IV.        RECOMMENDATIONS 

 

Based upon its analysis in this report, the Commission has developed the following series of recommendations, in order to facilitate efforts by member states to properly fulfill their international human rights commitments when developing and executing anti-terrorism measures.

 

A.         Identifying and Applying Pertinent International Legal Obligations

 

1.         Member states should take into account relevant commitments under all international human rights instruments to which they are bound in identifying and applying their international human rights obligations to anti-terrorist initiatives.

 

2.         Member states should refer to and consider pertinent provisions of international humanitarian law as the applicable lex specialis in interpreting and applying human rights protections in situations of armed conflict.

 

3.         Member states cannot use one human rights instrument as a basis for denying or limiting other favorable or more extensive human rights that individuals might otherwise be entitled to under other applicable international or domestic laws or practices.

 

B.         Right to Life

 

4.         In situations short of armed conflict, member states should ensure that law enforcement officials comply with the basic principles governing the use of force, including the requirement that lethal force may only be used where strictly unavoidable to protect themselves or other people from imminent threat of death.

 

5.         In situations of armed conflict, member states should ensure that their armed forces comply with applicable rules and principles of international humanitarian law, in particular the requirements that armed forces distinguish between military objectives and civilians and civilian objects and launch attacks only against the former, and take precautions so as to avoid or minimize loss of civilian life or damage to civilian property incidental or collateral to attacks on legitimate military targets.

 

6.         Member states must ensure that any measure to impose the death penalty as a punishment for terrorist-related offenses complies with specific restrictions governing the imposition of the death penalty, including those relating to the types of offenses for which capital punishment may be imposed, personal characteristics of offenders that may preclude the application of the death penalty, and the requirement that the imposition of the penalty be subject to strict procedural requirements and to a rigorous control of fundamental judicial guarantees.

 

C.         Right to Personal Liberty and Security

 

7.         Where member states arrest, imprison or otherwise detain individuals as part of their anti-terrorism initiatives in situations short of armed conflict, they must comply with minimum standards governing the right to personal liberty and security, from which derogation may never be justified. These include the following requirements:

 

(a)        the grounds and procedures for the detention must be prescribed by law;  

 

(b)        the detainee must be informed of the reasons for the detention and afforded prompt access to legal counsel, family and, where necessary or applicable, medical and consular assistance;

   

(c)        prescribed limits must be placed upon the length of detention;

 

(d)        a central registry of detainees must be maintained;

 

(e)        appropriate and effective judicial review mechanisms must be in place to supervise detentions, promptly upon arrest or detention and at reasonable intervals when detention is extended.

 

8.         Where terrorist acts may trigger or otherwise take place in the context of an international armed conflict, member states must respect and ensure the right to personal liberty and security as informed by the applicable lex specialis of international humanitarian law, according to which:

 

(a)        privileged combatants who fall into the hands of an enemy generally may be interned until their repatriation at the cessation of active hostilities;  

 

(b)        unprivileged combatants may also be interned and, moreover, may be subject to prosecution for their unprivileged belligerency;

 

(c)        the detention of combatants remains subject to supervision by the mechanisms prescribed under international humanitarian law, including the Protecting Powers regime and access by the International Committee of the Red Cross. Where these mechanisms are not  available or prove ineffective in ensuring the proper treatment of detainees, however, international human rights law and domestic law standards and procedures may supercede international humanitarian law in order to guarantee the effective protection of detainees in all circumstances;

 

(d)        enemy aliens in the territory of a party to an international armed conflict or civilians in occupied territory may not be administratively detained or interned except where the security of the detaining or occupying power make it absolutely necessary. Where such detention or internment is imposed, it must be subject to reconsideration or appeal with the least possible delay and, if it is continued, subject to regular review by an appropriate or competent body, court or other tribunal designated for that purpose.

