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
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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.
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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
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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
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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
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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-
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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
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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
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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.
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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.
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