Download The Report Here: assessing damage urging action.pdf 

Background and Executive Summary of the Report:

This investigative report assesses the damage caused by terrorism and counterterrorism measures and urges immediate action. The panel underscores the compelling need to bring counter-terrorism laws, policies and practices into line with human rights law. Without decisive remedial action now the damage done to the human rights framework risks becoming permanent.

The Eminent Jurists Panel is an independent eight-member panel of international jurists, convened by the Geneva-based International Commission of Jurists (ICJ) to conduct a global inquiry into the compatibility of counterterrorism laws and practices with human rights. The panel is comprised of some of the most prominent international jurists, including former Irish President and UN High Commissioner for Human Rights Mary Robinson, and is chaired by Justice Arthur Chaskalson, former Chief Justice of South Africa. The group is the first to undertake a comprehensive, international investigation of this scope, with sixteen hearings covering more than forty countries in all regions of the world over a period of three years. The body also examined historical examples including Northern Ireland and Latin America in order to identify lessons to guide responses to terrorism today.

Members of the panel held both private and public hearings with victims of terrorist violence and those who experienced human rights violations as a result of counter-terrorism measures. They also heard from leading politicians, senior government officials, non-governmental organisations, judges and lawyers, journalists, and intelligence and security personnel. The investigation's findings are publicized in a report by the ICJ at http://www.icj.org. A record of the hearings is available at Eminent Jurists Panel

Overall findings and recommendations.

* Terrorism is a reality and it would be wrong to under-estimate the threat posed by it. States have a duty to counter the threat posed, but many current counter-terrorism measures are illegal and even counter-productive. The panel concluded that the damage to the foundation of human rights law has been more severe than anticipated.

*There is an urgent need to conduct a comprehensive review of counterterrorism laws, policies and practices and take remedial action at the international, regional and national levels.

For additional information and interview bookings (and UN badges for Geneva), please contact:

Geneva: London: US:

Chloé BITTON

ICJ Media consultant

Roger Smith

Director, JUSTICE

Karmen Ross

Riptide Communications

+41 78 734 68 79 +44 20 762 64 12 +1 212-260-5000

chloe.bitton@icj.org mailto:rsmith@justice.org.uk  mailto:karmenghia99@gmail.com

INTERNATIONAL COMMISSION OF JURISTS

Commission internationale de juristes - Comisión Internacional de Juristas " dedicated since 1952 to the primacy, coherence and implementation of international law and principles that advance human rights"

* All UN bodies, including the Security Council and its subsidiary bodies (such as the Counter-Terrorism Committee and Sanctioning Committees), should take a leadership role in restoring respect for human rights in the counterterrorism efforts of its agencies and Member States. The Human Rights Council should develop a detailed plan of action and ensure a systematic follow-up to the recommendations of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.

The legal framework that existed prior to 9/11 is extremely robust, effective and sufficiently adaptable to meet the current threats.

* Many States are reneging on their treaty or customary law obligations, creating a dangerous situation wherein terrorism, and the fear of terrorism, are undermining basic principles of international human rights law, including previously well-established principles such as the prohibition on torture and cruel, inhuman or degrading treatment, enforced disappearances and unfair trials.

* Liberal democratic States that have previously defended human rights principles are now contributing to the erosion of international law by violating these standards themselves. They have also been complicit in, or tolerant of, violations by other States. The laws and practices of democratic governments are often opportunistically used by others to legitimize longstanding abusive practices elsewhere.

* Criminal law should be the primary vehicle used to address terrorism. The panel's findings suggest that States have responded to terrorist threats by side-stepping the normal tried-and-tested responses and have rushed to extraordinary measures. Whilst preventive measures and adaptations of the legal framework that conform to international human rights principles may be required if States are to protect the life and security of persons, the criminal justice system should be the primary framework to counter terrorism.

* Many laws and policies post 9/11 (such as indefinite detention without trial and the militarization of justice) have been tried and tested in the past, often without much success. The rhetoric of "exceptional threat" should not blind States to lessons from historical examples. For example, it is essential to maintain an independent civilian judiciary which ensures accountability for counter-terrorism practices. Measures meant to be temporary become permanent and broadly-defined notions of terrorism are applied far beyond their stated purpose.

