Battle against terror must not defeat rule of law [Human Rights Features, Volume 5 (October

Battle against terror must not defeat rule of law

Resolution on due process of law in anti-terrorism measures drafted by the Pre Forum NGO Consultation on National Human Rights Institutions

The Pre Forum NGO Consultation,

Having convened at the Indian Social Institute, New Delhi, India on 11 November 2002;

Guided by the purposes and principles of the Charter of the United Nations, Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and other international human rights and humanitarian law standards,

Bearing in mind the principles on due process of law embodied in the Universal Declaration of Human Rights and the relevant provisions of the International Covenant on Civil and Political Rights and the Optional Protocols thereto, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights of the Child, and the Convention on the Elimination of All Forms of Discrimination against Women;

Bearing in mind also that the right to life is the most basic of human rights;(General Assembly resolution A/RES/54/164, 24 February 2000);

Cognisant of Security Council Resolution 1373 requiring international cooperation to combat threats to international peace and security caused by terrorist acts;

Taking note of the measures undertaken by the States of the Asia Pacific region pursuant to the Security Council Resolution 1373 to combat terrorism, especially through the adoption of anti-terrorist laws, ordinances and amendments to existing laws;

Reiterating that all States have an obligation to promote and protect all human rights and fundamental freedoms and that every individual should strive to secure their universal and effective recognition and observance; (General Assembly resolution A/RES/54/164, 24 February 2000)

Reaffirming that all measures to counter terrorism must be in strict conformity with the relevant provisions of international law including international human rights and humanitarian law standards; (General Assembly resolution A/RES/54/164 of 24 February 2000)

Mindful of the need to protect human rights of and guarantees for the individual in accordance with the relevant human rights principles and instruments, in particular right to life; (General Assembly resolution A/RES/54/164 of 24 February 2000)

Concerned about the increasing incorporation of the death penalty as a form of punishment in anti-terrorism laws;

Concerned also about the use of special courts to the detriment of the due process of law,

Deeply concerned with the increasing use of unlawful measures including sanctioning of summary executions in the war against terrorism,

Also deeply concerned about the use of anti-terrorism measures as ploy to suppress peaceful dissent across the Asia Pacific region;

Deeply concerned about the violation of the cardinal principles of natural justice in the criminal justice system -freedom from torture or cruel inhuman or degrading treatment, the principles of presumption of innocence, precision and non-retroactivity- under anti-terrorism laws;

Profoundly deploring the increasing number of innocent persons, including women and children and the elderly, killed, massacred and maimed by terrorists in indiscriminate and random acts of violence and terror, which cannot be justified under any circumstances; (A/RES/54/164, 24 February 2000)

Profoundly deploring also the large number of civilian killings, torture, involuntary or enforced disappearances, custodial deaths and other human rights violations by law enforcement personnel in the name of fighting terrorism,

Recognising that a successful "war against terrorism" requires addressing of the root causes of the problem -social, political, economic and cultural inequity,

The Pre Forum NGO Consultation,

- Expresses solidarity with the victims of human rights violations arising out of the rampant usage of national security laws,

- Expresses solidarity with victims of violence by armed opposition groups;

- Affirms that the promotion and protection of human rights is central to an effective strategy to counter terrorism, establish and maintain peace and security,

- Reaffirms the inalienable nature of certain human rights under all circumstances as provided under international human rights and humanitarian law;

The Pre Forum NGO Consultation calls upon the Governments of the Asia-Pacific region to:

- Ensure respect for and active protection of the right to life, liberty and security under all circumstances;

- Repeal all anti-terrorist and national security laws that are not in conformity with international law and uphold the rule of law and ensure due process of law;

- Repeal all laws/ordinances which provide impunity;

- Ratify the Rome Statute of the International Criminal Court

- Ratify all human rights treaties and relevant Optional Protocols without any reservation and withdraw reservations expressed thereto;

- Immediately inform the other States Parties to the International Covenant on Civil and Political Rights through the Secretary General of the United Nations, of the provisions from which it has derogated, of the reasons for the derogation and that a further communication shall be made on the date on which such derogation is terminated; (Article 4(3) of ICCPR)

The Pre Forum NGO Consultation urges the United Nations High Commissioner for Human Rights to:

- pay continued and adequate attention to the need to maintain balance between human rights and security, in particular to follow up on the proposals for "further guidance" for the submission of reports pursuant to paragraph 6 of Security Council resolution 1373 (2001) in his forthcoming report titled "Report of the United Nations High Commissioner for Human Rights and Follow up to the World Conference on Human Rights" under provisional agenda item 4 of the 59th Session of the Commission on Human Rights;

- request the 59th Session of the Commission on Human Rights to call upon the Security Council to include Human Rights Experts in the Counter Terrorism Committee established pursuant to the Security Council in its resolution 1373 (2001) and urge the States to report on human rights protection in combating of terrorism;

- further request the mechanisms of the Commission on Human Rights and its subsidiary bodies, including Special Rapporteurs, Special Representatives and Working Groups, to give special attention to questions relating to the due process of law in the administration of justice to combat terrorism;

The Asia Pacific NGO Human Rights Consultation urges the Asia Pacific Forum of National Human Rights Institutions to:

- Refer the issue of due process of law in anti-terrorism measures of the States having NHRI to the Judicial Advisory Council to examine the conformity of these laws with international human rights and humanitarian law standards;

- Request the 7th APF session to instruct the Judicial Advisory Council to submit a report to the 8th session of the APF on the issue of due process of law in anti-terrorism measures;

- Request further the 7th APF session to instruct the Forum Secretariat to raise necessary funds to facilitate the work of the Judicial Advisory Council;

- Call upon members of the Asia Pacific Forum to examine the constitutionality and legality of the anti-terrorism laws under respective constitutions and international human rights and humanitarian law and make appropriate interventions;

- Call upon the members of the Asia Pacific Forum of NHRIs to monitor application of the anti-terrorist laws;

- Call upon the 7th APF to decide to discuss due process of law in anti-terrorism measures at its 8th session.