Advisory Council of Jurists...2000/02/24 · Acknowledgments The Advisory Council of Jurists thanks its President, Mr Daman Nath Dhungana, for his skilful chairmanship of the Advisory

Advisory Council of Jurists

Reference on the Rule of Law in Combating Terrorism

16-18 February 2004 Kathmandu, Nepal

Final Report May 2004

The Asia Pacific Forum of National Human Rights Institutions

The Asia Pacific Forum of National Human Rights Institutions (APF) is an independent non-profit organisation that supports, through regional cooperation, the establishment and development of national institutions in order to protect and promote the human rights of the peoples of the region. Established in 1996, the APF is comprised of independent national human rights institutions that have been established in compliance with the minimum standards of the United Nations General Assembly endorsed “Principles relating to the status of National Institutions” (the Paris Principles). The APF plays a unique role in developing human rights dialogue, networks and practical programs of support. With its member institutions the APF is well positioned to directly influence the development of human rights law and practice in the Asia Pacific. The Asia Pacific Forum of National Human Rights Institutions Level 8, 133 Castlereagh Street Sydney NSW 2000 Australia Telephone: +61 2 9284 9845 Facsimile: +61 2 9284 9825 E-mail: [email protected] Web: www.asiapacificforum.net

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The Advisory Council of Jurists The Advisory Council of Jurists advises the APF Forum Council on the interpretation and application of international human rights standards. The Advisory Council is comprised of eminent jurists who have held high judicial office or senior academic or human rights appointments. The establishment of the Advisory Council of Jurists reflects the Forum Council’s recognition of the need for access to independent, authoritative advice on international human rights questions and to develop regional jurisprudence relating to the interpretation and application of international human rights standards. The ACJ has considered four references: anti-terrorism legislation and the rule of law (2004), trafficking of women and children (2002); death penalty (2000) and the regulation of child pornography on the internet (2000). Further information about the Advisory Council of Jurists is available at <www.asiapacificforum.net/jurists/>.

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Reference on the Rule of Law in Combating

Terrorism

Report of the

Advisory Council of Jurists This Report and the Background Paper were financed by the United Nations Office of the High Commissioner for Human Rights and the British Council

© The Asia Pacific Forum of National Human Rights Institutions 2004

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TABLE OF CONTENTS Page Meeting of the Advisory Council of Jurists 6 Acknowledgements 7 Terms of Reference 8 Preface 9 Part A - Executive Summary

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General Recommendations and Observations 10 Summary of Answers to Questions Posed by Reference 13 Recommendations and Observations in Relation to Forum States 21 Part B – Detailed Answers to Questions Posed by the Reference

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Part C – Observations and Recommendations Relating to Forum States

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General Remarks 77 Forum States 79 Glossary

127

Sources of international law referred to in this Report

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Appendix 1: International Law: Sources and Methodology 135 Appendix 2: UN Conventions and Protocols Relating to Terrorism 144 Appendix 3: Status of Ratifications of Conventions on Terrorism 145 Appendix 4: Other Regional Instruments on Terrorism 147 Appendix 5: Status of Ratifications of Principal International Human Rights Treaties Relevant to Anti-Terrorism Measures

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Appendix 6: Conventions on Terrorism deposited with the Secretary General of the United Nations

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Appendix 7: Conventions on Terrorism deposited with other depositories 151 Appendix 8: Concluding Statement of the 8th Annual Meeting of the Asia Pacific Forum of National Human Rights Institutions

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Appendix 9: Resolution of the Pre Forum NGO Consultation on the Rule of Law in Combating Terrorism

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Meeting of the Advisory Council of Jurists

Kathmandu, Nepal

16-18 February 2004

The Advisory Council of Jurists met from 16-18 February 2004 in Kathmandu, Nepal to

consider the Forum Council’s reference on the issue of the primacy of the rule of law in

countering terrorism world-wide while protecting human rights.

The members of the Advisory Council at the meeting were:

• Mr Daman Nath Dhungana (Nepal) - President of the Advisory Council of Jurists

• Professor Gillian Triggs (Australia)

• Justice Anthony Gates (Fiji)

• Mr Fali S Nariman (India)

• Professor Jacob Sahetapy (Indonesia)

• Dato’ Mahadev Shankar (Malaysia)

• Mr Jugnee Amarsanaa (Mongolia)

• Hon Justice Susan Glazebrook (New Zealand)

• Hon Mr Sedfrey Ordoñez (Philippines)

• Professor Kyong-Whan Ahn (Republic of Korea)

• Mr Rajendra Goonesekere (Sri Lanka)

• Professor Vitit Muntarbhorn (Thailand)

The Advisory Council welcomed its new members Justice Gates (Fiji), Justice Shankar

(Malaysia), Professor Ahn (Republic of Korea) and Professor Muntarbhorn (Thailand).

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Acknowledgments

The Advisory Council of Jurists thanks its President, Mr Daman Nath Dhungana, for his

skilful chairmanship of the Advisory Council at its meeting.

The Advisory Council would like to express its sincere gratitude to Ms Jessica Wyndham for

the excellent background paper she has provided to the Council for its consideration. The

Advisory Council also records its appreciation to Justice Susan Glazebrook and her law clerk,

Ms Karen Grau, for preparing a working draft of the Report for consideration by the

Advisory Council and for their work in helping to finalise the Report after the meeting

The Council was greatly aided at the meeting in its deliberations and analysis by Mr Jonathon

Hunyor of the Australian Human Rights and Equal Opportunity Commission, Mr Hari Phuyal

of the National Human Rights Commission, Nepal and Mr Robert Hesketh of the New

Zealand Office of Human Rights Proceedings. The Council would like particularly to

acknowledge Mr Hunyor’s role in acting as scribe during the meeting.

The Council also wishes to acknowledge the able and expert assistance of the Secretariat and

in particular Mr Stephen Clark and Mr Naresh Perinpanayagam without whose untiring

efforts this Report would not have been completed.

The Council is grateful to the British Council for the financial support it provided for the

preparation of the background paper and to the United Nations Office of the High

Commissioner for Human Rights for the financial support it provided to the meeting.

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TERMS OF REFERENCE

The Seventh Annual Meeting of the Asia Pacific Forum of National Human Rights

Institutions, held in New Delhi in November 2002, formulated a reference to the

Advisory Council of Jurists1 on the issue of the primacy of the rule of law in countering

terrorism world-wide while protecting human rights. The terms of reference adopted by

Forum members were:

i. how international human rights instruments and standards define ‘terrorism’, particularly with reference

to other rights including the right to freedom of association and freedom of expression;

ii. the reasons for which a person can be deprived of their liberty under international law;

iii. the length of time for which a person can be detained without being charged with an offence under

international law;

iv. the nature of special protections that should be extended to minors when imprisoned, detained or

searched in accordance with international law;

v. the safeguards to be followed in the event of imprisonment or detention of a person in accordance with

international law (e.g., access to lawyers and consular assistance);

vi. what safeguards are stipulated by international law relating to the right to a fair trial in the event a

person is charged with an offence;

vii. the manner in which search and seizure powers can be exercised in accordance with international law;

viii. the international human rights standards relevant to determining the penalties that can be imposed for

committing acts associated with ‘terrorism’;

ix. the international human rights standards that can be derogated from and in what circumstances;

x. the relationship between anti-terrorism measures and the rights to seek asylum and to non-refoulement;

and

xi. the nature of the obligations on States under international human rights instruments and standards

which are to be kept in view while enacting and implementing anti-terrorist legislation, at the same time

maintaining the primacy of the rule of law.

1 The Advisory Council of Jurists’ met from 16-18 February 2004 in Nepal to consider this reference. The President of the Advisory Council is Mr Daman Nath Dhungana (Nepal), and the members are: Professor Gillian Triggs (Australia), Justice Anthony Gates (Fiji), Mr Fali S Nariman (India), Professor Jacob Sahetapy (Indonesia), Dato’ Mahadev Shankar (Malaysia), Mr Jugnee Amarsanaa (Mongolia), Hon Justice Susan Glazebrook (New Zealand), the Hon, Mr Sedfrey Ordoñez (Philippines), Professor Kyong-Whan Ahn (Republic of Korea), Mr Rajendra Goonesekere (Sri Lanka) and Professor Vitit Muntarbhorn (Thailand). The Advisory Council welcomes its new members Justice Gates (Fiji), Justice Shankar (Malaysia), Professor Ahn (Republic of Korea) and Professor Muntarbhorn (Thailand).

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PREFACE

The Advisory Council of Jurists (‘the Advisory Council’) is acutely conscious of national and

international security concerns about the threat of terrorism and the resulting proliferation of

many national counter-terrorism laws. A realistic approach in tackling these concerns

demands that a balance be struck between security concerns and human rights. Today’s

challenge is to maintain the rule of law, (particularly safeguards against abuse of power), and

the commitment of the international community to human rights, (including the fundamental

rights which preserve human dignity), while also preserving the capacity to respond to

national and international security concerns.

There are many human rights instruments and standards relevant to these issues which came

into being before the current global pre-occupation with terrorism. Are those standards too

high? Are they still relevant today? Do they expect too much, and do they impose too many

burdens on those who wish to counter terrorism?

The Advisory Council considers that those human rights instruments and standards remain

vitally relevant today. They were designed to be interpreted in an evolving context. They are

flexible enough to respond to terrorism within the framework of international law. The UN

Security Council confirms that States, when enacting and implementing anti-terrorist

legislation, must do so consistently with human rights instruments and standards:

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.2

Indeed, the UN Secretary-General has observed that human rights along with democracy and

social justice will, in the long-term, be one of the best prophylactics against terrorism.3

2 Security Council Resolution 1456, High Level Meeting of the Security Council: Combating Terrorism, 20 January 2003; S/RES/1456 (2003). 3 Statement to the Security Council Meeting on Counter Terrorism, 18 January 2002, S/PV.4453 on threats to international peace and security caused by terrorist acts. The UN General Assembly has made similar points – see A/RES/40/61, 108th plenary meeting (9 December 1985). The Advisory Council also notes the comments of the ASEAN Secretary General Ong Keng Young at the inaugural Asia-Pacific Homeland Security Summit of 20 November 2003 where he refers to the necessity to address social and economic rights in the fight against terrorism:

“But we all know that terrorism cannot be eliminated through military and police action alone…Deep-seated resentment arising from social inequality, poverty and lack of opportunities serves as fuel to terrorist inclinations. This is why we strongly believe that a prosperous ASEAN made possible through greater productivity and economic integration is the most effective long-term measure against the dangers of terrorism.”

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PART A

EXECUTIVE SUMMARY

General Recommendations and Observations4

• The Advisory Council condemns all acts of terrorism. Terrorism is a violation of victims’

human rights and such acts (particularly against civilians) cannot be justified, whatever the

motive.5 States have a duty to protect potential victims from such human rights violations.

• Any comprehensive response to terrorism must include measures to eliminate conditions

that may allow terrorism to flourish. The protection and promotion of universal human

rights is one such measure.

• Regional and international co-operation is essential in order to combat terrorism

(particularly international terrorism) in all its manifestations.

• Any counter-terrorism measures must, however, be enacted and administered within a

culture of legality and must comply with international law, including human rights

instruments and standards.

• This culture of legality and the rule of law can only be secured with a competent and

independent judiciary and legal profession.

• The Advisory Council expresses its concern that there is a widening gap between

commitment to international human rights standards and their implementation in national

laws and administrative practices insofar as they relate to counter-terrorism measures. In

particular, the Advisory Council draws attention to the following disturbing practices:

o Administrative detention for prolonged periods without charge or opportunity for

adequate judicial review;

o Detention without notification to the family of the date and place of detention;

4 The Advisory Council also draws attention to the resolution of the Pre-Forum NGO Consultation set out in Appendix 9 with which we are in substantial agreement. 5 See for example the comments in Security Council Resolution 1269 On the responsibility of the Security Council in the maintenance of international peace and security, 19 October 1999; S/RES/1269 (1999).

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o The failure to ensure access to legal advice from the time of detention;

o The failure to protect the special rights of children in the administration of anti-

terrorism legislation;

o The targeting of minority groups solely on the basis of ethnic or national origin or

religious or political persuasion;

o The failure to assure a proper process for determining refugee status for all asylum

seekers;

o Extrajudicial killings, such as in ‘fake encounters’;

o The grant of impunity for gross violations of human rights by, for example, law

enforcement officers or members of the military;

o Overly expansive and vague definitions of terrorism in national laws which risk

restricting rights such as freedom of speech, expression and association;

o The introduction of draconian measures targeted to counter terrorism when existing

laws are adequate for the purpose;

o The misuse of anti-terrorism legislation to stifle legitimate political dissent and other

fundamental freedoms;

o The failure to provide adequate safeguards in anti-terrorism legislation to prevent

their misuse;

o The promulgation of counter-terrorism measures by executive decree without

adequate parliamentary scrutiny;

o The erosion of rights to due process, including the presumption of innocence; and

o The proliferation of special tribunals to deal with terrorism offences, thereby

undermining the right to a fair and public hearing by an independent and impartial

tribunal.

• The Advisory Council recommends that immediate steps be taken by all relevant

authorities to ensure that these unacceptable practices cease forthwith.

• National Human Rights Institutions (NHRIs) should be conscious of the above matters in

the performance of their functions, including complaint handling and monitoring of human

rights performance within their jurisdiction.

• NHRIs should report on a regular basis to the Office of the Commissioner for Human

Rights on the extent to which the content and administration of counter-terrorism

measures fail to comply with international human rights law.

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• NHRIs should seek to influence legislators and inform public debate about the human

rights implications of counter terrorism measures and the legal obligations of States in

relation to international human rights instruments and norms.

• NHRIs should take an active role in educating all sectors of the community, for example,

lawyers, journalists, doctors, police, the military, the judiciary and legislators, on the

meaning and application of the international law of human rights and the general principle

of the rule of law.

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Summary of Answers to Questions Posed by the Reference

(i) How international human rights instruments and standards define ‘terrorism’,

particularly with reference to other rights including the right to freedom of association

and freedom of expression

• There are no international human rights instruments and standards that define terrorism.

• However, there is a general working definition contained in Article 2 of the UN Draft

Terrorism Convention, which provides:

Any person commits an offence within the meaning of this Convention if that person, by any means, unlawfully and intentionally causes: (a) death or serious bodily injury to any person; or (b) serious damage to public or private property, including a place of public use, a state

or government facility, a public transportation system, an infrastructure facility, or the environment; or

(c) damage to property, places, facilities or systems referred to in paragraph 1(b) of this article, resulting or likely to result in major economic loss,

when the purpose of the conduct, 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.

• This definition has been used in counter-terrorism laws in the region and may therefore be

gaining acceptance as an appropriate definition.

• The Advisory Council notes, however, that, in designing and implementing any counter-

terrorism measures, particular attention needs to be given to ensuring respect for the rights

to freedom of opinion, freedom of expression and freedom of association.

• States must avoid including, within any definition of ‘terrorism’ or associated definitions,

(such as ‘terrorist’, ‘terrorist organisation’ and ‘terrorist act’), legitimate and peaceful

political action and protest.

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(ii) The reasons for which a person can be deprived of their liberty under international law

• Under international law, deprivation of liberty must be:

o in accordance with law; and

o not arbitrary.

• For detention not to be arbitrary, it must be:

o for a legitimate purpose;

o necessary and proportionate in pursuit of such purpose; and

o non-discriminatory.

(iii) The length of time for which a person can be deprived of their liberty under

international law without being charged

• Anyone arrested or detained for any reason, including in relation to a terrorist offence, has

the right to be brought promptly (without delay) before a judicial officer to challenge the

legality of their detention.

• All persons arrested or detained on a criminal charge are entitled to a trial within a

reasonable period.

• Even where detention is lawful and not arbitrary at inception, it can become arbitrary if the

length of detention is not necessary and proportional to the circumstances. There should be

an opportunity for regular judicial review of the continuing necessity for detention.

• It is recognised that terrorist offences are serious offences and may present particular

security concerns. The investigation of these offences may also take longer because of

their complexity and possible international component. All of these factors must be

weighed by a judicial authority when making a decision as to the necessity to detain and

the appropriate limits on the length of detention.

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(iv) The nature of special protections that should be extended to minors when imprisoned,

detained or searched in accordance with international law

• Minors/children must be treated in accordance with the CRC and related rules which

require special protection for those under 18 years of age. The overriding principle is that

the best interests of the child must be a primary consideration.

• In particular, imprisonment or detention of children must only take place as a measure of

last resort and be for the shortest possible period of time.

• The Advisory Council notes the disturbing trend towards the use of children in terrorist

acts. This breach of children’s rights must be proscribed by law and active measures taken

to prevent and eliminate such practices while providing adequately for social recovery and

reintegration of the children concerned.

(v) The safeguards to be followed in the event of imprisonment or detention of a person in

accordance with international law

• Every person detained is entitled to be treated with humanity and with respect for the

inherent dignity of the human person.

• In particular, in addition to effective judicial review of detention and due process rights,

the following safeguards apply to all persons detained or imprisoned:

o The right to be free from torture;

o Humane and appropriate conditions of incarceration;

o Notification of and access to family;

o Immediate access to legal counsel;

o Consular assistance; and

o The right to an interpreter.

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(vi) What safeguards are stipulated by international law relating to the right to a fair trial

in the event a person is charged with an offence

• Every person who is charged with an offence, including a terrorist offence, is entitled to a

fair and public hearing by a competent and impartial tribunal established by law.

• Everyone charged with an offence has the right to be presumed innocent until proved

guilty.

• Other key safeguards include:

o The right to be informed of the nature and cause of the charge;

o The right to adequate facilities for the preparation of a defence, including the right to

legal counsel;

o The right to defend oneself or through legal assistance of one’s own choosing;

o The right to examine witnesses; and

o The right not to be compelled to testify against oneself or confess guilt.

• The Advisory Council recognises that there may be particular concerns in terrorism trials

with issues of witness protection and the use of classified information. In these

circumstances it is important that any measures to protect witnesses or classified

information be consistent to the greatest extent possible with the rights set out above, that

they be authorised by the judicial authority trying the case and that they be imposed only

to the extent strictly necessary.

(vii) The manner in which search and seizure powers can be exercised in accordance with

international law

• Under international law any exercise of search and seizure powers, including interception

warrants, must be lawful and not arbitrary (i.e. must be necessary and proportional). In

particular, such measures must:

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o be non-discriminatory; and

o take into consideration rights to privacy, family and correspondence.

• There may be justification for restricting the right to privacy in light of the threat to

national security posed by terrorism. Any information gathering powers, including the

power to apply for interception warrants, must, however, be clearly defined and subject to

judicial oversight. They must also be necessary and proportional to the threat to national

security and be non-discriminatory.

(viii) The international human rights standards relevant to determining the penalties that

can be imposed for committing acts associated with ‘terrorism’

• Penalties can only be imposed after a fair trial in accordance with law and by a competent,

duly constituted and impartial tribunal.

• The Conventions on Terrorism require, for the crimes covered by those conventions, the

imposition of appropriate penalties which take into account the grave nature of the

offences.

• All penalties should be appropriate, reasonable and proportionate to the crime.

• International law prohibits cruel, inhuman and degrading punishment. International law

does not specifically prohibit the death penalty. However, there is an evolving and

growing international trend against the death penalty and the Advisory Council of Jurists,

in its Report of December 2000, urged States to move towards its abolition.

• Where States have not abolished the death penalty it should only be imposed for the most

serious crimes, for example those that have led to large-scale loss of life.

• The death penalty must not be imposed on those who were children at the time of an

offence and must not be carried out on pregnant women.

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• The Advisory Council notes with concern incidents of extra-judicial killings, being

killings by law enforcement officers, the military or vigilante groups outside of the judicial

process and without lawful excuse.

• Such killings are contrary to the fundamental human right not to be arbitrarily deprived of

life. The perpetrators should not be entitled to claim immunity from prosecution in respect

of such crimes.

(ix) The international human rights standards that can be derogated from and in what

circumstances

• In no circumstances whatsoever can torture or cruel, inhuman and degrading treatment and

punishment be justified.

• Certain human rights have become norms of customary international law, including the

right to be treated humanely while in detention and certain minimum standards of due

process (including the presumption of innocence). Such norms must always be complied

with by all States.

• Departure from some other human rights standards might be permissible under the ICCPR

only:

o In times of lawfully proclaimed public emergency which threatens the life of the

nation; and

o Where departure from those rights is non-discriminatory and strictly necessary and

proportionate to the emergency.

(x) The relationship between anti-terrorism measures and the rights to seek asylum and to

non-refoulement

• Anti-terrorism measures should not undermine access to asylum for refugees (those

fleeing their country of origin by reason of well-founded fear of persecution).

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• Terrorists are, however, excluded from refugee protection. Refugee status cannot be

claimed by any person where there are serious reasons for considering they have

committed:

o crimes against peace, a war crime or a crime against humanity;

o serious non-political crimes; or

o acts contrary to the purposes and principles of the United Nations.

• Where a person has grounds for claiming refugee status, but where there are also reasons

for suspecting them as a terrorist, they should have access to fair status determination

procedures to assess their claim to refugee status and whether they are excluded from

refugee protection.

• Non-refoulement is a customary rule of international law binding on all States. This means

that refugees should not be returned to a territory where their life or freedom would be

threatened on account of their race, religion, nationality, membership of a particular social

group or political opinion.

• An exception is permitted where there are reasonable grounds for regarding a person as a

danger to the country in which they are seeking asylum, or where they, having been

convicted of a particularly serious crime, constitute a danger to the community of that

country. In such cases there should also be a fair procedure to determine whether a person

comes within such exception.

• Even if a person is not entitled to protection as a refugee, they cannot be returned to a

situation where they are likely to face torture or a risk to their life or other fundamental

human rights.

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(xi) The nature of the obligations on States under international human rights instruments

and standards which are to be kept in view while enacting and implementing anti-

terrorist legislation, at the same time maintaining the primacy of the rule of law

• International human rights standards impose obligations upon States when enacting and

implementing anti-terrorist legislation.

• International human rights standards guarantee the primacy of the rule of law and this

must be borne in mind as a priority in enacting and implementing anti-terrorist legislation.

• International human rights standards should not simply be ‘kept in view’ in enacting,

implementing and administering anti-terrorist legislation, but they must be guaranteed and

incorporated into national laws and practices.

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Recommendations and Observations in Relation

to Forum States

Australia

The Advisory Council of Jurists observes and recommends that:

1. Extended detention without charge for up to 168 hours appears to be contrary to the

prohibition against arbitrary arrest or detention under Article 9.1 of the ICCPR. The ASIO

Amendment Act should be brought into conformity with Australia’s legal obligations in

this respect.

2. The restrictions placed on the right of detainees to access to a lawyer contravene Principle

8 of the Basic Principles on Lawyers. The ASIO Amendment Act, section 34 TA, should

be amended to afford this right.

3. The detention of persons where no terrorist act has occurred may have a significant effect

on the respective roles of journalists and legal advisors. Section 34.3 (c) of the ASIO

Amendment Act should be reviewed to protect legal professional privilege and the

qualified professional privilege of journalists.

4. The ASIO Amendment Act requires all contacts between a legal practitioner and a detainee

to be monitored inconsistently with the right to confidential communications under

Principle 5 of the Basic Principles on Lawyers. The legislation should be amended

accordingly.

5. The ASIO Amendment Act requires video-taping of all communications between detainees

and their legal advisers. Under Principle 18.4 of the Body of Principles on Detention and

Principle 8 of the Basic Principles on Lawyers interviews may be within sight, though not

the hearing of law enforcement officials. Any video taping should respect this right.

Moreover, detainees should be informed of their right to request an interpreter both orally

and in writing.

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6. Regulations prohibiting or regulating access by lawyers to information on security

grounds contravenes Principle 21 of the Basic Principles on Lawyers and should be

amended to ensure the provision of effective legal advice to detainees.

7. The ASIO Amendment Act, sections 34 G(3) and (6) require that a detainee answer all

questions asked of him or her in contravention of the right to silence and the rights not to

be compelled to testify against oneself or to confess guilt (Article 14(3)(g) of the ICCPR).

The legislation should be amended to ensure these rights are fully respected. It is also

vitally important that the burden of proving non-association with terrorist acts –currently

placed upon a detainee - be moved to ASIO or other investigating authority.

8. The application of the ASIO Amendment Act to minors between the ages of 16 and 18

years and the application of any State legislation, (such as the Terrorism (Police Powers)

Act 2002 (NSW)) that apply to children from the age of 10 years, are in contravention of

the ‘best interests of the child’ principle established in Article 3 of the CRC. The Act

should be amended accordingly.

9. The restrictions on the rights of a detained person under the ASIO Amendment Act

(section 34F(8)) to communicate with their family – rendering them “incommunicado” -

are in significant contravention of the Body of Principles on Detention and should be

amended.

10. Efforts should be made to ensure that the search and seizure provisions under the ASIO

Amendment Act are used reasonably with proper restraint ensuring they are employed

without racial or religious discrimination.

Fiji


1. The power to derogate from the rights listed in the Bill of Rights when a state of

emergency is proclaimed should be interpreted so as to preserve the constitutional rights

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to the fullest extent possible and in light of the limits on derogation imposed by the

ICCPR.

2. Consideration should be given to the removal of the derogation of rights permitted under

the Constitution during an emergency which offend against Articles 7 and 8 of the

ICCPR, namely the freedom not to be subjected to torture, or to cruel, inhuman or

degrading treatment or punishment, and the freedom not to be held in slavery or servitude

or to be required to perform forced or compulsory labour.

3. The definition of ‘terrorist emergency’ in the Suppression of Terrorism Decree and the

definition of terrorism in the Intelligence Service Decree are drafted broadly and may

unintentionally include such activities as a protest that may have resulted in violence and

injury to a person, although that was not its purpose, in contravention of the right to

freedom of expression in Article 19 of the ICCPR.

4. The failure to limit the search powers contained in the Suppression of Terrorism Decree

and the Intelligence Service Decree to persons over the age of 18 is not in accordance

with the ‘best interests of the child’ principle contained in the Article 3 of the CRC.

5. Any detention in respect of anti-terrorism measures should not be arbitrary as the term has

been defined in relation to the prohibition contained in the ICCPR and which is likely to

have become a principle of customary international law to which all States are bound.

6. Counter-terrorism measures should be promulgated by parliamentary legislation, which

allows scope for public participation, rather than by Executive decrees which have the

potential to abridge human rights. The Suppression of Terrorism Decree and the

Intelligence Service Decree should be recast and re-submitted to Parliament for

democratic consideration.

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India


1. The provision of POTA extending the normal period for investigation prescribed in the

ordinary criminal law, and extending the consequential period of detention of persons

accused (up to 180 days) and denying the accused the right to be released on bail within

one year from the date of detention unless the Special Court “is satisfied that there are

grounds for believing that he is not guilty of committing the offence” – are at variance

with the provisions of Article 9(2), (3) and (4) and Articles 14(2) and 3(c) of the ICCPR.

They are also contrary to Principle 11 of the Body of Principles on Detention.

2. The ‘Special Courts’ established within the framework of POTA must exercise their

jurisdiction with the same degree of impartiality, independence and fairness as the

established Courts of the land, and in accordance with international standards as set out in

Article 14 of the ICCPR: this must be ensured by the High Courts (who are empowered

under the Constitution with ample writ jurisdiction over all administrative authorities and

tribunals), and by the Supreme Court of India.

3. Section 54(2) permits the person arrested under POTA to meet with his legal practitioner

during the course of interrogation, but does not permit the legal practitioner to remain

present throughout the period of interrogation: this is not in conformity with Principle 8 of

the Basic Principles on Lawyers which mandates that all arrested, detained or imprisoned

persons shall be provided with adequate opportunity, time and facility to be visited by and

to communicate and to consult with a lawyer without delay, interception or censorship

and in full confidentiality: such consultation being within sight but not within the hearing

of law enforcement officials.

4. Under Section 53 of POTA in a prosecution for punishment for “terrorist acts” (Section 3),

Special Courts are permitted to draw adverse inferences against the accused in certain

circumstances. Article 14(2) of the ICCPR provides, however, that everyone charged with

a criminal offence “shall have a right to be presumed innocent until proved guilty

according to law”: a right against which no derogation is permissible.

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Indonesia


1. While national security concerns are important to Indonesia, they need to be balanced

with the human rights guarantees contained in Indonesian legislation, and international

treaties to which Indonesia is a party, as well as the customary rules of international law

which bind all States.

2. The retrospective effect of the anti-terrorist laws are contrary to the principle of legality in

the field of criminal law as recognised in Article 15(2) of the ICCPR and as as a principle

from which no derogation may be made. Consideration should be given to the use of the

existing criminal law to deal with crimes committed before the enactment of specific anti-

terrorism measures.

3. The detention period for a suspect under the new anti-terrorism legislation is in

contravention of Article 9 of the ICCPR and Principle 11 of the Body of Principles on

Detention.

4. An independent and fair judicial process is required of all courts in Indonesia in

accordance with international standards, particularly in light of the severe punishments

that may be imposed for crimes relating to terrorism.

5. In administering anti-terrorism measures that may apply to children, care must be taken to

ensure that the “best interests of the child” principle is a primary consideration.

Malaysia


1. The ratification by Malaysia of most of the major international terrorism conventions

makes it timely for a review of the definition of the terms ‘terrorism’ and ‘terrorist’ in

25

domestic legislation and a review of the legal and practical effect of that legislation. A

clear distinction should be made between legislation to combat national and international

terrorism and legislation for less heinous domestic offences against the State, person or

property.

2. The definition of ‘terrorist’ in the Penal Code Amendment Act 2003 is considerably

wider than the definition contained within the Internal Security Act which is itself very

wide. Care must be taken that it is not used to restrict freedom of expression and

association. Persons who have merely voiced dissent without advocating the overthrow

of the established order by violent means should not come within the definition of

terrorist.

3. The circumstances in which derogations to fundamental rights are permitted by Article

149 of the Constitution extend well beyond a situation of public emergency which

threatens the life of the nation as required by Article 4 of the ICCPR. In any event Article

149 should be strictly complied with and not interpreted widely so as to render the

Constitutional rights nugatory.

4. The provisions of the Prevention of Crime Act which provide for the receipt or

procurement of all evidence in relation to a person, whether admissible or not, and which

create a presumption of guilt in relation to specified persons contravene the entitlement to

a fair trial in Article 14 of the ICCPR. The presumption of innocence is additionally a

customary norm of international law which is binding on Malaysia notwithstanding that it

is not a party to the ICCPR.

5. Under Article 151 of the Constitution an arresting officer who “has reason to believe

there are grounds” to justify detention should be required to communicate the full

particulars of this belief at the time of arrest and in writing as soon as possible thereafter.

Justification of a detention only after the detention has commenced makes the initial

validity of the arrest suspect.

6. The provisions of the Internal Security Act extending the period of police investigation

for 60 days, denying the detainee the right to be released on bail and permitting a

Ministerial order for detention at any time after arrest without any possibility of judicial

26

review and merely on suspicion that a person may commit an offence, significantly

contravene the relevant provisions of Article 9(2), (3), (4), and Article 14 of the ICCPR

and customary international law to which all States are bound. They are also contrary to

Principle 11 of the Body of Principles on Detention.

7. The close monitoring of visits to detainees under the ISA contravenes Principle 5 of the

Basic Principles on Lawyers, and Principle 18 of the Body of Principles on Detention.

8. The powers of the Advisory Body constituted under Article 151 of the Federal

Constitution should be extended to give detainees an opportunity to be represented by

counsel with a right to challenge the grounds advanced against them. The findings of the

Advisory Body should be made binding on the Minister.

Mongolia


1. National security concerns need to be balanced with the human rights guarantees in

Mongolia’s constitution and international treaties to which Mongolia is a party, as well as

customary rules of international law.

2. Care must be taken that provisions in the Criminal Code incorporating reference to

terrorist activities are not used to stifle legitimate political dissent and other fundamental

freedoms or to target vulnerable groups.

3. The 14 day detention period under the Criminal Procedure Code for detained persons is in

contravention of the principle of Article 9 of the ICCPR and Principle 11 of the Body of

Principles on Detention. The application of this same detention period to minors

additionally contravenes the principles of the CRC and the Beijing Rules.

4. Search powers and detention under the Criminal Procedure Code should not be conducted

on persons under the age of 18 in accordance with the ‘best interests of the child’

principle expressed in Article 3 of the CRC.

27

Nepal

The Advisory Council of Jurists recommends that:

1. While national security concerns are important to Nepal, they need to be balanced with

the human rights guarantees contained in the Constitution of Nepal, and international

treaties to which Nepal is a party, as well as the customary rules of international law


2. The Terrorism Ordinance defines terrorist activities widely. Care must be taken that it is

not used to restrict freedom of opinion, expression and peaceful assembly or to target

vulnerable groups.

