rights Committee, unlike
with the regional mechanisms (see Section 2.2), did not feel it necessary to establish a list of
prohibited acts or to differentiate between torture and other forms of ill-treatment. Instead, it has
explained that in determining whether an Article 7 violation had occurred, ‘all circumstances of the
case, such as the duration and manner of the treatment, its physical or mental effects as well as the
sex, age and state of health of the victim’183 had to be assessed. Characteristics such as the victim’s
age or health may therefore exacerbate the impact of a particular type of treatment, bringing it
within the scope of Article 7. Such treatment must have actually occurred in order to have an
adverse effect. It is not enough to simply speculate that certain treatment has the potential to have
such adverse effects. In this sense, a subjective element is included in the assessment of whether
treatment within the scope of Article 7 has taken place.

Thus, in its jurisprudential practice, the Committee very often does not stipulate which element of
the prohibition has been infringed, but merely states that there has been a violation of Article 7
ICCPR. Nonetheless, it has still managed to develop the scope of the prohibition without actually
defining its elements. In doing so, it has highlighted the Committee's as well as wider international

183
ref
163

community's concern to States over their failure to provide a definition of torture offences under
national criminal law, particularly in light of Article 2(2) ICCPR. The Article specifies a duty to
implement the prohibition into national legislation. It states

Where not already provided for by existing legislative or other measures, each State Party to
the present Covenant undertakes to take the necessary steps, in accordance with its
constitutional processes and with the provisions of the present Covenant, to adopt such
laws or other measures as may be necessary to give effect to the rights recognized in the
present Covenant.

The Human Rights Committee has, at times, been guided by Article 1 UN Convention against Torture
(discussed below in Section 2.12), as well as recommending that it be adopted within national
legislation. Therefore, in the case of Giri v Nepal, whilst reiterating that it did not feel it necessary to
provide distinctions between torture and other kinds of treatments and punishment, the Committee
deemed it was appropriate to identify torture if the facts warranted it and was guided by Article 1
Convention against Torture in making such an assessment. It also confirmed that its general
approach was that the ‘critical distinction between torture on the one hand, and other cruel,
inhuman or degrading treatment or punishment, on the other, will be the presence or otherwise of a
relevant purposive element’.184

In order to cross the threshold for torture, the ICCPR does not require the existence of any related
degree of acquiescence or involvement by a State official. Indeed, ‘[i]t is the duty of the State Party
to afford everyone protection through legislative and other measures as may be necessary against
the acts prohibited by Article 7, whether inflicted by people acting in their official capacity, outside
their official capacity or in a private capacity’.185 Furthermore, the ICCPR prohibition on torture and
ill-treatment applies whether acts were conducted by public officials or private persons, which
means that the State has a positive duty to protect individuals within its jurisdiction from acts of
private persons, as confirmed by the Human Rights Committee.186

Therefore, the approach of the Committee has been to find that certain specific acts constitute
torture. These have included burns, deprivation of food and water, systematic beatings, thumb
presses, electric shocks, amputations and hanging from hand or leg chains for lengthy periods of
time. In the case of Domukovsky et al v Georgia, serious physical assaults such as broken bones,
scarring, and even threats to the family were deemed both torture and inhuman treatment.187 Even
when such factual determinations are made, in most of the communications that it considers, the
Human Rights Committee does not differentiate between the elements of Article 7 and simply states
that Article 7 as a whole has been violated. Therefore, for example, in the case of White v
Madagascar incommunicado detention combined with solitary confinement chained to a bed with
little food and water was more generally declared as a violation of Article 7.188

2.1.1.2. ‘Cruel, Inhuman and Degrading Treatment or Punishment’


184
CCPR, Giri v Nepal, Communication No. 1761/2008, para. 7.5. See too eg HRC, El Hagog Jumaa v Libya,
Communication No. 1755/2008, 2012, para 2.3.
185
CCPR General Comment No. 20 (n 1).
186
CCPR, General Comment No. 31, CCPR/C/21/Rev.1/Add.13, 2004, s.8.
187
CCPR, Domukovsky et al v Georgia, Communication No. 623, 624, 626, 627/1995, 1998.
188
CCPR, White v Case, Communication No. 115/82, paras 15.2 and 17.
164

As with the concept of "torture", no precise definitions exist of "cruel", "inhuman" or "degrading"
treatment under the ICCPR. The case law, however, has suggested that the criteria of severity,
intention and purpose are not as strictly applied when assessing these forms of treatment in
comparison to torture.

In Vuolanne v Finland, the Human Rights Committee stated that ‘for punishment to be degrading,
the humiliation or debasement involved must exceed a particular level and must, in any event, entail
other elements beyond the mere fact of deprivation of liberty’.189 Other outputs providing
clarification on the Committee's interpretative stance regarding ‘cruel, inhuman and degrading
treatment or punishment’ include its various Concluding Observations on State parties. For example,
in one of these outputs, the Committee was of the view that enhanced interrogation techniques
‘such as prolonged stress positions and isolation, sensory deprivation, removal of clothing and
deprivation of all comfort and religious items, forced grooming, and exploitation of detainees’
individual phobias’ did not violate Article 7 ICCPR.190

Proportionality has played a part in establishing violations under Article 7, including determining the
correct categorisation of an act as cruel, inhuman, degrading treatment under Article 7, as opposed
to the rationale or purpose behind the treatment. Similarly, whether an act is reasonably undertaken
has been seen as relevant in determining Article 7 treatment, even if the results are pain and
suffering. Whilst ‘purpose’ is a key character of the definition of ‘torture’, the HRC’s General
Comment 20 infers that it is not a requirement for other forms of ill-treatment under the Article. The
cases of Cabal and Pasini Bertran, as well as VS v Russian Federation demonstrate the
proportionality approach for determining other forms of ill-treatment.191 Furthermore, in Mukong,
an Article 7 violation was found since the individual alone had been victim of excessively appalling
and degrading treatment.192 The State put forward a justification that the appalling prison conditions
were related to financial problems due to Cameroon’s developing status. This justification was
rejected by the HRC.

Like for torture, the HRC has also in various cases decided that certain acts constitute ‘cruel’,
‘inhuman’ and/or ‘degrading treatment. For example, in one case, the HRC decided that
imprisonment in a cell for 23 hours a day without adequate food or medical care, without a
mattress, bedding sanitation, sunlight or leisurely activities, was cruel and inhuman treatment.193
Refusal of medical care has also been established as degrading treatment.194 In another case, the
HRC found degrading treatment under Article 7 existed when the individual was publicly displayed in
a cage for the media. The requirement for pre-trial detainees to wear jackets showing the place of
detention, as well as wearing jackets throughout their trial, was deemed degrading, as it violated the
principle of presumption of innocence.195

2.1.1.3. Facts over law


189
ibid.
190
CCPR, Concluding Observations on the USA, 2006, CCPR/C/USA/CO/3/Rev.1.
191
CCPR, Cabal and Pasini Bertran v Australia, Communication No. 1020/02; HRC, Russian Federation,
Communication No. 1627/2007.
192
CCPR, Mukong v Cameroon, Communication No 458/1991, 1994, s. 9.4.
193
CCPR, Deidrick v Jamaica, Communication No. 619/95, para 9.3.
194
CCPR, Thomas v Jamaica, Communication No. 321/1988, para 9.2.
195
See CCPR, Concluding Observations on Benin, CCPR/CO/82/BEN.
165

One further matter worthy of note at this juncture is that most Human Rights Committee cases
regarding Article 7 hinge on the facts of the case as opposed to the law. More specifically, a central
question for the Committee has been whether there is sufficient evidence to prove the allegations,
more so than whether the alleged acts have violated Article 7. This is illustrated by the case of
Mukong v Cameroon, in which the State Party argued that the burden of proof was with the
individual, but the Committee contended that

[T]he burden of proof cannot rest alone with the author of a communication, especially
considering that the author and the State party do not always have equal access to the
evidence and that frequently the State party alone has access to the relevant information
(…). Mr Mukong has provided detailed information about the treatment he was subjected
to; in the circumstances, it was incumbent upon the State party to refute the allegations in
detail, rather than shifting the burden of proof to the author.196

2.1.2. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (UNCAT)

2.1.2.1. Defining key concepts

In addition to the ICCPR, there is a dedicated convention against torture, UNCAT. Article 1 of this
Convention provides a definition of torture which, as previously noted, the Human Rights Committee
has drawn upon as source of guidance and clarification when determining torture related issues. It
states that

Torture means any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or a third person
information or a confession, punishing him for an act he or a third person has committed or
is suspected of having committed, or intimidating or coercing him or a third person, or for
any reason based on discrimination of any kind, when such pain or suffering is inflicted by or
at the instigation of or with the consent or acquiescence of a public official or other person
acting in an official capacity. It does not include pain or suffering arising only from, inherent
in or incidental to lawful sanctions.

As with Article 7 ICCPR, derogation from the UNCAT provisions is not possible due to the absolute
nature of the prohibition against torture.197 In reinforcing its non-derogable character, the
Committee against Torture recognised

the difficulties that the State Party [faced] in its prolonged fight against terrorism, but
[recalled] that no exceptional circumstances whatsoever [could] be invoked as a justification


196
CCPR, Mukong v Cameroon, Communication No 458/1991, 1994, s. 9.2.
197
CAT, Concluding Observations on the UK, CAT/C/CR/33/3, 2004; A/57/44, 2002; CAT, Concluding
Observations on the USA, CAT/C/USA/C/2.
166

for torture, and [expressed] concern at the possible restrictions of human rights which may
result from measures taken for that purpose.198

Article 1 cannot be used to restrict other broader definitions, such as that in the Inter-American
Convention to Prevent and Punish Torture (IACPPT). As will be seen in the next section, the IACPPT
has a more expansive definition than the one aforementioned, as it does not require certain levels of
severity. UNCAT could not then be used to restrict the Inter-American definition.

There are specific key requirements under the Article 1 definition. These are severity of pain and
suffering; intention; acts (and omissions); purpose; and the involvement of a public official. There is
ambiguity surrounding whether Article 1 requires the intention to cause pain and suffering or
intention to specifically commit the act in question. There has been much debate as to whether the
Article extends to an omission. A number of the other international bodies, such as the European
Court of Human Rights (ECtHR), have affirmed that an omission can constitute torture. The
Committee against Torture has made it clear that States must be responsible for the acts and
omissions of their agents and officials, meaning that a State is not permitted to be free from
responsibility for its obligations to prevent torture, including any omission.199 This is largely
consistent with the approach adopted by the Human Rights Committee, although it has not always
regarded omissions as constituting torture. Article 1 further requires that torture must be
perpetrated for a purpose and goes on to list a number of examples, which are not exhaustive,
which has been the approach adopted by the Human Rights Committee also.

2.1.2.2. Public official requirement

Whereas the ICCPR does not distinguish between the prohibition on torture and ill-treatment on
whether it was carried out by a public official or private person, UNCAT specifically requires the
involvement of a public official.200 This means that under UNCAT, States are not responsible for
actions that are committed by other private entities and therefore acts that are beyond their
control. Nonetheless, UNCAT does specify a spectrum of required public official involvement with
the lowest level of "acquiescence" to be present before torture can be established. What amounts
to "acquiescence" as the basic requirement for State liability is therefore crucial. In the case of Agiza
v Sweden201, the Committee against Torture came to a very similar conclusion as that of the Human
Rights Committee in Alzery v Sweden, namely that acts which ‘occurred in the course of performance
of official functions in the presence of the State party’s officials and within the State party’s
jurisdiction, are properly imputable to the State party itself, in addition to the State on whose behalf
the officials were engaged’.202

However, in the non-refoulement case of GRB v Sweden, in response to the State asserting that the
acts of a terrorist group were not attributable to the public authorities, the Committee against
Torture agreed and stated that ‘whether the State party has an obligation to refrain from expelling a
person who might risk pain or suffering inflicted by a nongovernmental entity, without the consent


198
CAT, Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Conclusions
and Recommendations of the Committee against Torture: Yemen, 2004, CAT/C/CR/31/4, para 5.
199
CAT, General Comment 2
200
See eg Prosecutor v Kunarac, Kovać and Vuković (2002) s. 146.
201
CAT, Agiza v Sweden, 233/03.
202
HRC, Alzery v Sweden, Communication No. 1416/05, para 11.6
167

or acquiescence of the Government, falls outside the scope of article 3 of the Convention’.203 Even
under UNCAT, however, the State must respond in a reasonable and adequate manner to such acts
and take measures to prevent them.204 The Committee against Torture has expressly confirmed a
standard of due diligence in assessing whether an official has shown acquiescence in practices that
infringe UNCAT.205 Given the inclusion of both public and private persons within the scope of the
ICCPR, the Human Rights Committee has established the existence of torture and of ill-treatment
more liberally than the Committee against Torture. Both the ICCPR and UNCAT contain a duty to
investigate claims of torture or cruel, inhuman or degrading treatment.

2.1.2.3. Distinguishing "torture" from "other acts of cruel, inhuman or degrading treatment or
punishment"

Article 16 UNCAT provides that States must prevent ‘other acts of cruel, inhuman or degrading
treatment or punishment which do not amount to torture (…) when such acts are committed by or
at the instigation of or with the consent or acquiescence of a public official or other person acting in
an official capacity’. This requirement provides some assistance in distinguishing torture from other
forms of ill-treatment. Though the absence of a definition of what those acts may be has led the
Committee against Torture to acknowledge the ambiguity surrounding the threshold between
torture and cruel, inhuman or degrading treatment, even with the existence of Article 16, there is no
tangible distinction between each of them.206

The Special Rapporteur on the Question of Torture has observed that numerous countries have
taken advantage of the sometimes existence of a fine line between torture and cruel, inhuman or
degrading treatment, adopting a legal position which calls its absolute nature into question.
Specifically, a previous rapporteur, Manfred Nowak, was of the view that the use of harsh
interrogation methods, falling short of torture, were acceptable for the prevention of terrorism. In
seeking to clarify the situation, the Special Rapporteur reiterated Article 1 UNCAT as the point of
reference for defining torture.207 He was of the view that ‘the decisive criteria for distinguishing
torture from [other forms of ill-treatment] may best be understood to be the purpose of the conduct
and the powerlessness of the victim, rather than the intensity of the pain or suffering inflicted’.208
The circumstances must then be assessed for other forms of ill-treatment through the test of
proportionality and necessity.

2.1.2.4. Accompanying obligations for States


203
CAT, GRB v Sweden, 83/97.
204
It is worth looking at the case law on this issue. See for example, CAT, MPS v Australia, Communication
No. 138/1999, 2002; CAT, GRB v Sweden, Communication No. 83/1997, 1998; CAT, Elmi v Australia,
Communication No. 120/1998, 1999. Also see Doebbler v Sudan, Communication No. 236/2000, 2003, s.36.
205
See articles 1 and 16 UNCAT.
206
CAT, General Comment No. 2, ‘Implementation of article 2 by States Parties’, CAT/C/GC/2/CRP.1/Rev.4,
2007, s. 3.
207
UN Economic and Social Council, Report of the Special Rapporteur on the Question of Torture, Manfred
Nowak, 2005, E/CN.4/2006/6, 12 https://documents-dds-ny.un.org/doc/UNDOC/GEN/G05/168/09/PDF/
G0516809.pdf?OpenElement
208
Report of the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment,
E/CN.4/2006/6, 2005, s. 39.
168

UNCAT further provides that States must enforce legislation that criminalises torture. Article 4
UNCAT states

1. Each State Party shall ensure that all acts of torture are offences under its criminal law.
The same shall apply to an attempt to commit torture and to an act by any person which
constitutes complicity or participation in torture.

2. Each State Party shall make these offences punishable by appropriate penalties which
take into account their grave nature.

This provision, however, only applies to torture and not to other types of ill-treatment.

The establishment of jurisdiction under Article 5 UNCAT is worthy of mention here. Although the
Human Rights Committee has found that specific measures under UNCAT coincide with Article 7
ICCPR, it has not done the same regarding the criterion to establish universal jurisdiction over the
practice of torture, which is not provided for under UNCAT. It appears that under customary
international law, that States have the legal ability, but not the legal duty to exercise universal
jurisdiction over the offence of torture. The case of Roitman Rosenmann v Spain is illustrative here.
This concerned Spain’s failed request that the UK government extradite former Chilean dictator
Augusto Pinochet to face prosecution in Spain for the torture of Spanish citizens in Chile during his
rule. The Committee concluded that while States have extraterritorial jurisdiction over acts of
torture committed against their nationals, Article 5(1)(c) establishes ‘a discretionary faculty rather
than a mandatory obligation to make, and insist upon, an extradition request.’ It went on to add that
‘the Convention imposes an obligation [on a State Party] to bring to trial a person, alleged to have
committed torture, who is found in its territory’, in a bid against impunity for torture. UNCAT obliges
States to exercise jurisdiction to prosecute someone who is suspected of torture or to extradite
them to a State for prosecution. Ultimately, this extends beyond what is contained in customary
international law.209

2.2. Regional human rights treaties

This section now turns to considering torture in relation to regional treaties.

2.2.1. The African Charter on Human and Peoples’ Rights (ACHPR)

Article 5 of the ACHPR states that

‘[e]very individual shall have the right to the respect of the dignity inherent in a human being
and to the recognition of his legal status. All forms of exploitation and degradation of man,
particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment
shall be prohibited’.


209
Roitman Rosenmann v Spain, CAT Communication No. 176/2000, 2002; also see HRC, Concluding
Observations on Belgium, UN Doc. CAT/C/CR/30/6, 2003.

169

In comparison to the treaty bodies and other regional systems, the ACHPR places torture within a list
of more general forms of exploitation and degradation, such as slavery. In reality, this categorisation
has no effect on the scope and nature of the prohibition against torture. Furthermore, a derogation
clause is also absent from the wording of the Charter and the Commission has asserted that the right
to freedom from torture and cruel, inhuman and degrading treatment cannot be derogated from for
any reason, in whatever circumstances.210 Domestic laws restricting this right must also adhere to
the Charter. The absolute nature of the prohibition against torture and other forms of ill-treatment
means that an attempted restriction of this right under Article 5 or of any means to guarantee these
rights, would be an infringement of the ACHPR.

As in the ICCPR and UNCAT, there is a blurring of the lines between what is ill-treatment and what is
torture. The African Commission has yet to provide clarification on this issue and has not yet
deliberated over the definition of torture in depth. Some of the cases the Commission has worked
on have involved a certain level and severity of violation, which in many ways has rendered the
distinction futile. The Commission has, however, viewed torture as a much more ‘serious’ form of ill-
treatment. This is illustrated by the case of International Pen and Others v Nigeria where the
Commission found that

Article 5 prohibits not only torture, but also cruel, inhuman or degrading treatment. This
includes not only actions which cause serious physical or psychological suffering, but which
humiliate the individual or force him or her to act against his will or conscience.211

As with the UN Human Rights Committee, the African Commission has similarly referred to the
UNCAT definition of torture as a point of interpretative departure, as well as to relevant provisions
of international humanitarian law. The Robben Island Guidelines, which were adopted through a
resolution of the Commission, also form a source of non-binding interpretative assistance to the
Commission, the African Court, as well as African Union Member States.

The following case studies reveal how the concepts of "torture" and other forms of ill-treatment are
interpreted within an African context.

Case studies: Prohibition of torture in an African context

Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13
others) C. Angola Case:*

In March, April and May of 2004, Mr Esmaila Connateh and 13 other Gambians were detained
and deported from Angola. Those expelled alleged that they ‘were detained in detention
centres (…) under conditions which were not suitable for human habitation’. They alleged that
‘the detention camps were initially (…) used to house animals just prior to its conversion into a
detention centre to hold approximately 300 people and few measures had been taken to
accommodate the detainees, including cleaning out the animal waste’. They also submitted that


210
Article 19 v Eritrea, Communication No. 275/2003, 2007, s. 98.
211
International Pen and Others (on behalf of Ken Saro-Wiwa Jr) v Nigeria, Communication Nos 137/1994,
139/1994, 154/1996 and 161/1997, 1998, para. 79.
170

the detention centre in Saurimo had no roof or walls and [they] were exposed to the
elements of weather for five consecutive days. At the Cafunfu detention centre, bathroom
facilities consisted solely of two buckets for over 500 detainees, and these were located in
the same one room where all detainees were compelled to eat and sleep.

In some cases, they alleged that they were ‘faced with harsh conditions such as: no medical
attention; lack of food; poor sanitation. (…)’. The African Commission noted with concern that
‘such a treatment cannot be called anything but degrading and inhuman’. For this purpose, the
Commission recalled its ‘communication 224/1998 Media Rights Agenda v Federal Republic of
Nigeria in which the terms “cruel, inhuman or degrading punishment or treatment” were held
to be “interpreted so as to extend to the widest possible protection against abuses, whether
physical or mental,” referring to any act ranging from denial of contact with one's family and
refusing to inform the family of where the individual is being held, to conditions of overcrowded
prisons and beatings and other forms of physical torture, such as deprivation of light,
insufficient food and lack of access to medicine or medical care’.

The African Commission in the case also reiterated its position in Huri-Laws v. Nigeria, in which
it ruled that such

treatment meted out to the victim “constituted” “a mental trauma” and [therefore] “a
breach of Article 5 of the African Charter, as well as the [Standard Minimum Rules for the
Treatment of Prisoners] as laid out by the United Nations. There [was] nothing from the
Respondent State to counter these allegations and the African Commission, thus, is of the
view that Angola is in violation of Article 5 of the African Charter. [END]

Like the ECrtHR, the African Commission has emphasised the importance of analysing the full
context of the case when establishing the minimum threshold for ill-treatment, including the
period of time in which torture took place, impact of treatment and the situation of the
victim.212 The ACHPR is also more stringent than other international instruments on the duty to
protect from ill-treatment by private actors, where ‘every human being is obliged to respect by
all means possible and (…) [where there is] a duty on every human being to respect’ this
‘inherent’ right.213 However, it is only States – or official bodies with a link to the State - that can
be held liable for infringements. According to the Commission, this includes instances where
States may not even have incurred the infringement, but failed to ensure that the right was
effected.214 Whilst a number of cases have dealt with the State obligation to protect individuals
from ill-treatment by non-State actors, it was in Zimbabwe Human Rights NGO Forum v
Zimbabwe that it was nuanced and deliberated with detail. It referred to – and ultimately
extended the stringency of - the Inter-American Court’s work on due diligence, as per the


212
Huri-Laws v Nigeria, Communication No. 225/1998, 2000, s.41. In this case, the Commission referred to
Ireland v UK (1978).
213
Purohit and Moore v The Gambia, Communication No. 241/2001, 2003, s. 57.
214
This was the view in Commission Nationale des Droits de l’Homme et des Libertes v Chad, Communication
No. 74/1992, 1995, s.20.
171

Velasquez-Rodriguez v Honduras case and stated

[h]uman rights law imposes obligations on States to protect citizens or individuals under
their jurisdiction from the harmful acts of others. Thus, an act by a private individual and
therefore not directly imputable to a State can generate responsibility of the State, not
because of the act itself, but because of the lack of due diligence to prevent the violation
or for not taking the necessary steps to provide the victims with reparation’. (…) Individual
cases of policy failure or sporadic incidents of non-punishment would not meet the
standard to warrant international action.215

From this case, the Commission made clear that it was only an absence of systematic guarantee
of protection against private actors that would incur liability. The Commission’s strict approach
can also be seen in the standards surrounding the duty to investigate, where in the same case, it
was decided that an non-effectual investigation did not necessarily mean a violation. Issues had
to be assessed on a case by case basis.

Monim Elgak, Osman Hummeida et Amir Suliman (On behalf of IFHR WOAT) C. Soudan:**

Mr. Suliman, Mr. Hummeid and Mr. Elgak, were prominent human rights defenders and alleged
that they ‘were arrested, tortured and detained on account of their human rights work’ by
‘National Security and Intelligence Services officers (NISS) in Khartoum’. The complaints included
‘a pervasive climate of fear’ and ‘various acts’ ‘including being punched and hit (…), sleep
deprivation and denied access to medical treatment(…) with the purpose of extracting
information. They submitted that they were not ‘able to file their complaint before the Supreme
Court while they were in detention’. Mr Elgak subsequently wrote an open letter to the Director
General of the NISS, which was published wide within and outside of Sudan. No response was
given to the open letter describing their torture.

In the case, the African Commission observed that ‘the complaints have adduced evidence in
the form of a medical certificate and sworn testimonies’ to prove that ‘the treatment to which
they were subjected’, ‘singly and in combination’, ‘resulted in severe physical and mental pain
and suffering’. These facts have ‘not been contested by the Respondent State’ [which not either
has] ‘produced any record or proof to show that the Supreme Court was closely monitoring their
situation (…) as it is supposed to. [The latter] should at least have a record of when, how, why
and where they were detained, and the conditions under which they were detained,
interrogated and treated’.

The Commission affirmed that ‘States are under an obligation not only to make sure that torture
is absolutely prohibited in their legislation, but also in practical terms. Where torture is allegedly


215
Zimbabwe Human Rights NGO Forum v Zimbabwe, Communication No. 245/2002, 2006, ss. 159-160.
172

inflicted and this is brought to the attention of the State, it is also under an obligation to initiate
a prompt, impartial and effective investigation in order to determine the veracity of the
allegations and to bring the perpetrators to justice if the allegations are founded, as well as to
afford redress to the victims. The Commission observes that it has already been established
that the allegations of torture in the present Communication were duly brought to the attention
of the authorities of the Respondent State. However, there is no indication that the Respondent
State took any measures to investigate the allegations and bring the perpetrators to justice (…)’.

