III. The International Counter-Terrorism Framework and Human Rights

1. The international counter-terrorism framework
2. International counter-terrorism bodies and human rights inputs

As a regional organization made up of member states which themselves are parties to a number of important international agreements, the SCO’s policies and practices must comply with international obligations, including under human rights, humanitarian, and refugee law. These fundamental obligations are also explicitly recognized and referenced in SCO core documents. In addition, emerging norms of international law reflect consensus on the obligations of international organizations to respect international law, and on the responsibilities of constituent member states for the wrongful acts of international organizations.¹¹¹ This section provides an overview of the international counter-terrorism framework within which relevant policies and practices of the SCO must be assessed.

The international legal framework for promoting and protecting human rights while countering terrorism is enshrined in the UN Charter; a number of human rights declarations, conventions, and treaties; and in resolutions promulgated by the General Assembly and by the Security Council – including Security Council resolutions adopted pursuant to Chapter VII of the UN Charter on maintenance of international peace and security. As members of the United Nations and the international community, states are required under the UN Charter to incorporate human rights into their activities. For example, Article 55 of the Charter provides:

With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: . . . universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.¹¹²

Article 56 effectuates this principle, requiring that “all Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.”¹¹³

The Universal Declaration of Human Rights, adopted by the UN General Assembly in 1948, further enumerates a foundational set of individual rights, the protection of which states should strive to incorporate in their counter-terrorism policies.¹¹⁴ These rights include:

• the right to life, liberty, and security of the person (Art. 3);
• the right to be free from torture and cruel, inhuman or degrading treatment or punishment (Art. 5);
• the right to equal protection of the law (Art. 7);
• the right to effective remedy (Art. 8);
• the right to be free from arbitrary arrest or detention (Art. 9)
• the right to a fair and public hearing by an independent and impartial tribunal (Art. 10);
• the right to be presumed innocent until proven guilty (Art. 11);
• the right to be free from arbitrary interference with one’s privacy (Art. 12);
• the right to seek and to enjoy in other countries asylum from persecution (Art. 14)¹¹⁵;
• the right to freedom of thought, conscience and religion (Art. 18);
• the right to freedom of opinion and expression (Art. 19); and
• the right to freedom of peaceful assembly and association (Art. 20).

In addition to these universal principles, the SCO member states are parties to the key international human rights treaties and conventions relevant to counter-terrorism, and as such are responsible for compliance with treaty obligations setting forth relevant human rights norms and principles. As codified in the Vienna Convention on the Law of Treaties, “Every treaty in force is binding upon the parties to it and must be performed by them in good faith,”¹¹⁶ and “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”¹¹⁷ These treaties include the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention against Torture”), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the 1951 UN Convention Relating to the Status of Refugees and its 1967 Protocol (“UN Refugee Convention”).

Collectively, these instruments cover the rights to security of the person, due process and access to justice, freedom of opinion and expression, freedom of religion, freedom of association, privacy, and self-determination – rights that are often negatively impacted by counter-terrorism efforts, especially when national security priorities and concerns are invoked.

Under international law, a system of safeguards exists to ensure that states implement human rights obligations to their fullest extent under all but the narrowest of circumstances, and to impose demanding restrictions on state measures that infringe on guaranteed rights in the rare instances when such measures are justified.

For instance, international law permits states to legitimately impose limitations on the exercise of certain rights, including the right to freedoms of opinion and expression, association and assembly, and movement.¹¹⁸ As a matter of law, reflected throughout relevant mechanisms for human rights protection, these limitations must meet three general criteria in order to be justified.¹¹⁹ First, such limitations must be prescribed by law in a manner that is adequately accessible by individuals, formulated with sufficient precision, and non-retroactive.¹²⁰ Second, they must be in pursuance of specific legitimate purposes, generally understood to include national security, public safety, public order, health, morals, and the human rights and freedoms of others.¹²¹ Third, they must be “necessary in a democratic society,” meaning that any limitation on human rights must be necessary in the pursuit of a pressing objective, and that its human rights impacts are strictly proportional to the nature of that objective.¹²²

