We have already examined a number of human rights issues related to terrorism;
now we shall briefly look at the problem of human rights and the role of non-State actors (reference to which has already been made), as well as procedural guarantees prescribed for those persons accused of terrorist offences. Article 14 of the 1966 International Covenant on Civil and Political Rights (ICCPR) guarantees the right to a fair trial as well as other pre-trial protections to those accused or arrested in relation to criminal offences.189Many countries suffering from sustained terrorist attacks promulgate legislation that falls below the standard set by the ICCPR.
Beginning in 1973, the UK enacted sweeping emergency legislation in its effort to counter violence arising from the Northern Ireland conflict.190 This legislation eliminated a number of pre-trial procedural safeguards typically available to criminal defendants in the UK. It also established an alternative system of tribunals to try those accused of ‘scheduled offences’, that is, certain politically motivated criminal offences. These ‘Diplock courts’ employed abbreviated trial procedures, eliminating trial by jury and significantly relaxing evidentiary standards. Such practice, irrespective of the gravity of the alleged offence, violates fundamental pre-trial procedural safeguards as these are formulated in international instruments. Likewise, on the basis of derogation provisions contained in human rights treaties, States are afforded a certain degree of discretion as to the suspension of certain rights in times of public emergency.191The European Court of Human Rights’ jurisprudence evinces the enjoyment of a margin of discretion which Member States may utilise in order to determine a state of emergency. Such discretion is not unlimited but subject to control by the court.192
Anti-terrorist conventions contain minimum procedural safeguards entitling the accused to fair treatment and ensuring communication with an appropriate person, either a representative of his State or another.193The 1976 European Convention on the Suppression of Terrorism included a provision whereby a requested State is not
188 N Chomsky, ‘Human Rights Priorities and Responsibilities for Citizens’, in D Barnheizer (ed),Effective Strategies for Protecting Human Rights,2002, Aldershot: Ashgate.
189 See also 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, Art 6, 213 UNTS 221.
190 See Northern Ireland (Emergency Provisions) Act 1978, Chapter 5.
191 1950 European Convention for the Protection of Human Rights, Art 15, and ICCPR, Art 4.
192 InIreland v UK(1978) 2 EHRR 25, although UK interrogation techniques violated the European Convention for the Protection of Human Rights, Art 3, the court ruled that, due to the wave of terrorist attacks prevalent in 1972, the UK could validly decide that its legislation was insufficient under the European Convention for the Protection of Human Rights, Art 15.
193 1970 Haeue Convention,Art 6(3); 1971 Montreal Convention, Art 6(3); 1973 Internationally Protected Persons Convention (the latter guaranteeing fair treatment), Arts 6(2) and 9; 1979 Hostages Convention,Art 6(3), (4); 1998 Terrorist Bombings Convention (the latter guaranteeing fair treatment), Arts 7(3) and 14; 2000 Terrorist Financing Convention, Art 9(3).
bound to extradite if it has substantial grounds for believing that the request is a guise for prosecution or punishment on account of a person’s race, religion, nationality, ethnic origin or political opinion.194This is known as‘clause francaise’, and one of its purposes is to protect the concept of asylum. This clause has been inserted in all subsequent international anti-terrorist treaties.195In general, there is unanimous agreement from international bodies that procedural guarantees should not be set aside when investigating terrorist-related offences.196
States with particular terrorist problems, such as Turkey, Algeria and Russia, have consistently argued that terrorism violates human rights. This, itself, is a contradictory statement since the whole rationale of human rights is based on the State being the transgressor and not private entities. To address these concerns, the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights in 1993 condemned terrorism as an act aiming at the ‘destruction’ of human rights, democracy and territorial integrity.197 This new terminology is hardly reconcilable with human rights philosophy, and was sadly included on the insistence of States with poor human rights records. The 1993 Vienna Declaration was followed up by annual decisions of the Third Committee of the General Assembly, which were subsequently endorsed by the Assembly under the title ‘Human Rights and Terrorism’. These resolutions recognise the ‘destruction’ of human rights through terrorist acts, ascertain its connection to organised crime and further demand for measures consonant with ‘international human rights standards’.198 The term
‘standards’ was preferred because most developing countries are not parties to the major international human rights instruments. Sadly, States non-parties to customary human rights treaties are allowed to regress back to an unacceptable state of affairs where they not only defy international institutions accusing them of gross rights violations; they also establish new ‘human rights’ regimes which entitle them to abuse those whom they are under a customary obligation to protect.199The Third Committee’s initiative to engage in an examination of terrorism has unofficially been contested vehemently by the Sixth Committee, which has demanded without success an end to the Third Committee’s involvement in the issue. Finally, the role of non- State actors has been addressed by the special rapporteur on human rights and terrorism, Kalliopi Koufa. In her 1999 report she noted that terrorism puts under threat those social and political values that relate, either directly or indirectly, to the full enjoyment of human rights and fundamental freedoms, namely the areas of: (a) life, liberty and dignity of the individual; (b) democratic society; and (c) social peace and public order. While emphasising that terrorism prevents individuals from fully
194 1976 European Convention on the Suppression of Terrorism, Art 5.
195 1979 Hostages Convention, Art 9(1); 1998 Terrorist Bombings Convention, Art 12; 2000 Terrorist Financing Convention, Art 15.
196 Report of the Inter-American Commission on Human Rights on Terrorism and Human Rights,OAS Doc OEA/Ser L/V/II 116, Doc 5/Rev 1/Corr (22 October 2002).
197 UN Doc A/CONF 157/23 (12 July 1993), para 17.
198 GA Res 48/122 (20 December 1993); GA Res 49/185 (23 December 1994); GA Res 50/186 (22 December 1995); GA Res 51/210 (17 December 1996); GA Res 52/133 (27 February 1997); some CSCE/OSCE Concluding Documents make a connection between terrorism and human rights, however, on the basis of State sponsored terrorism. The latest 1999 Istanbul Summit, Chapter I(4), made reference only to a ‘challenge to security’ emanating from terrorism.
199 This new terminology is also contained in GA Res 49/60 (9 December 1994).
enjoying human rights, and whereas recent developments in international law render individual perpetrators liable under international law, the special rapporteur pointed out that the ‘relevance and adequacy of international and human rights law with regard to terrorist activities of non-State actors is questionable. For non-State actors are not, strictly speaking, legally bound by the supervisory mechanisms of international and human rights law’.200
200 UN Doc E/CN 4/Sub 2/1999/27 (7 June 1999), paras 18, 56.