2.         International Humanitarian Law

344.      The obligation of states to respect and ensure individual rights under international law has also played a longstanding and crucial role in securing observance of the protections under international humanitarian law. Article 1 common to the four Geneva Conventions constitutes a predominant and absolute codification of this principle, providing that

[t]he High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.[814]  

345.      This provision clarifies that the responsibilities undertaken by states parties to the treaties amount to more than arrangements agreed upon on the basis of reciprocity, but rather constitute “a series of unilateral engagements solemnly contracted before the world as represented by the other Contracting Parties.”[815] The general obligation to respect and ensure respect under common Article 1 is supplemented by provisions under Articles 16 of the Third Geneva Convention and Article 13 of the Fourth Geneva Convention requiring that the protections of the treaties be afforded without any adverse distinction based upon such factors as race, nationality, religion or political opinion. It is also augmented by the grave breach provisions of the Geneva Conventions and Additional Protocol I, including Article 129 of the Third Geneva Convention, Article 146 of the Fourth Geneva Convention, and Article 85 of Additional Protocol I, which require states parties, inter alia, to enact any legislation necessary to provide effective penal sanctions for persons committing or ordering to be committed any grave breaches as defined in the treaties, and to “search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.” In the case of Additional Protocol II, Article 2 of that instrument provides more generally that “[t]his Protocol shall be applied without any adverse distinction founded on race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria (hereinafter referred to as “adverse distinction”) to all persons affected by an armed conflict as defined in Article 1.”

346.      As with international human rights law, there are aspects of international humanitarian law that preserve the civil capacities of protected persons, and that mandate access to judicial remedies in certain circumstances. Article 14 of the Third Geneva Convention and Article 80 of the Fourth Geneva Convention provide, respectively, that prisoners of war and civilian internees shall retain their full civil capacity which, in the case of the exercise of the rights such capacity confers, may not be restricted by a Detaining Power except in so far as the captivity or internment requires. These provisions ensure that prisoners of war or internees are able to exercise their rights both in the country of detention or internment and, particularly in the case of prisoners of war, in his or her country of origin or domicile.[816]

347.      With regard to recourse to competent courts or tribunals, certain provisions of the Third and Fourth Geneva Conventions and Additional Protocol I prescribe specific review mechanisms that must be made available to persons protected under these treaties under certain circumstances. These include:

•                        a “competent tribunal” under Article 5 of the Third Geneva Convention and Article 45(1) of Additional Protocol I to determine the status of a person who has committed a belligerent act and has fallen into the hands of the enemy, when that person’s inclusion in any of the categories of prisoners of war under Article 4 of the Third Geneva Convention is in doubt

•                         an “appropriate court or administrative board” under Article 43 of the Fourth Geneva Convention, to reconsider, as soon as possible and thereafter periodically, a decision to place persons protected under the Fourth Geneva Convention in internment or assigned residence in the territory of a party to the conflict

•                         a “right of appeal” under Article 78 of the Fourth Geneva Convention in respect of a decision by an Occupying Power to subject protected persons to assigned residence or to internment

•                          a “judicial tribunal” under Article 45(2) of Additional Protocol I to adjudicate the entitlement to prisoner of war status of a person who has taken part in hostilities and has fallen into the hands of the enemy, is not held as a prisoner of war, and is to be tried by that Party for an offense arising out of the hostilities

348.      These mechanisms are in addition to the requirements under international humanitarian law, canvassed in Section III(D) on the right to due process and to a fair trial, of a competent, independent and impartial tribunal as defined by applicable international standards in the case of persons who are prosecuted and punished for criminal offenses in the context of armed conflict.[817]

349.      As with all fundamental protections under international humanitarian law, the obligations of states to respect and ensure respect for the rights and protections under international humanitarian law in situations of armed conflict, including by way of the mechanisms outlined above, do not permit any derogation.[818]

3.         The Obligation to Respect and Ensure without Discrimination, the Right to Judicial Protection, and Terrorism

350.      Of paramount importance in clarifying the role and application of international human rights protection in the context of terrorist threats is recognition of the fundamental premise that states are bound to respect and ensure respect for their human rights obligations in good faith at all times, and that these obligations must inform the manner in which states respond to terrorist threats. Even in respect of rights that may be the subject of limitation or derogation, states must comply strictly with the conditions regulating the permissibility of such limitations or derogations, which in turn are based upon the fundamental principles of necessity, proportionality and non-discrimination.

351.      Also non-derogable under international human rights law and international humanitarian law is the requirement that states fulfill their obligations without discrimination of any kind, including discrimination based upon religion, political or other opinion or national or social origin. This applies not only to a state’s commitment to respect and ensure respect for fundamental rights in the context of terrorist threats, but also limits the measures that states may take in derogating from rights that may properly be suspended in times of emergency by prohibiting any such measures that involve discrimination on such grounds as race, color, sex, language, religion, or social origin. The principle of non-discrimination also applies to all aspects of a state’s treatment of individuals in connection with anti-terrorist initiatives, including their treatment when in detention.

