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Chapter 5: continued
THE RESPONSE OF THE UNITED NATIONS
SECURITY COUNCIL RESOLUTION 1373
The Security Council passed Resolution 1373 on September 28, 2001, imposing binding obligations on all U.N. member states to prevent and suppress terrorism, describing a broad range of activities that were to be combated. These included such measures as: (1) blocking the financing of terrorist offenses; (2) refraining from providing any support to terrorists (effective border controls, criminalization, etc); (3) intensifying and accelerating international cooperation and information exchange; (4) taking appropriate measures to ensure that refugee and asylum status are not abused by terrorists; and (5) ensuring that claims of political motivation are not used as grounds for refusing requests for the extradition of alleged terrorists.
Resolution 1373 also created a Counter-Terrorism Committee (CTC), which is composed of all 15 members of the Security Council. Under the resolution, all member states were required to submit an initial report on implementation to the CTC no later than December 27, 2001. Future reports were to be submitted under a timeline developed by the CTC. The CTC began reviewing the first round of reports in January, 2002, writing to each government confidentially to offer comments on its report. Once they received comments, states were given three months to submit a second report. The CTC’s review of the second round of reports was to have begun on June 7, 2002. Apparently, the comments on the first set of reports mainly asked for clarification and additional information. The comments on the second set of reports were to be more direct, identifying potential gaps and requesting plans of action.
RESOLUTION 1373 AND HUMAN RIGHTS
Although Resolution 1373 does not expressly address human rights concerns, U.K. Ambassador Jeremy Greenstock, the chair of the CTC, has indicated that the committee will at least consider the potential human rights consequences of the counter-terrorism measures reported. He has appointed a human rights specialist to the committee's advisors. In June 2002, Ambassador Greenstock described the overlap of the CTC’s work and human rights:
[T]he CTC’s processes will put pressure on governments to ensure, in the decisions they take both political and administrative, that they do not condone acts of indiscriminate violence against civilians, in any political context, nor use counter-terrorism as a pretext for political oppression. We have to develop an international collective conscience in this respect in which every government, without exception, is a participant.
The CTC is mandated to monitor the implementation of 1373. Monitoring performance against other international conventions, including human rights law, is outside the scope of the CTC’s mandate. But as we go forward, the CTC will remain aware of the interaction of its work with human rights concerns, inter alia through the contact the CTC has developed with the OHCHR. And we welcome parallel monitoring of observance of human rights obligations.
The CTC is also operating transparently and openly so that NGOs with concerns can bring them to our attention or follow up with the established human rights machinery.
Although it is too early to judge the extent to which the CTC has assessed the human rights implications of reported measures and advised governments in this regard, the reports filed with the committee (“1373 Reports”) provide a wealth of information on the shape of the global war against terrorism. The reports provide a picture of the anti-terrorism laws enacted – including the laws that states are trying to present in this mold.
RESPONSE OF THE U.N. HUMAN RIGHTS MECHANISMS
The U.N. human rights mechanisms, meanwhile, have responded promptly to the risk that human rights would be sidelined. On November 29, 2001, Mary Robinson, the U.N High Commissioner for Human Rights, issued a joint statement with the Council of Europe and the Organization for Security and Cooperation in Europe (OSCE) to condemn all forms of terrorism, and to urge states “to ensure that any measures restricting human rights in response to terrorism strike a fair balance between legitimate national security concerns and fundamental freedoms that is fully consistent with their international law commitments.” In stressing that certain rights are non-derogable, the statement calls on all governments to refrain from any measures that would “violate fundamental freedoms and undermine legitimate dissent:”
Such steps might particularly affect the presumption of innocence, the right to a fair trial, freedom from torture, privacy rights, freedom of expression and assembly, and the right to seek asylum. Anti-terrorism measures targeting specific ethnic or religious groups would also be contrary to human rights law and international commitments and would carry the risk of sparking a dangerous upsurge of discrimination and racism.
In a Human Rights Day 2001 statement, 17 of the U.N.’s special rapporteurs on human rights expressed “deep concern over the adoption or contemplation of anti-terrorist and national security legislation and other measures that may infringe upon the enjoyment for all of human rights and fundamental freedoms.” They expressed particular concern over the consequences for “human rights defenders, migrants, asylum-seekers and refugees, religious minorities, political activists and the media….”
In early 2002, concerns were expressed that the Security Council resolution had already been misused by abusive governments. Bacre Waly Ndiaye, the New York representative of the U.N. High Commission for Human Rights, told the CTC that compliance “could lead to unwarranted infringement on civil liberties.” He added, “There is evidence that some countries are now introducing measures that may erode core human rights safeguards.” Although Ndiaye did not name specific countries, he warned that under the new measures “nonviolent activities have been considered as terrorism, and excessive measures have been taken to suppress or restrict individual rights, including the presumption of innocence, the right to a fair trial, freedom from torture, privacy rights, freedom of expression and assembly, and the right to seek asylum.”
In an address to the Security Council’s session on counterterrorism on January 18, 2002, Secretary-General Kofi Annan called for governments to take into account the expertise of the U.N.’s specialized human rights bodies, and to make sure “that the measures you adopt do not unduly curtail human rights, or give others a pretext to do so.” He emphasized the importance in both the short and the long-term of making human rights concerns integral to the counterterrorism effort:
[W]e should all be clear that there is no trade-off between effective action against terrorism and the protection of human rights.
