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Legal Commentary to the ICJ Berlin Declaration Human Rights and Rule of Law Series: No

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Legal Commentary to the ICJ Berlin Declaration Human Rights and Rule of Law Series: No Legal Commentary the ICJ Berlin to Declaration Terrorism is a serious threat to human rights. Yet global counter-terrorism measures have stretched to the limit, and broken, the most basic principles of the rule of law and interna- LEGAL COMMENTARY TO THE tional law, especially international human rights law and international humanitarian law. In the name of national security and the fight against terrorism, many governments try to justify the use of torture, enforced disappearance, secret detentions, extrajudicial execu- ICJ BERLIN DECLARATION tions and indiscriminate killing of civilians. The ICJ condemns terrorism and reaffirms that all states have an obligation to take effec- tive measures against acts of terrorism. However, from long experience, the ICJ sees no conflict between the international legal duty of states to protect people threatened by ter- COUNTER-TERRORISM, HUMAN RIGHTS AND THE RULE OF LAW rorism and their responsibility to uphold the rule of law and human rights. On the contrary, both duties form part of a seamless web of protection incumbent upon States. Human rights law has been crafted by States and already gives governments a reasonable margin of flexibility to combat terrorism without contravening human rights and humanitarian legal obligations. In August 2004 the ICJ brought its network of jurists from around the world to Berlin, for the 2004 Biennial Conference. The meeting concluded with the 160 jurists adopting the ICJ Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism (Berlin Declaration). The 11 succinct principles of the Berlin Declaration set out the legal Law of Rights 1 Series: No. Human Rule and norms that should guide the counter-terrorism measures of every State. This Legal Commentary to the Berlin Declaration, explains the international law, jurisprudence and expert interpretations that underlie the Berlin Declaration. It explains what the principles mean in practice and what international legal standards apply. “The Berlin Declaration should be displayed in every judges' chambers and law office worldwide”. —Mary Robinson, Former President of Ireland International Commission of Jurists P.O. Box 91 33 Rue des Bains CH-1211 Geneva 8 Switzerland HUMAN RIGHTS AND RULE OF LAW SERIES: N0. 1 ISBN 978-92-9037-126-7 Legal Commentary the ICJ Berlin to Declaration Terrorism is a serious threat to human rights. Yet global counter-terrorism measures have stretched to the limit, and broken, the most basic principles of the rule of law and interna- LEGAL COMMENTARY TO THE tional law, especially international human rights law and international humanitarian law. In the name of national security and the fight against terrorism, many governments try to justify the use of torture, enforced disappearance, secret detentions, extrajudicial execu- ICJ BERLIN DECLARATION tions and indiscriminate killing of civilians. The ICJ condemns terrorism and reaffirms that all states have an obligation to take effec- tive measures against acts of terrorism. However, from long experience, the ICJ sees no conflict between the international legal duty of states to protect people threatened by ter- COUNTER-TERRORISM, HUMAN RIGHTS AND THE RULE OF LAW rorism and their responsibility to uphold the rule of law and human rights. On the contrary, both duties form part of a seamless web of protection incumbent upon States. Human rights law has been crafted by States and already gives governments a reasonable margin of flexibility to combat terrorism without contravening human rights and humanitarian legal obligations. In August 2004 the ICJ brought its network of jurists from around the world to Berlin, for the 2004 Biennial Conference. The meeting concluded with the 160 jurists adopting the ICJ Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism (Berlin Declaration). The 11 succinct principles of the Berlin Declaration set out the legal Law of Rights 1 Series: No. Human Rule and norms that should guide the counter-terrorism measures of every State. This Legal Commentary to the Berlin Declaration, explains the international law, jurisprudence and expert interpretations that underlie the Berlin Declaration. It explains what the principles mean in practice and what international legal standards apply. “The Berlin Declaration should be displayed in every judges' chambers and law office worldwide”. —Mary Robinson, Former President of Ireland International Commission of Jurists P.O. Box 91 33 Rue des Bains CH-1211 Geneva 8 Switzerland HUMAN RIGHTS AND RULE OF LAW SERIES: N0. 