This chapter first addresses the question of whether terrorism constitutes a violation of human rights, or whether the notion of human rights violations can only be applied to action by states, and then considers challenges to the applicability of human rights law in the fight against terrorism, particularly since 9/11. It focuses on the notion of terrorism, and in particular the risks posed to human rights protection by vague or over-inclusive definitions of terrorism. The main section of the chapter deals with some of the major challenges posed by counter-terrorism measures to substantive human rights protections. It is argued that the unprecedented post-9/11 wave of counter-terrorism laws and measures that infringed upon human rights was a unique situation, and that governments and intergovernmental organizations are realizing that full compliance with human rights in the fight against terrorism is not only morally and legally correct but is also the most effective way of combating terrorism in the long term.
Terrorism, and measures to combat terrorism, pose major challenges to the international protection of human rights. Those challenges relate to both the substance of human rights norms and their scope of application. While much attention has been on the rights of those who are suspected of involvement in terrorism, everyone’s human rights are, to a lesser or greater extent, affected by counter-terrorism measures. Acts of terrorism, in turn, constitute a serious form of crime and often result in the destruction of human rights.
Particularly in the era after the atrocious terrorist attacks in the USA on 11 September 2001 (9/11), several waves of counter-terrorism measures have been introduced. Typically, this has occurred in the aftermath of new terrorist incidents that have not reached the magnitude of 9/11 but still serve as tragic reminders that the threat of terrorism is real. While human rights are not always absolute, and public security may form a legitimate ground for introducing certain limitations, it would be a mistake to conclude that security generally trumps human rights. A more nuanced legal analysis is required in order to respond to the challenges of complying with human rights while at the same time effectively combating terrorism. Those challenges appear not only at the level of domestic law, where increased security has often been the justification for measures that restrict human rights. At the international level, the UN Security Council has identified international terrorism as a threat to peace and security, and resorted to its far-reaching powers under Chapter VII of the UN Charter. Shortly after 9/11, it adopted Resolution 1373, imposing a whole set of legally binding counter-terrorism obligations upon states, and established a new subsidiary body, the Counter-Terrorism Committee (CTC).1 Another subsidiary body, the 1267 Sanctions Committee, administers a regime of listing individuals and entities for targeted sanctions for their association with al-Qaida or ISIL (ISIS or Da’esh).2
p. 606Section 2 addresses the question of whether terrorism constitutes a violation of human rights, or whether the notion of human rights violations can only be applied to action by states. Section 3 deals with challenges to the applicability of human rights law in the fight against terrorism, particularly since 9/11. Section 4 focuses on the notion of terrorism and in particular the risks created to human rights protection by vague or over-inclusive definitions of terrorism. The main section of the chapter, Section 5, deals with some of the major challenges posed by counter-terrorism measures to substantive human rights protections. While all human rights are affected by global waves of new counter-terrorism laws and measures, some human rights have been at the forefront. Section 6 addresses the issue of listing of terrorists by the UN, which poses a challenge of an institutional nature. Is the Security Council bound by international human rights standards, and how can the sanctions resulting from its listing of terrorists be made subject to judicial or other independent review? The final section, Section 7, suggests that the unprecedented post-9/11 wave of counter-terrorism laws and measures that infringed upon human rights was unique and that, despite new terrorist incidents, governments and intergovernmental organizations must avoid overreacting and recognize that full compliance with human rights in the fight against terrorism is not only morally and legally correct but in the long term also the most effective way of combating terrorism.
2 Is Terrorism a Violation of Human Rights?
Human rights are usually seen as vertical norms between the state and a private beneficiary, in most cases an individual person. However, changes in the world order, often referred to as globalization, have resulted in an awareness of the existence of other public and private actors that are equally as powerful as states in their capacity directly to affect the enjoyment of human rights.3 Terrorism is one such challenge emanating from non-state actors. It is generally defined as deadly or otherwise serious violence against ‘civilians’, that is, members of the general population or a segment of it, for the purpose of spreading fear amongst the population, or to compel the authorities to do, or refrain from doing, something. Acts of terrorism adversely affect several human rights, including the right to life, the right to physical integrity, the right to health, the right to property, in cases of hostage-taking the right to liberty, and so on. Terrorism has, therefore, been rightly described as the destruction, or the antithesis, of human rights.
However, this does not necessarily mean that terrorist acts amount to a violation of human rights. Resolutions adopted by intergovernmental organizations in response to the threat of terrorism apply different approaches to the issue of whether the perpetrators of acts of terrorism may be described as violating human rights. Variations in the wording of such resolutions reflect different doctrinal and political positions on the question of whether only states may commit human rights violations, or whether such violations can also be attributed to non-state actors. For example, the 2005 resolution of the then UN Commission on Human Rights that originally created the mandate of the Special Rapporteur on human rights and counter-terrorism referred in its preamble to acts, methods, and practices of terrorism being ‘aimed at the destruction of human rights’, while deploring the occurrence of human rights ‘violations’—by states—in the context of their fight against terrorism.4 However, the same Commission on Human Rights had on other occasions adopted resolutions that speak of human rights ‘violations’ committed by p. 607↵terrorists.5 When serving as the first Special Rapporteur on human rights and counter-terrorism, the author of this chapter avoided use of the word ‘violation’ when referring to acts of terrorists. The second mandate holder, in contrast, took the view that the word ‘violations’ should be used with regard to terrorists themselves.6
Although the general public may feel perplexed by such inconsistencies and by the insistence of many human rights experts to reserve the notion of human rights violations to states alone, there is, in the view of the present author, good reason for maintaining the distinction between terrorism as destruction of human rights and a more straightforward reference to human rights violations by states, at least for the time being. The legally binding normative framework of human rights law is established in human rights treaties. Those treaties are clearly based on human beings as their beneficiaries and states parties as bearers of the corresponding obligations. Even where human rights norms have evolved to the status of customary law, their substance addresses the relationship between a state and an individual and it is not self-evident that such customary norms would, with the same content, be binding upon other actors beyond states. Further, all monitoring mechanisms under human rights treaties are geared towards making states accountable for human rights violations. When human rights treaty bodies find a human rights violation, this represents the end result of the application of the treaty in a concrete case or situation and includes an attribution of state responsibility for a breach of its obligations. Under other non-treaty-based procedures, such as the special procedures of the Human Rights Council, a finding of a human rights violation entails a pronouncement that a state has acted in breach of its obligations under international human rights law.