3. The legal ability to derogate from the rights contained in the Constitution of Nepal,

should be interpreted to give the fullest effect possible to the human rights guaranteed in

the Constitution and in light of the limits on derogation imposed by the ICCPR.

4. The constitutional requirement that a detainee be informed ‘as soon as may be’ of the

grounds of such arrest should be interpreted in light of the requirements set out in




New Zealand


1. If children under 17 are charged with the new terrorism offences, the provisions of the

Children, Young Persons and Their Families Act 1989 will apply. As such, all of the

protections (pre, post and at trial) for children and young persons within the criminal

justice system contained in the Act will apply (as they would to children charged with

28

other serious criminal offences). These safeguards are not available for children over 17

and New Zealand criminal law has been frequently criticised for this as being in

contravention of the “best interests of the child” principle expressed in Article 3 of the

CRC.

2. Incorporating into the general law provisions that give the Police and other agencies wider

powers, which were introduced and designed to deal with terrorism, can have the effect of

eroding the rights of those who are not terrorists.

3. Consideration be given to implementing the Law Commission recommendation that there

be a repeal of the International Terrorism (Emergency Powers) Act 1987.

4. The review of the security risk certificate provisions in the Immigration Act 1999 heralded

by the Prime Minister be conducted and that the human rights implications of the

legislation be examined in the course of that review.

Philippines


1. National security concerns, while important, need to be balanced with the human rights

guarantees in the Philippines Constitution and international treaties to which the

Philippines is a party, as well as customary rules of international law. Care must be taken

that counter-terrorism measures are not used to restrict fundamental rights or to target

vulnerable groups.


allows scope for public participation, rather than by Executive decree.

3. Any detention in respect of counter-terrorism measures should not be arbitrary as the term

has been defined in relation to the prohibition contained in the ICCPR and which is likely

to have become a principle of customary international law to which all States are bound.

4. In administering counter-terrorism measures that may apply to children, care must be

taken to ensure that the “best interests of the child” principle is a primary consideration.

29

5. The constitutional right to counsel ‘preferably of his own choice’ should be applied to be

‘always’ of his own choice in accordance with the right to counsel of one’s choosing as

expressed in Article 14(2)(b) of the ICCPR and the Basic Principles on Lawyers.

6. An independent and fair judicial process is required of all courts in the Philippines in



Republic of Korea


1. The definition of terrorism in the Anti-Terrorism Bill is drafted broadly. Care must be

taken that it is not used to restrict fundamental rights such as freedom of expression and

association or to target vulnerable groups.



3. The 10 day detention period under the Criminal Procedure Act for detained persons is in


Principles on Detention.

Sri Lanka The Advisory Council of Jurists observes and recommends that: 1. The legal ability to derogate from the rights listed in section 15 of the Constitution,

although consistent with international law, should be exercised in very limited

circumstances so as to preserve the constitutional rights to the fullest extent possible.

2. The definition of ‘terrorism’ in the Prevention of Terrorism Act No. 48 of 1979 is drafted

broadly and may unintentionally include someone with an unlicensed firearm, stealing

stationery from a Government Department or engaging in minor vandalism. It may

30

therefore impose a severe punishment on a person who commits such an offence as a

‘terrorist’ despite the minor offence they have committed.

3. The provisions of the Prevention of Terrorism Act denying the detainee the right to be

released on bail and permitting a Ministerial order for detention at any time after arrest

without any possibility of judicial review and merely on suspicion that a person may

commit an offence, significantly contravene the relevant provisions of Article 9(2), (3),

(4), and Article 14 of the ICCPR and customary international law to which all States are

bound. They are also contrary to Principle 11 of the Body of Principles on Detention.

Thailand


1. While national security concerns are important to the country, they need to be balanced

with the human rights guarantees in the Thai Constitution and international treaties to

which Thailand is a party, as well as customary rules of international law.

2. It is regrettable that the Criminal Code was amended by a government/executive initiated

Decree. The more transparent method of amending the Criminal Code is through

parliamentary legislation rather than government/executive-initiated Decree.

Parliamentary legislation provides more space for participation from the public in

influencing the scope and content of the law.

3. The application of the new law should uphold and not undermine the Rule of Law, in

particular access to the courts and guarantees for human rights.

4. The new law should be subject to an independent review process so as to ensure that it is

not applied in an unbalanced manner.

5. The new law should not be used to marginalise vulnerable groups such as those seeking

asylum/refuge, and special protections are needed for children.

31

PART B

DETAILED ANSWERS TO QUESTIONS POSED BY THE REFERENCE

(i) How international human rights instruments and standards define ‘terrorism’,

particularly with reference to other rights including the right to freedom of

association and freedom of expression SUMMARY OF ANSWERS

• There are no international human rights instruments and standards that define terrorism.

• However, there is a general working definition contained in Article 2 of the UN Draft

Terrorism Convention, which provides:

Any person commits an offence within the meaning of this Convention if that person, by any means, unlawfully and intentionally causes: (a) death or serious bodily injury to any person; or (b) serious damage to public or private property, including a place of public use, a state or

government facility, a public transportation system, an infrastructure facility, or the environment; or



• This definition has been used in counter-terrorism laws in the region and may therefore

be gaining acceptance as an appropriate definition.

• The Advisory Council notes, however, that, in designing and implementing any counter-

terrorism measures, particular attention needs to be given to ensuring respect for the

rights to freedom of opinion, freedom of expression and freedom of association.

• States must avoid including, within any definition of ‘terrorism’ or associated definitions,

(such as ‘terrorist’, ‘terrorist organisation’ and ‘terrorist act’), legitimate and peaceful

political action and protest.

32

DISCUSSION

International human rights instruments and standards do not define terrorism. Definitions of

terrorism are more relevant to, and have been discussed in the context of, counter-terrorism

measures.

Even in that context there has been difficulty in achieving international consensus in the

definition of terrorism.6 Because of this, the approach taken in the Terrorism Conventions is

to focus on specific forms of terrorist activity, such as hostage taking or the seizure of

aircraft.7 SAARC also takes this approach, in defining terrorism by reference to the

Internationally Protected Persons Convention, the Montreal Convention and the Hague

Convention. However, it also includes in its definition of terrorism in Article 1(e):

murder, manslaughter, assault causing bodily harm, kidnapping, hostage-taking and offences relating to firearms, weapons, explosives and dangerous substances when used as a means to perpetrate indiscriminate violence involving death or serious bodily injury to persons or serious damage to property.

Discussions continue to try to find an internationally agreed definition of terrorism. The UN

General Assembly provided an operational definition of terrorism in its Declaration on

Measures to Eliminate International Terrorism:8

Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons. 9

The latest attempt at a general definition is contained in the UN Draft Terrorism Convention,

which in article 2 defines terrorism as follows:

6 Over one hundred definitions have been proposed. The first attempt at a general definition was by the League of Nations in 1937 in the Geneva Convention for the Prevention and Punishment of Terrorism, which never entered into force as it failed to be ratified by a sufficient number of States. See International Commission of Jurists ‘Terrorism and Human Rights’ (Occasional Papers No 2, April 2002) 185. 7 See Appendix 6 for a discussion of the activities covered by those Conventions. 8 A/RES/49/60 (1995) ‘Measures to Eliminate International Terrorism’ annex at p4. This definition has been reiterated in subsequent GA Resolutions on ‘Measures to Eliminate Terrorism’. See A/RES 50/53 (1996); A/RES 51/210 (1997); A/RES/52/165 (1998); A/RES/53/108 (1999); A/RES/54/110 (2000); A/RES/55/158 (2001); A/RES/56/88 (2002); A/RES/57/27 (2003). 9 It further held that such acts ‘are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them.’

33

Any person commits an offence within the meaning of this Convention if that person, by any means, unlawfully and intentionally causes: (a) death or serious bodily injury to any person; or (b) serious damage to public or private property, including a place of public use, a state or

government facility, a public transportation system, an infrastructure facility, or the environment; or



Although this definition is contained in a draft convention, it has been used in counter-

terrorism laws in the region and may therefore be gaining acceptance as an appropriate

definition. We will take this definition of terrorism as our working definition for this paper as

it represents the current state of evolution of international thinking.

One of the major issues with any general definition of terrorism is ensuring that it achieves

sufficient precision so as not to offend against the universally recognised principles of nullum

crimen sine lege (literally, no crime without a law) and nulla poena sine lege (no penalty

without a law) which require that definitions of criminal offences must be precise and

unambiguous. States must ensure that any definitions used in domestic counter-terrorism

legislation comply with these requirements. Such definitions cannot be applied retroactively

to create offences.

Another major issue is to ensure that any definition of terrorism and related offences is not so

wide that it captures legitimate political dissent and protest. Otherwise the right to freedom of

association,10 freedom of expression,11 freedom of assembly,12 and in some cases freedom of

movement,13 freedom of thought, conscience and religion14 and the freedom to hold opinions

without interference15 will be compromised. One particular difficulty arises where States

create offences relating to the membership of terrorist organisations and/or where States

10 Article 22, ICCPR. 11 Article 19(2), ICCPR. 12 Article 21, ICCPR. 13 Article 12, ICCPR. 14 Article 18(1), ICCPR. 15 Article 19(1), ICCPR.

34

create sanctions against people and/or organisations for expressing certain views or ideas in

contravention of anti-terrorism measures introduced by the States. 16

Anti-terrorist laws which allow for the designation of specific organisations as ‘terrorist’ or

provide for measures against individuals linked or suspected of being linked to proscribed

organisations have the potential to be subject to abuse by States by the inclusion of and

restrictions on organisations with legitimate aims. When formulating anti-terrorism measures

States must bear in mind the right to free association and that any restrictions on that right

must, under Article 22(2) of the ICCPR, be prescribed by law and be necessary in a

democratic society in the interests of, inter alia, national security or public safety, public

order, or the protection of the rights and freedoms of others.17 Similar considerations apply

with regard to limits on the freedom of assembly,18 freedom of expression19 and freedom of

16 The Advisory Council notes that one of the other issues in drafting a general definition of terrorism is the need to distinguish armed conflict from terrorism. This is because the law of war, or international humanitarian law (IHL), which automatically comes into effect whenever there is an armed conflict (whether international or internal) has long-established principles, including that acts of war (which may never be directed towards civilians and the means and methods of which are restricted) are not chargeable as criminal or terrorist acts. There is no general definition of terrorism in IHL but article 51(2) of additional protocol I to the Geneva Conventions provides that the civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited (see Protocol Additional to the Geneva Conventions of 12 August 1949; and relating to the Protection of Victims of International Armed Conflicts Adopted on 8 June 1977). Because the prohibitions (as well as the protections of IHL) form part of customary international law, States are obliged to prosecute or extradite persons accused of such prohibited acts due to the existence of universal jurisdiction. See the discussion by Emanuela-Chiara Gillard ‘The Complementary Nature of Human Rights Law, International Humanitarian Law and Refugee Law’ in Terrorism and International Law: Challenges and Responses (International Institute of Humanitarian Law, San Remo, June 2003) 50. The International Commission of Jurists Terrorism and Human Rights (Occasional Paper No 2, April 2002) at 206-208 considers that the UN Draft Terrorism Convention definition cuts across IHL as it does not exclude non-State parties to a non-international armed conflict It suggests that, in order to be in conformity with IHL, the Terrorism Convention should be worded in such a way as to exclude from its scope of application all parties to an armed conflict. As noted above, the scope of the Draft Convention is yet to be agreed upon. 17 Art 22: 1. Everyone shall have the right to freedom of association with others, including the right to form and

join trade unions for the protection of his interests. 2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right. 3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.

18 Art 21: The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.\

35

movement.20 The Advisory Council also notes that, in accordance with article 18(4), freedom

to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed

by law and are necessary to protect public safety, order, health or morals or the fundamental

rights and freedoms of others.

(ii) The reasons for which a person can be deprived of their liberty under international

law

SUMMARY OF ANSWERS

• Under international law, deprivation of liberty must be:

o in accordance with law; and

o not arbitrary.

• For detention not to be arbitrary, it must be:

o for a legitimate purpose;

o necessary and proportionate in pursuit of such purpose; and

o non-discriminatory.

DISCUSSION Article 9 of the ICCPR provides for the right to liberty and security of the person. It provides

further that no one shall be subjected to arbitrary arrest or detention and that any deprivation 19 Art 19(2): Everyone shall have the right to freedom of expression; this right shall include freedom to seek,

receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

Art 19(3): The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) for respect of the rights or reputations of others; (b) for the protection of national security of or public order (ordre public), or of public health or

morals. 20 Art 12:1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty

of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. The above-mentioned rights shall not be subject to any restrictions except those which are provided

by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

36

of liberty must be on such grounds and in accordance with such procedure as are established

by law.21 The right not to be subject to arbitrary detention is likely also to have become a

principle of customary international law.22 It is thus binding upon all States.

The Human Rights Committee has interpreted arbitrary detention in a broad manner which

extends beyond simple unlawfulness to include elements of inappropriateness and injustice.23

Cases of deprivation of liberty provided for by law must not be manifestly unproportional,

unjust or unpredictable. The specific manner in which a person is detained must not be

discriminatory and must be able to be deemed appropriate and proportional in view of the

circumstances of the particular case.24

Even where a person is charged with an offence, pre-trial detention should be the exception

and only resorted to where it is necessary in all of the circumstances of the case, for example

to prevent flight or interference with evidence.25 What is commonly called administrative

4. No one shall be arbitrarily deprived of the right to enter his own country. 21 Art 9: 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest

or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement. 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

22 Under Article 53 of the Vienna Convention on the Law of Treaties, a customary or peremptory norm of general international law (jus cogens) is: ‘a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.’ The IBA points out that the right not to be subjected to arbitrary detention is reflected in a broad range of international instruments, commentaries and State Practice, including every major international human rights convention that contains a general enumeration of rights: Brief of Human Rights Institute of the International Bar Association as Amicus Curiae in Support of Petitioners (13 January 2004) Rasul v Bush US Supreme Court 03-334, 16 January 2004 at 17. The IBA also notes that the right is preserved during times of armed conflict under IHL which establishes that all detainees must be promptly classified in order that they may receive rights and privileges appropriate to their status and ensures fundamental due process for all detainees, regardless of status, so that no person is detained arbitrarily or indefinitely: at 25. 23 A v Australia (1997) Communication No. 560/1993 at para 9.2. 24 Manfred Novak UN Covenant on Civil and Political Rights: CCPR Commentary (Engel,1993) 172-173. 25 See Human Rights Committee General Comment 8, Article 9 at para 3 and A v Australia (1997) Communication No. 560/1993 at para 9.2.

37

detention, that is, detention for the purposes of public security or for questioning and

intelligence-gathering, is likely to be more difficult to justify, even in the context of an

investigation involving terrorism. In exceptional circumstances it may be justifiable for a

strictly limited period if absolutely necessary because of the particular circumstances of the

individual concerned and taking into account the level of the threat.26 If a person being

questioned or held is not themselves suspected of involvement in any terrorist offence,

detention is, in our view, unlikely ever to be justifiable.27 Detention of non-suspects may also

impinge upon other rights such as the right of freedom of association.

For completeness, we note that some of the Conventions on Terrorism establish a process by

which a person who commits an offence in the terms of the particular Convention or is

alleged to have done so, must be taken into custody or otherwise secured by the State Party in

whose territory that person is found.28 Article 6(1) of the Montreal Convention stipulates, for

example, that:

Upon being satisfied that the circumstances so warrant, any Contracting State in the territory of which the offender or the alleged offender is present, shall take him into custody or take other measures to ensure his presence.

Article 10(2) of the Draft Terrorism Convention is drafted similarly although it sets out the

reasons for which a person should be detained or otherwise made available for trial:

Upon being satisfied that the circumstances so warrant, the State Party in whose territory the offender or alleged offender is present shall take the appropriate measures under its domestic law so as to ensure that person’s presence for the purpose of prosecution or extradition.29

26See Human Rights Committee General Comment 8, Article 9 (1982) at para 4 “if so-called preventive detention is used, for reasons of public security … it must not be arbitrary, and must be based on grounds and procedures established by law”. Reasons for the detention must be given and court control of the detention must be available. 27 The Advisory Council refers to the case of Brogan v United Kingdom (1988) 11 EHRR 117, paras 58-62, in which the European Court of Human Rights recognised that, while the investigation of terrorist offences presented the authorities with special problems which had the effect of prolonging the period during which persons suspected of serious terrorist offences might be kept in custody before being brought before a judicial officer, it could not justify dispensing altogether with judicial control. In addition, the Court considered that the scope for flexibility in interpreting and applying the notion of ‘promptness’ (in terms of bringing a detained person before a judicial officer) was very limited with a wide interpretation impairing the essence of the right. 28 Article 6(1), Montreal Convention; Article 6(1), Hague Convention; Article 7, Maritime Navigation Convention; Article 13, Tokyo Convention. The Conventions on Terrorism that allow detention, however, only do so for the purposes of prosecution or extradition. 29 See also Article 6, Hostages Convention; Article 6, Internationally Protected Persons Convention and Article 9, Nuclear Materials Convention.

38

(iii) The length of time for which a person can be deprived of their liberty under

international law without being charged

• Anyone arrested or detained for any reason, including in relation to a terrorist offence, has

the right to be brought promptly (without delay) before a judicial officer to challenge the

legality of their detention.

• All persons arrested or detained on a criminal charge are entitled to a trial within a

reasonable period.

• Even where detention is lawful and not arbitrary at inception, it can become arbitrary if the

length of detention is not necessary and proportional to the circumstances. There should be

an opportunity for regular judicial review of the continuing necessity for detention.

• It is recognised that terrorist offences are serious offences and may present particular

security concerns. The investigation of these offences may also take longer because of

their complexity and possible international component. All of these factors must be

weighed by a judicial authority when making a decision as to the necessity to detain and

the appropriate limits on the length of detention.

DISCUSSION

Article 9(4) of the ICCPR provides that anyone deprived of liberty by arrest or detention shall

be entitled to take proceedings before a court so that the court may decide without delay on

the lawfulness of the detention and order release if the detention is not lawful. Accordingly,

all persons who have been deprived of their liberty are, regardless of the reasons, entitled to a

right to have the detention reviewed in a court without delay. It has been commented that the

true significance of this right comes to light in the case of preventive cases of deprivation of

liberty (commonly called “administrative detention”) beyond that required for criminal

justice (as remand proceedings are available in respect of pre-trial detention). As discussed

39

later, to make this right meaningful, access to a lawyer and (where necessary) an interpreter

must be assured from commencement of the detention.

In addition, article 9(3) of the ICCPR provides that anyone arrested or detained on a criminal

charge shall be brought promptly before a judge or other officer authorised by law to exercise

judicial power and shall be entitled to trial within a reasonable time or to release. The Body

of Principles on Detention uses similar language in Principle 11.

The Terrorism Conventions that allow for detention also lay down general principles that

relate to the time between which a person is detained and when criminal or extradition

proceedings are instituted. Article 6(1) of the Hague Convention for example provides that:

custody and other measures shall be as provided in the law of that State but may only be continued for such time as is necessary to enable any criminal or extradition proceedings to be instituted.30 (emphasis added)

Article 10 of the Nuclear Materials Convention similarly provides that:

The State Party in whose territory the alleged offender is present shall, if it does not extradite him, submit, without exception whatsoever and without undue delay, the case to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State. (emphasis added)

The Draft Terrorism Convention in Article 11.1 contains this same wording.31

The Human Rights Committee in its General Comment on Article 9 of the ICCPR has said, in

the context of criminal cases, that any delays in bringing a person who has been arrested or

detained before a judicial officer must not exceed a few days.32 In our view, an even shorter

time frame must apply to cases of administrative detention and, in any event, as indicated

above, administrative detention should only be resorted to in exceptional cases and for strictly

limited periods.

30 See also Article 6(1), Montreal Convention. 31 See also Article 10.1, Maritime Navigation Convention which is similarly worded without the addition of ‘undue’. The Tokyo Convention in Article 13.2 permits custody to be continued only ‘for such time as is reasonably necessary to enable any criminal or extradition proceedings to be instituted. 32 Human Rights Committee General Comment 8, Article 9 (1982) para 2.

40

The Advisory Council also comments that detention that is initially in accordance with law

and otherwise justifiable has the potential to become arbitrary because of its length. The

Human Rights Committee’s jurisprudence contains observations that every decision to keep a

person in detention should be open to judicial review periodically so that the grounds

justifying the detention can be assessed and that, in any event, detention should not continue

beyond the period for which the State can provide appropriate justification.33 The Advisory

Council comments that any review by a judicial officer should not be a mere ‘rubber

stamping’ exercise but there should be an objective assessment of the reasons for detention.34

It is recognised, however, that terrorist offences are serious offences and may present

particular security concerns. The investigation of these offences may also take longer because

of their complexity and possible international component. These factors must therefore be

taken into account when a person is brought before a judicial officer (initially or at a review)

in any decision as to the necessity to detain and the appropriate limits on the length of

detention.

(iv) The nature of special protections that should be extended to minors when

imprisoned, detained or searched in accordance with international law

SUMMARY OF ANSWERS

• Minors/children must be treated in accordance with the CRC and related rules which

require special protection for those under 18 years of age. The overriding principle is that

the best interests of the child must be a primary consideration.

33 A v Australia (1997) Communication No. 560/1993 at para 9.4. 34 We note here the establishment of the Working Group on Arbitrary Detention by the Commission on Human Rights at its forty-seventh session, in 1991, by resolution 1991/42. The Working Group is composed of five independent experts with the task of investigating cases of alleged arbitrary detention. The mandate of the Group was clarified and extended by the Commission in its resolution 1997/50. It is “to investigate cases of deprivation of liberty imposed arbitrarily, provided that no final decision has been taken in such cases by local courts in conformity with domestic law, with the standards set forth in the Universal Declaration of Human Rights and with the relevant international instruments accepted by the States concerned”. The mandate also covers the issue of administrative custody of asylum-seekers and immigrants. The Group undertakes country visits, receives communications and adopts Opinions which are addressed to Governments. See Economic and Social Council Civil and Political Rights, including the Question of Torture and Detention: Report of the Working Group on Arbitrary Detention E/CN.4/2003/8 (16 December 2003).

41

• In particular, imprisonment or detention of children must only take place as a measure of

last resort and be for the shortest possible period of time.

• The Advisory Council notes the disturbing trend towards the use of children in terrorist

acts. This breach of children’s rights must be proscribed by law and active measures taken

to prevent and eliminate such practices while providing adequately for social recovery and

reintegration of the children concerned.

DISCUSSION

While recognising the right of States to establish under their laws who is considered to be a

minor, international human rights instruments that differentiate between ‘minors’, ‘juveniles’,

‘children’ and others, establish the age of majority at eighteen years.35

Children are of course entitled to the protection of all human rights instruments but they are

also entitled to added protections. The overriding principle is set out in article 3(1) of the

CRC which provides that in all actions concerning children, whether undertaken by public or

private social welfare institutions, courts of law, administrative authorities or legislative

bodies, the best interests of the child shall be a primary consideration. There are also specific

provisions dealing with children who are detained and/or charged with a criminal offence.

Detention

In accordance with the CRC, detention of children must only ‘be used only as a measure of

last resort and for the shortest appropriate period of time’.36 Even as a measure of last resort,

imprisonment or detention cannot be imposed when a child is under the reasonable age for

criminal responsibility.

Other protections afforded specifically to children in detention are set out in Article 37(c):

Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is

35 Part I, Article 1, CRC; Article 6(5), ICCPR; Part II, Article 11(a), United Nations Rules for the Protection of Juveniles Deprived of their Liberty. 36 Article 37(b), CRC.

42

considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.37

The Beijing Rules further add in relation to the detention of a child, that upon apprehension, a

judge or other competent official or body must, without delay, consider the issue of release.38

They reiterate that detention pending trial is to be used only as a measure of last resort and for

the shortest possible period of time.39 Whenever possible, detention pending trial shall be

replaced by alternative measures, such as close supervision, intensive care or placement with

a family or in an educational setting or home.40

Search and seizure

While there is no specific international human rights instrument that relates to search and

seizure powers in relation to children, there are certain international principles that authorities

should take into account when exercising such powers in relation to minors. The

fundamental principle is that such powers should always be exercised taking into account as a

primary consideration the ‘best interests of the child’ as established in Article 3(1) of the

CRC. Further, all minors have the right not to be subjected to arbitrary or unlawful

interference with their privacy, family, home or correspondence, nor to unlawful attacks on

their honour and reputation.41 In accordance with Article 16(2) of the CRC, ‘the child has the

right to the protection of the law against such interference or attacks’. The exercise of powers

of search and seizure must also be non-discriminatory.

Criminal Charges and Penalties

The CRC establishes a framework in relation to children who are accused of or who have

been found guilty of a criminal charge. Article 40(1) of the CRC provides:

37 The same Article reiterates the rights expressed in the ICCPR. Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision or any such action. The United Nations Rules (in Rule 6) expand on the ICCPR guarantees to provide that children in detention who are not fluent in the language spoken by the personnel of the detention facility are entitled to the free assistance of an interpreter whenever necessary and in particular during medical examinations and disciplinary proceedings. 38 Rule 10.2, Beijing Rules. 39 Rule 13.1, Beijing Rules. 40 Rule 13.2, Beijing Rules. The Advisory Council also notes the United Nations Rules for the Protection of Juveniles Deprived of their Liberty and related rules. 41 Article 16(1), ICCPR.

43

States parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.42

The Advisory Council also notes Article 6(5) of the ICCPR which states that the death

penalty cannot be imposed on a person who committed an offence while under the age of 18

and the unqualified right to life contained in Art 6(1) of the CRC and Rule 17.2 of the Beijing

Rules.

Article 40(4) of the CRC suggests ways in which the imposition of penalties on minors

should be tailored to address the special status of minors.

A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.43

The Beijing Rules and other related rules set out the principles that are to be considered by a

competent authority when determining the disposition that is to be imposed on a juvenile

offender. The reaction to the offending should always be in proportion not only to the

circumstances and gravity of the offence but also to the circumstances and needs of the

juvenile offender (and to the needs of society). Restrictions on personal liberty should be

limited to the minimum possible and deprivation of liberty should not be imposed except in

the most serious of cases, for example serious acts of violence or persistent serious offending,

and where there is no other appropriate response. The well-being of the juvenile offender is to

be the guiding factor in the consideration of his or her case.44

42 Article 40 then sets out principles that State parties are to have particular regard to, including: (a) A prohibition on retroactive application of the law (Article 40(2)(a), CRC), (b) Presumption of innocence (Article 40(2)(b)(i), CRC; Article 14(2), ICCPR; see also Rule 7.1, Beijing Rules, Principle 36, Body of Principles on Detention), (c) Right to be informed promptly and directly of charges against the child (Article 40(2)(b)(ii), CRC; see also Article 14(3)(a), ICCPR), (d) Right to legal or other appropriate assistance in the preparation and presentation of a defence (Article 40(2)(b)(ii), CRC; Article 14(3)(b), ICCPR; Rule 15.1 Beijing Rules), (e) Right to have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law (Article 40(2)(b)(iii), CRC; see also Article 14(1), ICCPR), (f) Right not to testify or confess guilt (Article 40(2)(b)(iv); CRC; Article 14(3)(g), ICCPR), (g) Right to appeal to a higher authority (Article 40(2)(b)(v), CRC; Article 14(5) ICCPR), (h) Right to free assistance of an interpreter (Article 40(2)(b)(vi), CRC; Article 14(3)(f), ICCPR), and (i) Right to privacy throughout the process (Article 40(2)(b)(vii), CRC; Rule 8.1, Beijing Rules). 43 Rule 18 of the Beijing Rules provides a more comprehensive list of possible disposition measures that should be available to the competent authority in relation to juvenile offenders which include community service orders, financial penalties, compensation and restitution. 44 Rule 17.1; Beijing Rules.

44

Abuse of Children by Non-State Actors

The Advisory Council notes the disturbing trend towards the use of children in terrorist acts

and the related indoctrination of children through propaganda and coercion. This is a breach

of the CRC, albeit one carried out by a non-State party.45 The Advisory Council of Jurists

condemns the use of children in this manner.

States should ensure that they take all measures possible to stop this practice and to provide

for the social recovery and reintegration of any children who have been involved in terrorist

acts or terrorist organisations. These children have a right to their childhood.

(v) The safeguards to be followed in the event of imprisonment or detention of a person

in accordance with international law (e.g., access to lawyers and consular assistance)

SUMMARY OF ANSWERS

• Every person detained is entitled to be treated with humanity and with respect for the

inherent dignity of the human person.

• In particular, in addition to effective judicial review of detention and due process rights,

the following safeguards apply to all persons detained or imprisoned:

o The right to be free from torture;

o Humane and appropriate conditions of incarceration;

o Notification of and access to family;

o Immediate access to legal counsel;

o Consular assistance; and 45 In times of armed conflict, we note the Optional Protocol to the CRC on the involvement of children in armed conflicts (GA Res 54/263, Annex I, 54 UN GAOR Supp (No. 49) at 7, UN Doc A/54/49, Vol. III (2000), entered into force 12 February, 2002). We also note here the Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (ILO No. 182), 38 ILM.1207 (1999), entered into force 19 November, 2000. In Art 3 it includes, in the term “the worst forms of child labour”, the forced or compulsory recruitment of children for use in armed conflict, and work “which, by its nature or the

45

o The right to an interpreter.

DISCUSSION The overriding principle is that all persons deprived of their liberty shall be treated with

humanity and with respect for the inherent dignity of the human person.46

International law has specific requirements that must be met when a person is taken into

custody. These apply to persons detained in respect of terrorism matters in the same manner

as for other offences. In addition to the right to challenge without delay the lawfulness of the

detention, as discussed above, and the due process rights discussed in the next section, they

include:

(a) The right to be free from torture;

(b) Suitable conditions of incarceration;

(c) Notification of and access to family;

(d) Access to legal counsel;

(e) Consular assistance; and

(f) The right to an interpreter.

The Advisory Council also notes that some of the Conventions on Terrorism establish broad

principles that are to be followed in the event that a person is taken into custody. Article 14

of the Terrorist Bombings Convention, for example, stipulates that:

Any person who is taken into custody or regarding whom any other measures are taken or proceedings are carried out pursuant to this Convention shall be guaranteed fair treatment, including enjoyment of all rights and guarantees in conformity with the law of the State in the territory of which that person is present and applicable provisions of international law, including international law of human rights. 47

circumstances in which it is carried out, is likely to harm the health, safety or morals of children”. These must apply by analogy to the use of children in terrorist actions. 46 Article 10(1), ICCPR; Principle 1, Body of Principles on Detention. 47 See also Article 17 of the Financing of Terrorism Convention and Article 12 of the Nuclear Materials Convention, which is the same as Article 14 of the Terrorist Bombings Convention to the extent that it requires ‘fair treatment’. The Internationally Protected Persons Convention in article 9 merely refers to a guarantee of fair treatment, while the Hostages Convention requires fair treatment and the rights and guarantees provided by the law of the state.

46

Article 12 of the Draft Terrorism Convention is worded identically but further stipulates that

the person taken into custody also enjoys the rights and guarantees contained in the Standard

Minimum Rules.

(a) Right to be free from torture

All persons have the right to be free from torture or from cruel, inhuman or degrading

treatment or punishment.48 The prohibition on torture is well accepted as a customary norm

of international law. Accordingly no derogation is permissible under any circumstances. The

CAT contains a definition of torture in Article 1. It states as follows:

For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

The ICCPR reinforces the non-derogable nature of the right to be free from torture49 and the

Human Rights Committee has reaffirmed that, even in situations of public emergency such as

those referred to in Article 4 of the Covenant, no derogation from Article 7 is allowed and no

justification or extenuating circumstances may be invoked to excuse a violation of Article 7

for any reasons, including those based on an order from a superior officer or public

authority.50

In December 2002 the UN General Assembly adopted the Optional Protocol to the UN

Convention against Torture (OP-CAT) which is open for signature by any State which has

signed the CAT. The aim of the OP-CAT is to prevent torture and other forms of ill-treatment

by establishing a system of regular visits to places of detention carried out by independent

international and national bodies. Such visits are considered to be one of the most effective

means of preventing torture and improving conditions of detention.

