BALANCING HUMAN RIGHTS: INTERNATIONAL LEGAL RESPONSES TO TERRORISM IN THE WAKE OF SEPTEMBER 11

Israel Yearbook on Human Rights

Volumn 33, Issue , 2003, Pages 63-83

  Aoldin, Fionnuala Ni ^a,b  

^a UNIVERSITY OF ULSTER   (United Kingdom)

^b UNIVERSITY OF MINNESOTA LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 85175036660     PISSN: 03335925     EISSN: None     Source Type: Book Series    
DOI: 10.1163/9789047413134_005     Document Type: Chapter

References (52)

1. The Framework Decision was adopted on June 13, 2002 and came into effect on 23 June 2002. Support for UN instruments forms a key element of the Plan of Action adopted by the special European Council meeting of 21 Sept. 2001.
2. C. Campbell & I. Connolly, "A Model for the 'War Against Terrorism'?: Military Intervention in Northern Ireland and the 1970 Falls Curfew", 30 J.L. & Soc'y 341-75 (2003).
3. See P. C. Szasz, "The Security Council Starts Legislating", 96 Am. JInt'L L. 901 (2002). (This article identifies the unusual legislative character of 1373, and also specifically notes that many conventions languishing for a want of State ratification suddenly have the force of international law).
4. Until then the Sixth Committee had been working on several conventions related to terrorism. See E. Rosand, "Security Council Resolution 1373, The Counter-Terrorism Committee, and the Fight Against Terrorism", 97 Am. J Int'l L. 333-41 (2003).
5. Conventions drafted by the Sixth Committee include the International Convention for the Suppression of Terrorist Bombings, G.A. Res. 52/164 (1997), 37 LL.M. 249 (1998);
6. the International Convention for the Suppression of the Financing of Terrorism, G.A. Res. 54/109 (1999), 39 I.L.M. 270 (2000).
7. See International Helsinki Federation for Human Rights, Anti-Terrorism Measures, Security and Human Rights 41-42 (2003).
8. See International Helsinki Federation for Human Rights, Anti-Terrorism Measures, Security and Human Rights 41-42 (2003), 42.
9. Para. 3(f): "Take appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights,... of ensuring that the asylum-seeker has not planned, facilitated or participated in the commission of terrorist acts".
10. See: http://www.ukun.org/xq/asp/SarticleType.17/ArticleID.549/qx/articlesshow.htm
11. See Amnesty International's Al Index IOR 41/007/2002 22/03/2002, A Human Rights Framework for Respondingto Terrorism.See also: http://www.un.org.Docs/sc/committees/1373/, Briefings, 24 Sept. 2002.
12. Office of the High Commissioner, "Proposals for 'further guidance' for the submission of reports pursuant to paragraph 6 of the S.C. Res. 1373 (2001): Compliance with International Human Rights Standards (2001)"; Notably in this context, the web page of the CTC while referencing in its directory section information on best practice in relation to fight against terrorism makes no cross reference whatsoever on applicable human rights' norms.
13. See: ww'w.ohchr.org. A Digest of Jurisprudence on Terrorism (28 July, 2003).
14. See: ww'w.ohchr.org. A Digest of Jurisprudence on Terrorism (28 July, 2003), 6.
15. " E/CN.4/2002SR.1, 25 Mar. 2002.
16. See Statement by M. Robinson to the 58th Session of the Commission on Human Rights, 20 Mar. 2002.
17. Annex to A/57/273. In this context see Recommendation 1550 (2002) of the Council of Europe's Guidelines on Human Rights and the Fight Against Terrorism, as adopted by the Council of Ministers in July 2002;
18. See also Parliamentary Assembly on Combating Terrorism and Respect for Human Rights Assembly Debate on 24 Jan. 2002; Rep. of the Committee on Legal Affairs and Human Rights.
19. A/57/273, at 1.
20. International Helsinki Federation, supra note 5, at 44-45.
21. See J. Fitzpatrick, "Jurisdiction of Military Commissions and the Ambiguous War on Terrorism", 96 Am. J Int'l. L. 345 (2002);
22. Antiterrorism Policy: Hearing before the Senate Comm. On the Judiciary, 107th Cong. (Dec. 6, 2001) (testimony of Att. Gen. J. Ashcroft).
23. See e.g. Greek Case, [1969] YB. Eur. Cony. Hum. Rts. I (Eur. Comm'n Hum. Rts.);
24. Judicial Guarantees in a State of Emergency, 9 Inter-Am. Ct. Hum. Rts. (Ser. A), at 24;
25. Rep. of the Human Rights Committee, U.N. GAOR, 37th Sess., Supp. No 40, Annex XI, at 137, U.N. Doc. A/37/40 (1982) (Camargo de Guerro v. Colombia, Communication No. R.11/45).
26. European Convention on Human Rights, Art. 15 lists Art. 2 (Life), Art. 3 (Freedom from Torture), Art. 3, 4 (para. 1) (Slavery) and Art. 7 (Ex Post Facto Laws). The Inter-American Convention is more wide-ranging and lists Art. 3 (Right to Juridical Personality), Art. 4 (Right of Life), Art. 5 (Right to Humane Treatment), Art. 6 (Freedom from Slavery), Art. 9 (Freedom from ex-post facto Laws), Art. 12 (Freedom of Conscience and Religion), Art. 17 (Rights of the Family), Art. 18 (Right to a Name), Art. 19 (Rights of the Child), Art. 20 (Right to a Nationality) and Art. 23 (Right to Participate in Government), or of the judicial guarantees essential for the protection of such rights.