No similar treaty-based or other monitoring mechanisms generally exist in respect of non-state actors. Hence, even assuming that the notion of human rights violations could meaningfully be applied in respect of terrorists, there are no human rights mechanisms through which the actors in question could be made accountable. To a limited extent, the development of international criminal law has come to serve as a substitute for the inability of human rights mechanisms to address the destruction of human rights by non-state actors. For instance, many of the crimes for which an individual can be prosecuted and punished under the 1998 Rome Statute of the International Criminal Court have a direct destructive effect on the enjoyment of human rights. In some instances, the Rome Statute may be applicable in respect of specific acts of terrorism.7 In addition, several international conventions and protocols address particular forms of terrorism—such as hostage-taking or hijacking of an airplane—and require states parties to criminalize the acts in question.8
p. 608If, in the future, a mechanism such as a World Court of Human Rights,9 with jurisdiction over both states and non-state actors, were to be established, then it would make more sense to speak about terrorist organizations being responsible for human rights violations. Without such a mechanism, there is no forum in which, and no procedure through which, to establish a violation and attribute it to a particular non-state actor.
3 Applicability of Human Rights Law in the Fight Against Terrorism
The applicability of human rights law to the fight against terrorism has been challenged in two ways. First, some states have argued that this fight amounts to an armed conflict or that it justifies the proclamation of a state of emergency and, therefore, makes it possible to derogate from certain human rights. Second, some states have argued that international human rights law does not apply to counter-terrorism measures taken outside the state’s own territory.
3.1 Times of Armed Conflict or Emergency
Some governments have sought to justify their unilateral exceptions to international human rights norms by referring to a ‘war’ against terrorism, which triggers the application of international humanitarian law.10 Such a position is usually factually incorrect, since acts of terrorism on their own constitute neither an international armed conflict between two or more states, nor a non-international armed conflict between a state and a non-state actor capable of conducting armed hostilities. Instead, terrorism should primarily be seen as a serious form of crime and fought within a law enforcement paradigm. Therefore, the full applicability of human rights law as the proper legal framework for the rights of terrorist suspects or other persons affected by counter-terrorism measures should be the point of departure.
It is possible, however, that for a limited period of time and in respect of a specific geographic area non-state actors referred to as ‘terrorists’ may be engaged in an armed conflict. The prime example is Afghanistan in late 2001, when members of al-Qaida were engaged in an armed conflict against the USA, siding with the local Taliban that constituted the de facto government of Afghanistan.11 But even in such rare circumstances, human rights law remains applicable, although it may need to be interpreted in the light of more specific rules contained in international humanitarian law.12
Major terrorist attacks, or another situation in which a terrorist organization manages to destabilize public order in a state, may constitute a threat to ‘the life of the nation’ in the sense of the derogation clauses contained in many human rights treaties. Consequently, a state may officially proclaim a state of emergency and introduce measures that derogate from certain human rights.13 For instance, declaring a curfew for a city, introducing checkpoints on major roads, restrictions on mass demonstrations, and closer inspection of p. 609↵postal packages may, within the exigencies of the situation, constitute lawful derogations in respect of the normal scope of freedom of movement, the right to peaceful assembly, and the right to privacy as guaranteed by the International Covenant on Civil and Political Rights (ICCPR). Such measures must be temporary and their aim must be the restoration of normalcy, including the protection of human rights.
As has been elaborated by the Human Rights Committee in its General Comment on states of emergency, the power of a state to derogate from some provisions of the ICCPR does not mean a power to suspend completely the application of these provisions. Rather, any derogation is subject to the requirements of necessity and proportionality. Not only must there be full respect for non-derogable human rights, but also the rights that are subject to derogation must remain protected as far as possible and they may include non-derogable dimensions.14
Responding to acts of terrorism, some states have formally derogated from human rights treaties. For instance, after the November 2015 terrorist attacks in Paris, France declared a state of emergency and notified both the Council of Europe and the UN that it would derogate from, respectively, the European Convention on Human Rights (ECHR) and the ICCPR.15 Under both treaties, the derogations were problematic as they were quite generic and failed to explain the actual measures undertaken.
3.2 Extraterritorial Applicability of Human Rights Law
A separate, but in practice often simultaneously presented, challenge to the applicability of human rights in the counter-terrorism context is the argument that human rights obligations are territorial in scope, limited to a state’s own territory where it exercises full jurisdiction. For example, governments may establish detention centres abroad and argue that constitutional guarantees or human rights treaties do not apply there.
While this argument has some support in the text of Article 2(1) ICCPR,16 consistent practice by the Human Rights Committee demonstrates that a state must comply with the Covenant wherever it factually exercises powers that affect the enjoyment of the rights enshrined in the ICCPR.17 Thus, even if that provision were to be taken as excluding an obligation to ‘legislate’ for other countries or their population,18 this cannot form a justification to engage extraterritorially in outright human rights violations such as arbitrary detention, torture, or other cruel, inhuman, or degrading treatment.19
p. 610In summary, human rights law continues to apply during situations of armed conflict or a state of emergency, and it applies also to a state’s conduct abroad. Closer analysis may be needed as to how the norms of human rights law and international humanitarian law inform the proper interpretation of each other during times of armed conflict, what derogations from certain human rights norms may be permitted as necessary and proportionate within the exigencies of a state of emergency, and what the exact scope of a state’s human rights obligations is when its agents are operating outside its own territory. These considerations, however, do not change the basic rule that human rights law continues to apply in any of these circumstances.
4 The Notion of Terrorism and Its Misuse
‘One man’s freedom fighter is another man’s terrorist’, attributed to the British author Gerald Seymour, is an oft-heard and somewhat cynical reference to the degree of opportunism employed when using the word ‘terrorism’. Although the UN has adopted a whole series of international treaties related to specific forms of terrorism, such as hostage-taking, nuclear terrorism, or terrorist bombings, work towards a comprehensive convention against terrorism is still underway. Governments have not been able to agree on a definition of terrorism.
