PRESS CONFERENCE on human rights in context of counter-terrorism

Martin Scheinin, United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, identified asylum-seekers as the largest group whose human rights were affected worldwide by counter-terrorism measures during a press conference at United Nations Headquarters this afternoon.

His recent report to the sixty-second session of the General Assembly focused on how counter-terrorist measures impacted refugee law and asylum.  He said that, while racial, religious and ethnic groups were profiled and targeted in counter-terrorist measures, and terrorist suspects were also subjected to torture, inhuman, degrading treatment and arbitrary detention, asylum-seekers were the largest similarly situated group of persons whose human rights were “seriously and adversely affected by the fight against terrorism”.

“Asylum-seekers as a group should be a matter of more concern simply because it is the largest group of negatively impacted people,” he said.

To this end, his report addressed interception and border controls; exclusion on refugee status; resettlement and repatriation of persons detained for terrorism-related reasons; the application in counter-terrorism contexts of “non-refoulement”, the principle against sending an individual back to a situation that posed risks to his or her life or freedom or in which they risked being subjected to persecution, torture or other cruel, inhuman or degrading treatment; and strengthening responsibility for international protection.

He said one burning concern related to frequent patterns of mandatory or indefinite detention of asylum-seekers and he had urged Governments not to depart from the right to judicial review of any form of detention.  Also, he added, although it did not happen in many countries today, the concept that there should not be detention without access to court was a cornerstone of human rights law and should govern immigration detention.  He had, therefore, recommended that immigration detention be coupled with mandatory judicial review after 48 hours.

Turning to the issue of diplomatic assurances in the counter-terrorism context, he noted that many Governments now contested the rule of not returning anyone to countries where they would face torture, inhuman, cruel and degrading treatment, persecution or the death penalty.  This position was partly based on diplomatic assurances in which the receiving country promised not to torture anyone sent back as a terrorism suspect, he said.  Yet he had concluded in his report that diplomatic assurances could never replace the obligation of the sending State to conduct individual assessments of the real risks.  Such assurances could at best be one of several elements in this real-risk assessment and that assessment should be subject to independent, preferably judicial review.

He said he also recommended that, as a matter of policy, Governments should not build their immigration control regimes over the institution of diplomatic assurances, which had tended not to work even when coupled with post-removal monitoring.  If they were used, they should have a minimal role.

Turning to his country visits, which had included South Africa, the United States and Israel, he noted that, while his mission report on his United States country visit would be an annex to his report to the Human Rights Council due in December, it was also already available in the public domain.  Claiming that the United States Government made certain “commitments in respect of working toward the closing of Guantanamo Bay” –- including comments by President George W. Bush that he would like to close the detention centre -- he said he had sought to encourage this positive signal in his report by making several recommendations.

While the United States had primary responsibility for detainees’ release, repatriation and resettlement, he recommended that other countries should be willing to receive detainees who were not subject to criminal proceedings and could not be sent back to their own countries.  He also recommended that the Office of the United Nations High Commissioner for Refugees should be engaged in assessing whether individual detainees were entitled to protection under the mandate of the Office of the United Nations High Commissioner for Refugees.  For those detainees who fell outside this mandate, the good offices of the commissioner should be engaged, he said.

Central questions in terms of Guantanamo included how many of its detainees would be subject to a trial, and would these trials be the military tribunals now in place or would they be in genuine courts.  Noting that many indications suggested a large number of detainees would not be subject to any charges -– a fact that made their long detention “arbitrary” -- he said that addressing their situations was “a matter of urgency”.

Responding to a question about his country visit in July to Israel and the Occupied Palestinian Territory, he said he had investigated Israel’s construction of the barrier wall, and had recommended that it should be replaced with a security infrastructure that respected internationally recognized barriers or would be respected by the Palestinians.  He said he would highlight the issue of the wall in his forthcoming report to the Human Rights Council because it was one of the “clearest examples where we see how counter-terrorist measures do not only affect civil and political rights but also have an impact on economic, social and cultural rights, such as the right to health, the right to food, the right to education”.

Alluding to other issues he would cover in his report on Israel to the Human Rights Commission, he said he had investigated questions about targeted killings, the various detention regimes and the military courts.  He was also identifying Israel’s best practices, including independent judicial review of various counter-terrorist measures like the classification of unlawful combatants, the existence of military courts and certain interrogation techniques.  He said he was critical of the interrogation techniques used by the Israeli security agencies that were based on the “necessity defence” in the “ticking bomb” scenario, particularly because he had found the examples he had been provided “totally unconvincing”.

To a question on how his work interacted with the work of the Security Council’s Counter-Terrorism Committee, he emphasized that his mandate had been established in reaction to the Counter-Terrorism Committee’s perceived shortcomings.  Still, he believed that the Committee should include the human rights component in its country reviews, particularly in its best practices investigation.

“There is no best practice in counter-terrorism without at the same time respecting human rights,” he said, noting that the General Assembly had identified this idea in its counter-terrorism strategy from 2006.  He stressed that the Counter-Terrorism Committee was willing to have a dialogue with human rights actors and include human rights compliance in best practice.  For example, he said the Committee had built on his report from Turkey as they reviewed that country’s counter-terrorism practices.

He said he had proposed to the Counter-Terrorism Committee that they work together to identify best practice in counteracting incitement to terrorism, which was introduced as a new counter-terrorism measure in Security Council resolution 1624 (2005), and was particularly sensitive in relation to freedom of expression.

“There is a lot of room for mainstreaming of human rights into the counter-terrorism work,” he said.

In response to a question on whether the United Nations system, having cast its lot with Somalia’s Transitional Federal Government, had said or done enough about the Transitional Government’s characterization of “whole ethnic groups as terrorists”, he noted that his work on Somalia had only just begun.  But he stressed that the problem of fighting terrorism while complying with human rights applied to all of East Africa.

He added that there was room for improvement in the United Nations in terms of human rights.  While many of the Security Council’s counter-terrorism resolutions underlined the obligation of Member States to comply with human rights when they implemented those resolutions, he said he hoped the Security Council would also say the United Nations had to comply with human rights when it directly engaged in counter-terrorist efforts.

In response to a question on governmental restraints to media in the United States, he said the role of the free media in controlling the executive branch of Government and its counter-terrorism measures had been positive and that the free media was an “important human rights guarantee”.  Any incidents to curtail that freedom should be looked at very seriously.

He also said he hoped to address the issues of surveillance in a future, broader inquiry into how counter-terrorism measures affected the right to privacy.  While some segments of the general population might perceive talk about human rights in the fight against terrorism as a protection of the rights of terrorists or suspected terrorists, privacy was an issue that affected everyone.

“To some extent everybody agrees to be affected so that we are willing to give away a part of our privacy rights to have increased security,” he said.  “But there is a limit.”

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For information media • not an official record