Ráðstefna til heiðurs Shirin Ebadi handhafa friðarverðlauna Nóbels Háskólinn á Akureyri 6. nóvember 2004 Björg Thorarensen, professor of law, University of Iceland: Human rights and UN action against terrorism At the outset, I would like to thank the organisers of the seminar to give me the opportunity to participate here today. I also express my congratulations to Mrs. Shirin Abadi with her honorary degree and as well to the University of Akureyri on this important event. My task here is to discuss human rights and UN action against terrorism. This is an extensive issue, and I will discuss only certain aspects of some crucial questions related to the subject. The issue of combating terrorism has become a priority for the entire international community and one of the major tasks within the United Nations. Large range of initiatives have been taken within the United Nations system, by various UN bodies. I intend to focus on the most important but at the same the most controversial activity within the United Nations in the battle against terrorism, the counter terrorism measures provided for in the resolutions of the UN Security Council. It is an undisputed fact that terrorism is one of the most serious threats to human rights in the world today, aiming at the breakdown of democratic orders and taking the lives of hundreds of even thousands of innocent people every year. At the same time as it is extremely important and indeed the duty of states to react to such threats, there is a great danger that forceful action of counter-measures against terrorism may seriously violate human rights. This situation requires the observance of a delicate balance between two competing interests, as there is a perpetual tension between clashing interests, the protection of civilians and national security on one hand and individual rights on the other hand. Under exceptional circumstances terrorist activities and threats of terrorism may justify temporary derogation from human rights, in the state of emergency. However it is of paramount importance that decisions restricting human rights in the aim to preserve national security are lawful and proportionate, subject to review and effective remedies provided to individuals who claim that their rights are violated by such action. When it comes to the Security Council of the United Nations two urgent questions arise. Firstly, how the legitimacy of the Security Council to take binding decisions for all the member states of the UN can be explained or justified. Secondly, to what extent is it 1 Ráðstefna til heiðurs Shirin Ebadi handhafa friðarverðlauna Nóbels Háskólinn á Akureyri 6. nóvember 2004 possible to have such decisions reviewed, in cases where an individual claim that the Council’s decisions, implemented by national authorities, directly affect and restrict his fundamental human rights. But let us first look into why these questions are now more urgent than ever and how the Security Council has performed its most important task of the recent years, to react to threats of terrorism. The Security Council is the pre-eminent authoritative body within the UN system, with the primary responsibility of maintaining international peace and security in the world. It is given extraordinary powers through the Charter of the United Nations to carry out this function. Accordingly, the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken. Furthermore, and what is of paramount importance, the Security Council is the only body within the UN system whose decisions are binding upon all Member States, whereas under Article 25 of the Charter, Members of the United Nations agree to accept and carry out the Council’s decisions. This means that states must take immediate action to implement the decisions of the Security Council and state authorities are afforded little or no discretion in this respect. It is necessary to note that according to Article 103 of the Charter the obligations of the Members of the United Nations under the Charter, shall prevail over any other international agreement or obligation in the event of conflict. This raises numerous questions such as whether and to what extent the states can review the resolutions of the Security Council with regard to their international human rights obligations in the event of conflict or whether the Council’s decisions are even supposed to prevail over such obligations? In this respect it is however important to bear in mind that the Council is bound by the basic principles on human rights stipulated in the Charter itself. Namely, Article 1 of the Charter declares that one of the major objectives of the United Nations is to promote and encourage respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. Furthermore, Article 55 and 56 of the Charter reaffirm and elaborate the organisation’s task to promote universal respect for, and observance of, human rights and fundamental freedoms and member state shall take joint and separate action to achieve this. 2 Ráðstefna til heiðurs Shirin Ebadi handhafa friðarverðlauna Nóbels Háskólinn á Akureyri 6. nóvember 2004 It will not be possible to discuss the development in the tasks and functions of the Security Council since its foundation in 1945. However, it most be born in mind that the practical impact of the wide-ranging powers of the Council where little until the end of the eighties. This was due the stalemate situation created under the cold war where the five permanent members of the Council most frequently vetoed all decisions tackling crisis situations threatening peace in the world. But there has been an immense increase in the Council’s activity during the immediate post Cold War era which some have described as if the body changed overnight. In the atmosphere of a new solidarity between former rivals and super powers among the permanent five members a new found efficiency