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BACKGROUND

The Security Council’s Counter-Terrorism Effort

U.N. Secretary General Kofi Annan has repeatedly warned against making human rights yet another victim of terrorism. During the first open debate of the Security Council on counter terrorism in January 2002, he told the Security Council to “make sure that the [counter-terrorism] measures you adopt do not unduly curtail human rights, or give others a pretext to do so.” Speaking at an open debate of the CTC in October that year, he said that “to pursue security at the expense of human rights is short-sighted, self-contradictory, and, in the long run, self-defeating.” And in the very first paragraph of his 2002 report on the work of the organization, he stated “I firmly believe that the terrorist menace must be suppressed, but States must ensure that counter-terrorist measures do not violate human rights.”  To date, this counsel has not been heeded.

In late September 2001, in response to the terrorist attacks on the United States on September 11, the U.N. Security Council passed Resolution 1373.⁴  It is an unusual document because it is the first Chapter VII resolution that applies to the entire U.N. membership.  The resolution requires tough criminal, financial, and administrative measures aimed at individuals and entities considered supportive of or involved in terrorism. 

Resolution 1373 requires states, among other things, to prevent and suppress the financing of terrorist acts by the adoption and enforcement of very strict legal and financial measures;  to refrain from providing any form of support to those engaged in terrorism; to establish terrorist acts as serious criminal offences in domestic law, with commensurably serious punishment; and to take measures before granting refugee status to ensure that the asylum seeker has not planned, facilitated or participated in the commission of terrorist acts. 

The CTC was established under Resolution 1373 to monitor its implementation, and to increase the capability of states to fight terrorism.  It consists of all members of the Security Council.⁵  Resolution 1373 required all governments to report to the CTC within 90 days of the adoption of the resolution explaining what steps they had taken to implement the resolution, with subsequent reporting according to a timetable set out by the CTC.⁶  

Resolution 1373 itself makes no positive reference to member states’ obligations to respect international human rights, humanitarian and refugee law. The human rights deficit was addressed in Security Council Resolution 1456 of January 20, 2003, which requires states to “ensure that any measure taken to combat terrorism comply with all their obligations under international law and [that they] adopt such measures in compliance with international law, in particular international human rights, refugee and humanitarian law.” This represents an important commitment and a step forward, but the CTC has so far failed to actively promote states’ compliance with international human rights standards.

In March 2004 the Security Council provided additional institutional support for its counter-terrorism efforts through creation of the Counter-Terrorism Executive Directorate (CTED).⁷  The first Executive Director of the CTED took up his post only at the end of June, however. In the meantime, the CTC has continued to have at its disposal a corps of experts, established shortly after the CTC’s inception, who provide guidance to the CTC on analyzing technical aspects of states’ reports and who prepare draft responses.⁸   

The CTC and Human Rights: Existing Arrangements

Members of the CTC have at times been unsympathetic to the notion that the CTC should pay attention to the human rights dimensions of the campaign against terrorism. On March 6, 2003, for example, the then chairman of the CTC, U.K. Ambassador Sir Jeremy Greenstock, reminded a special meeting of the CTC that while the CTC did not ask states to do anything incompatible with their human rights obligations, monitoring such obligations was not the responsibility of the committee.  Earlier, on January 18, 2002, Ambassador Greenstock said in a public meeting of the Security Council that it was “open to other organizations to study States’ reports and take up their content in other forums.”⁹  Several member states of the CTC have echoed these views in statements since the formation of the CTC.

Other U.N. officials and experts, however, have raised serious concerns about the CTC’s reluctance to address human rights.  Immediately after passage of Resolution 1373, for example, then High Commissioner for Human Rights Mary Robinson expressed concerns about the possible impact of the resolution on human rights worldwide. In late 2001, she suggested that it would be useful to provide guidance to states to ensure that misapplication of the resolution did not result in human rights violations. Her office then prepared such a document, hoping that it would become an official CTC document and that it would be circulated to all member states. The paper focused on the legality of counter-terrorism measures, dealing with issues such as non-derogability, non-discrimination, the right to seek asylum and non-refoulement, and due process.  This guidance was posted on the CTC website, as the high commissioner had recommended, but the CTC declined to make it an official document and circulate it to all member states.

The next high commissioner, the late Sergio Vieira de Mello, met with CTC members on October 21, 2002 and raised concerns about the possibilities for abuse inherent in broadly worded anti-terrorism laws as well as in decisions to fight terrorism outside the confines of the rule of law.  Among other things, he reiterated a recommendation of his predecessor that the CTC appoint a human rights adviser.¹⁰

On July 12, 2004, in one of her very first statements, the new High Commissioner for Human Rights Louise Arbour emphasized the need to reconcile the struggle against terrorism with respect for fundamental human rights standards. She recalled that one of the last judgments of the Supreme Court of Canada in which she participated addressed an aspect of this issue and concluded that the successful protection of citizens and the successful protection of their rights are not only compatible with each other but are, indeed, interdependent and that there can be no genuine personal security if rights are in peril.¹¹

In other parts of the U.N. system the threat that some governments’ counter-terrorism efforts present to human rights is also well recognized: in June 2003 Sir Nigel Rodley, a member of the U.N. Human Rights Committee and former Special Rapporteur on Torture, appeared before the CTC to remind the committee that Resolutions 1373 and 1456 must be taken together to ensure that Resolution 1373 did not become “an instrument for circumventing states’ human rights obligations.” Rodley stressed the desirability for the CTC to pose questions to member states on the human rights dimensions of their reports.¹²

These appeals have a sound foundation. While it is true that there are other U.N. organs dedicated to human rights monitoring and promotion, they lack the resources and clout of the Security Council, which can call for reporting by all U.N. member states (rather than signatories of certain treaties in certain years), and which is best placed to insist on sustained attention to the human rights consequences of counter-terrorism measures. Almost one quarter of U.N. member states are not party to the International Covenant on Civil and Political Rights (ICCPR), for example, and almost a third are not party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

As noted above, the strongest rights commitment by the CTC to date has been the commitment to establish regular liaison between the CTED and the Office of the High Commissioner for Human Rights (OHCHR).¹³  This would supplement the existing dialogue between the CTC and OHCHR through meetings and exchanges of information between staff, while the Chair of the CTC receives from OHCHR regular updates on counter-terrorism findings by the U.N. human rights bodies. 

For reasons detailed in this paper, Human Rights Watch believes that such arrangements to cross-reference the work of the CTC and U.N. human rights bodies, though important, are not sufficient.