In the circumstances, the Commission decided that the Complainants’ rights under Article 5 of
the Charter had been violated and ‘the responsibility of the Respondent State engaged under
Article 1’ as it had ‘failed in its positive obligations to recognize the rights, freedoms and duties
enshrined in the Charter and to adopt legislative or other measures to give effect to them.’
[END]

The ACHPR can also be read to create a duty on States to criminalise torture and ill-treatment,
done through the combined reading of Article 1 of the ACHPR and its Article 5. The African
Commission has also declared that the obligations of a State under the ACHPR does include the
positive duty to ‘prosecute and punish private actors who commit abuses’. The ‘existence of a
legal system criminalizing and providing sanctions for assault and violence would not in itself be
sufficient; the Government would have to perform its functions to effectively ensure that such
incidents of violence are actually investigated and punished.’216 In this respect, there is also a
need for State’s to put in place procedural safeguards for the guarantee of this prohibition.

Case Study: Egyptian Initiative for Personal Rights and Interights C. Arab Republic of Egypt
Case:***

Mr. Sabbah, Mr. Abu-Gareer and Mr. Al-Nakhlawy were ‘tried and sentenced to death after
being accused of bombings which took place on 6 October 2004 and 23 July 2005 on the Sinai
Peninsula in Egypt’. The three men alleged that ‘agents of the State Security Intelligence (the
SSI) subjected [them] to various forms of torture and ill-treatment during their detention, in
order to “confess” before the State Security Prosecutor for their involvement in the Taba
bombings’. Complaints submitted that they ‘were held incommunicado for a long period of time
without access to a lawyer’. They also submitted that they ‘were charged with crimes in relation
to the Taba bombings and were tried by the Supreme State Security Emergency Court in a trial
characterized by procedural and substantive anomalies’. They further alleged that the ‘court's
decision was based substantially on the “confessions” obtained through torture and prolonged
ill-treatment’ and none of them ‘had lawyers present at the critical early interrogation stage’.


216
Zimbabwe Human Rights NGO Forum v Zimbabwe, Communication No. 245/2002, 2006, s. 159.

173

The African Commission declared that

it should be understood by the Respondent State that there a positive obligation on them
to provide access to independent legal assistance under the Charter, inherent in the
international prohibition of torture and ill-treatment. The African Commission has
recognized the right to access to a lawyer as one of the “basic procedural safeguards for
those deprived of their liberty” and as one of the necessary safeguards against abuse
during the pre-trial process. In the instant matter, the obligation to permit access to
counsel or independent legal advice was breached (…). The African Commission is
convinced that the Victims were not given access during the critical early stage of
detention, including interrogation sessions, when there is the greatest risk of torture and
ill-treatment.

The African Commission’s view was that the ‘right of a detainee to have prompt recourse to a
court (…) [was] a matter of international law (…) [and] a vital aspect of the prevention and
deterrence of torture and other ill-treatment’. In the Robben Island Guidelines, the African
Commission also recognised that the right to be brought promptly before a judicial authority
constituted an essential safeguard against torture and ill-treatment. [END]

* ACHPR, Comm. 292/04, Institute for Human Rights and Development in Africa (on behalf of
Esmaila Connateh & 13 others) C. Angola, 22 May 2008.
** ACHPR, Commun. 379/09, Monim Elgak, Osman Hummeida et Amir Suliman (On behalf of
IFHR WOAT) C. Soudan, 10 March 2015.
*** ACHPR, Comm. 334/06, Egyptian Initiative for Personal Rights and Interights C. Arab
Republic of Egypt, 1 March 2011.

2.2.2. Inter-American Convention to Prevent and Punish Torture (IACPPT)

The foundations for the IACPPT were established by a more general right to life, liberty and security
of person provided for in Article 1 of the American Declaration of the Rights and Duties of Man,
which were further developed by Article 5 American Convention on Human Rights (ACHR) which
states that every ‘person has the right to have his physical, mental, and moral integrity respected’.
Article 5 ACHR further provides that ‘no one shall be subjected to torture or to cruel, inhuman, or
degrading punishment or treatment. All persons deprived of their liberty shall be treated with
respect for the inherent dignity of the human person’.

The principal instrument for the prevention and punishment of torture within the inter-American
system is the IACPPT. Notably, so far as the definition of torture is concerned, Article 2(1) further
develops the American Declaration and ACHR provisions in the following terms:

[A]ny act intentionally performed whereby physical or mental pain or suffering is inflicted on
a person for purposes of criminal investigation, as a means of intimidation, as personal
punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall
also be understood to be the use of methods upon a person intended to obliterate the

174

personality of the victim or to diminish his physical or mental capacities, even if they do not
cause physical pain or mental anguish.

The concept of torture shall not include physical or mental pain or suffering that is inherent
in or solely the consequence of lawful measures, provided that they do not include the
performance of the acts or use of the methods referred to in this article.

This definition is more expansive in its scope than UNCAT. For example, it does not have a
requirement that pain should be "severe" and broadens the scope by stating "any other purpose".
This widens the pool of types of purpose that can be utilised for establishing a violation of the
Article. In determining the material aspects of the prohibition, the Commission and the Inter-
American Court have both taken into account such factors as the duration of which pain or suffering
was brought about, the reason and means in which it was done, the overall context, the
arbitrariness of the deprivation of liberty, as well as individual traits of the victims such as gender,
age and societal position.217

As to the condition of intention, the Inter-American regional approach has been to include the
State’s lack of respect in refraining from torture or deprivations of liberty. Furthermore, it has
considered whether or not a State failed to act with sufficient due diligence to protect and
guarantee these rights, i.e. failed to take all reasonable steps, appropriate to the context (e.g.
likelihood of a particular violation occurring, such as enforced disappearances) to prevent the
violation from occurring. The Court has affirmed that

[v]iolations of the Convention cannot be founded upon rules that take psychological factors
into account in establishing individual culpability. For the purposes of analysis, the intent or
motivation of the agent who has violated the rights recognized by the Convention is
irrelevant – the violation can be established even if the identity of the individual perpetrator
is unknown. What is decisive is whether a violation of the rights recognized by the
Convention has occurred with the support or the acquiescence of the government, or
whether the State has allowed the act to take place without taking measures to prevent it or
to punish those responsible.218

The systematic and repetitive use of torture has fulfilled the purposive element of torture according
to the Inter-American Court, as in Tibi v Ecuador.219

The Inter-American Commission has further recognised rape as constituting torture, as was the case
in Martí de Mejía v Peru.220 This was the first occasion in which an international court had found rape
to fall within the parameters of torture. In this case, the Commission stated that rape was a method
of psychological torture that is intended to humiliate the victim and their family. This is in line with

217
Ximenes-Lopes v Brazil, (Series C) No. 149, 2006, s.127.
218
See cases Velásquez-Rodríguez v Honduras, (Series A) No. 4, 1982, s.173 and Godínez-Cruz v Honduras,
(Series C) No. 5, 1989, s.183.
219
Tibi v Ecuador, IACHR (Series C) No. 114, judgement of 7 September 2004;

Also see Gómez-Paquiyauri Brothers v Peru, IACHR (Series C) No. 110, 2004.
220
Martí de Mejía v Peru, Case 10970, Report No. 5/96, 1996.

175

such earlier recognition by the Special Rapporteur on Torture.221 This is significant in a counter-
terrorism context where rape has been used within the context of interrogation to extract
information or enforce confessions. (See further Section 5.1).

As the Inter-American Commission made clear in the case of Loayza Tamayo, any such treatment is
never justifiable regardless of the context including counter-terrorism efforts.

even in the absence of physical injuries, psychological and moral suffering, accompanied by
psychic disturbance during questioning, may be deemed inhuman treatment. The degrading
aspect is characterized by the fear, anxiety and inferiority induced for the purpose of
humiliating and degrading the victim and breaking his physical and moral resistance (…).
That situation is exacerbated by the vulnerability of a person who is unlawfully detained (…)
Any use of force that is not strictly necessary to ensure proper behaviour on the part of the
detainee constitutes an assault on the dignity of the person (…) in violation of Article 5 of the
American Convention. The exigencies of the investigation and the undeniable difficulties
encountered in the anti-terrorist struggle must not be allowed to restrict the protection of a
person’s right to physical integrity.222

The IACPPT does not define cruel, inhuman, or degrading treatment or punishment, but merely
states in its Article 6 that States ‘shall take effective measures to prevent and punish other cruel,
inhuman, or degrading treatment or punishment within their jurisdiction’. As is the case with other
international and regional human rights mechanisms, there is a lack of a clear distinction between
torture and ill-treatment. The Inter-American system has therefore tended to follow the case law of
the European Court of Human Rights.223 For example, it follows the line of thinking in relation to
psychological abuse, where the European Court of Human Rights has affirmed that in the absence of
physical injuries, psychological and moral suffering, accompanied by psychic disturbance during
interrogations, may be deemed inhuman treatment. The Inter-American Commission has further
stated that the American Convention and IACPPT allows for a margin of appreciation in assessing
what is torture and what is ill-treatment based on the severity and seriousness of the case. In doing
so, it adopts a case by case approach, taking into account such factors as the length of time of
suffering and the victim’s personal situation.

The Inter-American Commission on Human Rights, in a report it developed to assist States with
human rights abiding anti-terrorist legislation, emphasised that

(…) while each case must be evaluated on its own circumstances, torture or other cruel,
inhuman or degrading treatment could include more subtle treatments that have
nevertheless been considered sufficiently cruel, such as exposure to excessive light or noise,
administration of drugs in detention or psychiatric institutions, prolonged denial of sleep,
food, insufficient hygiene, or medical assistance, total isolation and sensory deprivation.224


221
Report of the Special Rapporteur on Torture, E/ CN.4/1986/15, §119; Also see Statement to the
Commission on Human Rights, Summary Record of the 21st meeting of the Commission on Human Rights,
1992, E/CN.4/1992/SR.21, para. 35.
222
IACommHR, Loayza Tamayo v Peru, 1997, Series C No. 33, para 57.
223
This was done in the case of Lizardo Cabrera v Dominican Republic, Case 10832, Report No. 35/96, 1998.
224
Report on Terrorism and Human Rights, OAS Doc. OEA/Ser.L/V/II.116, Doc. 5 rev. 1 corr, 2003
www.cidh.oas.org/Terrorism/Eng/toc.htm.

176

The Commission also stated that acts comprising other cruel, inhuman or degrading punishment or
treatment are strictly prohibited and that prolonged incommunicado detention may also be a form
of cruel, inhuman or degrading punishment or treatment. The Court has similarly stated that

[t]he violation of the right to physical and psychological integrity of persons is a category of
violation that has several gradations and embraces treatment ranging from torture to other
types of humiliation or cruel, inhuman or degrading treatment with varying degrees of
physical and psychological effects caused by endogenous and exogenous factors which must
be proven in each specific situation.225

Case study
Loayza Tamayo v Peru*

The case involved the arrest and detention of Professor Maria Elena Loayza Tamayo by the State
of Peru on account that she was suspected of participating in the activities of the terrorist group
Sendero Luminoso. Peru did not conduct an investigation prior to her arrest, nor obtain a
warrant. Following the arrest, Tamayo was tried for the crime of terrorism and treason. She was
held incommunicado for 10 days without any contact with her family and subjected to torture,
cruel and degrading treatment, as well as unlawful pressure. This included ‘threats of drowning
on the beach at night and rape to [which] she was subjected by members of DINCOTE’, in a bid
to force her to incriminate herself and confess to being a part of the alleged terrorist
organisation.

The Inter-American Commission claimed that Peru had violated the Tamayo’s right to humane
treatment in breach of Article 5 of the Convention. It acknowledged that the violation of the
right to physical and psychological integrity of persons has various gradations and includes
treatment ranging from torture to other types of cruel, inhuman or degrading and humiliating
treatment with varying degrees of psychological and physical effects caused by endogenous and
exogenous factors. These must be proven in each specific situation.


* IACommHR, Loayza Tamayo v Peru, 1997, Series C No. 33.

2.2.3. The European Convention for the Protection of Human Rights and Fundamental Freedoms
(ECHR)

The prohibition against torture is provided for in Article 2 European Convention for the Protection of
Human Rights and Fundamental Freedoms (ECHR), which states that ‘[n]o one shall be subjected to
torture or to inhuman or degrading treatment or punishment.' Once again, the provision does not


225
Loayza Tamayo v Peru, (Series C) No. 33, 1997, s.57.

177

define torture or inhuman or degrading treatment or punishment. As with the other international
and regional bodies, the legal requirements can be determined through the case law of the Court
and Commission.

The leading cases clarifying the scope of application are The Greek Case and Ireland v UK, where
prohibited acts were distinguished. Additionally, the case law of the Court has confirmed that
torture and ill-treatment cannot be utilised for counter-terrorism purposes. In Tomasi v France, the
State used Tomasi’s suspected involvement in a terrorist attack as a reason for his ill-treatment. The
Court rejected this defence and stated that ‘[t]he requirements of the investigation and the
undeniable difficulties inherent in the fight against crime, particularly with regard to terrorism,
cannot result in limits being placed on the protection to be afforded in respect of the physical
integrity of individuals.’226

The European Commission in The Greek Case made a distinction between torture, inhuman and
degrading treatment and held that abuses existed on a spectrum; each an intensified and severe
form of the other. Torture is seen as containing a special element that differentiates it from other ill-
treatment. The core aspect of torture is the purpose in which it is carried out and not its nature or
severity. Therefore,

all torture must be inhuman and degrading treatment, and inhuman treatment also
degrading. The notion of inhuman treatment covers at least such treatment as deliberately
causes severe suffering, mental or physical, which, in the particular situation, is unjustifiable
(…) Torture (…) has a purpose, such as the obtaining of information or confessions, or the
infliction of punishment, and it is generally an aggravated form of inhuman treatment.
Treatment or punishment of an individual may be said to be degrading if it grossly humiliates
him before others or drives him to act against his will or conscience.227

This case can be contrasted to Ireland v UK, where a limit founded on a sliding scale of severity on
the three types of degradation were put forward. This superseded the purposive approach to
torture. This case is also significant for its determination on "the five techniques" that were
prohibited by Article 3 ECHR as part of interrogation methods.


226
ECrtHR, Tomasi v France, no. 12850/87, (Series A) No. 241-A, judgement of 27 August 1992, para. 115.
227
The Greek Case, Nos. 3321/67, 3322/67, 3323/67 and 3344/67, 1969 Yearbook of the European Convention
on Human Rights, No. 12.

178

Case study: Ireland v UK

This case involved the treatment of IRA suspects by UK troops in Northern Ireland. The case was
brought against the UK by the Irish Government, in which they alleged that the use of ‘the five
techniques’ (sleep deprivation, stress positions, deprivation of food and drink, subjection to
noise and hooding) during interrogations constituted a breach of Article 3. Upon adjudicating,
the Court distinguished between torture, inhuman treatment, and degrading treatment, holding
that such a distinction was necessary because of the ‘special stigma’ attached to torture. It was
affirmed that an act must cause serious and cruel suffering to amount to torture. The Court held
that ‘the five techniques’ caused ‘if not actual bodily injury, at least intense physical and mental
suffering (…) and also led to psychiatric disturbances during the interrogation,’ which amounted
to inhuman treatment, but did not ‘occasion suffering of the particular intensity and cruelty
implied by the word torture’.

The Court did not follow the Commission in The Greek Case where such treatment did constitute
torture, in essence superseding the distinction based on the purpose of the act by a subjective
analysis of the severity of pain and suffering caused by these practices. Under such a distinction,
degrading treatment which reaches a certain severity can also be categorised as inhuman
treatment. Consequently, if serious enough, can constitute torture. The ‘threshold of severity’
method was reaffirmed and followed in a number of subsequent decisions of the Court and
Commission. [END]

* Ireland v UK (5310/71) [1978] ECHR 1

The ECtHR has made other determinations regarding the meaning and scope of torture which are of
especially significance to current terrorist as well as counter-terrorist practices. One is that it too has
established rape as falling within the scope of torture.

In the case of Aydin v Turkey the Court held that:

The rape of a detainee by an official of the State must be considered to be an especially


grave and abhorrent form of ill-treatment given the ease with which the offender can exploit
the vulnerability and weakened resistance of the victim. Furthermore, rape leaves deep
psychological scars on the victim which do not respond to the passage of time as quickly as
other forms of physical and mental violence (...) against this background the Court is
satisfied that the accumulation of acts of physical and mental violence (…) especially the
cruel act of rape to which she was subjected amounted to torture in breach of Article 3 of
the Convention.228

The case determined that an act of rape could be deemed torture. Notably, the Court further
determined that a separation between torture, inhuman or degrading treatment cannot be drawn
by a basic assessment of the level of pain or suffering caused. It ‘depends on all the circumstances of


228
Aydin v Turkey, no. 23178/94, Rep. 1997-VI, ECHR, 1997.

179

the case such as the duration of the treatment, its physical and mental effects and in some
circumstances the sex, age and state of health of the victim'.229

Selmouni v France can be seen as a landmark case when, for the first time, the European Court
referred to the torture definition contained in UNCAT and reverted back to the issue of purpose as a
crucial element.230 Broadly speaking, the Court has taken quite a flexible and contextual approach to
acts prohibited under the ECHR and highlighted its fluid nature. Therefore, the Court has seen its
own role as not being bound by earlier judgments and has the ability to re-assess jurisprudence, as
well as expand the remit of acts that have not been viewed as torture or ill-treatment in other
previous cases.

The Greek Case is also important for the issue of degrading treatment and its definition. The case
determined "degrading" as a form of "gross humiliation". Together with meeting the threshold of
severity, as put forward in Ireland v UK, the European system can be seen to view degrading
treatment as containing three evident attributes. These include some form of interference with an
individual’s dignity, as in East African Asians v UK;231 a particular level of severity; and ‘the nature of
things relative’232 such as circumstances of the case, the means in which it was carried out etc. In
general, the Court’s approach has been to see whether the treatment has humiliated or debased the
victim.233

Case study: El-Haski v Belgium*

El-Haski was a Moroccan national who had been convicted to seven years of
imprisonment in 2004 in Belgium for several offences committed in relation to an
alleged terrorist group based in Afghanistan and Morocco. At his conviction, witness
testimony from Morocco was used which, according to El-Haski, was obtained via
means of torture. The use of evidence obtained by torture is prohibited under a
number of international agreements to which Belgium was a party to. The European
Court of Human Rights decided that an accused only has to prove a ‘real risk’ that
evidence has been obtained under torture or inhuman treatment. A higher standard,
such as Belgian courts and the UK, intervening in the case, require with the proof of
torture ‘beyond reasonable doubt’, violates the right to a fair trial enshrined in article
6 of the European Convention on Human Rights.
In June 2009, the ECCHR and the NGO Redress intervened in the European Court of


229
Ireland v UK (1978) s. 168.
230
Selmouni v France, no. 25803/94, ECHR 1999-V, 1999.
231
East African Asians v UK, no. 4403/70, Commission Report of 14 December 1973.
232
Tyrer v UK (1978) no. 5856/72, ECHR (Series A) No. 26, 1978.
233
Although there have been cases where a violation has occurred without such purpose. See V v UK no.
24888/94, ECHR (Series A) No.9, 1999; Peers v Greece, no. 28524/95, ECHR 2001-III, 2001.

180

Human Rights case of El Haski v. Belgium. The case related to the use of evidence
obtained by the torture of Mr. El Haski in his criminal trial on terrorism related charges
in Belgium. The intervention made by the ECCHR and Redress addressed the
definition, aim and scope of the prohibition, the burden of proof, and the influence of
the prohibition on the proceedings. It was contended that a real risk of torture had to
be sufficient to trigger the prohibition, and that the accused could not duly be
expected to obtain evidence, given the common involvement of secrecy issues and a
lack of access to information regarding the acts of states and repressive regimes. The
human rights court followed this argumentation. The European Court decided that fair
trial rules had been violated and ordered Belgium to pay compensation.
* ref

Further reading
• AfrCommHPR, ‘Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel,
Inhuman or Degrading Treatment or Punishment in Africa, Res.61 (XXXII) 02, 2002 (‘The
Robben Island Guidelines’).
• Evelyn A. Ankumah, The African Commission on Human and People’s Rights: Practice and
Procedures (Martinus Nijhoff Publishers 1996) 118ff.
• Khwaja Aizaz Ahsan & Namra Gillani, 'Criminalizing Torture in Pakistan', University College
Lahore Human Rights Review, Volume II
• Boniface E. Ewulum; Obina Onyebuchi Mbanugo, 'The Position of Torture in the Investigation
of Terrorist Related Crimes in Nigeria' (2015) 39 J.L. Pol'y & Globalization 84.
• Steven Greer, ‘Is the Prohibition against Torture, Cruel, Inhuman and Degrading Treatment
Really ‘Absolute’ in International Human Rights Law?’ (2015) 15(1) Human Rights Law Review
101-137 https://doi.org/10.1093/hrlr/ngu035
• Kevin Jon Heller, ‘Initial Thoughts on the ICC’s Decision to Investigate Afghanistan’ Opinio Juris
http://opiniojuris.org/2017/11/03/otp-decides-to-investigate-the-situation-in-
afghanistan/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%
3A+opiniojurisfeed+%28Opinio+Juris%29
• Burgers J Herman, Danelius Hans, The United Nations Convention against Torture: A Handbook
on the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment (Martinus Nijhoff Publishers 1988).
• CAT, ‘Report on Argentina’, A/45/44, 1990.
• CAT, ‘Discussion of Denmark’, Summary Record of the 757th meeting, CAT/C/SR.757, 2007.
• CAT, ‘Concluding Observations on Chile, CAT/C/CR/32/5, 2004.
• HRC, General Comment No. 20, 1992, HRI/GEN/1/Rev.6.
• HRC, General Comment No. 31, ‘Nature of the General Legal Obligation Imposed on States
Parties to the Covenant’ CCPR/C/21/Rev.1/Add.13, 2004.
• HRC, Report of the Special Rapporteur on Torture and other Cruel, Inhuman or Dragrading
Treatment or Punishment, 14 February 2017, A/HRC/34/54.
• HRC, ‘Report of the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment on his mission to Sri Lanka, 22 December 2016,
A/HRC/34/54/Add.2.
• HRC, Report on the Role and Responsibility of Judges, Prosecutors and Lawyers, 15 April 2010,

181

A/HRC/RES/13/19.
• HRC, Follow up Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment on his Follow-up Visit to the Republic of Ghana, 25
February 2015, A/HRC/31/57/Add.2.
• HRC, Report of the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment on his Mission to Brazil: Comments by the State, 3 March 2016,
A/HRC/31/57/Add.6.
• HRC, Concluding Observations on Belgium, UN Doc. CAT/C/CR/30/6, 2003.
• HRC, Resolution adopted by the HRC 16/23, Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment: Mandate of the Special Rapporteur, 12 April 2011,
A/HRC/RES/16/23.
• HRC, Resolution by the Human Rights Council on 24 March 2017, A/HRC/RES/34/19.
• HRC, Torture and other Cruel, Inhuman or Degrading Treatment or Punishment: Mandate of
the Special Rapporteur, 20 March 2017, A/HRC/34/L.32.
• Natasa Mavronicola, ‘Crime, Punishment and Article 3 ECHR: Puzzles and Prospects of
Applying an Absolute Right in a Penal Context’ (2015) 15(4) Human Rights Law Review 721–
743 https://doi.org/10.1093/hrlr/ngv024
• Nigel Rodley, Matt Pollard, ‘Criminalisation of Torture: State Obligations under the United
Nations Convention against Torture’ [2006] 2 European Human Rights Law Review 115-141.
• William A. Schabas, 'The Crime of Torture and the International Criminal Tribunals' (2006) 37
Case Western Reserve Journal of International Law 2.
• Stefan Sottiaux, ‘Leroy v France: Apology of Terrorism and the Malaise of the European Court
of Human Rights‟ Free Speech Jurisprudence’ (2009) 3 European Human Rights Law Review
• UNGA, ‘Interim Report of the Special Rapporteur on Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment’, 2015, A/70/303.
• Youth for Human Rights http://www.youthforhumanrights.org/what-are-human-
rights/videos/no-torture.html.

3. Armed conflict [need to simplify and draw out more of CT narrative inc key issues]

3.1. Contemporary issues

Under customary international humanitarian law, torture and cruel, inhuman or degrading
treatment is treated as a norm within the wartime context. This is reflected in Rule 90 found in the
ICRC database.234 Common Article 3 of the Geneva Conventions places a prohibition on torture and
cruel treatment, as well as ‘outrages upon personal dignity, in particular humiliating and degrading
treatment’ of civilians and persons hors de combat. The four Geneva Conventions235 similarly
prohibit these acts. The fact that the prohibition on torture is contained in a wide range of military
manuals, such as the manuals of Kenya, Indonesia, Canada, Belgium, Uganda, to name but a few, as
well as the fact that it is crystallised in domestic legislation, reinforces this.

Certainly, issues and controversies surrounding the prohibition against torture under international
humanitarian law, including the minimum core requirements of Common Article 3, have featured
prominently in recent armed conflict approaches to counter-terrorism. For example, some States
have argued that these obligations do not apply to detained "unlawful enemy combatants" such as

234
Rule 90. Torture and Cruel, Inhuman or Degrading Treatment https://ihldatabases.icrc.org/customary-
ihl/eng/docs/v1_rul_rule90
235
See Article 12 of the First Geneva Convention, para. 2; Article 12 of the Second Geneva Convention, para. 2;
Article 17, 87, 89 of the Third Geneva Convention; Article 32 of the Fourth Geneva Convention.
182

al Qaeda or ISIL fighters. (See further Module 6). Despite the fact that such arguments have been
rejected, including in the context of detainees at Guantanamo Bay,236 harsh interrogation techniques
and secret detention practices have continued within armed conflict contexts.237 Even those States
which respect international humanitarian law can seek to interpret Common Article 3 in a
deliberately restrictive manner. For instance, this may take the form of legislation that excludes the
prohibition on humiliating treatment, or a narrowing of the extent to which Common Article 3 can
be penalised as a war crime, thereby effectively resulting in immunity from prosecution.