48 Article 7, ICCPR. 49 Article 4(2), ICCPR. 50 Human Rights Committee General Comment 20, Article 7 (1994) para 3.

47

(b) Suitable conditions of incarceration

This general principle that all persons deprived of their liberty must be treated with

humanity is given further substance when other provisions of the ICCPR are taken

into account. For example:

• the prohibition on holding a person in slavery or servitude;51

• the prohibition on torture and cruel, inhuman and degrading treatment or

punishment;52

• the right of accused persons to be segregated from convicted persons and to

separate treatment appropriate to their status as unconvicted persons;53

• the right of a person not to be subjected to arbitrary or unlawful interference with

their privacy, family, home or correspondence;54

• the right to freedom of thought, conscience and religion;55

• the right to hold opinions without interference;56 and

• the right to freedom of expression.57

The Standard Minimum Rules for the Treatment of Prisoners also add substance to the

general principle contained in the ICCPR by setting out ‘what is generally accepted as being

good principle and practice in the treatment of prisoners and the management of institutions.’

The Standard Minimum Rules are divided into several categories; relevantly rules of general

application, rules applicable to prisoners under sentence, prisoners under arrest or awaiting

trial, and persons arrested or detained without charge.

The rules of general application set out minimum conditions of imprisonment with regard to

appropriate accommodation, clothing, nutrition, medical services, discipline and

51 Article 8(1)(2), ICCPR. 52 Article 7, ICCPR. 53 Article 10(2)(a), ICCPR. 54 Article 17(1), ICCPR. 55 Article 18(1), ICCPR. 56 Article 19(1), ICCPR. 57 Article 19(2), ICCPR.

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communication with prison officials and the outside world and the separation of young

prisoners from adults.58

The rules applicable to prisoners under sentence have as their rationale the desirability of

rehabilitation and include the requirement that prison work not be of afflictive nature and that

provision be made for the further education of all prisoners capable of profiting from it, along

with recreational and cultural activities for the benefit of the physical and mental health of

prisoners.59

The rules applicable to prisoners under arrest or awaiting trial, stress that such ‘untried

prisoners’ are presumed to be innocent and are to be treated as such by a special regime

including separation from convicted prisoners, the separation of young untried prisoners from

adults preferably in separate institutions and with no work requirement.60

Prisoners arrested or detained without charge are accorded the same protections as are

accorded under the general rules and the rules applying to prisoners under arrest or awaiting

trial.61

The rules further provide that they are to be applied without discrimination on the grounds of

race, colour, sex, language, religion, political or other opinion, national or social origin,

property, birth or other status.

(c) Notification of and access to family

The ICCPR recognises a general right to family life in Article 17 which states:

17(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family,

home or correspondence, nor to unlawful attacks on his honour and reputation. 17(2) Everyone has the right to the protection of the law against such interference or attacks.

The Body of Principles on Detention stipulates how this general right applies in situations in

which a person is detained or imprisoned. Principle 15 provides that communication of a

58 Part I, Standard Minimum Rules. 59 Part IIA, Standard Minimum Rules. 60 Part IIC Standard Minimum Rules. 61 Part IIE Standard Minimum Rules.

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detained or imprisoned person with the outside world shall not be denied for more than a

matter of days. Principle 16 provides that a detained or imprisoned person has the right to

notify or to require the competent authority to notify, without delay, members of his family or

other appropriate persons of his choice of his arrest, detention or imprisonment and of the

place where he is kept in custody. The competent authority can only delay a notification for a

reasonable period where exceptional needs of the investigation so require. Principle 19

provides that a person who is detained or imprisoned has the right to be visited by and to

correspond with members of his or her family subject to reasonable conditions and

restrictions as specified by law or lawful regulations.62

(d) Access to legal counsel

The ICCPR does not refer specifically to the right to legal counsel of all persons who are

detained. The right to legal counsel is expressed as a minimum guarantee in criminal

proceedings. The Advisory Council notes, however, that the right to a review of any

detention in a court as provided for by Article 9(4) of the ICCPR in our view necessarily

implies the right of access to legal counsel.63 Access to legal counsel must be provided, in our

view, from the time of detention.

In relation to those who have been charged with a criminal offence (whether detained or not),

the ICCPR requires the following minimum guarantees:64

• they be given adequate time and facilities for the preparation of their defence;

• the right to communicate with counsel of their own choosing;65

62‘Incommunicado’ detention, where a detainee is denied contact with the outside world, is considered by the Human Rights Committee to be conducive to torture and ill-treatment. See Preliminary Observations of the Human Rights Committee: Peru CCPR/C/79/Add.67 (1996). 63 Alternatively it has been suggested that it would be inconsistent with the ICCPR’s fundamental principles if it granted greater rights to person arrested on criminal charges than to those who are compulsorily detained for questioning: Christopher Michaelsen ‘International Human Rights on Trial – the United Kingdom’s and Australia’s Legal Response to 9/11’ (2003) Sydney L Rev 275, 284. 64 Article 14.3 ICCPR provides as follows :

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

50

• the right to defend themselves in person or through legal assistance of their own

choosing;

• to be informed, if they do not have legal assistance, of this right;

• to have legal assistance assigned to them, in any case where the interests of justice so

require, and without payment by them in any such case if they do not have sufficient

means to pay for it.

The Human Rights Committee states that what is meant by ‘adequate time’ to prepare a

defence depends on the circumstances of each case. ‘Facilities’ must include ‘access to

document and other evidence which the accused requires to prepare their case, as well as the

opportunity to engage and communicate with counsel’. Further, it comments that the ICCPR

requires that lawyers should be able to counsel and to represent their clients in accordance

with their established professional standards and judgement without any restrictions,

influences, pressures or undue interference from any quarter.66

The Basic Principles on Lawyers67 specifically address the rights of those imprisoned or

detained to legal counsel. They apply to all persons detained, whether charged or not, and add

detail to the general rights set out in the ICCPR, for example, that access to a lawyer should

be prompt and not later than 48 hours from the time of arrest or detention68 and that

communications with a lawyer will not be intercepted or censored and be in full

confidentiality, with consultations in sight but not hearing of law enforcement officials.69

The Body of Principles on Detention, which are expressed as applying ‘for the protection of

all persons under any form of detention or imprisonment’, limit the application of this final

65 As provided for by Article 14(3)(g) ICCPR. The IBA considers that access to counsel is crucial in order to protect individuals charged with a criminal offence from being compelled to testify against themselves or to confess guilt, which, as discussed below, are important safeguards relating to the right to a fair trial (see International Bar Association International Terrorism: Legal Challenges and Responses (October 2003) 70). 66 Human Rights Committee General Comment 13: Equality before the courts and the right to a fair and public hearing by an independent court established by law (Art 14) (1984) para 9. 67 The Advisory Council notes here that while Principle 1 expresses the entitlement of all persons to the assistance of a lawyer only ‘in all stages of criminal proceedings’, Principle 2 calls on Governments to ensure access to lawyers for all persons within their jurisdiction without distinctions of any kind, and Principle 7 calls on Governments to ensure ‘that all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than forty-eight hours from the time of arrest or detention’ (emphasis added). 68 Principle 7; Basic Principles on Lawyers. 69 Principle 8; Basic Principles on Lawyers.

51

point in that this right may be derogated from in exceptional circumstances, to be specified by

law or lawful regulations, when it is considered indispensable by a judicial or other authority

in order to maintain security and good order.70

The Body of Principles on Detention further add to the rights of all detained persons (whether

charged with a criminal offence or not) in relation to legal counsel by providing for the

assignment of counsel where required in the interests of justice if the detained person does

not have counsel of their own choice and without payment if the person has insufficient

means to pay.71 Communications between a detained or imprisoned person and their counsel

are inadmissible as evidence against the detained or imprisoned person unless they are

connected with a continuing or contemplated crime.72

(e) Consular assistance

Persons who are arrested or detained in countries of which they are not a national have

certain rights to consular assistance as set out in the Vienna Convention. Article 36(1)(b)

provides that foreign nationals must be notified of their right to communicate with consular

officials when they are detained by law enforcement officials in member states. If a foreign

national requests consular assistance, officials are required to notify the appropriate consulate

and facilitate communication.

The Body of Principles on Detention 16(2), (3) and (4) provide similar guarantees. Some of

the Terrorist Conventions also refer to consular assistance. The Internationally Protected

Persons Convention in Article 6(2) stipulates that any person who is alleged to have

committed an offence under the Convention shall be entitled to:

(a) communicate without delay with the nearest appropriate representative of the State of which he is a national or which is otherwise entitled to protect his rights or, if he is a stateless person, which he requests and which is willing to protect his rights; and

(b) to be visited by a representative of that State.73

The Draft Terrorism Convention contains essentially the same wording except that in the case

of stateless persons the entitlement is to communicate to the representative of the State in 70 Principle 18(3), Body of Principles on Detention. 71 Principle 17(2) Body of Principles on Detention. 72 Principle 18(5), Body of Principles on Detention.

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which that person habitually resides.74 Article 13(3) of the Tokyo Convention, in contrast,

does not recognise the right to be visited by a representative but just to ‘communicate

immediately’ with the representative.75

(f) Right to an interpreter

The ICCPR stipulates that all rights recognised in the Covenant are to be respected

irrespective of the language of the individual to whom a right applies.76 Consequently Article

14 of the ICCPR, in setting out the minimum guarantees to be enjoyed by a person subject to

a criminal charge, provides that everyone is to be informed promptly and in detail, in a

language which they understand, of the nature and cause of the charge against them,77 and is

to have the free assistance of an interpreter if they cannot understand the language used in

court.78

The ICCPR, however, does not include a specific broader right in relation to the use of an

interpreter, for example, if a person is detained without charge. Nonetheless, in our view, it

is implicit in Article 9(4) that the entitlement of a person deprived of their liberty to take

proceedings before a court in order that the court may decide on the lawfulness of detention

necessarily includes the provision of interpretation assistance if required.

Like the ICCPR, the Body of Principles on Detention are expressed as applying to all persons

‘without distinction of any kind, such as … language.’79 Principle 14 further provides that:

A person who does not adequately understand or speak the language used by the authorities responsible for his arrest, detention or imprisonment is entitled to receive promptly in a language which he understands the information referred to in principle 10 [reasons for arrest], principle 11, paragraph 2 [communication of order of detention], principle 12, paragraph 1 [record of information to be made], and principle 13 [explanation of rights] and to have the assistance, free of charge, if necessary, of an interpreter in connection with legal proceedings subsequent to this arrest.

73 See also Article 6(3), Hostages Convention; Article 7(3) Terrorist Bombings Convention; Article 9(3) Financing of Terrorism Convention; Article 7(3), Safety of Maritime Navigation Convention. 74 Article 10(3), Draft Terrorism Convention. 75 See also Article 6(3), Hague Convention; Article 6(3), Montreal Convention. 76 Article 2(1), ICCPR. 77 Article 14(3)(a), ICCPR. 78 Article 14(3)(f), ICCPR. 79 Principle 5, Body of Principles on Detention.

53

(vi) What safeguards are stipulated by international law relating to the right to a fair

trial in the event a person is charged with an offence

SUMMARY OF ANSWERS

• Every person who is charged with an offence, including a terrorist offence, is entitled to a

fair and public hearing by a competent and impartial tribunal established by law.

• Everyone charged with an offence has the right to be presumed innocent until proved

guilty.

• Other key safeguards include:

o The right to be informed of the nature and cause of the charge;

o The right to adequate facilities for the preparation of a defence, including the right

to legal counsel;

o The right to defend oneself or through legal assistance of one’s own choosing;

o The right to examine witnesses; and

o The right not to be compelled to testify against oneself or confess guilt.

• The Advisory Council recognises that there may be particular concerns in terrorism trials

with issues of witness protection and the use of classified information. In these

circumstances it is important that any measures to protect witnesses or classified

information be consistent to the greatest extent possible with the rights set out above, that

they be authorised by the judicial authority trying the case and that they be imposed only

to the extent strictly necessary.

DISCUSSION

Every person charged with an offence, including terrorist offences, is entitled to a

fair, public hearing by a competent, impartial and independent tribunal established by

54

law.80 Article 14 of the ICCPR sets out the general standards required of the judicial

system with the following guarantees stipulated:81

• all persons shall be equal before the courts;82

• everyone shall be entitled to be informed promptly and in detail of the nature and

cause of the charge;83

• the right to adequate time and facilities for the preparation of a defence and to

communicate with counsel of their own choosing;84

• all persons shall have a fair and public hearing by a competent, independent and

impartial tribunal established by law;85

• the press and public may be excluded from all or part of a trial for reasons of

moral, public order or national security in a democratic society and for limited

other reasons;86

• any judgment rendered in a criminal case or in a suit at law shall be made public

except where the interest of juvenile persons otherwise requires;87

• everyone charged with a criminal offence shall have the right to be presumed

innocent until proved guilty according to law;88

• everyone has the right to be tried in his presence, and to defend himself in person

or through legal assistance of his own choosing; everyone has the right to be

informed, if he does not have legal assistance, of this right; and to have legal 80 Article 14(1), ICCPR. The Human Rights Committee has expressed particular concern over the use of military and other special courts to prosecute terrorism related offences, saying such courts raise serious doubts about independence and impartiality. See, for example, Concluding Observations: Columbia CCPR/C/79/Add.76 (1997); Concluding Observations: Peru CCPR/C/79Add.67 (1996). It has urged that civilians be tried in all cases by ordinary civilian courts and has stressed the importance of the right to appeal. See Concluding Observations: Slovakia CCPR/C/79/Add.79 (1997); Concluding Observations: Lebanon CCPR/C/79/Add.78 (1997); Concluding Observations: Egypt CCPR/CO/76/EGY (2002); Concluding Observations: France CCPR/C/79/Add.80 (1997); Concluding Observations: Spain CCPR/C/79/Add.61 (1996). 81 We note here that the Human Rights Committee has criticised the reports of States parties which it said in general failed to recognise that article 14 applies not only to procedures for the determination of criminal charges against individuals but also to procedures to determine their rights and obligations in a suit at law (See General Comment 13, ICCPR, Equality before the courts and the right to a fair and public hearing by an independent court established by law (Art 14) (1984) at para 2). 82 Article 14(1), ICCPR. 83 Article 14(3)(a) ICCPR. 84 Article 14(3)(b) ICCPR. 85 Article 14(1), ICCPR. 86 Article 14(1), ICCPR. 87 Article 14(1), ICCPR.

55

assistance assigned to him, in any case where the interests of justice so require,

and without payment by him in any such case if he does not have sufficient

means to pay for it;89

• everyone has the right to examine, or have examined, the witnesses against him

and to obtain the attendance and examination of witnesses on his behalf under the

same conditions as witnesses against them;90

• everyone has the right to free assistance of an interpreter if they cannot

understand or speak the language used in court;91

• everyone has the right not to be compelled to testify against themselves or to

confess guilt;92

• everyone convicted of a crime shall have the right to the conviction and sentence

being reviewed by a higher tribunal according to law.93

Sensitivities to issues of culture, gender and age will also be relevant to fairness. The

Advisory Council also notes that, in accordance with Article 15(1), no one shall be held

guilty of any criminal offence on account of any act or omission which did not constitute a

criminal offence, under national or international law, at the time when it was committed.

Article 15(1) is the embodiment of the nulla crimen sine lege principle which is a universal

and well established principle of justice and has been set out in article 22 of the Rome Statute

of the International Criminal Court as a general principle of criminal law.94

These principles apply equally to those accused of offences of terrorism. The Advisory

Council notes that Article 9 of the Internationally Protected Persons Convention relevantly

provides for fair treatment of accused persons at all stages of the proceedings.95 The Draft

88 Article 14(2), ICCPR. 89 Article 14(3)(d), ICCPR. 90 Article 14(3)(e), ICCPR. 91 Article 14(3)(f), ICCPR. 92 Article 14(3)(g), ICCPR. 93 Article 14(5), ICCPR. 94 UN Doc A/CONF183/9. The Statute was adopted on 17 July 1998 by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court and entered into force 1 July 2002. 95 See also Article 8(2), Hostages Convention.

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Terrorism Convention in Article 12 contains a general guarantee of fair treatment for any

person who is taken into custody pursuant to the Convention including the enjoyment of all

the rights and guarantees provided by the laws of the State in which the person is present and

the applicable provisions of international law including international human rights law and in

particular the Standard Minimum Rules.

The Advisory Council recognises, however, that difficult issues may arise in the context of

terrorist offences when there are concerns about jeopardising national security by the

disclosure of classified information or concerns about the safety or witnesses. Negotiating

these difficulties will depend upon striking the appropriate balance in the particular

circumstances of the case between national security concerns and the protection of victims

and witnesses on the one hand and the rights of an accused to a fair trial on the other.

The Advisory Council notes that withholding evidence from an accused person may

significantly undermine the fairness of a trial. It should therefore be a matter of last resort. It

is important that any measures to protect witnesses or classified information be consistent to

the greatest extent possible with the fair trial rights set out above, be specifically authorised

by the judicial authority bringing the case and only imposed to the extent strictly necessary.

(vii) The manner in which search and seizure powers can be exercised in accordance

with international law

SUMMARY OF ANSWERS

• Under international law any exercise of search and seizure powers, including interception

warrants, must be lawful and not arbitrary (i.e. must be necessary and proportional). In

particular, such measures must:

o be non-discriminatory; and

o take into consideration rights to privacy, family and correspondence.

• There may be justification for restricting the right to privacy in light of the threat to

national security posed by terrorism. Any information gathering powers, including the

power to apply for interception warrants, must, however, be clearly defined and subject to

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judicial oversight. They must also be necessary and proportional to the threat to national

security and be non-discriminatory.

DISCUSSION

Search and seizure powers include the examination of a person or property and the taking of

that which is discovered. They may also include interceptions of communications. Any

search and/or seizure encroaches on property and privacy rights and may involve a restraint

on individual liberty and an affront to dignity.

There are general human rights principles that relate to the exercise of search and seizure

powers. There is the general right not to be subjected to cruel, inhuman or degrading

treatment.96 This right is complemented by the positive requirement where persons are

deprived of their liberty that they be treated with humanity and with respect for their inherent

dignity.97 There is also the general right not to be subjected to arbitrary or unlawful

interference with privacy, family, home or correspondence.98 The Human Rights Committee

in its General Comment on Article 17 has expressed the view that the introduction of the

concept of arbitrariness is intended to guarantee that even interferences with privacy, home or

correspondence that are provided for by law should be in accordance with the provisions,

aims and objectives of the Covenant and should be, in any event, reasonable in the

circumstances.99

It is important that all searches, including those conducted pursuant to interception warrants,

be subject to judicial oversight and review. Search powers should not be exercised in a

discriminatory fashion, such as search powers directed at a person merely because of their

membership of a particular race or religion.100

96 Article 7, ICCPR: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. 97 Article 10(1), ICCPR: All persons derived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. 98 Article 17, ICCPR: (1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation; (2) Everyone has the right to the protection of the law against such interference or attacks. 99 Human Rights Committee General Comment 16, Article 17 (1988) para 4. 100 The Advisory Council notes, too, that discussions with lawyers should be confidential except in cases where the communication is in furtherance of the commission of a criminal offence.

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The Draft Terrorism Convention does not specifically deal with the issue of search and

seizure powers but requires a State party to take the necessary measures under its domestic

law to conduct an investigation upon receiving information that an alleged offender may be

present in its territory.101 Such measures would certainly include the granting of search and

seizure powers to the appropriate authorities and involve the balancing of an individual's

property rights, privacy interests and individual liberty with the law enforcement

considerations involved in the detection and apprehension of terrorists.

While there may be justification for restricting the right to privacy in light of the threat to

national security posed by terrorism and a willingness by citizens to accept restrictions in

such circumstances, any information gathering powers must be clearly defined and be subject

to judicial oversight. They must also be necessary and proportional in order to respond to the

threat to national security.

(viii) The international human rights standards relevant to determining the penalties

that can be imposed for committing acts associated with ‘terrorism’

SUMMARY OF ANSWERS

• Penalties can only be imposed after a fair trial in accordance with law and by a

competent, duly constituted and impartial tribunal.

• The Conventions on Terrorism require, for the crimes covered by those conventions, the

imposition of appropriate penalties which take into account the grave nature of the

offences.

• All penalties should be appropriate, reasonable and proportionate to the crime.

• International law prohibits cruel, inhuman and degrading punishment. International law

does not specifically prohibit the death penalty. However, there is an evolving and

101 Article 10(1), Draft Terrorism Convention. See also Article 7(1) Terrorist Bombings Convention, Article 8, Suppression of Terrorist Financing Convention.

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growing international trend against the death penalty and the Advisory Council of Jurists,

in its Report of December 2000, urged States to move towards its abolition.

• Where States have not abolished the death penalty it should only be imposed for the most

serious crimes, for example those that have led to large-scale loss of life.

• The death penalty must not be imposed on those who were children at the time of an

offence and must not be carried out on pregnant women.

• The Advisory Council notes with concern incidents of extra-judicial killings, being

killings by law enforcement officers, the military or vigilante groups outside of the

judicial process and without lawful excuse.

• Such killings are contrary to the fundamental human right not to be arbitrarily deprived

of life. The perpetrators should not be entitled to claim immunity from prosecution in

respect of such crimes.

DISCUSSION

Any penalties set must comply with the rights set out in the ICCPR and other human rights

instruments. In particular, penalties can only be imposed by a duly constituted, impartial

tribunal after a fair trial, where proper due process rights (including the presumption of

innocence) have been accorded to the accused. Any penalty must be appropriate, reasonable

and proportional to the crime.

The Advisory Council notes that, as discussed above, under Article 7 of the ICCPR no one

shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. The

Covenant does not contain any definition of the concepts covered by Article 7 and the Human

Rights Committee has stated that it does not consider it necessary to draw up a list of

prohibited acts or to establish sharp distinctions between different kinds of punishment or

treatment. In the Committee’s view the distinctions depend on the nature, purpose and

severity of the treatment applied.102 The Committee points out that the prohibition relates not

102 Human Rights Committee General Comment 20, Article 7 (1994) para 4.

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only to acts that cause physical pain but also to acts that cause mental suffering to the victim

and extends to corporal punishment, including excessive chastisement ordered as punishment

for a crime or as an educative or disciplinary measure. In addition, prolonged solitary

confinement of a detained or imprisoned person may amount to an act prohibited by Article

7.103

The Advisory Council notes that, under Article 6(1), the right to life must be protected by law

and nobody may be arbitrarily deprived of their life. The ICCPR itself does not specifically

prohibit the use of the death penalty but there is an evolving and growing international trend

against its use.104 We draw attention to the Advisory Council of Jurists Final Report on the

Reference on the Death Penalty of December 2000 in which the Council doubted whether the

imposition of the death penalty could be justified for any purpose. It therefore urged States to

move towards de facto, and eventual de jure, abolition of the death penalty.

Under Article 6(2) of the ICCPR, in countries which have not abolished the death penalty, a

sentence of death may be imposed only for the most serious crimes in accordance with the

law in force at the time of the commission of the crime and not contrary to the provisions of

the ICCPR and to the Convention on the Prevention and Punishment of the Crime of

Genocide. We accept that some terrorist offences may come into the category of “most

serious of crimes”, for example where they involve large scale loss of life.105 The death

103 Human Rights Committee General Comment 20, Article 7 (1994) paras 5-6. 104 We refer to the recent decision of the European Court of Human Rights in Ocalan v Turkey 46221/99 12 March 2003, which held that State practice throughout the European Union could be seen as agreement to abolish capital punishment during peacetime. Against that background the Court said it was arguable that the implementation of the death penalty could be regarded as inhuman and degrading treatment contrary to Article 3 of the European Convention. While the Court did not reach a firm conclusion on this point, it considered that, even if the death penalty was still permitted under the terms of the Convention, to implement a death sentence following an unfair trial, as had occurred in the case at issue, would, in any event, breach Article 3. We also note, however, the views adopted by the Human Rights Committee in Kindler v Canada (1993) CCPR/C/48/D/470/1991 that Article 6.2 of the ICCPR does not prohibit the imposition of the death penalty for the most serious crimes. The Committee held that obligations arising under Article 6.1 of the ICCPR did not require Canada either to refuse the extradition to the United States of a convicted murderer or to seek assurances that the death penalty would not be imposed. The Committee also rejected a claim that Canada had breached Article 7 as it said that this provision must be read in light of other provisions in the Covenant, including Article 6.2. Accordingly, capital punishment as such, within the parameters of Article 6.2, does not per se violate Article 7. The Committee added that the “death row phenomenon” associated with capital punishment likewise could not generally be considered to constitute cruel, inhuman or degrading treatment but instead depended on the facts and circumstances of each case including personal factors (such as age), the specific conditions of detention and the proposed method of execution. 105 The Advisory Council notes that there are jurisdictions which have a mandatory death penalty for certain crimes. In the opinion of the Advisory Council there is a danger that a mandatory penalty of death could in such cases be imposed on a person whose particular crime did not come into the category of ‘most serious crimes’. The Advisory Council notes in any event the requirement in Article 6(4) of the ICCPR that anyone sentenced to

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penalty may only be carried out pursuant to a final judgement rendered by a competent

court.106 A sentence of death may not be imposed for crimes committed by persons below

eighteen years of age and must not be carried out on pregnant women.107

On a related topic, the Advisory Council notes with concern incidents of extra-judicial

killing, being police or military vigilante killings without due process of law. These are

contrary to the right not to be arbitrarily deprived of life, the right to be free from torture and

the right to a fair trial before a competent and impartial tribunal. The Advisory Council also

notes with concern laws which give total immunity to law enforcement officers involved in

such killings where there is no justification such as self-defence or defence of others.

Finally, we note that the Conventions on Terrorism do not require specific penalties to be

imposed for breaching the crimes set out in them. The Internationally Protected Persons

Convention stipulates in Article 2, however:

Each State Party shall make these crimes punishable by appropriate penalties which take into account their grave nature.

The Draft Terrorism Convention in Article 4 uses identical wording and similar provisions

are contained in the Hostages Convention, Article 2; Terrorist Bombing Convention, Article

4(b); Nuclear Materials Convention, Article 7(2); and the Safety of Maritime Navigation,

Article 5. The Montreal Convention requires States to make offences set out in the

Convention punishable by “severe penalties”.108

(ix) The international human rights standards that can be derogated from and in what

circumstances

SUMMARY OF ANSWERS

• In no circumstances whatsoever can torture or cruel, inhuman and degrading treatment

and punishment be justified.

death (for whatever crime) must have the right to seek pardon or commutation of the sentence. The Advisory Council also notes that some countries will not extradite a person to a jurisdiction where they risk a mandatory death penalty. 106 Article 6(2), ICCPR.

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• Certain human rights have become norms of customary international law, including the

right to be treated humanely while in detention and certain minimum standards of due

process (including the presumption of innocence). Such norms must always be complied

with by all States.

• Departure from some other human rights standards might be permissible under the

ICCPR only:

o In times of lawfully proclaimed public emergency which threatens the life of the

nation; and

o Where departure from those rights is non-discriminatory and strictly necessary and

proportionate to the emergency.

DISCUSSION

The CAT, as noted above, does not allow States to derogate, or depart, from any of the rights

contained in that Convention. The CAT states that:

No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.109

There will also be certain rights that have become customary norms and therefore cannot be

departed from. Such rights include minimum due process rights (including the presumption

of innocence),110 the principle of non-discrimination111 and the right not to be subject to

107 Article 6(5), ICCPR. 108 Article 3, Montreal Convention. 109 Article 2(2), CAT. 110 The Human Rights Committee in General Comment 29, para 16 notes that:

Safeguards related to derogation as embodied in Article 4 of the [ICCPR] are based on the principle of legality and the rule of law inherent in the [ICCPR] as a whole. As certain elements of the right to a fair trial are explicitly guaranteed under international humanitarian law during armed conflict, the Committee finds no justification for derogation from these guarantees in other emergency situations. The Committee is of the opinion that the principles of legality and the rule of law require that fundamental requirements of fair trial must be respected during a state of emergency. Only a court of law may try and convict a person for a criminal offence. The presumption of innocence must be respected. In order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention must not be diminished by a State party’s decision to derogate from the [ICCPR].

111 On 8 March 2002, for example, the UN Committee on the Elimination of Racial Discrimination issued a statement recalling that the prohibition of racial discrimination is a peremptory norm of international law from

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arbitrary detention and to be treated humanely in detention. The rights of children under the

CRC are also non-derogable and are generally considered to have become customary norms

of international law.

Certain rights contained in the ICCPR are, however, subject to inherent limits. For example,

the right of freedom of expression in article 19(2) is expressed as carrying with it special

duties and responsibilities and may therefore be subject to certain restrictions (which must be

provided by law) but only to the extent necessary to protect the rights and reputations of

others or to protect national security or public order.112

In addition, article 4 of the ICCPR, allows for the derogation of certain rights in times of

public emergency. It provides:

In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.113

Any such derogation must comply with the principles of legality, proportionality and

necessity and be of limited duration. There are certain rights, however, from which there can

be no derogation under the ICCPR:

• the right not to be arbitrarily deprived of life (Article 6);114

• freedom from torture (Article 7);115

which no derogation is possible and requesting States to ensure that measures taken in the struggle against terrorism do not discriminate in purpose or effect on grounds of race, colour, descent or national or ethnic origin. The Committee noted that the principles of non-discrimination must be observed in all areas. Concern has also been expressed over cases of harassment of persons of particular backgrounds and the use of racial profiling. See Concluding observations: Sweden. 24/04/2002. CCPR/CO/74/SWE; Concluding observations: Canada. 07/04/99.CCPR/C/79/Add.105. 112 See also Article 17 (right to respect of privacy, family, home and correspondence, and protection of honour and reputation), Article 18 (freedom of thought, conscience and religion), Article 21 (freedom of assembly), Article 22 (freedom of association). 113 Article 4(1), ICCPR. 114 See also Concluding Observations: Russian Federation CCPR/C/79 Add.54, para 27 (1995); Concluding Observations: Israel CCPR/C/79/Add.93, para 17 (1998); and Suarez de Guerrero v Colombia, Case No. 45/1979, 31 March 1982 (paras 12.2, 13.1 - 13.3).

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• freedom from slavery and servitude respectively (Article 8, paras 1 and 2);

• imprisonment for breach of contract (Article 11);

• prohibition on retrospective laws (Article 15);

• right to recognition as a person (Article 16);

• freedom of thought, conscience and religion (Article 18).

Several of the rights expressed above are customary norms of international law (including the

prohibition on torture) and could not be derogated from in any event. States that have not

ratified the ICCPR are nonetheless bound by these customary norms. As noted above, there

are other rights not set out in the above list that have also become customary norms and these

also cannot be departed from by any State.116

The Human Rights Committee in its General Comment 29, States of Emergency (Article 4)

(2001) sets out two fundamental conditions that must be met before States may invoke the

power to derogate contained in Article 4:

1. the situation must amount to a public emergency which threatens the life of the nation; and 2. the State Party must have officially proclaimed a state of emergency.117

The situation that gives rise to the state of emergency must be ‘of an exceptional and

temporary nature.’118 As the General Comment explains, ‘Not every disturbance or

115 See also Concluding Observations: Egypt CCPR/CO/76/EGY/Add.1, para 4 (2002); Concluding Observations: Israel CCPR/C/79/Add.93, paras 19, 21 (1998); Report of the Committee against TortureA/52/44, para 258 (1997). 116 The Human Rights Committee in General Comment 29, para 11, stresses that States may, in no circumstances, invoke Article 4 of the ICCPR as justification of action in violation of humanitarian law or peremptory norms of international law, for example, by taking hostages, by imposing collective punishments, through arbitrary deprivations of liberty or by deviating from fundamental principles of a fair trial including the presumption of innocence. The Human Rights Committee also takes the position that judicial oversight may be inferred to be non-derogable taking into account other provisions of international law. 117 Para 2, General Comment 29. See also the United Nations, Economic and Social Council, UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc E/CN.4/1985/4 (1985) (Siracusa Principles). The Siracusa Principles arose out of a meeting of 31 international law experts, convened by the International Commission of Jurists, the International Association of Penal law, the American Association for the International Commission of Jurists, the Urban Morgan Institute for Human Rights and the International Institute of Higher Studies in Criminal Sciences, who met in Siracusa, Sicily, for a week in spring 1984 to consider the limitation and derogation provisions of the ICCPR. 118 Para 2, General Comment 29.

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catastrophe qualifies as a public emergency which threatens the life of the nation.’119 The

nature of the measures that may be taken when derogating from rights under the Covenant ‘is

that such measures are limited to the extent strictly required by the exigencies of the

situation.’ Such limitation may include duration, geographical coverage and material scope of

the state of emergency.120

Constitutional and legal provisions should ensure that compliance with Article 4 of the

ICCPR can be monitored by the Courts.121 Any measures must accord with the principle of

non-discrimination and be compatible with other human rights obligations. There is also a

reporting requirement. Pursuant to Article 4(3) of the ICCPR, any State availing itself of the

right of derogation must immediately inform the Secretary General of the United Nations of

the provisions from which it has derogated and the reasons by which it was actuated.

