Counter terrorism & HR: Climbing down the latter?

MANOJ MITTA

FOR all its initiatives purporting to address the gamut of human rights issues, the UN Commission on Human Rights has been remiss in failing to take up a subject of fast growing concern around the world since 9/11. The Commission is yet to take cognisance of the abuse of human rights by various countries, including the US and UK, while combating terrorism with greater vigour than ever before in terms of Resolution 1373 passed by the Security Council on 28 September 2001.

This despite the fact that several rapporteurs appointed by the Commission have in the last year and a half confirmed the negative impact of counter terrorism measures on human rights. Treaty-monitoring bodies such as the Human Rights Committee, Committee against Torture and Committee on the Elimination of Racial Discrimination have criticised the repercussions of the recent counter terrorist legislations on the rule of law.

If the Commission has still not passed any resolution on this alarming trade off between human rights and counter terrorism, it is clearly because the body has been compromised by politics. This is evident from the fact that an attempt was actually made last year before the Commission by one of the member states, Mexico, to push for a resolution. But thanks to the pressure exerted by the US, which was then not a member of the CHR, Mexico was forced to withdraw its draft resolution. Mexico had no option but to beat a retreat in the 58th Session of the CHR because of the opposition engineered by the US among member states such as India and a host of OIC countries including Pakistan, Algeria and Saudi Arabia.

Mercifully, the US was unable to have its way subsequently in the bigger forum of the UN General Assembly. Much to its credit, a tenacious Mexico initiated a similar resolution in the 57th Session of the General Assembly in November 2002. The effort paid off as the General Assembly unanimously adopted Resolution A/RES/57/219 on Protecting Human Rights and Fundamental Freedoms while countering Terrorism. The resolution underscored the need for states to comply with their legal obligations under international law, and in particular with internationally recognised human rights, refugee and humanitarian law.

Significantly, the General Assembly resolution charged the UN High Commissioner for Human Rights with the responsibility of making "general recommendations" concerning the obligation of states to promote and protect human rights and fundamental freedoms while countering terrorism. Further, it requested the Secretary General to submit reports to the Commission on Human Rights and the General Assembly on the implementation of the resolution.

The General Assembly resolution is a landmark development in that it constitutes the first high-level signal to all member states not to overlook the human rights dimension in their zeal to combat terrorism. But then much more needs to be done as the Resolution has no teeth. The Resolution will remain a platitude if no mechanism is put in place to enforce it. As the UN High Commissioner of Human Rights, Mr Sergio Vieira de Mello, admitted on 26 March at an NGO meeting, the resolutions empowers him merely to make "general recommendations" on how human rights safeguards could be built into counter terrorism measures. It does not in any way empower him to monitor the enforcement of human rights in counter terrorism measures.

Hence the importance of the attempt that Mexico is again making this year to get the  Commission to pass a resolution related to counter terrorism. Though all the  members of the Commission were party to the unanimously passed General Assembly resolution on the same lines barely four months ago, indications are still far from clear on whether Mexico will muster enough support in its second attempt. The uncertainty has prompted NGOs such as Human Rights Watch to appeal to members to drop their reservations about the Mexican proposal and come out with a much needed policy pronouncement to protect human rights in counter terrorism measures.

Mexico's case for human rights is bolstered by the fact that it is very much part of the Counter Terrorism Committee (CTC) appointed by the Security Council to monitor the enforcement of Resolution 1373 in all countries. But it has been waging a lonely battle in the CTC, which has so far demonstrated no inclination to incorporate human rights concerns in the enforcement of the states' security obligations under Resolution 1373. In the last public session of the Security Council on terrorism on 20 January 2003, Mexico's foreign minister, Dr Luis Ernesto Derbez, struck a blow for human rights by proclaiming that "the fight against terrorism must be waged while fully respecting  the principles of the Charter of the United Nations and of international law, including the protection of human rights."

It is noteworthy that Mexico repeated its General Assembly success in the Security Council as well. The Security Council adopted Resolution 1456 of 20 January 2003 saying: "States must ensure that any measure taken to combat terrorism comply with all their obligations under international law, in particular human rights, refugee and humanitarian law."

In the light of such recognition accorded to human rights in counter terrorism measures by the General Assembly (see box) and Security Council, it would be disappointing and ironic if the Commission on Human Rights remains shy of intervening in this sensitive area. The Commission should take upon itself the responsibility of carrying forward the process that has been set in motion by the two main organs of the UN. It  should find ways of putting into action the intention expressed by the resolutions of the General Assembly and Security Council.

The solitary concession the CTC has made till now on the human rights question has been limited to holding mutual briefings with the UN's human rights instruments. The High Commissioner for Human Rights met the CTC members on 21 October 2002 and raised concerns about states enacting anti-terrorism legislation that is too broad in scope or seeking to fight terrorism outside the framework of the legal system. Subsequently, a legal expert of the CTC, Curtis Ward, briefed the Human Rights Committee in Geneva on 27 March while the CHR was holding its 59th Session.

Much as it is welcome, this kind of interaction between the CTC and the UN's human rights instruments has proved to be ineffective in making a dent in the problem. This is evident from the fact that the written guidelines given by the High Commissioner for Human Rights to the CTC have been only put on its website but not circulated among the member states as an official document that is binding on them. The CTC also failed to appoint a human rights advisor to its staff as recommended by Mr de Mello and his predecessor, Ms Mary Robinson. The General Assembly's Resolution has provided a window of opportunity as the Secretary General, in keeping with its terms, will be submitting a report on human rights and counter terrorism to the 59th Session of the CHR.

So, the least that the Commission could do in the circumstances is to pass a resolution reinforcing the High Commissioner's recommendations. The Commission's resolution should request the High Commissioner to help create an arrangement wherein the CTC  invites human rights experts to brief it on a regular basis. The High Commissioner should also be asked to deal specifically with the impact of counter terrorism measures on human rights in his annual report to the Commission and General Assembly. The Commission may also, as suggested by some NGOs, ask the Secretary General to appoint a Special Representative on Human Rights and Counter Terrorism so that the issue receives more serious attention. Another suggestion made by other NGOs is that the Commission should request the Special Rapporteur on the independence of the judiciary to report to the 60th Session on the case law being evolved in different jurisdictions in relation to counter terrorism measures. Both suggestions - of either appointing a new Special Representative or of expanding the Special Rapporteur’s remit - are however widely thought to be politically unrealistic at this stage.

Thus, the options before the Commission are many but the time to act is now. The danger of human rights being swamped by the frenzy of counter terrorism measures does not brook any further delay.