Another significant concern has been the use of torture and other forms of coercion against
prisoners of war in order to acquire intelligence. Under Article 17 Geneva Convention III (governing
prisoners of war) any individual who refuses to provide information cannot ‘be threatened, insulted
or exposed to unpleasant or disadvantageous treatment of any kind’. Similarly, Article 31 Geneva
Convention IV (governing civilians) prohibits the employment of any moral or physical force against
protected persons for any purpose and specifically for intelligence extraction from them or third
parties. Similarly, those persons undergoing criminal trials have the right not to be compelled to
testify against themselves or to confess guilt, both during international and non-international armed
conflicts, which includes no harsh interrogation methods, as per Article 99 Geneva Convention III,
Article 75 Additional Protocol I and Article 6 Additional Protocol II.

3.2. International criminal law

3.2.1. ICTY and ICTR approaches

International criminal law also plays an important role in prohibiting torture in the context of
international and non-international armed conflict and providing additional mechanisms where such
acts occur. The jurisprudence of the ad hoc tribunals and International Criminal Court (see Section
3.2.2. below) are helpful in better understanding the parameters and nature of the prohibition
against torture and other forms of ill-treatment in the context of an armed conflict which apply
equally to military counter-terrorism approaches.

Recent case law has confirmed the position of torture as a customary norm including in situations of
armed conflict, such as in the cases of Furundzija and Kunerac within the International Criminal
Tribunal for the Former Yugoslavia (ICTY). Notably, though, differences between the elements
required for torture in situations of armed conflict compared with peacetime have been found to
exist. In the case of Kunerac, the Trial Chamber found that

the definition of torture under international humanitarian law does not comprise the same
elements as the definition of torture generally applied under human rights law. In particular,
the Trial Chamber is of the view that the presence of a state official or of any other authority
wielding person in the torture process is not necessary for the offence to be regarded as
torture under international humanitarian law.238


236
US Supreme Court, Hamdan v Rumsfeld (2006) 548, US 557, paras 65-68.
237
Human Rights Watch, ‘The Road to Abu Ghraib: A Policy to Evade International Law’
<https://www.hrw.org/reports/2004/usa0604/2.htm>
238
Prosecutor v Kunarac, Kovać and Vuković (2001), s. 496.

183

In the subsequent Appeals Chamber decision, and contrary to its decision in Furundzija, the ICTY
further held that

a statement that the definition of torture in the Torture Convention reflects customary
international law as far as the obligation of States is concerned, must be distinguished from
an assertion that this definition wholly reflects customary international law regarding the
meaning of the crime of torture generally.239

Further guidance on the character of the prohibition against torture in an armed conflict context is
given by the approach of the ICTY as well as International Criminal Tribunal for Rwanda (ICTR). Both
the ICTY and ICTR regard torture as a war crime and as a crime against humanity. Indeed the ICTY
has found that ‘[t]he definition of the offence of torture is the same regardless of the Article under
which the acts of the Accused have been charged’.240 The Statutes of neither Tribunal provide a
definition of torture or ill-treatment, rather this has been interpreted through their jurisprudence,
drawing also on that of other international treaties and bodies, such as the UNCAT.

Both tribunals have taken the purposive approach to the torture definition, as per Article 1 UNCAT.
In the Akayesu case, the ICTR specified various purposes that must be fulfilled in order for the
existence of torture to be established. The purposes included ‘a) to obtain information or a
confession from the victim or a third person; (b) to punish the victim or a third person for an act
committed or suspected of having been committed by either of them; (c) for the purpose of
intimidating or coercing the victim or the third person; (d) for any reason based on discrimination of
any kind’.241 This list is though not exhaustive.242 Indeed, the Akayesu also considered rape to fall
within the scope of torture. Other cases in both tribunals have discussed the requirement of purpose
within the definition of torture.243

The ICTY has also held that ‘the severity of the pain or suffering is a distinguishing characteristic of
torture that sets it apart from similar offences’,244 which is in line with international customary law.
The threshold on severity is not clear, though a former UN Special Rapporteur on Torture observed
that ‘a juridical definition cannot depend upon a catalogue of horrific practices; for it to do so would
simply provide a challenge to the ingenuity of the torturers, not a viable legal prohibition’.245
Severity would be examined on a case by case basis, including the personal circumstances of the
victim. Mental harm is also included within the definition of torture, in addition to physical harm.246


239
Prosecutor v Kunarac, Kovać and Vuković (2002) s. 147.
240
Prosecutor v Krnojelac, Case No. IT-97-25-T, ICTY Trial Chamber II, 2002, s. 178.
241
Prosecutor v Akayesu, Case No. ICTR-96-4-T, ICTR Trial Chamber I, 1998, s. 593-594.
242
See Prosecutor v Kunarac, Kovać and Vuković, Case Nos. IT-96-23 and IT-96-23/1, Appeals Chamber, 2002
where ‘intent’ and ‘motivation’ are discussed.
243
Prosecutor v Musema, Case No. ICTR-96-13-A, ICTR Trial Chamber I, 2000; Prosecutor v Krnojelac, Case No.
IT-97-25-T, ICTY Trial Chamber II, 2002; Prosecutor v Brđanin, Case No. IT-99-36, Trial Chamber II, 2004.
244
Prosecutor v Delalić and Others (the Čelebići case).
245
Sir Nigel Rodley, Report of the Special Rapporteur ‘Question of the Human Rights of All Persons subjected
to any form of Detention or Imprisonment, in particular: torture and other cruel, inhuman or degrading treatment
or punishment’, 1992/32, E/CN.4/1995/34.
246
Prosecutor v Kvočka and Others.
184

Under criminal responsibility, torture and ill-treatment extends beyond those that actually
committed the crime. Both the ICTY and ICTR Statutes state that ‘[a] person who planned, instigated,
ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a
crime referred to in (…) the present Statute, shall be individually responsible for the crime’.
Discussion on this issue can be found predominantly in ICTY case law, where the official capacity
requirement is also discussed. The main case on this issue is the Akayesu case, but Kunerac and
Furundzija cases have also helped to clarify the position on this element. The Rome Statute,
however, does not specify a requirement of official capacity in order for the criminal liability for
torture.

The ICTY and ICTR Statutes do outline acts that constitute other forms of ill-treatment within the
jurisdiction of the Tribunals. The purpose and gravity of the act is important in distinguishing
between torture and other ill-treatment offences. Where a prohibited purpose is absent, the
Tribunals have categorised the act as ill-treatment. A crime of torture will also require the actus reus
and mens rea, without which there will be no culpability.

Inhuman treatment, as an offence under the ICTY Statute, is ‘an intentional act or omission, that is
an act which, judged objectively, is deliberate and not accidental, which causes serious mental harm
or physical suffering or injury or constitutes a serious attack on human dignity’.247 All acts of torture
are considered inhuman treatment, but the reverse is not true, since inhuman treatment is much
broader and includes acts that cause serious mental and physical pain and suffering, but falls short
of the severe mental and physical suffering required to establish torture. Severity is therefore clearly
a factor in the distinction. The ICTY follows the definition formulated by the ICRC for the intention
required for the offence in that ‘the perpetrator must have acted deliberately or deliberately
omitted to act but deliberation alone is insufficient. While the perpetrator need not have had the
specific intent to humiliate or degrade the victim, he must have been able to perceive this to be the
foreseeable and reasonable consequence of his actions’.248

3.2.2. International criminal court

Under the Rome Statute, torture is categorized as a war crime and crime against humanity. Article
7(1)(f) Rome Statute includes torture as a crime against humanity falling under the jurisdiction of the
ICC ‘when committed as part of a widespread or systematic attack directed against any civilian
population, with knowledge of the attack.’ More specifically, Article 7(2)(e) defines torture as ‘the
intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the
custody or under the control of the accused; except that torture shall not include pain or suffering
arising only from, inherent in or incidental to, lawful sanctions’.

There are some important differences between the definition of torture under the Rome Statute
compared with the previously considered international and regional instruments and ad hoc
tribunals. One characteristic is that the definitional approach is narrower, requiring that torture is
‘upon a person in the custody or under the control of the accused’, which could exclude certain
types of torture, such as one-off or informal cases, from its legal remit. Another important

247
Prosecutor v Delalić and Others (the Celebići case) (1998), s. 543.
248
5 Prosecutor v Aleksovski, Case No. IT-95-14/1, Trial Chamber I, judgement of 25 June 1999, s.56.

185

distinction is that even those outside of an official status may be held liable and not only State
officials.

Article 8 outlines torture or inhuman treatment as grave breaches of the Geneva Conventions and
subject to punishment as war crimes. Six requirements were put forward by the Preparation
Commission in defining torture as a war crime:

1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more
persons.
2. The perpetrator inflicted the pain or suffering for such purposes as: obtaining information or
a confession, punishment, intimidation or coercion or for any reason based on
discrimination of any kind.
3. Such person or persons were protected under one or more of the Geneva Conventions of
1949.

4. The perpetrator was aware of the factual circumstances that established that protected
status.
5. The conduct took place in the context of and was associated with an international armed
conflict. 6. The perpetrator was aware of factual circumstances that established the
existence of an armed conflict

The purpose approach is clearly evident in the qualification of a war crime under the Rome Statute.
The purpose element was also the distinguishing factor between torture and inhuman treatment.

The International Criminal Court may also prosecute cases of torture when undertaken in an armed
conflict not international by nature and ‘committed against persons taking no active part in the
hostilities, including members of armed forces who have laid down their arms and those placed hors
de combat by sickness, wounds, detention or any other cause.’ The ICC also has jurisdiction over a
number of related offences, as prescribed by the Rome Statute. Article 8(2) (c)(i) prohibits ‘[v]iolence
to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture’. Article
8(2)(c)(ii) bans the commission of ‘outrages upon personal dignity, in particular humiliating and
degrading treatment.’ However, Article 8(2)(d) states that such acts will not be prosecuted by the
ICC if perpetrated during ‘internal disturbances and tensions, such as riots, isolated and sporadic,
acts of violence or other acts of a similar nature.

Further reading

• Karima Bennoune, 'Terror/Torture' (2008) 26 Berkeley Journal of International Law 1, 61.


• Alberto Costi, 'Jus in Bello and the War on Terror: Are Extraordinary Renditions Grave
Breaches of the Law of War?', 3 Asia-Pacific Yearbook of International Humanitarian Law, 144
(2007)
• Yusuff A.O., Oyelade O.S., 'Giving the War against Terrorism a Human Face: Spotlight on the
United States and the Guantanamo Bay Prisoners', 7 ISIL Year Book of International
Humanitarian and Refugee Law 285, 296 (2007)
• Mahfud Mahfud, 'Extra-Territorial Torture and Inhuman Treatment towards Suspected
Terrorists Committed by the U.K. and the U.S. Military Actions' (2014) 11(2) Indonesian J. of
International Law 219, 260 http://ijil.ui.ac.id/index.php/home/article/view/277/pdf_264
• ICRC, Cordula Droege, ‘”In Truth the Leitmotiv”: the Prohibition of Torture and other Forms of
Ill-Treatment in International Humanitarian Law’ (2007) 867 International Review
https://www.icrc.org/en/international-review/article/truth-leitmotiv-prohibition-torture-and-
186

other-forms-ill-treatment
• ICRC, ‘Torture of Terrorists? Use of Torture in a “War against Terrorism”: Justifications,
Methods and Effects: the Case of France in Algeria, 1954-1962’ (2007) 867 International
Review https://www.icrc.org/en/international-review/article/torture-terrorists-use-torture-
war-against-terrorism-justifications
• ICRC, Hernan Reyes, ‘The Worst Scars are in the Mind: Psychological Torture’ (2007) 867
International Review https://www.icrc.org/en/international-review/article/worst-scars-are-
mind-psychological-torture
• ICRC, James Ross, ‘Black Letter Abuse: The US Legal Response to Torture Since 9/11 (2007) 867
International Review https://www.icrc.org/en/international-review/article/black-letter-abuse-
us-legal-response-torture-911
• International Commission of Jurists, ‘Assessing Damage, Urging Action: Report of the Eminent
Jurists Panel on Terrorism, Counter-terrorism and Human Rights (2009)
http://www.un.org/en/sc/ctc/specialmeetings/2011/docs/icj/icj-2009-ejp-report.pdf
• Nigel Rodley, ‘Torture, Violence, and the Global War on Terror’ (2005) 99 Am. Soc'y Int'l. L.
Proc. 402.
• Gwenaelle Dereymaeker, Lukas Muntingh, ‘Sexual Violence and Torture in International
Criminal law’ (2012) 4(3) Journal of Human Rights Practice 486-489
https://academic.oup.com/jhrp/article/4/3/486/2189404
• Knut Dormann, ‘War Crimes under the Rome Statute of the International Criminal Court, with
a Special Focus on the Negotiations on the Elements of Crimes’ (2003)
http://www.mpil.de/files/pdf3/mpunyb_doermann_7.pdf
• Michelle Farrell, ‘Just How Ill-treated Were you? An Investigation of Cross-Fertilisation in the
Interpretative Approaches to Torture at the European Court of Human Rights and in
International Criminal Law (2015) 84(3) Nordic Journal of International Law 482.
• Olivier De Frouville, ‘The Influence of the European Court of Human Rights’ Case Law on
International Criminal Law of Torture and Inhuman or Degrading Treatment (2011) 9)3)
Journal of International Criminal Justice 633-649.
• Francesca Laguardia, ‘Deterring Torture: The Preventive Power of Criminal Law and its
Promise for Inhibiting State Abuses’ (2017) 39(1) 189-212.
• Sergey Marochkin, Galina Nelaeva, ‘Rape and Sexual Violence as Torture and Genocide in the
Decisions of International Tribunals: Transjudicial Networks and the Development of
International Criminal Law (2014) 15(4) Human Rights Review 473-488.
• Rome Statute of the International Criminal Court https://www.icc-
cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-
9CDC7CF02886/283503/RomeStatutEng1.pdf
• William Schabas, ‘The Crime of Torture and the International Criminal Tribunals’ (2006) 37(2)
Case Western Reserve Journal of International Law
http://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1372&context=jil
• Updated Statute of the ICTY
http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf
• Statute of the ICTR < http://legal.un.org/avl/pdf/ha/ictr_EF.pdf>

5. Key contemporary issues

5.1. Coercive Interrogation

187

Issues relating to the utilization of coercive interrogation techniques in global efforts to counter
terrorism has been a recurring theme during recent years, in particular in the context of human
rights violations. Often discussions regarding the legality (or not) of certain interrogation techniques
can be very emotive especially in a national or international security context where there can be a
fine line between States meeting legitimate security imperatives and violating the rule of law.

One suggested definition of the term "coercive interrogation" has been ‘the application of force,
physical or mental in order to extract information necessary to save others’.249 Once the methods
used pass a degree of severity, they can constitute torture which, as was explored earlier, is
prohibited by several international and regional instruments as well as under customary
international law. The prohibition against the ill-treatment of persons under interrogation is also
rooted in respect for human dignity and the inviolability of the human body. Nonetheless, some
governments around the world still engage in coercive interrogation, which has been difficult to
regulate or measure against the law. An important point to note from the outset is that not all forms
of coercive interrogation techniques equate to torture and vice versa.

Despite the often pressing nature of counter-terrorism preventative measures, human rights bodies
and special mandate holders have been consistent and unequivocal in their refusal to allow the line
to be crossed into acts of torture. Referring to a Report by the Inter-American Commission of Human
Rights, the Special Rapporteur re-affirmed the Commission’s view that ‘[t]he interrogation of
individuals suspected of having committed terrorist activities is (…) strictly limited by both
international human rights and humanitarian law standards relative to the right to humane
treatment and the absolute prohibition of torture.’250 The Council of Europe has reiterated this view
and has further stated that the use of torture or of inhuman or degrading treatment or punishment
is absolutely prohibited, in all circumstances, and in particular during the arrest, questioning and
detention of a person suspected of or convicted of terrorist activities, irrespective of the nature of
the acts that the person is suspected of or for which he/she was convicted.251

In an interim Report of the UN Special Rapporteur on Torture in August 2016, various


recommendations were made to ensure the prevention of unlawful coercive interrogation
techniques, including exhorting States to develop a universal protocol aimed at ensuring this. The
model promoted in the Report was centred on principles of presumption of innocent and pursuit of
truth, which moves away from accusatory, manipulative and confession-driven techniques. The
suggested Protocol would elaborate on a fundamental set of standards and procedural safeguards to
protect the physical and mental integrity of all individuals being questioned. These include non-
coercive, ethically sound, evidence-based and empirically founded interviewing practices. The
Special Rapporteur advocated for an alternative model of investigative interviewing, which was
based in the promotion of human rights without any resort to torture, ill-treatment or coercion. He
put forward some guidance on how this could be implemented in practice, such as through


249
Eric A. Posner, Adrian Vermeule, ‘Should Coercive Interrogation be Legal?’ (2005) The University of
Chicago Public Law and Legal Theory Working Paper
http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1272&context=public_law_and_legal_theory
250
Report on Terrorism and Human Rights, OAS Doc. OEA/Ser.L/V/II.116, Doc. 5 rev. 1 corr, 2003
www.cidh.oas.org/Terrorism/Eng/toc.htm
251
Council of Europe, Council of Europe Guidelines on Human Rights and the Fight against Terrorism, Guideline
IV.

188

recording interviews and the provision of information to suspects on their rights as interviewees,
and so forth.252

The mandate of the Special Rapporteur has also involved work on gender-discriminatory
interrogation techniques. A particular issue with some national counter-terrorism approaches has
been the sanctioned use of discriminatory interrogation techniques for both male and female
terrorism suspects. Often these have involved indecent or forced sexual acts, in some instances even
rape (methods which have also been used in non-gender discriminatory contexts). As a
consequence, the Special Rapporteur has asserted that homophobia and gender-based
discrimination can never be legitimately used in counter-terrorism; indeed, that such approaches
may have the opposite to desired effect in obstructing the fight against terrorism, such as through
the triggering of ‘hyper-masculine responses that include acceptance or advocacy of violence’.253

5.1.1. Controversial coercive interrogation techniques

Some methods of coercive interrogation employed in the name of counter-terrorism have been
especially controversial, attracting high level debate and often condemnation. One such technique
has been waterboarding, including with respect to whether intelligence apparently obtained through
this technique ultimately resulted in the detection and neutralization of Osama bin Laden, the
former leader of the Al Qaeda terrorist group.

Waterboarding occurs when water is poured over a cloth covering the face and breathing passages
of a detained person, causing simulated drowning. It can be extremely painful and lead to
permanent injury. Though some States and commentators have argued that this practice is of
insufficient severity to constitute torture or that it violates UNCAT, others have argued that it is
more severe than the "prohibited five" methods (sleep deprivation, stress positions, deprivation of
food and drink, subjection to noise and hooding) condemned by the European Court of Human
Rights in the Ireland case. Certainly, the Special Rapporteur on Torture has been unequivocal in
stating that waterboarding is not an exception to the prohibition against torture; instead, that it
"amounts to torture"254 which constitute unjustifiable and unacceptable practice. This is despite the
arguments put forward by some States to the effect that 'a tougher program for tougher customers'
is both legitimate and necessary.255

Another form of interrogation that has been under debate is the use of truth serums. This is the
general name for a range of drugs used to acquire information from subjects who ordinarily would
not divulge the sought-after information. These have straddled the fine line between torture and
other forms of ill treatment. Truth serums have been known to be forcibly administered for the
extraction of information. These could include drugs such as sodium pentothal, sodium amytal, and
scopolamine. It is its use which prohibits it under international law. NGOs such as Human Rights

252
HRC, Interim Report of the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment, 5 August 2016, A/71/298.
253
UNGA, ‘Report of the Special Rapporteur on the Promotion and Protection of Human Rights and
Fundamental Freedoms while Countering Terrorism’, 3 August 2009, A/64/211, 18
http://www2.ohchr.org/english/issues/terrorism/rapporteur/docs/A-64-211.pdf
254
UN Official of the High Commissioner of Human Rights, ‘Torture is Torture, and Waterboarding is not an
exception – UN expert Urges the US not to reinstate it’
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?LangID=E&NewsID=21129
255
Brigitte L Nacos, Terrorism and Counterterrorism (Routledge 2016) 308.
189

Watch have deemed it as a violation of inhuman or degrading treatment. It could also violation
instruments such as the IACPPT.

5.2. Extraordinary Rendition [develop more]

Another controversial and high-profile practice has been extraordinary rendition. This practice
involves the ‘extra-legal transfer of an individual from one state to another'.256 It describes a process
in which a State deliberately seeks to circumvent its legal obligations, such as affording rights of due
process to a terrorist suspect, through colluding with other States. Normally the practice involves
the commission of multiple human rights violations, including kidnapping, enforced disappearance,
denial of due process and the right to a fair trial, acts of torture and/or other forms of ill-treatment,
secret detention with no right of habeas corpus, and sometimes even violation of the right to life.

Often, extraordinary rendition involves the unlawful apprehension of a person regarded as "high
value" by one State which then transfers the detainee to another State - where generally rule of law
standards and safeguards are weak - which is willing to use unlawful interrogation techniques
constituting torture for intelligence gathering purposes. Effectively, extraordinary rendition involves
the outsourcing of torture by one State to another State in an attempt to avoid its legal obligations
and create an impunity gap. In doing so, the sending State may seek to argue that it does not engage
in unlawful acts of torture since it does not itself commit such acts on its territory, though often its
agents, as State officials, will be part of the interrogation team on the territory of the receiving State.
Another common related argument is that international human rights treaties have no extra-
territorial reach and, therefore, that the sending State cannot be legally responsible or in breach of
its own obligations for violations which occur on the territory of another State, despite the sending
State's own complicity.

In response to such arguments, e.g. the Special Rapporteur on Torture has noted, such as in relation
to the high profile case of El-Masri, that a State may acquiesce to an extraterritorial violation of the
prohibition against torture even though the actual suffering caused is outside to the sending State's
actual control. Furthermore, the Special Rapporteur has argued that any form of participation in the
ERP which facilitated the commission of torture - such as unchecked access to military bases, the
provision of intelligence and financial contributions -can all invoke State responsibility under Article
16 UNCAT.257

The exact scale of the practice is unknown. Although, e.g., US officials have formally acknowledged
that its Central Intelligence Agency held approximately 100 persons during extraordinary rendition
program (ERP),258 other reports and experts suggest that the numbers persons involved may in fact


256
Margaret Satterthwaite, 'Extraordinary Rendition on Disappearances in the War on Terror', 10 Gonzaga
Journal of International Law (2006) 70, 75
257
UNGA, ‘Interim Report of the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment’, 2015, A/70/303.
258
GMV Hayden, ‘Remarks of Central Intelligence Agency Director Gen. Michael V. Hayden at the Council on
Foreign Relations (as prepared for delivery)’ (7 September 2007) <http://www.fas.org/irp/cia/product/
dcia090707.html> accessed 12 March 2011; Principal Deputy Assistant Attorney General Stephen G. Bradbury
stated that by 2005 the CIA had ‘taken custody of 94 detainees […], and had employed enhanced techniques to
varying degrees in the interrogations of 28 of those detainees.’ See SG Bradbury, ‘Memorandum for John A.
Rizzo Senior Deputy General Counsel, Central Intelligence Agency Re: Application of United States
Obligations Under Article 16 of the Convention Against Torture to Certain techniques that May Be Used in the
190

run into several thousands. Many European and non-European States participated in the ERP in
different ways, ranging for permitting their airspace to be used for the transfer of detainees (or
refuelling on their territory),259 the creation of unaccountable secret detention facilities to facility to
perpetration of abuses, to participating in the interrogation of detainees. There have a been a
number of high-level investigations and reports into the ERP, such as the Marty Reports of 2006 and
2007 commissioned by the European Parliament of the Council of Europe to investigate allegations
regarding the transportation and illegal detention of terrorist suspects among its Membership.260 In
the second Marty Report, it was estimated that over 1245 flights had occurred within European
airspace involved in the ERP.261 Notably, the European Parliament severely criticised a number of its
Member States for their evident lack of cooperation and concealment of relevant information.262 An
overarching theme of the report was the need to create mechanisms for greater transparency,
accountability and to address existing impunity gaps in order to strengthen the rule of law in the
context of counter-terrorism, through both judicial and non-judicial accountability mechanisms. (see
further Module 14).

Once again, a recurring theme has been the perception that pressing security imperatives (often,
very real and significant ones) should be balanced against the rule of law. I.e. the more significant
the perceived threat, the greater the justification to deviate from the rule of law and to employ
whatever means are necessary to ensure the safety of States. Such sentiments are reflected in the
observations of the Special Rapporteur on Torture

In many of my fact-finding missions, Government officials indicated that their country was
currently confronted with an unrivalled and critical security challenge ranging from ‘global
war on terror’, internal armed conflict and secessionist movements to high rates of violent
crime and drug offences. Against this background, officials of all ranks at least implicitly put
the absoluteness and non-derogability of the torture prohibition into question and on some
occasions portrayed it as an academic or theoretical, if not naïve ideal which lacks
applicability and a sense of realism.263

In such ways, the original lawful practice of rendition to justice has become synonymous with
illegality, the commission of serious human rights violations and, normally, impunity. As is discussed
in Module 14, it can be extremely difficult for victims of extraordinary rendition to exercise their
human right to an effective remedy in practice.