(x) The relationship between anti-terrorism measures and the rights to seek asylum and

to non-refoulement

SUMMARY OF ANSWERS

• Anti-terrorism measures should not undermine access to asylum for refugees (those

fleeing their country of origin by reason of well-founded fear of persecution).

• Terrorists are, however, excluded from refugee protection. Refugee status cannot be

claimed by any person where there are serious reasons for considering they have

committed:

o crimes against peace, a war crime or a crime against humanity;

o serious non-political crimes; or

o acts contrary to the purposes and principles of the United Nations.

119 Para 3, General Comment 29. 120 Para 4, General Comment 29. 121 General Comment 29, para 13.

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• Where a person has grounds for claiming refugee status, but where there are also reasons

for suspecting them as a terrorist, they should have access to fair status determination

procedures to assess their claim to refugee status and whether they are excluded from

refugee protection.

• Non-refoulement is a customary rule of international law binding on all States. This means

that refugees should not be returned to a territory where their life or freedom would be

threatened on account of their race, religion, nationality, membership of a particular social

group or political opinion.

• An exception is permitted where there are reasonable grounds for regarding a person as a

danger to the country in which they are seeking asylum, or where they, having been


country. In such cases there should also be a fair procedure to determine whether a person

comes within such exception.

• Even if a person is not entitled to protection as a refugee, they cannot be returned to a

situation where they are likely to face torture or a risk to their life or other fundamental

human rights.

DISCUSSION

In 1994 the United Nations declared that States should take appropriate measures to ensure

that asylum seekers had not participated in terrorist acts.122 Security Council Resolution

1373123 also requires States to ensure that those who have participated in or planned terrorist

activities are not granted refugee status, and article 7 of the Draft Terrorism Convention

requires States to take appropriate measures to ensure the exclusion from refugee protection

of those whom the State considers have committed terrorist acts. There is a danger, however,

that anti-terrorism measures adopted by States could act to the detriment of bona fide asylum

seekers.

122 Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism contained in the annex to A/RES/51/210 Measures to Eliminate International Terrorism (1997) at para 3.

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The Refugees Convention sets out who is a refugee and the legal protection, other assistance

and social rights he or she should receive from State parties to the Convention. A ‘refugee’ is

defined as a person who:

Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.124

Article 1F excludes from the application of the Refugees Convention persons with respect to

whom there are serious reasons for considering as perpetrators of gross human rights

violations and serious non-political crimes.125 Serious acts of terrorism would,

notwithstanding any underlying political motive, generally be encompassed by the latter.126

Where a person has grounds for claiming refugee status, but where there are also reasons for

suspecting them to be a terrorist in circumstances where Article 1F may be invoked, the

Advisory Council considers that they should nevertheless have access to fair status

determination procedures to assess their claim to refugee status and to assess whether they

come within the exclusions. The Office of the UNHCR has stressed that refugee status

determination procedures in place to deal with suspected terrorists must comply with

minimum standards of due process, ensuring that decisions are taken by those knowledgeable

and qualified to make refugee determinations, with review possibilities built in.127

123 S/RES/1373 (2001) Threats to international peace and security caused by terrorist acts. 124 Article 1(2), Refugees Convention. 125 Article 1F provides as follows: The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that.

(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) He has been guilty of acts contrary to the purposes and principles of the United Nations.

126 This follows from the fact that extradition clauses of some conventions on terrorism have abolished the political offence exception. See IBA International Terrorism: Legal Challenges and Responses (October 2003) 86.. Relevant provisions are Article 14, Draft Terrorism Convention, Article 11 Terrorist Bombings Convention, Article 14, Financing of Terrorism Convention. The IBA report says that especially violent acts of terrorism are in any case likely to fail the proportionality test used in many jurisdictions to define political offences. The report also notes that the September 11 attacks on the World Trade Centre arguably constituted a crime against humanity and therefore those involved would fall within the scope of article 1F.

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A primary duty owed by State parties to asylum seekers in their territory is the obligation not

to return that individual to a country where their life or freedom would be threatened on

account of their race, religion, nationality, membership of a particular social group or

political opinion. This is known as the non-refoulement principle and is set out in Article

33(1) as follows:

Article 33. Prohibition of expulsion or return (‘refoulement’) 1. No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the

frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.128

The fundamental nature of the non-refoulement obligation is emphasised by the fact that it is

one of the few articles to which reservations cannot be made.129 It is also considered likely to

be a part of customary international law.130 The obligation is not, however, absolute and the

Refugees Convention makes provision for national security and public order concerns.

Article 33(2) permits exceptions where there are reasonable grounds for regarding individuals

as a danger to the security of the country in which they are, or where they, having been


country. The security concern must, under this article, relate to the security of the host

country. In addition, expulsion of refugees lawfully in a territory is permitted by Article 32

on the grounds of national security or public order.131 This provision would also have the

127 Office of the UNHCR “The Events of September 11: Possible Repercussions on Refugees Protection in Terrorism and International Law: Challenges and Responses (International Institute of Humanitarian Law, San Remo, June 2003) 15, 16. 128 Article 33(2) goes on to provide that:

The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.

129 Article 42, Refugees Convention. 130 See for example, Professor Guy S Goodwin-Gill, The Refugee in International Law (2 ed, Oxford, Clarendon Press, 1996) 167-171 who concluded that ‘‘there is substantial, if not conclusive authority that the principle is binding on all states, independently of specific assent’. The UNHCR Executive Committee has consistently endorsed the fundamental character of the principle of non-refoulement in its annual general and specific conclusions. In its 1982 general conclusion the Executive Committee expressed the view that the principle was becoming a peremptory norm of international law: see General Conclusion on International Protection (No. 25 (XXXIII) - 1982) Report of the 33rd Session: UN doc A/AC 96/614, para 70. 131 Article 32 provides: (1)The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order. (2)The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be

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effect of preventing organisers or perpetrators of terrorist acts from abusing the asylum

system.

The Advisory Council notes that expulsion under article 32(2) requires certain safeguards to

be met, including rights of due process (except where compelling reasons of national security

require). The Advisory Council considers it implicit that such safeguards should also apply in

relation to article 1F and article 32(2). Asylum seekers must be allowed to provide evidence

to counter the allegations against them. If this was not the case, it is difficult to see how

States could be satisfied to the required degree that they had all of the information available

to them in order to decide whether the requirements of the Refugees Convention had been

met.

The Draft Terrorism Convention specifically provides for non-refoulement. The preamble

stresses the importance of compliance with instruments that afford protection to refugees, and

in particular the principle of non-refoulement. At the same time it nevertheless notes that the

Refugees Convention and Protocol do not provide a basis for the protection of perpetrators of

terrorist acts, and as noted above, requires States to take appropriate measures to ensure the

exclusion of such persons from refugee protections.132

The Office of the UNHCR is concerned that unwarranted linkages may be made between

refugees and terrorism.133 The UN High Commissioner for Refugees has stressed that

counter-terrorism measures should start from the assumption that refugees are the victims of

violence, including terrorist acts, and are not perpetrators of such acts.134 The Office of the

UNHCR also notes that the international refugee instruments do not provide a safe haven to allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority. (3)The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary. 132 Article 7, Draft Terrorism Convention: ‘States Parties shall take appropriate measures, in conformity with the relevant provisions of national and international law, including international human rights law, for the purpose of ensuring that refugee status is not granted to any person in respect of whom there are serious reasons for considering that he or she has committed an offence referred to in article 2’. 133 As the IBA points out, common sense dictates that persons with terrorist intent are unlikely to bring themselves under the scrutiny of the authorities by applying for asylum. IBA International Terrorism: Legal Challenges and Responses (October 2003) 87. 134 Rudd Lubbers ‘Message’ to the “Meeting of Independent Experts on Terrorism and International Law: Challenges and Responses organised by the International Institute of Humanitarian Law in San Remo 30 May-1 June 2002 (International Institute of Humanitarian Law, San Remo, June 2003) 13.

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terrorists. 135 On the contrary they identify persons engaged in terrorist activities, exclude

them from refugee status and do not shield them against either criminal prosecution or

expulsion, including to their country of origin. While there will be asylum seekers and

refugees who may be associated with serious crime, the UNHCR stresses that this does not

mean that ‘the majority should be damned by association with the few’.136

Another danger identified by the UNHCR is that States may be inclined to exclude asylum

seekers or withdraw refugee status or to expeditiously grant extradition on the assumption

that an individual is a terrorist, when the decision is in fact based on religious, ethnic or

national origins or political affiliation.137 Merely because asylum seekers have a certain

ethnic or religious background which may be shared by those who have committed grave

crimes does not mean they themselves, are also to be excluded. In the words of the UNHCR

‘[t]he facts are what count’ and it must be shown that the return of a person is not being

sought for purposes which amount to persecution.138 In particular, there is the danger that a

bona fide asylum seeker or refugee might be wrongly accused of terrorist acts by his or her

country of origin in order to stifle political opposition.

Finally, we note that the CAT prohibits refoulement in circumstances where there are

substantial grounds for believing that a person would be in danger of being subjected to

torture.139 In determining whether there are such grounds the competent authorities must take

into account all relevant considerations including, where applicable, the existence in the State 135 Office of the UNHCR (presented by Dr Guillermo Bettochi) “The Events of September 11: Possible Repercussions on Refugees Protection” in Terrorism and International Law: Challenges and Responses (International Institute of Humanitarian Law, San Remo, June 2003) 15. 136 This may have particular reference to the detention of asylum seekers. The Refugees Convention explicitly acknowledges that States may limit the freedom of movement of refugees, for example in exceptional circumstances in the interests of national security (article (9)), or if necessary after illegal entry (article 31(1); although article 31(1) generally prohibits States imposing penalties on refugees unlawfully in the country of refuge. See Guy Goodwin-Gill The Refugee in International Law (2ed, 1996)). The Advisory Council notes here that the UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to Detention of Asylum Seekers (February 1999) in Guideline 2 require a presumption against detention, which, according to Guideline 3, should only be resorted to if necessary in order to verify identity, to deal with cases where refugees or asylum seekers have destroyed documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum, or to protect national security or public order. Guideline 3 goes on to state that where detention is resorted to it should be only for a ‘minimal period’. The Office of the UNHCR in “The Events of September 11: Possible Repercussions on Refugees Protection” (above, at 16), states that detention of asylum seekers should be the exception and not the rule and would only be acceptable when circumstances surrounding the individual case so justify, including where there are solid reasons for suspecting links with terrorism. 137 “The Events of September 11: Possible Repercussions on Refugees Protection”, above, at 18. 138 “The Events of September 11: Possible Repercussions on Refugees Protection”, above, at 17. 139 Article 3(1) CAT.

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concerned of a consistent pattern of gross, flagrant or mass violations of human rights. The

protection afforded by the CAT is wider that that provided by the Refugees Convention as it

applies to any persons, not only those accorded refugee status, who for any reason are in

danger of being subjected to torture if returned to another country. Nor does the CAT contain

any exception to the non-refoulement obligation based on grounds of national security, public

order or danger to the community.140 The obligations set out in the CAT would suggest that

even an individual who cannot benefit from refugee protection should not be returned to a

place where he or she would be subject to torture. Such protection would extend to include a

person who is excluded from the application of the Refugees Convention or cannot benefit

from its protections because of involvement in terrorist activities.

There is also a wider principle of refuge in international law which applies where the facts are

such as to indicate a serious risk of harm befalling those who are compelled to flee their

country of origin for valid reasons including war, violence, conflict, violations of human

rights or other serious disturbance of public order. It is unclear, however, the extent to which

this has become a customary norm of international law.141 Even those suspected of terrorism

may nevertherless come within this wider principle where there would be serious risk to the

person’s life or liberty if returned to their country of origin. The Human Rights Committee

has expressed the view that the principle of non-refoulement prohibits the transfer of a

person, including those suspected of links to terrorism, to a country where their life or

freedom would be threatened.142 The Advisory Council notes here too, the issues involved in

returning even a person whom there is serious reason to suspect of terrorism to their country

of origin if that country is likely to ignore the requirement of according due process.

The Human Rights Committee has expressed concern at the expulsion of suspected terrorists

to their countries of origin, even where there are guarantees that their human rights would be

respected. It points out that the persons expelled could face risks to their personal safety and

lives, especially in the absence of serious efforts to monitor the implementation of such

guarantees. The Human Rights Committee stressed that when a State party expels a person to

140 Article 2 CAT. 141 See the discussion in Guy Goodwin-Gill, The Refugee in International Law (2 ed, 1996) at 6.1. See also the discussion at 2.5.1 as to whether the non-refoulement principle in Article 33(1) extends past refugees and asylum seekers to all (whether entitled to the protection of the Refugee Convention or not) whose life or freedom may be threatened on account of race, religion, nationality, membership of a particular social group or political opinion. 142 See Concluding Observations: Canada CCPR/C/ 79/Add.105 (1999).

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another State on the basis of assurances as to that person’s treatment by the receiving State, it

must institute ‘credible mechanisms for ensuring compliance with these assurances from the

moment of expulsion.’143

(xi) The nature of the obligations on States under international human rights

instruments and standards which are to be kept in view while enacting and

implementing anti-terrorist legislation, at the same time maintaining the primacy of

the rule of law

SUMMARY OF ANSWERS

• International human rights standards impose obligations upon States when enacting and

implementing anti-terrorist legislation.

• International human rights standards guarantee the primacy of the rule of law and this

must be borne in mind as a priority in enacting and implementing anti-terrorist legislation.

• International human rights standards should not simply be ‘kept in view’ in enacting,

implementing and administering anti-terrorist legislation, but they must be guaranteed and

incorporated into national laws and practices.

DISCUSSION

The ‘rule of law’ was defined by the eminent English jurist A V Dicey as government

according to the law, equality before the law and liberty for the individual.144 Thus the rule of

law means the supremacy of law, with all individuals and governments being subject to law.

The laws to which governments are bound are their domestic laws as well as those

international laws that have either become customary international law or those to which the

government of that country has voluntarily chosen to become bound, including international

human rights covenants, refugee and humanitarian law and the Charter of the United Nations.

143 Concluding Observations: Sweden CCPR/CO/74/SWE/(2002) para 12. 144 The Law of the Constitution (1885).

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The Universal Declaration of Human Rights makes perambular reference to the rule of law,

in proclaiming that:145

it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.

In 1959 the International Commission of Jurists held the New Delhi Congress, ‘The Rule of

Law in a Free Society,’ which was attended by 185 judges, practicing lawyers and teachers of

law from 53 countries. It resulted in the Declaration of Delhi which set out the desirable

features of countries governed by the Rule of Law, including representative and responsible

government enacting laws of a certain minimum standard such as those contained in the

UDHR and European Convention for the Protection of Human Rights and Fundamental

Freedoms, an executive subject to independent judicial control and redress for wronged

citizens, an independent judiciary and bar, and minimum standards of criminal procedure.

This focus on the duty of States towards individuals represented a significant shift away from

the traditional focus of international law on the relations between States which had failed to

prevent the atrocities of the Second World War.146

The importance of the rule of law has recently been recognised by the UN High

Commissioner for Human Rights in his report to the Commission on Human Rights.147 There

he stated that:

Upholding the international standards of human rights and humanitarian and refugee law, and defending dignity, freedom, democracy and the rule of law must remain the guiding star of the human rights movement.148

This obligation to ensure that measures taken as part of anti-terrorism campaigns conform to

international law is recognised in several General Assembly and Security Council

Resolutions.149 As indicated in the Preface, the Security Council in Resolution 1456 sets out

145 Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948. 146 See the discussion in Brief of Human Rights Institute of the International Bar Association as Amicus Curiae in Support of Petitioners (13 January 2004) Rasul v Bush US Supreme Court 03-334 16 January 2004 at 13. 147 Economic and Social Council, ‘Report of the United Nations High Commissioner for Human Rights and Follow-Up to the World Conference on Human Rights, Commission on Human Rights, E/CN.4/2003/14, fifty-ninth session, 26 February 2003. 148 ‘Report of the United Nations High Commissioner for Human Rights and Follow-Up to the World Conference on Human Rights', Commission on Human Rights, E/CN.4/2003/14, para 2. 149 See for example, Security Council Resolution 1456 (2003), S/RES/1456 (2003), 20 January 2003, para 6; Security Council Resolution 1438 (2002), S/RES/1438 (2002), 14 October 2002; Security Council Resolution

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the obligations of States in enacting and implementing anti-terrorist legislation to make sure

such measures accord with international human rights, refugee and humanitarian law.150

The Advisory Council also notes that in the Co-Chair’s statement of 5 February 2004 from

the Bali Ministerial Regional Meeting on Counter-Terrorism it is recorded that:

Ministers agreed that the campaign against terrorism can only be won through comprehensive and balanced measures in full conformity with the purposes and principles of the Charter of the United Nations and international human rights covenants. 151

The obligation on States to act in conformity with international law, and in particular

international human rights law, is also recognised in some of the Conventions on Terrorism.

The Preamble to the Hostages Convention, for example, recognises ‘in particular that

everyone has the right to life, liberty and security of person, as set out in the Universal

Declaration of Human Rights and the International Covenant on Civil and Political Rights’.

Article 19 of the Terrorist Bombings Convention further stipulates that nothing in that

convention shall affect other rights, obligations and responsibilities of States and individuals

under international law, in particular the principles of the UN Charter and international

humanitarian law.

Article 18 of the Draft Terrorism Convention is in identical terms with an additional

paragraph providing that nothing in that article condones or makes lawful otherwise unlawful

acts or precludes prosecution under other laws. The preamble to the Draft Terrorism

Convention also records the necessity of respecting human rights and international

humanitarian law in the fight against terrorism.

1373 (2001), S/RES/1373 (2001), 28 September 2001; General Assembly Resolution 52/133, A/RES/52/133, 27 February 1998; General Assembly Resolution 54/164, A/RES/54/164, 24 February 2000. 150 S/RES/1456 (2003) “High-level meeting of the Security Council: Combating Terrorism”. 151 Of the Forum States, foreign ministers from Indonesia and Australia were the co-chairs of the meeting. Other Forum attendees were Fiji, India, Malaysia, New Zealand, the Philippines, Republic of Korea and Thailand. Further we note that the Leaders of the ASEAN States (Brunei Darussalam, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand, and Vietnam) have also repeatedly expressed their commitment to combating terrorism in accordance with the UN Charter and international obligations, including respect for human rights. See “ASEAN Efforts to Combat Terrorism” (paper prepared for UN Counter-Terrorism Committee), Joint Declaration on Co-operation to Combat Terrorism (14th ASEAN-EU Ministerial Meeting, Brussels, 27-28 January 2003) and 2001 ASEAN Declaration on Joint Action to Counter Terrorism (see www.aseansec.org).

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International Law therefore imposes limitations upon the actions that States may take to

address terrorism. The acceptance of such limitations by States is acceptance of the primacy

of the rule of law.

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PART C

OBSERVATIONS AND RECOMMENDATIONS RELATING TO FORUM STATES152

General Remarks

Since 11 September 2001 and Security Council Resolution 1373 of September 28, 2001,153

many Forum States have, in accordance with their obligations under that Resolution, revised

their legislation relating to terrorism and have either amended current legislation or drafted

new legislation to address the emerging issues relating to terrorism. In very broad terms

Resolution 1373 requires States to attack the funding of terrorism and to deny support to, and

prevent, terrorist acts. States were also called upon to exchange information, co-operate and

enter into the relevant international instruments relating to terrorism.

The Advisory Council notes that many of the counter-terrorism measures introduced in

Forum States have been reactive without proper consideration as to the adequacy of existing

laws. In our view, any new laws should be enacted only if needed to combat terrorism and

only used if strictly necessary for that purpose. As the Acting High Commissioner for Human

Rights, Mr Betrand Ramcharan said in his statement to the 8th Annual Meeting of the Asia

Pacific Forum of National Human Rights Institutions:

152 For further information see pp55-145 of the Background Paper. The information contained in this section is taken primarily from the answers to a questionnaire provided to NHRIs and NGOs in each relevant jurisdiction. Every attempt has been made to ensure accuracy and we apologise unreservedly for any remaining mistakes. The Advisory Council of Jurists also acknowledges the usefulness of the following country-specific submissions:

Asia Pacific Human Rights Network Nepal: The Terrorist and Disruptive Activities (Control and Punishment) Act 2002, Asia Pacific Human Rights Network India: Prevention of Terrorism Act, 2002, Asia Pacific Human Rights Network Australia: Australian Security Intelligence Organisation Amendment (Terrorism) Act 2003.

153 S/RES/1373(2001). Acting under Chapter VII of the UN Charter which authorises the Security Council to determine the existence of any threat to the peace, breach of the peace or act of aggression and recommend or decide what measures to take to maintain or restore international peace and security, the Security Council required member States to adopt a package of counter-terrorism measures. As noted above, Article 25 of the UN Charter requires member States to carry out Security Council decisions. Resolution 1373 has been described as a ‘minitreaty’ (see Ilias Bantekas ‘The International Law of Terrorist Financing’ (2003) 97 American Jnl Int Law 315, 326). While States are given considerable latitude as to how they implement the requirements, a monitoring committee, the Counter Terrorism Committee, was set up under cl 6 to monitor implementation and states were called upon to report to the Committee within 90 days on the steps they had taken to implement the resolution.

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While condemnation of terrorism is unequivocal, profound concern has been expressed at the multiplication of policies, legislation and practices adopted by many countries in the name of the fight against terrorism, which can negatively affect the enjoyment of all human rights – civil, cultural, economic, political and social.

The continuing necessity for any additional laws should be subject to regular parliamentary

review, through the inclusion, for example, of “sunset” or review clauses in such legislation

as has been done in a number of Forum States. The Advisory Council is also concerned that

in some Forum States counter-terrorism measures have been introduced by executive decree.

We consider that executive decrees should be avoided except in cases where there is a state of

emergency that threatens the life of the nation. Even then any decrees made should be subject

to parliamentary scrutiny at the earliest possible opportunity.

The observations and recommendations relating to Forum States highlight a common theme

across the region of a widening gap between commitment to international human rights

standards and their implementation in national laws and administrative practices insofar as

they relate to counter-terrorism measures. The Advisory Council notes that this theme is

reflected in common concerns about a range of issues including standards relating to

detention, the role of lawyers, fair trial standards and the role of judicial review.

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Australia

Acts of terrorism, most recently in the Asian region, have prompted significant responses by

the Australian Government. In February 2004, Australia co-chaired a meeting of the Bali

Regional Ministerial Meeting on Counter-Terrorism as an initiative to transfer political

commitment into concrete action. Australia has also amended existing national legislation to

strengthen its powers of detention and investigation. Amendments to the Australian Security

Intelligence Organization Act 1979 (“ASIO Amendment Act”) have, in particular, been the

subject of intense public debate. The following discussion sets out the relevant human rights

and anti-terrorism treaties to which Australia is a party and the recently enacted ‘package’ of

Commonwealth anti-terrorist legislation. Observations are then made where appropriate that

Australian laws may not conform to Australia’s international legal obligations.

Relevant treaties to which Australia is a party

Australia is a party to the ICCPR,154 First Optional Protocol,155 Second Optional Protocol,156

CAT,157 CRC,158 CERD159 and the Refugee Convention.160 Australia is a party to all of the

Terrorism Conventions except the Plastic Explosives Convention.

As a common law country, and in the absence of any Bill of Rights, Australian judicial

bodies rely upon certain constitutional provisions and principles of law to ensure human

rights standards are met. Some human rights treaties, including the Convention on the

Elimination of all Forms of Racial Discrimination and the Convention on the Elimination of

All Forms of Discrimination against Women are directly applicable law through the

introduction of implementing legislation. Others have been scheduled to the Human Rights

and Equal Opportunity Commission Act 1986 (Cth) that provides benchmarks for the

educational, monitoring and investigative roles of the Commission.

154 Australia ratified the ICCPR on 13 August 1980. 155 Australia acceded to the First Optional Protocol on 25 December 1991. 156 Australia acceded to the Second Optional Protocol on 11 July 1991. 157 Australia ratified CAT on 8 August 1989. 158 Australia ratified the CRC on 17 December 1990. 159 Australia ratified CERD on 30 September 1975. 160 Australia acceded to the Refugees Convention on 22 January 1954.

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Australian Commonwealth legislation

Most anti-terrorism provisions are to be found in the following legislation:

• Security Legislation Amendment (Terrorism) Act 2002

• Suppression of the Financing of Terrorism Act 2000

• Crimes Act 1914 and Crimes Amendment Act

• Criminal Code Amendment ( Hizballah) Act 2003

• Criminal Code Amendment (Offences Against Australians) Act 2002

• Criminal Code Amendment Act (Espionage and related Matters) Act 2002.

• Criminal Code Amendment (Suppression of Terrorist Bombings Act) Act 2002

• Telecommunications Interception Legislation Amendment Act 2002

• Security Legislation Amendment (Terrorism) Act 2002

• Border Security Legislation Amendment Act 2002

• Australian Security Intelligence Organisation Act 1979

• Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act

2003 (ASIO Amendment Act)

Of this package of legislation, the ASIO Amendment Act has presented the most significant

challenges to the maintenance of human rights standards. The legislation significantly

expands the investigatory powers of the Australian Security Intelligence Organisation (ASIO)

to arrest, detain and question those suspected of terrorist acts and of possessing information

or of being associated in any way with such acts. Concerns have been expressed that in

relation to the following issues, Australia may not be acting in conformity with its

international legal obligations:

• Periods of Detention without charge. Under section 34 of the ASIO Amendment Act, a

warrant may be permitted for up to 48 hours or, where “it is believed that circumstances

demand it”, detention without charge may be permitted for up to 168 hours (s. 34F.7;

s.34HC permitting detention without charge for 4-8 hours). Australia’s Senate Legal and

Constitutional References Committee reported in December 2002 that the existing

provisions of the Crimes Act (sections 23C and 23D) are sufficient to cover detention for

terrorist offences concluding that the new provisions are not required. The significantly

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extended periods of detention, for considerably longer than has previously been possible

under Australian law, raises concerns that the detention may be arbitrary contrary to

Article 9.1 of the ICCPR.

• Detention of persons where no act of terrorism has occurred. Section 34.3 (c) permits the

detention of persons such as journalists and legal professionals even where there has been

no terrorist act. No state of public emergency has been declared that might otherwise

permit any derogation from the relevant provisions of the ICCPR.

• Video taping of interrogations. Under section 34K of the ASIO Amendment Act, all

interrogations must be video-taped. Such video-taping of interviews may compromise the

right to confidential communication between detainees and their legal advisor. (Principle

18.4 of the Body of Principles on Detention and Principle 8 of the Basic Principles on

Lawyers).

• Disproportionate penalties. It appears to be disproportionate for the ASIO Amendment

Act to impose 5 years’ imprisonment against detainees who fail to cooperate with

questioning (sections 34F(9)(5)(b) and 34F(9)(6)) compared with only 2 years for a failure

of a prescribed authority to be accountable (section 34NA(10)(1)-(6)).

• Access to legal counsel. The ASIO Amendment Act restricts a detainee’s access to legal

counsel (sections 34TA.1). To deny a right of access to a legal representative of the

detainee’s choice would contravene Article 9(c) of the ICCPR and Principle 17 of the

Body of Principles on Detention.

• Monitoring of contacts. The ASIO Amendment Act (sections 35TA.2 and 34TA.4)

requires that contacts between a detainee and legal adviser must be monitored and that the

legal adviser may intervene only to request clarification. These provisions may

contravene Article 14.3(b) of the ICCPR, which provides that every person charged with a

criminal offence is entitled to adequate time and facilities for the preparation of their

defence and to communicate with counsel of their choice. (See also Principles 18.1 and

18.2 of the Body of Principles on Detention and Principle 8 of the Basic Principles on

Lawyers.) These provisions could also constitute a breach of the right to confidentiality of

communications under Principle 3 of the Body of Principles on Detention and Principles 8

and 22 of the Basic Principles on Lawyers.

• Access by lawyers to information. Section 34VA of the ASIO Amendment Act allows

regulations prohibiting or regulating access to information by lawyers on security grounds.

Any such regulations will contravene Principle 21 of the Basic Principles on Lawyers,

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which provides that it is the duty of authorities to ensure lawyers’ access to appropriate

information, files and documents in their possession or control, in sufficient time to enable

effective legal advice to clients.

• Restrictions on Family Communications. The ASIO Amendment Act, section 34F.8, also

provides that detainees may be refused contact with their family or other persons. The

capacity for detention to amount to an apparent “disappearance” of a detainee through the

capacity to extend the initial 48-hour period of arrest, amounts to a significant breach of

Article 9.1 of the ICCPR provision against arbitrary detention. Such “incommunicado

detention” also contravenes Principles 16.1 and 19 of the Body of Principles on Detention.

• All questions must be answered by detainees. The ASIO Amendment Act (section

34G.8(b)) provides that a detainee must not fail to give information requested in

accordance with a warrant and may not decline on the grounds of self-incrimination. The

failure to provide such information and the failure to satisfy the evidentiary burden

imposed by section 34G.4 carries a 5-year imprisonment penalty. These provisions

infringe the right to silence, the right not to be compelled to testify against oneself and

reverse the presumption of innocence protected by Article 14.3(g) of the ICCPR and

Principle 21.1 of the Body of Principles on Lawyers. The Senate Legal and Constitutional

References Committee on the ASIO Amendment Act considered that there is no general

duty to disclose information relevant to a terrorist offence (at 6.47). Perhaps the most

troubling aspect of section 34 is that it shifts the burden to the detainee positively to prove

their non-association with terrorist activities. The right to a presumption of innocence is

articulated in Article 14.2 of the ICCPR and mirrored in Article 62 of the ECHR and

Principle 36.1 of the Body of Principles on Lawyers.

• The rights of children. Under the ASIO Amendment Act, children are generally made

subject to the same provisions as those applicable to adults. Classification as a child

applies only to the age of 16, by contrast to the age of 18 under the Convention on the

Rights of the Child. Any questioning of children may continue in the absence of a parent,

guardian, an appropriate adult or a legal adviser. Suspension of the presumption of

innocence and the right not to be compelled to give testimony or to confess guilt are

applied equally to children by the ASIO Amendment Act. In these respects, the ASIO

Amendment Act contravenes CRC (Article 37 ( d), 40.2(b)(i) and (ii) and (iv) and the

provisions of Fundamental Perspective 17 of the United Nations Rules. When ratifying

the ICCPR and CRC, Australia made reservations which exclude provisions requiring the

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segregation of juveniles from adults and that children be accorded treatment appropriate to

their age and status. It is thus possible that children as young as 16 could be held in adult

correctional facilities for terrorist offences; a possibility that Australia’s Senate Legal and

Constitutional References Committee has rejected.

• Search and seizure. The ASIO Amendment Act enables ASIO and prescribed authorities to

search persons suspected of possessing records or “things” that may be relevant to

intelligence or to a terrorism offence (section 34D.5 (a)). The police may use reasonable

and necessary force to conduct strip searches under section 34L. Concerns have been

expressed that these powers may have been abused in practice (Asia Pacific Human Rights

Network Submission to the Advisory Council of Jurists, February 2004).161

In summary, the ASIO Amendment Act raises concerns that it enables arbitrary detention,

limits access to and communications with legal counsel, retracts the right to silence and the

presumption of innocence, reverses the burden of proof, expands powers of search and

seizure and makes few distinctions between children and adults.


1. Extended detention without charge for up to 168 hours appears to be contrary to the

prohibition against arbitrary arrest or detention under Article 9.1 of the ICCPR. The ASIO

Amendment Act should be brought into conformity with Australia’s legal obligations in

this respect.

2. The restrictions placed on the right of detainees to access to a lawyer contravene Principle

8 of the Basic Principles on Lawyers. The ASIO Amendment Act, section 34 TA, should

be amended to afford this right.

3. The detention of persons where no terrorist act has occurred may have a significant effect

on the respective roles of journalists and legal advisors. Section 34.3 (c) of the ASIO

Amendment Act should be reviewed to protect legal professional privilege and the

qualified professional privilege of journalists.

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4. The ASIO Amendment Act requires all contacts between a legal practitioner and a detainee

to be monitored inconsistently with the right to confidential communications under

Principle 5 of the Basic Principles on Lawyers. The legislation should be amended

accordingly.

5. The ASIO Amendment Act requires video-taping of all communications between detainees

and their legal advisers. Under Principle 18.4 of the Body of Principles on Detention and

Principle 8 of the Basic Principles on Lawyers interviews may be within sight, though not

the hearing of law enforcement officials. Any video taping should respect this right.

Moreover, detainees should be informed of their right to request an interpreter both orally

and in writing.

6. Regulations prohibiting or regulating access by lawyers to information on security

grounds contravenes Principle 21 of the Basic Principles on Lawyers and should be

amended to ensure the provision of effective legal advice to detainees.