In addition to the limitations above, there also exists a set of exceptional circumstances under which states may be permitted to derogate from certain human rights obligations. The opinion of the Human Rights Committee in its General Comment No. 29, on the scope and parameters of state derogation from human rights obligations in times of public emergency under Article 4 of the ICCPR, provides authoritative guidance on precisely when states are permitted to enact measures that potentially threaten the enjoyment of certain rights, and, when permitted, what characteristics those measures must have in order to minimize human rights threats.¹²³

At the threshold, states have the burden to demonstrate that any deviation from their obligation to enforce guaranteed civil and political rights is conditioned on the existence of a genuine “public emergency,” and even then, “only if and to the extent that the situation constitutes a threat to the life of the nation.”¹²⁴ Moreover, any state derogation on these grounds must follow an official, publicly communicated declaration of an emergency state, a condition “essential for the maintenance of the principles of legality and rule of law at times when they are most needed.”¹²⁵

Even in the rare instances when the threshold requirements are met, each and every state measure following from these circumstances is subject to a framework of restrictions intended to minimize threats to guaranteed human rights. For instance, any such measures must be proportional and limited to the extent strictly required by the exigencies of the situation, with attention to the specific duration, geographical coverage, and material scope of the state of emergency and any measures of derogation resorted to because of the emergency.¹²⁶

Additionally, it is a condition for the justifiability of any derogation of human rights obligations that the measures taken do not discriminate on the basis of race, color, sex, language, religion or social origin.¹²⁷ State derogation must also be consistent with the state’s other obligations under international law, including international human rights and humanitarian law.¹²⁸ There are also certain fundamental rights from which no derogation may be made, including the right to life; protections against torture or cruel, inhuman or degrading punishment; the right to legality in criminal law and procedure, including “the requirement of both criminal liability and punishment being limited to clear and precise provisions in the law that was in place and applicable at the time the act or omission took place, except in cases where a later law imposes a lighter penalty”; and the freedom of thought, conscience and religion.¹²⁹

One clear guiding principle underpins the system of safeguards governing state limitations on and derogations of fundamental human rights obligations: states are required to substantively and meaningfully articulate clear, valid justifications for any and all deviations from their human rights obligations, not only as a general matter, but in each and every instance when a state measure threatening to violate guaranteed rights is put forth as necessary to achieve a state interest.¹³⁰

To adequately protect human rights in the pursuit of national security, these safeguards and mechanisms under international law must be understood not only as an independent consideration, but as a substantive ingredient of every counter-terrorism measure.

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A. The international counter-terrorism framework

Within the framework and principles of the UN Charter and international human rights law, the UN, particularly over the past decade, has emphasized the importance of respect for human rights in counter-terrorism efforts, and sought to encourage states to address the promotion and protection of human rights as the key to effective and sustainable counter-terrorism measures. Several key Security Council resolutions govern the counter-terrorism efforts of the international community, including the following:

• In 1999, acting under Chapter VII of the UN Charter, the Security Council called on states to take significant action to counter terrorism, including the requirements of Security Council Resolution 1267 (and its subsequent clarifications) to target Usama bin Laden, Al-Qaida, the Taliban, and known associates with an assets freeze, travel ban, and arms embargo, in what has become known as the Al-Qaida and Taliban sanctions regime.

• Security Council Resolution 1373, adopted shortly after the September 11, 2001 terrorist attacks, went much farther to establish a comprehensive range of activity that states must undertake in order to prevent and punish acts of terrorism, including: freezing funds that could be directed to terrorism; refraining from providing any form of support to those involved in terrorism; providing early warning to other states through exchange of information; denying safe haven to those involved in terrorism; preventing the movement of terrorists by effective border controls; and cooperating with other states in the areas of information exchange and extradition requests.¹³¹ Security Council Resolution 1373 also established the Security Council Counter-Terrorism Committee to monitor Resolution 1373’s implementation.

