{"id":183108,"date":"2004-10-08T00:00:00","date_gmt":"2019-03-11T21:29:34","guid":{"rendered":"https:\/\/www.un.org\/unispal\/?p=183108"},"modified":"2019-03-11T21:29:34","modified_gmt":"2019-03-11T21:29:34","slug":"auto-insert-183108","status":"publish","type":"document","link":"https:\/\/www.un.org\/unispal\/document\/auto-insert-183108\/","title":{"rendered":"Protection of human rights, fundamental freedom – UNHCHR report (excerpts)"},"content":{"rendered":"
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    Protection of human rights and fundamental freedoms while countering terrorism <\/strong><\/p><\/div>\n

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    Study of the United Nations High Commissioner for Human Rights<\/strong><\/span> <\/span>*<\/span><\/p><\/div>\n

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*   This report was delayed in submission due to additional research and consultations. <\/p><\/div>\n

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 I.  Introduction<\/strong> <\/p><\/div>\n

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1.   In its resolution 58\/187, the General Assembly requested the High Commissioner for Human Rights, “taking into account the views of States, to submit a study on the extent to which the human rights special procedures and treaty monitoring bodies are able, within their existing mandates, to address the compatibility of national counter-terrorism measures with international human rights obligations in their work, for consideration by States in strengthening the promotion and protection of human rights and fundamental freedoms while countering terrorism, with regard to the international human rights institutional mechanisms”. The resolution requested that the study be submitted to the General Assembly at its fifty-ninth session, with an interim report to the Commission on Human Rights at its sixtieth session. The interim report is contained in the report of the Secretary-General to the Commission on Human Rights (E\/CN.4\/2004\/91). <\/p><\/div>\n

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IV.   National counter-terrorism measures and the special procedures and treaty monitoring bodies <\/strong><\/p><\/div>\n

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 A.   Special procedures of the Commission on Human Rights <\/strong><\/p><\/div>\n

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20.   In his last report (A\/58\/266), the Secretary-General showed that the United Nations human rights mechanisms, including the special procedures, had identified a range of rights that have come under pressure as a result of counter-terrorism measures. These include the rights to life and to freedom from torture and cruel, inhuman or degrading treatment or punishment; respect for the principle of legality; the right to freedom from arbitrary detention; elements of the right to fair trial, including the right to counsel; freedom of thought, conscience and religion; freedom of expression and assembly; freedom from discrimination; the right to seek and to enjoy asylum from persecution; and respect for human rights provisions applicable to emergency situations. The current report of the Secretary-General (A\/59\/__)<\/strong> indicates that aspects of national counter-terrorism measures continue to be addressed by the human rights special procedures. <\/p><\/div>\n

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21.   Over the past three years, several of the special procedures have referred to aspects of the issue of protecting human rights while countering terrorism in their reports to the General Assembly and the Commission on Human Rights. For example, in their main reports to the sixtieth session of the Commission in 2004, 13 special procedures referred to the issue, while the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance also submitted a special report. <\/span>1<\/u><\/sup><\/a> <\/span>The 13 procedures were the Special Rapporteur on the question of torture, <\/span>2<\/u><\/sup><\/a> <\/span>the Special Rapporteur on extrajudicial, summary or arbitrary executions, <\/span>3<\/u><\/sup><\/a> <\/span>the Special Rapporteur on the independence of judges and lawyers,<\/span> <\/span>4<\/u><\/sup><\/a> <\/span>the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, <\/span>5<\/u><\/sup><\/a> <\/span>the Special Rapporteur on the right to freedom of opinion and expression, <\/span>6<\/u><\/sup><\/a> <\/span>the Special Rapporteur on freedom of religion or belief,<\/span> <\/span>7<\/u><\/sup><\/a> <\/span>the Special Rapporteur on violence against women,<\/span> <\/span>8<\/u><\/sup><\/a> <\/span>the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, <\/span>9<\/u><\/sup><\/a> <\/span>the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, <\/span>10<\/u><\/sup><\/a> <\/sup><\/span>the Special Rapporteur on mercenaries,<\/span> <\/span>11<\/u><\/sup><\/a> <\/span>the Special Representative of the Secretary-General on the situation of human rights defenders, <\/span>12<\/u><\/sup><\/a> <\/sup><\/span>the Working Group on Arbitrary Detention (an entire section),<\/span> <\/span>13<\/u><\/sup><\/a> <\/span>and the Working Group on Enforced or Involuntary Disappearances.<\/span> <\/span>14<\/u><\/sup><\/a> <\/span><\/p><\/div>\n