 

D.         Right to Humane Treatment

 

9.         Both within and outside of situations of armed conflict, member states must comply with minimum standards of humane treatment prescribed under the applicable regime of international human rights or international humanitarian law. While the applicable regimes of law are discrete, they similarly require that member states ensure that:

 

(a)        the conditions of detention of detainees satisfy minimum standards of humanity and personal dignity, with due regard for the requirements of particular categories of persons, including families, women and children, and remain subject to continuous and effective supervision by regularly constituted courts through habeas corpus or equivalent relief or, in cases of armed conflict, through pertinent mechanisms under international humanitarian law;

 

(b)        detainees who are subject to disciplinary or penal sanctions are treated humanely at all times and never subjected to torture or inhumane treatment, including, for example, corporal punishment and prolonged periods of time in solitary confinement;

 

(c)        detainees are not be subjected to any method of interrogation that may amount to torture or other inhumane treatment, including severe treatment such as beatings, rape, or electric shocks, as well as more subtle but equally injurious treatments such as administration of drugs in detention or psychiatric institutions or prolonged denial of rest or sleep, food, sufficient hygiene or medical assistance.

 

E.         Right to Due Process and to a Fair Trial

 

10.        Member states must comply with certain fundamental and non-derogable due process and fair trial principles and standards when proscribing terrorist-related conduct under their criminal laws and prosecuting individuals for those crimes. In particular, member states must:

 

(a)        ensure that crimes relating to terrorism are classified and described in precise and unambiguous language that narrowly defines the punishable offense, by providing a clear definition of the criminalized conduct, establishing its elements and the factors that distinguish it from behaviors that are either not punishable offenses or are punishable by other penalties;

 

(b)        consider taking the legislative or other measures necessary to provide judges with authority to consider the circumstances of individual offenders and offenses when imposing sentences for crimes relating to terrorism;

 

(c)        refrain from the use of ad hoc, special, or military tribunals or commissions to try civilians;

 

(d)        ensure that trials of members of the military or combatants by military courts offer the essential guarantees of independence and impartiality as generally recognized in international humanitarian law instruments; 

 

(e)        refrain from the use of secret or faceless judicial procedures. While states may be obliged to take exceptional measures to protect the life, physical integrity and independence of judges, lawyers or others involved in the administration of justice when their lives or physical integrity are threatened, the nature or implementation of such measures may never compromise a defendantís fair trial guarantees;

 

(f)         in all circumstances, ensure strict compliance with basic and non-derogable procedural protections, including the right of an accused to prior notification in detail of the charges against him or her, the right to defend himself or herself personally and to have adequate time and means to prepare his or her defense which necessarily includes the right to be assisted by counsel of his or her choosing or, in the case of indigent defendants, the right to counsel free of charge where such assistance is necessary for a fair hearing, and the right to be advised on conviction of his or her judicial and other remedies and of the time limits within which they may be exercised, which may include a right to appeal the judgment to a higher court;

 

(g)        in situations of international armed conflict, when an individual has committed a belligerent act and falls into the hands of an adversary and a doubt arises as to their status as a privileged or unprivileged combatant or civilian, convene a competent tribunal to determine the status of the detainee, and ensure that such persons enjoy the protections of the Third Geneva Convention and, where applicable, of Additional Protocol I until such time as their status has been determined. These obligations should be respected regardless of whether the individual is suspected to have engaged in acts of terrorism.

 

F.         Right to Freedom of Expression

 

11.        In situations outside of armed conflict, member states should:

 

(a)        refrain from enacting laws that impose prior censorship on the publication or dissemination of terrorist-related information or opinions, and only do so in times of emergency when and only to the extent strictly required by the exigencies of the situation;

 

(b)        impose subsequent penalties for the dissemination of opinions or information only through laws that have legitimate aims, that are clear and foreseeable and not overly broad or vague, and that ensure that any penalties are proportionate to the type of harm they are designed to prevent;

 

(c)        refrain from promulgating laws that broadly criminalize, without an additional requirement of a showing of an intent to incite lawless violence or any other similar action and a likelihood of success, the public defense (apologia) of terrorism or of persons who might have committed terrorist acts;

 

(d)        ensure that any restrictions on access to information by the public, the press and other interested persons are only imposed for legitimate reasons, for so long as the restrictions are strictly necessary, and where those restrictions are not inconsistent with the stateís other obligations under international law.