Particularly in the long aftermath of 9/11, governments have increasingly resorted to vague and broad definitions of terrorism. While this may have been triggered partly by a desire to respond to an unspecific threat, all too often governments intended to target individuals or groups that do not deserve to be labelled as terrorist, such as political opposition groups, radical trade unions, vocal but non-violent separatist movements, indigenous peoples, religious minorities, or even human rights defenders. The global consensus about the imperative of combating terrorism was so compelling that authoritarian governments could get away with their repressive practices whenever they renamed their opponents as ‘terrorists’.
Of particular concern to the international protection of human rights is that in the absence of a universal and comprehensive definition of the term, repeated calls by the international community, including the Security Council, for action to combat terrorism could be understood as leaving it to individual states to decide what is meant by ‘terrorism’. This aggravates the potential for unintended human rights abuses and even the deliberate misuse of the term. There is a clear risk that the international community’s use of the term ‘terrorism’, without defining it, results in the unintentional international legitimization of conduct undertaken by oppressive regimes, through delivering the message that the international community wants strong action against terrorism, however defined. Besides situations where some states resort to the deliberate misuse of the term, there is reason for concern about the more frequent adoption in domestic anti-terrorism legislation of terminology that is not properly confined to the countering of terrorism.20
Legal definitions of terrorism should refer to the methods used, not the underlying aim. What transforms political or ideological aspirations into terrorism is the decision by p. 611↵one or more morally responsible individuals to employ the morally inexcusable tactics of deadly or otherwise serious violence against ‘civilians’, that is, innocent bystanders. With the qualification that hostage-taking entails a threat of serious violence and should, therefore, be included in the definition, terrorism and terrorist crimes should always be defined so that such violence forms a mandatory element of the definition.21
Amongst Security Council resolutions calling for action against terrorism, Resolution 1566 comes closest to defining terrorism by including the following three cumulative conditions:
acts, including against civilians, committed with the intention of causing death or serious bodily injury, or the taking of hostages; and
irrespective of whether motivated by considerations of a political, philosophical, ideological, racial, ethnic, religious, or other similar nature, also committed for the purpose of provoking a state of terror in the general public or in a group of persons or particular persons, intimidating a population, or compelling a government or an international organization to do or to abstain from doing any act; and
such acts constituting offences within the scope of and as defined in the international conventions and protocols relating to terrorism.22
As to the third cumulative element, that only acts constituting offences within existing terrorism-related conventions may fall under the terrorism definition, there is a qualification to be made. Where a state is responding to an international call to suppress terrorism, this third cumulative element is essential in determining what type of conduct is to be suppressed. However, where there is evidence that a state must respond to domestic or regional terrorist threats, it may have genuine reasons to proscribe acts that fall outside the scope of offences under the existing universal terrorism-related conventions.
Any national definitions of crimes must meet the requirement of legality, enshrined in the non-derogable provision of Article 15 ICCPR. In the absence of an internationally agreed definition of terrorism, this provision has come to serve, together with the prohibition against discrimination, as the basis for a checklist for the conformity of definitions of terrorism or terrorist crimes with human rights. Besides the obvious element of a prohibition against the retroactive application of the criminal law, Article 15 ICCPR also includes the requirements of nullum crimen sine lege (all elements of a crime must be defined by the law), nulla poena sine lege (all punishments must be defined by the law), accessibility (the law must be publicly available), precision (the line between permitted and prohibited conduct must be clear), and foreseeability (the law must enable an individual to anticipate the consequences of his or her conduct). The safest way to secure compliance with these requirements is to base any definitions of terrorist crimes on an exhaustive list of already defined serious violent crimes. Criminalization of terrorist intent as such, or circular definitions that refer back to the word ‘terror’, or definitions that generally cover crimes against the state, regularly fail the test under Article 15 ICCPR.
Although widely accepted, the second element of the Security Council’s characterization of terrorism, referring to the alternative purposes of ‘provoking a state of terror’ or ‘compelling a government’, has proven to be part of the problem as such subjective purposes tend to be assumed rather than proven. For both principled and pragmatic reasons, p. 612↵it would be better to replace them with an objective assessment of whether the act concerned amounted to an instrumentalization of human beings, that is, the reduction of the victims to mere means.23
5 Substantive Challenges to Human Rights Law in the Fight Against Terrorism
Governments have often departed from ordinary laws, normal procedures, or the fundamental rights of the individual when confronted with acts of terrorism or the threat of them. Since 9/11, unprecedented waves of special legislation or special powers have emerged all over the world, and practically all human rights have been under attack or ‘reconsideration’. While most human rights are not absolute but allow for some limitations to protect public security, in many cases governments have gone beyond these permissible limitations, resulting in human rights violations. This section gives an overview of some of the most frequent areas of problematic practices.
As a graphic illustration of the effects of counter-terrorism measures upon human rights, reference can be made to a pyramid. At its top, a relatively small number of individuals—in many cases real or suspected terrorists—are not subjected to lawful trial and prosecution but to grave human rights violations, such as torture or extra-judicial execution. At the bottom of the pyramid, all members of society are confronted with new interferences with some of their human rights because of counter-terrorism legislation. Typically, everyone’s right to privacy is affected by new rules on interception of communications, databases and data retention, and exchange of personal information across borders.24 Between the top and the base of the pyramid, certain groups of individuals are affected more than the average citizen by counter-terrorism measures, and many of these interferences easily escalate into violations of human rights law.25 Immigrants or ethnic or religious minorities are often targeted by counter-terrorism measures affecting a broad range of human rights. Persons fleeing persecution in their own country are confronted with tighter controls of international borders in the name of countering terrorism, effectively preventing them from exercising their human right to leave their own country.26 Even human rights defenders may find themselves targeted, as associations, public gatherings, and fundraising are subject to tighter control by the authorities.
The metaphor of a pyramid demonstrates that the perception that insistence on the importance of human rights in the fight against terrorism would seek to defend the terrorists is wrong. Everyone’s human rights are affected to a lesser or greater degree by counter-terrorism measures, and keeping all counter-terrorism legislation under careful public scrutiny is the best way to ensure that measures presented as targeting terrorism do not result in the erosion of human rights in general.