Interrogation of High Value al-Qaeda Detainees’ (30 May 2005) 5 <http://www.washingtonpost.com/wp-
srv/nation/pdf/OLCmemo_May30_Part1.pdf> accessed 12 March 2011.
259
An unspecified number of military flights for the same purpose should be added to the above number. See
European Parliament, FINAL REPORT ON THE ALLEGED USE OF EUROPEAN COUNTRIES BY THE CIA FOR THE TRANSPORTATION
AND ILLEGAL DETENTION OF PRISONERS, A6-9999/2007, PE 382.246v02-00, para. 42.
260
PACE, ‘Secret Detentions and Illegal Transfers of detainees involving Council of Europe Member States:
second report’ (2007) Doc 11302 rev (hereinafter ‘Second Marty Report’).
261
An unspecified number of military flights for the same purpose should be added to the above number. See
European Parliament, FINAL REPORT ON THE ALLEGED USE OF EUROPEAN COUNTRIES BY THE CIA FOR THE TRANSPORTATION
AND ILLEGAL DETENTION OF PRISONERS, A6-9999/2007, PE 382.246v02-00, para. 42.
262
Following concerns that European states and their airspace were used by the CIA for the transportation
and illegal detention of terrorist suspects, the European Parliament set up a Temporary Committee on the
th
alleged use of European countries by the CIA for illegal activities (TDIP) on 18 January 2006 to look closer into
CIA’s aforementioned activities as well as any EU governments’ involvement. Texts Adopted,
P6_TA(2006)0012.
263
UNHCR, Report of the Special Rapporteur, Manfred Nowak, A/HRC/13/39/Add.5, para 44.
191

Case studies: Extraordinary rendition

Case of Binyam Mohamed*

Following his release from Guantanamo Bay in 2009, Binyam Mohamed alleged that he was
tortured with the collaboration of the UK Security Services. Mohamed was first arrested in 2002
in Pakistan. From that date until 2004, he was detained incommunicado, as no information was
found as to the location of his detention. Mohammed accused the US of extraordinary rendition
to Afghanistan, then to Morocco in July 2004 and Guantanamo in September 2004. He alleged
that he was victim of torture and inhuman and degrading treatment in all of these locations,
which consisted of sleep deprivation, food, loud noises in a black cell and even genital
mutilation. This was done for information relating to terrorist plots against the US.

Mohamed also alleged that the British authorities colluded in the rendition and torturous
interrogation, where on occasion, UK official in fact questioned him in Pakistan and
Guantanamo Bay. He, along with other detainees, brought a civil claim against the UK
Government, but simultaneously a US court ruled that Mohamed had been subjected to torture
and ill-treatment. In November 2010, the Court awarded Mohamed and other Guantanamo Bay
detainees compensation by the British Government for their torture and ill treatment.

Case of Alzery v Sweden**

The case concerned an individual who was deported to Egypt from Sweden for suspected links
to terrorists. He alleged that he was handed over to foreign agents where he later discovered
they were US and Egyptian security agents. He was forced into a small locker room, exposed to
an intrusive security search, where the hooded agents slit his clothes with a pair of scissors. He
was handcuffed, drugged via the rectum with tranquiliser and placed in diapers, blindfolded and
hooded. He was then escorted to a plane upon which he remained on the ground in a painful
position.

The individual claimed the transfer to Egypt was facilitated by the US and has been deemed an
instance of extraordinary rendition. Whilst the ill-treatment was actually conducted by US
agents, the Human Rights Committee also found Sweden as complicit in the treatment where a
violation of Article 1 UNCAT exists at a minimum when ‘such acts are performed with the
consent or acquiescence of the State party’.

* The Queen on the Application of Binyam Mohamed and Secretary of State for Foreign and
Commonwealth Affairs [2008] EWHC 2048.

** Alzery v Sweden, Communication No. HRC, Alzery v Sweden, Communication No. 1416/05.

5.3. Non-Refoulement [further review needed]

192

Another significant issue that has arisen in the context of counter-terrorism has been that of non-
refoulement, discussed in detail more generally in Module 3 as well as in relation to detention in
Module 10. For completeness, it is briefly mentioned here since (1) the principle in underpinned by
the prohibition against torture, and (2) some counter-terrorism practices, such as extraordinary
rendition, have violated the principle.

The Human Rights Committee has interpreted Article 7 ICCPR as prohibiting refoulement, since this
could result in torture or inhuman, degrading treatment or punishment. The Article 7 prohibition on
refoulement is absolute due to the absolute and non-derogable nature of the prohibition against
torture. It prohibits the return of any individual to a location where personal rights under the scope
of the ICCPR may be violated. Notably, Article 7 ICCPR has a wider scope than the comparable
prohibition under UNCAT, since Article 3 UNCAT only prohibits refoulement when there is a risk of
torture on return. In contrast, Article 7 extends the prohibition to inhuman or degrading treatment
as well. (see further discussion on non-refoulement in Module 3). As such, at least theoretically, the
principle of non-refoulement should add a further layer of legal protection for those persons illegally
transferred to third party States for the explicit purpose of being subjected to torture.

Although there are a number of protections against refoulement, the practice has been evident in
removing suspected terrorists from particular States. For example, in the case of Chahal v UK before
the European Court of Human Rights, the individual was threatened with removal from the UK due
to his suspected involvement in terrorist activity. The Court acknowledged the difficulties that States
faced in protecting its citizens from terrorism, but reaffirmed that the ECHR prohibited torture and
inhuman or degrading treatment or punishment absolutely, despite the potential security threat
posed by the applicant. It was unequivocal in reiterating that national security interests cannot
supersede the rights of the individual where there are significant reasons to believe that he would
be subject to torture or ill-treatment upon expulsion.264

Despite the obligations on a State accompanying the principle of non-refoulement, the Special
Rapporteur on Torture noted a large number of cases where the principle of non-refoulement had
not been respected. In particular, he observed that a number of governments have returned alleged
terrorist suspects to countries where there is a significant risk of those persons being subjected to
unlawful acts of torture or ill-treatment, in the name of countering terrorism. The Special
Rapporteur reiterated that diplomatic assurances cannot be regarded as providing adequate
safeguards against torture or ill-treatment, considering them to be ineffective.265

It has been further argued that Article 2(1) UNCAT includes a general obligation on States to
undertake all measures possible to prevent the commission of any act of torture occurring within
any territory under their jurisdiction.266 However, it has been argued that Article 3 UNCAT ‘is not
meant to prevent acts of torture in the territory of a State party, but to prevent an individual from
being subjected to torture after being expelled or returned by a State party to another State'.267 On
this basis, Article 2(1) may not underpin the Article 3 UNCAT obligations which, instead, are
premised upon the principle of non-refoulement. A different approach regarding actual control and
extraterritoriality in relation to non-refoulement was adopted in the case of Marine I. In its
Conclusions and Recommendations on the periodic report of the UK, the Committee against Torture

264
ECrtHR, Chahal v UK (1996) 22414/93.
265
UNGA, ‘Torture and other Cruel, Inhuman or Degrading Treatment or Punishment’, 30 August 2005,
A/60/316, 9ff, https://documents-dds-
ny.un.org/doc/UNDOC/GEN/N05/476/51/PDF/N0547651.pdf?OpenElement
266
Wouters, International Legal Standards for the Protection from Refoulement, 438.
267
Ibid.
193

responded to the UK’s claim that UNCAT had limited scope to UK actions abroad and was not
applicable in Iraq and Afghanistan. The Committee affirmed that UNCAT applied to all territories
where a State exercises effective control and that Article 3 UNCAT applied when a State moved a
detained person who was first within the custody of a State to the custody of another State. This
obligation extends to circumstances where transfer is made from one authority to another authority,
but within the same territory. This means that an individual will be protected under Article 3 and the
principle of non-refoulement even if an international boundary has not been crossed.268

Case studies: Non-refoulement

Marine I Case:*

The case involved a complaint by a Spanish citizen acting on behalf of 23 private persons of
African and Asian origin whose ship had capsized at sea. 346 migrants were on board at the
time. The ship was rescued by Spanish military rescue and escorted to Mauritania where the
migrants disembarked. They were screened and some were taken to Guinea. Some applied for
asylum or voluntary repatriation. The complainants stated that they had made asylum
applications due to fear of persecution in India because of the Kashmir conflict. They rejected
voluntary repatriation and were kept detained under Spanish control in Mauritania. The
complainants began a hunger strike in protest against poor detention conditions, but eventually
accepted the option of being transferred elsewhere.

The complaint was against Spain for a violation of UNCAT, including Article 3. They argued that if
they returned to India, they would be subject to torture. The Committee against Torture felt the
complainants lacked locus standi, but it did decide that Article 2(1) did have an effect on the
principle of non-refoulement as in Article 3 of UNCAT. The Committee applied ‘actual control’ to
UNCAT to include individuals in detention. [END]

Elmi v Australia:**

In this case, the individual alleged that his deportation to Somalia would violate Article 3 of
UNCAT, as there were substantial risks of torture by Somalian militia groups. The State argued
that since those groups were non-state actors, Article 3 did not apply. It was argued by the
claimant that the groups in fact fulfilled the role of an authority comparable to a Government
authority, as they had implemented their own laws and enforcement mechanisms. The
Committee against Torture stated

The Committee does not share the State party’s view that the Convention is not applicable
in the present case since, according to the State party, the acts of torture the author fears
he would be subjected to in Somalia would not fall within the definition of torture set out
in article 1 (i.e. pain or suffering inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity, in this
instance for discriminatory purposes). The Committee notes that for a number of years


268
Committee against Torture, Conclusions and recommendations, UK of Great Britain and Northern Ireland,
2004, CAT/C/CR/33/3, para 5(e).
194

Somalia has been without a central government, that the international community
negotiates with the warring factions and that some of the factions operating in Mogadishu
have set up quasi-governmental institutions and are negotiating the establishment of a
common administration. It follows then that, de facto, those factions exercise certain
prerogatives that are comparable to those normally exercised by legitimate governments.
Accordingly, the members of those factions can fall, for the purposes of the application of
the Convention, within the phrase “public officials or other persons acting in an official
capacity” contained in article 1.


* ref
** Elmi v Australia CAT/C/22/D/120/1998

Further reading
• Obechi Joy Anwukah, 'The Effectiveness of International Law: Torture and Counterterrorism',
21 Annual Survey of International Law and Comparative Law 1, 28 (2016)
• Committee against Torture, Conclusions and recommendations, UK of Great Britain and
Northern Ireland, 2004, CAT/C/CR/33/3.
• Patricio Galella; Carlos Esposito, 'Extraordinary Renditions in the Fight against Terrorism -
Forced Disappearances' (2012) 16 SUR - Int'l J. on Hum Rts. 7, 32.
• David Feldman, 'Deporting Suspected Terrorists to Face Torture' (2008) 67 Cambridge Law
Journal 225.
• Brandie Gasper, 'Examining the Use of Evidence Obtained under Torture: The Case of the
British Detainees May Test the Resolve of the European Convention in the Era of Terrorism',
21 American University International Law Review. 277, 326 (2005)
• Stephen Gieger, 'Trabelsi v. Belgium: Extradition of Terrorist Suspects and Aversion to Whole-
Life Prison Sentences', 23 Tulane Journal of Int'l & Comparative Law 573, 588 (2015)
• Helene Lambert, ‘Protection against Refoulement from Europe: Human Rights Law comes to
the Rescue’ (1999) 48(3) International & Comparative Law Quarterly 515-544.
• HRC, Interim Report of the Special Rapporteur on Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment, 5 August 2016, A/71/298.
• Human Rights Watch, ‘The Legal Prohibition Against Torture’ (2004)
https://www.hrw.org/news/2003/03/11/legal-prohibition-against-torture#serums
• Andrea Liese, 'Exceptional Necessity - How Liberal Democracies Contest the Prohibition of
Torture and Ill-Treatment When Countering Terrorism', 5 Journal of International Law and
International Relations 17, 48 (2009).
• Orla Veale Martin, 'An Evaluation of the Use of Memorandums of Understanding in the
Removal of Terror Suspects and the Prohibition against Non-Refoulment', 7 Hibernian L.J. 39,
56 (2007)
• Council of Europe, Dick Marty, ‘Secret Detention and Illegal Transfers of Detainees involving
Council of Europe Member States: Second Report’ CoE Doc 11302, 2007, 3.
• Francesco Messineo, ‘Non-refoulement Obligations in Public International Law: Towards a
New Protection Status’ (2013) in Satvinder S. Juss (ed.) The Ashgate Research Companion to
Migration Law, Theory and Policy (Ashgate 2013) 140
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1802800
• Eric A. Posner, Adrian Vermeule, ‘Should Coercive Interrogation be Legal?’ (2005) The University of
195

Chicago Public Law and Legal Theory Working Paper
http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1272&context=public_law_and_legal
_theory
• Margaret Satterthwaite, 'Extraordinary Rendition on Disappearances in the War on Terror', 10
Gonzaga Journal of International Law 70, 75 (2006-2007).
• Berenike Schriewer, 'Why Not Torture Terrorists: Moral, Practical and Legal Aspects of the
Ticking Bomb Justification for Torture / Torture, Terror and Trade-Offs - Philosophy for the
White House', 53 German Y.B. Int'l L. 1024, 1027 (2010)
• Satterthwaite, Margaret L., Rendered Meaningless: Extraordinary Rendition and the Rule of
Law. George Washington Law Review, Vol. 75, 2007; NYU Law School, Public Law Research
Paper No. 06-36. Available at SSRN: https://ssrn.com/abstract=945711
• OHCHR, ‘Thirty Years of the Convention against Torture: Statement by Ambassador Carsten
Staur’
http://www.ohchr.org/_layouts/15/WopiFrame.aspx?sourcedoc=/Documents/HRBodies/CAT/
30Anniversary/Mr.CarstenStaur.docx&action=default&DefaultItemOpen=1
• OHCHR, ‘Interpretation of Torture in the Light of the Practice and Jurisprudence of
International Bodies’
http://www.ohchr.org/_layouts/15/WopiFrame.aspx?sourcedoc=/Documents/HRBodies/CAT/
30Anniversary/Mr.CarstenStaur.docx&action=default&DefaultItemOpen=1
• David Weissbrodt, Amy Bergquist, ‘Extraordinary Rendition and the Torture Convention’
(2006) 46 Virginia Journal of International Law 585
<http://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1287&context=faculty_articles>
• Kees Wouters, International Legal Standards for the Protection from Refoulement (Intersentia
2009) 525.
• Joint Committee on Human Rights, ‘Allegations of UK Complicity in Torture’, 2008, 09 HL 152,
HC 230.
• NB see Victims notes for further references

Activity: Interrogation techniques


Allocate students into small groups and provide them each with a list of interrogation
techniques, such as the "prohibited five" noted in Ireland v UK and waterboarding. Ask each
group to assess whether the different techniques amount to "torture" as per the definitions of
the various legal instruments. You may wish for them to undertake some prior research on each
of the techniques. Ask students to talk about difference of opinion within the group, as well as
between other groups. This will also highlight the complexity of the issue torture and its
distinction with other forms of ill treatment.

Videos: Coercive interrogation techniques and extraordinary rendition

Possible videos

196

• Peter King: Bin Laden's Death Came From Waterboarding, YeshivaworldEditor, 2 May 2011,
https://www.youtube.com/watch?v=XDYkz4727HY
• Rumsfeld: Waterboarding aided in finding OBL, CBS, 8 May 2011,
https://www.youtube.com/watch?v=jKf7CQ2qkVA
• Waterboarding | cia torture report, News for the People, 10 December 2014,
https://www.youtube.com/watch?v=FKaBtXR_gRU
• Ex-CIA interrogator on ‘enhanced interrogation’ - BBC News, 30 March 2017,
https://www.youtube.com/watch?v=ZdQTm6eQTU8
• 'Rendition' trailer, 2 August 2007, available at https://www.youtube.com/watch?v=IaK-
HKIdv1E
• Maher Arar speaks about his rendition and torture, 3 October 2007, Center for Constitutional
Rights, https://www.youtube.com/watch?v=RFdFvihF_NM

197

VICTIMS OF TERRORISM AND COUNTER-TERRORISM

1. Overview

In the context of terrorism and counter-terrorism there can be two categories of


victims: those who are the victims of a terrorist acts resulting in the loss of life,
personal injury, damage to property, being taken hostage, and so forth; and those
persons suspected of terrorist activities who become victims of human rights
violations perpetrated against them, typically in the course of the investigation or
trial of allegations against them, such as being tortured which may result in death,
being held in secret detention facilities or not afforded due process such as in the
form of a fair trial. [See further Module 8 right to life; Module 9 prohibition against
torture; Module 10 arrest and detention; and Module 11 fair trial and punishment].

With respect to victims of terrorist acts, since the 1970s there has been a concerted effort by the
international community to encourage both governmental and non-governmental actors to increase
the visibility and key role played by victims in three key areas: support and assistance to victims of
terrorism (e.g. financial, psychological); the role of victims before, during and after legal
proceedings; and the role of victims in countering the appeal of terrorism by providing an important
counter-narrative. This module considers the first two limbs; the third is discussed in Module 2 on
countering violent extremism. Furthermore, in Module 1 the concept of terrorist victimization was
discussed.

In relation to victims of counter-terrorism responses, there have been some troubling recent
practices by States which have not been consistent with upholding the rule of law or their
obligations under international law [see Module 3 overview]. In addition to the actual violations
experienced by some suspected terrorists, further significant challenges have existed with respect to
securing appropriate redress for violation suffered. Such concerns were reflected, once again, in the
most recent review by the General Assembly of the UN Global Counter-Terrorism Strategy in UN
General Assembly Resolution 70/291 (2016) (para 16). Serious concern was expressed regarding the
frequency and seriousness of the violations of human rights and fundamental freedoms committed
in the context of countering terrorism. and stressed that, when counter-terrorism efforts neglected
the rule of law and violated international law, they not only betrayed the values they sought to
uphold, but they might also further fuel violent extremism that could be conducive to terrorism. In
parallel, such challenges have highlighted wider issues of impunity and the challenges of ensuring
adequate levels of judicial and non-judicial accountability and oversight, themes which are also
discussed briefly in this module.

This module, begins by examining the concept of a victim, both in terms of its legal means as well as
through the lens of victimology. It then examines the legal framework governing the provision of
remedies for victims, especially from an international and regional legal perspective. The module
then considers some key contemporary issues for victims of terrorist attacks, including different
legal and non-legal mechanisms for addressing their primary needs with some of the accompanying
obstacles. It then analyses some key current issues regarding victims of counter-terrorism, especially
the commonly experienced challenges associated with ensuring adequate levels of accountability
and reparations for victims of governmental policies and practices.

198

2. Definition of "victim"

In paragraph 1 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power, “victims” is defined as follows: “‘Victims’ means persons who, individually or collectively,
have suffered harm, including physical or mental injury, emotional suffering, economic loss or
substantial impairment of their fundamental rights, through acts or omissions that are in violation of
criminal laws operative within Member States, including those proscribing criminal abuse of power.”

That definition essentially captures all situations where people are victimized as a result of the
crimes committed by terrorist organizations. When the victimization is the result of violations of
human rights law or international humanitarian law or refugee law, the definition provided in
paragraph 8 of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and International Humanitarian Law is
also relevant:

[V]ictims are persons who individually or collectively suffered harm, including physical or
mental injury, emotional suffering, economic loss or substantial impairment of their
fundamental rights, through acts or omissions that constitute gross violations of international
human rights law, or serious violations of international humanitarian law. Where appropriate,
and in accordance with domestic law, the term “victim” also includes the immediate family or
dependants of the direct victim and persons who have suffered harm in intervening to assist
victims in distress or to prevent victimization.269

Significantly, as was elaborated by the Committee against Torture:

.....A person should be considered a victim regardless of whether the perpetrator of


the violation is identified, apprehended, prosecuted or convicted, and regardless of
any familial or other relationship between the perpetrator and the victim. ....... The
term “survivors” may, in some cases, be preferred by persons who have suffered
harm.270

Case studies - "Victims" of terrorism: Abduction and sexual slavery


Until recently, typically an image of a victim of terrorism might be someone who has come
under a physical attack, e.g. through the use of explosives, which has resulted in their physical
and/or psychological injury. Due to the recent practices of terrorist organizations, however,
including of ISIL and Boko Haram, a broader concept of "victim" of terrorism is necessary.

ISIS against the Yazidis: In 2016, the International Commission of Inquiry on the Syrian Arab
Republic* reported on the commission of the crime of genocide and multiple crimes against
humanity and war crimes by ISIS aimed at eliminating the Yazidis, illustrated by their attack in
the Sinjar region in northwest Iraq in August 2014. This has included 'killings; sexual slavery,


269
ref
270
CAT General Comment No. 3 (2012), CAT/C/GC/3 (2012) para 3.
199

enslavement, torture and inhuman and degrading treatment and forcible transfer causing
serious bodily and mental harm; the infliction of conditions of life that bring about a slow death;
the imposition of measures to prevent Yazidi children from being born, including forced
conversion of adults, the separation of Yazidi men and women, and mental trauma; and the
transfer of Yazidi children from their own families and placing them with ISIS fighters, thereby
cutting them off from beliefs and practices of their own religious community, and erasing their
identity as Yazidis.'

A particular practice of note here has been the abduction of women and girls (some as young as
9 years of age), and their subjection to sexual slavery. Many were raped on a daily basis by their
fighter-owners and frequently severely beaten. In 2016, it was estimated that 3,200 Yazidi
women and children were still being held by ISIS. Those women and children who escaped or
were bought back by their families report suffering from serious physical and mental trauma;
many experience suicidal thoughts.

We were registered. ISIS took our names, ages, where we came from and whether
we were married or not. After that, ISIS fighters would come to select girls to go
with them. The youngest girl I saw them take was about 9 years old. One girl told
me that “if they try to take you, it is better that you kill yourself”.
Girl, aged 12 at capture, held for 7 months, sold four time [p10]
Boko Haram in Nigeria: The practice of abduction and sexual slavery is not confined to ISIS, but
has been perpetrated by Boko Haram also in Nigeria, Cameroon and Niger. Since 2009, the
group has subjected many women and girls to widespread and severe forms of abuse, including
sexual slavery, which has resulted in many becoming pregnant.

In addition, these women and children have been subjected to other serious human rights
violations, such as been beaten repeatedly if unable or unwilling to adopt the group's religious
beliefs and cite the Koran; or being deprived of basic essential such as food and water, or even
stoned to death.

One high profile case was the abduction of 276 school girls from Chibok, Borno state, on 14
April 2014. Some, but not all girls, managed to escape or were rescued. All of these girls
reported cruel, inhuman or degrading treatment, sexual violence and other forms of abuses.

The abduction resulted in a global media campaign calling for the girls' release and return,
'Bring back our girls'. Watch https://www.youtube.com/watch?v=rmZMa8gBvZc

*UN Human Rights Council, ' "They came to destroy": ISIS Crime Against the Yazidis'
A/HRC/32/CRP.2 (15 June 2016), summary; Section D paras 42-80. See too, more
generally, the Independent International Commission of Inquiry on the Syrian Arab
Republic, established on 22 August 2011 by the Human Rights Council through
resolution S-17/1 adopted at its 17th special session, available at
http://www.ohchr.org/
EN/HRBodies/HRC/IICISyria/Pages/IndependentInternationalCommission.aspx.
200

** UN Human Rights Council, 'Report of the United Nations High Commissioner for
Human Rights on violations and abuses committed by Boko Haram and the impact on
human rights in the affect countries', A/HRC/30/67 (29 September 2015) Section VI
Human rights abuses by Boko Haram: B, C and especially D (sexual and gender-based
violence).

Many would further consider those migrants and refugees fleeing terrorist violence to be victims of
terrorism. Some may have experienced terrorist acts first hand, whereas others may be fleeing the
broader impact of terrorist activities in their region, such as heightened insecurity and reduced
opportunities or a lack of prospects for themselves and their families. Notably, the UN Special
Rapporteur on the promotion and protection of human rights and fundamental freedoms while
countering terrorism has advocated that for any counter-terrorism policy to be effective, it must
include a comprehensive migration policy that respects human rights, justice, accountability, human
dignity, equality and non-discrimination and that grants victims of terrorism the protection to which
they are entitled.271

Further reading
• Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of
Gross Violations of International Human Rights Law and International Humanitarian Law
• The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power
(General Assembly resolution 40/34, annex, paras. 1-2.
• UN Committee against Torture, General Comment No. 3 (2012), CAT/C/GC/3 (2012) para
3.
• UN Human Rights Council, 'Annual report of the United Nations Commissioner for Human
Rights and reports of the Office of the High Commissioner and the Secretary-General:
Negative effects of terrorism on the enjoyment of all human rights and fundamental
freedoms', A/HRC/34/30 (30 December 2016).
• UN Human Rights Council, 'Report of the United Nations High Commissioner for Human
Rights on violations and abuses committed by Boko Haram and the impact on human
rights in the affect countries', A/HRC/30/67 (29 September 2015).
• A/HRC/28/18, 'Report of the Office of the United Nations High Commission for Human
Rights on the human rights situation in Iraq in the light of abuses committed by the so-
called Islamic State in Iraq and the Levant and associated groups', 13 March 2015.
• UN Human Rights Council, ' "They came to destroy": ISIS Crime Against the Yazidis'
A/HRC/32/CRP.2 (15 June 2016).
• UN General Assembly, 'Report of the Special Rapporteur on the promotion and protection
of human rights and fundamental freedoms while countering terrorism', A/71/384 (13
September 2016), which focuses primarily on migrants and refugees.
• Khalid Koser and Amy E. Cunningham, “Migration, violent extremism and terrorism: myths
and realities”, in Global Terrorism Index 2015 (Institute for Economics and Peace, 2015).
• UNODC, 'Lake Chad Basin: integrating gender dimensions to fight terrorism',
https://www.unodc.org/westandcentralafrica/en/yaounde-gender-terrorism.html -
UNODC and the Office of the High Commission for Human Rights are engaged in joint
capacity-building initiatives including the development of guidance materials and the

271
UN Human Rights Council, 'Report of the Special Rapporteur on the promotion and protection of human
rights and fundamental freedoms while countering terrorism', A/71/384 (13 September 2016), paras. 54-55.
201

delivery of training on mainstreaming a gender perspective and women’s rights in the


investigation and prosecution of offences by terrorist groups, as well as in the support
3. provided to victims.
• Bruce Hoffman, Anna-Britt Kasupski, The Victims of Terrorism: An Assessment of Their
Victi Influence and Growing Role in Policy, Legislation, and the Private Sector, (RAND Center for
molo Terrorism Risk Management Policy -CTRMP), (2007)
gy • UNOHCHR 'Realizing the rights of victims of terrorism', August 2011, available
http://www.ohchr.org/EN/NewsEvents/Pages/VictimsOfTerrorism.aspx.
Before considering the applicable legal frameworks and some key recurring issues for both victims of
terrorist attacks and counter-terrorism responses, it is important to identify some of the effects that
the resultant violations and trauma may have on the victims themselves. Sometimes, in the course
of terrorism and counter-terrorism discussions, such factors are not always as prominent as they
should be, despite the fact that, ultimately, a primary objective of counter-terrorism efforts within
the rule of law is to prevent both forms of victim.