• Security Council Resolution 1456, adopted in 2003, requires that “States must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law.”¹³²

• Security Council Resolution 1624, adopted in 2005, calls upon states to take the additional step of adopting measures to counteract incitement of terrorism, specifically such measures as may be “necessary and appropriate and in accordance with their obligations under international law” to:

  1. Prohibit by law incitement to commit a terrorist act or acts;
  2. Prevent such conduct;
  3. Deny safe haven to any persons with respect to whom there is credible and relevant information giving serious reasons for considering that they have been guilty of such conduct.¹³³

The Security Council also noted in this resolution that such measures must conform with state obligations under international human rights law and refugee law.¹³⁴

Subsequent General Assembly resolutions reiterated the need to respect human rights in counter-terrorism efforts,¹³⁵ most notably in the UN Global Counter-Terrorism Strategy.¹³⁶ The Global Counter-Terrorism Strategy, “recognizing that development, peace and security, and human rights are interlinked and mutually reinforcing,” laid out four pillars for countering terrorism:

• measures to address the conditions conducive to the spread of terrorism;
• measures to prevent and combat terrorism;
• measures to build states’ capacity to prevent and combat terrorism and to strengthen the role of the United Nations system in this regard; and
• measures to ensure respect for human rights for all and the rule of law as the fundamental basis of the fight against terrorism.¹³⁷

This final pillar, focusing on human rights, describes the promotion and protection of human rights as “essential to all components of the [Global Counter-Terrorism] Strategy,” and reaffirms that states “must ensure that any measures taken to combat terrorism comply with international law, in particular human rights law, refugee law and international humanitarian law.”¹³⁸ In 2009, the General Assembly reiterated that “terrorism cannot and should not be associated with any religion, nationality, civilization or ethnic group,”¹³⁹ and called upon states to, among other measures, not resort to racial or ethnic profiling¹⁴⁰; respect non-refoulement obligations¹⁴¹; ensure due process guarantees¹⁴²; and ensure that “laws criminalizing acts of terrorism are accessible, formulated with precision, non-discriminatory, non-retroactive and in accordance with international law, including human rights law.”¹⁴³

Thirteen international conventions also exist to combat terrorism, including the International Convention for the Suppression of Terrorist Bombings, the International Convention for the Suppression of the Financing of Terrorism (“Terrorist Financing Convention”), and the International Convention for the Suppression of Acts of Nuclear Terrorism (“Nuclear Terrorism Convention”).¹⁴⁴ China has ratified the first two, and signed the Nuclear Terrorism Convention. These instruments require parties to take measures to prevent, prohibit, and cooperate with other states concerning the terrorism-related offences on which the conventions focus, and reflect a scope of offences generally agreed upon by the international community to constitute terrorism. Notably, the Terrorist Financing Convention also provides a foundation on which to define terrorism, stating that terrorism includes activities “intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.”¹⁴⁵

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B. International counter-terrorism bodies and human rights inputs

A number of international bodies exist with mandates focused on counter-terrorism or protection of human rights within counter-terrorism. These bodies were established under the auspices of the UN Security Council, Secretariat, or Human Rights Council. Security Council bodies include:

• Counter-Terrorism Committee (CTC): Established in 2001 under Security Council Resolution 1373, the Counter-Terrorism Committee’s mandate is to monitor implementation of Resolution 1373. The Security Council further directed the CTC in 2005 to work with states on implementation of Security Council Resolution 1624, which calls for prohibition of incitement to terrorism and denial of safe haven to persons involved in terrorist acts.¹⁴⁶

• Counter-Terrorism Committee Executive Directorate (CTED): Established in 2004 under Security Council Resolution 1535, CTED’s mandate is to further assist the CTC and enhance its ability to monitor implementation of Resolution 1373. CTED carries out the policy decisions of the CTC, conducts expert assessments of each UN member state, and facilitates counter-terrorism technical assistance to countries.¹⁴⁷

It was not until May 2006, however, that the CTC adopted policy guidance for CTED in the area of human rights.¹⁴⁸ Pursuant to this guidance, the CTED provides advice to the CTC on compliance with international human rights, refugee, and humanitarian law in the implementation of Security Council Resolution 1373 and Resolution 1624, and liaises with the Office of the High Commissioner for Human Rights and other human rights organizations in matters related to counter-terrorism.¹⁴⁹ A human rights expert was also appointed to the CTED staff.¹⁵⁰ As a result of Security Council Resolution 1805 in 2008, which recalled that the CTED should continue to advise the CTC on matters concerning human rights, a working group was established to enhance expertise and develop common approaches by CTED staff on human rights issues, as well as to consider ways in which the CTC might more effectively encourage UN member states to comply with their international obligations in this area.¹⁵¹