The prohibition against torture or any other form of cruel, inhuman, or degrading treatment or punishment is an absolute human right that allows for no exception, even during times of emergency.27 Accordingly, it is very rare that states would actually legislate to allow for torture. Proposals of legalized forms of torture, such as courts being empowered to issue ‘torture warrants’ in order to administer lawful torture in a ‘ticking-bomb scenario’ (which assumes that the police have captured a terrorist who refuses to reveal the location of a bomb that will soon detonate and kill thousands of innocent people), have remained hypothetical.28 Furthermore, governments will normally deny that extra-legal torture is used by their law enforcement or intelligence agencies or military forces. Nevertheless, the practice of subjecting terrorist suspects or their presumed associates to torture or related practices became widespread after 9/11 and many long-term patterns of using torture against terrorist suspects were also revealed.29
There are various ways in which many governments have ended up compromising the absolute prohibition against torture. First, denial of the extraterritorial applicability of the Convention against Torture (UNCAT) and the ICCPR was used as an argument by the USA to cover the engagement in torture of military forces or intelligence agencies abroad. Second, some states, such as the UK, relied on information obtained by torture ‘for operational purposes’ and various forms of cooperation with states that practise torture to circumvent existing rules about torture. Third, by using notions such as ‘enhanced interrogation techniques’ (USA) or ‘moderate physical pressure’ (Israel), some governments tried to shift the barrier between what is prohibited and what is permitted. Fourth, some governments have tried to relax the standard for sending a person to another country under the risk of torture or other ill-treatment by proposing the replacement of an absolute prohibition in situations of ‘real risk’ with a ‘balancing test’, a ‘more likely than not’ standard, or shifting the responsibility to the receiving state through the use of diplomatic assurances.30 Finally, there has been a lack of investigation and accountability in cases where allegations of torture of terrorist suspects have been made. In Spain, for instance, the authorities maintained that allegations of ill-treatment were standard operating methods of terrorist organizations and, therefore, prima facie unfounded.
In a report dealing with the role of intelligence agencies and their oversight bodies in countering terrorism, the Special Rapporteur on human rights and counter-terrorism applied the principles of state responsibility and concluded that any form of collusion in torture or other prohibited treatment by intelligence agencies amounts to a human rights violation.31
In the counter-terrorism context, practices breaching the prohibition against torture are often coupled with, and shielded by, secret or arbitrary detention and the denial of a fair trial. The right to liberty of the person and the right to a fair trial are guaranteed, respectively, by Articles 9 and 14 ICCPR.32 Resort by governments to emergency powers while countering terrorism constitutes a major challenge to these guarantees, as neither of these provisions is on the list of non-derogable rights contained in Article 4(2) ICCPR. Only the requirement of legality in the field of criminal law of Article 15 ICCPR, including the principles of nullum crimen sine lege and the prohibition of retroactive criminal laws, is explicitly listed as non-derogable. However, in its General Comments on states of emergency and the right to a fair trial, the Human Rights Committee has clarified that the rights to liberty and a fair trial nevertheless include dimensions from which there can never be derogation.33 Arbitrary detention and denial of court review over any form of detention are prohibited at all times. The fundamental principles of fair trial, including the presumption of innocence and the requirement that only a court can order a criminal punishment, must equally be respected during a state of emergency.
As a consequence, laws and practices that are applied in the name of combating terrorism may be in violation of the rights to liberty and a fair trial. Secret or unacknowledged detention automatically violates the prohibition against arbitrary detention and in some cases also amounts to prohibited disappearance of the person.34 Even narrowly crafted provisions on incommunicado detention, or on delays in effective court review over the lawfulness of detention, easily result in breaches of Article 9 ICCPR. This risk can be demonstrated by a reference to Spain, which despite international criticism insisted on a regime of incommunicado detention, denying terrorist suspects contact with a freely chosen lawyer during the initial period of detention. The ex officio appointment of a lawyer for a detainee, whom he or she may not even get to meet, does not amount to effective protection of the rights of the detainee, including against any form of torture or other prohibited treatment.35
The US detention facility at Guantánamo Bay has remained a notorious symbol of practices of long-term detention of terrorist suspects without trial. Many other states continue also to detain terrorist suspects or their presumed associates without trial or even any criminal charges. Hence, the first fundamental dimension of the right to a fair trial, access to a court, is denied and as a consequence the persons concerned cannot exercise any of their fair trial rights. Some governments, including the US, have referred to the war paradigm as the framework for their counter-terrorism measures, seeking to justify long-term detention without trial as long as the ‘war on terror’ continues. Under a law enforcement paradigm that treats terrorism as a serious crime, however, it is evident that the purpose of detaining terrorist suspects must be the investigation of their alleged crimes in preparation of a criminal trial.
Even in countries in which terrorist suspects are brought before a court for trial, there may be serious deviations from international human rights standards. Through special legislation, terrorism cases may be dealt with by military or special courts. The trying of p. 615↵civilians by a military court as such is problematic under the right to a fair trial. Moreover, outright violations of Article 14 ICCPR may result from the lack of independence and impartiality of the judges of a military or special court and from undue interference by the executive in deciding that a case will be tried by a military or special court, in the worst cases even after acquittal by an ordinary court. In addition, trials before military or special courts may involve restrictions on the rights of the defence, including in respect of secret evidence, denial of full communication between client and counsel, and breaches of the principle of equality of arms, for instance through restrictions on access by the defence to exculpatory evidence. As to the last-mentioned example, terrorist trials often involve a huge amount of primary material such as transcripts of intercepted telephone calls. If only the prosecution has access to the full records and if it presents to the court only a carefully selected sample, this may result in bias against the defence who may wish to contest the value of the excerpts as evidence by putting them into a broader context. However, this may only be possible if access to exculpatory evidence not presented by the prosecution to the court is provided to the defence, under terms that allow its proper examination.
