Summary
During a protest in Turkey in 2010, two students unfurled a banner that read, “We want free education, we will get it.” For this act and participation in other non-violent political protests, the students were convicted of membership in an armed group and sentenced in 2012 to eight years and five months in prison. In recent years, Turkish authorities have prosecuted hundreds of activists for participating in such protests.In the United Kingdom from 2007 to 2011, police stopped and searched more than half a million people—including railway enthusiasts, children, and photographers—without reasonable suspicion of wrongdoing. Most of those searched were ethnic minorities. None was found guilty of a terrorism-related offense.
In Ethiopia, a federal court in January 2012 convicted three local journalists and two political opposition members of conspiracy to commit terrorist acts and participation in a terrorist organization. The evidence consisted primarily of online articles critical of the government and telephone discussions regarding peaceful protest actions. The authorities denied all five defendants access to counsel during three months in pretrial detention and failed to investigate allegations that two of the journalists had been tortured.
These actions violated well-established rights under international law to due process, free expression, or privacy. Yet in all three countries, authorities carried out the searches, arrests, and prosecutions using domestic counterterrorism legislation passed in the wake of the September 11, 2001 attacks on the United States.
More than 140 governments have passed counterterrorism legislation since September 11. Indeed, many countries have passed multiple counterterrorism laws or revised old legislation, expanding their legal arsenal over time. The impetus for the lawmaking has varied: in some cases it has been major attacks targeting the country; in many others, it has been a response to United Nations Security Council resolutions or pressure from countries such as the United States that suffered or feared attacks.
Mass attacks on the general population have caused immense harm. The September 11 attacks killed close to 3,000 people. In Pakistan alone, more than 10 times that number have been killed in bombings and other attacks on civilians in the decade since. As the UN Security Council noted in its preamble to Resolution 1456 in 2003, “any acts of terrorism are criminal and unjustifiable, regardless of their motivation, whenever and by whomsoever committed and are to be unequivocally condemned, especially when they indiscriminately target or injure civilians.” In keeping with their duty to ensure respect for the right to life, states have a responsibility to protect all individuals within their jurisdiction from such attacks.
Yet these post-September 11 laws, when viewed as a whole, represent a broad and dangerous expansion of government powers to investigate, arrest, detain, and prosecute individuals at the expense of due process, judicial oversight, and public transparency. Such laws merit close attention, not only because many of them restrict or violate the rights of suspects, but also because they can be and have been used to stifle peaceful political dissent or to target particular religious, ethnic, or social groups.
Of particular concern is the tendency of these laws to cover a wide range of conduct far beyond what is generally understood as terrorist. More often than not, the laws define terrorism using broad and open-ended language. While governments have publicly defended the exceptional powers available to police and other state authorities under these laws by referencing the threat of terrorism, some of the conduct they cover may have little connection to such potential attacks.
Many of the counterterrorism laws also contain changes to procedural rules—which are designed to ensure that the justice system provides due process—that jeopardize basic human rights and fair trial guarantees. Some changes enhance the ability of law enforcement officials to act without the authorization of a judge or any other external authority. Others grant authorizing power to prosecutors, or other members of the executive branch, who may have a particular stake in the outcome of police investigations. These procedural changes not only increase the likelihood of rights violations, including torture and ill-treatment, but also decrease the likelihood that those responsible will be discovered and punished.
At least 51 countries had counterterrorism laws prior to the September 11 attacks. In the ensuring 11 years, Human Rights Watch has found, more than 140 countries enacted or revised one or more counterterrorism laws, 130 of which we examined for this report.[1]
In the Name of Security offers a detailed breakdown of eight elements common to most post–September 11 counterterrorism laws that raise human rights concerns, as well as a discussion of where such laws diverge. The eight elements are:
- definitions of terrorism and terrorist acts;
- designations of terrorist organizations and banning membership in them;
- restrictions on funding and other material support to terrorism and terrorist organizations;
- limitations on expression or assembly that ostensibly encourage, incite, justify, or lend support to terrorism;
- expansions of police powers that undermine basic rights, including powers to conduct warrantless arrests, searches, surveillance, and property seizures, and to detain suspects incommunicado and without charge; as well as restrictions on challenging wrongful detention or seeking accountability for police abuses;
- creation of special courts and modifications of trial procedures (including evidentiary rules) to favor the prosecution by limiting defendants’ due process rights;
- imposition of the death penalty for terrorism-related offenses; and
- creation of administrative detention and “control order” mechanisms.
