20 March 2003
COMMISSION ON HUMAN RIGHTS
Agenda item 11
CIVIL AND POLITICAL RIGHTS
Protecting human rights and fundamental freedoms
while countering terrorism
Report of the Secretary-General on implementation of
General Assembly resolution 57/219
1. The present report is submitted pursuant to General Assembly resolution 57/219 of 18 December 2002, “Protecting human rights and fundamental freedoms while countering terrorism”, in which the Assembly requested the Secretary-General to submit a report on its implementation to the Commission on Human Rights at its fifty-ninth session and to the General Assembly at its fifty-eighth session.
2. In resolution 57/219 the Assembly affirmed that States must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular international human rights, refugee and humanitarian law; encouraged States to take into account relevant United Nations resolutions and decisions on protecting human rights while countering terrorism, and encouraged them to consider the recommendations of the special procedures and mechanisms of the Commission on Human Rights and the relevant comments and views of United Nations treaty bodies; and requested the United Nations High Commissioner for Human Rights, making use of existing mechanisms:
(a) To examine the question of protecting human rights and fundamental freedoms while countering terrorism, taking into account reliable information from all relevant sources, including Governments and international and non-governmental organizations;
(b) To make general recommendations concerning the obligation of States to promote and protect human rights and fundamental freedoms while taking actions to counter terrorism;
(c) To provide assistance and advice to States upon their request, as well as to United Nations bodies, on the protection of human rights and fundamental freedoms while countering terrorism.
3. As a preliminary step, the High Commissioner for Human Rights has sent letters to a wide range of sources, requesting information relevant to their efforts to ensure protection of human rights and fundamental freedoms while countering terrorism. The sources addressed include Member States, regional organizations, non-governmental organizations, and United Nations departments and agencies. The information received will be reviewed and will form part of the basis of my report to the General Assembly at its fifty-eighth session on implementation of resolution 57/219.
I. United Nations Action To Date
4. The issue of the protection of human rights and fundamental freedoms while countering terrorism remains a matter of great concern to the United Nations. In remarks to a high-level debate of the Security Council on counter-terrorism, on 20 January 2003, I stated:
“[W]e must never lose sight of the fact that any sacrifice of freedom or the rule of law within States - or any generation of new tensions between States in the name of anti-terrorism - is to hand the terrorists a victory that no act of theirs alone could possibly bring. Even as many are rightly praising the unity and the resolve of the international community in this crucial struggle, important and urgent questions are being asked about what might be called the ‘collateral damage’ of the war on terrorism - damage to the presumption of innocence, to precious human rights, to the rule of law, and to the very fabric of democratic governance.”
5. The High Commissioner for Human Rights has placed great emphasis on the need to respect human rights while countering terrorism in his bilateral discussions with Member States. In particular, he has underlined the principle that any exceptional measures taken to counter terrorism must be subject to strict limitations, including that they be transparent, necessary, time-limited and otherwise strictly proportional to the exigencies of the situation. The High Commissioner has also continued to call attention to certain human rights protections which are non-derogable under any circumstances, including states of emergency. These include (but are not limited to) the right to life; the prohibition against torture or cruel, inhuman or degrading punishment; the principle of legality in the field of criminal law (requiring that criminal liability be strictly subject to precise provisions in the law applicable at the time the act or omission took place, except where a later law imposes a lighter penalty); the recognition of everyone as a person before the law; and freedom of thought, conscience and religion.
6. The High Commissioner has established a useful dialogue with the Counter-Terrorism Committee of the Security Council and will maintain it, pursuant to the provisions of resolution 57/219. The High Commissioner briefed CTC on 21 October 2002 and proposed that his Office continue to provide CTC with information pertinent to the implementation of Security Council resolution 1373 (2001), highlighting its implications for human rights, for example by providing advice on appropriate standards and principles and notifying CTC of the relevant findings of the United Nations human rights mechanisms. The High Commissioner recommended in particular that CTC strengthen its links with the Human Rights Committee, responsible for monitoring State compliance with the International Covenant on Civil and Political Rights. In this connection, OHCHR and CTC are arranging reciprocal briefings between the Human Rights Committee and CTC in March and April 2003.