A general solution to the challenges related to the detention and trial of terrorist suspects can be identified in the ‘principle of normalcy’. Terrorism should be treated as a serious form of crime which is subject to ordinary laws on criminal procedure and dealt with by ordinary courts. This is a recommended course of action for avoiding the temptation to engage in practices that violate international human rights law.36
5.3 Right to Non-Discrimination
As demonstrated by the pyramid metaphor referred to at the beginning of Section 5, not everyone’s human rights are equally affected by counter-terrorism measures. An alarming trend in the post-9/11 era has been the increased use of ‘terrorist profiling’ as a significant component of states’ counter-terrorism efforts.37 Profiling has been applied, for instance, in the context of data-mining initiatives, that is, searches of personal data sets according to presumed characteristics of suspects. But it also occurs in less explicit forms. For example, law enforcement agents often rely on sets of physical characteristics when deciding whom to stop and search for counter-terrorism purposes. Even when there are no explicit instructions to target specific groups, stop-and-search powers may disproportionately affect persons of a certain ethnic or religious appearance.
When law enforcement agents use broad profiles that reflect unexamined generalizations, their practices may constitute disproportionate interferences with human rights. In particular, profiling based on stereotypical assumptions that persons of a certain ‘race’, national or ethnic origin, or religion are particularly likely to be involved in terrorism may lead to practices that are incompatible with the principle of non-discrimination. Such profiling is also ineffective. A now classic case is the so-called Rasterfahndung programme, initiated by the German authorities in the wake of 9/11 to identify terrorist ‘sleepers’. The German police forces collected personal records of several million individuals from public and private databases. The criteria for the search included: being male, age 18–40, current or former student, Muslim denomination, and a link through birth or nationality to one p. 616↵of several specified countries with a predominantly Muslim population. Approximately 32,000 persons were identified as potential terrorist sleepers and more closely examined. In none of these cases did the Rasterfahndung lead to bringing criminal charges for terrorism-related offences. The programme was eventually found to be unconstitutional by the German Constitutional Court.38
In the UK, police forces relied on profiles based on a person’s ethnic and/or religious appearance when conducting stops, document checks, or searches for counter-terrorism purposes. Accordingly, stops and searches under section 44 of the Terrorism Act 2000, which authorized the police in designated areas to stop and search people without having to show reasonable suspicion, disproportionately affected ethnic minorities, in particular Asian and black persons.39
At worst, terrorist profiling is not only legally and morally wrong and ineffective, it may even be counterproductive. Terrorist organizations can easily evade the profiles employed by the authorities and adjust their tactics accordingly, for instance when recruiting suicide bombers and choosing them for a mission. Profiling may also have negative effects on the targeted minorities. Their stigmatization may result in a feeling of alienation and end up facilitating recruitment to terrorism from within the group.
The Special Rapporteur on human rights and counter-terrorism has, therefore, recommended abandonment of profiling based on group characteristics and its replacement with a combination of universal controls affecting everyone equally, genuinely random searches coupled with proper monitoring to secure that they do not transform into unregulated de facto targeting of specific groups, and profiling based on individual conduct instead of group membership.40
5.4 Economic, Social, and Cultural Rights
The examples given in Section 5.3 all relate to well-known and widely discussed human rights impacts of counter-terrorism measures. However, it is important to understand that all human rights are affected, to a greater or lesser extent, and in respect of a smaller or larger group of individuals, by counter-terrorism measures.
An under-explored issue relates to the effect of counter-terrorism measures upon economic, social, and cultural rights.41 While the equal status, indivisibility, and interdependence of all human rights has been broadly acknowledged,42 the discourse on human rights and counter-terrorism has tended to focus on civil and political rights. Even among the UN human rights treaty bodies, the Human Rights Committee and the Committee Against Torture have been much more systematic than the other treaty bodies in questioning and assessing states’ compliance with human rights while countering terrorism. The Committee on Economic, Social and Cultural Rights has given much less attention to counter-terrorism measures.
A prime example that demonstrates the need for a systematic assessment is the construction of a wall or barrier into the Occupied Palestinian Territory (OPT) by Israel, the occupying power. Explained as a security measure against the risk of suicide terrorists p. 617↵trying to enter Israel or to attack Israeli settlements inside the OPT, the wall or barrier has resulted not only in the construction of a major physical barrier between Israel and the OPT but also in a whole architecture of associated obstacles, barriers, walls, checkpoints, and so on within the OPT.43 As a consequence, Palestinian individuals find their everyday lives devastated through multiple forms of hardship, many of which are directly related to their enjoyment of economic, social, and cultural rights. For instance, access to hospitals, schools, water resources, olive groves, and other places of work are all adversely affected and in many cases to a degree that amounts to a violation of, respectively, the rights to health, education, water, an adequate standard of living, and work. In its advisory opinion on the Israeli wall, the International Court of Justice concluded that Israel was in breach of international law, including of the International Covenant on Economic, Social and Cultural Rights, through the construction of the wall.44
The case of the Israeli wall illustrates that economic, social, and cultural rights must also be taken into account when societies design their security infrastructure, including their measures against terrorism. But economic, social, and cultural rights also have another important role in ensuring responses to terrorism conform to human rights. Violations of human rights in general have been identified in the UN Global Counter-Terrorism Strategy as one of the conditions conducive to the spread of terrorism.45 Amongst the other identified conducive conditions there are many that have direct links with economic, social, and cultural rights. Hence, long-term work for the promotion of the full enjoyment of economic, social, and cultural rights can be seen as an important element in building societies without terrorism.46
6 An Institutional Challenge: Terrorist Listing by the Security Council
While states are responsible for many violations of human rights in the name of countering terrorism, the listing of terrorist individuals or entities is one of the rare occasions where the UN itself engages in action that has a direct effect upon individuals. Therefore, the question of the UN’s compliance with human rights arises.47
In Resolution 1373, the Security Council identified the terrorist attacks of 9/11, ‘like any act of international terrorism’, as a threat to international peace and security. Acting under Chapter VII of the UN Charter, it imposed upon all member states a range of legally binding obligations to counter terrorism, including an obligation to report on their measures to a new body, the CTC. This Committee is composed of the diplomatic representatives of the 15 states that at any given time serve as members of the Security Council.