has been developed within the Council, which is reflected in an increased activity. This was made possible because of what has been called a striking reduction in the use of the veto. At the same time the Council has, through liberal interpretation on its mandate under the Charter to maintain peace and security, expanded its role into new areas. Humanitarian interventions and peace-keeping operations, the establishment of the ad hoc criminal courts dealing with crimes committed in former Yugoslavia and Rwanda can be mentioned as a few examples. Finally, the Council’s firm approach that international terrorism constitutes a threat to international peace and security and its forceful measures to address this problem are clearly a part of this progressive development, One of the first incidents were the Security Council used its power of sanctions to combat terrorism was resolution 731/1992 on sanctions against Libya for not cooperating to establish criminal responsibility over terrorists, involved in bombing of the Pan Am flight over Lockerbie in 1988. Furthermore, before the catastrophic attacks in the United States on 11th September 2001, the Council had already taken concrete measures in several resolutions aimed at the Taliban regime in Afghanistan, as the Talibans continued to provide safe haven to Usama Bin Laden who was already charged in the United States for bombings of the US embassies in Kenya and Tanzania. On 15 October 1999 the Security Council adopted Resolution 1267(1999). There the Council demanded that the Taliban turn over Usama bin Laden without further delay to appropriate authorities. The resolution also ordered all States to freeze funds and other financial resources, including funds derived or generated from property owned or 3 Ráðstefna til heiðurs Shirin Ebadi handhafa friðarverðlauna Nóbels Háskólinn á Akureyri 6. nóvember 2004 controlled directly or indirectly by the Talibans. For the purpose of ensuring that States implemented these measures the resolution also established a special committee, the Taliban Sanction Committee. This body should designate further the funds or other financial resources of the Talibans as well as considering requests for exemptions from those measures. In Resolution 1333(2000) the Security Council elaborated further the objectives of the previous resolutions against the Talibans; Now the Council instructed the Taliban Sanctions Committee to maintain an updated list, based on information provided by States and regional organisations, of the individuals and entities designated as being associated with Usama bin Laden and the Al-Qaida organisation. In accordance with this resolution, a long list of individuals and organisations was prepared by the Taliban Sanction Committee and updated regularly. This imposed the duty upon States to freeze all funds and other financial resources, including funds derived from property owned or controlled directly or indirectly by those individuals whose names were on the list. In the aftermath of 11th September 2001 the Security Council took more extensive measures. On 28 September that year, the Security Council adopted resolution 1373 (2001), obligating States to implement more effective counter-terrorism measures at the national level and to increase international cooperation in the struggle against terrorism. The resolution created the Counter-Terrorism Committee (CTC) to monitor action on this issue and to receive regularly reports from States on measures taken for implementation. Resolution 1373 reaffirms the obligations of states to prevent and suppress the financing of terrorist act; criminalize terrorist acts and the wilful provision or collection of funds in order to carry out terrorist acts, to freeze funds and other financial assets or economic resources of persons who commit or participate in terrorist acts. The resolution also imposes several obligations concerning judicial, administrative and police assistance and co-operation; effective border control of identity papers and travel documents and the exchange of operational information and intelligence. Furthermore, it calls on States to refuse to grant asylum to those who finance, plan, facilitate or commit acts of terrorism. For that purpose States shall take appropriate measures before granting refugee status, for the purpose of ensuring that the asylum-seeker has not planned, facilitated or participated 4 Ráðstefna til heiðurs Shirin Ebadi handhafa friðarverðlauna Nóbels Háskólinn á Akureyri 6. nóvember 2004 in the commission of terrorist acts and ensure that refugee status is not abused by the perpetrators, organizers or facilitators of terrorist acts. As one can see, Resolution 1373 entails heavy consequences due to its compulsory nature and the wide range of obligations it imposes upon states. It resulted in rapid implementation by most States, particularly through amendment and enactment of new legislation in criminal law, criminal procedure and immigration law. To some extent the antiterrorist legislation and counter-measures were harmonized between states; this was the case within the European Union. As measures against terrorism fall under the provisions of the Treaty on European Union relating to the common foreign and security policy, the resolutions of the Security Council were implemented through EC Regulations and other actions of the EU such as the European Council’s Framework Decision on Combating Terrorism adopted on 13 June 2002. In this decision the legal term of “terrorist act” was defined as a criminal offence and heavy penalties stipulated for such offences. Such definition is however still missing in the field of international law and is indeed quite a controversial issue where there is as yet no consensus reached. In many states, resolution 1373 resulted in the adoption of new rules providing the police with more