* States have increased reliance on preventive measures such as deportation, control orders and terrorist lists of individuals and organizations. The panel For additional information and interview bookings (and UN badges for Geneva), please contact:

Geneva: London: US:

Chloé BITTON

ICJ Media consultant

Roger Smith

Director, JUSTICE

Karmen Ross

Riptide Communications

+41 78 734 68 79 +44 20 762 64 12 +1 212-260-5000

mailto:chloe.bitton@icj.org  mailto:rsmith@justice.org.uk  mailto:karmenghia99@gmail.com

INTERNATIONAL COMMISSION OF JURISTS

Commission internationale de juristes - Comisión Internacional de Juristas " dedicated since 1952 to the primacy, coherence and implementation of international law and principles that advance human rights" is concerned over the use of unsubstantiated and possibly faulty intelligence to take action against individuals and organisations that can have devastating consequences for them, as well as the lack of due process to effectively appeal against such measures.

* Intelligence agencies around the world have acquired new powers and resources, but legal and political accountability have often not kept pace. The panel concluded that good intelligence is vital but that accountability is essential, and calls for the establishment of clear policies and procedures in international intelligence cooperation, including the establishment of international standards on intelligence and human rights as suggested by the Secretary General of the Council of Europe.

* In many States, a cloak of secrecy surrounds detention and interrogation of terrorist suspects, allowing the use of torture and cruel, inhuman or degrading treatment and impunity for such violations. Prompt and effective access to courts and lawyers must be ensured to safeguard against abuses.

The US-led "war on terror" has done serious damage to the basic principles of international human rights and humanitarian law. The US should clearly repudiate abusive laws, policies and practices associated with the "war on terror" paradigm, conduct a transparent and comprehensive investigation into past violations and provide effective remedies to the victims. Other States, in particular those that have been complicit in these violations, should similarly repudiate the war paradigm.

* Often counter-terrorism measures alienate communities whose support is essential for successful counter-terrorist action. States should develop a plan of action that addresses any genuine or perceived grievances that give succour to terrorists, and integrate human rights and equality considerations into all laws and policies.

Final conclusions

Ignoring lessons from the past, some States have allowed themselves to be rushed into hasty responses, introducing an array of measures which undermine cherished values reflected in the international legal framework carefully developed since World War II. What came as a surprise to the panellists was what little attention has been paid to the long-term harm done in societies where similar methods were used to combat perceived threats to security, such as those in South America and elsewhere. Terrorism sows terror, and many States have fallen into a trap set by the terrorists. Seven years after 9/11 and 60 years after the adoption of the Universal Declaration of Human Rights, it is time for the international community to regroup, take remedial action, and reassert the core values and principles of international law. Political leadership is needed urgently at a national and For additional information and interview bookings (and UN badges for Geneva), please contact:

Geneva: London: US:

Chloé BITTON

ICJ Media consultant

Roger Smith

Director, JUSTICE

Karmen Ross

Riptide Communications

+41 78 734 68 79 +44 20 762 64 12 +1 212-260-5000

mailto:chloe.bitton@icj.org  mailto:rsmith@justice.org.uk  mailto:karmenghia99@gmail.com

INTERNATIONAL COMMISSION OF JURISTS

Commission internationale de juristes - Comisión Internacional de Juristas " dedicated since 1952 to the primacy, coherence and implementation of international law and principles that advance human rights". International level to develop a comprehensive strategy to combat terrorism that will repudiate torture and all other serious human rights violations, restore respect for well-established principles of international human rights and international humanitarian law, and insist on the effective integration of human rights law into counter-terrorist initiatives. This can only be done with the active support of an informed public and a strong civil society.

Countries and regions covered by the investigation: Australia, Canada, Colombia, East Africa (Kenya, Tanzania and Uganda), the European Union and its member states, Israel and the Occupied Palestinian Territory, the Middle East (Egypt, Jordan, Syria and Yemen), North Africa (Algeria, Morocco and Tunisia), Pakistan, the Russian Federation, South Asia (Bangladesh, India, Maldives, Nepal and Sri Lanka), South-East Asia (Indonesia, Malaysia, the Philippines and Thailand), the Southern Cone countries of Latin America (Argentina, Brazil, Chile, Paraguay and Uruguay) on lessons from the past, the UK (London and Belfast) and the United States.

For additional information and interview bookings (and UN badges for Geneva), please contact:

Geneva: London: US:

Chloé BITTON

ICJ Media consultant

Roger Smith

Director, JUSTICE

Karmen Ross

Riptide Communications

+41 78 734 68 79 +44 20 762 64 12 +1 212-260-5000

mailto:chloe.bitton@icj.org mailto:rsmith@justice.org.uk karmenghia99@gmail.com

INTERNATIONAL COMMISSION OF JURISTS

Commission internationale de juristes - Comisión Internacional de Juristas " dedicated since 1952 to the primacy, coherence and implementation of international law and principles that advance human rights"

IV BACKGROUND

Why a panel on terrorism, counter-terrorism and human rights?