7. The ASIO Amendment Act, sections 34 G(3) and (6) require that a detainee answer all

questions asked of him or her in contravention of the right to silence and the rights not to

be compelled to testify against oneself or to confess guilt (Article 14(3)(g) of the ICCPR).

The legislation should be amended to ensure these rights are fully respected. It is also

vitally important that the burden of proving non-association with terrorist acts –currently

placed upon a detainee- be moved to ASIO or other investigating authority.

8. The application of the ASIO Amendment Act to minors between the ages of 16 and 18

years and the application of any State legislation, (such as the Terrorism (Police Powers)

Act 2002 (NSW)) that apply to children from the age of 10 years, are in contravention of

the ‘best interests of the child’ principle established in Article 3 of the CRC. The Act

should be amended accordingly.

9. The restrictions on the rights of a detained person under the ASIO Amendment Act(section

34F(8)) to communicate with their family – rendering them “incommunicado” - are in

significant contravention of the Body of Principles on Detention and should be amended. 161 Asia Pacific Human Rights Network, Submission to the Advisory Council of Jurists, February 2004 – available at http://www.asiapacificforum.net/jurists/terrorism/submissions.htm [reference date 14 April 2004].

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10. Efforts should be made to ensure that the search and seizure provisions under the ASIO

Amendment Act be used reasonably with proper restraint ensuring they are employed

without racial or religious discrimination.

Fiji Fiji is a party to CERD162 CRC163 and the Refugees Convention164. Fiji has not ratified the

ICCPR or CAT. Fiji has not ratified the following Conventions on Terrorism:

• Internationally Protected Persons Convention;

• Hostages Convention;

• Terrorist Bombings Convention;

• Financing of Terrorism Convention;

• Nuclear Material Convention;

• Maritime Navigation Convention;

• Protocol to the Maritime Navigation Convention; and

• Plastic Explosives Convention.

Chapter 4 of the Constitution of the Republic of the Fiji Islands 1997 contains a Bill of Rights

which provides a framework of safeguards for individual freedom.165 The Constitution is

supreme and any legislation inconsistent with it is to be read down to the extent of the

inconsistency.166 The courts are admonished in interpreting the rights enshrined in the Bill of

Rights to “promote the values that underlie a democratic society based on freedom and

equality and must, if relevant, have regard to public international law applicable to the

protection of the rights set out in this chapter”167

Chapter 14 of the Constitution regulates the exercise of emergency powers. By virtue of the

Emergency Powers Act 1998 the President, acting on the advice of the Cabinet, may proclaim 162 Fiji succeeded to CERD on 11 January 1973. 163 Fiji ratified the CRC on 13 August 1993. 164 Fiji succeeded to the Refugees Convention on 12 June 1972. 165 Chapter 4 binds (a) the legislative, executive and judicial branches of government at all levels: central, divisional and local; and (b) all persons performing the functions of any public office. 166 Section 2(1) and 2(2). 167 Section 43(2).

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a State of Emergency. Besides invasion, armed conflict with a foreign state, and natural

disaster, two other causes may lawfully prompt the Cabinet to tender such advice. These

include: (c) that action has been taken or is immediately threatened by any person or group of

persons of such a nature and on such a scale as to be likely: (i) to endanger the public safety; (ii) to deprive the community or a substantial portion of it of essential supplies or services; or (iii) to harm the national economy;

(d) that for some other reason a grave emergency exists whereby the security or economic life of the state is threatened.168

Following the proclamation, the President may make regulations169 which may provide for

inter alia:

(d) the harvesting of crops, exploitation of minerals or any other economic activity.

This section has given rise to comment since it was felt it could be used to stifle legitimate, if

radical, trade union activities for instance in the sugar industry. It has not however been so

used. The President is obliged to summon Parliament, if not sitting at the time, as soon as

possible after making the proclamation. The proclamation remains in force for 3 months,

though it may be extended by the House of Representatives.

Section 187 of the Constitution allows for derogation from some of the rights set out in the

Bill of Rights when a state of emergency is proclaimed.170

The following pieces of legislation are also relevant:

• Suppression of Terrorism Decree 1991;

• Civil Aviation (Security) Act 1994 (and the Civil Aviation Security Regulations 1994);

• Mutual Assistance Act 1997;

• Fiji Intelligence Service Decree 1990; and

• Penal Code 1945 168 Emergency Powers Act, s2. 169 Constitution of Fiji, s5, 170 Section 187 of the Constitution permits regulations to be made which may derogate from the rights and freedoms contained within the Bill of Rights including matters of personal liberty and detention (section 23); freedom from servitude and forced labour (section 24); freedom of expression (section 30); freedom of assembly (section 31); freedom of association (section 32); the right to form and join trade unions (section 32); freedom of

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Executive Decrees and Definitions of Terrorism

Intelligence Service Decree 1990

The Intelligence Service Decree was promulgated by the President prior to the promulgation

of the 1990 Constitution.171

Terrorism is defined in section 2 of the Intelligence Service Decree as including: (a) acts of violence for the purpose of achieving a political objective in Fiji or in a foreign country

(including acts of violence for the purpose of influencing the policy or acts of a government in Fiji or in a foreign country); and

(b) training, planning, preparations or other activities for the purposes of the commission in a foreign country of other acts of violence of a kind referred to in paragraph (a); and

(c) acts that are offences punishable under any law relating to internationally protected persons, the hi-jacking of aircraft or the protection of aircraft.

The key words in the definition of terrorism are “acts of violence” and “violent subversion”.

If demonstrations of opposition were kept within peaceful bounds and intentions the Decree

would appear not to impede such expressions of dissent.

The Fiji Court of Appeal has for the moment given its approval to ratification of Decrees

without bill processing, in a short judgment in reliance on section 195 of the Constitution.172

In effect, Parliament, through the passing of the 1997 Constitution, is held to have ratified

251 Decrees promulgated between 1987 (after the two Military Coups of that year) and 1992.

Parliament did not, however, debate the contents of the 251 Decrees when it did so.173

This issue may be taken on further appeal to the Supreme Court when the questions may be

answered of whether Parliament may decline to follow the bill procedure for the imposition

of legislation provided in the Constitution (sections 45, 46, 47) and whether it may

movement (section 34) including entry into and departure from Fiji, expulsion and extradition; and the right to personal privacy and privacy of personal communications (section 37). 171 The Intelligence Service Decree was derived from a similarly worded piece of legislation from Singapore. The Intelligence Service was said to have been disbanded in 1998 with the Government instead relying on the Police Special Branch. 172 AG and Minister for Sugar v Silimaibau (unreported) Court of Appeal Fiji Civil App. No. ABU0050 of 2003S; 19th March 2004. 173 The High Court had expressed disapproval at the failure to submit executive decrees to Parliament for ratification, and in some cases had refused to apply part of, or all of, a decree: Silimaibau & Anor v Minister for Sugar Industry and 2 Others (unreported) Suva High Court Civil Action HBC155.01, 17 July 2003; State v Pickering [2003] NZAR 293;Tropic Wood Industries Ltd v Apenisa Balewakula & 3 Others (unreported) Lautoka High Court Civil Action HBC158.97L 4 October 2002; Koroi v Commissioner of Inland Revenue [2003] NZAR 18.

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legitimately ratify a bundle of 251 Decrees by the device of section 195. Even if this

procedure is approved as lawful, it is clearly one that by-passes democratic scrutiny of and

public input into legislation. Such a procedure is even more unsuitable for legislation that

takes away basic rights, freedoms and protection for a country’s inhabitants.

Suppression of Terrorism Decree 1991

Section 2 of the Suppression of Terrorism Decree, defines a terrorist emergency as follows:

Terrorist emergency means a situation in which any person or substantial body of persons whether inside or outside of Fiji is threatening, causing or attempting to cause: (a) The death of, or serious injury or serious harm to, any person or persons; or (b) The destruction of, or serious injury to:

i. Any airport, premises, building, erection, structure, installation or road; or ii. Any aircraft, hovercraft, ship or ferry or other vessel, train or vehicle; or

iii. Any natural feature which is of such beauty, uniqueness or scientific, economic or cultural importance that its preservation from destruction, damage or injury is in the national interest; or

iv. Any chattel of any kind which is of significant historical, archaeological, scientific, cultural, literary or artistic value or importance; or

v. Any animal; or (c) The destruction of the economic life of Fiji; or (d) Any action that is prejudicial to the interests of defence, public safety, public order and the

security of Fiji: in order to coerce, deter or intimidate: (e) The Government of Fiji, or any agency of the government of Fiji; or (f) The government of any other country; or any agency of the Government of any other country; or (g) Any body or group of persons, whether inside or outside of Fiji - for the purpose of furthering

within or outside, any political aim. The definition of “terrorist emergency” in this Decree is drafted widely and would catch

otherwise lawful trade union activity protected under the Bill of Rights. If the Decree is to be

relied on at all, it should be amended so as to ensure for instance, that employment issues

between a statutory body and its employees, including a trade union, can safely be pursued.

Section 10(2)(k) of the Suppression of Terrorism Decree, provides for the detention of any

person found within the emergency area, who is found to be behaving in a suspicious manner,

but who must be taken before a magistrate within 36 hours if not sooner released or charged.

Telephone tapping is authorised under Section 10(3) of the Decree.

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Bail Act and Immigration Act

The Bail Act 2002 provides a right to bail unless it is not in the interests of justice that it be

granted.174 There is also a rebuttable presumption in favour of the grant of bail.175 Courts

must record in writing the reasons for refusing bail.176 Refusal may be appealed through the

court hierarchy.

Persons detained under the Suppression of Terrorism Decree must be taken before a

magistrate within 36 hours from the time of detention.177 From that point on the ordinary

provisions of the Bail Act 2002 now apply, which dovetail with the rights of arrested or

detained persons under the Constitution.178

Section 17(2) of the Immigration Act 2003 gives the phrase “terrorist act” an extended

definition so that for the particular act to come within the phrase it must be within the

following. It:

(a) must:

(i) involve serious bodily injury to a person; (ii) involve serious damage to property; (iii) endanger a person’s life; (iv) create a serious risk to the health or safety of the public or a section of the public; (v) involve the use of arms or ammunition; or (vi) involve releasing into the environment or distributing or exposing the public to any

(a) dangerous, hazardous, radioactive or harmful substance; (b) toxic chemical; or (c) microbial or other biological agent or toxin; or

(vii) be designed or intended to disrupt any computer system or the provision of services directly related to communications infrastructure, banking or financial institution, transportation or other essential infrastructure;

(viii) be designed or intended to disrupt the provision of essential emergency services such as police, civil defence or medical services; or

(ix) involve prejudice to national security or public safety;

(b) must be intended, or by its nature and context, reasonably be regarded as being intended: (i) to intimidate the public or a section of the public; or (ii) to compel a government or an international organization to do, or refrain from doing,

any act; (c) must be made for the purpose of advancing a political, ideological, or religious cause.

174 Section 3(1) Bail Act 2002 175 Section 3(3) 176 Section 20(1) 177 48 hours under Section 27 of the Constitution. 178 Constitution, Section 27

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An act is not a “terrorist act” however if:

(a) it is committed as part of an advocacy, protest, demonstration, dissent or industrial action and is

not intended to result in any harm mentioned in subparagraph (i), (ii), (iii) or (iv) of subsection (2); or

(b) it occurs in a situation of armed conflict and is, at the time and in the place it occurred, in accordance with rules of international law applicable to the conflict.

The question of who is an asylum seeker is therefore to be considered in certain

circumstances together with the definition of a terrorist in the Immigration Act, which

definition can be assessed as fair and reasonable, and as adhering to the principles of the

Refugee Convention.

The Civil Aviation (Security) Act 1994

This Act provides specific offences which might be relevant in matters of terrorism,

hijacking, aircraft sabotage, endangerment of aircraft, threats and false statements as regards

aircraft or airports. It deals with powers of search, arrest and detention, and the grant of such

powers appears no more than sufficient without being draconian.


1. The power to derogate from the rights listed in the Bill of Rights when a state of

emergency is proclaimed should be interpreted so as to preserve the constitutional rights

to the fullest extent possible and in light of the limits on derogation imposed by the

ICCPR.

2. Consideration should be given to the removal of the derogation of rights permitted under

the Constitution during an emergency which offend against Articles 7 and 8 of the

ICCPR, namely the freedom not to be subjected to torture, or to cruel, inhuman or

degrading treatment or punishment, and the freedom not to be held in slavery or servitude

or to be required to perform forced or compulsory labour.

3. The definition of ‘terrorist emergency’ in the Suppression of Terrorism Decree and the

definition of terrorism in the Intelligence Service Decree are drafted broadly and may

unintentionally include such activities as a protest that may have resulted in violence and

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injury to a person, although that was not its purpose, in contravention of the right to

freedom of expression in Article 19 of the ICCPR.

4. The failure to limit the search powers contained in the Suppression of Terrorism Decree

and the Intelligence Service Decree to persons over the age of 18 is not in accordance

with the ‘best interests of the child’ principle contained in the Article 3 of the CRC.

5. Any detention in respect of anti-terrorism measures should not be arbitrary as the term




allows scope for public participation, rather than by Executive decrees which have the

potential to abridge human rights. The Suppression of Terrorism Decree and the

Intelligence Service Decree should be recast and re-submitted to Parliament for

democratic consideration.

India

India has ratified the ICCPR179 but has neither signed nor ratified the First or Second

Optional Protocols (to the ICCPR). India has acceded to the CRC180 and has ratified the

CERD.181 India has signed (14 October 1997), but not ratified, the Convention on Torture

(CAT). India has neither signed nor ratified the Refugee Convention.

All the twelve Conventions on Terrorism have been ratified by India.

As one of the SAARC countries India has signed the SAARC Regional Convention on

Suppression of Terrorism on 4 November 1987.

On 25 March 2002 India passed a new anti-terrorism law – the Prevention of Terrorism Act

(POTA). This law reinstated a somewhat less-stringent version of the previous law on the

subject - Terrorist and Disruptive Activities (Prevention) Act 1987 (TADA). Under the latter 179 On 10 April 1979. 180 Date of Entry 11 January 1993.

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(TADA) over 75000 persons from various parts of the country had been arrested and detained

but only one percent of them were convicted (after trial). TADA was repealed in 1995

following widespread allegations of misuse and stringent criticism by human rights

organisations, lawyers and by officials themselves.

In April 2000 the Law Commission of India prepared draft legislation under the name of the

‘Prevention of Terrorism Bill, 2000’. It was opposed by human rights organisations, many

political parties and also India’s National Human Rights Commission (NHRC). The Bill was

shelved. In its opinion on the draft bill, the NHRC was of the unanimous opinion that there

was no need to enact any new law for the prevention of terrorism and that solutions could be

found under existing law if properly enforced and implemented.

However, as a result of the incidents of September 11 and backed by the UN Resolution

1373/(2001), Prevention of Terrorism Ordinance, 2001 (or POTO) was first promulgated on

24 October 2001 and again on 31 December 2001. The NHRC took the same view of the

Ordinance as it did of the Bill proposed in 2000, namely that there was no need for it and that

it possessed dangerous potential for misuse.

At a sitting of the Lok Sabha on 18 March 2002 the Prevention of Terrorism Bill 2002

(introduced to replace the Ordinance - POTO) was passed by a majority of votes but the Bill

was rejected by India’s Upper House of Parliament (Rajya Sabha) on 21 March 2002. The

Bill was ultimately passed (by a majority) in a rare joint sitting of both Houses of Parliament

on 25 March 2002.

POTA sets forth a broad definition of ‘terrorism’ and of membership of ‘terrorist

organisation’, allows the detention of suspected terrorists for up to 180 days without charge,

and sets up Special Courts to try terrorists. It also contains certain safeguards not included in

TADA, including immediate notification of family members following arrest and restrictions

on the use of confessions extracted by torture.

POTA sets out broad definitions of ‘terrorist acts’ and ‘membership of terrorist organisations’

and provides for stringent penalties, including the death penalty (where the terrorist act has

181 On 4 January 1969.

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resulted in death of any person)182. For the purposes of the Act an Organisation is a Terrorist

Organisation if it is listed in the Schedule to the Act and the Central Government is

empowered by order to add any organisation to that Schedule, ‘but only if it believes that it is

involved in terrorism’.183 A person commits an offence if he belongs or professes to belong

to a Terrorist Organisation or invites support for a Terrorist Organisation or assists in

arranging or managing a meeting which he knows would support a Terrorist Organisation or

further the activities of a Terrorist Organisation.184 The holding of any proceeds derived

from terrorism is declared illegal185, and any property of a person convicted under POTA is

liable to be forfeited.186 POTA also sets up Special Courts to deal with terrorist offences.

Both the Central Government and State Governments are permitted to constitute such courts

for certain notified areas or groups of cases.187

POTA empowers the police to hold people without bringing charges for extended periods of

detention. Terrorist suspects can now be detained for 90 days without charge or trial.188 The

Special Court can extend this period to 180 days on an application and report by the Public

Prosecutor indicating the progress of investigation and the specific reasons of the detention of

the accused beyond the period of 90 days. No accused may be released on bail unless the

Court gives the Public Prosecutor an opportunity to be heard189 and where the Public

Prosecutor opposes release on bail, the accused may not be released ‘until the Court is

satisfied that there are grounds for believing that he is not guilty of committing such

offence’.190 POTA introduces new provisions governing surveillance measures, and

authorising police officers to intercept communications.191 Section 53 provides for the

Special Court drawing adverse inferences against the accused – where arms or explosives are

discovered in the possession of the accused and fingerprints of the accused are found at the

place of the offence. 182 POTA section 3. 183 POTO section 18. 184 Section 20 to 22 - In PUCL v. Union of India, Bench of the Supreme Court (16 December, 2003), whilst negativing constitutional objections to POTA and holding the entire Act valid and competent and not in contravention of the Fundamental Rights Chapter, read down the provisions of sections 20 to 22 holding that the offences in these sections required proof as a positive inference that a person had acted with intent of furthering or encouraging terrorist activity or facilitating its commission. 185 POTA section 6. 186 POTA section 16(2) 187 POTA section 23 188 POTA section 49(2) amending the provisions of the ordinary criminal law (Section 167 of the Code of Criminal Procedure 1963). 189 POTA section 49(6) 190 POTA section 49(7)

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Whilst upholding the Constitutional validity of TADA, (in 1994) the Supreme Court of India

had recommended192 that in order to ensure a higher level scrutiny there must be a Screening

Committee or a Review Committee constituted by the Central Government consisting of the

Home Secretary, Law Secretary and other secretaries concerned of the various Departments

to review all the TADA cases instituted by the Central Government as well as to have a

quarterly administrative review, reviewing the action of State Government, in the application

of the TADA provisions (in the respective States). The Court had also said that there must be

a Screening or Review Committee at the State level to review the action of the enforcing

authorities under the Act and screen the cases registered under the provisions of the Act and

decide the further course of action in every matter. Under POTA statutory sanction has been

given to the suggestion made by the Supreme Court in 1994: Section 60 now provides for

setting up of Review Committees. With increasing instances of misuse of POTA by

agencies/authorities in the States; and under pressure of Parliament, a Review Committee was

ultimately notified by the Central Government on 4 April 2003 – it is headed by a retired

Chief Justice of one of India’s High Courts. In October 2003 amendments were passed by

Parliament to Section 60 – making the review provision more meaningful and effective.i

In December 2003, the Supreme Court of India has upheld the constitutional validity of

POTA.193 More recently, the State Government of Tamil Nadu challenged the constitutional

validity of the amendments in Section 60 viz. Section 60 (4) (5) (6) (7) – as being an

encroachment on the Judicial Power of the Court. This challenge was negatived by a Division

Bench of the Madras High Court by judgment dated 4 February 2004, a decision now upheld

by India’s Supreme Court on 8 March 2004: the review provisions (Section 60) have been

upheld as valid and designed to help prevent misuse or abuse of its provisions by executive

agencies of Governments.

Whilst the statutory provisions for administrative review of POTA cases has somewhat

mitigated the harshness of India’s anti-terrorist law, the provisions of POTA are not strictly in

conformity with UN Human Rights Instruments.

191 POTA section 36-48. 192 See Kartar Singh v State of Punjab 1994 (3) SCC 569 – para 265. This was reiterated in R.M. Tiwari’s case 1996 (2) SCC 610; Shaheen Welfare Association v UOI 1996 (2) SCC 616; and Mohd. Husain v State of Rajasthan 2003 (10) SCC 295.

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1. The provision of POTA extending the normal period for investigation prescribed in the

ordinary Criminal law, and extending the consequential period of detention of persons

accused (up to 180 days) and denying the accused the right to be released on bail within

one year from the date of detention unless the Special Court “is satisfied that there are

grounds for believing that he is not guilty of committing the offence” – are at variance

with the provisions of Article 9(2), (3) and (4) and Articles 14(2) and (3(c) of the ICCPR.

They are also contrary to Principle 11 of the Body of Principles on Detention.194

2. The ‘Special Courts’ established within the framework of POTA must exercise their

jurisdiction with the same degree of impartiality, independence and fairness as the

established Courts of the land, and in accordance with international standards as set out in

Article 14 of the ICCPR: this must be ensured by the High Courts (who are empowered

under the Constitution with ample writ jurisdiction over all administrative authorities and

tribunals), and by the Supreme Court of India.

3. Section 54(2) permits the person arrested under POTO to meet with his legal practitioner

during the course of interrogation, but does not permit the legal practitioner to remain

present throughout the period of interrogation: this is not in conformity with Principle 8

of the Basic Principles on the Role of Lawyers which mandates that all arrested, detained

or imprisoned persons shall be provided with adequate opportunity, time and facility to be

visited by and to communicate and to consult with a lawyer without delay, interception or

censorship and in full confidentiality: such consultation being within sight but not within

the hearing of law enforcement officials.

4. Under Section 53 of POTA in a prosecution for punishment for “terrorist acts” (Section

3), Special Courts are permitted to draw adverse inferences against the accused in certain

193 In PUCL v UOI 2003 (10) Scale 967 (14 December 2003). 194 Principle 11: 1. A person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority. A detained person shall have the right to defend himself or to be assisted by counsel as prescribed by law. 2. A detained person and his counsel, if any, shall receive prompt and full communication of any order of detention, together with the reasons therefore. 3. A judicial or other authority shall be empowered to review as appropriate the continuance of detention.

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circumstances. Article 14(2) of the ICCPR provides, however, that everyone charged with

a criminal offence “shall have a right to be presumed innocent until proved guilty

according to law”: a right against which no derogation is permissible.

Indonesia

Indonesia is a party to CAT,195 CRC196 and CERD.197 Indonesia is not a party to the ICCPR.

Indonesia has not ratified the ICCPR or the Refugees Convention. Indonesia has not ratified

the following Conventions on Terrorism:







Indonesia is a signatory to the following Conventions on Terrorism:

• Financing of Terrorism Convention; and

• Protocol to the Montreal Convention.

Legislation No. 39 ‘Concerning Human Rights’ provides for various rights and freedoms and

procedural safeguards.

In its third report to the Counter-Terrorism Committee of the Security Council dated 7 March

2003, the Government of Indonesia said that an Anti Terrorism Bill had been submitted to

Parliament on 18 October 2002.198

195 Indonesia ratified CAT on 28 October 1998. 196 Indonesia ratified the CRC on 5 September 1990. 197 Indonesia acceded to CERD on 25 June 1999. 198 Counter-Terrorism Committee Report - Indonesia, Security Council, S/2003/267, 7 March 2003, p.3.

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Pending the adoption of the Anti Terrorism Bill, Indonesia enacted ‘Government Regulation

in-lieu of Law (Perpu) No. 1/2002 on Combating Terrorism and Government Regulation in-

lieu of Law (Perpu) No.2/2002 on the enactment of Government Regulation in-lieu of Law

(Perpu) No. 1/2002.199

The Anti-Terrorism Bill was passed in March 2003 (the Law 15/2003). It was given specific

retrospective effect by regulation Perpu 2/2002 for the purpose of convicting those

individuals found guilty of the bombings in Bali. Suspected terrorists can be detained for up

to seven days on the basis of preliminary evidence and then for a further six months for

questioning and prosecution.

Article 3(1) of Government Regulation in-lieu of Law (Perpu) No. 1/2002 stipulates that:

This Government Regulation in lieu of Law prevails upon anyone conducting or having intention to conduct crime of terrorism in the territory of the Republic of Indonesia and/or in the territory of other states which also have jurisdiction and have expressed their intention to prosecute the offender.

Other relevant provisions are contained in the Penal Code of Indonesia, Book Non Crimes.


1. While national security concerns are important to Indonesia, they need to be balanced

with the human rights guarantees contained in Indonesian legislation, and international

treaties to which Indonesia is a party, as well as the customary rules of international law


2. The retrospective effect of the anti-terrorist laws are contrary to the principle of legality in

the field of criminal law as recognised in Article 15(2) of the ICCPR and as as a principle

from which no derogation may be made. Consideration should be given to the use of the

existing criminal law to deal with crimes committed before the enactment of specific anti-

terrorism measures.

199 Counter-Terrorism Committee Report - Indonesia, Security Council, S/2003/267, 7 March 2003, p.7.

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3. The detention period for a suspect under the new anti-terrorism legislation is in

contravention of Article 9 of the ICCPR and Principle 11 of the Body of Principles on

Detention.

4. An independent and fair judicial process is required of all courts in Indonesia in





Malaysia

Malaysia is a party to the CRC.200 Malaysia is not a party to the ICCPR, CAT, CERD or the

Refugees Convention.

Malaysia has ratified the following Conventions on Terrorism:

• Tokyo Convention;


• Hague Convention;

• Montreal Convention; and

• Terrorist Bombings Convention.

Malaysia has also signed the Protocol to the Montreal Convention. Cabinet approval has

been obtained by the Ministries concerned for the ratification of the following Conventions

by the end of 2004:


• International Financing of Terrorism Convention;

• Nuclear Material Convention; and

• Plastic Explosives.

200 Malaysia acceded to the CRC on 17 February 1995.

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Ratification of the following instruments is under active consideration:

• Maritime Navigation Convention; and

• Protocol to the Maritime Navigation Convention.

The Constitution of Malaysia 1957 contains a number of rights and freedoms and procedural

safeguards. It also provides for derogations from those rights. The primary pieces of

legislation that relate to terrorism in Malaysia are:

• the Internal Security Act 1960 (ISA);

• the Emergency (Essential Powers) Ordinance 1970;

• Prevention of Crime Act 1959 and the Emergency (Public Order and Prevention

of Crime) Ordinance 1969;

• the Public Order (Preservation) Act 1958;

• the Extradition Act 1992; and

• the Kidnapping Act 1961.

Definition of Terrorism in the ISA

The Internal Security Act (ISA) was tabled in Parliament in 1960 in order, “firstly to counter

subversion throughout the country and secondly to enable the necessary measures to be taken

to the border area to counter terrorism”201. The ISA and the powers of detention it confers

remain in full force to this day.

201 Parliamentary Debates, Dewan Rakyat (21 June 1960). The terms ‘terrorist’ and ‘CT’ (communist terrorist) became part of the daily vocabulary in Malaysia in 1948 following a series of assassinations and incidents of economic sabotage by the Malayan Communist Party. The terms ‘terrorist’ and CT’ were used to describe all members of the Malayan Communist Party whether they were actual combatants or merely card carrying members who shared the party’s aims. A nationwide emergency was declared under British rule on 12 June 1948 in conjunction with the passing of the Emergency Regulations. The insurrection continued after Malaysia obtained its independence and led to the passing of the ISA. The Act was stated to be “an Act to provide for the internal security of the federation, preventive detention, the prevention of subversion, the suppression of organized violence against persons and property in specified areas of the Federation and for matters incidental thereto.” The preamble recited that the necessity for the Act was brought about because “action had been taken and further action had been threatened by a substantial body of persons:

1. to cause a substantial number of persons to fear organized violence against persons and property; and 2. to procure the alteration, otherwise than by lawful means, of the lawful Government of Malaysia by law

established.” The Act was to be operative in any part of the country designated as a “security area”. Initially the whole of Malaysia was designated as a security area but over time some areas have been declassified.

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The ISA defines “terrorist” as meaning a person who:

• by the use of any fire-arm, explosive or ammunition acts in a manner prejudicial to the

public safety or to the maintenance of public order or incites violence or counsels

disobedience to the law or to any lawful order;

• carries or has in his possession or under his control any fire-arm, ammunition or

explosive without lawful authority; or

• demands, collects or receives any supplies for the use of any person who intends or is

about to act, or has recently acted, in a manner prejudicial to public safety or the

maintenance of public order.202

The ISA prohibits a wide variety of conduct, apparel and objects including:

• manufacture, use, sale, display or possession of uniforms, other dress or emblems of

political or quasimilitary organisations;203

• quasimilitary organisations;204

• illegal training in the use of arms;205

• possession, printing, sale etc of documents and publications or the posting of placards

that incite violence, counsel disobedience to the law, is likely to lead to a breach of the

peace, is prejudicial to the national interest;206

• holding of any entertainment or exhibition detrimental to the national interest;207

• use of a school or educational institution for a purpose detrimental to the interests of

Malaysia or the public, for instruction detrimental to the interests of the public or pupils,

or as a meeting place of an unlawful society;208

• offences relating to fire-arms, ammunition and explosives, including consorting with, or

being a person who, carries or has possession of arms or explosives;209 and

• attempting to commit any of the above acts.

202 Part I, Section 2, Internal Security Act, 1960. 203 Part II, Sections 3 and 7, Internal Security Act 1960. 204 Part II, Section 5, Internal Security Act 1960. 205 Part II, Section 6, Internal Security Act 1960. 206 Part II, Chapter III, Sections 22, 25 and 27, Internal Security Act 1960. 207 Part II, Chapter IV, Section 35, Internal Security Act 1960. 208 Part II, Chapter V, Section 41B, Internal Security Act 1960. 209 Part III, Chapter III, Section 57 and 58, Internal Security Act 1960.

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The penalties prescribed for the various offences created under the ISA range from the

payment of a fine and/or one year imprisonment for wearing a prohibited uniform, dress or

emblem210 to death for attempting or succeeding to supply fire-arms, ammunition or

explosives for the use by a terrorist.211

Detention

Detention without trial and also executive orders restricting the residence of the subject to a

designated area that is not his or her normal place of residence is provided for under several

statutes designed to promote and preserve internal security and public order (“the security

legislation”). The principal Acts in this category are as follows:

(a) Internal Security Act 1960 (Act 82) ;

(b) Emergency (Public Order and Prevention of Crime Ordinance):No. 5, 1969;

(c) Dangerous Drugs (Special Preventive Measures) Act 1985 and

(d) Restricted Residence Act 1933 – Revised 1989.

Section 73 of the ISA empowers arrest and detention of up to and not exceeding sixty days.

This period will be utilized by the police to interrogate the detainee with a view to

determining whether there is adequate additional material to justify a Ministerial order of

detention under Section 8 which will automatically follow if the Minister is satisfied that the

further detention of such person (which could be up to two years) is necessary with a view to

preventing him or her from acting in any manner prejudicial to the security or economic life

of Malaysia or to the maintenance of its essential services.

By Section 8(7) the detention may be extended indefinitely for two years at a time on the

same or different grounds from that specified in the original detention order. The Police

cannot, however, use the original period of detention for the purpose of discovering some

basis on which the individual can be detained as the foundation for a section 73 detention

must have existed prior to the detention. All visits to detainees under the ISA are closely

monitored as provided by Rule 18(5) of the Rules made under the Act. 210 Part II, Chapter I, Section 4, Internal Security Act 1960. 211 Part III, Chapter III, Section 59(1); Part III, Chapter III, Section 61, Internal Security Act 1960.

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Pursuant to the powers provided for under Section 4 of the Human Rights Commission Act

1999 (Act 597), SUHAKAM undertook a review of the Internal Security Act in 2003212.

SUHAKAM raised concerns about both the provisions of the Act and their application. It

concluded that sections 8 and 73 of the ISA infringed the principles of human rights and that

under the ISA individuals had been subjected to arbitrary detention and inhuman or

degrading treatment while in custody.213 The report recommended repeal of the ISA and its

replacement with comprehensive legislation that conforms with international human rights

principles. A Parliamentary debate on SUHAKAM’s recommendations and remedial

legislation is yet to take place.