extensive investigating measures, such as collection and exchange of personal data and police surveillance of individuals suspected of terrorism and stricter rules in the field of immigration and asylum law. Many of these measures have involved serious challenges as regards limitation of human rights specifically those rights protected in the UN Covenant on Civil and Political Rights. It is therefore not surprising that soon after the adoption of resolution 1373 many expressed their concern over its wide restrictions on human rights and no that attention was paid in the document nor reference made to international obligations on human rights. Despite the importance of the fight against terrorism, many UN human rights bodies as well as various human rights organizations worry that counter-terrorism measures are infringing on human rights. The monitoring bodies of specific human rights instruments, such as the Human Rights Committee monitoring the ICCPR, has expressed concern over anti-terrorist legislation in some states. In addition, UN special rapporteurs and independent experts made a special declaration on the subject in the year 2003. There they state that although they support the unequivocal condemnation of terrorism, they 5 Ráðstefna til heiðurs Shirin Ebadi handhafa friðarverðlauna Nóbels Háskólinn á Akureyri 6. nóvember 2004 voice profound concern at the multiplication of policies, legislation and practices increasingly being adopted by many countries in the name of the fight against terrorism which affect negatively the enjoyment of virtually all human rights - civil, cultural, economic, political and social. They also draw attention to the dangers inherent in the indiscriminate use of the term "terrorism", and the resulting new categories of discrimination. They deplore the fact that, under the pretext of combating terrorism, human rights defenders are threatened and vulnerable groups are targeted and discriminated against on the basis of origin and socio-economic status, in particular migrants, refugees and asylum-seekers and indigenous peoples. Finally, they strongly affirm that any measures taken by States to combat terrorism must be in accordance with States' obligations under the international human rights instruments. As a reaction to a harsh criticism by UN human rights bodies and not the less by various international and national human rights organizations that Security Council’s counter measures against terrorism lacked completely reference to human rights obligations, the Security Council has changed its approach in recent resolutions dealing with terrorism. Accordingly in Resolution 1456(2003) the Council declared that “States must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law." This principle has been reiterated in the Council’s later resolutions no. 1535(2004) and 1566(2004) where it requests the Counter-Terrorism Committee to develop a set of best practices to assist states in implementing the provisions of res. 1373(2001) Now I should like to turn to the issue regarding individuals claiming that they are subject to human rights violations resulting from the Security Council’s measures against terrorists, especially by the concrete provisions which are aimed at certain individuals. Who will be made responsible for such a violation? This has indeed in practice raised complicated questions on the supranational nature of the Council’s resolutions. It touches upon, not only crucial issues of international law, but also constitutional law, human rights law and European law. This is specifically relevant with regard to the antiterrorism resolutions of the Security Council which where implemented through EC Regulations in the EU member states. They called for immediate enforcement of anti- 6 Ráðstefna til heiðurs Shirin Ebadi handhafa friðarverðlauna Nóbels Háskólinn á Akureyri 6. nóvember 2004 terrorist measures, such as freezing orders on funds of certain individuals on the list of the Taliban Sanctions committee, where imposed upon the states through the EU legal framework. The Court of First Instance of the European Communities, was in recent case, (Aden and others v. the EU Council and the Commission of EC) decided on 7 May 2002 confronted with such questions. A group of Swedish citizens of Somali origin initiated proceedings before the court to suspend the operation of a contested EC Regulation implementing Security Council resolution on the freezing of funds, as the names of these individuals had been put on the list from the Taliban Sanction Committee of those suspected of being involved in the financing of terrorism. These individuals claimed, that the EC- regulations infringed their fundamental rights, in particular the right to a fair hearing. Sanctions had been imposed on them although they had not first been heard or given the opportunity to defend themselves, nor had the measures imposing the sanctions been subjected to any judicial review. The sole ground for putting the applicants on the list in Annex I to Regulation No 467/2001 was the inclusion of their names in the list drawn up by the Taliban Sanctions Committee, which had taken its decision on the basis only of information which it had received from unknown sources. It had never been claimed that the applicants infringed any law; nor was there any consideration of whether there had been any breach of the law before the sanctions were implemented. How could the inclusion of their names into these lists be justified? How could the authorities in a democratic state like Sweden where the principle of rule of law and the right of persons suspected of a criminal offence are observed, enforce such arbitrary decision. Despite the very valid argumentation the Court of First instance circumvented the crucial issue and dismissed the claims on the basis of formal requirements. But there are other important