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22.   Also over the past three years, several special procedures devoted entire or nearly entire reports to the issue of protecting human rights while countering terrorism, each within its mandate. These have included, as mentioned above, the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, <\/span>15<\/u><\/sup><\/a> <\/sup><\/span>as well as the Special Rapporteur on the question of torture<\/span> <\/span>16<\/u><\/sup><\/a> <\/span>and the Special Representative of the Secretary-General on the situation of human rights defenders. <\/span>17<\/u><\/sup><\/a> <\/sup><\/span><\/p><\/div>\n

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23.   Issues addressed by the special procedures have included, for example, the question of detention and the related issue of torture and ill-treatment. Both the Special Rapporteur on the question of torture and the Working Group on Arbitrary Detention have expressed concern over the practice in some States of holding terrorism suspects in incommunicado detention, prohibiting contacts with family members, counsel and other outside assistance for certain periods of time. The Special Rapporteur on the question of torture has stated that incommunicado detention may facilitate torture and could in itself amount to a form of cruel, inhuman or degrading treatment. <\/span>18<\/u><\/sup><\/a> <\/sup><\/span>The Working Group on Arbitrary Detention, in opinions on communications relating to persons accused of links to terrorism who had been held incommunicado for extended periods, without knowledge of charges against them and without access to counsel or other outside assistance, found such violations serious enough to qualify the deprivations of liberty arbitrary. <\/span>19<\/u><\/sup><\/a> <\/sup><\/span>The Working Group on Arbitrary Detention has also expressed concern over indefinite detention without trial of persons suspected of terrorism. <\/span>20<\/u><\/sup><\/a> <\/sup><\/span>In its latest report to the Commission, the Working Group devoted a four-page section to the protection of human rights in the fight against terrorism, expressing concern over “the arbitrary character of detention in several countries where inquiries into terrorist acts are being conducted.” <\/span>21<\/u><\/sup><\/a> <\/sup><\/span>The issue of detention has also been raised by the Special Rapporteur on the human rights of migrants, who highlighted the increased use of detention of non-citizens as a consequence of the heightened international security climate. <\/span>22<\/u><\/sup><\/a> <\/sup><\/span><\/p><\/div>\n

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24.   Another concern addressed by the special procedures is the use of military and other special courts to try terrorism-related offences. The practice has been criticized by the Special Rapporteur on the independence of judges and lawyers <\/span>23<\/u><\/sup><\/a> <\/sup><\/span>and the Working Group on Arbitrary Detention.<\/span> <\/span>24<\/u><\/sup><\/a> <\/span><\/p><\/div>\n

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25.   Violations of the right to life in the context of counter-terrorism measures have recently been addressed by the Special Rapporteur on extrajudicial, summary or arbitrary executions <\/span>25<\/u><\/sup><\/a> <\/sup><\/span>and, in the case of country-based special procedures, <\/span>the Special Rapporteur on the situation of human rights in the Palestinian territories occupied by Israel since 1967. <\/span>26<\/u><\/sup><\/a> <\/span><\/p><\/div>\n

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26.   Counter-terrorism measures frequently raise concerns over possible discrimination. This issue was addressed in two special reports submitted by the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance on the situation of Muslim and Arab peoples in various parts of the world in the aftermath of the events of 11 September 2001. <\/span>27<\/u><\/sup><\/a> <\/sup><\/span>In addition, discrimination has been addressed in reports of the Special Rapporteur on freedom of religion or belief (risk that counter-terrorism impacts freedom of religion and could have negative effects on entire religious communities), <\/span>28<\/u><\/sup><\/a> <\/sup><\/span>the Special Rapporteur on the human rights of migrants (failure of counter-terrorism measures to respect Governments’ human rights obligations vis-à-vis migrants), <\/span>29<\/u><\/sup><\/a> <\/sup><\/span>and the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people (use of counter-terrorism laws against indigenous organizations and their supporters to penalize protest activities and legitimate demands). <\/span>30<\/u><\/sup><\/a> <\/sup><\/span>Meanwhile, restrictions on freedom of expression and association as well as the right to personal security were the subjects of an entire report of the Special Representative of the Secretary-General on the situation of human rights defenders (use of security legislation, including counter-terrorism measures, to hinder the work of human rights defenders and sometimes to target them directly) <\/span>31<\/u><\/sup><\/a> <\/sup><\/span>and have also been addressed by the Special Rapporteur on the right to freedom of opinion and expression. <\/span>32<\/u><\/sup><\/a> <\/sup><\/span><\/p><\/div>\n

