UN Report Calls for Greater Review of All Counterterrorism Measures

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February 15, 2011

“[E]ffective counter-terrorism measures and the protection of human rights are complementary and mutually reinforcing goals,” says a December 2010 report sponsored by the United Nations Human Rights Council (HCR).  Written by UN Special Rapporteur Martin Scheinin, the report identifies 10 “best practices” that UN members should consider adopting to successfully counter violent extremism and respect human rights and basic freedoms. Recommendations include ensuring security laws are consistent with widely accepted human rights standards, provisions for reviewing (and expiring) counterterrorism policies, and establishing minimum safeguards for persons or entities designated as terrorists.  The report draws on nearly six years of research and fact-finding missions with multiple stakeholders from around the world. 

Reinforcing elements of the UN’s Global Counter-Terrorism Strategy, the report identifies respect for human rights and the rule of law as critical tools in countering violent extremism.  “Compliance with all human rights while countering terrorism represents a best practice because not only is this a legal obligation of States, but it is also an indispensible part of a successful medium- and long-term strategy to combat terrorism.” The first pillar of the UN’s Strategy and the report both agree that addressing “the long-term conditions conducive to the spread of terrorism, which include lack of rule of law and violations of human rights, ethnic, national and religious discrimination, political exclusion, socio-economic marginalization and lack of good governance,” is necessary to combat terrorism successfully.

The report calls for each members' counterterrorism law and practice to be “consistent with the principle of normalcy,” meaning they should not be beyond oversight and review. In fact, the report says if compelling reasons require the creation and enforcement of specific powers necessary to combat terrorism, they should be “recognized as a unique exception to customary legal constraint” and be subject to “sunset clauses and regular review” by independent monitors. “Regular review and the use of sunset clauses are best practices helping to ensure that special powers relating to the countering of terrorism are effective and continue to be required, and to help avoid the 'normalization' or de facto permanent existence of extraordinary measures.”
To help guide UN members the report offers 10 areas of “best practices.” Each refers to the legal and institutional frameworks that promote and protect human rights and the rule of law in counter-terrorism policy. They include:

  • Consistency of counter-terrorism law and practice with human rights and refugee law, and humanitarian law
  • Review and oversight of counter-terrorism law and practice
  • “Speedy, effective and enforceable” remedies for persons whose human rights have been  violated
  • Minimum safeguards and basic due process rights before persons or entities are designated as terrorist entities

In terms of reforming the existing designation and sanctions process for terrorist entities, the report recommends:

  • The listed individual or entity be promptly informed of the listing, its factual grounds, and the consequences of such listing
  • The right to apply for de-listing or not face sanctions
  • The right to a court review of the decision resulting from such application, with due process rights applying to such review, including the disclosure of the case against him, and such rules concerning the burden of proof that are commensurate with the severity of the sanctions;
  • The right to make a fresh application for delisting or lifting of sanctions in the event of a material change of circumstances or the emergence of new evidence relevant to the listing;
  • The listing of an individual or entity, and the sanctions resulting from it, would expire automatically after 12 months, unless renewed through a fair and transparent process
  • Compensation for persons and entities wrongly affected

View the report to read more about each recommendation and the other six “best practices.” 
In October 2010 Sheinin published a report that concluded the UN Security Council’s counterterrorism framework is having a “chilling effect” on humanitarian aid, the charities that provide it,

In July 2005, Scheinin, was appointed Special Rapporteur of the UN Commission on Human Rights on the protection of human rights while countering terrorism. The HRC’s mandate for the position was three years, but was extended by an additional three years in December 2007.