From a victimology perspective, there are three circles of "personal victimization" which are
determined in accordance with their proximity to the direct victim: primary or first order
victimization, experienced by those who suffer harm directly, whether it is injury, loss or death;
secondary or second order victimization, experienced by family members, relatives or friends of
primary victims; and tertiary or third order victimization, experienced by those who observe the
victimization, are exposed to it through TV or radio coverage of the victimization, or help and attend
to victims”.272

More generally, the effects of crime on victims can be multiple. Unlike the effects of accidental
injury or disease, research on the effects of crime has stressed mental, psychological and social
effects, in contrast to physical or financial effects. This is attributable to the fact that crime is
“qualitatively different from being the victim of an accident or disease, because it includes someone
deliberately or recklessly harming you”.273

With respect to victims of terrorism specifically, the survivors of terrorist acts such as hostage taking,
hijacking or kidnapping often experience a range of short-term psychological responses, including
fear, anxiety, phobias, grief, shock, apathy, guild and self-blame, anger, hostility, rage and
resentment.274 For some individuals this may turn into long-term depressive effects which result in
sleeplessness, anxiety and a constant reliving of the event. Some victims may also experience post-
traumatic stress disorder (PTSD) which, in addition to similar symptoms as for depression may also
include more extreme systems such as frequent flash-backs to, and even reliving of, the event(s)
which cause the trauma as well, which may persist for months or years.275

Research conducted on the effect of terrorist attacks on victims has revealed that acts of terrorist
violence often produce high proportions of significantly affected victims, i.e. that they tend to be at
the higher end point on the scale of effects. For example, “[a] longitudinal psychiatric evaluation of

272
Edna Erez, ‘Protracted War, Terrorism and Mass Victimization: Exploring Victimological/Criminological
Concepts and Theories to Address Victimization in Israel’ in in U. Ewald and K. Turkovic (eds.) Large-Scale
Victimisation as a Potential Source of Terrorist Activities (IOS Press, 2006) p.20 (italics added)
273
Shapland, Joanna and Hall, Matthew (2007) What do we know about the effects of crime on
victims? International Review of Victimology, 14 (2). p.178
274
Alex Schmid, ‘Magnitudes and Focus of Terrorist Victimization’ in U. Ewald and K. Turkovic (eds.) Large-
Scale Victimisation as a Potential Source of Terrorist Activities (IOS Press, 2006), p.7
275
Shapland, Joanna and Hall, p.178
202

32 victims of a bomb attack in a Paris subway in December 1996 found 39% were rated as having
PTSD after six months, with 25% still having PTSD at 32 months”.276 Similarly, a study conducted by
Bleich et al. concerning responses of victims of terrorism in Israel, reported that of those who
responded to questions about emotional harm, over three quarters (77%) had at least some
traumatic stress symptoms and almost one-tenth (9.4%) had acute stress, with over half (59%)
reporting feelings of depression. It was found that the level of exposure and objective risk of an
attack were not related to stress.277 One explanation for this is that any victim of crime may suffer
consequential effects as a response, which includes 'changes in perceived risk of future
victimisation'.278 As Alex Schmid has observed, '[t]he degree of terror as well as the resilience of the
individual survivor play a role [in the degree of symptoms experienced as a result of terrorist
attacks].'279

In terms of some of the wider implications, often there are financial costs associated with individuals
wanting to take additional crime preventive measures. Moreover victims, whether directly or
indirectly affected, may suffer social effects, “involving changes to the victim’s lifestyle, normally to
avoid the situation or context in which the offence occurred. Social effects are very disruptive to the
victim’s lifestyle and may affect earning potential.”280 There can be wider socio-economic effects
associated with terrorism, such as businesses closing and, therefore, an increase in poverty and
unemployment. In turn, as result of increased levels of poverty and unemployment in one study this
was linked to an increase in property crime. An atmosphere of political violence as underpins
terrorism, may also lead to an increase of violence within the affected society.281 Research has also
documented the powerful anxiety-inducing effect of the media when reporting on traumatic events
such as terrorist attacks which, in turn, may have an adverse negative psychological effect on
members of the wider population. Severe circumstances such as an active threat of terrorism 'tend
to increase the prevalence, and possibly also change the impact, of victimisation'.282

Further reading
• Edna Erez, ‘Protracted War, Terrorism and Mass Victimization: Exploring
Victimological/Criminological Concepts and Theories to Address Victimization in Israel’ in in U.
Ewald and K. Turkovic (eds.) Large-Scale Victimisation as a Potential Source of Terrorist
Activities (IOS Press, 2006) pp?
• Joanna Shapland and Matthew Hall, 'What do we know about the effects of crime on victims?'
(2007) 14(2) International Review of Victimology p178
• Alex Schmid, ‘Magnitudes and Focus of Terrorist Victimization’ in U. Ewald and K. Turkovic
(eds.) Large-Scale Victimisation as a Potential Source of Terrorist Activities (IOS Press, 2006)



276
Shapland, Joanna and Hall, p.200, citing Jehel et al, 2003).
277
Edna Erez, p.93
278
Shapland, Joanna and Hall, p.178
279
Alex Schmid, p.7
280
Shapland, Joanna and Hall, p.178
281
Edna Erez, p.93
282
Shapland, Joanna and Hall, p.199
203

4. Legal framework


4.1. Overview

While in the context of criminal justice the rights of those charged with an offence have traditionally
been the focus of human rights law, it is now well established that the human rights of victims of
crime and witnesses also require attention which, historically, has not been the case. The important
role to be played by victims of terrorism, as well as their needs as victims, has received fresh
momentum through their inclusion within the UN Counter-Terrorism Strategy283 and subsequent
biennial resolutions adopted by the General Assembly. During the most recent review of the UN
Strategy in 2016, the General Assembly once again deeply deplored the suffering caused by
terrorism in all its forms and manifestations to the victims and to their families. It expressed its
profound solidarity with them and encouraged Member States to provide them with proper support
and assistance while taking into account, inter alia, when appropriate, considerations regarding
remembrance, dignity, respect justice and truth, in accordance with international law.284

The UN Global Counter-Terrorism Strategy directly addresses the issue of victims of terrorist acts. It
lists measures to address the conditions conducive to the spread of terrorism, including measures to
counter the “dehumanization of victims of terrorism in all its forms and manifestations”. The
Strategy encourages the creation of national systems of assistance, which would “promote the
needs of victims of terrorism and their families and facilitate the normalization of their lives”.285

Further energy has been injected by the international community into examining and addressing the
needs of victims more generally through other global initiatives and recognition. For example,
various working groups consider victim related issues, such as the Global Counterterrorism Forum,
Criminal Justice Sector/Rule of Law Working Group286 and the Working Group on Supporting and
Highlighting Victims of Terrorism of the Counter-Terrorism Implementation Task Force in
conjunction with the UN Counter-Terrorism Centre since 2016.287 There have also been a series of
global and regional conferences organized, such as the UN Conference on Human Rights of Victims
of Terrorism in 2016. A key focus of such working groups has been to encourage States to establish
national systems of assistance to promote the needs of victims of terrorism and their families,
stressing that victims of terrorism who have suffered violations of their rights are entitled to
material, legal and psychological assistance.

Regional efforts exist also. For example, the European Union had adopted several instruments
regarding victims of terrorism [see Section xx below] and has established a European Network of
Associations of Victims of Terrorism which aims 'to stimulate trans-national cooperation between


283
The United Nations Global Counter-Terrorism Strategy stresses “the need to promote and protect the rights
of victims of terrorism” and identifies the “dehumanization of victims of terrorism in all its forms and
manifestations” as one of the conditions conducive to the spread of terrorism (General Assembly resolution
60/288).
284
General Assembly resolution 70/291, para. 24. Similarly, see Human Rights Council, 'Protection of human
rights and fundamental freedoms while countering terrorism', A/HRC/35/L.27 (20 June 2017), paras 6-7.
285
reference
286
ref
287
ref
204

associations of victims of terrorism and enhance the representation of victims' interests at the EU-
level'.288 There have also been initiatives such as the Stockholm Programme aimed at strengthening
key tools such as cooperation, trust, implementation of legislation including in relation to victims.289

Tools

• United Nations Victims of Terrorism Support Portal, available at https://www.un.org/


victimsofterrorism/en.
• Listen to following radio interview about the UN Victims of Terrorism Support Portal as well
as the key role to be played by multilateral organizations: The Organization of American
States' work on promoting the rights of victims of terrorism,
http://webtv.un.org/search/part-1-un-conference-on-the-human-rights-of-victims-of-
terrorism/4752232410001?term=terrorism&languages=&sort=date - webcast.
• European Judicial Network, ‘Compensation to crime victims – General Information’, available
at http://ec.europa.eu/civiljustice/comp_crime_victim/ comp_crime_victim_ gen_en.htm.
• A number of special mandate holders deal with victim related issues, including:
o UN special rapporteur on the promotion and protection of human rights while countering
terrorism, available at http://www.ohchr.org/EN/Issues/Terrorism/
Pages/SRTerrorismIndex.aspx.
o UN special rapporteur on the promotion of truth, justice, reparation and guarantees of
non-recurrence, available at http://www.ohchr.org/EN/Issues/TruthJustice
Reparation/Pages/Index.aspx.
o UN special rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment, available at http://www.ohchr.org/EN/Issues/Torture/SRTorture/
Pages/SRTortureIndex.aspx.
o UN Working Group on enforced or involuntary disappearances, available at
http://www.ohchr.org/EN/Issues/Disappearances/Pages/DisappearancesIndex.aspx.

Further reading

• UN Human Rights Council, Report of the Special Rapporteur on the promotion and
protection of human rights and fundamental freedoms while countering terrorism, Ben
Emmerson: Framework principles for securing the human rights of victims of terrorism,
A/HRC/20/14 (4 June 2012)
• OSCE, Permanent Council Decision No. 618 (1 July/2004) on Solidarity with victims of
terrorism (PC.DEC/618), paras. 1-2; recognition of the need for appropriate support.
http://www.osce.org/pc/35030.
• OSCE, Ministerial Council Declaration No. 6/14 on the OSCE Role in Countering Kidnapping


288
See further https://ec.europa.eu/home-affairs/what-we-do/policies/crisis-and-terrorism/victims
289
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:115:0001:0038: EN:PDF
205

and Hostage-Taking Committed by Terrorist Groups in the Context of the Implementation of


That
UN Security Council Resolution 2133 (2014) (MC.DOC/6/14), preamble, paras. 1 and 6;
said,
there recognition of the need to further strengthen efforts to support victims and those affected
is by incidents of kidnapping and hostage-taking committed by terrorist groups.
still https://www.osce.org/cio/130551?download=true.
muc
• OSCE, Ministerial Council Declaration No. 1 on Strengthening OSCE Efforts to Prevent and
h
work Counter Terrorism (MC.DOC/1/16), preamble; expression of solidarity.
to be http://www.osce.org/cio/288176?download=true.
done • Madrid Declaration and Plan of Action on strengthening the legal regime against terrorism
in in West and Central Africa (Madrid 25-26 May 2006), para. 2; assistance and support to
this
victims of terrorism
regar
d, • Working Group on Supporting and Highlighting Victims of Terrorism of the Counter-
inclu Terrorism Implementation Task Force [link]
ding • Global Counterterrorism Forum, Criminal Justice Sector/Rule of Law Working Group[link]
in
• Global Counterterrorism Forum, Criminal Justice Sector/Rule of Law Working Group, 'The
term
s of Rabat Memorandum on Good Practices for Effective Counterterrorism Practice in the
the Criminal Justice Sector'. [link]
ongo
ing • The African Union’s work supporting victims of terrorism: Interview with
devel Ambassador Francisco Madeira, Special Representative of the African Union for
opm Counter-Terrorism Cooperation and Director of the African Centre for the Study
ent and Research on Terrorism,
and https://www.un.org/victimsofterrorism/en/node/1351
enfor
cem [add in other regional reading]
ent
of the related legal framework, much of which remains soft law and/or is poorly
implemented in practice.

Among the human rights of victims and witnesses at stake are the rights to life, security,
physical and mental integrity, respect for private and family life, and protection of dignity
and reputation.

4.2. International and regional instruments

International human rights law and international humanitarian law establish several duties in relation
to victims of human rights violations. Those duties include the following:

• The duty to provide victims with equal and effective access to justice irrespective of who may
be the ultimate bearer of responsibility for the violation;
• The duty to afford appropriate remedies to victims;
• The duty to provide for or facilitate reparation to victims.

206

A State’s duty to provide a domestic legal remedy to a victim of violations of human rights and
international humanitarian law committed on its territory is well established in international law. The
existence of that duty is grounded in several international and regional conventions.

Minimum standards for the fair treatment of victims according to basic


principles of justice*
• Victims should be treated with compassion and respect for their dignity
• Victims should be informed of their rights in seeking redress
• Victims should have their views and concerns presented in legal proceedings
• Victims should receive proper assistance throughout the legal process
• Victims should be protected against intimidation and retaliation
• Victims should have their privacy protected
• Victims should be offered the opportunity to participate in informal mechanisms for the
resolution of disputes, including mediation
• Victims should enjoy restitution and compensation, as appropriate
• Victims should receive the necessary material, medical, psychological and social
assistance.

* UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power,
A/RES/40/34 (29 November 1985), paras. 4-17.

See too:
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and Serious Violations of International
Humanitarian Law [ref, paras]

4.2.1. International human rights law

With respect to human rights norms, Article 2(3) ICCPR provides that victims of violations of human
rights provided for under the Covenant have the right to an effective remedy, including the right to
have such a remedy determined by competent judicial, administrative or legislative authorities and to
have that remedy enforced when granted. Not only must such remedies exist legally, but they must
also be enforced in practice by the competent authorities. In terms of what form such remedies
should take, the UN Human Rights Committee has stated that in addition to compensation, 'where
appropriate, reparation can involve restitution, rehabilitation and measures of satisfaction, such as
public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and
practices, as well as bringing to justice the perpetrators of human rights violations'.290


290
CCPR Gen Comm 31 para 16.
207

Procedural standards for victims*


A helpful analysis of the international legal framework governing victims is available in the
OSCE's 'Background Paper on Solidarity with Victims of Terrorism'.* It further describes (section
2) what the procedural standards governing victims should be:

• Compensation: Victims should receive fair, appropriate and timely compensation for
the damages contribute to compensation for victims where confiscation of property of
perpetrators of terrorist acts is not sufficient or Compensation should not depend on
the nationality of the victim.
• Investigation and prosecution of terrorist offences must respond to the criteria of
effectiveness and should not need to file a complaint in order to be involved in the
investigation and safeguard their legitimate interests should be able to ask for the
review of a judicial decision not to take action to prosecute a suspected perpetrator of
a terrorist act.
• States should bring suspected perpetrators of terrorist acts to justice in order to
obtain a judicial decision in a reasonable amount of consideration is due to victims in
criminal should be granted effective access to law and justice, including access to
courts to file civil actions and free access to counsel in appropriate cases.
• Furthermore, the report recommends that 'States should encourage training for
persons responsible for assistance to victims of terrorist acts.'

*OSCE, Background Paper on Solidarity with Victims of Terrorism, Oñati, 9-10 March 2005
especially Section 2 The international framework, http://www.osce.org/odihr/ 19356?
download=true.

An inherent aspect of Article 2(3) is that where violations of Covenant rights have occurred, any
failure to bring the perpetrators to justice could in and of itself constitute a separate breach of the
Covenant.291 This is especially the case where the violations may also be criminal in nature, whether
under domestic and/or international law, notably the prohibition against torture (Article 7 ICCPR),
summary and arbitrary killing (Article 6) and enforced disappearance (Articles 7 and 9 and,
frequently, 6). The Committee has been very concerned about the recurring theme of impunity.
Where any violations are committed on a mass scale as part of a widespread or systematic attack on
a civilian population, such violations of the Covenant may cross the threshold into constituting crimes
against humanity (see, e.g., Article 7 Rome Statute of the International Criminal Court).292

4.2.1.1. Other international treaties

In addition to the ICCPR, a number of other international treaties make provision for victims. One is
the Convention against Torture which, under Article 14(1), provides a right to "redress" and to an
enforceable right to fair and adequate compensation, including the means for as full rehabilitation as


291
CCPR Gen Comm 31 para 18.
292
CCPR Gen Comm 31 para 18.
208

possible”. Clearly, this is of relevance to victims of terror who have suffered such ill treatment, such
as women and girls who have been raped and otherwise abused and violated by terrorist groups
such as Boko Haram and ISIL. It is relevant too for victims of counter-terrorism, such as persons who
have undergone extraordinary rendition (see further Module 9). Similar provision is made by Article
2 International Convention for the Protection of All Persons from Enforced Disappearance (adopted
20 December 2006, entered into force 23 December 2010) (Enforced Disappearance Convention).

Provision is made also under Article 39 Convention on the Rights of the Child which provides that
States are obliged to “promote physical and psychological recovery and social reintegration of a child
[i.e. under the age of 18] victim of: any form of neglect, exploitation, or abuse; torture or any other
form of cruel, inhuman or degrading treatment or punishment; or armed conflicts”. Once again, this
is relevant to both terrorism and counter-terrorism contexts just described, whether as e.g. child
abductees or suspected child terrorists who are then mistreated by e.g. law enforcement officials.
Furthermore, provisions for the protection and remedies for any person discrimination on grounds
of race or gender are contained within Article 6 Convention on the Elimination of All Forms of Racial
Discrimination and Article 2 Convention on the Elimination of All Forms of Discrimination against
Women respectively.

In addition, the right to an effective remedy for victims of violations exists under international
humanitarian law in situations of armed conflict too. The key provisions include Article 3 Hague
Convention respecting the Laws and Customs of War on Land of 18 October 1907 (Convention IV),
which states that 'a belligerent party which violates the provisions of the said Regulations shall, if the
case demands, be liable to pay compensation. It shall be responsible for all acts committed by
persons forming part of its armed forces.' This provision is effectively duplicated within Article 91
Additional Protocol I. Provision is also made under Articles 68 and 75 of the Rome Statute 1998:
Article 68 concerns the protection of victims and witnesses and their participation in the
proceedings, and Article 75 governs reparation to victims. Under Article 75(1), the ICC has a degree
of discretion as to how it develops its approaches as well as shape its principles governing victims. It
states: ' The Court shall establish principles relating to reparations to, or in respect of, victims,
including restitution, compensation and rehabilitation. On this basis, in its decision the Court may....
determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will
state the principles on which it is acting.'

Furthermore, mention should be made of the International Law Commission's Articles on the
Responsibility of States. For example, Article 31 specifies that where States are responsible for the
commission of internationally wrongful acts - such as those which occurred in relation to the
extraordinary rendition programme - they are under an obligation to make full reparation for the
resultant injury, whether the damage is material or moral in nature. Of note too is that in the
context of litigation regarding renditions, the issue of State responsibility in the form of aiding and
assisting in the commission of human rights violations has been gaining increased currency.

4.2.1.2. Positive obligations and due diligence

The notion of positive obligations, requiring that the State adopt reasonable measures to prevent
violations and to investigate, prosecute, punish, and provide reparation when serious human rights
abuses arise, is well recognized by international courts and bodies as arising under all general human

209

rights treaties.293 The obligation arises whether the wrong is committed by private or foreign state
actors, including non-State actors such as terrorist groups.

For example, the test according to the ECtHR is whether ‘the authorities knew or ought to have
known at the time of the existence of a real and immediate risk … from the criminal acts of a third
party and that they failed to take measures within the scope of their powers which, judged
reasonably, might have been expected to avoid that risk.’294 Other international courts and
institutions have found similarly that the State obligation to prevent rights violations by third parties
is not absolute. Rather, a State is obliged to exercise "due diligence" in preventing violations,
protecting against them, and investigating,295 prosecuting, and providing redress in the event of
breach, such as in the famous case of Velasquez Rodriguez v Honduras296 in a context of recurring
enforced disappearances. The standard of what is considered to be "reasonable" in the
circumstances, in order to satisfy the requirements of due diligence, is context specific.

4.2.2. Regional human rights law

The right to a remedy exists also within regional human rights treaties.

Article 25 American Convention on Human Rights makes detailed provision on the right to judicial
protection. First, under Article 25(1), everyone has the right of access to a competent court or
tribunal 'for protection against acts that violate his fundamental rights recognized by the constitution
or laws of the state concerned or by this Convention, even though such violation may have been
committed by persons acting in the course of their official duties' (emphasis added). This breadth of
this provision is notable since, unlike most treaty texts, its scope is not limited to the provisions of
the American Convention, rather extends to national constitutions and other domestic laws also.
This point is illustrated by Article ECHR 'right to an effective remedy' which states that '[e]veryone
whose rights and freedoms as set forth in this Convention are violated shall have an effective
remedy before a national authority notwithstanding that the violation has been committed by
persons acting in an official capacity'. Article 25(2) then articulates three elements to this right: that
any such remedy be 'determined by the competent authority provided for by the legal system of the
state' (25(2)(a)); that States 'develop the possibilities of judicial remedy' within their own national


293
Osman v United Kingdom (App no 23452/94) (1998) 29 EHRR 245 para 116. See also A v United Kingdom
(App no 25599/94) ECtHR 23 September 1998 para 22; Z and Ors v United Kingdom (App no 29392/95) (2002)
34 EHRR 3 para 73.
294
Osman v United Kingdom (n 108) para 116; see also Kilic v Turkey (App no 22492/93) ECtHR 9 January 1995;
Kaya v Turkey (n 90).
295
See Isayeva and Ors v Russia (n 93) paras 208-13; and Menesheva v Russia (App no 59261/00) ECtHR 9
March 2006 para 64 - referring to 'exemplary diligence' re obligations to investigate.
296
Velasquez Rodriguez v Honduras (n 85) paras 172-5. See also UN Committee on the Elimination of All Forms
of Discrimination Against Women, ‘General Recommendation No. 19 (Eleventh session, 1992)
<http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom19> accessed 12
March 2011.

210

legal systems (25(2)(b)); and 'ensure that the competent authorities shall enforce such remedies
when granted' (25(2)(c)).

In contrast, there is no treaty provision for a right to remedy for human rights violations, including of
the Charter's provisions, within the text of the African Charter on Human and Peoples' Rights, other
than a very limited reference to "adequate compensation" in the context of the right to the lawful
recovery of property. Nevertheless, as the following case studies reveal, the African Commission has
interpreted the existence of a right to a remedy for victims of human rights violations.

Case studies: The right to an effective remedy within the African human rights
system
Zimbabwe Human Rights NGO Forum C. Zimbabwe Case:*

In February 2000 Zimbabwe experienced a violent political disturbance following a


constitutional referendum in which “the majority of Zimbabweans voted against the new
government drafted constitution. Between February and June 2000, in the 2 months before the
parliamentary elections scheduled for 24 and 25 June 2002, political intensified. Reports from
several NGOs, including the Zimbabwe Human Rights NGO Forum, have documented serious
and massive violations of human rights”, against members and supporters of opposition
parties. In October 2000, in “a bid to reconcile the population”, the State passed “Decree No. 1
of 2000 adopting executive clemency to absolve perpetrators of violence” if the latter related
to "any offence motivated by the object of supporting or opposing any political purpose",
between January and July 2000. Acting on behalf of the victims, the Zimbabwe Human Rights
Forum, a coordinating body and a coalition of twelve (12) human rights NGOs based in
Zimbabwe, referred the matter to the African Commission on Human and peoples’ rights.

The African Commission considered that by “enacting Decree No. 1 of 2000 which “foreclosed
access to any remedy that might be available to the victims to vindicate their rights”, (...) “and
by setting free perpetrators of “politically motivated crimes”, including alleged offences such as
abductions, forced imprisonment, arson, destruction of property, kidnappings and other
human rights violations, the State did not only encourage impunity but effectively foreclosed
any available avenue for the alleged abuses to be investigated….”

Considering that “the Order of Clemency constituted a violation of Articles 1 and 7 (1) of the
African Charter”, the Commission holds that “[t]here has been consistent international
jurisprudence suggesting that (…) amnesty cannot be accorded to perpetrators of violations
before the victims have obtained justice by means of an effective remedy” (...); (t)he granting
of amnesty to absolve perpetrators of human rights violations from accountability violates the
right of victims to an effective remedy”.

Titanji Duga Ernest (on behalf of Cheonumu Martin and others) C. Cameroun Case:**

211

On May 2004, Mr. Titanji Duga, a lawyer based in Yaounde, lodged a complaint against the
Republic of Cameroon with the Secretariat of the African Commission on Human and Peoples'
Rights in the name of eighteen persons who were arrested in March 1997, in the northeastern
province of the Republic of Cameroon. The complaint alleges that after a long period of mental
and physical torture “for the purposes of extortion of confessions” “of secessionist activities”,
these persons “were sentenced, [on October 1999], to imprisonment ranging from 8 years in
prison to life imprisonment. The persons thus sentenced immediately appealed the decision
but no action has been taken on their appeals”. Indeed, all contacts have remained, since 2003,
without effect. This caused the complaint to “fear that the detainees could be systematically
eliminated one after the other(…) [as one of them] died in custody, while another, (…) who was
seriously ill, is missing”. The Complainant alleges violation of Article 5 of the African charter and
“asks the Commission to order the Republic of Cameroon to pay the total sum of 3,000,000,000
FCFA to all the victims”.