With continuing widespread fear of terrorist attacks and a security-dominated agenda, governments are redefining and seeking to bypass well-established human rights and rule of law principles. Terrorism itself puts human rights in peril and states have a duty to protect people from terrorist acts. However, new and old counter-terrorism measures worldwide threaten the rule of law and human rights. The legal and human rights community is struggling to meet this global challenge in an effective and coordinated way. Policy-makers dismiss general statements of human rights principles as unrealistic and the public in many countries seems ready to accept an erosion of rights. Some states have faced cycles of terrorism and counter-terrorism for decades, yet policy-makers are not listening to the lessons of history. Despite signs of an emerging rhetorical acceptance by democratic states that their fight against terrorism should not jeopardize democratic values, there is still little agreement on what this means in practice for the work of the police, the military, anti-terror units and the courts.

There is a need to move from principle to a more sophisticated and detailed exploration of the issues. What are the acceptable limits of counter-terrorism measures? What is the nature of today's security threats and how different are they to past threats? Do these threats justify changing existing rules of international human rights and humanitarian law? How should laws and policies change if they are both to confront terrorism effectively and respect human rights and the rule of law?

The legal community worldwide must now take a leadership role in articulating how the rule of law can be respected in addressing terrorism in its many complex global and local forms.

To meet this challenge, the ICJ was launched in October 2005 a major three years initiative: the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights.

For additional information and interview bookings (and UN badges for Geneva), please contact:

Geneva: London: US:

Chloé BITTON

ICJ Media consultant

Roger Smith

Director, JUSTICE

Karmen Ross

Riptide Communications

+41 78 734 68 79 +44 20 762 64 12 +1 212-260-5000

mailto:karmenghia99@gmail.com  mailto:karmenghia99@gmail.com  karmenghia99@gmail.com

INTERNATIONAL COMMISSION OF JURISTS

Commission internationale de juristes - Comisión Internacional de Juristas " dedicated since 1952 to the primacy, coherence and implementation of international law and principles that advance human rights"

The human rights price of excessive counter-terrorism measures

* Detainees tortured to extract information and torture "outsourced"

* Suspects transferred to countries where they are at risk of torture

* Indefinite or secret detentions, often without charge or trial

* Protective reach of the courts cut down, detainees held without habeas corpus.

* Fair trial guarantees ignored, rights of defence cut down and rights of appeal removed

* Criminalization of political and social dissent

* Freedom of expression threatened

* Erosion of democratic checks and balances

* Discrimination against minority communities

* Vague definitions of terrorism misused

What is the Eminent Jurists Panel?

The Eminent Jurists Panel is composed of eight internationally renowned jurists from all regions and all legal traditions, chaired by Arthur Chaskalson, Former Chief Justice of South Africa and the first President of South Africa's new Constitutional Court. The panel is considering the nature of today's terrorist threats and the impact of new and old counter-terrorism measures on human rights. It is also exploring how counter-terrorism laws and policies can be both effective and respect human rights and the rule of law. A small team in the ICJ Secretariat in Geneva is coordinating the work of the Panel.

Over 3 years the Panel has:

* Listened to past and present experiences of cycles of terrorism and counterterrorism in a series of national and regional hearings in different parts of the world

*  Met three times in plenary

*  Sought meetings with government and security officials who shape or implement counter-   terrorism policies

*  Invited submissions from nongovernmental organizations, lawyers, judges, academics, national human rights institutions, governmental authorities and inter-governmental organizations

* Engaged in discussions with ICJ's global network of judges, lawyers, prosecutors and human rights defenders

* Stimulated public debate on critical issues through the media in different languages

Produced a final, detailed report with recommendations, which the ICJ will seek to have translated into French, Spanish, Arabic and Russian and which will guide ICJ advocacy for the next phase of its Global Security and Rule of Law Programme For additional information and interview bookings (and UN badges for Geneva), please contact:

Geneva: London: US:

Chloé BITTON

ICJ Media consultant

Roger Smith

Director, JUSTICE

Karmen Ross

Riptide Communications

+41 78 734 68 79 +44 20 762 64 12 +1 212-260-5000

mailto:karmenghia99@gmail.com mailto:karmenghia99@gmail.com  karmenghia99@gmail.com

INTERNATIONAL COMMISSION OF JURISTS

Commission internationale de juristes - Comisión Internacional de Juristas " dedicated since 1952 to the primacy, coherence and implementation of international law and principles that advance human rights"

Who are the Eminent Jurists?