On the contrary, I believe that in the long term we shall find that human rights, along with democracy and social justice, are one of the best prophylactics against terrorism.
Terrorism is a weapon for alienated, desperate people, and often a product of despair. If human beings everywhere are given real hope of achieving self-respect and a decent life by peaceful methods, terrorists will become much harder to recruit, and will receive far less sympathy and support from society at large.
Therefore, while we certainly need vigilance to prevent acts of terrorism, and firmness in condemning and punishing them, it will be self-defeating if we sacrifice other key priorities – such as human rights – in the process.
U.S. UNILATERALISM AND THE INTERNATIONAL ARCHITECTURE OF HUMAN RIGHTS
The unilateralism of U.S. antiterrorism measures has continued the trend of the United States going it alone in international affairs, even while demanding multilateral support on a multiplicity of other issues. But the consequences of going it alone for international human rights norms may be even more severe – and its impact on the international order dangerously unpredictable.
The message is two-fold. On the one hand, standards are represented as having no application in times of emergency – although it was precisely to provide minimum standards under the most extreme of emergencies, open war between nations, that the laws of war were agreed by all nations. And it was the horrors of World War II that provided the genesis for international human rights law, beginning with the Universal Declaration of Human Rights in 1948. On the other hand, the United States appears hypocritical, by promoting international legal standards which seemingly bind only other nations.
Measures to advance the implementation of international human rights law, in turn, have further put the United States to the test. U.S. opposition to the International Criminal Court (ICC), which predates the September attacks, was consistent with a deeper strain of U.S. policy to limit commitments which could expose the country to international enforcement measures of any kind. Although the new court is now coming into force and is supported by most U.S. allies, U.S. opposition has deepened and its diplomatic interventions have included bullying threats of sanctions, even against close allies.
The tenor of the September 11 response has also opened the way for U.S. opposition to advances on the implementation of other existing international standards, apart from those contained in the ICC statute. Historically, the United States has refused to participate in a range of international monitoring mechanisms on the grounds that U.S. law already provided sufficient safeguards against abuses at home. The new approach to such mechanisms, however, may now be rooted in a qualitatively different concern – a fear that the U.S. will find itself in violation of international law and subject to sanction.
In July 2002, as diplomats met in Geneva to finalize an optional protocol to the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, U.S. representatives sought to undermine the optional protocol, which seeks to hasten the abolition of torture. The optional protocol, which would allow the inspection of detention facilities of the governments that adopt the protocol, would have echoed the good example of the European Convention Against Torture. Under the European model, inspections have been carried out in approximately 40 nations – including the United Kingdom, Turkey, and Russia – in a constructive contribution to the fight against torture.
A test of the United States’ evolving view of international standards will be the guidelines applied within the Department of State in the preparation of the next annual reports on human rights conditions around the world. Will past criticism of administrative detention without judicial review be absent? What about past criticism of military courts that exercise jurisdiction over dissidents under harsh national security and antiterrorism laws? Will allies in the global operations against terrorism get a pass on torture, extrajudicial execution, and “disappearance” – or commentary so muted and qualified as to represent a shielding from criticism? When the Russian Foreign Ministry official complained that the 2001 country report examining Russia’s conduct in Chechnya seemed to be a product of “working with old texts,” it in a sense set down a challenge to the Department of State as it begins to prepare the next round of annual reports. The nature of the new texts will be a telling indicator of the standards to be applied at home and abroad in the post-September 11 world.
 A key exception relates to 1373 measures which may have the effect of curtailing the right to seek asylum or to be protected from torture.
 See Orme, “U.N. Fears Abuses,” January 2, 2002.
 Jeremy Greenstock, “Presentation at the Symposium, ‘Combating International Terrorism: The Contribution of the United Nations,’” June 3, 2002.
 The CTC website is available at http://www.un.org/Docs/sc/committees/1373/ (accessed August 25, 2002).
 Joint statement by Mary Robinson, UN High Commissioner for Human Rights, Walter Schwimmer, Secretary General of the Council of Europe, and Ambassador Gérard Stoudmann, Director of the OSCE Office for Democratic Institutions and Human Rights, “Human Rights and Terrorism,” November 29, 2001, available at http://www.osce.org/press_rel/documents/2001-776-odihr.pdf (accessed July 25, 2002).
 Cited in Irene Khan, “Human Rights Challenges Following the Events of September 11 and Their Impact on Universality and the Human Rights Movement,” paper prepared for the conference hosted by the Cairo Institute for Human Rights Studies, “Terrorism and Human Rights,” January 26-28, 2001, Cairo, Egypt; available at http://www.cihrs.org/conference/khanpaper_e.htm (accessed August 25, 2002). Irene Khan is the Secretary General of Amnesty International.
 Orme, “U.N. Fears Abuses,” January 2, 2002.
 United Nations Press Release, “Secretary-General, Addressing Council Meeting on Counter-Terrorism says United Nations ‘Stands Four-Square’ Against this Scourge,” January 18, 2002.
 See, e.g., Doug Cassel, “Do Unto Others…America Fights International Covenants Against Torture,” Chicago Tribune, September 1, 2002.
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