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27.   The special procedures have issued joint public statements on the issue of counter-terrorism measures in the context of their annual meetings in 2003 and 2004. In the statement of 27 June 2003, endorsed by 20 of the special procedures, while acknowledging the need to counter terrorism, they also expressed “profound concern at the multiplication of policies, legislations and practices increasingly being adopted by many countries in the name of the fight against terrorism, which negatively affect the enjoyment of virtually all human rights — civil, cultural, economic, political and social.” <\/span>33<\/u><\/sup><\/a> <\/sup><\/span>I<\/span> <\/span>n their joint statement of 25<\/span> <\/span>June 2004, 18<\/span> <\/strong><\/span>special procedures expressed the wish that four of them (the Special Rapporteurs on the independence of judges and lawyers, on the question of torture, and on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, as well as the Chairperson of the Working Group on Arbitrary Detention) conduct joint missions to Iraq, Afghanistan, the Guantánamo Bay military base and elsewhere, in order to ascertain, each within his or her mandate, that international human rights standards are properly upheld with regard to persons arrested, detained or tried on grounds of alleged terrorism or other violations. <\/span>34<\/u><\/sup><\/a> <\/sup><\/span><\/p><\/div>\n

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28.   The main factor limiting full consideration of national counter-terrorism measures by the special procedures, as noted in the interim report to the Commission on Human Rights, is that each mandate-holder must address a range of concerns — in addition to counter-terrorism — within the scope of his or her mandate. The reports of the special procedures are, moreover, subject to significant length restrictions. Thus, while many have alluded to relevant concerns, they have only infrequently treated them in depth. As noted earlier, some special procedure mandates have devoted substantial portions of some reports, and even entire reports, to the impact of counter-terrorism on certain rights or groups. These contributions, important as they are, cannot however be considered comprehensive treatments of the impact of national counter-terrorism measures on human rights and fundamental freedoms. <\/p><\/div>\n

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29.   In addition to their main reports, thematic special procedure mandate-holders submit reports on country missions they have undertaken during the year, usually numbering two or three per mandate. Two of these country reports submitted to the sixtieth session of the Commission on Human Rights considered aspects of counter-terrorism measures. <\/span>35<\/u><\/sup><\/a> <\/sup><\/span>The Special Rapporteur on the situation of human rights in the Palestinian territories occupied by Israel since 1967 also addressed a wide range of counter-terrorism measures in his report to the Commission. <\/span>36<\/u><\/sup><\/a> <\/sup><\/span>However, counter-terrorism measures were not the only subject of concern in these reports. <\/span><\/p><\/div>\n

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30.  Special procedures also receive individual complaints and respond by sending letters and urgent appeals to Governments in cases which appear to show serious human rights violations. Some of these complaints have related to counter-terrorism action by Governments. <\/p><\/div>\n

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31.  The General Assembly in resolution 58\/187 requested the special procedures to coordinate their efforts in the area of counter-terrorism. This has proved difficult to achieve in practice, with the exception of the joint statements mentioned above, owing to the range of issues involved. However, as of 27 August 2004, the special procedures had sent eight joint urgent appeals and allegation letters related to counter-terrorism since the beginning of the year. <\/p><\/div>\n

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32.   The fact that aspects of national counter-terrorism measures have been considered by several of the special procedures shows, first, that such measures fall at least partly within the mandates of these procedures. Second, it shows that counter-terrorism measures have an impact on a wide range of rights and rights holders. The special procedures, however, are able only to address national counter-terrorism measures within their respective mandates, each of which is normally focused on a specific set of rights or rights holders, or a specific country. <\/p><\/div>\n

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 Notes<\/i><\/p><\/div>\n

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1<\/sup><\/span>Situation of Muslim and Arab peoples in various parts of the world (E\/CN.4\/2004\/19).<\/span><\/p><\/div>\n