7. An additional important initiative on this issue was the establishment in October 2001 of the Secretary-General’s Policy Working Group on the United Nations and Terrorism, and in particular, the subgroup on human rights. The subgroup, chaired by the Deputy High Commissioner for Human Rights, was tasked with developing background information and making recommendations on the question of terrorism and human rights. In its report to the Policy Working Group submitted in April 2002, the subgroup reviewed key pronouncements of the Security Council and regional bodies on the issue of human rights and terrorism. While reiterating the obligation of States to take vigorous measures to ensure the security of their populations, the report also reviewed the limitations on State action set by international human rights standards and their interpretation by United Nations treaty bodies, the European Court of Human Rights, the Inter-American Court of Human Rights and other bodies.
8. In its report (A/57/273, annex - S/2002/875, annex), the Policy Working Group recommended that the United Nations High Commissioner for Human Rights should convene a consultation of international, regional and subregional organizations and non-governmental organizations on the protection of human rights in the struggle against terrorism. It proposed that the United Nations Department of Public Information be requested, in consultation with OHCHR, to publish a digest of the core jurisprudence of international and regional human rights bodies on the protection of human rights in the struggle against terrorism. It recommended that OHCHR make maximum use of its field presences and its regional experts, as well as the findings of the human rights treaty bodies and special rapporteurs, in its examination of this issue. Finally, the Policy Working Group proposed that the High Commissioner for Human Rights maintain his dialogue with the Security Council’s Counter-Terrorism Committee on the importance of ensuring respect for human rights in the implementation of legislation, policies and practices to combat terrorism. All of these proposals, currently in the process of implementation, are consistent with the provisions of General Assembly resolution 57/219.
9. The existing human rights mechanisms of the United Nations continue to consider human rights aspects of counter-terrorism measures, a process which has been reinforced since 11 September 2001. The Human Rights Committee, the Committee against Torture and the Committee on the Elimination of Racial Discrimination have all recently produced findings on aspects of counter-terrorism measures taken by a number of Member States. These findings supplement the extensive body of jurisprudence on the issue previously developed by the human rights treaty bodies.
10. A number of special procedures, including the Special Rapporteurs on torture, the independence of judges and lawyers, and contemporary forms of racism, racial discrimination, xenophobia and related intolerance have examined the question of human rights and counter-terrorism measures and addressed aspects of it in reports to the Commission on Human Rights and the General Assembly. In addition, the Sub-Commission on the Promotion and Protection of Human Rights continued to study the subject of terrorism and human rights and to consult on the issue with relevant United Nations bodies.
II. Future Activities
11. OHCHR will maintain an active profile on the issue of human rights and counter-terrorism measures, in furtherance of resolution 57/219. OHCHR is strengthening its capacity in this area, particularly with regard to its ability to assess counter-terrorism policies and practices from a human rights perspective, taking into account reliable information from all relevant sources, and to propose strategies in its technical cooperation programme to assist States, upon their request, in protecting human rights in their efforts against terrorism.
12. On the basis of all the foregoing, I will submit a more comprehensive report on implementation of resolution 57/219 to the General Assembly at its fifty-eighth session.
13. The necessity of ensuring respect for human rights in the international campaign to eliminate the practice and threat of terrorism will continue to be emphasized, consistent with the provisions of General Assembly resolution 57/219. As reflected in the Charter of the United Nations, the Organization has an important dual role to serve in this respect - that of promoting the maintenance of international peace and security while also seeking to achieve international cooperation in encouraging respect for the human rights and fundamental freedoms of all.
14. Initiatives already taken to promote exchanges of views and information on this issue will be maintained. The dialogue which has been established between the Counter-Terrorism Committee of the Security Council and OHCHR will be further built upon in the time ahead. The United Nations will develop further the dialogue which has been initiated within the United Nations system and with regional and non-governmental partners, as well as Member States, in order to better implement resolution 57/219.
** In accordance with General Assembly resolution 53/208 B, paragraph 8, this document is submitted late so as to include the most up-to-date information possible.