The Prevention of Crime Act 1959 is concerned with controlling the activities of persons

involved with organizations using Triad rituals or concerned with the commission of seizable

offences or who maintained secrecy as to their objectives. Under this Act orders of detention

can be made for rolling periods of twenty-eight days.214

Special Protection Extended to Minors

Malaysia ratified the CRC in 1995. Hence, it is pertinent that the age of minors detained for

offences under preventive detention laws be taken into account to ensure the protection of

Convention rights.215 Pursuant to Article 22 of the CRC, protection should be accorded to

refugee children as well. Since the security legislation and in particular the ISA does not

make special provision for minors any conflicts between the Convention rights and the Acts

are yet to be judicially tested. 212 SUHAKAM’s Review of the Internal Security Act (April 2003) is available at <http://www.suhakam.org.my>. 213 Examples were given of individuals arrested and detained on grounds that did not satisfy the criteria of being prejudicial to national security, for example, counterfeiting coins, falsifying documents and human trafficking, all of which could have been dealt with under the relevant laws creating the relevant criminal offences. Other examples of arbitrary detention included the arrest and detention of individuals for intelligence gathering purposes which were unconnected with national security issues. The report also noted that some individuals detained under s73 were found to have suffered cruel or degrading treatment, including slapping, forcible stripping, intimidation, night interrogations and deprival of awareness of place and the passage of time (see pp93-99) 214 Other relevant provisions are section 9(3)(a) which provides for an Inquiry Officer to receive or procure all evidence in relation to a person, “whether the same be admissible or not under any written law for the time being in force relating to evidence or criminal procedure”; section 15 which provides for the Minister to supervise, including limit the movement of, a person for up to five years; section 17 which provides for the punishment of whipping; and section 18 which creates a presumption of guilt in relation to a ‘registered’ person who is found in a public place if they are ‘unable satisfactorily to account for his presence at such place or time’.

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Safeguards Whilst Articles 5, 9, 10, and 13 in Part II of the Federal Constitution provide for fundamental

liberties covering liberty of the person, prohibition of banishment and freedom of movement,

freedom of speech and association and rights to property, Article 149 of the Constitution

provides for derogations from those rights in legislation enacted in response to threats to

public order or security.216 As long as the elements in article 149 are made out, and the

judgments in Mohd Ezam’s case217 remain undisturbed, such security legislation will be

deemed valid notwithstanding that it is inconsistent with the four Articles above that provide

for fundamental liberty.

Article 151 of the Constitution imposes an obligation on the authority acting under any law

for preventive detention to inform the person detained of the grounds of their detention and

the allegations of fact on which the order is based, (subject to the requirement not to disclose

facts whose disclosure would in its opinion be against the national interest) and further to

give the detainee an opportunity to make representations against the order as soon as possible

to an Advisory Board constituted under Article 151(2) whose views are not binding on the

Minister.

Counter-Terrorism Legislation – Further Developments

The Anti-Money Laundering Act 2001 was debated in Parliament in early 2001. It was

published in the Gazette on 5 July 2001. The date is significant in that it preceded the events 215 Article 40, CRC. 216 The circumstances in which these rights can be derogated from are if ‘action has been taken or threatened by any substantial body of persons, whether inside or outside the Federation’:

(a) to cause, or to cause a substantial number of citizens to fear, organised violence against persons or property; or

(b) to excite disaffection against the Yang di-Pertuan Agong or any Government in the Federation; or

(c) to promote feelings of ill-will and hostility between different races or other classes of the population likely to cause violence; or

(d) to procure the alteration, otherwise than by lawful means, of anything by law established; or (e) which is prejudicial to the maintenance or the functioning of any supply or service to the public

or any class of the public in the Federation or any part thereof; or (f) which is prejudicial to public order in, or the security of, the Federation or any part thereof;

and the specific law recites that it was adopted for the purpose of stopping or preventing that action. 217 Mohd Ezam Mohd Nor & Ors v Menteri Dalam Negeri & Anor [2003] 2 CLJ 459. The Federal Court had held that the right to consult counsel could be postponed at the discretion of Police so as not to interfere with

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of 11 September 2001. The Act came into force on 15 January 2002. The Act was originally

designed to monitor and control the accumulation and re-distribution of money which was

obtained from the kind of criminal activity categorized as “serious offences” listed in the

Second Schedule to the Act.218 This legislation also contains novel provisions providing for

the gathering and exchanging of financial intelligence with foreign states, reporting

obligations, overriding the secrecy obligations imposed by other laws, and extending powers

of search and seizure and forfeiture which it confers upon the enforcement authorities.

The terms “terrorist” and “terrorism” appear in the Penal Code Amendment Act 2003 and the

Anti-Money Laundering Act (Amendment) 2003, both of which received the Royal Assent

on 17 December 2003 and were published in the Gazette on 25 December 2003. Neither of

these Acts have yet come into force.

The proposed amendments provided by the Penal Code Amendment Act 2003 are as

follows:-

(a) A new Chapter VI has been provided headed “Offences Relating to Terrorism.”

(b) A “terrorist” is defined as “any person who: a. commits or attempts to commit any terrorist act; or b. participates in or facilitates the commission of any terrorist act, and includes a specified entity

under section 66B or 66C of the Anti-Money Laundering Act 2001; (c) A “terrorist act” for the purposes of this Chapter is defined as an act or threat of

action within or beyond Malaysia to commit any one of 10 proscribed actions

which range from causing serious bodily injury to the use of explosives or toxic

chemical or biological material or disruption of communications infrastructure or

essential emergency services and acts prejudicial to national security or public

safety and also offences under the Aviation Offences Act 1984: Where the act or threat is intended or may be reasonably regarded as being intended to (aa) intimidate the public or a section of the public; or (bb) influence or compel the Government of Malaysia or the Government of any State in Malaysia or any other government or any international organization to do or to refrain from doing any act.

their investigation. On appeal the High Court rejected the argument that the right to a defence was thereby rendered illusory. 218 The offences specified ranged from corruption, certain corporate offences under the Companies Act, the Futures Industry Act, and the Securities Industry Act to infringement of copyright under the Copyright Act. Even more significantly from the terrorism perspective the designated offences covered offences under the Corrosive and Explosive Substances Act, the Kidnapping Act and all the offences against the State or the person and/or property listed under the Penal Code.

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(d) All the peripheral activities like recruiting, training terrorists, and providing direct

or indirect material support, to terrorists or in the commission of terrorist acts are

provided for in other sections under Chapter VIA including hostage-taking.219

The proposed Anti-Money Laundering Act amendments provide a new Chapter VIA:

Suppression of Terrorism, Financing Offences and Freezing, Seizure and Forfeiture of

Terrorist Property. The sections contained in Chapter VIA have extended criminal liability

extra-territorially to citizens and Malaysian body-corporates committing these offences

abroad.220

The Advisory Council of Jurists observes and recommends:

1. The ratification by Malaysia of most of the major international terrorism conventions

makes it timely for a review of the definition of the terms ‘terrorism’ and ‘terrorist’ in

domestic legislation and a review of the legal and practical effect of that legislation. A

clear distinction should be made between legislation to combat national and international

terrorism and legislation for less heinous domestic offences against the State, person or

property.

2. The definition of ‘terrorist’ in the Penal Code Amendment Act 2003 is considerably

wider than the definition contained within the Internal Security Act which is itself very

wide. Care must be taken that it is not used to restrict freedom of expression and

association.. Persons who have merely voiced dissent without advocating the overthrow

of the established order by violent means should not come within the definition of

terrorist.

219 Some other noteworthy features are the extra-territorial extension of the application of the Amendment Act to persons outside Malaysia who commit offences under Chapter VI and VIA outside the country, the extension of liability from persons to legal personae and other similar entities and groups, the death or the life sentence for many of the new offences created and the increase of life sentence from 20 to 30 years. The defence of duress under Section 94 of the Penal Code will not be available to persons who commit terrorist offences under the reasonable apprehension that instant death would be the consequence if they acted otherwise. 220 Section 66C of the Anti-Money Laundering Amendment Act also provides a new mechanism for implementing Malaysia’s obligations under the UN Charter in that it now provides that:

Where the Security Council of the United Nations decides in pursuance of Article 41 of the Charter of the United Nations, on the measures to be employed to give effect to any of its decisions and calls upon the Government to apply those measures, the Minister of Home Affairs may, by order published in the Gazette, make such provisions as may appear to him to be necessary or expedient to enable those measures to be effectively applied.

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3. The circumstances in which derogations to fundamental rights are permitted by Article

149 of the Constitution extend well beyond a situation of public emergency which

threatens the life of the nation as required by Article 4 of the ICCPR. In any event Article

149 should be strictly complied with and not interpreted widely so as to render the

Constitutional rights nugatory.

4. The provisions of the Prevention of Crime Act which provide for the receipt or

procurement of all evidence in relation to a person, whether admissible or not, and which

create a presumption of guilt in relation to specified persons contravene the entitlement to

a fair trial in Article 14 of the ICCPR. The presumption of innocence is additionally a

customary norm of international law which is binding on Malaysia notwithstanding that it

is not a party to the ICCPR.

5. Under Article 151 of the Constitution an arresting officer who “has reason to believe

there are grounds” to justify detention should be required to communicate the full

particulars of this belief at the time of arrest and in writing as soon as possible thereafter.

Justification of a detention only after the detention has commenced makes the initial

validity of the arrest suspect.

6. The provisions of the Internal Security Act extending the period of police investigation

for 60 days, denying the detainee the right to be released on bail and permitting a

Ministerial order for detention at any time after arrest without any possibility of judicial

review and merely on suspicion that a person may commit an offence, significantly

contravene the relevant provisions of Article 9(2), (3), (4), and Article 14 of the ICCPR

and customary international law to which all States are bound. They are also contrary to


7. The close monitoring of visits to detainees under the ISA contravenes Principle 5 of the

Basic Principles on Lawyers, and Principle 18 of the Body of Principles on Detention.

8. The powers of the Advisory Body constituted under Article 151 of the Federal

Constitution should be extended to give detainees an opportunity to be represented by

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counsel with a right to challenge the grounds advanced against them. The findings of the

Advisory Body should be made binding on the Minister.

Mongolia

Mongolia is a party to the ICCPR,221 First Optional Protocol,222 CAT,223 CRC224 and

CERD.225 Mongolia is not a party to the Refugees Convention but in the second Counter-

Terrorism Report, Mongolia stated that at the time of writing (October 2002) it was

considering the issue of accession to the Convention.226

Mongolia has ratified the following Conventions on Terrorism:

• Montreal Convention;


• Protocol to the Montreal Convention; and


Article 10 of the Constitution of Mongolia 1992 in relation to treaties states:

2) Mongolia adheres to the universally recognized norms and principles of international law and pursues a peaceful foreign policy.

3) Mongolia fulfils in good faith its obligations under international treaties to which it is a Party. 4) The international treaties to which Mongolia is a Party become effective as domestic legislation

upon the entry into force of the laws on their ratification or accession. 5) Mongolia may not abide by any international treaty or other instruments incompatible with its

Constitution.

The Constitution also provides explicitly for a number of rights and freedoms and procedural

safeguards:

221 Mongolia ratified the ICCPR on 18 November 1974. 222 Mongolia acceded to the First Optional Protocol on 16 July 1991. 223 Mongolia acceded to CAT on 24 January 2002. 224 Mongolia ratified the CRC on 6 July 1990. 225 Mongolia ratified CERD on 6 August 1969. 226 Counter-Terrorism Committee Report - Mongolia, Security Council, S/2002/1152, 15 October 2002, p.6.

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• Right to life;227

• Freedom of association;228

• Right to personal security and safety;229

• Freedom of thought, opinion, expression, speech, press, and peaceful assembly.230

Although, in accordance with the Constitution of Mongolia, all treaties to which Mongolia is

a party automatically become domestic law, Mongolia has amended its Criminal Code over

time to incorporate reference to terrorist activities.231

The Criminal Procedure Code has provisions relating to detention and search and seizure.

The Advisory Council of Jurists observes and recommends:

1. National security concerns need to be balanced with the human rights guarantees in

Mongolia’s constitution and international treaties to which Mongolia is a party, as well as

customary rules of international law.

2. Care must be taken that provisions in the Criminal Code incorporating reference to

terrorist activities are not used to stifle legitimate political dissent and other fundamental

freedoms or to target vulnerable groups.

3. The 14 day detention period under the Criminal Procedure Code for a suspect is in


Principles on Detention. The application of this same detention period to minors

additionally contravenes the principles of the CRC and the Beijing Rules.

227 Article 16(1), Constitution of Mongolia 1992. 228 Article 16(10), Constitution of Mongolia 1992. 229 Article 16(13), Constitution of Mongolia 1992. 230 Article 16(16), Constitution of Mongolia 1992. 231 The Criminal Code 2002 contains provisions relating to serious bodily harm to and killing of the President and Members of Parliament, Coup d’etat, sabotage, intended damage to national integrity, kidnapping, terrorist acts, causing public disorder, organised crime, illicit arms trafficking, ethnic cleansing and training terrorists.

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4. Search powers and detention under the Criminal Procedure Code should not be conducted

on persons under the age of 18 in accordance with the ‘best interests of the child’

principle expressed in Article 3 of the CRC.

Nepal

Nepal is a party to the ICCPR,232, First Optional Protocol,233 Second Optional Protocol,234

CAT,235 CRC236 and CERD.237 Nepal is not a party to the Refugees Convention.

Nepal has not ratified the following relevant Conventions on Terrorism:

• Financing of Terrorism Convention;


• Protocol to the Montreal Convention;


• Protocol to the Marine Navigation Convention; and


Nepal has signed, but has not ratified, the Terrorist Bombings Convention. Nepal is a party

to SAARC.

The Constitution of Nepal 1990 provides for a number of rights and freedoms and procedural

safeguards. Some constitutional provisions can be derogated from in a state of emergency.

Relevant laws are:

• National Civil Code (Muluki Ain);

• Public Security Act 2046 (1989);

• Some Public (Crime and Punishment Act) 2027 (1970); 232 Nepal ratified the ICCPR on 13 May 1991. 233 Nepal acceded to the First Optional Protocol on 14 August 1991. 234 Nepal acceded to the Second Optional Protocol on 4 June 1998. 235 Nepal ratified CAT on 13 May 1991. 236 Nepal ratified the CRC on 14 September 1990. 237 Nepal acceded to CERD on 30 January 1971.

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• Local Administration Act 2028 (1971);

• Immigration Act 2049 (1992);

• Explosive Substances Act 2018 (1961);

• Spy Act 2018 (1961); and

• Arms and Ammunition Act 2019 (1962).

The Terrorism and Disruptive Activities Control and Punishment Ordinance 2058 (2001)

identifies the following activities as terrorist activities:

• Any act or plan of using any kinds of arms, grenades or explosives, or any other

equipment or goods with the objective of affecting or hurting sovereignty or the security

and law and order of the Kingdom of Nepal or any part thereof or the property of the

Nepalese diplomatic missions abroad thereby causing damage to property at any place or

any act causing loss of life or dismemberment or injury or setting fire or hurting

physically and mentally, or any act of poisoning goods of daily consumption causing loss

of life or injury, or any other aforesaid acts thereby causing panic among the people in

motion or assembled;

• Acts of intimidation or terrorising individuals at any place or in any vehicle or abducting

them or creating terror among them by threatening to abduct them from vehicles and

places or abduction of people travelling on such vehicles as well as activities like taking

the life of others, causing physical mutilation, injury and harm or causing other types of

damage by using substances mentioned in the relevant section in that connection or by

threatening to use such substances or any other substances other than those mentioned in

that section or threatening to use them or, acts like the production, distribution,

accumulation, peddling, import and export, marketing or possession or installation of any

kind of arms and ammunition or bombs or explosive substances or poisonous substances

or any assistance in this connection;

• Acts of gathering people or giving training for this purpose; (Maximum penalty of life

imprisonment)

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• Any other acts aimed at creating and spreading fear and terror in public life; (Maximum

penalty of life imprisonment)

• Acts such as extortion of cash or kind or looting of property for this purpose, forcibly

raising cash or kind or looting property in pursuit of the said purpose; (Maximum penalty

of life imprisonment)

• Any attempt or conspiracy to engage in terrorist or disruptive activity, or to encourage of

force anyone to take up such activity, gathering more than one individual for such

purpose, constituting any group to the same end, or assigning anyone to such activity or

participating in such activity with or without pay or engaging in publicity for such

activity, causing obstruction to government communications system, or giving refuge to

any individual engaged in terrorist or disruptive activity, or hiding any person doing any

of these things. (Maximum penalty of life imprisonment)238

The Ordinance provides that:

• Anyone indulging in crime in Nepal while residing abroad will also be subject to

punishment.

• The government can declare an area ‘terrorist affected’ or individuals as ‘terrorist’.

• House arrest can be used to prevent any terrorist and disruptive act.

• Cases will be heard in a court constituted or designated by His Majesty’s Government;

• Arrangements will be made for reasonable expenses for treatment and compensation in

case of the maiming or death of security personnel or police assigned to control or

investigate terrorist and disruptive activities.

• Cases instituted under this ordinance will not be subject to any statute of limitations.

• Individuals arresting or helping in the arrest of any terrorist will be suitably awarded.239

238 Counter-Terrorism Committee Report - Nepal, Security Council, S/2001/1326, 18 January 2002, p.3. 239 Counter-Terrorism Committee Report - Nepal, Security Council, S/2001/1326, 18 January 2002, p.4.

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1. While national security concerns are important to Nepal, they need to be balanced with

the human rights guarantees contained in the Constitution of Nepal, and international

treaties to which Nepal is a party, as well as the customary rules of international law


2. The Terrorism Ordinance defines terrorist activities widely. Care must be taken that it is

not used to restrict freedom of opinion, expression and peaceful assembly or to target

vulnerable groups.

3. The legal ability to derogate from the rights contained in the Constitution of Nepal should

be interpreted to give the fullest effect possible to the human rights guaranteed in the

Constitution and in light of the limits on derogation imposed by the ICCPR.

4. The constitutional requirement that a detainee be informed ‘as soon as may be’ of the

grounds of such arrest should be interpreted in light of the requirements set out in




New Zealand

Of the human rights instruments most relevant to this reference, New Zealand is a party to the

ICCPR,240 First Optional Protocol,241 Second Optional Protocol,242 CAT,243 CRC,244 CERD245

and the Refugee Convention.246. New Zealand does not have a written constitution but the

New Zealand Bill of Rights Act 1991 (BORA) provides for a number of rights and freedoms

240 New Zealand ratified the ICCPR on 27 December 1978. 241 New Zealand acceded to the First Optional Protocol on 26 August 1989. 242 New Zealand ratified the Second Optional Protocol on 11 July 1991. 243 New Zealand ratified the CAT on 9 December 1989. 244 New Zealand ratified the CRC on 6 April 1993. 245 New Zealand ratified the CERD on 22 November 1972. 246 New Zealand acceded to the Refugees Convention on 30 June 1960 and to the Refugees Protocol on 6 August 1973.

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and procedural safeguards. BORA was enacted to affirm New Zealand’s commitment to the

ICCPR, and includes most of the rights guaranteed in that Covenant.

Of the Terrorism Conventions, New Zealand is now a party to all but the Nuclear Materials

Convention. New Zealand has stated that it will accede to that Convention and its

requirements have already been introduced into domestic law.

After the September 11 attacks, two significant pieces of counter-terrorism legislation were

enacted – the Terrorism Suppression Act 2003 and the omnibus Counter Terrorism Bill 2003,

the latter splitting into a number of Acts amending other pieces of legislation. Prior to this,

the International Terrorism (Emergency Powers) Act 1987 was the primary piece of anti-

terrorist legislation. This remains on the statute books. There are also provisions of relevance

in the Immigration Act.

The Terrorism Suppression Act 2002 and Counter-Terrorism Bill 2003

The Terrorism Suppression Act had its genesis in the Terrorism (Bombings and Financing)

Bill, which was introduced in April 2001 prior to the September 11 attacks. It was intended to

implement the domestic law requirements of the Terrorist Bombings Convention and the

Financing of Terrorism Convention, was non-controversial and had not been the subject of

any public submissions during the parliamentary process. However, after the events of

September 11, the Bill was reviewed and strengthened.

The result was the Terrorism Suppression Act 2002. The Act prohibits certain listed terrorist

activities (including terrorist bombings and the financing of terrorism), requires compulsory

reporting of the existence of property belonging to terrorist organisations and expands the

extraterritorial jurisdiction of New Zealand courts in terrorist matters. It further provides for

the seizure of property the Prime Minister believes on reasonable grounds to be owned or

controlled by a terrorist entity. It is also a crime to participate in, or recruit for a terrorist

group. Mere membership of a terrorist entity, however, is not an offence.

The Prime Minister has powers to make interim and final designations of bodies as terrorist

(or associated) entities if he or she has good cause to suspect that an entity has knowingly

carried out, or has knowingly participated in, one or more terrorist acts. An act is a “terrorist

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act” if it is intended to cause, in one or more countries, any of a number of prohibited

outcomes (including death or serious bodily injury, serious risk to health and major damage

to property of great value and importance). In addition, the act must be carried out for the

purpose of advancing an ideological, political or religious cause with the intention of

inducing terror in a civilian population or unduly to compel or force a government or

international organisation to do or abstain from doing any act. However, a proviso to this

definition states that the fact that a person engages in any protest, advocacy or dissent or

engages in any strike, lockout or other industrial actions is not, by itself, a sufficient basis for

inferring that a person is carrying out an act for one of the specified purposes or intends to

cause a specified outcome.

We note that the Terrorism Suppression Act requires that a select committee247 investigate

the operation of the anti-terrorism provisions as soon as practicable after 1 December 2004

and consider whether they should be retained or repealed, or if any amendments are

necessary.

The Counter Terrorism Bill, as originally introduced, would have remained as a stand alone

Act focussed on terrorism. However, following submissions during the parliamentary

process, the provisions were instead incorporated into the Terrorism Suppression Act and

existing criminal law statutes.

A number of additional terrorist offences were created, including harboring or concealing

terrorists, use and movement of unmarked plastic explosives, use (or threatened use),

movement or theft of nuclear material and the importation or acquisition of radioactive

material. Offences of environmental terrorism relating to animals or crops and contamination

of food, crops, water or other products were also created. In addition, an offence of

threatening to do acts of terrorism for the purpose of causing significant disruption was

created and terrorism was made an aggravating factor for sentencing purposes.

Amendments were made allowing interception warrants to be issued by a High Court Judge if

there are reasonable grounds for suspecting a terrorist offence has, is, or may be committed.

247 Select Committees are parliamentary committees composed of Members of Parliament from all political parties. Standing committees consider Bills in particular subject areas or an ad hoc committee may be established for some special purpose.

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A uniform scheme for regulating the use of tracking devices was also introduced. Previously,

the only legislative scheme with regard to tracking devices related to the investigation of drug

dealing offences. The new scheme is of general application and allows a warrant to be issued

by a Judge authorising the use of a tracking device where certain conditions are met,

including that it is in the public interest to issue a warrant, taking into account the seriousness

of the offence, the degree to which privacy or property rights are likely to be intruded upon,

the usefulness of the information likely to be obtained and whether it is reasonably

practicable for the information to be obtained in another way.

The anti-terrorism legislation enacted thus far has been the subject of significant public

comment. The Government initially planned to pass the Terrorism Suppression Act without

public submissions but, after a public outcry, changed this position. It is now generally

agreed that the final legislation dealt with most features of the proposed legislation which had

concerned civil rights groups. Changes made during the Parliamentary process included an

amendment to the definition of “terrorist act” in order to “raise the threshold and to focus the

definition more squarely on acts intended to induce terror”. A proviso to the terrorist

financing offences was added to provide that it is not an offence to “provide or collect funds

intending that they be used, or knowing that they are to be used, for the purpose of

advocating democratic government or the protection of human rights”. The requirements of

the offence of participating in a terrorist group were also tightened, so that it is also necessary

to participate for the purpose of enhancing the ability of a terrorist entity to participate in the

carrying out of terrorist acts. The process for designating terrorist entities was substantially

revised to include a knowledge component and an earlier expiration date. The susceptibility

of designation decisions to judicial review was also reinstated. The original Bill had ousted

the possibility of judicial review and instead contained a process of review by the Inspector-

General of Intelligence and Security.248

Some concerns have, however, been expressed at the general widening of the scope of the

general criminal law (and in particular search and seizure powers). As one commentator put

it, “the people who tend to be affected will be ordinary New Zealanders" and not terrorists. 248 The Inspector-General of Intelligence and Security is an independent office held by a retired High Court Judge. The Inspector-General is responsible for assisting each Minister responsible for an intelligence and security agency in the oversight and review of those agencies. In particular the Inspector-General is responsible for assisting the Minister to ensure that the activities of New Zealand intelligence and security agencies comply

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Concern has also been expressed about the use of classified information which is not

disclosed to an accused.

International Terrorism (Emergency Powers) Act 1987

The International Terrorism (Emergency Powers) Act was passed in 1987. It repealed a much

more wide ranging (and widely criticised) Act dealing with situations where “public safety or

public order” was or was likely to be imperiled. The International Terrorism (Emergency

Powers) Act relates only to international terrorist emergencies done “for the purpose of

furthering, outside New Zealand, any political aim”. It enables extensive emergency powers

(including the power to evacuate or restrict access to an area, powers or entry, requisitioning

powers and the power to intercept private communications) to be authorised. This

authorisation must, however, expire within seven days of being issued unless extended by a

resolution of Parliament.

This piece of legislation has been the subject of criticism since its enactment. Complaints

have been that the term “international terrorist emergency” was defined too broadly, could be

abused, and did not make express provision for legitimate protest activities. A second main

complaint is that the censorship provisions were too far reaching and amounted to an

unjustified encroachment on the right to freedom of expression. These criticisms led the New

Zealand Law Commission to recommend in its 1991 “Final Report on Emergencies” that the

Act be repealed.249

Immigration Amendment Act

The Immigration Act was amended in 1999, in the words of the preamble, to “improve the

effectiveness of the removal scheme for persons unlawfully in New Zealand”. Of relevance

here is an amendment which set up a special security regime “to protect sensitive security

information that is relevant to immigration matters”. The Act authorises the Director of the

Security Intelligence Service to issue a security risk certificate to the Minister of Immigration

if he or she has credible classified security information pertaining to a non-citizen about

whom immigration decisions need to be made. The Minister may then request an oral

with the law and that complaints relating to New Zealand intelligence and security agencies are independently investigated. 249 New Zealand Law Commission Final Report on Emergencies (NZLC Report 22, Wellington, 1991), 7.139.

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briefing from the Director, but may not record or divulge it to anyone. The Act provides that

the certificate is evidence of sufficient grounds for the conclusion certified, subject only to a

review by the Inspector General of Intelligence and Security. The Minister may decide to

remove or deport a person based on the security risk certificate.250

The Immigration Act security risk provisions had not been used until March 2003 when a

security risk certificate was issued against an Algerian, Mr Ahmed Zaoui, who had arrived in

New Zealand on 4 December 2002 claiming refugee status, a status recognised by the

Refugee Status Appeals Authority on 1 August 2003 (but without access to the classified

material). Mr Zaoui has applied for review of the security risk certificate by the Inspector

General. Court proceedings are continuing on the scope of that review and related matters. As

the case is before the courts it is inappropriate to comment further. The Prime Minister has,

however, said that, when the case is completed, the law would be examined to see if it had

worked as intended.251


1. If children under 17 are charged with the new terrorism offences, the provisions of the

Children, Young Persons and Their Families Act 1989 will apply. As such, all of the

protections (pre, post and at trial) for children and young persons within the criminal

justice system contained in the Act will apply (as they would to children charged with

other serious criminal offences). These safeguards are not available for children over 17

and New Zealand criminal law has been frequently criticised for this as being in

contravention of the “best interests of the child” principle expressed in Article 3 of the

CRC.252

250 In 2002 the Human Rights Committee expressed concern about the possible negative effects of the legislation on asylum seekers. The Committee referred to the absence of mechanisms to monitor terrorism suspects who have been expelled to their countries of origin and who might, despite assurances, face risk to their personal safety or lives. See Concluding observations of the Human Rights Committee: New Zealand 7 August 2002 CCPR/CO/75/NZL, para 11. 251 Helen Tunnah “Clark renews pledge on security law” The New Zealand Herald (Auckland, 21 January 2004). 252 Most recently by the UN Committee on the Rights of the Child in its concluding observations on New Zealand’s second periodic report CRC/C/15/Add.216, paras 4, 21, 49-50.

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2. Incorporating into the general law provisions that give the Police and other agencies

wider powers, which were introduced and designed to deal with terrorism, can have the

effect of eroding the rights of those who are not terrorists.

3. Consideration be given to implementing the Law Commission recommendation that there

be a repeal of the International Terrorism (Emergency Powers) Act 1987.

4. The review of the security risk certificate provisions in the Immigration Act 1999

heralded by the Prime Minister be conducted and that the human rights implications of

the legislation be examined in the course of that review.

Philippines

The Philippines is a party to the ICCPR,253 First Optional Protocol,254 CAT,255 CRC256

CERD257 and the Refugees Convention.258

The Philippines has not ratified the following Conventions on Terrorism:



• Plastic Explosives Conventions.

The Philippines is a signatory to but has not ratified:


• Financing of Terrorism Convention; and

• Protocol to the Montreal Convention.

253 The Philippines ratified the ICCPR on 22 October 1986. 254 The Philippines acceded to the First Optional Protocol on 22 November 1989. 255 The Philippines acceded to CAT on 17 June 1986. 256 The Philippines ratified the CRC on 21 August 1990. 257 The Philippines ratified CERD on 15 September 1967. 258 The Philippines acceded to the Refugees Convention on 22 July 1981.

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The Constitution of the Philippines 1987 contains a guarantee of various rights and freedoms

and provides for procedural safeguards. Relevant legislation is Section 1A of the

Memorandum Order No. 121, Revised Penal Code (Act No. 3815), Department Order No.

94, 4 March 1998 (relating to refugees), Rules on Criminal Procedure Republic Act 7438.

Section 1A of the Memorandum Order No. 121 defines terrorism as follows: The premeditated use or threatened use of violence or means of destruction perpetrated against innocent civilians or non-combatants, or against civilian and government properties, usually intended to influence an audience. Its purpose is to create a state of fear that will aid in extorting, coercing, intimidating, or causing individuals and groups to alter their behaviour. Its methods are hostage-taking, piracy or sabotage, assassination, threats, hoaxes, and indiscriminate bombings or shootings.

Other legislation addresses further offences relating to terrorism:

• Illegal/unlawful possession, manufacture, dealing in, acquisition or disposition of,

firearms, ammunition or explosives (PD 1866 as amended by RA 8294, RAC Sections

878, 883);

• Obstruction of apprehension and prosecution of criminal offenders (Presidential Decree

No. 1829);

• Regulation of activities and registration of foreign agents (Batas Pambansa Biland (No.

39);

• Immigration act of 1940; and

• Tariff and customs Code of 1978 (PD 1464 as amended).259


1. National security concerns, while important, need to be balanced with the human rights

guarantees in the Philippines Constitution and international treaties to which the

Philippines is a party, as well as customary rules of international law. Care must be taken

that counter-terrorism measures are not used to restrict fundamental rights or to target

vulnerable groups.


allows scope for public participation, rather than by Executive decree.

259 Counter-Terrorism Committee Report - Philippines, Security Council, S/2001/1290, 27 December 2001, p.8.

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3. Any detention in respect of counter-terrorism measures should not be arbitrary as the term





5. The constitutional right to counsel ‘preferably of his own choice’ should be applied to be

‘always’ of his own choice in accordance with the right to counsel of one’s choosing as

expressed in Article 14(2)(b) of the ICCPR and the Basic Principles on Lawyers.

6. An independent and fair judicial process is required of all courts in the Philippines in



Republic of Korea

The Republic of Korea (Korea) is a party to the ICCPR,260 First Optional Protocol,261

CAT,262 CRC263 CERD264 and the Refugees Convention.265

Korea is not a party to the Protocol to the Maritime Navigation Convention.

Korea is a signatory to the following Conventions on Terrorism:

• Terrorist Bombings Convention; and

• Financing of Terrorism Convention.

260 The Republic of Korea ratified the ICCPR on 10 April 1990. 261 The Republic of Korea acceded to the First Optional Protocol on 10 July 1990. 262 The Republic of Korea acceded to CAT on 9 January 1995. 263 The Republic of Korea ratified the CRC on 20 November 1991. 264 The Republic of Korea ratified CERD on 5 December 1978. 265 The Republic of Korea acceded to the Refugees Convention on 3 December 1992.

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The Constitution of Korea 1948 provides for various rights and freedoms and procedural

safeguards. Other relevant legislation is the Anti-Terrorism Bill and the Criminal Procedure

Act. Terrorism is defined in Article 2 of the Anti-Terrorism Bill as follows:

“Terrorism” is an act or a planned propaganda to publicize or pursue their beliefs by an individual or a group with a political, religious, ideological, or ethical objective which results in social anxiety, or affects national security or foreign relations.

a) Assaulting, abducting, imprisoning, arresting, murdering individuals outlined in the presidential decree such as VIPs, key figures if all fields, foreign diplomats and foreign VIPs.

b) Kidnapping or assassination of VIPs and their family, key figures from all fields, Foreign VIPs, foreign diplomats in Korea, Korean diplomats abroad, Korean students abroad, worker and travelers abroad.

c) Hi-jacking and bombing of airplanes, ships and vehicles. d) Mass destruction or causing a serious threat by using explosives, firearms or other weapons. e) Leaking, spraying toxic biochemical or radioactive materials, or threat by using such materials in

order to cause mass destruction of humans and animals.