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\t<\/span><\/span>2<\/sup><\/span>See E\/CN.4\/2004\/56, para. 28.<\/span><\/p><\/div>\n

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3<\/sup><\/span>SeeE\/CN.4\/2004\/7, para. 29.<\/span><\/p><\/div>\n

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4<\/sup><\/span>\t<\/span>See E\/CN.4\/2004\/60, paras. 58-60 and 73.<\/span><\/p><\/div>\n

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5<\/sup><\/span>\t<\/span>See E\/CN.4\/2004\/18, paras. 6 and 9.<\/span><\/p><\/div>\n

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6<\/sup><\/span>\t<\/span>See E\/CN.4\/2004\/62, paras. 49-50, 69-78, 80 and 84.<\/span><\/p><\/div>\n

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7<\/sup><\/span>\t<\/span>See E\/CN.4\/2004\/63, paras. 62, 78 and 153.<\/span><\/p><\/div>\n

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8<\/sup><\/span>\t<\/span>See E\/CN.4\/2004\/66, paras. 47, 63, 71 and 72.<\/span><\/p><\/div>\n

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9<\/sup><\/span>\t<\/span>See E\/CN.4\/2004\/80, paras. 44, 45, 47, 50 and 53.<\/span><\/p><\/div>\n

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10<\/sup><\/span>\t<\/span>See E\/CN.4\/2004\/48, para. 37.<\/span><\/p><\/div>\n

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11<\/sup><\/span>\t<\/span>See E\/CN.4\/2004\/15, paras. 35-36.<\/span><\/p><\/div>\n

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12<\/sup><\/span>\t<\/span>See E\/CN.4\/2004\/94, paras. 31, 52, 66 and 72.<\/span><\/p><\/div>\n

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13<\/sup><\/span>\t<\/span>See E\/CN.4\/2004\/3, paras. 50-71.<\/span><\/p><\/div>\n

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14<\/sup><\/span>\t<\/span>See E\/CN.4\/2004\/58, paras. 35, 36, 138, 140, 209, 256, 271 and 314.<\/span><\/p><\/div>\n

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15<\/sup><\/span>\t<\/span>See E\/CN.4\/2004\/19 and E\/CN.4\/2003\/23.<\/span><\/p><\/div>\n

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16<\/sup><\/span>See A\/57\/173.<\/span><\/p><\/div>\n

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17<\/sup><\/span>See A\/58\/380.<\/span><\/p><\/div>\n

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18<\/sup><\/span>\t<\/span>See, for example, A\/57\/173, para. 16.  <\/span><\/p><\/div>\n

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19<\/sup><\/span>\t<\/span><\/span>Opinions No. 5\/2003 and No. 10\/2003 adopted by the Working Group on Arbitrary Detention (E\/CN.4\/2004\/3\/Add.1).<\/span> See also E\/CN.4\/2003\/8, paras. 61-64.<\/span> <\/span><\/p><\/div>\n

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20<\/sup><\/span>\t<\/span>Opinion No. 4\/1997 (E\/CN.4\/1998\/44\/Add.1).  <\/span><\/p><\/div>\n

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21<\/sup><\/span>\t<\/span>E\/CN.4\/2004\/3, para. 53.<\/span><\/p><\/div>\n

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22<\/sup><\/span>\t<\/span>E\/CN.4\/2003\/85, paras. 25-38; A\/58\/275, para. 6.<\/span><\/p><\/div>\n

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23<\/sup><\/span>\t<\/span>See, for example, E\/CN.4\/2004\/60, para. 60, and E\/CN.4\/2003\/65, para. 37.<\/span><\/p><\/div>\n

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24<\/sup><\/span>\t<\/span>E\/CN.4\/2004\/3, para. 67.<\/span><\/p><\/div>\n

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25<\/sup><\/span>\t<\/span>E\/CN.4\/2004\/7, para. 29.<\/span><\/p><\/div>\n

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26<\/sup><\/span>\t<\/span>E\/CN.4\/2004\/6, paras. 5 and 22-28.<\/span><\/p><\/div>\n

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27<\/sup><\/span>\t<\/span>E\/CN.4\/2004\/19 and E\/CN.4\/2003\/23.<\/span><\/p><\/div>\n

