Where’s the ‘law’ in anti-terror legislation?  

Many States have taken unlawful steps - including restrictions on rights - in the name of fighting terror

"...But I am firmly convinced that a comprehensive strategy for security can and must be guided by upholding the rule of law and respecting human rights."

-Sergio Vieira de Mello, High Commissioner for Human Rights at the Eleventh Workshop on Regional Cooperation for the Promotion and Protection of Human Rights in the Asia Pacific Region, Pakistan, 25 February 2003.

AT its seventh annual session held in New Delhi on 11-13 November 2002, the Asia Pacific Forum of National Human Rights Institutions (APF) decided to refer the issue of the primacy of the rule of law in anti-terrorist laws to the Advisory Council of Jurists of the APF. Although, the seventh annual session deliberated on the issue of trafficking and the rights of the people with disabilities, the Pre-Forum NGO Consultation hosted by the Asia Pacific Human Rights Network (APHRN) recommended to the APF that the issue of ensuring due process while framing and implementing anti-terrorist laws be referred to the Advisory Council of Jurists.

The reference to the primacy of the rule of law in anti-terrorist laws is significant considering the unlawful steps taken by States in the name of combating terrorism. Whether it is the Rambo-style raids in Sydney after the terrorist attacks in Bali on 12 October 2002 or the arrest of 12-year-old schoolchildren in India's Jharkhand state under the Prevention of Terrorism Act, the rule of law increasingly has been eroded. The United States has yet to clarify the status of the detainees in Guantanamo, while the Bangladesh government has provided impunity to its armed forces which have been responsible for over three dozen custodial deaths during the 'Operation Clean Heart'.

Since 11 September 2001, States you would not invite to dinner have joined the bandwagon of those allegedly combating terrorism and have been feted by the free world. These pariah states in the process have legitimised the repression on their populations, which in most scenarios breeds terrorism and violence in the first place.

There is little doubt that terrorism is a nightmare and that it raises legitimate security concerns. It is self evident that terrorism in all its forms and manifestations must be addressed robustly. However, counter-terrorism strategies - especially those put into operation after 11 September 2001 - have included measures that suppress or restrict individual rights including freedom of thought, presumption of innocence, fair trial, the right to seek asylum, political participation, freedom of expression and peaceful assembly.

As The High Commissioner succinctly put it while speaking to states in the Asia Pacific region, "[t]he security of States and the region flows from the security of the human being. This security, in turn is guaranteed by the rule of law and respect for human rights, both of which form a unifying force, a force that can serve to chart a path across difficult terrains."

Many of these anti-terrorist laws seek to hold the accused for a prolonged period of detention beyond the permissible limits under the normal criminal procedure code without charging him/her, and effectively subvert the cardinal principle of the criminal justice system - the presumption of innocence. The anti-terrorist laws in most cases are not subject to legislative review and have more often been used for preventive detention of peaceful dissenters than for tackling terrorism.

Human rights law strikes a fair balance between legitimate national security concerns and fundamental freedoms in each case. These balances are reflected in the International Covenant on Civil and Political Rights (ICCPR), the European Convention for the Protection of Human Rights and Fundamental Freedoms, the American Convention on Human Rights, the African Charter on Human and Peoples' Rights, and the Arab Charter on Human Rights.

Speaking in Pakistan on 25 February 2003, the High Commissioner noted, "The rule of law is a constant; it applies at all times to all States to all persons. The sophisticated, intertwined body of international human rights, humanitarian and refugee law... guides States in times of peace and war. It sets minimum standards for governance. It protects the internally displaced. It protects civilians in times of conflict. It protects those who cross borders in search of refuge from persecution. Even a state of emergency declared to meet an exceptional threat to the life of the nation should be an extension of the rule of law and not an abrogation of it."

He added, "Exceptional measures by States to tackle terrorism must therefore be compatible with the rule of law. This legal framework provides that such measures must be of a short duration, be absolutely necessary, proportionate and not discriminate against people because of their identity. Accordingly, you will understand that I have been concerned to note in Asia-Pacific, as in other regions, that a number of States have adopted anti-terror laws that are vaguely and widely-worded, that may suspend rights without proper justification and which erode fair trial and other hard fought for civil rights."

The Security Council in its resolution 1373 (2001) established "in accordance with rule 28 of its provisional rules of procedure, a Committee of the Security Council, consisting of all the members of the Council, to monitor implementation of this resolution, with the assistance of appropriate expertise, and calls upon all States to report to the Committee, no later than 90 days from the date of adoption of this resolution and thereafter according to a timetable to be proposed by the Committee, on the steps they have taken to implement this resolution." (see box below: Key Words)

Former High Commissioner for Human Rights Mary Robinson in her report to the 58th CHR session submitted proposals for "further guidance" for the submission of reports pursuant to paragraph 6 of Security Council resolution 1373 (2001) (E/CN.4/2002/18)".

The proposal provides criteria “for the balancing of human rights protection and the combating of terrorism" and recommendations on specific issues. The then High Commissioner proposed the inclusion of human rights experts in the Counter Terrorism Committee.

Yet, the CHR has so far failed to effectively deal with the rule of law in counter-terrorism measures.

At the 58th session, the CHR adopted a generic resolution (2002/35) on the issue. Instead of asking the Counter Terrorism Committee to incorporate human rights perspectives, the resolution invited the Secretary General "to continue to seek the views of Member States on the implications of terrorism in all its forms and manifestations for the full enjoyment of all human rights and fundamental freedoms and on how the needs and concerns of victims of terrorism might be addressed, including through the possible establishment of a voluntary fund for the victims of terrorism, as well as on ways and means to rehabilitate the victims of terrorism and to reintegrate them into society..."

It is essential that the 59th CHR resolution on human rights and terrorism either appoints a Special Rapporteur on human rights and terrorism or requests the High Commissioner to submit a report on the rule of law in counter terrorism measures to the 60th session of the CHR. As the High Commissioner De Mello states, "in acting against terrorism, we must ensure that we maintain the high moral ground."

If the distinction between those who are contemptuous of rule of law and commit terrorism and those who espouse the rule of law is blurred, nothing can stop us from descending to barbarism.