cases underway dealing with the related questions on which body will eventually be made responsible for alleged human rights violations resulting from resolutions of the Security Council. Within a few weeks the European Court of Human Rights will deliver a judgment in the case Bosphorus Airways v. Ireland. There the issue is raised whether a EU member state, in this case Ireland shall be made responsible for an EC regulation, implementing some Security Council resolutions of 1992 that provided for economic sanctions against the Federal Republic of Yugoslavia. According this EC regulation and the Security Council resolution a duty was imposed 7 Ráðstefna til heiðurs Shirin Ebadi handhafa friðarverðlauna Nóbels Háskólinn á Akureyri 6. nóvember 2004 upon all member states to impound inter alia all aircrafts in their territories with connection with the Federal Republic of Yugoslavia. The applicant in this case claims that Ireland has violated his right to peaceful enjoyment of its possession by impounding the applicant’s aircrafts in Ireland. Once again, this case is not only raising the well known problem of whether individual EU member states will be made responsible under the European Convention on Human Rights for self-executing acts of EU institutions. It also brings into the picture complex and delicate questions related to the origin of this obligation of states, namely the initial resolution from the UN Security Council. Hopefully this judgment of the European Court of Human Rights will cast some light on how to solve this dilemma. I have now attempted to clarify the problem which many states are confronted with as they are striving in their battle against terrorism and the remedies of the individuals who are affected by such measures. It clearly raises the issue about the legitimacy of the Security Council of the United Nations; I refer to the generally accepted view that for an international institution to be considered as legitimate it must be recognized as a lawful authority; one that confirms to a particular standard and operates in such a manner that its actions and decisions are seen as legally or morally justified and proper. The Security Council is not only enforcing agreed law, it is indeed making new laws which may infringe human rights without being subject to any clear legal limits, any transparent procedural rules or standards of fairness and justice in its decision making and action. Moreover, it is afforded a supranational authority over national legal systems, where these decisions are not subject to review. At the same time, a major charge of illegitimacy of the Council stems from the perception that the Council is dominated by a few states and not truly representative of the rest of the UN body. Moreover, the fact that the veto is held by only five states reflecting an outdated power management and global order, undermines the perceived legitimacy of the rules stemming from the institution. In my opinion any many others who are concerned to promote and not the least to preserve what has been gained in the protection of human rights and fundamental freedoms in the world, it is of vital importance to contemplate seriously measures to solve this contradiction. The principle of the rule of law, is a key element which forms 8 Ráðstefna til heiðurs Shirin Ebadi handhafa friðarverðlauna Nóbels Háskólinn á Akureyri 6. nóvember 2004 the basis for the use of civil rights and liberties by guaranteeing legal certainty, by subjecting power to law and by protecting trust in all democratic societies. It is not enough to assume that the most powerful body of the United Nations takes into account the aim of the UN Charter to respect human rights and fundamental freedoms in its greatly increased activity which may affect indiviudals all over the world. We need to see concrete safeguards to be convinced that the rule of law is observed in reality in the work of the United Nations just as we expect of every member state of the organisation. 9 Ráðstefna til heiðurs Shirin Ebadi handhafa friðarverðlauna Nóbels Háskólinn á Akureyri 6. nóvember 2004 References Resolution 731(1992): Libyan Arab Jamahiriya (21 Jan) Resolution 1267(1999): On the situation in Afghanistan (15 October) Resolution 1333(2000): On the situation in Afghanistan Resolution 1373(2001): Threats to international peace and security caused by terrorist acts Resolution 1456(2003): High-level meeting of the Security Council: combating terrorism Resolution 1535(2004):Threats to international peace and security caused by terrorist acts Resolution 1566(2004):Threats to international peace and security caused by terrorist acts Case concerning questions of interpretation and application of the 1971 Montreal Convention arising from the aerial incident at Lockerbie (Lybia v. the USA and the UK) Preliminary ruling 14 April 1992. ICJ Reports 1992,p. 3. European Council´s Framework Decision on Combating Terrorism adopted on 13 June 2002. Joint statement of UN special rapporteurs and independent experts at their annual meeting in Geneva in June 2003 Aden and others v. the EU Council and the Commission of European Communities. ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE of 7 May 2002 in Case T-306/01 R. (APPLICATION for the suspension of operation of Council Regulation (EC) No 467/2001 of 6 March 2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, and repealing Regulation (EC) No 337/2000 (OJ 2001 L 67, p. 1) and of Commission Regulation (EC) No 2199/2001 of 12 November 2001 amending, for the fourth time, Regulation No 467/2001 (OJ 2001 L 295, p. 16) in so far as they refer to the applicants, until judgment is given in the main proceedings.) Application no. 45036/98: Bosphorus Hava Yollari Turizm ve Ticaret AS against Ireland. Decision of the European Court of Human Rights as to the admissility on 13 September 2001. 10