 

12.        In situations of armed conflict: member states should:

 

(a)        afford journalists and media installations the protection commensurate with their status under international humanitarian law, which is presumptively that of civilians and civilian objects;

 

(b)        ensure interned or detained individuals the right to send and receive information as provided for under applicable international humanitarian law.

 

G.         Obligation to Ensure and Respect, Non-Discrimination, and the Right to Judicial Protection

 

13.        Member states must conduct themselves so as to ensure the free and full exercise of human rights. This includes the duty to organize the governmental apparatus and all the structures through which public power is exercised so that they are capable of juridically ensuring the free and full enjoyment of those human rights.

 

14.        In all circumstances, member states must fully and strictly comply with the obligation to ensure all persons equal protection of the law and of the rights and freedoms protected thereunder, and the corresponding prohibition of discrimination of any kind, including by reason of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition. This prohibits any distinction, exclusion, restriction or preference which is based on any prohibited ground and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on equal footing, of all rights and freedoms.

 

15.        Where member states consider that certain distinctions in treatment in the enjoyment of protected rights and freedoms are necessary or advisable, they must ensure that any such distinctions are based upon objective and reasonable justification, that they further a legitimate objective, regard being had to the principles which normally prevail in democratic societies, and that the means are reasonable and proportionate to the end sought. States must provide an especially weighty interest and compelling justification for any distinctions based on grounds explicitly enumerated under pertinent articles of international human rights instruments. In this connection, the principle of equality may sometimes require member states to give special protection to minority and other groups that may encounter particular vulnerabilities, disadvantages or threats of discrimination resulting from terrorist violence or anti-terrorist initiatives. 

 

H.        Situation of Migrant Workers, Asylum Seekers, Refugees and other Non-nationals

 

16.        Member states must ensure any laws, policies and procedures developed to regulate the situation of migrant workers, asylum seekers, refugees and other non-nationals are not formulated or executed in a manner that transgresses the fundamental human rights of these persons. In particular, in situations outside of armed conflict, member states must:

 

(a)        ensure that their immigration legislation recognizes the right to liberty of non-nationals and defines with sufficient detail the grounds and procedures by which non-nationals may be deprived of their liberty;

 

(b)        afford non-nationals their right to consular notification when they are arrested or committed to prison or to custody pending trial or are detained in any other manner;  

 

(c)        respect and ensure the right of non-nationals to seek asylum from persecution in accordance with prevailing international standards and through fair and proper procedures, including in particular any determination that an individuals does not or no longer qualifies for refugee status by reason of the exclusion or cessation clauses under the 1951 Refugee Convention and its 1967 Protocol;

 

(d)        refrain from deporting or removing a non-national in any case where there are substantial reasons for believing that he or she would be in danger of being subjected to torture;

 

(e)        refrain from the collective expulsion of non-nationals;

 

(f)         where a non-national is the subject of criminal proceedings, afford him or her the due process protections necessary to ensure a fair trial, including those protections necessary to address any disadvantages that may affect the fairness of their proceedings, such as lack of proficiency in the language of the proceedings;

 

(g)        where non-nationals are the subject of proceedings of a non-criminal nature, including detention, deportation or removal proceedings, afford them the due process protections necessary to ensure a fair hearing, including an adequate opportunity to practice their right of defense. These may include the right to a public hearing, the right to be assisted by a lawyer or other representative, and an adequate opportunity to respond to the claims against them;

 

(h)        ensure that their laws and policies affecting non-nationals are not developed or applied in a manner that encourages or results in discrimination, which includes refraining from applying their immigration control operations in a discriminatory manner.

 

17.        In situations of armed conflict, member states must ensure that non-nationals are afforded the rights to which they are entitled in accordance with their status under applicable international humanitarian law, which include, inter alia, fair trial and non-discrimination protections equivalent to those applicable in situations short of armed conflict.


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