Arthur CHASKALSON (South Africa)

Chair of the Panel

Former Chief Justice of South Africa, Arthur Chaskalson has been a leading human rights lawyer during apartheid in his country, where he acted as counsel in key human rights cases such as the Rivonia Trial in 1963-64 when Nelson Mandela and other African National Congress members were convicted and sentenced to life imprisonment. In 1994, he was appointed first President of South Africa's new Constitutional Court where he served in this capacity until 2005.

Georges ABI-SAAB (Egypt)

Professor Georges Abi-Saab is one of the world's leading scholars in public international law. During his career, he has served as a judge at the Appeals Chamber of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and ad hoc judge at the International Court of Justice. He is currently a member of the World Trade Organization Appellate Body. He is Emeritus Professor of International Law at the Graduate Institute of International and Development Studies, Geneva.

Robert K. GOLDMAN (United States)

Professor of Law at American University's Washington College of Law, Robert K. Goldman served as the UN Commission on Human Rights's independent expert on the protection of human rights and fundamental freedoms while countering terrorism. As a former President of the Inter-American Commission on Human Rights, he brings particular expertise on past counter-terrorism policies in Latin America.

Hina JILANI (Pakistan)

Lawyer of the Supreme Court of Pakistan, Hina Jilani is also the founder and current Vice Chairperson of the Human Rights Commission of Pakistan, a prominent NGO in that country. During her mandate as the first UN expert on the situation of human rights defenders, she had wide exposure to the impact of counter-terrorism measures on human rights defenders and their work.

Vitit MUNTARBHORN (Thailand)

Vitit Muntarbhorn is a renowned Professor of Law at Chulalongkorn University in Bangkok and a Member of the Advisory Council of Jurists of the Asia-Pacific Forum. Former expert of the UN Commission on Human Rights on the Sale of Children, Child Prostitution and Child Pornography, he currently serves as the UN expert on the situation of human rights in the Democratic People's Republic of Korea.

For additional information and interview bookings (and UN badges for Geneva), please contact:

Geneva: London: US:

Chloé BITTON

ICJ Media consultant

Roger Smith

Director, JUSTICE

Karmen Ross

Riptide Communications

+41 78 734 68 79 +44 20 762 64 12 +1 212-260-5000

mailto:chloe.bitton@icj.org  mailto:rsmith@justice.org.uk   karmenghia99@gmail.com

INTERNATIONAL COMMISSION OF JURISTS

Commission internationale de juristes - Comisión Internacional de Juristas " dedicated since 1952 to the primacy, coherence and implementation of international law and principles that advance human rights "

Mary ROBINSON (Ireland)

Former United Nations High Commissioner for Human Rights and the first woman President of Ireland, Mary Robinson is a prominent human rights advocate. She is now Head of the Realizing Rights: Ethical Globalization Initiative in New York and Vice-President of the Club de Madrid, organizer of the 2005 International Summit on Democracy, Terrorism and Security.

Stefan TRECHSEL (Switzerland)

An expert in criminal law and criminal procedure, Stefan Trechsel served for more than 20 years as a member of the European Commission on Human Rights, including as its President. He also has expertise on legal and justice reforms in the former Soviet Union and Russian Federation countries. He is Emeritus Professor of Law at University of Zurich and currently serves as Judge ad litem at the International Criminal Tribunals for the former Yugoslavia.

E. Raúl ZAFFARONI (Argentina)

E. Raúl Zaffaroni has served as a judge during twenty years. A widely respected jurist, he is the author of a number of reforms of criminal codes in his own country and in other Latin American countries. He has also served as Director of the UN Latin-American Institute on crime prevention (ILANUD). In 2003, he was appointed judge at the Supreme Court of Argentina. He is also Emeritus Professor at the University of Buenos Aires.

For additional information and interview bookings (and UN badges for Geneva), please contact:

Geneva: London: US:

Chloé BITTON

ICJ Media consultant

Roger Smith

Director, JUSTICE

Karmen Ross

Riptide Communications

+41 78 734 68 79 +44 20 762 64 12 +1 212-260-5000

mailto:chloe.bitton@icj.org  mailto:rsmith@justice.org.uk   karmenghia99@gmail.com

INTERNATIONAL COMMISSION OF JURISTS

Commission internationale de juristes - Comisión Internacional de Juristas " dedicated since 1952 to the primacy, coherence and implementation of international law and principles that advance human rights"

V HEARINGS

At the heart of the Eminent Jurists Panel initiative was a series of public hearings in countries and regions around the world (see list of proposed hearings below) that have in the past faced cycles of terrorism and counter-terrorism or still face threats today. Lawyers, judges, government officials, NGOs, human rights defenders, academics and victims were approached to identify the lessons that today's policy-makers should learn from their experiences. They were asked to identify problems with contemporary counter-terrorism measures in their countries and the most difficult unresolved legal and policy challenges. They were considered the impact in their region of the "war on terror" and how to fight terrorism within the rule of law. They reflected on the role of the legal and judicial communities in ensuring respect for the principles the ICJ laid down in 2004 in its Berlin Declaration.