1 ISBN 978-92-9037-126-7 International Commission of Jurists President The International Commission of Jurists (ICJ) is a non-governmental organization Justice Arthur CHASKALSON, South Africa devoted to promoting the understanding and observance of the rule of law and the Vice-Presidents legal protection of human rights throughout the world. It is headquartered in Geneva, Switzerland, and has 85 national sections and affi liated organizations. It enjoys Prof. Jochen A. FROwEIN, Germany Prof. Leila ZERROuGuI, Algeria consultative status in the united Nations Economic and Social Council, uNESCO, the executive Committee Council of Europe and the Organization of African unity. The ICJ maintains coopera- Justice Ian BINNIE, Canada Justice John DOwD, Australia (Chairperson) tive relations with various bodies of the Organization of American States. Dr. Rajeev DHAVAN, India Dr. Gustavo GALLÓN GIRALDO, Colombia Prof. Vojin DIMITRIJEVIC, Serbia Mr Stellan GÄRDE, Sweden Prof. Louise DOSwALD-BECK, Switzerland Mr Raji SOuRANI, Palestine Justice unity DOw, Botswana other Commission Members Mr Raja AZIZ ADDRuSE, Malaysia Ms Gladys Veronica LI, Hong Kong Prof. Abdullahi AN-NA’IM, Sudan Mr Kathurima M’INOTI, Kenya Justice Solomy BALuNGI BOSSA, uganda Ms Karinna MOSKALENKO, Russia Ambassador Julio BARBOZA, Argentina Prof. Vitit MuNTARBHORN, Thailand Prof. Alexander BRÖSTL, Slovakia Dr. Pedro NIKKEN, Venezuela Ms Christine CHANET, France Prof. Manfred NOwAK, Austria Ms Vera DuARTE, Cape-Verde Prof. Andrei RICHTER, Russia Prof. Paula ESCARAMEIA, Portugal Justice Michèle RIVET, Canada Justice Elisabeth EVATT, Australia Dr. Mary ROBINSON, Ireland Prof. Ruth GAVISON, Israel Sir Nigel RODLEY, united Kingdom Prof. Jenny E. GOLDSCHMIDT, Netherlands Justice A.K.M. SADEQuE, Bangladesh Lord william GOODHART, united Kingdom Mr Claes SANDGREN, Sweden Ms Asma JAHANGIR, Pakistan Mr Jerome SHESTACK, u.S.A. Ms Imrana JALAL, Fiji Dr. Hipolito SOLARI YRIGOYEN, Argentina Prof. David KRETZMER, Israel Prof. Daniel THÜRER, Switzerland Prof. Kazimierz Maria LANKOSZ, Poland P.O. Box 91 honourary Members 33 Rue des Bains Arturo A. ALAFRIZ, The Philippines Justice Claire L’HEuREuX-DuBÉ, Canada CH-1211 Geneva 8 P.N. BHAGwATI, India Dr. Rudolf MACHACEK, Austria Switzerland Dr. Boutros BOuTROS-GHALI, Egypt Prof. Daniel H. MARCHAND, France E-mail: [email protected] Mr. william J. BuTLER, united States Mr. Norman S. MARSCH, united Kingdom www.icj.org Prof. Antonio CASSESE, Italy Mr. J.R.w.S.MAwALLA, Tanzania Dato’ Param CuMARASwAMY, Malaysia Mr. Keba M’BAYE, Senegal Dr. Dalmo A. DE ABREu DALLARI, Brazil Mr. François-Xavier MBOuYOM, Cameroon Prof. Alfredo ETCHEBERRY, Chile Mr. Fali S. NARIMAN, India Mr. Desmond FERNANDO, Sri Lanka Sir Shridath S. RAMPHAL, Guyana Mr. P. Telford GEORGES, Bahamas Mr. Bertrand RAMCHARAN, Guyana Justice Lennart GROLL, Sweden Dr. Joaquín RuIZ-GIMÉNEZ, Spain Prof. Hans-Heinrich JESCHECK, Germany Prof. Christian TOMuSCHAT, Germany Prof. P.J.G. KAPTEYN, The Netherlands Mr. Michael A. TRIANTAFYLLIDES, Cyprus Justice Michael D. KIRBY, AC, CMG, Australia Prof. Theo VAN BOVEN, The Netherlands Prof. Kofi KuMADO, Ghana Dr. José ZALAQuETT, Chile Dr. Jean Flavien LALIVE, Switzerland International Commission of Jurists President The International Commission of Jurists (ICJ) is a non-governmental organization Justice Arthur CHASKALSON, South Africa devoted to promoting the understanding and observance of the rule of law and the Vice-Presidents legal protection of human rights throughout the world. It is headquartered in Geneva, Switzerland, and has 85 national sections and affi liated organizations. It enjoys Prof. Jochen A. FROwEIN, Germany Prof. Leila ZERROuGuI, Algeria consultative status in the united Nations Economic and Social Council, uNESCO, the executive Committee Council of Europe and the Organization of African unity. The ICJ maintains coopera- Justice Ian BINNIE, Canada Justice John DOwD, Australia (Chairperson) tive relations with various bodies of the Organization of American States. Dr. Rajeev DHAVAN, India Dr. Gustavo GALLÓN GIRALDO, Colombia Prof. Vojin DIMITRIJEVIC, Serbia Mr Stellan GÄRDE, Sweden Prof. Louise DOSwALD-BECK, Switzerland Mr Raji SOuRANI, Palestine Justice unity DOw, Botswana other Commission Members Mr Raja AZIZ ADDRuSE, Malaysia Ms Gladys Veronica LI, Hong Kong Prof. Abdullahi AN-NA’IM, Sudan Mr Kathurima M’INOTI, Kenya Justice Solomy BALuNGI BOSSA, uganda Ms Karinna MOSKALENKO, Russia Ambassador Julio BARBOZA, Argentina Prof. Vitit MuNTARBHORN, Thailand Prof. Alexander BRÖSTL, Slovakia Dr. Pedro NIKKEN, Venezuela Ms Christine CHANET, France Prof. Manfred NOwAK, Austria Ms Vera DuARTE, Cape-Verde Prof. Andrei RICHTER, Russia Prof. Paula ESCARAMEIA, Portugal Justice Michèle RIVET, Canada Justice Elisabeth EVATT, Australia Dr. Mary ROBINSON, Ireland Prof. Ruth GAVISON, Israel Sir Nigel RODLEY, united Kingdom Prof. Jenny E. GOLDSCHMIDT, Netherlands Justice A.K.M. SADEQuE, Bangladesh Lord william GOODHART, united
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