Despite its fundamental role in UN action against terrorism, Resolution 1373 did not result in the blacklisting of terrorists by the UN. The UN is not involved in any general p. 618↵listing of terrorists. Instead, the listing system in place is based on the earlier Security Council Resolution 1267 of 1999 and is today limited to individuals or entities belonging to or associated with al-Qaida or ISIL. The list is maintained by a separate Security Council committee, the 1267 Sanctions Committee, and it includes over 250 individuals and almost 100 entities.48 As Resolution 1267 was also adopted under Chapter VII of the UN Charter, the implementation of the resolution and the listing decisions by the 1267 Committee are often perceived by states as Charter obligations that under Article 103 UN Charter trump competing treaty obligations, including those emanating from human rights treaties. Article 103 proclaims the primacy of Charter obligations over any other agreement to which a state is party. As a consequence, many governments take the view that national authorities enjoy no discretion whatsoever in implementing the sanctions but must without hesitation freeze the assets, and prevent international travel, of any person put on the 1267 terrorist list. Some governments, as well as many scholars and human rights experts, however, argue that as long as there is no effective independent review of listing and delisting decisions at the UN level, member states must secure such review in respect of their own measures implementing the UN-imposed sanctions.49
Against this background, it is natural that there is persistent concern that the Security Council itself must comply with human rights when listing or delisting persons. Several rounds of improvement have already been made, including Security Council Resolution 1822 of 2008, which introduced a duty to inform the person of the reasons for his or her placement on the list, as well as a mandatory two-year review by the 1267 Committee of all the entries in the list. However, these piecemeal improvements did not remedy the main shortcomings of the 1267 listing procedure.
In October 2008, the Human Rights Committee concluded that Belgium had violated Articles 17 (right to privacy) and 12 (freedom of movement) ICCPR in respect of a Belgian couple, because it had initiated their listing as terrorists by the 1267 Committee, and was subsequently unable to have them delisted even though no case had been proven against them.50 On 20 July 2009, the 1267 Committee finally removed the couple from its list. This decision by the 1267 Committee is indicative of a broader acknowledgement that there is a need for judicial or other independent review of terrorist listing. Although Belgium was unable to reach a delisting decision earlier, it managed to obtain consensus within the 1267 Committee, after the Human Rights Committee had concluded that because it initiated the listing, Belgium was responsible for a human rights violation. The subsequent decision to delist these individuals can be seen as a recognition of the Committee’s possibility to conduct indirect quasi-judicial review of the consequences of the listing by the Security Council, as long as a state that has ratified the Optional Protocol to the ICCPR can be shown to have had a strong enough role in initiating (or implementing) the listing.
Further reforms have been introduced through subsequent Security Council resolutions.51 Yet listing decisions are still taken by a political body composed of diplomatic p. 619↵representatives of the 15 member states of the Security Council. States do not necessarily disclose any real evidence for a listing proposal even to each other but may be acting on the basis of secret intelligence information, even if a ‘statement of case’ is nowadays required.52 An independent delisting Ombudsperson acts upon requests by listed individuals or entities and may recommend delisting.53 Remarkably, the delisting recommendation by the Ombudsperson becomes a decision to delist by default, unless either the 1267 Committee by consensus decides to retain the listing or any member state of the Security Council refers the case to the full Security Council where normal voting rules apply, so that delisting will require a qualified majority and can be blocked by any of the five permanent members.54 Independently of delisting requests sent to the Ombudsperson, the 1267 Committee will review every entry on the list every three years.55
Despite the gradual improvements towards transparency and adequate procedure, the terrorist listing procedure of the 1267 Committee fails to meet the requirements of a ‘fair and clear procedure’, a notion used to describe the level of procedural guarantees that one can expect an intergovernmental organization to deliver, not to speak of full compliance with the right to a fair trial, as would be required if a state were to impose criminal sanctions. Hence, calls for judicial review, either of the listing itself at the UN level or of the implementation of the sanctions at the national (or EU) level, are still vocal.
Important indications of this broad trend of calling for judicial review are the Kadi ruling by the European Court of Justice, quashing EU-level implementation of sanctions imposed by the 1267 Committee due to insufficient procedural guarantees,56 the subsequent Nada ruling by the European Court of Human Rights,57 and a UN General Assembly resolution adopted in 2008, urging states ‘while ensuring full compliance with their international obligations’, to include ‘adequate human rights guarantees’ in their national procedures for the listing of terrorist individuals and entities.58 This statement should be seen as an appeal to states to implement UN-imposed sanctions against terrorists not blindly but subject to adequate human rights guarantees. Equally importantly, since 2008 the Security Council itself has repeatedly acknowledged that the UN should comply with human rights when listing individuals.59
7 Conclusion: Will the Pendulum be Swinging Back and Forth?
The terrorist acts of 9/11 led to the worst backlash in the international protection of human rights since the inclusion of the notion of human rights in the UN Charter, in the aftermath of the Second World War. In this sense, terrorism can be seen as the antithesis of human rights. Still, one needs to remember that what constituted the backlash was the p. 620↵reaction and overreaction by governments that introduced a whole wave of retrogressive measures in respect of human rights. Furthermore, the terrorist attacks were more a triggering cause than a structural one. Many of the human-rights-hostile practices employed by governments in the name of countering terrorism existed prior to 2001 in some parts of the world, albeit that those practices then became much more widespread.
Two things have been disheartening in the backlash. First, the ease with which some governments that were known as champions of the international concern for human rights changed course and became generators of legal arguments and doctrines that seek to deny the applicability or substantive contents of human rights law when they engage in measures against terrorism. Such constructions try to turn the clock back by 75 years, to times when human rights were not yet recognized as a matter of concern for the international community. Even worse, some Western governments, such as the George W Bush administration of the USA, appeared at times to try to turn the clock back by 200 years, to times before Immanuel Kant, by reducing a human person to a mere means, instead of treating every individual always as an end. Mass murderers are recognized as an end in the traditional criminal law system, which aims at establishing the facts, the culpability of the person, and the punishment. But suspected terrorists—or even persons only suspected of knowing something of relevance—are reduced to a means when they are tortured to extract information without any intention to bring them before a court for their possible crimes. Whether a government itself tortures or whether it is complicit in creating an international industry of torture for the production of intelligence information does not matter.
