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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 defendant’s 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
state’s 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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