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28<\/sup><\/span>\t<\/span>E\/CN.4\/2004\/63, para. 153.<\/span><\/p><\/div>\n

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29<\/sup><\/span>A\/58\/275.<\/span><\/p><\/div>\n

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30<\/sup><\/span>\t<\/span>E\/CN.4\/2004\/80 (paras. 44, 45, 47, 50 and 53) and Add.3.<\/span><\/p><\/div>\n

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31<\/sup><\/span>A\/58\/380.<\/span><\/p><\/div>\n

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32<\/sup><\/span>\t<\/span>See E\/CN.4\/2004\/62, paras. 49-50, 69-78, 80 and 84.<\/span><\/p><\/div>\n

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33<\/sup><\/span>\t<\/span>E\/CN.4\/2004\/4, annex I.<\/span><\/p><\/div>\n

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34<\/sup><\/span>\t<\/span>E\/CN.4\/2005\/5, annex I.<\/span><\/p><\/div>\n

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35<\/sup><\/span>\t<\/span>See the report of the Special Rapporteur on Torture on his mission to Spain (E\/CN.4\/2004\/56\/Add.2), and the report of the Special Rapporteur on the situation of human rights of indigenous people on his mission to Chile (E\/CN.4\/2004\/80\/Add.3).<\/span><\/p><\/div>\n

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36<\/sup><\/span>E\/CN.4\/2004\/6.<\/span><\/p><\/div>\n

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04-54476 (E) 091104 <\/p><\/div>\n

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*0454476*<\/p><\/div>\n

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 <\/p><\/div>\n<\/p><\/div>\n","protected":false},"excerpt":{"rendered":"

      Protection of human rights and fundamental freedoms while countering terrorism           Study of the United Nations High Commissioner for Human Rights *   … *   This report was delayed in submission due to additional research and consultations.  I.  Introduction        1.   In its resolution 58\/187, the General Assembly requested the High Commissioner for Human Rights, “taking […]<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"parent":0,"template":"","meta":{"footnotes":""},"country":[],"document-category":[1323],"document-source":[1365,1825],"committee-meeting":[],"document-subject":[6156,1741],"entity":[1729],"document-language":[6542],"class_list":["post-183108","document","type-document","status-publish","hentry","document-category-report","document-source-general-assembly","document-source-office-of-the-united-nations-high-commissioner-for-human-rights-ohchr","document-subject-agenda-item","document-subject-human-rights-and-international-humanitarian-law","entity-united-nations-system","document-language-english"],"_links":{"self":[{"href":"https:\/\/www.un.org\/unispal\/wp-json\/wp\/v2\/document\/183108","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.un.org\/unispal\/wp-json\/wp\/v2\/document"}],"about":[{"href":"https:\/\/www.un.org\/unispal\/wp-json\/wp\/v2\/types\/document"}],"author":[{"embeddable":true,"href":"https:\/\/www.un.org\/unispal\/wp-json\/wp\/v2\/users\/1"}],"version-history":[{"count":0,"href":"https:\/\/www.un.org\/unispal\/wp-json\/wp\/v2\/document\/183108\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.un.org\/unispal\/wp-json\/wp\/v2\/media?parent=183108"}],"wp:term":[{"taxonomy":"country","embeddable":true,"href":"https:\/\/www.un.org\/unispal\/wp-json\/wp\/v2\/country?post=183108"},{"taxonomy":"document-category","embeddable":true,"href":"https:\/\/www.un.org\/unispal\/wp-json\/wp\/v2\/document-category?post=183108"},{"taxonomy":"document-source","embeddable":true,"href":"https:\/\/www.un.org\/unispal\/wp-json\/wp\/v2\/document-source?post=183108"},{"taxonomy":"committee-meeting","embeddable":true,"href":"https:\/\/www.un.org\/unispal\/wp-json\/wp\/v2\/committee-meeting?post=183108"},{"taxonomy":"document-subject","embeddable":true,"href":"https:\/\/www.un.org\/unispal\/wp-json\/wp\/v2\/document-subject?post=183108"},{"taxonomy":"entity","embeddable":true,"href":"https:\/\/www.un.org\/unispal\/wp-json\/wp\/v2\/entity?post=183108"},{"taxonomy":"document-language","embeddable":true,"href":"https:\/\/www.un.org\/unispal\/wp-json\/wp\/v2\/document-language?post=183108"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}