The second disheartening development is that even if the damage to human rights triggered by the terrorist acts of 9/11 was acknowledged and the process of repairs started, any new incidents of terrorism tend to cause the pendulum to swing back again. Even where important steps have been taken to depart from human-rights-hostile practices, those lessons learned are not necessarily permanent.
Within the UN Security Council and other important engines of counter-terrorism measures, it has been gradually understood that violating human rights in the name of countering terrorism is not only wrong in legal and moral terms but also counterproductive for any effective strategy against terrorism, as respect for, and promotion of, human rights are acknowledged as important elements in building societies without terrorism. Still, also at the UN level, a further terrorist attack may trigger a response that reverses what has been gradually achieved towards better respect for the rule of law.60
The main lesson from the more than 20 years since 9/11 is that human rights voices matter, as public warnings, as constructive critiques, and as a strategic perspective to a successful fight against terrorism. That said, every silver lining has its cloud, in this case meaning that there are no permanent victories, as any new act of terrorism will easily trigger responses that are incompatible with human rights.
Reports by the UN Special Rapporteur on human rights and counter-terrorism: <http://www.ohchr.org/EN/Issues/Terrorism/Pages/Annual.aspx>
UN website on countering terrorism: <https://www.un.org/counterterrorism/>
Website on prevention of terrorism by the UN Office on Drugs and Crime: <https://www.unodc.org/unodc/en/terrorism/>
Questions for Reflection
The author proposes replacing the two alternative purposes of terrorism—‘provoking a state of terror’ or ‘compelling a government’—by an assessment of whether the perpetrator reduced the victims to mere means, thereby instrumentalizing them. Reflect on the rationale of the proposal.
How is your own life, and perhaps your enjoyment of human rights, affected by counter-terrorism measures?
Is the author correct in asserting that human rights violations in the name of countering terrorism are counterproductive and that strict compliance with human rights is the best way of securing that counter-terrorism measures actually work?
Do terrorists violate human rights as a matter of international law?
1 SC Res 1373 (28 September 2001).
2 By way of SC Res 1988 and 1989 (17 June 2011), the earlier combined al-Qaida and Taliban sanctions regime was split into two separate mechanisms. Resolution 1989 came to constitute the basis for listing individuals or entities associated with al-Qaida by the 1267 Sanctions Committee. On 17 December 2015, the SC adopted Res 2253, which expands the listing criteria to include individuals and entities supporting the Islamic State in Iraq and the Levant (ISIL).
4 CHR Res 2005/80 (21 April 2005).
5 eg CHR Res 2004/44 (19 April 2004). In the preamble, the Commission expresses serious concern ‘at the gross violations of human rights perpetrated by terrorists’.
6 See Report of the Special Rapporteur on human rights and counter-terrorism (Ben Emmerson), A/HRC/20/14 (4 June 2012) para 12: ‘Some still argue that terrorists, rebels and other belligerents cannot commit violations of international human rights law unless the degree of organization, territorial control and State recognition involved in a conflict situation has escalated to the level of a full-blown insurgency or internal armed conflict. However, it is a central tenet of international human rights law that it must keep pace with a changing world. Some of the gravest violations of human rights are nowadays committed by, or on behalf of, non-State actors operating in conflict situations of one kind or another, including by domestic and international terrorist networks. If international human rights law is to keep pace with these changes, the victims of acts of terrorism must now be recognized as victims of grave violations of international human rights law’ (footnotes omitted).
7 eg Rome Statute of the International Criminal Court, Art 7(1) (listing eg torture and disappearance as crimes against humanity).
8 For a summary of the 19 major conventions and protocols dealing with terrorism, see <https://www.un.org/counterterrorism/international-legal-instruments>.
9 Kozma, Nowak, and Scheinin, A World Court of Human Rights—Consolidated Statute and Commentary (Neuer Wissenschaftlicher Verlag, 2010).
11 See Report of the Special Rapporteur on human rights and counter-terrorism, A/HRC/6/17/Add.3 (22 November 2007) in particular para 9.
15 The state of emergency was lifted on 1 November 2017. See <https://www.coe.int/en/web/conventions/full-list?module=declarations-by-treaty&numSte=005&codeNature=0> and <https://treaties.un.org/doc/Publication/CN/2018/CN.337.2018-Eng.pdf>.
16 ICCPR, Art 2(1) provides: ‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant’.
17 eg Lopez Burgos v Uruguay, CCPR/C/13/D/52/1979 (29 July 1981); Gueye et al v France, CCPR/C/35/D/196/1985 (6 April 1989); HRC, Concluding observations: Israel, CCPR/C/79/Add.93 (18 August 1998); HRC, Concluding observations: Israel, CCPR/CO/78/ISR (21 August 2003); HRC, General Comment 31, HRI/GEN/1/Rev.9 (Vol I) 243 (27 May 2008) para 10. See further Chapter 6.
18 This was the expression used in 1950 by the US representative, Mrs Eleanor Roosevelt, in the drafting of the ICCPR. See Third Periodic Report of the USA to the HRC, CCPR/C/USA/3 (28 November 2005) Annex I.
19 Report of the Special Rapporteur on human rights and counter-terrorism, A/HRC/6/17/Add.3 (22 November 2007) para 8.
20 eg Reports of the Special Rapporteur on human rights and counter-terrorism, A/HRC/4/26/Add.2 (16 November 2006) paras 11–18; A/HRC/4/26/Add.3 (14 December 2006) paras 12–17; A/HRC/6/17/Add.2 (7 November 2007) paras 23–4; A/HRC/10/3/Add.2 (16 December 2008) paras 6–14; A/HRC/16/51 (22 December 2010). The last-mentioned report was the final report by the current author as the first Special Rapporteur on human rights and counter-terrorism, identifying ten areas of best practice in the fight against terrorism, including a model national law definition of terrorism (para 28).