The African Commission “recognizes the inherent principle of the right to reparation for
damages suffered as a result of a violation of the provisions of the African Charter. The
commission contends that the State of Cameroon is compelled to pay compensation for the
prejudices suffered by the victims. (…) The Commission further recalls that, in the light of its
jurisprudence, assessment of the quantum of such compensation shall be left to the national
courts or authorities of the respondent State” (…), [but] “in compliance with the minimum
standards accepted internationally”. Thus, any evaluation must be guided by the principle of
restitutio in integrum to replace the victim in the position prior to the violation as much as
possible.

In cases where restitution is impossible, the respondent State may resort separately or
cumulatively to compensation, rehabilitation and other forms of reparation. In case of
disappearance or death, the compensation must alter to the benefit of the beneficiaries of the
victim. It follows therefore that any compensation must be fair, adequate, effective, sufficient,
appropriate, directed towards the victim and proportional to the damage suffered.

As a result of the violations found and in compliance with the principles of equity and justice,
the Republic of Cameroon is under the obligation to provide all victims or their dependents
with an appropriate, just, fair and adequate compensation. The amount of the compensation
will be calculated taking into account the pretium doloris due to the acts of torture and
inhuman treatment, the prejudice suffered by the fact of the detention, the duration of the
procedure and the expenses.”

Malawi African Association and others C. Mauritania Case:***

Following a coup that took place in 1984, and which brought Colonel Maaouya Ould Sid Ahmed
Taya to power, the Mauritanian government was criticized by members of the Black ethnic
groups for marginalizing Black Mauritanians.

In early September 1986, “over 30 persons were arrested in the aftermath of the distribution of

212

a document entitled “Le Manifeste des negro-mauritaniens opprimés” (Manifesto of the


Oppressed Black Mauritanians)”. The accused allege “grave and massive violations of human
rights attributed to the Mauritanian State”.

The case under consideration, of which the African Commission was seized through the present
procedure, “is a combination of four communications which it decided to consider together in
view of the similarity of the facts related”. All these communications “were submitted by non-
governmental organizations and they all allege various violations that are interrelated and
similar”.

The Commission recalls that article 56(1) of the African Charter on Human and Peoples’ Rights
“defines all the conditions that communications must meet in order to be considered”. The
commission observes that this article “demands simply that communications should indicate
the names of those submitting and not those of all the victims of the alleged violations”.

The commission recognizes that “in a situation of grave and massive violations, it may be
impossible to give a complete list of names of all the victims”. Thus, “anyone submitting
communications to the Commission relating to human and peoples’ rights (…) do not
necessarily have to be the victims of such violations or members of their families”. It results
then that the “possibility granted to individuals and NGOs to submit cases to the [Commission]
is not limited to a particular interest in bringing a case to [the Commission] such as being a
direct victim of the human rights violation”.

The Commission noted that “this characteristic of the African Charter reflects sensitivity to the
practical difficulties that individuals can face in countries where human rights are violated. The
national or international channels of remedy may not be accessible to the victims themselves
or may be dangerous to pursue”.

* ACHPR, comm. 245/02, Zimbabwe Human Rights NGO Forum C. Zimbabwe, 15 May 2006.

** ACHPR, Comm. 287/04, Titanji Duga Ernest (on behalf of Cheonumu Martin and others) C.
Cameroun, March 7-14, 2014.

*** ACHPR, Comm. 54/91-61/91-96/93-98/93-164/97_196/97-210/98: Malawi Africa


Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l'Homme
and RADDHO, Collectif des veuves et ayants Droit, Association mauritanienne des droits de
l'Homme C. Mauritania, 11 May 2000.

213

4.2.3. Other international and regional instruments

Numerous international declarations reaffirm the duty of States to provide a remedy for victims of
human rights abuses and violations of international humanitarian law.297 A comprehensive
articulation of this duty is found in the Declaration of Basic Principles of Justice for Victims of Crime
and Abuse of Power.298 The Declaration is the most comprehensive instrument on justice for victims.
It provides guidance on measures that should be taken at the national, regional and international
levels to improve access to justice and fair treatment, restitution, compensation, protection and
assistance for victims of crime and abuse of power. In adopting the Declaration, the General
Assembly called upon Member States to take the necessary steps to give effect to the provisions of
the Declaration. In its resolution 2005/20 of 2005, the Economic and Social Council adopted the
Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime.

Responding to the needs of victims of terrorist crimes


To respond to the needs of victims of terrorist crimes, measures should be in place to
provide the following:
• Inform victims of their role in the criminal justice process; the nature of the cooperation that
is expected from them; and the scope, timing and progress of the criminal proceedings, as
well as the outcome of the proceedings;
• Allow the views and concerns of victims to be presented and considered at appropriate stages
of the proceedings where their personal interests are affected, without prejudice to the
accused and consistent with the relevant procedures of the national criminal justice system;
• Provide proper assistance to victims throughout the judicial proceedings;
• Minimize inconvenience to victims, protect their privacy when necessary, and ensure their
safety and that of their families;
• Protect victims from potential intimidation and retaliation;
• Avoid unnecessary delay in the disposition of cases and the execution of orders or decrees
granting awards to victims;
• Offer victims the necessary material, medical, psychological and social assistance through
governmental, voluntary and community-based means;
• Offer victims access to restitution and compensation.

In 2005, the Commission on Human Rights adopted the Basic Principles and Guidelines on the Right
to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and
Serious Violations of International Humanitarian Law.299 In addition, in April 2005, the Commission on
Human Rights took note of the revised Set of Principles for the Protection and Promotion of Human
Rights through Action to Combat Impunity.300 That set of principles includes the right to know, the
right to justice, the right to reparation and guarantees of non-recurrence, which form integral aspects
of securing justice for victims.

297
See, for example, the Universal Declaration of Human Rights, article 8; Declaration on the Protection of All
Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(General Assembly resolution 3452 (XXX), annex), article 11.
298
General Assembly resolution 40/34, annex.
299
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of
International Human Rights Law and Serious Violations of International Humanitarian Law (General Assembly
resolution 60/147, annex), available at http://www2.ohchr.org/english/law/remedy.htm.
300
E/CN.4/2005/102/Add.1.
214

Such instruments, together with other developments, such as the inclusion of victims’ rights to
reparations and participation in the Statute of the International Criminal Court, highlight the
increasingly centrality of victims in the criminal justice system and, by extension, the response of
that system to terrorism. It is important to emphasize that while victims of terrorist activities were
perhaps not foreseen—or at least not expressly mentioned—in human rights instruments—to the
extent that terrorism, as an attack on civilians, is an affront to the human rights of the victims, those
victims have the rights enumerated in the relevant treaties.

Indeed, some instruments have been adopted which specifically seek to address the specific need of
victims of terrorism, such as the Council of Europe's Guidelines on the Protection of Victims of
Terrorist Acts (2005), which demand, at Section VI (2), that “States should ensure that the position of
victims of terrorist acts is adequately recognised in criminal proceedings”. The Guidelines emphasize
the importance of access to the law and to justice being effective, such as through enabling victims
to access competent courts in order to bring a civil action in support of their rights, as well as the
provision of financial assistance to do so where needed in the form of legal aid (Section V). Where
appropriate, 'States must ensure the protection and security of victims of terrorist acts and should
take measures, where appropriate, to protect their identity, in particular where they intervene as
witnesses' (Section IX(2)).301

4.2.3.1. International instrument governing victims of terrorist crimes

Yet, for all of these positive developments, a significant weakness in the existing international
framework remains, namely the absence of any coherent or comprehensive international treaty that
specifically governs issues relating to victims of terrorist crimes. One explanation for this may be
linked to the absence of universal agreement regarding the definition of terrorism, leaving States
unwilling to develop a binding instrument on "victims of terrorism".

That said, there is no shortage of existing agreed norms on the criminal elements of terrorism
related crimes and definitions of victim to not develop such a binding instrument along similar terms
as the sectoral anti-terrorism conventions which generally do not include definitions of terrorism.
For example, within the European region, in addition to the 2005 Guidelines on the Protection of
Victims of Terrorist Acts, the Council of Europe has a binding treaty instrument for victims of crime -
the European Convention on the Compensation of Victims of Violent Crimes (adopted 24 November
1983, entered into force on 1 February 1988) - which could be drawn upon in terms of key norms
and approaches. Similarly, the EU its Directive 2012/29/EU 'minimum standards on the rights,
support and protection of victims of crime'.

Furthermore, a number of international principles already exist for the reparation of victims of both
ordinary and serious crimes, which could similarly inform an international framework,302 including

301
See too, e.g., Recommendations on witness protection: Report of the United Nations High Commissioner
for Human Rights on the Right to Truth, A/HRC/15/33.
302
See, e.g., ‘Civil and Political Rights, Including Questions of: Independence of the Judiciary, Administration
of Justice, Impunity. The right to restitution, compensation and rehabilitation for victims of gross human rights
and fundamental freedoms’. Final Report of the Special Rapporteur, Mr. M. Bassiouni, submitted in accordance
with Commission resolution 1999/33’ (18 January 2000) UN Doc E/CN.4/2000/62; ‘The Administration of
Justice and the Human Rights of Detainees, Question of the impunity of perpetrators of human rights violations
(civil and political) final report prepared by Mr. Joinet pursuant to Sub-Commission decision 1996/119’ (26
June 1997) UN Doc E/CN.4/Sub.2/1997/20; the ‘Revised Final Report’ (2 October 1997) UN Doc.
E/CN.4/Sub.2/1997/20/Rev.1.
215

those developed in the Rome Statute 1998 regarding the redress of and participation by victims
within the ICC. (Article 79).

Notably, much of the existing framework approaches the compensation, reparation and so forth of
victims of terrorism as a criminal remedy with the criminal justice system which is primarily
concerned with apprehending, prosecuting and punishing terrorists i.e. '"making terrorists pay". In
contrast, civil remedies do not have any counter-terrorism prevention, deterrence or punitive
function, encompassing instead all non-forcible, non-criminal means of sanctioning terrorists and
states who support terrorists i.e. "making terrorists pay up". The legal framework governing civil
recovery against terrorists is even less developed than the parallel criminal justice one. In part, this is
reflective of ongoing debates regarding the function of civil remedies for victims of terrorism,
including what civil remedies currently are and should be available, as well as what wider objectives
the recognition and enforcement of civil remedies against terrorism serve together with what
national government institutions are most appropriate for creating and enforcing such remedies.303
There is also an underlying policy debate regarding how best to promote traditional tort law and
public international law objectives without raising undue judicial competence and separation of
powers concerns. 304 In some jurisdictions, such as Spain, the State prosecutor has discretion as to
whether to pursue civil liability for victims of terrorism through criminal trial or civil litigation
routes.305

Tools: To strengthen national approaches to support and protect victims of


terrorist acts
A number of UN tools exist to assist States in strengthening their national approaches - through
the identification of relevant existing international norms and standards as well as national
legislation, in order to better support and protect victims of terrorism. These include:

• 'The Criminal Justice Response to Support Victims of Acts of Terrorism', available at


https://www.unodc.org/documents/terrorism/Publications/Support_to_victims_of_terrorism
/revised_edition_21_May_2012_12-53652_Ebook.pdf.
• In 2015, pursuant to the request of the General Assembly in its resolution 66/178, UNODC's
Terrorism Prevention Branch produced 'Good Practices in Supporting Victims of Terrorism
within the Criminal Justice Framework'. This tool contains a collection of good practice aimed
at strengthening national legislation and institutions regarding victims of terrorism especially
during criminal justice proceedings, available at
https://www.unodc.org/documents/terrorism/Publications/Good%20practices%20on%20victi
ms/good_practices_victims_E.pdf.
• 'Report of the Secretary-General on the operations of the United Nations Voluntary Fund for
Victims of Torture', A/72/278, available at http://ap.ohchr.org/documents/ dpage_e.
aspx?si=A/72/278.
• EU Commission on Victims of Terrorism, available at https://ec.europa.eu/home-affairs/what-
we-do/policies/crisis-and-terrorism/victims.


303
Harold Hongju Koh, ‘Civil Remedies for Uncivil Wrongs: Combatting Terrorism through Transnational Public
Law Litigation’, 50 Tex. Int'l L. J. 661, 696 (2016). pages
304
Harold Hongju Koh, ‘Civil Remedies for Uncivil Wrongs: Combatting Terrorism through Transnational Public
Law Litigation’, 50 Tex. Int'l L. J. 661, 696 (2016).
305
alsell, ‘Whole Again: Statutory Compensation Schemes as a Tort Alternative in the Aftermath of Terror
Attacks’, 30 Temp. Int'l & Comp. L.J. 289, 316 (2016)

216

4.2.3. National approaches

At the domestic level, some national systems, especially criminal justice systems, already have well
developed legislation and mechanisms for compensating the victims of terrorist attacks. Some
examples of approaches are considered in the next section. Indeed, at least within the European
region, current State practice in many countries suggests the emergence of a regional rule on the
provision of victims’ redress in case of violent crimes which whilst not expressly for victims of
terrorist crimes would include them also.

One of the envisaged benefits associated with any international agreement, such as the adoption of
general principles and guidelines, would be the accompanying encouragement for States to adopt
domestic schemes for the compensation of terrorist crimes, reflecting internationally agreed
reparation standards. At present, domestic compensation schemes for victims of terrorism
commonly suffer from a number of weaknesses which an agreed international approach in the form
of a framework could assist in addressing. These include restrictions over questions of locus standi,
i.e. the right of victims to institute proceedings against a State for compensation; State
compensation schemes that are not based on an enforceable right of victims to receive
compensation; State compensation schemes that are generally established on an ad hoc and ex post
facto basis; and State compensation schemes that generally cover only monetary aspects of redress.
In practice, it has often been necessary for victims of terrorism groups to be formed following a
terrorist attack in order to lobby a State for compensation.

In addition, some national laws governing terrorism offences reflect the impact upon victims within
their sentencing approaches of convicted terrorists.

Examples of national legislation on sentencing[case study?]

Cape Verde Penal Code 2003*

• Article 138 (Abduction)

3. The minimum and maximum penalties referred to in the preceding paragraphs shall be
increased by one third if the following circumstances apply with respect to the depriving of the
person of his liberty: (a) if it results in a serious offence against the integrity of the victim, in the
lasting illness of the victim or in the suicide of the victim as a consequence of the deed, of the
conditions in which the victim is held or of the withholding of care by the perpetrator;

• Article 123 (Aggravated homicide)

If the homicide is committed (a) using poison, torture, asphyxiation, fire, explosives or any other
insidious means, or in any way that transforms the crime into a crime of public imperilment, or

217

using any other act of cruelty to increase the victim's suffering,

Rwanda Penal Code (adopted through Decree-Law No. 21/77 of 18 August 1977)*

• Taking of hostages
• Article 388 on sentencing includes:
• Where the acts of torture have resulted in the victim’s death, the perpetrator shall be
sentenced to death. Whoever has provided the premises used for the detention or
sequestration shall be liable to the same punishment.

Togolese Penal Code on sentencing of hostage taking*

Article 61 Where the authors of the confinement have physically abused the victim, the
penalties provided at Articles 46-49 [Voluntary acts of violence] shall be doubled.

63. Where the confinement has brought about the victim’s death, its authors shall be sentenced
to death.

64. The authors or accomplices to the confinement will benefit for the reduction of sentenced
provided at Article 57, where they have unconditionally released the victim safe and sound.

*UNODC, A Review of the Legal Regime against Terrorism in West and Central Africa (2008)
[double check these laws still extant]

Activity

• What provision, if any, does your own national legislative system make for:

• (a) victims of crime more generally;

• (b) victims of terrorism crimes specifically;

• (c) access to civil remedies.


• How does your domestic legislative system define the term 'victim', if at all? How does this
vary from the definitions given in Section 2 above?

Further reading
• European Union, Council Framework Decision of 15 March 2001 on the standing of
victims in criminal proceedings, 2001/220/JHA, http://eur-
218

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:082:0001:0004:EN:PDF.
• European Union, Council Directive 2004/80/EC of 29 April 2004 relating to
compensation to crime victims, http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:261:0015:0018:EN:PDF.
• Council of Europe, Recommendation Rec(2006)8 of the Committee of Ministers to
member states on assistance to crime victims.
• UNODC’s publication Good Practices in Supporting Victims of Terrorism within the
Criminal Justice Framework is available at: link
• The Report of the UN Special Rapporteur on Promoting Human Rights While
Countering Terrorism, 2011, A/66/310 addresses the rights of victims of terrorism.
It is available at: http://www.ohchr.org/EN/Issues/Terrorism/Pages/Issues.aspx.
• The Council of Europe Guidelines on the Protection of Victims of Terrorist Attacks,
adopted by the Committee of Ministers on 2 March 2005, are available here:
https://wcd.coe.int/ViewDoc.jsp?id=829533.
• Revised Guidelines of the Committee of Ministers on the protection of victims of terrorist
acts, adopted by the 127th Session of the Committee of Ministers of the Council of Europe
(19 May 2017),
https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=0900001680714acc.

• The UN Handbook on Justice for Victims which provides guidance as to the


establishment of a social solidarity fund for victims of terrorism is available at:
http://www.uncjin.org/Standards/9857854.pdf.
• For an overview of good practice regarding support and assistance to victims
during criminal proceedings: Commonwealth Secretariat, Victims of crime in the
Criminal Justice Process, The Best Practice Guide for the Protection of
Victims/Witnesses in the Criminal Justice Process (London, 2011), pp. 43-53.
• The Report of the United Nations High Commissioner for Human Rights on the
Right to Truth, A/HRC/15/33, dealing with best practices in the field of witness
protection is available here:
http://ap.ohchr.org/documents/E/HRC/d_res_dec/A_HRC_21_L16.doc.
• OSCE, Background Paper on Solidarity with Victims of Terrorism, Oñati, 9-10 March
2005, http://www.osce.org/odihr/19356?download=true
• Information on the extensive witness protection arrangements available at the
International Criminal Court is discussed in the report Witnesses before the
International Criminal Court: An International Bar Association International
Criminal Court Programme report on the ICC’s efforts and challenges to protect,
support and ensure the rights of witnesses, July 2013 International Bar Association,
http://www.ibanet.org/Human_Rights_Institute/ICC_Outreach_Monitoring/IBA_IC
C_Programme_Homepage.aspx.

219

• African/inter-American

5. Key contemporary issues for victims of terrorism

5.1. Victims of hostage taking and kidnapping

[a number of colleagues have suggested the inclusion of these issues - I wonder whether to include
them here?]

5.2. Broader impact of terrorism on victims

As was noted earlier in the module (Section 2), the impact of terrorism on its victims can be
considerable, not only physically (if injured or killed, or if one's home is destroyed), but also
psychologically. It is widely recognised that, as a result, victims of terrorist crimes often require not
only immediate assistance, but also long-term medical, psychosocial and financial support.306

In addition, there are a number of other ways in which terrorist activities and threats may have a
wider impact on a person's life and community which impairs or prevents enjoyment of other
economic, social and cultural rights. Some of the primary ones are examined in the case study
below.

Case study - broader human rights impact of terrorist acts



A recent UN Human Rights Council report, 'Negative effects of terrorism on the enjoyment of all
human rights and fundamental freedoms' (2016)* captures some of the broader impact of
terrorist activities beyond perhaps some of the more obvious issues, such as on the rights to
work, to health, to education and to participate in cultural life. An abstract of key parts of the
report are included here.


306
See, e.g., See A/HRC/19/38, para. 4.

220

Impact on the right to work and the right to health

42. Acts of terrorism have had a significant impact on the enjoyment of the right to health for
direct and indirect victims. Attacks by Boko Haram in September 2013 on 21 health districts in
Cameroon, for example, lead to the shutdown of 47 health centres in Fotokol, Guzdal and Koza.
These centres reportedly hosted internally displaced persons before they fled for fear of further
attacks by Boko Haram. In addition, attacks on girls’ education have a negative impact on the
right to health for girls, their families and communities because girls who are prevented from
accessing education are less exposed to basic information and less empowered to make
decisions about health issues, including nutrition, sexual and reproductive health, hygiene and
preventive health care. One contribution to the present report highlighted the long-term
impairments that may result from acts of terrorism, such as loss of limbs or of the senses,
causing the victims to live with incapacity and pain for their entire lives and to require someone
to care for them and their family. Furthermore, public spending on counter-terrorism often
focuses on investment in the military, on policing and on intelligence gathering and analysis,
which may adversely affect financial allocations to basic social services, including the health
sector.

43. Another contribution to the present report highlighted the impact of terrorist attacks —
such as the bombing of an aeroplane over the Sinai Peninsula in October 2015 — on the tourism
industry, with negative implications for employment, tourism facilities and the national
economy. More broadly, terrorism may have both a direct impact on the tourism sector —
through decreased tourist numbers, leading to decreased spending — and an indirect impact,
owing to decreased employment and reduced flow-on effects to other industries, such as food
services, cleaning and maintenance businesses. In the context of counter-terrorism measures,
the right to work may also be negatively impacted by the freezing of assets or the inclusion of
individuals on a sanctions list, which could prevent them from travelling freely and accepting
offers of employment in another country.


Impact on the right to education and the right to participate in cultural life

44. The enjoyment of the right to education in Nigeria has been impacted significantly by
internal displacement resulting from attacks by Boko Haram. Displaced children have been
unable to access education, while those who have remained in their communities often receive
poor quality education owing to insecurity, the lack of teachers — as many have fled — and the
destruction of schools. Several cases of attacks against girls accessing education have
highlighted the fragile nature of achievements in increasing the accessibility, availability,
adaptability, acceptability and quality of education for all. These events include the abduction of
nearly 300 schoolgirls by Boko Haram in northeast Nigeria; the killing of more than 100 children
in an attack by the Taliban at an army school in Peshawar, Pakistan; the shooting of education
activist, Malala Yousafzai, by members of the Taliban in Pakistan; the reported forced removal
of girls from schools in Somalia to become “wives” of Al-Shabaab fighters; the abduction and
rape of girls at a Christian school in India; as well as several incidents of poisoning and acid
attacks against schoolgirls in Afghanistan. One contribution to the report noted that, in
Afghanistan, the Taliban had closed or burned some 245 schools in two Afghan provinces in
221

2015 and that 25 schoolteachers and students had been killed by anti-government elements.

45. The negative impact of terrorism on cultural life is evident from the attacks carried out by Al-
Shabaab, Al-Qaida, Ansar Eddine, ISIL and the Taliban against artists and citizens attending
cultural events, cinemas, concerts or theatres. One contribution to the report noted that artists
and citizens in Afghanistan, Iraq, Libya, Mali, Pakistan, Somalia and Syrian Arab Republic have
been particularly severely affected by attacks committed in the name of religion, while the
attacks in Belgium, Denmark, France, Germany and Sweden have led to fear, self-censorship and
financial loss for artists and cultural industries

46. With regard to censorship by States, the Special Rapporteur in the field of cultural rights
noted that, in some countries, artistic expressions criticizing the Government had been labelled
as “terrorism”. She expressed concern that many artists had been disproportionately sentenced
under charges of criminal offences such as “terrorism”, “extremism” or “

47. At a more general level, the reallocation of State resources towards counter- terrorism
measures can also have negative consequences on the right to education, for example, when
allocations are drawn away from programmes in the education sector.

* UN Human Rights Council, 'Annual report of the United Nations Commissioner for Human
Rights and reports of the Office of the High Commissioner and the Secretary-General:
Negative effects of terrorism on the enjoyment of all human rights and fundamental
freedoms', A/HRC/34/30 (30 December 2016), pp12-13.

In terms of specific examples of the denial of such rights, one context in which the right to health has
been adversely impacted is in areas where Boko Haram has carried out attacks on the African
continent. For example, the result of its attacks carried out in September 2013 on 21 health districts
in Cameroon led to the closure of 47 health centres which, reportedly, had hosted already
vulnerable internally displaced persons who subsequently fled out of fear of further attacks by Boko
Haram. In turn, such attacks, together with others on education have left girls especially vulnerable
since gaps in their education have left them less exposed to basic information and less empowered
to make decisions about health issues, including nutrition, sexual and reproductive health, hygiene
and preventive health care.307

In more extreme cases, school girls especially are vulnerable to abduction as occurred by Boko
Haram when, in 2014, 276 school girls were taken from their school in Chibok, northeast Nigeria. An
estimated 100 of the girls remain missing to this day.308 In addition, Boko Haram has carried out
many other attacks on schools which it believes is teaching a Western education which corrupts
Muslim values, sometimes destroying schools in the process. In response, many school teachers
have left, leaving gaps in, as well as a poorer quality of, the education available. Other children
displaced due to terrorist activities are often unable to access education at all. Nor has the
deliberate targeting of schools and education by terrorist groups confined to one country or

307
A/HRC/30/67, para. 49. See www.ohchr.org/Documents/HRBodies/CEDAW/Report_attacks
_on_girls_Feb2015.pdf, accessed 29 September 2017.
308
http://www.bbc.co.uk/news/world-africa-32299943
222

continent. Other terrorist incidents have included: the killing of more than 100 children in an attack
by the Taliban at an army school in Peshawar, Pakistan; the shooting of education activist, Malala
Yousafzai, by members of the Taliban in Pakistan; the reported forced removal of girls from schools
in Somalia to become “wives” of Al-Shabaab fighters; the abduction and rape of girls at a Christian
school in India; as well as several incidents of poisoning and acid attacks against schoolgirls in
Afghanistan; the closure or burn of around 245 schools in two Afghan provinces in 2015 and the
killing of 25 schoolteachers and students.309

With respect to the right to work, this has been undermined in a number of ways. For example, the
bombing of a civilian passenger aircraft over the Sinai Peninsula in October 2015 had a very
significant and adverse impact upon the tourism industry which, in turn, impacted upon local
employment, the national economy and so forth.310

5.3. Support of victims311

Another important issue has been how best to support direct and indirect victims of terrorist
attacks, which as seen already can have devastating consequences on those affected. Generally,
three principal components of victims’ legal rights have been identified: the right to know (the truth
of e.g. what happened and why), the right to justice (and prevention of impunity of those culpable),
and the right to reparations.312 In doing so, the memory of the victims is also kept alive.