The Advisory Council of Jurists observes that:

1. The definition of terrorism in the Anti-Terrorism Bill is drafted broadly. Care must be

taken that it is not used to restrict fundamental rights such as freedom of expression and

association or to target vulnerable groups.



3. The 10 day detention period under the Criminal Procedure Act for detained persons is

in contravention of the principle of Article 9 of the ICCPR and Principle 11 of the Body

of Principles on Detention.

Sri Lanka

Sri Lanka is a party to the ICCPR,266 First Optional Protocol,267 CAT,268 CRC269 and

CERD.270 Sri Lanka is a party to SAARC. Sri Lanka is not a party to the Refugees

266 Sri Lanka acceded to the ICCPR on 10 June 1980. 267 Sri Lanka acceded to the First Optional Protocol on 3 January 1998. 268 Sri Lanka acceded to CAT on 2 January 1994. 269 Sri Lanka ratified the CRC on 12 July 1991. 270 Sri Lanka acceded to CERD on 18 February 1982.

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Convention. Sri Lanka is a party to all of the Conventions relating to Terrorism except the

Nuclear Material Convention and the Protocol to the Maritime Navigation Convention.

The Sri Lankan Constitution provides for various rights and freedoms and procedural

safeguards. It also provides for derogations from those rights.

Relevant legislation is:

• Public Security Ordinance 1947

• Prevention of Terrorism Act No. 48 of 1979

The Public Security Ordinance of 1947 was passed to enable the President (under the 1978

Constitution) to make regulations, where there is a state of emergency, in the interests of

public security and the preservation of public order. Proclamations declaring a state of

emergency have been regularly made, and the regulations thereunder have expanded the

powers of arrest for emergency offences, enlarged the powers of detention in police custody

and restricted the right of judicial review. It also provided for preventive detention for an

undefined period and without judicial review. Arrest and detention have been successfully

challenged in fundamental rights applications before the Supreme Court. As a result relief

has been obtained by detainees and changes made to the wide powers given by the

regulations for arbitrary state action. The state of emergency which was periodically

extended over a long period of time lapsed in July 2001 when it was not submitted to

Parliament for approval. There are no emergency regulations currently in force.

The Prevention of Terrorism Act No. 48 of 1979 is a special law to deal with acts of terrorism

and affirms that “men and institutions remain free only when freedom is founded upon

respect for the Rule of Law and that grievances should be redressed by Constitutional

means”. Regulations have been made under the Act after the emergency regulations ceased to

be in operation but they refer only to proscribed organisations and are no way similar to

emergency regulations.

The Prevention of Terrorism Act No.48 of 1979 addresses offences relating to terrorism

ranging from murder, abduction and firearms offences to theft of government property and

interfering with public signs.

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Under the Prevention of Terrorism Act the police are given search and seizure and arrest

powers. An arrested person may be kept in custody for a maximum period of 72 hours and

must be produced before a Magistrate during that period. The Magistrate, on the application

of a Police Superintendent, must order the remand of such a person until the conclusion of

their trial.271 The Act also provides for detention orders at the discretion of the Minister for a

three- month period which may be extended for further three month periods up to a maximum

of 18 months.272

The Advisory Council of Jurists observes and recommends that: 1. The legal ability to derogate from the rights listed in section 15 of the Constitution,

although consistent with international law, should be exercised in very limited

circumstances so as to preserve the constitutional rights to the fullest extent possible.

2. The definition of ‘terrorism’ in the Prevention of Terrorism Act No. 48 of 1979 is

drafted broadly and may unintentionally include someone with an unlicensed firearm,

stealing stationery from a Government Department or engaging in minor vandalism. It

may therefore impose a severe punishment on a person who commits such an offence

as a ‘terrorist’ despite the minor offence they have committed.

3. The provisions of the Prevention of Terrorism Act denying the detainee the right to be

released on bail and permitting a Ministerial order for detention at any time after

arrest without any possibility of judicial review and merely on suspicion that a person

may commit an offence, significantly contravene the relevant provisions of Article

9(2), (3), (4), and Article 14 of the ICCPR and customary international law to which

all States are bound. They are also contrary to Principle 11 of the Body of Principles

on Detention.

271 Section 7, Prevention of Terrorism Act. 272 Section 8, Prevention of Terrorism Act.

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Thailand

Of the international human rights treaties of particular concern to this Reference to the

Advisory Council, Thailand is a party to the ICCPR,273CRC274and CERD.275 Thailand is not

a party to CAT, the First Optional Protocol to the ICCPR or the Refugee Convention.

Thailand has not ratified the following Conventions on Terrorism:








Thailand has signed but not ratified the Financing of Terrorism Convention.

The Constitution of Thailand 1997 provides for various rights and freedoms and procedural

safeguards. Even before amendments to the Criminal Code in 2003, the Criminal Code and

other national security related laws could be used against acts of terrorism.

Despite objections from members of civil society, the Thai Government passed a Decree to

amend the Criminal Code in August 2003 to broaden the scope of the law against terrorism.

Under the Decree, the following are listed as criminal offences:

• an act of violence or any act to cause death or serious injury to the life and freedom of an

individual;

• an act causing serious damage to a public transportation system, a telecommunications

system or an infrastructure facility of public use; and

273 Thailand ratified the ICCPR on 29 October 1996. 274 Thailand ratified the CRC on 27 March 1992. 275 Thailand ratified CERD on 27 February 2003.

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• an act causing damage to property belonging to a State or an individual, or the

environment, resulting or likely to result in major economic loss.

A person commits a terrorist act, as listed above, if the commission of the offence is intended

to threaten or coerce the Thai Government, any foreign Government, or an international

organisation, to do or abstain from doing any act which causes serious damage, or is intended

to raise unrest so as to intimidate a population. The maximum penalty is the death penalty.

The sections of the Criminal Code amended by this Decree are primarily section 7 and

section 135 of the Criminal Code.

Other crimes are also stipulated under the Decree; these include threats to commit a terrorist

act, collection of arms and training relating to terrorism, complicity, and membership of a

group designated by the UN Security Council Resolution as a terrorist group.

The definition of terrorism/terrorist act above follows closely the Draft Terrorism Convention

being discussed in the UN at the time of the adoption of the new Thai Law.

Other relevant legislation includes the Immigration Act 1979 (as amended). This is an

instrument to deport (suspected) terrorists for illegal entry in transnational situations. The

Anti-Money Laundering Act 2000 was also amended in 2003 by executive Decree to allow

seizure of assets concerning terrorism.

Interestingly, in 2003, the Thai parliament referred the two Decrees (concerning the Criminal

Code and the Anti-Money Laundering Act) to the Constitutional Court to test their

constitutionality. At the beginning of 2004, the Constitutional Court (10 votes in favour, 4

against) ruled that both Decrees were in conformity with the Thai Constitution.


1. While national security concerns are important to the country, they need to be balanced

with the human rights guarantees in the Thai Constitution and international treaties to

which Thailand is a party, as well as customary rules of international law.

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2. It is regrettable that the Criminal Code was amended by a government/executive initiated

Decree. The more transparent method of amending the Criminal Code is through

parliamentary legislation rather than government/executive-initiated Decree.

Parliamentary legislation provides more space for participation from the public in

influencing the scope and content of the law.

3. The application of the new law should uphold and not undermine the Rule of Law, in

particular access to the courts and guarantees for human rights.

4. The new law should be subject to an independent review process so as to ensure that it is

not applied in an unbalanced manner.

5. The new law should not be used to marginalise vulnerable groups such as those seeking

asylum/refuge, and special protections are needed for children.

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GLOSSARY OF TERMS AND ABBREVIATIONS

ACJ Advisory Council of Jurists

ASIO Australian Security and Intelligence Organisation

AU African Union

Basic Principles on Lawyers Basic Principles on the Role of Lawyers

Beijing Rules United Nations Standard Minimum Rules for the

Administration of Juvenile Justice

Body of Principles on Detention Body of Principles for the Protection of All Persons

under Any Form of Detention or Imprisonment

CAT Convention against Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment

CERD International Convention on the Elimination of All

Forms of Racial Discrimination

CRC Convention on the Rights of the Child

EU European Union

Draft Terrorism Convention Draft United Nations Comprehensive Convention on

International Terrorism

Forum Asia Pacific Forum of National Human Rights

Institutions

GA General Assembly of the United Nations

Geneva Convention Geneva Convention Relative to the Protection of

Civilian Persons in Time of War and Protocol

Additional to the Geneva Conventions of 12 August

1949, and relating to the Protection of Victims of

International Armed Conflicts (Protocol I) and

Protocol Additional to the Geneva Conventions of 12

August 1949, and relating to the Protection of Victims

of Non-International Armed Conflicts (Protocol II)

Hague Convention Convention for the Suppression of Unlawful Seizure

of Aircraft 1970

HRC Human Rights Committee

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IBA International Bar Association

ICCPR International Covenant on Civil and Political Rights

IHL International Humanitarian Law

ISA Internal Security Act (Malaysia)

Montreal Convention Convention for the Suppression of Unlawful Acts

Against the Safety of Civil Aviation

OAS Organisation of American States

OHCHR Office of the United Nations High Commissioner for

Human Rights

OP1 First Optional Protocol to the International Covenant

on Civil and Political Rights

OP2 Second Optional Protocol to the International

Covenant on Civil and Political Rights, aiming at the

abolition of the death penalty

OP-CAT Optional Protocol to the United Nations Convention

against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment

NHRI National Human Rights Institution

POTA Prevention of Terrorism Act (India)

Refugees Convention Convention Relating to the Status of Refugees

Refugees Protocol Protocol Relating to the Status of Refugees

SAARC South Asian Association for Regional Co-operation

Siracusa Principles United Nations, Economic and Social Council, UN

Sub-Commission on Prevention of Discrimination and

Protection of Minorities, Siracusa Principles on the

Limitation and Derogation of Provisions in the

International Covenant on Civil and Political Rights

Standard Minimum Rules Standard Minimum Rules for the Treatment of

Prisoners

Tokyo Convention Convention on Offences and Certain Other Acts

Committed On Board Aircraft

UDHR Universal Declaration of Human Rights

UN United Nations

UNHCR United Nations High Commissioner for Refugees

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United Nations Rules United Nations Rules for the Protection of Juveniles

Deprived of their Liberty

Vienna Convention Vienna Convention on Consular Relations

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SOURCES OF INTERNATIONAL LAW REFERRED TO IN THIS REPORT

This report is supported by an overview of the sources and methodology of international law

used by the Advisory Council in preparing its reports. This overview is set out in Appendix 1.

In this Report, as well as the country-specific legislation, the Advisory Council has referred

to:

International Instruments Relating to Terrorism

a) the 12 United Nations Conventions and Protocols that relate to specific types of

terrorist activities as listed in Appendix 2 (Terrorism Conventions). The status of

ratification of these Terrorism Conventions by Forum members is set out in Appendix

3.

b) the draft UN Comprehensive Convention on International Terrorism (Draft Terrorism

Convention) as recommended by the Ad Hoc Committee on Terrorism in its report of

February 2002.276

c) the South Asian Association for Regional Co-operation, Regional Convention on

Suppression of Terrorism, 4 November 1987 (SAARC).277 A list of other regional

instruments on terrorism is set out in Appendix 4.

The scope of human rights provisions in those materials and conventions is limited.

Therefore, in determining the human rights laws relevant to anti-terrorism measures, it is

necessary not only to have regard to the material set out above but also to international

human rights instruments including:278

276 Report of the Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996, General Assembly, Official Records, fifty-seventh session, Supplement No. 37 (A/57/37), 11 February 2002. This committee was set up to elaborate an international convention for the suppression of terrorist bombings and subsequently an international convention for the suppression of acts of nuclear terrorism and thereafter to address means of further developing a comprehensive legal framework of conventions dealing with international terrorism. Since its establishment the committee has negotiated several texts resulting in the adoption of the Terrorist Bombings Convention and the Financing of Terrorism Convention. It has also prepared a draft international convention for the suppression of nuclear terrorism and the draft general convention on terrorism referred to above. Broad agreement has been reached on most articles of the Draft Terrorism Convention although articles dealing with the definition of terrorism, its relation to liberation movements and the possible exemptions to the scope of the treaty, in particular the activities of armed forces, are yet to be cleared. As in the case of the draft nuclear terrorism treaty, the principal outstanding issue relates to its scope of application. 277 South Asian Association for Regional Co-operation, Regional Convention on Suppression of Terrorism, signed at Kathmandu on 4 November 1987, entered into force on 22 August 1988. The signatories are Bangladesh, Kingdom of Bhutan, India, Republic of Maldives, Nepal, Pakistan and Sri Lanka. (Forum States are in bold). 278 The Advisory Council notes the Office of the United Nations High Commissioner for Human Rights has compiled a Digest of Jurisprudence of the United Nations and Regional Organisations on the Protection of Human Rights while Countering Terrorism (HR/PUB/03/1, New York and Geneva, 2003).

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International Human Rights Treaties and Conventions

(a) International Covenant on Civil and Political Rights (ICCPR)279 the First

Optional Protocol to the International Covenant on Civil and Political Rights

(1OP)280 and the Second Optional Protocol to the International Covenant on

Civil and Political Rights, aiming at the abolition of the death penalty

(2OP)281

(b) Convention on the Rights of the Child (CRC)282 and the Optional Protocol to

the CRC on the involvement of children in armed conflicts283;

(c) Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment (CAT)284 and the Optional Protocol to the United

Nations Convention against Torture and other Cruel, Inhuman or Degrading

Treatment or Punishment (OP-CAT)285;

(d) Convention Against Racial Discrimination (CERD)286;

(e) Geneva Convention Relative to the Protection of Civilian Persons in Time of

War (Geneva Convention); Protocol Additional to the Geneva Conventions

of 12 August 1949, and relating to the Protection of Victims of International

Armed Conflicts (Protocol I) and Protocol Additional to the Geneva

Conventions of 12 August 1949, and relating to the Protection of Victims of

Non-International Armed Conflicts (Protocol II).287

279 (1966) 999 UNTS 171, entered into force 23 March 1976. 280 (1976) 999 UNTS 302. Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976. 281 Adopted and proclaimed by General Assembly resolution 44/128 of 15 December 1989. Entry into force 11 July 1999. 282 GA res 44/25, annex, 44 UN GAOR Supp (No 49) at 167, UN Doc A/44/49 (1989), entered into force 2 September 1990. 283 Adopted and opened for signature, ratification and accession by General Assembly resolution A/RES/54/263 of 25 May 2000, entered into force 12 February 2002. 284 GA res.39/46, annex, 39 UN GAOR Supp (No 51) at 197, UN Doc A/39/51 (1984), entered into force 26 June 1987. 285 GA res A/RES/57/199, adopted 18 December 2002. The OP-CAT was opened for signature and ratification on 4 February 2003 and requires 20 ratifications to come into force. As at 27 January 2004 there were 23 signatories and 3 ratifications. No Forum member countries have yet ratified the OP-CAT but New Zealand is a signatory. 286 660 UNTS 195, entered into force 4 January 1969. 287 The Geneva Convention is one of four adopted on 12 August 1949 by the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War. It is widely accepted as representing customary international law norms. It is therefore binding on all states and has the force of law within domestic jurisdictions. The two additional Protocols were adopted on 8 June 1977 by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed

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(f) Vienna Convention on Consular Relations (Vienna Convention)288

(g) Convention relating to the Status of Refugees (Refugees Convention) 289 and

the Protocol relating to the Status of Refugees (Refugees Protocol)290.

The status of ratifications of the main relevant human rights Conventions and Protocols by

Forum States is set out in Appendix 5.

Other International Human Rights Documents

(a) Basic Principles on the Role of Lawyers (Basic Principles on Lawyers)291,

(b) Body of Principles for the Protection of All Persons under Any Form of Detention or

Imprisonment (Body of Principles on Detention)292

(c) United Nations Rules for the Protection of Juveniles Deprived of their Liberty

(United Nations Rules)293;

(d) United Nations Standard Minimum Rules for the Administration of Juvenile Justice

(The Beijing Rules);294

(e) Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum

Rules);295

Conflicts. The Geneva Convention and Protocols form a major part of international humanitarian law (IHL) or the law of war (see http://www.icrc.org). 288 596 UNTS 262, 24 April 1963. 289 189 UNTS 150. Adopted on 28 July 1951 by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons convened under General Assembly resolution 429 (V) of 14 December 1950. Entry into force 22 April 1954. 290 606 UNTS 267. The Protocol was taken note of with approval by the Economic and Social Council in resolution 1186 (XLI) of 18 November 1966 and was taken note of by the General Assembly in resolution 2198 (XXI) of 16 December 1966. Entry into force 4 October 1967. The 1951 Refugees Convention was limited to protecting mainly European refugees in the aftermath of World War II, and the 1967 Protocol expanded the scope of the Convention to protect those affected by refugee situations that have arisen since the adoption of the Refugees Convention. 291 Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, August 27 to September 7, 1990, UN Doc A/CONF 144/28/Rev 1 at 118 (1990). The Preamble states that the Basic Principles on Lawyers ‘have been formulated to assist Member States in their task of promoting and ensuring the proper role of lawyers, should be respected and taken into account by Governments within the framework of their national legislation and practice and should be brought to the attention of lawyers as well as other persons, such as judges, prosecutors, members of the executive and the legislature, and the public in general. These principles shall also apply, as appropriate, to persons who exercise the functions of lawyers without having the formal status of lawyers’. 292 Adopted by General Assembly Resolution, 43/173, annex, 43 UN GAOR Supp (No 49) at 298, UN Doc. A/43/49 (1988). 293 Adopted by General Assembly Resolution 45/113, annex, 45 UN GAOR Supp (No.49A) at 205, UN Doc A/45/49 (1990). 294 Adopted by General Assembly Resolution 40/33, annex, 40 UN GAOR Supp (No 53) at 207, UN.Doc. A/40/53 (1985).

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(f) UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the

Detention of Asylum Seekers;296

(g) Executive Committee of the UNHCR Conclusions on Detention of Refugees and

Asylum Seekers;297

(h) General Comments of the Human Rights Committee;298

(i) Concluding Observations of the Human Rights Committee;299

(j) Universal Declaration of Human Rights (UDHR).300

These instruments are not binding as such but as a practical matter may provide evidence of

custom or State practice such that the rules or principles enumerated may evolve over time

295 Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977. Preliminary Observations contained in the Standard Minimum Rules state that the rules seek only to set out what is generally accepted as being good principle and practice in the treatment of prisoners and the management of institutions. Recognising that not all of the rules are capable of application in all places and at all times, their aim is said to ‘serve to stimulate a constant endeavour to overcome practical difficulties in the way of their application, in the knowledge that they represent, as a whole, the minimum conditions which are accepted as suitable by the United Nations’. The non-binding status of the Standard Minimum Rules may change upon the coming into force of the Draft Terrorism Convention, which, in Article 12, specifically requires States to guarantee to those taken into custody pursuant to the Convention, treatment that complies with the Standard Minimum Rules. 296 Office of the United Nations High Commissioner for Refugees, Geneva, February 1999. 297 Conclusion No 44 (XXXVII), 37th Session, 15 October 1986, A/AC.96/688. UNHCR's Executive Committee is made up of 64 countries that meet every autumn in Geneva to review and approve the agency's programmes and budgets and to advise on protection matters. It sets international standards with respect to the treatment of refugees and provides a forum for exchanges among governments, UNHCR and its numerous partner agencies. 298 General Comment 29: States of Emergency (Art 4) (2001), General Comment 8: Right to Liberty and Security of Persons (Art 9) (1982), General Comment 20, Article 7 (1992), General Comment 13, Article 14 (1984), General Comment 16, Article 17 (1988). The Human Rights Committee was established pursuant to Article 28 ICCPR to monitor the implementation of the ICCPR and the Protocols to the Covenant in the territory of States parties. It is composed of 18 independent experts who are persons of high moral character and recognised competence in the field of human rights. The Committee considers reports submitted by the States Parties to the ICCPR as required by Article 40 and, to assist States Parties in fulfilling reporting obligations, it formulates General Comments on particular articles of the ICCPR. The Committee also considers communications under the First Optional Protocol received from individuals who assert that their rights (as enumerated in the ICCPR) have been violated without domestic redress. 299 Concluding Observations: Columbia CCPR/C/79/Add.76 (1997); Concluding Observations: Peru CCPR/C/79Add.67 (1996); Concluding Observations: Slovakia CCPR/C/79/Add.79 (1997); Concluding Observations: Lebanon CCPR/C/79/Add.78 (1997); Concluding Observations: Egypt CCPR/CO/76/EGY (2002); Concluding Observations: France CCPR/C/79/Add.80 (1997); Concluding Observations: Spain CCPR/C/79/Add.61 (1996); Concluding observations: Sweden. 24/04/2002. CCPR/CO/74/SWE; Concluding observations: Canada. 07/04/99.CCPR/C/79/Add.105; Concluding Observations: Russian Federation CCPR/C/79 Add.54, (1995); Concluding Observations: Israel CCPR/C/79/Add.93, (1998); Concluding Observations: Israel CCPR/C/79/Add.93 (1998); Concluding Observations are adopted by the Human Rights Committee after examination of States’ reports on the measures States have adopted which give effect to the rights recognised in the Covenant and on the progress made in the enjoyment of those rights. The Concluding Observations summarise the Committee’s main concerns and make suggestions and recommendations to the State Party. During its examination of State reports the Human Rights Committee systematically raises questions regarding the compatibility of counter-terrorism measures with ICCPR obligations. 300 Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948.

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into principles of customary international law. In the case of the UDHR it is widely

considered that such a process has occurred.

United Nations Resolutions

The Advisory Council will also in the course of this report refer to a number of United

Nations General Assembly and Security Council Resolutions on terrorism.301 The Advisory

Council notes here that the precise legal status of General Assembly Resolutions is

unresolved. Article 10 of the UN Charter provides that the powers of the General Assembly

are recommendatory. It is considered, however, that General Assembly Resolutions may

contribute to the formation of custom. This will be the case where such resolutions are meant

to be declaratory of international law, are adopted with the support of all members, and are

observed by the practice of States. By contrast, Article 25 of the UN Charter makes

compliance with Security Council Resolutions mandatory.302

301 General Assembly Resolutions: A/RES/40/61(1985) ‘Measures to Prevent International Terrorism’; A/RES/49/60 (1995) ‘Measures to Eliminate International Terrorism; A/RES/52/133 (1998) ‘Human Rights and Terrorism; A/RES/54/164 (2000) ‘Human Rights and Terrorism’; A/RES/57/219 (2003) ‘Protection of human rights and fundamental freedoms while countering terrorism; A/RES/57/27 (2003) ‘Measures to Eliminate International Terrorism’. Security Council Resolutions S/RES 1373 (2001)), S/RES/1438 (2002), S/RES/1456 (2003). 302 See D J Harris Cases and Materials on International Law (5ed, Sweet and Maxwell, 1998) 58-64.

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Appendix 1

International Law: Sources and Methodology

Objectives

During the meeting of the Advisory Council of Jurists (ACJ) at the Seventh Annual Meeting

of the Asia Pacific Forum of National Human Rights Institutions (APF) held in New Delhi,

India in November 2002, it was agreed that the Report on Trafficking should be supported by

an appendix describing the sources and methodology of contemporary international law. The

terms of reference of the ACJ provide that:

The Council shall provide comment, opinion and advice on the interpretation and application of relevant international human rights standards, upon requests having regard to settled principles of international and the treaty obligations of the concerned States.

Accordingly, the Council is requested to base its reports on specific issues upon the settled

principles of international law and relevant treaties. The following discussion describes the

sources and methodology for determining international law in general, without reference to

specific legal issues.

International law defined

International law has been defined as “that body of law which is composed for its greater part

of the principles and rules of conduct which States feel themselves bound to observe, and

therefore do commonly observe in their relations with each other”303, including:

(a) the rules of law relating to the functioning of international institutions or

organisations; and

(b) certain rules of law relating to individuals and non-State entities insofar as they

become the concern of the international community.

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While there is much academic debate regarding the adequacy of this definition, it suffices to

acknowledge the primary role of sovereign and equal nation states in the formation of

international law and the contemporary roles of governmental and non-governmental

organisations as influences upon the creation and implementation of that law.

What are the sources of international law?

The question “what is the international rule?” on any issue can be difficult for an

international legal adviser to answer with complete confidence. Unlike domestic law, in

international law there are no formal statutes agreed upon by a national parliament nor is

there a clear hierarchy of courts to provide legal jurisprudence. Rather, an international

lawyer asked for an opinion must glean the law from numerous sources and evidences. As a

practical matter, international lawyers will turn to Article 38(1) of the Statute of the

International Court of Justice providing that, in deciding a matter in accordance with

international law, the Court shall apply:

(a) international conventions, whether general or particular establishing rules expressly recognised by the contesting States;

(b) international custom, as evidence of a general practice accepted by law; (c) the general principles of law recognised by civilised nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most

highly qualified publicists of the various nations, as a subsidiary means for the determination of rules of law.

In addition to the formal sources and evidences of an international rule, is the concept of pre-

emptory norms of international law (jus cogens) from which no derogation by treaty or

custom is allowed. Examples include the laws governing piracy, slave trading, torture

genocide.

Is there any special order of priority for these sources and evidences of law?

While there is no necessary order in which each of these sources of international law are to

apply, in practice, the order listed in Article 38 will be adopted by courts, tribunals, foreign 303 Hyde International Law (1947).

136

officers and international lawyers. If the parties to a dispute are also parties to relevant

bilateral, regional and multilateral treaties, the provisions of these agreements will have a

primary role in describing the legal obligations between them. Where there is no relevant

treaty, preference may be accorded to established principles of customary international law

or, where necessary, to “general principles of law recognised by civilised nations”. Judicial

and arbitral decisions and juristic opinion will also constitute evidence of developing

jurisprudence and of State practice for the purpose of determining customary law or the

existence of general principles.

The primary sources of international law – treaties, custom and general principles- can also

provide evidence of the law. A treaty can, for example, be evidence of the practices of States

for the purpose of proving a customary norm. A treaty may also, in time, come to reflect a

customary norm binding upon States that are not party to the relevant treaty. In these ways,

the sources and evidences of international law are integrated and interdependent.

Each of the primary sources of international law is set out below:

1. Treaties

With the exponential growth in “law–making” treaties over the last 30 –50 years, treaties are

now the primary source of international law. Law-making multilateral treaties of universal or

general application are to be distinguished from treaty “contracts” that simply define the

relations between two or a few States in an area of particular interest to regionally or

substantively. Law-making treaties have become close to international “legislation” and are a

response to the need for a clear description of international legal obligations, particularly

where the customary rule is unclear. There are now scores of fundamental human rights

treaties setting out norms of universal application. The Advisory Council of Jurists will

almost certainly examine these treaties as the primary source of the “settled” international

law for the purposes of reporting upon each annual reference.

The Vienna Convention on the Law of Treaties 1969 (“Vienna Convention”) sets out the

international law principles of treaty interpretation and application. While most States in the

international community are parties to the Vienna Convention, (over 80 Parties and 22

signatories) there may be some members of the APF, now or in the future that are not a party.

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However, many of the provisions of the Vienna Convention are applicable against all nations

whether a party to the treaty or not because they articulate rules which have gained the status

of customary law.

A matter that creates some confusion when considering the treaty obligations among States is

the difference between a State that has signed a treaty but not yet ratified it and a State that is

a party to it through ratification or accession. A State that has signed but not ratified a treaty

is under an obligation under Article 18 of the Vienna Convention as follows:

The State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:

(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification,

acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or

(b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty

and provided that such entry into force is not unduly delayed.

Thus a State that has signed a treaty may not act in a way that defeats the object and purpose

of a treaty. The importance of Article 18 has been underscored recently by the decision of

the United States to “withdraw” from the Kyoto Protocol on Climate Change where it had

signed but not yet ratified the agreement. This is a unique decision in international law,

demonstrating that the United States is not prepared to accept obligations that might

otherwise be applicable against it on the basis of signature alone.

Aside from obligations that clearly exist at customary international law, States will typically

deny that they have accepted any obligations unless and until they ratify the relevant treaty.

Some treaties, such as the Vienna Convention, set out existing rules of custom as a

codification of the law both for convenience and as a vehicle to progressively develop new

additional rules. It is also recognised that a treaty can generate a new rule of custom. The

International Court of Justice in the North Sea Continental Shelf cases (ICJ 1969, 3 at 42),

accepted that a treaty provision could describe a customary rule provided that:

• the purported rule is of a potentially norm-creating character

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• there has been a widespread and representative participation in the development of the

treaty rule, particularly where the States whose interests have been especially

affected, have agreed to that rule.

In summary, treaties play the dominant role in contemporary international law both in

formulating the obligations of the parties and in stimulating State practice that can crystallise

as custom.

2. Custom

Before the 20th century growth in multilateral treaties, international law consisted primarily of

customary rules. Under the traditional theory of custom, the international customary rules

apply to States on the basis of their express or implied consent. However, the consensual

foundation for customary law fails to explain why custom applies to all States, including

newly independent States, regardless of their culture or political system.

State practice and opinio juris

Customary rules have evolved through a long historical process through which State practice

and recognition of those practices within the international community have crystallized. The

underlying theory is that customary law is founded upon the implied consent or general

acceptance of the international community. A common usage can become a customary rule

where there has been a sufficient recurrence or repetition of an act and can be proved by

reference, for example, to diplomatic relations between States, the practice of international

organisations, national laws and the decisions of national courts and administrative practices.

In this sense, customary laws are inferred from repeated and consistent acts.

In addition to general State practice, international courts have required that the creation of

custom must satisfy a psychological aspect described as opinio juris and defined as the

“mutual conviction that the recurrence is the result of a compulsory rule”. The test of opinio

juris is circular in the sense that a State must have believed it was bound by the rule before

the rule could be binding upon it, raising the question of the time at which any usage can

became custom. Moreover, it is by no means clear how the subjective belief in an obligation

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can be demonstrated in the case of a State. The requirement that there be evidence of opinio

juris has led to much judicial and academic debate. It remains helpful, however, to use the

concept of opinio juris to distinguish custom from an act that is followed for reasons of

comity or courtesy. The court in West Rand Central Gold Mining Company v R [1905] 2 KB

391 at 407 held that opinio juris must be proved by satisfactory evidence that the alleged rule

“is of such a nature, and has been so widely and generally accepted, that it can hardly be

supposed that any civilised State would repudiate it”.

The International Court in the North Sea Continental Shelf Cases (ICJ 1969,3) argued that:

Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, ie the existence of a subjective element, is implicit in the very notion of the opinio juris. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation.

Difficulties in demonstrating the subjective element have been recognised by subsequent

courts and, in practice, the emphasis has moved to objective evidence of consistent State

practice. The International Court adopted a more useful modern approach to custom in the

Nicaragua case [1986] ICJ 14:

The court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule.

While it remains necessary to satisfy the twin elements of State practice and opinio juris

when assessing the status of a purported customary rule, the courts today are more concerned

to document State activities as the best evidence of their express or implied consent to a new

obligation.

What are ‘soft’ and ‘hard’ international law?

An important issue of customary law arises where an emerging rule does not yet satisfy the

requirements for the creation of custom but is regarded as likely to do so over time. Such an

emerging rule is described as lex ferenda. Recognition of evolving law is considered by legal

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commentators as “soft law”, or as an evolving norm that needs to be taken into account when

assessing the existence of a binding rule. Not only are there significant difficulties as a

matter of methodology in determining whether a customary rule exists, but also it is

necessary to take into account the dynamic nature of international law and the place of

emerging principles.

The significance of evolving norms creates a particular difficulty when advising on

international human rights. Most States are party to the fundamental international human

rights documents and treaties such as the Universal Declaration on Human Rights,

International Covenant on Civil and Political Rights and the Conventions on Genocide,

Torture, Sex Discrimination and Racial Discrimination. However, the more complex

provisions of multilateral human rights agreements over the last 20 years have not yet

attracted general adherence. For this reason, and while treaties will apply as between the

States parties, the principles they contain do not yet have the status of customary law. Such

treaty based evolving norms will not be binding on non-parties. Equally however, these

principles may well be evolving or crystallising into accepted principles of customary law.

