Anti-terrorist Measures And Human Rights

406 Pages·2004·17.73 MB·English

by  Walter Schwimmer

Anti-Terrorist Measures and Human Rights
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Marangopoulos Foundation for Human Rights
European Training and Research Centre for Human Rights
and Democracy
Anti-Terrorist Measures
and Human Rights
EDITORS
Wolfgang Benedek
Alice Yotopoulos-Marangopoulos
FOREWORD
Walter Schwimmer,
Secretary General of the Council of Europe
2004
MARTINUS NIJHOFF PUBLISHERS
LEIDEN / BOSTON
A C.I.P. Catalogue record for this book is available from the Library of Congress.
Printed on acid-free paper.
ISBN 90-04-14073-5
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Printed and bound in The Netherlands.
V
Foreword
WALTERS CHWIMMER
Whatever the specific circumstances behind each tragedy, the current
wave of terrorist acts is one of the ugliest challenges to our societies.
Let us face it: although terrorism is indeed not a new phenomenon, it
has never before been used on such a scale. We have entered, it seems,
an era of chaos, in which the threat and the use of massive violence
against civilians is considered by some as a legitimate weapon. In some
cases, in their sick minds, they consider it a blessed weapon.
In spite of the international mobilisation which followed 11 September
2001, we are obviously still a long way from getting the threat of violence
under control. At the same time, the debate about the legitimacy of some of
the means used or contemplated for use in the fight against terrorism has
attracted wider attention.
The colloquium “Anti-Terrorist Measures and Human Rights”, which
these proceedings reflect, was indeed part of the international debate: How
can we efficiently counter terrorism without betraying the principles we be-
lieve in? It is not as easy as it may seem. Terrorism is an assault on human
rights, democracy, and the rule of law. This is no rhetoric. Terrorism wants
to destroy. It is rooted in hatred. It aims at creating constant insecurity, fear
and disorganisation at the expense of innocent citizens. It must be defeated
with the utmost vigour. But not at any cost, certainly not at the cost of the
fundamental values we have learned to cherish in tragic times and have
placed at the very centre of our collective functioning.
I want to pay tribute to the European Training and Research Centre for
Human Rights and Democracy of Graz, the Marangopoulos Foundation on
Human Rights of Athens and the Diplomatic Academy of Vienna. The col-
loquium they organised in Vienna on 30-31 October 2002 avoided the trap
of academicism, of rhetoric. It would be somewhat indecent to deal with the
fight against terrorism in an “academic” way. The participants aimed to prc-
scnt concrctc measures - legal and political, international and national -
seeking the rcpression and prevention of terrorism. This is again no rhetoric.
They showed that our society is willing to defend itself eficiently but not at
any cost. We know by experience that if we allow ourselves excessive State
violence, arbitrariness, contempt of law, discrimination, we not only risk
shaking the pillars of the democratic societies that painstakingly emerged
fiom WorId War I1 and from the end of communism; we also risk feeding
terrorism or increasing the understanding and support for terrorism. Con-
vi WALTER SCIIWIMMER
versely, we add strength and sharpness to our resolute fight against terrorism
if we clearly stand by our principles, rallying broad political opinion, com-
manding respect, and showing consistency of purpose. It is precisely in a
situation of crisis, such as brought about by terrorism, that respect for hu-
man rights becomes even more important with even greater vigilance called
for.
At the same time, the need to respect human rights is in no circum-
stances an obstacle to the efficient fight against terrorism. The experts in
counter-terrorism assembled by the Council of Europe do not disagree with
this “win-win approach”. They have encouraged us to stick to that course.
Indeed, national authorities in charge of the fight against terrorism have
been among the first to call for acting in ways compatible with internation-
ally recognised human rights standards. They were instrumental in shaping
the “Guidelines on Human Rights and the Fight against Terrorism” adopted
by the Committee of Ministers on 11 July 2002, the first international legal
text on this issue. These Guidelines are designed to help States strike the
right note in their responses to terrorism. We very much hope that these
Guidelines and their underlying philosophy will be widely circulated and
will help in taking appropriate decisions.
The Council of Europe is making important efforts to strengthen inter-
national legal action against terrorism and its funding. One main result of
these efforts is the adoption of a Protocol giving additional efficiency to the
European Convention for the Suppression of Terrorism (19 77). International
cooperation in the fight against terrorism is an absolute necessity. Interna-
tional cooperation in the fight for human rights is also essential.
In a longer-term perspective, I engaged the Council of Europe to brush
up and better focus earlier work aimed at fostering dialogue and a sense of
common purpose both within our multicultural European societies - our
civil societies - and in the wider Mediterranean area.
The more I think about it, the more I reject any notion of a clash of
civilisations; the more I also see an evident clash of ignorance which is be-
coming alarming in the context of globalisation. Clearly, we do not want our
citizens’ ignorance to be abused by people forcing upon them radical views,
fundamentalism of all kinds and as a pretence to spill blood under the cloak
of religion. We do not want tension and fear to grow as a result of igno-
rance. We do not want integration of migrants to become jeopardised for the
same reasons.
We want our citizens to grow aware of diversity, including religious
diversity, and to value it. We strongly invite them to link that diversity
through common adhesion to the same fundamental values - including
reksal of hatred, discrimination and arbitrariness along with commit-
ment to the rule of law.
POREWOXD vii
This is a long-term process. It will not succeed in a vacuum: parallel
initiatives are also needed, in particular to solve ongoing conflicts politi-
cally, to reduce injustice and to re-visit aspects of our foreign policies.
This broader agenda must constantly be kept in mind when ad-
dressing the issue of terrorism. I am deeply convinced that these pro-
ceedings demonstrate this and that they will help readers understand
more precisely how the present-day situation is related to anti-terrorist
measures and human rights.
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ix
Table of Contents
FOREWORD
Walter Schwimmer, Secretary-General of the Coun-
cil of Europe V
LISTO F ABBREVIATIONS xiii
INTRODUCTIONS
Wowgang Benedek
Alice Yotopoulos-Marangopoulos
Ernst Sucharipa
PART ONE
INTERNATIONAAN TI-TERRORIMSTE ASUREASN D HUMAN
RIGHTS 11
A. HUMANRI GHTS AS STANDARDSAFNRDA MEWORK
CONDITIONS FOR ANTI-TERRORIkSfETA SURES 11
Chri stiane Bourloyanni s- Vrailas,
United Nations Human Rights Standards as Frame-
work Conditions for Anti-Terrorist Measures 13
Martin Eaton,
Human Rights Standards and Framework Condi-
tions for Anti-Terrorist Measures. European Stan-
dards and Procedures 27
B. UNITEDN ATIOMSM EASUREASG AINST TERRORISM 33
Odette Jankow itsch-Prevor,
United Nations Measures against Terrorism:
Introductory Remarks 35
Falter Gehr,
The Counter-Terrorism Committee and Security
Council Resolution 1373 (2001) 41
Michael Postl,
The Ad Hoc Committee on Terrorism 45
Alex r! Schmid,
United Nations Measures against Terrorism and the
Work of the Terrorism Prevention Branch: The Rule
of Law, Human Rights and Terrorism 53