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Countering Terrorism, Protecting Human Rights: a Manual

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Countering Terrorism, Protecting Human Rights: a Manual Countering Terrorism, CounteringProtecting Terrorism, Human Rights Protecting HumanA Manual Rights A Manual ODIHR Published by the OSCE Office for Democratic Institutions and Human Rights (ODIHR) Al. Ujazdowskie 19 00-557 Warsaw Poland www.osce.org/odihr © OSCE/ODIHR 2007 ISBN 83-60190-49-6 All rights reserved. The contents of this publication may be freely used and copied for educational and other non-commercial purposes, provided that any such reproduction is accompanied by an acknowledgement of the OSCE/ODIHR as the source. Designed by Nona Reuter Cover photo by Curtis Budden Printed in Poland by Agencja Karo The publication of this manual was made possible thanks to the generous contribution of the Government of Canada. Countering Terrorism, Protecting Human Rights A Manual Acknowledgements This manual was written by Jonathan Cooper, OBE, of Doughty Street Chambers, London, with editing by Peter Eicher. The ODIHR is grateful for feedback received from the UN Office on Drugs and Crime -(UN ODC), UN Office of the High Commissioner for Human Rights (UN OHCHR), Council of Europe, European Commission, Commonwealth Secretariat, as well as the OSCE High Commissioner for National Minorities, OSCE Representative on Freedom of the Media and the OSCE Anti-Terrorism Unit. 4 Contents List of Abbreviations and Acronyms 12 Foreword 13 Introduction 15 How this manual works 16 Sources of human rights within the manual 17 Part I: Introduction to the international framework to counter terrorism and protect human rights 19 CHAPTER 1 Human rights and counter-terrorism: the essential relationship 20 What is terrorism? 22 The draft Comprehensive Convention on Terrorism 23 Other matters related to defining terrorism 24 Conditions conducive to terrorism and terrorism’s root causes 25 CHAPTER 2 Protecting the rights of victims of terrorist attacks 27 CHAPTER 3 Counter-terrorism, human rights, good governance and good administration 30 What is good governance? 30 Good governance as efficient decision making: guiding principles 32 Procedure 32 Review 32 Civilian oversight 33 CHAPTER 4 The international framework to combat terrorism: an overview 34 The current legal framework 30 The role of human rights at the Counter-terrorism Committee 36 Human rights and counter-terrorism at the UN 37 Regional approaches to counter-terrorism 39 Organization for Security and Co-operation in Europe 39 Council of Europe 40 European Union 41 CHAPTER 5 The international framework to promote and protect human rights: an overview 43 The United Nations and the birth of the universal human rights system 43 The Universal Declaration of Human Rights 43 The human rights covenants 44 Human rights treaties on specific issues 46 Additional UN mechanisms to protect and promote human rights 46 Regional human rights instruments 48 The OSCE human dimension 48 The human dimension mechanism 49 OSCE institutions with relevance to the human dimension 50 5 Council of Europe 50 Council of Europe framework 50 The European Convention for the Protection of Fundamental Rights and Freedoms 51 Procedures 52 Other Council of Europe human rights machinery 53 European Committee for the Prevention of Torture 53 European Committee of Social Rights (ECSR) 53 Council of Europe Commissioner for Human Rights 53 European Union 54 Other regional human rights instruments 55 Customary international law 55 CHAPTER 6 How human rights work 58 Sources of human rights 58 Human rights as the guarantor of human dignity 59 The requirement of legality 60 The rule of law 61 The right to an effective remedy 62 Retroactivity 64 CHAPTER 7 General application of human rights standards 65 Civil and political rights 65 “Living instrument” 65 “Practical and effective” 66 The nature of civil and political rights 66 Absolute rights 67 Limited rights 67 Qualified rights 67 Derogable and non-derogable rights 68 Restricting rights 68 Legality: is there a legal basis for the interference? 68 Is there a recognized justification or ground for restricting rights? 68 Is it “necessary in a democratic society”? 69 Is it proportionate? 70 Is it discriminatory? 