352.      Intimately connected with the obligation to respect and ensure fundamental human rights is the availability of simple and prompt recourse to competent courts or tribunals to secure the protection of those rights. This obligation is particularly pertinent in the case of detainees owing to their vulnerable status as being entirely within the power and control of the State. While the nature of the courts or tribunals may vary, depending in particular upon the applicability of international humanitarian law as the lex specialis in situations of armed conflict,[819] the availability of recourse to judicial protection to persons affected by anti-terrorist initiatives cannot be suspended insofar as they are necessary for the protection of the rights not subject to derogation in times of emergency.

353.      While these requirements must inform the development and execution of all anti-terrorist initiatives undertaken by member states, the Commission considers that the basic rules governing respect for fundamental human rights without discrimination may have implications for particular measures adopted by states in connection with terrorist threats that warrant further discussion. These measures include the manner in which states detain or otherwise restrict the liberty of individuals in connection with terrorist threats and certain methods of investigation employed by law enforcement authorities. In particular, law enforcement agencies might engage in practices contrary to the prohibition against discrimination in their efforts to investigate terrorism-related crimes by, for example, engaging in a pattern or practice of using prohibited bases of discrimination as the grounds for selecting targets of investigation. This particular practice is sometimes referred to as “profiling.”[820]  Past uses of profiling in the context of domestic law enforcement have been known to incorporate a variety of characteristics including race and national origin.[821] In light of the significant risk that investigative methods of this nature are on their face discriminatory or may be utilized in a discriminatory manner,[822]  the Commission considers that any use of profiling or similar devices by a state must comply strictly with international principles governing necessity, proportionality and non-discrimination and must be subject to close judicial scrutiny. As mentioned previously, distinctions based on grounds explicitly enumerated under pertinent articles of international human rights instruments are subject to a particularly strict level of scrutiny whereby states must provide an especially weighty interest and compelling justification for the distinction.[823]

354.      As highlighted in previous sections of this report, in circumstances where states detain individuals for reasons relating to a terrorist threat, whether for administrative or preventative reasons, the laws authorizing the detention cannot be applied so as to target individuals based upon a prohibited ground of discrimination. Further, with the exception of privileged and unprivileged combatants and other victims in international armed conflict, whose detention is governed by specific rules and principles under international humanitarian law, the legality and propriety of a person’s detention must always be subject to immediate and, thereafter, periodic independent review of an appropriate court or tribunal.[824] While the particular requirements of the review process may vary depending upon the circumstances of a particular case, in all instances minimum standards of human rights law require that detention review proceedings comply with the rules of procedural fairness. These rules include the requirements that the decision-maker meets prevailing standards of impartiality, that the detainee is given an opportunity to present evidence and to know and meet the claims of the opposing party, and that the detainee be given an opportunity to be represented by counsel or other representative. In circumstances in which an individual is the subject of criminal proceedings relating to terrorism, under all circumstances, including those involving armed conflict,[825] he or she may only be tried by a competent, independent and impartial tribunal previously established by law and respecting the generally recognized principles of regular judicial procedure.[826] Once an unfavorable decision is rendered at first instance, the right to appeal that judgment to a higher court must also be granted in compliance with fundamental fair trial protections.[827]

355.      The Commission recognizes in this connection that the effective investigation of terrorist crimes may, owing to their ideological motivation and the collective means by which they are carried out, necessitate the investigation of individuals or groups who are connected with particular political, ideological or religious movements or, in the case of state-sponsored terrorism, the governments of certain states.[828] The Commission must also emphasize, however, that anti-terrorist initiatives that incorporate criteria of this nature, in order not to contravene the absolute prohibition against discrimination, must be based upon objective and reasonable justification, in 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. Distinctions based upon grounds expressly enumerated in the pertinent provisions of international human rights instruments are subject to an enhanced level of scrutiny, as described above.

356.      This would require, for example, the existence of reasonable grounds connecting a particular group to terrorist activities before an individual’s association with that group might properly provide a basis for investigating him or her for terrorist-related crimes. Even then, the extent to which and the manner in which investigative methods of this nature are undertaken and the resulting information is collected, shared and utilized must be regulated in accordance with the principles of reasonableness and proportionality, taking into account, inter alia, the significance of the objective sought and the degree to which the state’s conduct may interfere with the person or persons concerned. As discussed in further detail in Parts III(E) and (G), considerations in this respect include implications for the right to privacy pertaining to the collection and use of personal information. States must therefore remain vigilant in ensuring that their laws and policies are not developed or applied in a manner that encourages or results in  discrimination, and that their officials and agents, including military forces, conduct themselves fully in conformity with these rules and principles.

G.         Other Fundamental Rights

357.      The Commission has endeavored through this study to provide timely and focused guidance as to the protection of fundamental human rights by states in responding to terrorist threats. While the report has provided a detailed analysis of six of the core rights especially implicated by responses to terrorism, the impact of anti-terrorist initiatives may inevitably extend to other significant areas of international human rights law. Both historical experience and the nature and reach of modern terrorist threats suggest that the rights to freedom of assembly and of association, the right to freedom of conscience and religion, the right to property, the right to privacy and the right to participate in government may be particularly vulnerable to transgressions. In order to raise the consciousness of states to these additional aspects of the human rights implications of terrorism, an abbreviated discussion of several of these rights is provided below.

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