21 Report of the Special Rapporteur on counter-terrorism and human rights, E/CN.4/2006/98 (28 December 2005).
22 SC Res 1566 (8 October 2004) para 3. For the view that customary international law contains a norm defining the international crime of terrorism, at least in peacetime, see Special Tribunal for Lebanon, Interlocutory Decision on the Applicable Law, STL-11–01/1 (16 February 2011) in particular para 85.
23 See Scheinin, ‘A Proposal for a Kantian Definition of Terrorism: Leading the World Requires Cosmopolitan Ethos’ in Vedaschi and Scheppele (eds), 9/11 and the Rise of Global Anti-Terrorism Law: How the UN Security Council Rules the World (CUP, 2021) 15.
24 See Report of the Special Rapporteur on human rights and counter-terrorism, A/HRC/13/37 (28 December 2009). Since the revelations by Edward Snowden in 2013, there is much wider attention to the right to privacy than before, including at the UN level.
25 For an assessment of the gender impact of counter-terrorism, see Report of the Special Rapporteur on human rights and counter-terrorism, A/64/211 (3 August 2009); Report of the Special Rapporteur on human rights and counter-terrorism, A/HRC/46/36 (22 January 2021).
26 See Report of the Special Rapporteur on human rights and counter-terrorism, A/62/263 (15 August 2007).
28 For a critique of a broad interpretation of what constitutes a ‘ticking bomb’ scenario, see Report of the Special Rapporteur on human rights and counter-terrorism, A/HRC/6/17/Add.4 (16 November 2007) paras 20–1.
29 eg Amnesty International, Saudi Arabia: Assaulting Human Rights in the Name of Counter-Terrorism (22 July 2009).
30 While many states, including Canada and the USA, demonstrated this trend, a systematic effort towards ‘reconsidering’ the rule of non-refoulement was made by the UK and several other states in Saadi v Italy (2009) 49 EHRR 30. The Grand Chamber of the European Court of Human Rights maintained its position that the rule is absolute.
31 Report of the Special Rapporteur on human rights and counter-terrorism, A/HRC/10/3 (4 February 2009).
33 HRC, General Comment 29, in particular paras 12–16; HRC, General Comment 32, HRI/GEN/1/Rev.9 (Vol 1) 248 (27 May 2008) in particular para 6; HRC, General Comment 35, CCPR/C/GC/35 (16 December 2014) paras 65–7.
34 See International Convention for the Protection of All Persons from Enforced Disappearance, Art 2.
35 See Report of the Special Rapporteur on counter-terrorism and human rights, A/HRC/10/3/Add.2 (16 December 2008).
36 For a systematic assessment of the right to a fair trial in the context of countering terrorism, see Report of the Special Rapporteur on counter-terrorism and human rights, A/63/223 (6 August 2008). For the ‘principle of normalcy’ as one element of best practice in countering terrorism, see Report of the Special Rapporteur on counter-terrorism and human rights, A/HRC/16/51 (22 December 2010) paras 17–21.
37 Report of the Special Rapporteur on human rights and counter-terrorism, A/HRC/4/26 (29 January 2007).
38 Bundesverfassungsgericht, 1 BvR 518/02, 4 April 2006.
39 Report of the Special Rapporteur on human rights and counter-terrorism, A/HRC/4/26 (29 January 2007) para 37. With regard to the recent situation, see eg Home Office, Operation of police powers under the Terrorism Act 2000 and subsequent legislation (4 March 2021).
40 Report of the Special Rapporteur, paras 83–9.
41 See Report of the Special Rapporteur on human rights and counter-terrorism, A/HRC/6/17 (21 November 2007).
43 See Report of the Special Rapporteur on human rights and counter-terrorism, A/HRC/6/17/Add.4 (16 November 2007).
44 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (Advisory Opinion)  ICJ Rep 136, para 116.
45 GA Res 60/288 (20 September 2006).
46 For a broader discussion on the role of economic, social, and cultural rights in the context of countering terrorism, see the Report of the Special Rapporteur on human rights and counter-terrorism, A/HRC/6/17 (21 November 2007).
48 See list established and maintained by the 1267 Committee with respect to individuals, groups, undertakings and other entities associated with ISIL (Da’esh) or Al-Qaida, <https://www.un.org/securitycouncil/sanctions/1267/aq_sanctions_list/>.
49 See Report of the Special Rapporteur on human rights and counter-terrorism, A/61/267 (16 August 2006) in particular para 39. See also Nada v Switzerland (2013) 56 EHRR 18, in particular para 212 (where the Court ‘further finds that there was nothing in the Security Council resolutions to prevent the Swiss authorities from introducing mechanisms to verify the measures taken at national level pursuant to those resolutions’) and Al-Dulimi and Montana Management Inc v Switzerland, App no 5809/08, Judgment of 21 June 2016.
50 Sayadi and Vinck v Belgium, CCPR/C/94/D/1472/2006 (29 December 2008).
51 See in particular SC Res 1989 (17 June 2011) and SC Res 2083 (17 December 2012). The latest resolution is SC Res 2368 (20 July 2017).
52 SC Res 2083 (17 December 2012), para 11.
53 SC Res 2083, para 19. The latest renewal of the mandate is in SC Res 2368 (2017).
54 SC Res 2083, para 21.
55 SC Res 2083, para 42.
56 Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat International Foundation v Council of the European Union  ECR I-6351. The 1267 Committee decided on 5 October 2012 to delist Mr Kadi, after he had been subject to a travel ban and assets freeze for 11 years. In a new ruling of 18 July 2013, the European Court of Justice affirmed the rationale of its own earlier judgment.
57 (2013) 56 EHRR 18.
58 GA Res 63/185 (3 March 2009) para 19. The resolution has been reaffirmed several times.
59 See SC Res 1822 (30 June 2008) (‘Reaffirming the need to combat by all means, in accordance with the Charter of the United Nations and international law, including applicable international human rights, refugee, and humanitarian law, threats to international peace and security caused by terrorist acts, stressing in this regard the important role the United Nations plays in leading and coordinating this effort’).
60 Reference is made to the hasty and unanimous adoption of SC Res 2178 (24 September 2015) on foreign terrorist fighters. For a critique of the resolution, see <https://www.justsecurity.org/15407/post-911-panic-security-council-resolution-foreign-terrorist-fighters-scheinin/>.