71 Cross-cutting issues arising under civil and political rights 73 Autonomous concepts 73 Positive obligations 73 Horizontal application 74 Extra-territorial effect 74 Prohibition of the abuse of rights 75 Impunity and amnesty 76 Additional concepts 76 Economic, social and cultural rights 76 Principles applicable to the guarantee of economic; social and cultural rights under the ICESCR 78 Progressive realization of rights 78 Minimum core obligations 79 Analysing the content of economic, social and cultural rights 79 6 Countering Terrorism, Protecting Human Rights CHAPTER 8 How rights work: specific issues for counter-terrorism strategies 80 Equality before the law and protection from discrimination in international human rights law 80 Why principles of equality and non-discrimination are essential to international human rights law and to combating terrorism effectively 82 How is non-discrimination protected by international human rights law? 82 Different approaches to protecting against discrimination 82 Is protection against direct discrimination enough? 83 Protecting against indirect discrimination 83 Racial profiling as indirect discrimination 84 Using positive action to tackle entrenched discrimination 84 Inter-sectionality or multiple discrimination 85 Minority rights 85 Human rights within a state of emergency 87 Derogations are a temporary measure 87 Certain rights are non-derogable 88 Reviewing the extent of non-derogable rights: HRC General Comment 29 89 International criminal law 91 Accountability of states for actions of non-state actors 92 Part II: Specific human rights in countering terrorism 95 CHAPTER 9 The right to life 98 Use of lethal force by law enforcement and in armed conflict 99 Positive obligations to safeguard life 100 Independent scrutiny of loss of life 102 Obligation to investigate deaths 103 Disappearances 103 Extra-judicial executions 105 Procedural safeguards required for an effective investigation 106 Absolute necessity and the permitted exceptions to the right to life 107 “In defence of any person from unlawful violence” 107 “In order to effect a lawful arrest or to prevent the escape of a person lawfully detained” 107 “In action lawfully taken for the purpose of quelling a riot or insurrection” 108 Considerations prior to the use of lethal force 109 The right to life and armed conflict 109 Other issues arising out of the right to life 110 Amnesty and impunity 110 Witnesses and collaborators of justice 111 The death penalty and the right to life 111 The position under the ECHR 113 Removal, deportation and extradition 113 Countering Terrorism, Protecting Human Rights 7 CHAPTER 10 The absolute prohibition of torture, inhuman and degrading treatment or punishment: evidence collection, interrogation techniques and conditions and circumstances of detention 114 The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) 115 International framework 115 Soft law framework to combat torture during arrest and in detention 116 Standard Minimum Rules for the Treatment of Prisoners 116 Code of Conduct for Law Enforcement Officials 116 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials 117 Principles of Medical Ethics relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 117 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment 118 Basic Principles for the Treatment of Prisoners 119 Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 119 Protection from torture, inhuman and degrading treatment and punishment: how does it work? 120 Factors that may be relevant to identifying whether treatment violates protection from torture, inhuman or degrading treatment and punishment 120 Definition of torture 121 Definition of inhuman 122 Definition of degrading 123 Issues arising under protection from torture relevant to counter-terrorism strategies 123 Specific issues relevant to protection from torture and inhuman and degrading treatment or punishment 125 Conditions of detention 125 Solitary confinement 125 Secret or incommunicado detention 126 Interrogation 127 Recording of interrogations 130 Reliance on evidence obtained through torture 130 Methods of restraint 131 Corporal punishment 132 Access to a doctor 132 Denial of medical treatment 133 Hunger strikes and forced feeding 134 Forced medical treatment 134 Discrimination 135 Positive obligations 135 Investigations of claims of ill-treatment 136 Retaliation against victims, witnesses and any other person acting on behalf of torture victims 137 Reparation to torture victims 137 Expulsion, deportation, rendering and extradition 137 The principle of non-refoulement 138 Standard of proof required 138 Interim measures 139 8 Countering Terrorism, Protecting Human Rights Diplomatic assurances 140 Rendition 143 CHAPTER 11 Detention conditions, the right to liberty and access to a lawyer of those suspected of terrorism 146 UN standards 148 Protections under customary international law 149 OSCE commitments in relation to the right to liberty 150 Understanding the right to liberty 150 Liberty and security 151 Prescribed by law 152 When detention is lawful 152 Detention for counter-terrorism purposes
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