With respect to the 9/11 terrorist attacks, almost 3,000 persons were left dead, comprising civilians
and many first responders. The victims were nationals of more than 90 countries and 372 non-US
nationals were killed, making the attack the most ‘internationalized’ act of terror in history. The
mastermind of the attacks, Osama bin Laden, the leader of the al Qaeda organization, was never
brought to justice within a court of law,313 though he was subsequently found and "neutralized"
during a "capture or kill" mission carried out under President Obama.

In the case of the Madrid terrorist attack on 11 March 2004, ten bombs were detonated onboard
four commuter trains, killing 191 persons and wounding 1,800 more. Two Moroccan nationals and
one Spaniard were found guilty of physically carrying out or participating in the attacks, but the


309
Ibid., p. 13 with further references.
310 th
Human Rights Council, 34 Session, 27 February-24 March 2017, Report of the United Nations High
Commissioner for Human Rights: Negative effects of terrorism on the enjoyment of all human rights and
fundamental freedoms, A/HRC/34/30, p. 12.
311
reference Ilaria's chapter
312
See ‘The Administration of Justice and the Human Rights of Detainees, Question of the impunity of
perpetrators of human rights violations (civil and political) final report prepared by Mr. Joinet pursuant to Sub-
Commission decision 1996/119’ (26 June 1997) UN Doc E/CN.4/Sub.2/1997/20 and the ‘Revised Final Report’
(2 October 1997) UN Doc. E/CN.4/Sub.2/1997/20/Rev.1.
313
Ilaria Bottigliero, Realizing the Right to Redress for Victims of Terrorist Attacks in Ana Salinas de Frías, Katja
Samuel, Nigel White (eds.), COUNTER-TERRORISM: INTERNATIONAL LAW AND PRACTICE, (New York: Oxford University
Press), (2012), pp. 908-933.

223

alleged mastermind of the attack, Rabei Osman Sayed Ahmed, known as Mohammed the Egyptian,
was after a totally unexpected twist of events cleared of all charges.314

In other parts of the world, such as Afghanistan and Iraq, suicide bombings, such as near food
markets or mosques where local communities gather, have been commonplace, resulting in the
death of many thousands of life and wounding of many other people, often with life changing
consequences.

Often, in response to catastrophic one-off terrorist attacks, such as the 9/11 terrorist attacks and
Madrid bombings, victims establish a common organization, including to liaise with local and
national authorities on behalf of the needs of all of the victims. Following the 9/11 attacks, the
victims’ families in fact established several associations with various aims and diverse affiliations.
This was probably attributable to the high number of victims involved in the attacks, as well as their
diverse backgrounds.315 Moreover, some survivors of 9/11 additional created their own associations,
such as the "World Trade Center Survivors’ Network".316

In contrast, the families of the victims of the Madrid bombings established the "Asociación 11M
Afectados del Terrorismo". This aimed to discover more about the attacks themselves, such as the
underlying causes, as well as to seek justice and reparations. In addition, one of its principal aims
was to ‘confront the serious gaps in the protection of victims of terrorism and to make sure that all
of those affected receive medical, psychological, social and legal support they are entitled to’.317 In
the course of judicial proceedings, Spanish courts awarded amounts between €30,000 and €1.5
million in compensation to each victim. This sum included payments to both families of victims who
died during the attack and disabled victims.318

5.4. Compensation and reparation models319

Different models have been developed at the national level for the compensation and support of
victims, which are illustrated here. Whereas Section 3 was primarily about criminal justice responses
to victims, though the general right to an effective remedy and so forth applies equally to civil
actions, the focus here is on civil and non-litigious approaches. A key factor is that often convicted
terrorists will have little or no personal assets with which to pay any compensation that might be


314
See T Catan, ‘191 dead, thousands of victims – but the “mastermind” is cleared’ The Times (London, 1
November 2007) <http://www.timesonline .co.uk/tol/news/world/europe/article2781588.ece> accessed 22
March 2011.
315
Ilaria chapter p.910.
316
Official website of World Trade Center Survivors’ Network, http://www.survivorsnet.org/, last accessed 7
October 2017.
317
See ‘Asociacion 11-M Afectados Terrorismo’ <http://www.asociacion11m.org/quienes-somos.php>
accessed 22 March 2011. There are also a number of other victims’ groups which are very active in supporting
families of victims of terrorism in Spain. eg Asociación de Víctimas del Terrorismo, Asociación de Ayuda a las
Víctimas del 11M.
318
Ilaria Bottigliero, Realizing the Right to Redress for Victims of Terrorist Attacks in Ana Salinas de Frías,Katja
Samuel,Nigel White (eds.), COUNTER-TERRORISM: INTERNATIONAL LAW AND PRACTICE, ibid., p. 912.
319
reference Ilaria's chapter.
224

awarded through judicial processes; meaning that often it will be necessary to look to the State to
assist.

5.4.1. Italy

One approach has been that adopted under Italian law on the compensation of victims of terrorism
and similar crimes. In response to a series of terrorist incidents during the 1970s and early 1980s and
the subsequent persistent lobbying of various victims’ associations, Italy adopted relatively
comprehensive legislation relating to victims’ redress for terrorist acts. More recently, legislation
was adopted in 2004 entitled "New norms in favour of victims of terrorism and of massacres of
similar matrix".320 This legislative instrument provides for the monetary compensation of all victims
of terrorist and similar acts and their families, regardless of their nationality, whether these acts
were committed in Italy (for events occurred from 1961 onwards) or abroad (for events involving
Italian victims, occurred from 2003 onwards and hence excluding the 9/11 attack).

The legislative approach closely mirrors international standards and principles as are contained in
the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations321 considered earlier in the module (Section xx). Therefore it defines the notion of victim
widely to include ‘the immediate family or dependants of the direct victim and persons who have
suffered harm in intervening to assist victims in distress or to prevent victimization’ (Principle IV(8)).
In addition to making provision in the form of a pension, coverage of medical expenses of those who
suffered permanent disability as a result of terrorist attacks,322 the Italian legislation also makes
provision for psychological assistance. Resources for the compensation of victims come from a
"Special Fund" jointly created by the Ministries of Finance, Justice, Foreign Affairs, Defence,
Agriculture, and Communications (Article 16).

Another especially notable feature of the Italian model, not widely replicated in other countries, is
the absence of an Italian nationality requirement as a pre-condition to claiming compensation for
victims of terrorist acts committed within the country’s territory.

Certainly, most European legislation on victims’ compensation contain some restrictive provisions
based on nationality, generally requiring that the claimant be either a national of the State awarding
compensation, a permanent resident of it, or at a minimum, a European citizen.323 That said, there
are some accompanying criticisms too. One is that this model of compensating and supporting
victims of terrorism is premised on a voluntary, ad hoc basis rather than being embedded within an


320
Law n 206 3 August 2004, published in the Official Gazette no 187 of 11 August 2004.
321
Adopted and proclaimed by General Assembly Res 60/147 (16 December 2005) UN Doc A/RES/60/147.
322
Ilaria Bottigliero, Realizing the Right to Redress for Victims of Terrorist Attacks in Ana Salinas de Frías,Katja
Samuel,Nigel White (eds.), COUNTER-TERRORISM: INTERNATIONAL LAW AND PRACTICE, ibid., p. 915.
323
For a detailed review of domestic regulations on this matter see the European Judicial Network,
‘Compensation to crime victims – General Information’
<http://ec.europa.eu/civiljustice/comp_crime_victim/ comp_crime_victim_gen_en.htm> accessed 22
March 2011. See European Justice Network, ‘Manual 80/2004 on Compensation to Crime Victims –
Austria’, <http://ec.europa.eu/justice_home/judicialatlascivil/html/pdf/ manual_cv_aus_en.pdf>
accessed 22 March 2011; European Justice Network, ‘Compensation to crime victims – Belgium’
<http://ec.europa.eu/ civiljustice/comp_crime_ victim/comp_crime_victim_bel_en.htm#2.5>
accessed 22 March 2011; European Justice Network, ‘Compensation to crime victims – Finland’
<http://ec.europa.eu/civiljustice/comp_crime_victim/comp_crime_ victim_fin_en.htm> accessed 22
March 2011.
225

organized system of social security for victims.324 In the absence of a legislative basis, victims are
"assisted" because of their objective suffering, rather than because of the existence of an
enforceable right to an effective remedy as is provided for under e.g. Article 2(3) ICCPR examined
earlier (Section xx).

5.4.2. Spain

In Spain, the compensation regime for victims of terrorism is based on the Law of Solidarity with the
Victims of Terrorism 2003.325 The law was adopted unanimously by the Parliament "as a tribute of
Spanish society to victims of terrorist violence". With respect to the regime's underlying phiIosophy,
this is revealed in Article 1 of the Law which affirms that ‘as a testimony of honour and recognition
for harmed suffered due to terrorist attacks, the state bears the payment of reparations otherwise
due to the victims by the authors and [those] responsible of such acts.’ Therefore, as with the
approach of some other countries, although Spanish law recognizes an individual right to
reparations, the compensation regime if founded on principles of social solidarity and "civil
responsibility", rather than on a possible failure of the state to prevent terrorist acts.

As Article 2 states, the compensation scheme, and its accompanying right of inter alia victims of
terrorism to seek reparations, is underwritten by the Spanish government which 'will bear the
burden of the relevant indemnities on an extraordinary basis, based on the notion of civil
responsibility and in agreement with the provisions of the present law'. Therefore, although the
perpetrator of the offence in question assumes primary responsibility for the compensation of
victims, the State plays a subsidiary role in providing victims’ redress in those instances where this is
not available from the offender.

As with the Italian model, the role of the Spanish government is on an ad hoc and voluntary rather
than legislative requirement basis. The Spanish model is more consistent with European approaches
to redress, adopting narrower eligibility criteria whereby compensation to Spanish citizens, nationals
of Member States of the European Union, persons habitually residing in Spain, and nationals of
foreign countries that have concluded reciprocal agreements with Spain in this respect.

5.4.3. USA

Prior to the 9/11 terrorist attacks, legislation governing compensation for victims of terrorism and
other violent crimes was less well developed in the US compared to e.g. Europe where binding
instruments were being adopted already by the EU. One significant reasons for this is the different
underlying legal culture within the US regarding the compensation of victims. As one commentator
has observed, ‘...the American mindset is that only the tortfeasor should have to pay. While a
Frenchman requests public help, an American searches for a tortfeasor to hold responsible for


324
See M Bouchard and G Mierolo, Offesa e riparazione: Per una nuova giustizia attraverso la mediazione
(Bruno Mondadori Editore, Milano 2005) 234 et seq.
325
Ley 2/2003, de 12 de marzo, de modificación de la Ley 32/1999, de 8 de octubre, de solidaridad con las
víctimas del terrorismo. See the text of the law at <http://www.lexureditorial.com/boe/0303/05175.htm> in
Spanish, accessed 22 March 2011.

226

damages’.326 This is similar to the approach adopted in e.g. Canada which generally deals with these
issues in terms of civil remedies under the law of tort, such as common law intentional torts (e.g. of
trespass) and the tort of negligence. In a terrorism context, however, the approach of the tortfeasor
poses important obstacles to victims. One of the most significant is that non-state actor terrorist
groups, such as al Qaeda, do not represent a legal entity such as a State which can readily be held to
account within US (or indeed many) courts. Consequently, victims commonly turn to the State as the
next entity, which can be litigated against within the courts, on the basis of its failures to prevent the
terrorist attack(s) from occurring and therefore failing in its primary responsibility to protect those
within its territory (also a primary obligation under human rights law).

Traditionally, the State has been regarded as an intermediary with some responsibility for enabling
individuals to be able to launch judicial proceedings against any type of offenders (persons, legal
entities or States), or facilitating the seizure of foreign property to compensate victims in the context
of State responsibility. Therefore, even following the 9/11 terrorist attacks which resulted in mass
casualties and damage, certain aspects of compensation matters continued to be treated within the
traditional framework of US civil tort law and insurance law. For example, under the Terrorism Risk
Insurance Act 2002, the duty of compensation rests exclusively with the offender, be it a physical
person, a legal entity, or a State. Indeed, when the Bush Administration proposed the creation of a
new compensation programme for victims of terrorism which would have provided compensation
from State Department funds, the proposal was eventually rejected by Congress.327

Things changed, at least partially, with the adoption of the 9/11 Fund, a program designed to
compensate victims for losses incurred from the terrorist attacks in New York.328 The Fund was
established as part of the Air Transportation Safety and System Stabilization Act (ATSA), which in
turn was created to save the transportation industry, in particular United Airlines and American
Airlines, from a possible financial floodgate in case victims decided to sue the airlines. In this
connection, the Act provided for a mega-grant of around $15 billion in loans and guarantees for the
airline industry. Additionally, it was also decided to include in the ATSA a no-fault victims’
compensation program worth around $3-4 billion, for the 9/11 attack’s victims and their families.
Essentially, the 9/11 Fund was built upon the common public perception that victims were totally
innocent and deserved comprehensive assistance and support,329 whilst reflecting some
characteristics and procedures commonly used in administering mass tort settlements.

Notably, however, and in contrast to the Italian and Spanish approaches outline above, the
compensation programme was not part of any federal or State structure. Instead it was was
conceived as an ad hoc mechanism to be administered exclusively by a Special Master appointed by
the Attorney General. Compensation awards were paid directly from the National Treasury of the
Federal Government to legitimate claimants, without their having to demonstrate liability or
causation, only proof of damages which included economic and non-economic losses associated
with death or physical injury. In exchange, successful claimants waived their rights to sue the airlines


326
O Moréteau, ‘Policing the Compensation of Victims of Catastrophes: Combining Solidarity and Self-
Responsibility’, (2008) 54 Loyola LR 65, 71.
327
See SD Murphy ‘Contemporary Practice of the United States Relating to International Law’ (2003) 97 AJIL
189.
328
September 11th Victim Compensation Fund of 2001, 115 Stat 237-41 paras 401-9. The victim compensation
program is contained in Title IV of the Air Transportation Safety and System Stabilization Act (ATSA) (adopted
th
22 September 2001). For further information on the Fund see September 11 Victim Compensation Fund of
2001 <http://www.justice.gov/archive/victimcompensation/>, accessed 7 October 2017.
329
J. Goldscheid, ‘Crime Victim Compensation in a Post 9/11 World’, ibid., p. 174.
227

or other related potential tortfeasors, except for the hijackers and their accomplices.330 Unlike other
national compensation schemes, the 9/11 Fund was never intended to be an exclusive mechanism
for compensation or indeed other forms of support. Victims could choose to pursue compensation
either through the Fund or in the Federal Courts, although the US Congress ‘capped the amount the
airlines ultimately would have to pay by limiting liability to their liability insurance coverage’.331
Indeed, the US Government made it clear that the Fund was not meant as ‘a replacement of the tort
system’, and its purpose was to provide ‘a sustainable, realistic and reasonable foundation’ to
rebuild families’ lives.332 As such, although the 9/11 Fund was a notable innovation in response to a
catastrophic terrorist attack, it should be viewed as a one-time, ad hoc fund, which could not
envisage any kind of long-term compensation scheme for similar crimes occurring in the future.

5.4.4. Truth commissions, public inquiries et al

In addition to more traditional civil court proceedings and the creation by a State of a fund to
support the physical, psychological, financial and so forth needs of victims, other methods exist too.

One important such mechanism can be the establishment of a truth commissions which can address
a number of common concerns of victims. Essentially, truth commissions are mechanisms for
collating the testimonies of victims of human rights violations or abuses, gathering evidence of and
better understanding the impact of those violations or abuses on surviving victims, offering a public
forum in which to formally acknowledge and recognise such suffering (sometimes resulting in an
apology). Truth commissions are not judicial tribunals and, therefore, are not a mechanism for
providing e.g. compensation for victims (though they may recommend this, thereby applying
positive pressure toward this end). On occasion, truth commissions may also work criminal tribunals
which can make any necessary orders for reparations and so forth. Such commissions can be helpful
too where there may be no realistic prospect of e.g. prosecuting the terrorists involved, perhaps
because they are dead as suicide bombers or were killed by law enforcement officers, whilst also
bring any State failings to account thereby reducing the potential for impunity of both State and
non-State actors.

One example is considered below in the case study based on the Chilean Truth Commission; similarly
there has been the Salvadorian Truth Commission. Although this does not relate to a terrorism
context, instead one of serious human rights violations, the underpinning principles are applicable to
the situation of victims of terrorism.


330 th
See US Department of Justice September 11 Victim Compensation Fund, ‘Closing Statement from the
Special Master, Mr. Kenneth R. Feinberg, on the Shutdown of the September 11th Victim Compensation Fund’
<http://www.justice.gov/archive/ victimcompensation/closingstatement.pdf> accessed 7 October 2017.
331
B.J. Grey, ‘Homeland Security and Federal Relief: A Proposal for a Permanent Compensation System for
Domestic Terrorist Victims’ (2005/6) 9 NYU Journal of Legislation and Public Policy 675, at p. 678.
332
See Cheryl Schneider et al v Kenneth R. Feinberg, Special Master of the September 11th Victim
Compensation Fund of 2001, John Ashcroft, Attorney General of the United States, United States Department of
Justice. Docket No 03-6124 and 6130, US Court of Appeals, Second Circuit (argued 8 September 2003, decided
26 September 2003).

228

Case Study: Chilean Truth Commission 1990* [useful case study? think of others eg FARC
in Colombia?]

Subsequent to the referendum ending General Pinochet's rule, democratic elections were held
and Patricio Alywin was elected. The newly elected President issued Supreme Decree No. 355 on
25 April 1990, creating a National Commission on Truth and Reconciliation with the purpose "to
help the nation come to a clear overall understanding of the most serious human rights
violations committed in recent years in order to aid in the reconciliation of all Chileans". The
Commission examined more than 3,400 cases of human rights violations.

The Commission focused its work on four specific areas:

1) Establishment of the antecedents and circumstances which led to those grave violations
of human rights;
2) Gathering of evidence which might facilitate the identification of victims by name and
determine their fate or whereabouts
3) Recommendations of measures of reparations and restorations of people's good name;
and
4) Recommendations of administrative or legal measures which could prevent further
commitment of human rights violations

Based on its findings, the Commission made a significant number of urgent proposals for
reparation.

Recommendations for Reparations for victims:

• The Commission recommended that relatives of victims should receive the pension
benefits owed to their dead family members. Similarly, the Commission suggested the creation
of a single reparation pension to address the difficulty under the then established procedures
"to resolve quickly and satisfactorily the pension [p]roblems ... for providing survivors'
pensions".

• With regard to healthcare, the Commission suggested that the Ministry of Health put in
place a program directed to provide "specialized healthcare for an unspecified number of
families who have suffered very serious violations of their rights".

• Another area in which the Commission made recommendations was education: e.g.
scholarships for higher education of the children of human rights victims who are ready for such
studies;

• Housing: e.g. the Commission recommended that the Ministry of Housing and Urban
Planning to give priority to victims of human rights violations when they apply for social housing
programs.

229

Recommendations of institutional reforms to prevent future human rights violations:

• Strengthening of the legal system in light of international human rights law standards and
the promotion of human rights at all level of the society;
• Harmonization of the Chilean domestic legislation with international human rights law
(ratifying IHRL treaties);
• Creation of a judicial branch that guarantees the essential rights of persons;
• Commitment by armed forces, security forces and police to exercise their functions in
accordance with obligations to respect human rights;
• Creation of institutions to protect human rights;
• Changes of the legal order in constitutional, criminal and procedural matters in order to
better protect human rights.

These recommendations encouraged the Chilean government to review its legal and
institutional system, resulting in the establishment of bodies such as an Ombudsman's Office
and the National Corporation for Reparation and Reconciliation which was primarily established
to inquire into almost 600 cases that had not been examined by the Rettig Commission for
reasons of time constraints

After the Commission issued its recommendation for reparation, the Chilean Congress enacted
one of the most generous compensation packages in history within nine months "over 80% of the
eligible families had accepted the award" and 5,000 relatives of those killed or disappeared were
given a pension equivalent to US$ 5,000 annually. The Chilean government also addressed the
Commission's recommendation about education, healthcare, and housing.

* Yuri Alexander Romana-Rivas, 'Advocacy for a U.S. Commission of Inquiry on Torture in the
Context of the War on Terror Inspired by the Latin American Experience: Chile and El Salvador',
5 Inter-Am. & Eur.Hum. Rts. J. 148, 177 (2012)

Other mechanisms which may achieve similar aims are the convening of a public inquiry or national
commission (e.g. the National Commission on Terrorist Attacks upon the United States, and the
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar333). In addition
to being a vehicle for gathering key documents and evidence, as well seeking to answer at least
some of the questions of victims, inquiries and commissions can also be influential in making
recommendations regarding law, policy and/or practice changes. Often they will precede and be
helpful to any subsequent criminal proceedings.


333
See section xx below on victims of counter-terrorism.
230

Tools:
• Official website of World Trade Center Survivors’ Network, available at www.survivorsnet.org.
• September 11th Victim Compensation Fund of 2001, available at www.justice.gov/
archive/victimcompensation.
• ‘Asociacion 11-M Afectados Terrorismo’, available at www.asociacion11m.org.
• National Commission on Terrorist Attacks upon the United States, available at www.9-
11commission.gov.
• Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar,
available at http://www.sirc-csars.gc.ca/pdfs/cm_arar_bgv1-eng.pdf.

Videos: Victims of terrorism


• UN expert on counterterrorism urges for international action for victims’ rights, their
protection and compensation, available at http://www.ohchr.org/EN/NewsEvents/Pages/
UNexpertoncounterterrorismurgesforinternationalactionforvictims.aspx.
• Case Western Reserve University School of Law, 'Victims before International Criminal
Courts: A Challenge for International Criminal Justice', 21 November 2011, available at
https://www.youtube.com/watch?v=DYb19TIPOBU.
• Council of Europe, The Victims of Terrorism, available at
https://www.coe.int/en/web/portal/terrorism-and-human-rights?desktop=true.
• UN Victims of Terrorism Support Portal, Imrana Alhaji Buba speaks about his experience
as a victim of Boko Haram in Nigeria, available at
https://www.un.org/victimsofterrorism/en/node/4121.
• UN Human Rights, 'From Horror to Healing: Rehabilitation of Torture Victims (short
trailer), 23 June 2016, available at https://www.youtube.com/watch?v=FI57Rzh8pEA.
• United Nations, 'Surviving Terrorism: Victims' Voices from Norway', 3 November 2017,
available at https://www.youtube.com/watch?v=GZZgIpVSMFU.

Further reading
• O Moréteau, ‘Policing the Compensation of Victims of Catastrophes: Combining Solidarity and
Self-Responsibility’, (2008) 54 Loyola LR 65, 71.
• J Goldscheid, ‘Crime Victim Compensation in a Post 9/11 World’ (2004) 79 Tulane LR 167.
• Ilaria Bottigliero, Realizing the Right to Redress for Victims of Terrorist Attacks in Ana Salinas
de Frías,Katja Samuel,Nigel White (eds.), COUNTER-TERRORISM: INTERNATIONAL LAW AND PRACTICE,
CHAPTER XX
• BJ Grey, ‘Homeland Security and Federal Relief: A Proposal for a Permanent Compensation
System for Domestic Terrorist Victims’ (2005/6) 9 NYU Journal of Legislation and Public Policy
675.
• Yuri Alexander Romana-Rivas, 'Advocacy for a U.S. Commission of Inquiry on Torture in the
Context of the War on Terror Inspired by the Latin American Experience: Chile and El
Salvador', 5 Inter-Am. & Eur.Hum. Rts. J. 148, 177 (2012)
231

• Brendan Green; David Quayat; Hilary Young, Bill C-35: Real Justice for Victims of Terrorism, 36
Advoc. Q. 329, 362 (2010
• Harold Hongju Koh, ‘Civil Remedies for Uncivil Wrongs: Combatting Terrorism through
Transnational Public Law Litigation’, 50 Tex. Int'l L. J. 661, 696 (2016)
6.
• Kaitlin Ansell, ‘Whole Again: Statutory Compensation Schemes as a Tort Alternative in the

Aftermath of Terror Attacks’, 30 Temp. Int'l & Comp. L.J. 289, 316 (2016), available at
Key
https://sites.temple.edu/ticlj/files/2017/02/30.2.Halsell-TICLJ.pdf.
conte
mpor • Yuri Alexander Romana-Rivas, Advocacy for a U.S. Commission of Inquiry on Torture in the
ary Context of the War on Terror Inspired by the Latin American Experience: Chile and El Salvador,
issue 5 Inter-Am. & Eur.Hum. Rts. J. 148, 177 (2012)
s for • Justine Palacios, ‘Leibovitch v. Islamic Republic of Iran: A Seventh Circuit Decision Extends a
victi Path to Recovery for Foreign Nationals Harmed by an Act of State-Sponsored Terrorism’, 21
ms of Tul. J. Int'l & Comp. L. 597, 616 (2013)
count • ‘The Administration of Justice and the Human Rights of Detainees, Question of the impunity
er- of perpetrators of human rights violations (civil and political) final report prepared by Mr.
terro Joinet pursuant to Sub-Commission decision 1996/119’ (26 June 1997) UN Doc
rism
E/CN.4/Sub.2/1997/20 and the ‘Revised Final Report’ (2 October 1997) UN Doc.
E/CN.4/Sub.2/1997/20/Rev.1.