Thus the task for the Council of Jurists will often be to advise in a highly fluid context in

which the technically ‘correct’ assessment of the asserted rule is that it does not yet have the

status of binding customary law. The consequence of such a ‘hard’ law approach is that

advice based upon it will fail to take into account evolving principles of probable future

force. A more robust and creative approach has been supported by the United Nations High

Commission for Human Rights. At the Seventh meeting of the APF, Mr Brian Burdekin of

the UNHCHR argued that an informed and creative judiciary could be willing to understand

the dynamic nature of international law and to take judicial notice of evolving principles.

A recent example has been provided by Australia’s High Court in the Minister for

Immigration and Ethnic Affairs v. Teoh ((1995) 183 CLR 273) (Teoh Case) in which the

majority of the Court found that there is a “legitimate expectation” that administrative

officials will inform themselves about treaty obligations accepted by Australia. The

importance of this decision lies in the fact that officials should take into account treaties to

which Australia is a party even where Parliament has yet to provide a legislative means of

applying those principles in domestic law. The Teoh case is illustrative of a universal

phenomenon under which States sign and ratify human rights treaties but fail to implement

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those treaties fully or appropriately in domestic law. The potential role of a creative and

informed judiciary in taking notice of such treaties in the absence of implementing legislation

remains controversial however.

With these complexities in mind, the Council of Jurists might appropriately state both the

clear “hard’ law insofar as it exists in treaties and custom and then explain the evolving

principles or ‘soft’ law that are thought likely to create or stimulate new laws.

Evidences of custom

As a practical matter, advice as to the status of a customary rule will require documentation

of State practice through the following kinds of evidence.

• Practices of international organs including the National Labour Organisation, United

Nations General Assembly and Security Council and specialised agencies. The legal

effect of a UN General Assembly resolution is highly controversial. For a resolution

to be evidence of custom, it will be necessary to show a strong adherence to the

asserted rule, including that of the most affected States (Texaco Case).

• Jurisprudence of international courts and tribunals including the International Court of

Justice, arbitral tribunals, ad hoc war crimes tribunals, International Criminal Court,

mixed claims commissions, WTO’s Appellate Body and the International Tribunal for

the Law of the Sea

• State legislation.

• Judicial decisions of State courts, official State documents such as military, naval and

air-force manuals.

• Acts or declarations by representatives of States, opinions of legal advisers.

• Bilateral and regional treaties.

• Decisions of international arbitral tribunals.

• Decisions of other international courts such as the International Tribunal for Law of

the Sea, the World Trade Organization’s dispute body.

• The findings and resolutions of mixed claims commissions.

• Juristic works as a subsidiary means for determining the rules of law.

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3. General principles of law

International courts and tribunals have traditionally considered general principles as a source

of international law, relying upon judicial reason and logic to ‘discover’ the normative rule.

Examples are to be found in the jurisprudence of the Permanent Court of International Justice

that recognised the obligation of States to make reparations on breach of the law in the

Chorzow Factory (Indemnity) case (1928) PCIJ, Series A, No 17, page 29. In the

Mavrommatis Palestine Concessions case, the Court adopted the general principle of

subrogation (1924) PCIJ, Series A, No 2, page 28 and in the Diversion of Water from the

Mews case, Judge Hudson considered that Anglo-American equitable doctrines could be

applied as general principles. A private law doctrine of trusts was, for example, employed to

develop the concept of mandates and trusteeship in the Advisory Opinion on the Status of

South West Africa case (ICJ 1950, 146-150).

General principles of international law might also include procedural and evidentiary issues

where they are of a general character and not confined to a particular legal system.

International arbitrators in disputes such as the Texaco Case have adopted general obligations

of international commercial law. Here the arbitrator recognised the concept of an

“internationalised contract”, applying general principles of contract law to substantiate his

legal conclusions.

4. Judicial decisions and the teachings of the most highly qualified publicists

A subsidiary means of determining the rules of law are to be found in the decisions of

international courts and tribunals and in the analysis of international law in the writings of

jurists. While international decisions have greater weight, the writings of jurists are

important in describing and analysing evolving norms and can be particularly important in

identifying principles of international human rights law. In reaching a view on issues referred

to it the ACJ is thus able to consult eminent jurists to clarify their understanding of the law.

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Appendix 2

United Nations Conventions and Protocols Relating to Terrorism

1. Convention on Offences and Certain Other Acts Committed On Board Aircraft,

14 September 1963 (Tokyo Convention);

2. Convention for the Suppression of Unlawful Seizure of Aircraft, 16 December 1970

(Hague Convention);

3. Convention for the Suppression of Unlawful Acts Against the Safety of Civil

Aviation, 23 September 1971 (Montreal Convention);

4. Convention on the Prevention and Punishment of Crimes Against Internationally

Protected Persons, 14 December 1973 (Internationally Protected Persons

Convention);

5. International Convention Against the Taking of Hostages, 17 December 1979

(Hostages Convention);

6. Convention on the Physical Protection of Nuclear Material, 3 March 1980 (Nuclear

Material Convention);

7. Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving

International Civil Aviation, supplementary to the Convention for the Suppression of

Unlawful Acts against the Safety of Civil Aviation, 24 February 1988 (Protocol to

the Montreal Convention);

8. Convention for the Suppression of Unlawful Acts Against the Safety of Maritime

Navigation, 10 March 1988 (Maritime Navigation Convention);

9. Convention on the Marking of Plastic Explosives for the Purpose of Detection,

1 March 1991 (Plastics Explosives Convention);

10. Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms

Located on the Continental Shelf, supplementary to the Convention for the

Suppression of Unlawful Acts against the Safety of Maritime Navigation, 10 March

1988 (Protocol to the Maritime Navigation Convention);

11. International Convention for the Suppression of Terrorist Bombings, 15 December

1997 (Terrorist Bombings Convention) and;

12. International Convention for the Suppression of the Financing of Terrorism,

9 December 1999 (Financing of Terrorism Convention).

Appendix 3

Status of Ratifications of Conventions on Terrorism Internationally

Protected Persons Convention (14 December 1973)

Hostages Convention

Terrorist Bombings Convention

Financing of Terrorism Convention

Tokyo Convention

Australia x X X X x

Fiji - - - - x

India x X X X x

Indonesia - - - S x

Malaysia - - - - x

Nepal X X S - x

New Zealand X X X X x

Philippines X X S S x

Republic of Korea X X S S x

Sri Lanka X X X X x

Thailand - - - S x

‘x’ indicates that the State has ratified the specified treaty. ‘s’ indicates that the State is a signatory to the specified treaty.

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146

Status of Ratifications of Conventions on Terrorism

Montreal Convention Nuclear Material

Convention Protocol to the Montreal Convention

Maritime Navigation Convention

Protocol to the Maritime Navigation Convention

Plastic Explosives Convention

Australia x x x x x -

Fiji x - x - - -

India x x x x x x

Indonesia x x s - - -

Malaysia x - s - - -

Mongolia x x x - - x

Nepal x - - - - -

New Zealand x - x x x -

Philippines x x s - - -

Republic of Korea x x x x - x

Sri Lanka x - x x - x

Thailand x - x - - -

‘x’ indicates that the State has ratified the specified treaty. ‘s’ indicates that the State is a signatory to the specified treaty.

Appendix 4

Other Regional Instruments on Terrorism

• League of Arab States, Arab Convention on the Suppression of Terrorism (Arab

Convention), signed at Cairo on 22 April 1998, entered into force on 7 May 1999;

• Organisation of the Islamic Conference, Convention on Combating International

Terrorism (Islamic Convention), adopted at Ouagadougou on 1 July 1999, not

yet in force;

• Council of Europe, European Convention on the Suppression of Terrorism

(European Convention), opened for signature at Strasbourg, France, on 27

January 1977, entered into force on 4 August 1978;

• Organisation of American States, Inter-American Convention Against Terrorism

(OAS Convention), adopted at Barbados on 6 March 2002, entered into force on

7 October 2003;

• African Union (formerly Organisation of African Unity), Convention on the

Prevention and Combating of Terrorism (AU Convention), adopted at Algiers on

14 July 1999, not yet in force;

• South Asian Association For Regional Co-operation, Regional Convention on

Suppression of Terrorism (SAARC Convention), adopted at Kathmandu on 4

November 1987; and

• Commonwealth of Independent States, Treaty on Co-operation among the States

Members of the Commonwealth of Independent States in Combating Terrorism

(CIS Convention), adopted at Minsk on 4 June 1999, entered into force in

accordance with its article 22.

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Appendix 5

Status of Ratifications of Principal International Human Rights Treaties

Relevant to Anti-Terrorism measures

Country ICCPR 1OP 2OP CAT CRC CERD Refugees

Convention Australia x x x x x x x Fiji - - - - x x x India x - - s x x Indonesia - - - x x x Malaysia - - - - x Mongolia x x - x x x Nepal x x x x x x New Zealand x x x x x x x Philippines x x - x x x x Republic of Korea

x x - x x x x

Sri Lanka x x - x x x Thailand x - - - x Notes: ICCPR: International Covenant on Civil and Political Rights. 1OP: First Optional Protocol to the International Covenant on Civil and Political Rights. 2OP: Second Optional Protocol to the International Covenant on Civil and Political Rights. CAT: Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. CRC: Convention on the Rights of the Child. CERD: International Convention on the Elimination of All Forms of Racial Discrimination. Refugees Convention: Convention Relating to the Status of Refugees 'x' indicates that the State has ratified or acceded to the specified treaty. ‘s’ indicates that the State is a signatory to the specified treaty.

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Appendix 6

Conventions on Terrorism deposited with the Secretary-General of

the United Nations

1. (Internationally Protected Persons Convention) Convention on the

Prevention and Punishment of Crimes Against Internationally Protected

Persons, Including Diplomatic Agents (14 December 1973)

The following acts are to be made a crime under domestic law by each State

Party:

Article 2(1):

(a) a murder, kidnapping or other attack upon the person or liberty of an internationally

protected person; (b) a violent attack upon the official premises, the private accommodation or the means

of transport of an internationally protected person likely to endanger his person or liberty;

(c) a threat to commit any such attack; (d) an attempt to commit any such attack; and (e) an act constituting participation as an accomplice in any such attack.

The jurisdiction of States Parties is invoked when the crime is committed in

the State, by a national of the State, against an internationally protected person

of the State or when the alleged perpetrator is present in the territory of the

State (Article 3).

2. (Hostages Convention) The International Convention Against the Taking of

Hostages (17 December 1979)

Article 1(1) of the Convention defines hostage taking as an act done by

someone who:

Seizes or detains and threatens to kill, to injure or to continue to detain another person (hereinafter referred to as the “hostage”) in order to compel a third party, namely, a State, an international intergovernmental organisation, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostages (“hostage-taking”) within the meaning of this Convention.

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3. (Terrorist Bombings Convention) The International Convention for the

Suppression of Terrorist Bombings (15 December 1997)

This Convention is the first of the Conventions on Terrorism lodged with the

General Assembly to refer directly to ‘terrorism’ although it is not defined in

the Convention.

Article 2(1) of this Convention makes it an offence if a person:

Unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility:

(a) with the intent to cause death or serious bodily injury; or (b) with the intent to cause extensive destruction of such a place, facility or

system, where such destruction results in or is likely to result in major economic loss.

4. (Financing of Terrorism Convention) The International Convention

for the Suppression of the Financing of Terrorism (9 December 1999)

Article 2(1) of the Convention makes it an offence if a person:

Directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out:

(a) An act which constitutes an offence within the scope of and as defined

in one of the treaties in the annex; or (b) Any other act 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, but its nature or context, is to intimidate a population, or to compel a government or an international organisation to do or to abstain from doing any act.

The treaties annexed to the Financing of Terrorism Convention are all of the

Conventions on Terrorism, with the exception of the Tokyo Convention and

the Plastic Explosives Convention.

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Appendix 7

Conventions on Terrorism deposited with other depositories

1. (Tokyo Convention) The Convention on Offences and Certain Other Acts

Committed On Board Aircraft (14 September 1963). (Deposited with the

Secretary-General of the International Civil Aviation Organisation)

Article 1 of the Convention stipulates that the Convention applies in respect

of:

(a) offences against penal law; (b) acts which, whether or not they are offences, may or do jeopardise the safety of the

aircraft or of persons or property therein or which jeopardise good order and discipline on board.

Article 2 limits the ambit of the penal law reference, excluding offences

against penal laws of a political nature or those based on racial or religious

discrimination.

2. (Hague Convention) Convention for the Suppression of Unlawful Seizure of

Aircraft (16 December 1970). (Deposited with the Governments of the

Russian Federation, the United Kingdom and the United States of America)

Article 1 of the Hague Convention makes it an offence for a person, who on

board an aircraft in flight:

(a) unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or

exercises control of, that aircraft, or attempts to perform any such act, or (b) is an accomplice of a person who performs or attempts to perform any such act.

3. (Montreal Convention) Convention for the Suppression of Unlawful Acts

Against the Safety of Civil Aviation (23 September 1971). (Deposited with the

Governments of the Russian Federation, the United Kingdom and the United

States of America)

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Article 1 of the Montreal Convention makes it an offence if a person

unlawfully and intentionally:

(a) performs an act of violence against a person on board an aircraft in flight if that act is

likely to endanger the safety of that aircraft; or (b) destroys an aircraft in service or causes damage to such an aircraft which renders it

incapable of flight or which is likely to endanger its safety in flight; or (c) places or causes to be placed on an aircraft in service, by any means whatsoever, a

device or substance which is likely to destroy that aircraft, or to cause damage to it which renders it incapable of flight, or to cause damage to it which is likely to endanger its safety in flight; or

(d) destroys or damages air navigations facilities or interferes with their operation, if any such act is likely to endanger the safety of aircraft in flight; or

(e) communicates information which he knows to be false, thereby endangering the safety of an aircraft in flight.

4. (Nuclear Material Convention) Convention on the Physical Protection of

Nuclear Material (3 March 1980). (Deposited with the Director-General of

the International Atomic Energy Agency)

The Nuclear Material Convention places certain obligations on States Party in

relation to the protection and transport of nuclear materials so defined. The

Convention also applies to individuals to the extent that Article 7(1) makes it

an offence to do:

(a) An act without lawful authority which constitutes the receipt, possession,

use, transfer, alteration, disposal or dispersal of nuclear material and which causes or is likely to cause death or serious injury to any person or substantial damage to property;

(b) A theft or robbery of nuclear material; (c) An embezzlement or fraudulent obtaining of nuclear material; (d) An act constituting a demand for nuclear material by threat or use of force

or by any other form of intimidation; (e) A threat:

i. To use nuclear material to cause death or serious injury to any person or substantial property damage, or

ii. To commit an offence described in sub-paragraph (b) in order to compel a natural or legal person, international organisation or State to do or to refrain from doing any act.

5. (Protocol to the Montreal Convention) Protocol for the Suppression of

Unlawful Acts of Violence at Airports Serving International Civil Aviation,

supplementary to the Convention for the Suppression of Unlawful Acts against

the Safety of Civil Aviation (24 February 1988). (Deposited with the

Governments of the Russian Federation, the United Kingdom and the United

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States of America and with the Secretary-General of the International Civil

Aviation Organisation)

Article 1 of the Protocol adds to the Safety of Civil Aviation Convention by

making it an offence if any person unlawfully and intentionally, using any

device, substance or weapon:

(a) performs an act of violence against a person at an airport serving international

civil aviation which causes or is likely to cause serious injury or death; or (b) destroys or seriously damages the facilities of an airport serving international

civil aviation or aircraft not in service located thereon or disrupts the services of the airport,

if such an act endangers or is likely to endanger safety at the airport.

6. (Maritime Navigation Convention) Convention for the Suppression of

Unlawful Acts Against the Safety of Maritime Navigation (10 March 1988).

(Deposited with the Secretary-General of the International Maritime

Organisation)

Article 3(1) of the Convention makes it an offence if any person unlawfully

and intentionally:

(a) seizes or exercises control over a ship by force or threat thereof or any other form of

intimidation; or (b) performs an act of violence against a person on board a ship if that act is likely to

endanger the same navigation of that ship; or (c) destroys a ship or causes damage to a ship or to its cargo which is likely to endanger

the safe navigation of that ship; or (d) places or causes to be placed on a ship, by any means whatsoever, a device or

substance which is likely to destroy that ship, or cause damage to that ship or its cargo which endangers or is likely to endanger the safe navigation of that ship; or

(e) destroys or seriously damages maritime navigational facilities or seriously interferes with their operation, if any such act is likely to endanger the safe navigation of a ship; or

(f) communicates information which he knows to be false, thereby endangering the safe navigation of a ship; or

(g) injures or kills any person, in connection with the commission or the attempted commission of any of the offences set forth in subparagraphs (a) to (f).

7. (Protocol to the Maritime Navigation Convention) Protocol for the

Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located

on the Continental Shelf (10 March 1988) supplementary to the Maritime

Navigation Convention. (Deposited with the Secretary-General of the

International Maritime Organisation)

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Article 2(1) of the Convention makes it an offence if a person unlawfully and

intentionally:

(a) seizes or exercises control over a fixed platform by force or threat thereof or any

other form of intimidation; or (b) performs an act of violence against a person on board a fixed platform if that act is

likely to endanger its safety; or (c) destroys a fixed platform or causes damage to it which is likely to endanger its safety;

or (d) places or causes to be placed on a fixed platform, by any means whatsoever, a device

or substance which is likely to destroy that fixed platform or likely to endanger its safety; or

(e) injures or kills any person in connection with the commission or the attempted commission of any of the offences set forth in subparagraphs (a) to (d).

8. (Plastic Explosives Convention) Convention on the Marking of Plastic

Explosives for the Purpose of Detection (1 March 1991). (Deposited with the

Secretary-General of the International Civil Aviation Organisation)

The aim of the Convention is to ensure that the explosives are not used for

purposes for which they were not created, particularly for the commission of

terrorist acts as referred to specifically in the Preamble to the Convention. This

Convention places obligations on States Party in relation to the manufacture,

possession and transfer of unmarked explosives. Unlike the other Conventions

on Terrorism, this Convention does not impose on States Party any obligation

to create criminal offences referable to the Convention.

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Appendix 8

EIGHTH ANNUAL MEETING OF THE ASIA PACIFIC FORUM OF

NATIONAL HUMAN RIGHTS INSTITUTIONS

16th – 18th February 2004, Kathmandu, Nepal

CONCLUDING STATEMENT

Introduction

1. The Asia Pacific Forum of National Human Rights Institutions (the Forum),

consisting of the National Human Rights Commissions of Nepal, Afghanistan,

Australia, Fiji, India, Indonesia, Malaysia, Mongolia, New Zealand, Palestine,

Philippines, Republic of Korea, Sri Lanka and Thailand, held this Eighth Annual

Meeting in Kathmandu, Nepal from 16th to 18th February 2004.

2. The Forum expressed its gratitude to the National Human Rights Commission of

Nepal for hosting the meeting, to the Office of the United Nations High

Commissioner for Human Rights (OHCHR) for its co-sponsorship and to all its

donors for their financial support. The Forum expressed its appreciation for the

efforts of the Commissioners and staff of the National Human Rights Commission

of Nepal and the secretariat of the Forum for their work in the organisation of the

meeting.

3. The Forum welcomed the participation of the Advisory Council of Jurists and the

representatives, as observers, from the ILO, UNDP and UNESCO, the

governments of Australia, India, Indonesia, Nepal, New Zealand, Republic of

Korea, Solomon Islands, Taiwan, Thailand, Timor-Leste, United Kingdom and the

United States of America, the institutions from Iran, Jordan and the Maldives, the

regional Network of National Human Rights Institutions of the Americas, and

thirty eight international, regional and national non-governmental organizations.

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4. The Rt. Hon. Surya Bahadur Thapa, Prime Minister of Nepal, Rt. Hon. Nayan

Bahadur Khatri, Chairman of the National Human Rights Commission of Nepal

and the Chairperson of the Asia Pacific Forum of National Human Rights

Institutions and Mr Matthew Kahane, United Nations Resident Coordinator

(Nepal), on behalf of Mr Bertrand Ramcharan, Acting High Commissioner for

Human Rights, addressed the inaugural session. In the opening statements the

distinguished speakers recognised the need to protect and promote human rights

and ensure the rule of law in combating terrorism.

Conclusions

The Forum, during its closed business session:

5. Noted the activity report of the Forum over the last twelve months and adopted the

Forum’s Business Plan for 2004 to 2006. Forum Councillors expressed their

appreciation for the work of the secretariat and requested the secretariat to report

back on the implementation of the Business Plan to the annual meetings of the

Forum.

6. Reaffirmed that the structure and responsibilities of national institutions should be

consistent with the Principles Relating to the Status of National Institutions

adopted by the United Nations General Assembly (Resolution 48/134) commonly

referred to as the ‘Paris Principles.’ On this basis it reaffirmed the full

membership of the New Zealand Human Rights Commission and admitted the

Afghanistan Independent Human Rights Commission and the Palestinian

Independent Commission for Citizens Rights as associate members of the Forum.

This increased the Forum’s overall membership to 14 institutions. The Forum

will assist the new associate members, where possible, to become fully compliant

with the Paris Principles.

7. Decided to formulate a new reference to the Advisory Council of Jurists on the

issue of the prevention of torture during detention and requested the secretariat to

prepare draft terms of reference for the consideration and approval of the Forum.

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The Forum also requested the secretariat to seek financial support to strengthen

the work of the Advisory Council of Jurists.

8. Considered the proposals of the National Consultative Commission of Human

Rights of France to amend the rules of procedure of the International Coordinating

Committee of National Human Rights Institutions and decided to reject the

proposed regulation regarding the activities of ‘regional groupings’ of national

human rights institutions. The Forum also elected the national human rights

institutions from Fiji, Nepal, Philippines and the Republic of Korea to be the four

regional representatives to the International Coordinating Committee of National

Institutions. The Fiji Human Rights Commission will serve on the International

Coordinating Committee accreditation sub-committee.

9. Welcomed the second meeting of Senior Executive Officers of Forum member

institutions and commended their efforts to assist the effective and efficient

functioning of national human rights institutions. The Forum also requested that

the secretariat continue to assist the Senior Executive Officers in the

implementation of their activities.

10. Considered the secretariat’s report of the Forum’s finances and administration and

adopted the Directors and Financial reports, and auditors report, for the period

ending 31 March 2003. Forum Councillors expressed their appreciation for the

financial contributions made to the Forum by its member institutions and the

Australian Agency for International Development, British Council, Brookings

Institution, Government of India, Government of the Republic of Korea,

MacArthur Foundation, National Endowment for Democracy, New Zealand

Agency for International Development, OHCHR, UNICEF and the US

Department of State.

11. Considered the need to adopt alternative mechanisms to ensure that the Forum’s

annual general meetings are held within statutory requirements and accepted the

kind offer of the Australian Human Rights and Equal Opportunity Commission to

develop a proposal for the consideration of Forum Councillors to amend the

Forum’s Constitution to address this issue.

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12. Considered, for the first time, the issue of Forum membership fees and agreed to

adopt a flat fee of $3000 USD per full member institution per annum and $1500

USD per candidate and associate member institution per annum with the

possibility that these fees could also be paid by the provision of services to the

Forum of an equivalent value ‘in kind’.

13. Unanimously elected the National Human Rights Commission of Nepal (as the

current host institution of the annual meeting) to the position of Chairperson of the

Forum. The National Human Rights Commission of India (as the host institution

for the last annual meeting) and the National Human Rights Commission of the

Republic of Korea (as the host institution for the next annual meeting) were also

elected unanimously to the two positions of Deputy Chairpersons.

The Forum, during its open plenary sessions:

14. Expressed appreciation to the OHCHR for its continuing commitment to

strengthen partnerships with the Forum across all relevant thematic and

geographical activities. In turn, the Forum requested that the national institutions

team of the OHCHR be strengthened.

15. Requested the support of the OHCHR and Member States for the implementation

of the activities contained in both its Business Plan and the UN framework for

regional human rights arrangements in the Asia Pacific. The Forum welcomed the

participation of the coordinator of the Asia Pacific geographic team and

recommended that this practice continue.

16. Appreciated the constructive contribution of non-governmental organisations to

the work of the Forum. The Forum thanked non-governmental organisations for

their substantive written submissions and their collective participation and

advocacy in the meeting through the Asia Pacific Human Rights Network. The

Forum reaffirmed the importance of undertaking joint practical collaborative

activities with non-governmental organisations for the protection and promotion

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of human rights and welcomed their continued participation in annual meetings of

the Forum.

17. Welcomed the reports of Forum members, relevant institutions and regional

governments to protect and promote human rights. The Forum stressed the need

for constructive and practical engagement with governments and thanked them for

their active participation and constructive contributions to the meeting. In

particular, the Forum congratulated the governments of the Maldives, Solomon

Islands and Timor-Leste for their decision to establish national human rights

institutions in full compliance with the Paris Principles and requested that the

secretariat provide assistance, within available resources, to assist in this process.

18. Reported on their implementation of the recommendations of the Advisory

Council of Jurists’ reports on the death penalty, child pornography on the internet

and trafficking. A number of Forum Councillors specifically cited the successful

implementation of the Advisory Council’s recommendations.

19. Called on governments of Forum member institutions to strengthen the

independence and institutional capacity of national institutions to enable them to

carry out their mandates more effectively. In particular, national institutions

should be provided with a wide and unrestricted mandate to conduct investigations

of human rights violations. Governments should also give serious consideration

to the determinations and recommendations of national human rights institutions

and ensure their effective implementation.

20. Welcomed progress to develop a new international convention on the rights of

people with disabilities, as advocated by national institutions at the workshop held

in New Delhi, India in 2003. Forum institutions agreed to establish a working

group to assist in the development of the proposed convention. The Forum

welcomed the offer of the OHCHR to continue to support the Forum in these

activities.

21. Considered the potential role of national human rights institutions under the

Optional Protocol to the Convention Against Torture and Other Forms of Cruel,

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Inhumane and Degrading Treatment. Forum member institutions recommend that

their governments sign and ratify both the Convention and its Optional Protocol.

22. Considered the issue of terrorism and the rule of law, including the views of

international experts and non-governmental organisations, and the interim report

of the Advisory Council of Jurists. The Forum warmly thanked the jurists of the

Advisory Council for their expertise and the comprehensive scope of their report.

Forum member institutions would carefully consider the final recommendations of

the Advisory Council and report back to the next annual meeting.

23. Was gravely concerned about the violations of human rights in Nepal and

appreciates the efforts of the National Human Rights Commission of Nepal to

promote the signing of the Human Rights Accord between the conflicting parties

with a view to promoting peace.

24. Gratefully accepted the kind offer of the National Human Rights Commission of

the Republic of Korea to host the Ninth Annual Meeting of the Forum and the

International Conference of national institutions in September 2004.

25. Gratefully accepted the kind offer of the National Human Rights Commission of

Mongolia to host the Tenth Annual Meeting in 2005.

26. Gratefully accepted the kind offer of the Fiji Human Rights Commission to host

the Eleventh Annual Meeting in 2006.

A report on the meeting will soon be available on the Forum website.

www.asiapacificforum.net

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http://www.asiapacificforum.net/

Appendix 9

Resolution of the Pre Forum NGO Consultation on the Rule of Law in

Combating Terrorism

Profoundly deploring the increasing number of innocent persons, including women

and children and the elderly, killed, massacred and maimed by terrorists in

indiscriminate and random acts of violence and terror, which cannot be justified under

any circumstances; (A/RES/54164, 24 February 2000).

Profoundly deploring also the large number of civilian killings, torture, involuntary or

enforced disappearances, custodial deaths and other human rights violations by law

enforcement personnel in the name of fighting terrorism;

Guided by the purposes and principles of the Charter of the United Nations, Universal

Declaration of Human Rights, International Covenant on Civil and Political Rights

and other international human rights and humanitarian law standards;

Bearing in mind the principles on due process of law embodied in the Universal

Declaration of Human Rights and the relevant provisions of the International

Covenant on Civil and Political Rights and the Optional Protocols thereto, the

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, the International Convention on the Elimination of All Forms of Racial

Discrimination, the Convention on the Rights of the Child, and the Convention on the

Elimination of All Forms of Discrimination against Women, and the Optional

Protocols thereto;

Bearing in mind also that the right to life in the most basic of human rights; (General

Assembly resolution A/RES/54/164, 24 February 2000);

Cognisant of Security Council Resolution 1373 requiring international co-operation to

combat threats to international peace and security caused by terrorist acts;

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Taking note of the measures undertaken by the States of the Asia Pacific region

pursuant to Security Council Resolution 1373 to combat terrorism, especially through

the adoption of anti-terrorist laws, ordinances and amendments to existing laws;

Reiterating that all States have an obligation to promote and protect all human rights

and fundamental freedoms and that every individual should strive to secure their

universal and effective recognition and observance; (General Assembly resolution

A/RES/54/164, 24 February 2000);

Reaffirming that all measures to counter terrorism must be in strict conformity with

the relevant provisions of international law including international human rights and

humanitarian law standards; (General Assembly resolution A/RES/54/164 of 24

February 2000);

Concerned about the increasing incorporation of the death penalty as a form of

punishment in anti-terrorism laws;

Concerned also about the use of special courts to the detriment of the due process of

law;

Deeply concerned by the increasing use of unlawful measures including sanctioning

of summary executions in anti-terrorism measures;

Also deeply concerned about the use of anti-terrorism measures as a ploy to suppress

peaceful dissent across the Asia Pacific region;

Also deeply concerned about the violation of the cardinal principles of natural justice

in the criminal justice system, freedom from torture or cruel, inhuman or degrading

treatment, the principles of presumption of innocence, precision and non-retroactivity

– under anti terrorism laws;

Recognising that successful anti-terrorism measures require addressing the root causes

of the problem – social, political, economic and cultural inequity;

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The Pre Forum NGO Consultation:

• Expresses its profound sympathy for victims of acts of terrorism;

• Affirms that the promotion and protection of human rights is central to an effective

strategy to counter terrorism, and to establish and maintain peace and security;

• Reaffirms the inalienability of certain human rights as provided under

international human rights and humanitarian law;

The Pre Forum NGO Consultation calls upon the Governments of the Asia

Pacific region to:

• Ensure respect for and active protection of the right to life, liberty and security

under all circumstances.

• Repeal all anti-terrorist and national security laws that are not in conformity with

international law and uphold due process and the rule of law.

• Repeal all laws/ordinances which provide impunity.

• Ratify the Rome Statute of the International Criminal Court.

• Ratify all human rights treaties and relevant Optional Protocols without any

reservation and withdraw reservations expressed thereto.

• Immediately inform the other States Parties to the International Covenant on Civil

and Political Rights through the Secretary General of the United Nations, of the

provisions from which it is derogated, of the reasons for the derogation and that a

further communication shall be made on the date on which such derogation is

terminated: (Article 4(3) of ICCPR).

The Pre Forum NGO Consultation urges the United Nations High Commissioner

for Human Rights to:

• Pay continued and adequate attention to the need to maintain balance between

human rights and security. In particular, to follow up on the proposals for “further

guidance” for the submission of reports pursuant to paragraph 6 of Security

Council resolution 1373 (2001) in his forthcoming report titled “Report of the

United Nations High Commissioner for Human Rights and Follow up to the

World Conference on Human Rights” under provisional agenda item 4 of the 60th

Session of the Commission on Human Rights;

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• Request the 60th Session of the Commission on Human Rights to call upon the

Security Council to include Human Rights Experts in the Counter Terrorism

Committee established pursuant to the Security Council Resolution 1373 (2001)

and urge the States to report on human rights protection in combating terrorism;

• Further request the mechanisms of the Commission on Human Rights and its

subsidiary bodies, including Special Rapporteurs, Special Representatives and

Working Groups, to give special attention to questions relating to the due process

of law in the administration of justice to combat terrorism;

The Pre Forum NGO Consultation urges the Eighth Session of the Asia Pacific

Forum of National Human Rights Institutions to:

• Adopt the recommendations made by the Advisory Council of Jurists in its report

on the Rule of Law in Combating Terrorism.

• Building upon the Advisory Council of Jurists’ Report, further address the

following issues:

o The dangers inherent in an overly broad definition of “terrorism” in counter

terrorist legislation.

o The increasing incorporation of the death penalty as a punishment for

terrorist offences.

o The legitimacy of the use of special courts to try individuals suspected of

terrorist acts.

o The employment of anti terrorism measures to suppress peaceful political

dissent in contravention of the right to freedom of expression and assembly.

o The safeguards relating to the right to fair trial, in particular the protection

of the right to silence and the presumption of innocence.

o The ratification of all international human rights instruments.

o The means by which National Human Rights Institutions may immediately

address the implementation of all of the above.

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• Instruct the Asia Pacific Forum Secretariat to raise necessary funds to facilitate the

work of the Advisory Council of Jurists.

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