• 1267 Committee (also known as the Al-Qaida/Taliban Sanctions Committee): Established in 1999, pursuant to Security Council Resolution 1267, its mandate is to consolidate information concerning state efforts to target Usama bin Laden, Al-Qaida, the Taliban, and known associates with an assets freeze, travel ban, and arms embargo. The 1267 Committee is made up of all 15 members of the Security Council and holds regular meetings in both formal and informal sessions.¹⁵² The committee maintains the UN’s Consolidated List of individuals, groups, undertakings, and entities that are part of or associated with Al-Qaida and the Taliban, and considers listing and delisting requests.

In addition to these bodies, the Counter-Terrorism Implementation Task Force (CTITF) was established in 2005 by the UN Secretary-General and chaired by his office.¹⁵³ In June 2009, the Secretary-General made initial arrangements to institutionalize the CTITF by establishing a CTITF-Secretariat in the UN Department of Political Affairs.¹⁵⁴ The CTITF, made up of 31 entities and observers and eight working groups,¹⁵⁵ works to ensure overall coordination and coherence among various UN entities involved in counter-terrorism efforts and to provide a platform for information sharing. The UN Global Counter-Terrorism Strategy and CTITF are mutually reinforcing: the Global Counter-Terrorism Strategy gives support to the work of CTITF,¹⁵⁶ and CTITF supports the implementation of the Global Counter-Terrorism Strategy through the activities of the entities that comprise the task force.¹⁵⁷

Finally, the international framework for counter-terrorism includes the work of the Special Rapporteur on counter-terrorism. In April 2005, Resolution 2005/80 of the UN Commission on Human Rights established the mandate of the Special Rapporteur on counter-terrorism.¹⁵⁸ Martin Scheinin, Professor of Public International Law at European University Institute (Florence), accepted the appointment as Special Rapporteur on counter-terrorism on August 8, 2005.¹⁵⁹ The Special Rapporteur on counter-terrorism’s mandate was initially for three years, but in December 2007, the Human Rights Council extended the mandate for an additional three years under Human Rights Council Resolution 6/28.¹⁶⁰

Since 2005, the Special Rapporteur on counter-terrorism has laid the foundation for analysis of state compliance with international human rights law while countering terrorism. The Special Rapporteur on counter-terrorism’s approach incorporates four key features:

• complementarity with the work of other UN bodies addressing human rights and counter-terrorism;
• comprehensiveness of the analysis, both in terms of the full spectrum of human rights and the counter-terrorism measures employed;
• a proactive nature, such that the Special Rapporteur on counter-terrorism’s advice and reporting is aimed atpending legislation, countries where human rights violations are allegedly occurring, and development of best practices; and
• a focus on thematic issues, the substance of which have not been addressed by other bodies, such as the impact of counter-terrorism on freedom of association.¹⁶¹

The Special Rapporteur on counter-terrorism takes “a holistic approach focusing on legislative issues, which [is] complemented by taking up individual cases of alleged victims of human rights violations.”¹⁶²

During his mandate, the Special Rapporteur on counter-terrorism has reported on a number of thematic issues, including: freedom of expression and association; racial, ethnic or other forms of profiling in fighting terrorism; the promotion of economic, social and cultural rights; right to a fair trial for terror suspects; best practices for intelligence agencies; ten areas of best practices for countering terrorism; and the integration of a gender perspective throughout all counter-terrorism measures. The Special Rapporteur on counter-terrorism’s compilation of 35 elements of good practices for intelligence agencies are of special relevance for the SCO and RATS in particular, given its collection and sharing of information practices. It should also be noted that the Special Rapporteur on counter-terrorism’s communications with governments have included communications with four of the six SCO member states (China, Kyrgyzstan, Tajikistan, and Uzbekistan) regarding individual cases of concern; and communications with all six SCO member states raising concerns regarding sharing of data, and for some member states, concerns regarding use of the death penalty and secret detentions, and the rights to due process and compensation and rehabilitation for victims.¹⁶³

The following discussion examines in greater depth the SCO’s formal and structural framework and its compliance with the international framework for promoting and protecting human rights while countering terrorism.

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