• Giulio Meotti, A New Shoah: The Untold Story of Israel's Victims of Terrorism, (New York,
6.1. London: Encounter Books), (2010).
• Rianne Letschert, Ines Staiger, Antony Pemberton (eds.), Assisting Victims of Terrorism:
Legal Towards a European Standard of Justice, (Heidelberg London New York: Springer Dordrecht),
fram (2010).
ewor
k

During the previous modules, especially Modules 8 to 13, many different topics have been
examined. A common theme throughout has been the extent to which their accompanying rights for
individuals and obligations for State actors have been violated in a counter-terrorism context. This
has ranged from arbitrary arrest and detention, to extra-judicial killing, to torture or other forms of
ill-treatment, to open-ended administrative detention without the safeguards of due criminal justice
process, to unfair trials, to unlawful invasions of privacy under the guise of intelligence gathering, to
the erosion of fundamental freedoms. In particular, there have been some especially concerning
practices such as extraordinary renditions which have involved multiple human rights violations
including enforced disappearance, secret detention, coercive interrogation techniques constituting
torture, and so forth.

The survivors of such unlawful counter-terrorism practices, together with their families and
sometimes also wider communities, are as much victims as those persons who have suffered as a
result of terrorist attacks. Much of the international and regional framework, and issues relating to
victims - such as their need for financial compensation, psychological support and so forth - explored
in the module until now apply equally to victims of counter-terrorism and, therefore, will not be
repeated here. For example, under Article 2(3) ICCPR and comparable regional provisions, they are
entitled to an effective remedy where their human rights and fundamental freedoms have been
violated.

There are though a number of important differences between victims of terrorist attacks and those
of counter-terrorism responses, which are explored in the remainder of this section.
232

6.1.1. State versus non-State actor conundrum

One of the most fundamental issues, which is an overarching theme here, is the different role played
by the State. In relation to victims of terrorist attacks, the primary adverse parties and focus of
pursuit are normally third party non-State terrorist actors. Though the State can also be pursued for
its failings, it can also play a bona fide role, e.g. in facilitating access to judicial proceedings for
victims to pursue appropriate remedies such as compensation. In addition, or alternatively, it can set
up a dedicated partially or fully funded State scheme to support victims of terrorist attacks.

In contrast, for victims of counter-terrorism, the primary focus of any legal, administrative, etc
proceedings and activities is generally at least one State, often the victim's own State. This presents
a very different scenario for victims seeking reparations. Whereas it can be in the State's interest to
actively facilitate the pursuit of remedies and support for victims of terrorist attacks, where a State
itself is potentially culpable for its own role - whether as an architect of or accomplice to unlawful
laws, policies and/or practices - it clearly has a self-interest in hindering or at least not facilitating
effective remedies for victims of counter-terrorism. This conundrum often results in perpetrators,
such as State officials, not being brought to account with accompanying impunity contrary to
upholding the rule of law. This theme is explored in more detail below (Section 6.xx).

6.1.2. Core obligations and due diligence

In parallel, there are other duties, such as for States to exercise due diligence, existing in customary
international as well as treaty law, in preventing the occurrence of such violations in the first place,
especially if there is a significant risk of such unlawful practices occurring, or putting an end to them
as soon as they become known. For example, with respect to extraordinary rendition, such a breach
would occur where a State is complicit in or in any other way acquiesces to unlawful acts such as
kidnapping and torture, e.g. by allowing the transfer of a person from their territory to the territory
of a State where it is known or at least suspected that the commission of human rights violations is
highly likely.

The human rights law obligation does not necessarily entail the prosecution of all individuals
conceivably tarnished by criminality; however, where serious violations arise, a thorough
investigation must lead to a rigorous approach to prosecution.334 The scope of the investigation, and
potentially the prosecutions policy, should include not only the immediate perpetrators of the
crimes, but also the intellectual authors behind the programme. Cases against higher level officials
will tell a broader story, and generally contribute more to clarifying the historical understanding of
the nature of the programme.335 As is explored in more detail below, this can often be difficult to
achieve in practice.


334
See, for example, Barrios Altos v Peru (Judgment) IACtHR Series C No 7 (14 May 2001). For analysis of the
duty to prosecute and its limits, see F Guariglia, ‘Los límites de la impunidad: la sentencia de la Corte
Interamericana de Derechos Humanos en el caso Barrios Altos’ in Nueva Doctrina Penal, 2001/A (Editorial del
Puerto, Buenos Aires 2001) 209-30.
335
P Akaban, ‘Justice in the Hague, Peace in the Former Yugoslavia? A Commentary on the United Nations War
Crimes Tribunal’ (1998) 20 HRQ 737.
233

The duty of ‘thorough, independent and effective investigation’ is an inherent aspect of the positive
obligations in general human rights treaties obligations to protect and ensure the rights in the
conventions.336 This duty has been held to apply in security sensitive circumstances, including in
situations of armed conflict.337 Military and civilian superiors are also obliged to punish subordinates
for crimes they know or have reason to know the subordinates have committed in the past. A
superior can sufficiently discharge this obligation by reporting breaches of IHL to a competent
authority for investigation and prosecution.338

Notably, in its General Comment 31 (2004) (paragraph 8) on the nature of the general legal
obligation imposed on States parties to the Covenant, the Human Rights Committee has stated that

[T]he positive obligations on States Parties to ensure Covenant rights will only be fully
discharged if individuals are protected by the State, not just against violations of Covenant
rights by its agents, but also against acts committed by private persons or entities that
would impair the enjoyment of Covenant rights in so far as they are amenable to application
between private persons or entities. There may be circumstances in which a failure to
ensure Covenant rights as required by article 2 would give rise to violations by States Parties
of those rights, as a result of States Parties’ permitting or failing to take appropriate
measures or to exercise due diligence to prevent, punish, investigate or redress the harm
caused by such acts by private persons or entities.339

6.1.3. Right to restitution and the guarantee of non-recurrence

The UN Basic Principles on the Right to a Remedy and Reparation for Victims of Gross Violations of
International Human Rights Law 2005 affirm the right to restitution. In particular, principle 19
specifies that a State

[S]hould, whenever possible, restore the victim to the original situation before the gross
violations of international human rights law… occurred. Restitution includes, as appropriate:
restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return
to one’s place of residence, restoration of employment and return of property.340

Beyond restitution, it includes compensation for non-pecuniary damage flowing from the breach.341
In the context of US secret detentions and unlawful interrogation techniques employed by
intelligence agencies, the Human Rights Committee found that ‘the State party should ensure that
there are effective means to follow suit against abuses committed by agencies operating outside the

336
Velasquez Rodriques v Honduras (n 85); Assanidze v Georgia (App no 71503/01) (2004) 39 EHRR 653;
Isayeva, Yusupova and Bazayeva v Russia (App nos 57947/00, 57948/00, 57949/00) (2005) 41 EHRR 39 paras
209–13.
337
Isayeva and Ors v Russia (n 93) paras 209–13; see also P Alston, ‘Report to the Human Rights Commission’
(8 March 2006) UN Doc E/CN.4/2006/53 1125–6.
338
G Mettraux, The Law of Command Responsibility (OUP, Oxford 2009).
339
para 8 CCPR/C/21/Rev.1/Add. 13 (26 May 2004).


340
Basic Principles on the Right to a Remedy and Reparation (n 85) principle 19.
341
E and Ors v UK (App no 33218/96) ECtHR 26 November 2002 para110; Keenan v UK (App no 27229/95) 33
EHRR 913 para 130.
234

military structure and that appropriate sanctions be imposed on its personnel who used or approved
the use of the now prohibited techniques.’342 Critically then, the right to reparation includes the
obligation to investigate and prosecute those responsible as explained here.343

In parallel with any financial restitution, every effort should be made by States 'to ensure that
necessary legal reforms to avoid repeat cases of breaches of due process are also implemented in a
timely fashion and seen as an essential element of the guarantee of non-recurrence.' Often victims
are strongly motivated to seek justice for non-financial outcomes, in the form of such guarantees as
well as a formal apology.344

6.1.4. Prohibition against torture

Where allegations of torture arise, there are additional legal obligations upon a State. One is that all
State parties to the Convention against Torture are required under Article 4 to ensure that all acts of
torture, as well as attempts to commit torture, are criminalized. The Convention then lists a number
of other measures that States are required to do, aimed largely at preventing impunity and ensuring
that State officials are properly brought to justice for their own criminal acts where appropriate. To
this end, Article 12 requires each State Party to ‘ensure that its competent authorities proceed to a
prompt and impartial investigation, wherever there is reasonable ground to believe that an act of
torture has been committed in any territory under its jurisdiction’. There is also an accompanying
obligation for States to cooperate with each other to this end, such as to extradite or prosecute
accused torturers who are present in any territory under its jurisdiction. (Article 5).

Notably too, since the prohibition against torture is a norm of jus cogens with erga omnes
obligations on the international community, all States are required under international law to
investigate and prosecute any State official on their territory for alleged international crimes such as
torture. Since this international crime attracts universal jurisdiction, it is not necessary to establish
any link between the alleged crime and the investigating State.

6.1.5. Individual criminal responsibility

Individual criminal responsibility can arise too in an armed conflict setting, such as in relation to the
commission of torture which is equally prohibited in that context including under customary
international law. Whether conduct amounts to a war crime will principally depend on the context in
which the detainee was arrested and detained, in addition to the requisite mens rea. The same acts,


342
UN Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the
Covenant, Concluding Observations of the Human Rights Committee on the United States of America,
CCPR/C/USA/CO/3/Rev.1, 18 December 2006.
343
Keenan v UK (n 88) para 132. Article 13 has been held to imply obligations to investigate in, inter alia, cases
of violation of the right to life, Kaya v Turkey (App no 22535/93) ECtHR 28 March 2000; torture and inhuman
and degrading treatment, Aksoy v Turkey (App no 21987/93) (1996) 23 EHRR 533; disappearance in breach of
Article 5, Orhan v Turkey (App no 25656/94) ECtHR 18 June 2002; and destruction of homes and properties in
violation of Article 8, Mentes v Turkey (App no 23186/94) ECtHR 18 November 1997).
344
A/HRC/34/30 para 54.
235

with the requisite mens rea, could also amount to crimes against humanity if committed as part of a
widespread or systematic attack directed against a civilian population.345

In accordance with forms of responsibility recognized in international law, an individual may be


responsible for directly committing crimes, individually, jointly, and through other persons,346 or an
individual may be responsible for indirectly participating in the commission of crimes,347 including by
ordering or aiding and abetting.348 In addition, superiors, whether civilian or military, may also be
held responsible under the doctrine of superior responsibility if they fail to prevent or punish the
criminal acts of subordinates over whom they have effective control.

6.2. Key challenges to securing redress

Despite all of a State's obligations, as just outlined, to prevent the occurrence of international crimes
such as torture and the perpetration of other human rights violations, and to ensure that victims
have appropriate access to effective redress when such violations occur, more often than not victims
of counter-terrorism measures do not receive the compensation, restitution and other forms of
support that they are legally entitled to. This is for a number of primary reasons explained here.

6.2.1. Non-cooperation by States

One of the principal challenges faced by victims of counter-terrorism is that often their ability to
successfully seek an effective remedy against a State is dependent upon whether or not the State(s)
concerned will facilitate their claim, particularly through the provision of evidence of the violations
alleged, e.g. in the context of disclosure of documents during judicial proceedings. Without the
necessary evidence that meets the legal burden of proof (normally beyond reasonable doubt for a
criminal case; on the balance of probabilities in a civil case), it is not possible for victims to seek
reparations in the context of criminal justice proceedings (should any State officials be prosecuted
for the alleged violations, which generally does not occur349) nor to bring a civil action.

Unsurprisingly, States generally resist the disclosure of such information for a number of reasons.
One may be that they deny that the alleged abuses ever took place, which has been true of the
clandestine extraordinary rendition programme of the mid 2000s for which there is evidence


345
See, for example, ICTY cases: Prosecutor v Kordić, Mario Cerkez (Appeal Judgment) IT-95-14/2-A (17
December 2004) para 93; Prosecutor v Tihomir Blaškić (Appeal Judgment) IT-95-14-A (29 July 2004) para 102;
Prosecutor v Dragoljub Kunarac et al (Appeal Judgment) IT-96-23 and IT-96-23/1-A (12 June 2002) para 85.
346
Rome Statute art 25(3)(a).
347
Rome Statute art 25(3)(b).
348
See J Pejic, ‘Armed Conflict and Terrorism: There is a (Big) Difference’ in Ana Salinas de Frías, Katja Samuel,
Nigel White (eds.), Counter-Terrorism: International Law and Practice, (New York: Oxford University Press),
(2012), Chapter 7, for a discussion of individual criminal responsibility arising during armed conflict and Rod
Rastan and Olympia Bekou, ‘Terrorism and Counter-Terrorist Responses: The Role of International Criminal
Jurisdictions’ in Ana Salinas de Frías, Katja Samuel, Nigel White (eds.), Counter-Terrorism: International Law
and Practice, (New York: Oxford University Press), (2012), Chapter 32, for a survey of international criminal law
principles and related jurisprudence.
349
A notable exception is the criminal case brought in Italy regarding Abu Omar's abduction against a number
of national and foreign officials (in absentia). ref
236

suggesting the complicity and involvement of a number of European and non-European States350 -
such as through the provision of secret detention facilities - a number of which continue to formally
deny any such involvement. Even where States undertake internal inquiries or investigations into
such allegations, these are often cloaked in secrecy and any key findings or documentation that
could support a potential claim against a State generally do not find their way to victims as potential
claimants.

Another response by States accused of violations may be to claim the immunity of its officials from
prosecution, even where the allegations concern the breach of jus cogens obligations such as the
commission of torture.351 Arguments have been raised too regarding the extra-territorial application
of certain human rights obligations, such as those sourced in the ICCPR.

6.2.2. "States secrets" privilege

Another significant obstacle faced by victims of counter-terrorism seeking redress has been reliance
upon "State secrets" privilege and national security defences to preclude judicial proceedings, such
as the judicial review of the perpetration of alleged serious abuses.

This was an issue explored by the International Commission of Jurists in its extensive report on
counter-terrorism laws, policies and practices, 'Assessing Damage: Urging Action'. The report
articulated the central issues in the following way:

The need for secrecy cannot excuse these or other grave human rights violations. Yet
the Panel received evidence that intelligence services worldwide effectively enjoy
impunity for human rights violations because of a lack of meaningful civilian
oversight and/or a lack of political will by governments to investigate and prosecute
State agents involved in such abuses. In addition, legal doctrines such as state
secrecy or public interest immunity have been used to foreclose civil suits and hence
remedies to the victims of such abuses.352

This has certainly been the case in cases relating to extraordinary rendition. For example, States
secrets privilege was successfully relied upon in a civil law suit in the US by Khalid El-Masri against
the Central Intelligence Agency resulting in the case being summarily dismissed. Notably, the court
ruled that the protection against disclosure was absolute, including against in camera inspection of
key documents, and did not require the balancing of the need for confidentiality against El-Masri’s
need for the information in order to secure justice.353 El Masri did, however, go on to bring a


350
Second Marty Report paras 25-6.
351
Rasul v Myers 512 F.3d 644, 660 (DC Cir 2008) (Rasul I), vacated Rasul v Myers 129 SCt 763 (2008), aff’d
Rasul v Myers 563 F.3d 527 (DC Cir 2009) (per curiam).
352
ICJ exec report p11, http://www.un.org/en/sc/ctc/specialmeetings/2011/docs/icj/icj-2009-ejp-
execsumm.pdf.
353
El-Masri v United States (n 180) 312. Similarly see Mohamed v Jeppesen Dataplan Inc who went on to
receive an out of court settlement with no accompanying formal recognition of responsibility - ‘Compensation
to Guantanamo Detainees “was necessary”’ BBC News (16 November 2010) <http://www.bbc.co.uk/news/uk-
11769509> accessed 13 March 2011.
237

successful claim for human rights violations at the European Court of Human Rights.354 Similarly, in
the Abu Omar criminal proceedings in Italy regarding his abduction, the Italian Constitutional Court
ruled that the interests of State security took precedence over any other interest, including the
obligation to try crimes. It found that the government enjoyed fully discretionary authority to
establish State secrets, free from all forms of judicial review, and that only the Italian Parliament
could control the exercise of the President’s discretion.355 On this basis, the Constitutional Court
went on to rule as admissible much of the evidence on which the criminal prosecution of State
officials had been premised.

In some countries, where there is no "State secrets" privilege as such, States may try to achieve the
same effect through other means, such as on national security grounds. One UK judge, in legal
proceedings by former Guantanamo Bay detainees against the UK government, captured the
inherent tensions and accompanying duties on the State in the following terms:

First, the rule of law and the democratic requirement that governments be held to account
mean that the case for disclosure will always be very strong in cases involving alleged
misconduct on the part of the state and, secondly, that the more serious the alleged
misconduct on the part of the state, the more compelling the national security reasons must
be to tip the balance against disclosure.356

Additionally, some regional and international courts and tribunals, such as the European Court of
Human Rights, do not recognise any State secret privilege, nor do they defer automatically to States’
own assessments of the need for restrictions on rights in the interests of national security. Instead
they adopt a more nuanced approach to respecting States’ national security concerns. Restrictions
on court proceedings are only considered compatible with requirements for the fairness of
proceedings if they pursue a legitimate aim and there is a reasonable relationship of proportionality
between the means employed and the aim sought to be pursued. In response, especially at the
national level, some States have sought to restrict judicial oversight, e.g. of intelligence gathering
activities including information sharing with third party States.

Case studies: Secret detention sites and extraordinary rendition



Case of El-Masri v. “The former Yugoslav Republic of Macedonia”*

This was the first extraordinary rendition case heard by the European Court of Human Rights.
The case concerned the complaints of a German national of Lebanese origin that he had been
a victim of a secret “rendition” operation during which he was arrested, held in isolation,
questioned and ill-treated in a Skopje hotel for 23 days, then transferred to CIA (Central

354
European Court of Human Rights (Grand Chamber), Case of El-Masri v. The Former Yugoslav Republic of
Macedonia, (Application no. 39630/09), p. 80, para. 5. [case study in module 10?]
355
The only exception recognized by the court was in the case of a ‘subversive act’ which it found Omar’s
rendition did not amount to. See Messineo (n 11) 1039-40.
356
Al Rawi and others (Respondents) (Respondents) v The Security Service and others (Appellants) [2011] UKSC
34, (on appeal from the Court of Appeal (Civil Division) [2010] EWCA Civ 482), p. 59, para. 184,
https://www.supremecourt.uk/decided-cases/docs/UKSC_2010_0107_Judgment.pdf, last accessed 5 October
2017. per Lord Clarke

238

Intelligence Agency) agents who brought him to a secret detention facility in Afghanistan,
where he was further ill-treated for over four months.

The Court of Human Rights found the applicant’s account to be established beyond reasonable
doubt and held that “The former Yugoslav Republic of Macedonia” had been responsible for
his torture and ill-treatment both in the country itself and after his transfer to the United
States authorities in the context of an extra- judicial “rendition”.

Specifically, the Court held that Article 3 ECHR (prohibition of torture and inhuman or
degrading treatment) had been violated in a number of respects due various acts constituting
torture, inhuman and degrading treatment including whilst being held in Skopje, compounded
by the failure of “The former Yugoslav Republic of Macedonia” to carry out an effective
investigation into the applicant’s allegations of ill-treatment thereby further violating Article 3.
Furthermore, Mr El-Masri's transfer into the custody of the United States authorities further
exposed him to the risk of treatment contrary to Article 3.

With respect to Article 5 ECHR (right to liberty and security), the ECtHR held that this right had
been violated on account of the applicant’s detention in the hotel in Skopje for 23 days and of
his subsequent captivity in Afghanistan, as well as on account of the failure to carry out an
effective investigation into his allegations of arbitrary detention.

Lastly, the Court found a violation of Article 8 (right to respect for private and family life) and a
violation of Article 13 (right to an effective remedy) of the Convention.

Similarly, see the subsequent cases of Al Nashiri v. Poland and Husayn (Abu Zubaydah) v.
Poland** Both applicants, suspected of terrorist activities, submitted that they had been held
at a CIA “black site” in Poland, and that the ECHR had been violated through acts of torture, ill-
treatment and secret detention.

Case of Maher Arar:*** [incomplete]

Another example, one of the few, of a victim of extraordinary rendition securing redress is the
case of Maher Arar.

Mr Arar was detained during a layover at John F. Kennedy International Airport in September
2002 on his way home to Canada from a family vacation in Tunis. At first he was held without
charges in solitary confinement in the United States for almost two weeks, questioned, and
denied meaningful access to a lawyer. Suspected of being a member of Al Qaeda, he was
rendered to Syria where he was detained for almost a year. During this period he was regularly
tortured until his release to Canada. The Syrian government would later state that Mr Arar was
"completely innocent".

A Canadian public commission publicly cleared him of any links to terrorism and eventually the
Canadian government reached an out of court settlement with Mr Arar (C$10.5 million

239

compensation plus $1 million for legal expenses357) and gave him a formal apology for Canada's
role in his "terrible ordeal”.358

* Case of El-Masri v. “The former Yugoslav Republic of Macedonia, Application No. 39630/09,
Judgment of 13 December 2012.

** Case of Al Nashiri v Poland, Application No. 28761/11 judgment of 24 July 2014 (final 16
February 2015); and Case of Husayn (Abu Zubaydah) v Poland, Application 7511/13 judgment
of 24 July 2014 (final 16 February 2015).

*** Maher Arar commission

6.3. Accountability and impunity

The issues just explored highlight a broader, recurring theme of concern in relation to counter-
terrorism victims especially (thought it can occur to in relation to victims of terrorist attacks), namely
the challenges of securing adequate levels of governmental accountability and preventing impunity
which deny victims of natural justice. As the Human Rights Council has stated, '[s]trengthening the
rule of law, including through the implementation of appropriate checks and balances, is essential to
ensuring the legality and legitimacy of counter- terrorism measures.'359

As the UN Secretary-General observed in a recent report, ensuring accountability and combating


impunity in the context of counter-terrorism remains problematic. Therefore, he has urged States 'to
ensure accountability for any gross or serious violations of international human rights law and
international humanitarian law, including those that take place in the context of countering
terrorism', with the lack of appropriate levels of accountability remaining a significant source of
concern to UN human rights bodies. In terms of how States are expected to respond to such
allegations, the Secretary-General has stated that 'States should ensure that action is taken so that
violations and abuses are prevented and/or not repeated, to promptly, thoroughly, independently
and impartially investigate allegations of such violations and abuses, to punish perpetrators and to
ensure access to remedy and redress for victims.'360

To this end, many UN bodies and special mandate holders have essentially reiterated the same
message. In reiterating the importance of due process and an effective remedy for victims of human
rights violations, the Human Rights Council recently reemphasized 'the importance of ensuring
access to justice and accountability, including by developing and maintaining effective, fair, humane,
transparent and accountable criminal justice systems, in accordance with applicable international


357
"Harper announces $11.5M compensation for Arar", Canoe News, 26 January 2007, last accessed 5 October
2017; His Year in Hell", CBS NEWS, 21 January 2004, last accessed 5 October 2017.
358
Ian Austen, Canada Reaches Settlement With Torture Victim, The New York Times, 26 January 2007,
http://www.nytimes.com/2007/01/26/world/americas/26cnd-canada.html, last accessed 5 October 2017.
359
A/HRC/34/30 para 57.
360
Protecting human rights and fundamental freedoms while countering terrorism - Report of the Secretary-
General A/72/316 (11 August 2017) https://documents-dds-
ny.un.org/doc/UNDOC/GEN/N17/254/67/PDF/N1725467. pdf?OpenElement para 18.
240

law, as a fundamental basis of any strategy to counter terrorism and violent extremism conducive to
terrorism'.361

Consequently, issues of oversight have been a recurring theme in relation to counter-terrorism


measures. This can take a number of forms, such as judicial proceedings, non-judicial accountability
mechanisms such as robust parliamentary oversight, the existence of effective complaints
mechanisms and so forth. That said, non-judicial mechanisms should never be a replacement for
judicial remedies which should continue to exist. Constant monitoring and regular review is
considered to form an integral element of ensuring that counter-terrorism laws, policies and
practices achieve their goals and that any negative impact on human rights is promptly addressed.

Further reading [incomplete]

eg Helen Duffy book

Ana Salinas de Frías, Katja Samuel, Nigel White (eds.), Counter-Terrorism: International Law
and Practice, (New York: Oxford University Press), (2012) (chapters by Helen Duffy/Steve
Kostas; Jarmo O)

Hussein Solomon, Terrorism and counter Terrorism in Africa, (Palgrave Macmillan), 2015

Ipek Demirsu, Counter-terrorism and the Prospects of Human Rights: Securitizing Difference
and Dissent, (Palgrave Macmillan), (2017).

Kent Roach, Comparative Counter-Terrorism Law, (New York: Cambridge University Press),
(2015).

Michael Morel and Bill Harlow, The Great War of Our Time: The CIA's Fight Against Terrorism-
From al Qa'ida to ISIS, (New York-Boston: Twelve- Hachette Book Group), 2016 ed.

Protecting human rights and fundamental freedoms while countering terrorism - Report of the
Secretary-General A/72/316 (11 August 2017) https://documents-dds-
ny.un.org/doc/UNDOC/GEN/N17/254/67/PDF/N1725467.pdf?OpenElement

Videos: Victims of counter-terrorism

• Council o