The hearings stimulated critical domestic debate and expanded the Panel's source of first-hand information and legal and policy analysis. The hearings were be timed and organized to support local initiatives that sought to ensure counter-terrorism measures respect human rights and the rule of law.

* National and Regional Hearings:

European Union

East Africa

North Africa

Middle East

South America

South Asia

South East Asia

Australia

Canada

Colombia

Israel and the Occupied Palestinian Territory

Northern Ireland

Pakistan

Russian Federation

United Kingdom

United States

For additional information and interview bookings (and UN badges for Geneva), please contact:

Geneva: London: US:

Chloé BITTON

ICJ Media consultant

Roger Smith

Director, JUSTICE

Karmen Ross

Riptide Communications

+41 78 734 68 79 +44 20 762 64 12 +1 212-260-5000

mailto:chloe.bitton@icj.org  mailto:rsmith@justice.org.uk karmenghia99@gmail.com

INTERNATIONAL COMMISSION OF JURISTS

Commission internationale de juristes - Comisión Internacional de Juristas " dedicated since 1952 to the primacy, coherence and implementation of international law and principles that advance human rights"

The Berlin Declaration: A Commitment to Act In August 2004, the ICJ brought together 160 jurists of all regions in the city of its birth, Berlin, and adopted the Berlin Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism. The Declaration sets out 11 principles that states should respect when countering terrorism. In addressing today's rule of law challenges, judges and lawyers have a responsibility to play a critical leadership role. With its reliable legal approach to the protection and promotion of human rights and its strong network, the ICJ is in a unique position to inform and mobilize the legal community around the world and to act as a catalyst for change.

Legal and policy issues

* Should terrorism be fought by military means or should it be tackled through the criminal justice system?

* Do we need to have intrusive surveillance of public places and transports, data on travel, phone calls and Internet use in order to protect people from terrorism?

* How can we criminalize incitement to violence without eroding freedom of speech, the press and religion?

* How to increase security without discriminating, alienating and marginalizing minority communities?

* Does human rights law prevent effective international legal cooperation in fighting terrorism?

* Should suspected terrorists be tried by special, even military, courts and should trial procedures be relaxed?

* How can intelligence services both be effective and accountable? How can intelligence information be used fairly in court?

* What is the role of the Security Council in fighting terrorism? What due process should persons have when their names are put on international terrorist lists?

* Are targeted killings a legitimate act of a state?

* What are the rights of victims of terrorism?

For additional information and interview bookings (and UN badges for Geneva), please contact:

Geneva: London: US:

Chloé BITTON

ICJ Media consultant

Roger Smith

Director, JUSTICE

Karmen Ross

Riptide Communications

+41 78 734 68 79 +44 20 762 64 12 +1 212-260-5000

mailto:chloe.bitton@icj.org mailto:rsmith@justice.org.uk  karmenghia99@gmail.com

INTERNATIONAL COMMISSION OF JURISTS

Commission internationale de juristes - Comisión Internacional de Juristas " dedicated since 1952 to the primacy, coherence and implementation of international law and principles that advance human rights"

VII WHY THE ICJ

Founded in Berlin in 1952, the ICJ is a global network of judges, lawyers and human rights defenders united by international law and rule of law principles that advance human rights. Using our expertise in law, justice systems and advocacy, we work for victims to obtain remedies, for those responsible for abuses to be held accountable and for justice systems to be independent and active protectors of human rights. We work to change law and policy at the national and international levels when they do not adequately protect people from human rights violations.

The ICJ's greatest asset is its network of 60 Commissioners, 37 National Sections and 45 Affiliated Organizations. Having as its members many of the world's most prominent judges, lawyers and human rights defenders, the ICJ is able to mobilize authoritative and practical expertise on most rule of law and human rights issues. The ICJ network crosses linguistic, cultural and legal frontiers, spread across all regions of the world. It can command attention at the highest levels of the judiciary, legislature and executive. The ICJ Global Security and Rule of Law Programme is supported by the Norwegian Ministry of Foreign Affairs, the Spanish Ministry of Foreign Affairs and the Swiss Ministry of Foreign Affairs.

International Commission of Jurists

P.O.Box 216

CH-1219 Geneva

Switzerland

Tel: + 41 22 979 38 00

Fax: + 41 22 979 38 01

http://www.icj.org