27. See E.U. Network of Independent Experts in Fundamental Rights, The Balance Between Freedom and Security in the Response by the European Union andits Member States to the Terrorist Threats 13 (Mar. 2003).
28. See e.g. Criminal Justice (Terrorist Offences) Bill, 2002 (Ireland);
29. and the Anti-terrorism, Crime and Security Act 2001 (UK).
30. The areas included asylum policy, rules governing the crossing of Member States/borders, judicial co-operation in civil matters, judicial co-operation in criminal matters, customs co-operation, and police co-operation in the area of terrorism, unlawful drug trafficking and other serious forms of international crime.
31. Art. 29.
32. See E.U. Network of Independent Experts in Fundamental Rights, supra note 21, at 9.
33. O. L. 344 of 28/12/2001, at 90. This common position was largely based on Security Council Res. 1373.
34. However, a substantial difference between the two is that while Res. 1373 holds that "States" are obliged to refrain from supporting "entities or persons involved in terrorist acts", Art. 4 of the EU's common position is worded to require member States to prevent "the public" from offering "any form of support, active or passive" to such persons or entities. The EU definition fails to distinguish between individuals who consciously assist those involved in terrorist acts and those who simply share the same goals as the "terrorist" but who do not pursue these goals by violent means. See: http://wwxv.statewatch.org/news/2002/jan/02euter.htm
35. L. 344 of 28/12/2001, at 93.
36. O.J. L. 344 of 28/12/2001, at 70. Other measures adopted included Decision 2001/927/EC of 27 Dec. 2001 implementing a requirement of Council Regulation 2580/2001. Common positions adopted by the "written procedure" are facilitated by Art. 15 of the Treaty on European Union, and are binding on all EU Member States.
37. Their formal adoption was delayed by national parliamentary scrutiny reserves.
38. COM (2001) 521 final du 19 Sept. 2001.
39. E.U. Network of Independent Experts in Fundamental Rights, supra note 21, at 7.
40. Art. I of the Framework Decision.
41. In this context it is important to note the Guidelines of the Committee of Ministers of the Council of Europe on human rights and the fight against terrorism, 804th meeting of Delegates, 11 July 2002, Principle III (Legality of Anti-Terrorist Measures).
42. Unfortunately some States which have legislated on the basis of the Framework Decision have failed to incorporate even this additional distinction. The Irish Criminal Justice Bill (2002) made no attempts to distinguish between a legitimate right to demonstrate and the application of these measures to groups whose protest actions may bring them within the ambit of "terrorist" action.
43. The Schengen Information System (SIS) went online in Mar. 1995.
44. E.U. Network of Independent Experts in Fundamental Rights, supra note 21, at 12-16.
45. Supranote 5, at 17-19.
46. The case par excellence of this is the status of prisoners held at Guantanamo Bay and inside Afghanistan by the United States.
47. See the statement of the High Commissioner for Refugees, R. Lubbers (Oct. 2001) to the 58th U.N. Hum. Rts. Comm'n reiterating that refugee and asylum seekers should not be discriminated against because their ethnicity, religion, national origin and political affiliation are perceived by some to be linked to terrorism; and Concluding Remarks of the Committee on the Elimination of Racial Discrimination in relation to Denmark (21/05/02), at para 16. http://wwwl.umn.edu/humanrts/country/dennark2002.html
48. Letter from President G. Bush to European Commission President Prodi, 16 Oct. 2001.
49. See Bozano v. France (1987), 9 E.H.R.R. 297. Breach of the European Convention on Human Rights to use expulsion as "disguised" extradition proceedings. See generallyon current developments Amnesty International, "The Backlash - Human Rights at Risk Throughout the World". ACT 30/027/2001.
50. A and Others v. Secretary of State for the Home Dept. (25 Oct. 2002).
51. In this context it is useful to note the letter sent to the Eur. Comm'n (16/10/01) by the US President Mr. Bush, which contained more than 40 demands to the EU for co-operation on anti-terrorism measures.
52. See T. Bunyan, "The 'War on Freedom and Democracy' - an Analysis of the Effects on Civil Liberties and Democratic Culture", EU Statewatch.