Moreover, the overly broad legislation documented in this report represents only one aspect of abuses committed in the name of counterterrorism. Many countries commit human rights violations against terrorism suspects—such as torture, ill-treatment, and enforced disappearance—without making any effort to legitimize them through law. In other cases, states insist that emergency or other special powers, often issued through executive fiat, apply to terrorist threats.
The United States, for example, responded to the September 11 attacks by adopting a war paradigm for what the administration of President George W. Bush called the “war on terror.” Under this model, the United States sought to bypass criminal law and human rights safeguards for alleged terrorists by asserting that it was in a global armed conflict with al Qaeda and affiliated groups; that such laws were inapplicable; and that if any law applied to counterterrorism efforts, it was the laws of war for capture, detention, and attack. Under the Obama administration, both the rhetoric and practice have changed—the illegality of torture is recognized, as are other human rights protections—yet US counterterrorism actions, such as targeted killings outside of clear war zones, remain based on this war paradigm.
Other countries have long sought to discredit rebel forces by calling them “terrorists.” However, since September 11, several governments have sought to redefine longstanding armed conflicts as part of the “global war on terror” for internal political purposes or to gain international support. Russia, for example, repackaged the conflict in Chechnya from a separatist conflict to a struggle against international terrorists. Uzbekistan did the same to justify its conviction of Muslims for religious activities it deemed at variance with state ideology.
There have been positive developments in recent years. As a result of court challenges or public pressure, some countries have rolled back especially problematic provisions in their counterterrorism laws or resisted moves that would strengthen them at the expense of rights.
The United Kingdom in 2011 allowed the period in which a terrorism suspect could be detained without charge to revert from 28 days to 14 days—the level it had been prior to the London Underground bombings of July 2005. Norway in 2011 rebuffed calls for its definition of terrorism to be broadened following an attack by a xenophobic extremist that killed 77 people; the country’s prime minister vowed instead to respond with “more openness, more democracy and more humanity.”
But in many cases the reforms have been grossly insufficient. The United Kingdom ’s 14-day pre-charge detention period still exceeds international standards for being promptly informed of any criminal charges and remains double the one-week maximum that the government permitted prior to 2005. Malaysia ’s Security Offences (Special Measures) Bill of 2012, which authorities touted as a replacement to the draconian Internal Security Act of 1960 that allowed indefinite detention without trial, still allows pre-charge detention of 28 days.
The UN Security Council now directs states to ensure that counterterrorism measures comply with international human rights law, but it has not reformed most terrorism-related mandates that experts—including the UN special rapporteur on human rights and counterterrorism—consider a threat to fundamental rights. Each year, more countries enact counterterrorism legislation with sweeping powers and dangerously broad language.
The Security Council should ensure that all resolutions concerning the obligations of states to combat terrorism comply with international human rights law, refugee law, and international humanitarian law. The Security Council and other UN bodies should also play a leading role in helping states to reform existing counterterrorism laws; release all persons arbitrarily arrested under these laws for exercising their rights to freedom of expression, association, or assembly; and provide fair retrials to suspects unfairly prosecuted under such laws.
Such measures are necessary not only to bring states into compliance with international law; they also help fulfill states’ broader duty to protect those in their jurisdiction. As the UN Global Counter-Terrorism Strategy of 2006 notes, violations of human rights are among the conditions “conducive to the spread of terrorism,” even though they can never excuse or justify terrorist acts.
Full report here: http://www.hrw.org/reports/2012/06/29/name-security
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