34/30 Negative effects of terrorism on the enjoyment of all human rights and fundamental freedoms - Report of the United Nations High Commissioner for Human Rights

GE.16-23159(E)



Human Rights Council Thirty-fourth session

27 February-24 March 2017

Agenda items 2 and 3

Annual report of the United Nations High Commissioner

for Human Rights and reports of the Office of the

High Commissioner and the Secretary-General

Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

Negative effects of terrorism on the enjoyment of all human rights and fundamental freedoms

Report of the United Nations High Commissioner for Human Rights

Summary

The present report is submitted pursuant to Human Rights Council resolution 31/30,

in which the Council requested the United Nations High Commissioner for Human Rights

to prepare a report on the negative effects of terrorism on the enjoyment of all human rights

and fundamental freedoms, particularly the right to life, liberty and security of person,

while paying particular attention to best practices and major challenges in this regard.

United Nations A/HRC/34/30

I. Introduction

1. In its resolution 31/30, the Human Rights Council, inter alia, strongly condemned all

terrorist acts as criminal and unjustifiable, and expressed concern at their detrimental

effects on the enjoyment of human rights, including the right to life, liberty and security of

person, as stipulated in article 3 of the Universal Declaration of Human Rights. In the same

resolution, the Council reaffirmed that civil, political, economic, social and cultural rights

were universal, indivisible, interdependent and interrelated, as enshrined in the Universal

Declaration of Human Rights, the International Covenant on Civil and Political Rights and

the International Covenant on Economic, Social and Cultural Rights. The Council also

reaffirmed the primary responsibility of States in preventing and countering terrorism in all

its forms and manifestations in the territory under their jurisdiction, in full compliance with

their international law obligations. The Council urged States, while countering terrorism, to

respect and protect all human rights, bearing in mind that certain counter-terrorism

measures may have an impact on the enjoyment of those rights.

2. In resolution 31/30, the Council requested the United Nations High Commissioner

for Human Rights to submit to it, at its thirty-fourth session, a report on the negative effects

of terrorism on the enjoyment of all human rights and fundamental freedoms, particularly

the right to life, liberty and security of person, while paying particular attention to best

practices and major challenges in this regard.

3. For the present report, the Office of the United Nations High Commissioner for

Human Rights (OHCHR) sought inputs from Member States, through their Permanent

Missions in Geneva and New York; international and regional organizations; national

human rights institutions; and non-governmental organizations, through notes verbales sent

on 25 July 2016. Contributions were received from 15 Member States, 8 national human

rights institutions, 2 international and/or regional organizations and 15 non-governmental

organizations. A dedicated web page1 has been created in order to make the contributions

available for public consultation. The report was also informed by the work of relevant

United Nations treaty bodies and special procedure mandates, international and regional

human rights mechanisms and OHCHR, bearing in mind the specific reference to these

entities by the Council in paragraph 16 of resolution 31/30.

II. International human rights framework

4. International human rights law requires States to protect human rights with due

diligence, which entails the obligation to prevent and sanction harm, including deprivation

of life, caused not only by their own agents but also by acts of private persons or entities.2

Referring to the positive obligations of States parties to ensure rights under the International

Covenant on Civil and Political Rights, the Human Rights Committee specified that these

obligations “will only be fully discharged if individuals are protected by the State, not just

against violations of Covenant rights by its agents, but also against acts committed by

private persons or entities that would impair the enjoyment of Covenant rights in so far as

they are amenable to application between private persons or entities”.3 For example, the

1 www.ohchr.org/EN/Issues/RuleOfLaw/Pages/Terrorism.aspx.

2 See European Court of Human Rights, Osman v. the United Kingdom (87/1997/871/1083), judgment

of 28 October 1998, para. 116.

3 See Human Rights Committee, general comment No. 31 (2004) on the nature of the general legal

obligations imposed on States parties to the Covenant, para. 8.

right not to have one’s life taken arbitrarily implies “an obligation on the part of States

Parties to take reasonable steps to prevent situations that could result in the violation” of the

right to life.4 Accordingly, this right generates positive obligations to prevent killings by

private individuals and non-State actors in certain situations.

5. The Committee stated that “there may be circumstances in which a failure to ensure

Covenant rights as required by article 2 would give rise to violations by States parties of

those rights, as a result of States parties’ permitting or failing to take appropriate measures

or to exercise due diligence to prevent, punish, investigate or redress the harm caused by

such acts by private persons or entities”.5 Under international human rights law, States thus

have a due diligence obligation to protect individuals under their jurisdiction from acts of

terrorism, to take effective counter-terrorism measures and to investigate and prosecute

those responsible for carrying out such acts. The duty to protect life also implies that States

should take appropriate measures to address the general conditions in society that may

eventually give rise to direct threats to life or prevent individuals from enjoying the right to

life with dignity, such as high levels of criminal and gun violence.6

6. As emphasized in the Secretary-General’s Plan of Action to Prevent Violent

Extremism, countering terrorism and violent extremism requires a comprehensive approach

that goes beyond “law enforcement, military or security measures to address development,

good governance, human rights and humanitarian concerns”. 7 It includes addressing

conditions conducive to violent extremism and terrorism and the human rights and gender

dimensions of that issue. Respect for international human rights law contributes to ensuring

that efforts to prevent and counter violent extremism are effective and sustainable. In other

words, all legislation, policies and programmes to prevent and counter violent extremism

must be designed and implemented in a manner that complies with human rights to avoid

the vicious circle whereby measures taken would risk feeding the very phenomenon they

are aimed at preventing.8

7. As part of their obligations under international human rights law, States must put in

place effective domestic criminal legislation in line with the principle of legality as well as

criminal justice and law enforcement systems, such as measures to deter the commission of

offences, and investigate violations where they occur. Defining acts of terrorism in

domestic criminal legislation in line with the principle of legality is an important step

towards ensuring that those who commit such acts are brought to justice. In this regard, the

General Assembly has repeatedly urged all Member States to ensure that their laws

criminalizing acts of terrorism are accessible, formulated with precision, non-

discriminatory, non-retroactive and in accordance with international law, including human

rights law.9 States must also ensure that those suspected of criminal acts are prosecuted. As

emphasized by the Human Rights Committee in its general comment No. 31, failure by a

State party to investigate allegations of violations could in and of itself give rise to a

separate breach of the Covenant.

8. Accountability for all gross violations of international human rights law and serious

violations of international humanitarian law through effective investigation and prosecution

of those responsible is essential to ensure justice, to provide redress to victims and to

prevent further violations. In certain circumstances, where a State is unwilling or unable to

4 See Inter-American Court of Human Rights, Velasquez Rodriguez v. Honduras, judgment of 29 July

1988, Series C, No. 4, para. 172.

5 See Human Rights Committee, general comment No. 31, para. 8; also E/CN.4/1995/42, para. 102.

6 See CCPR/C/USA/CO/4, para. 10.

7 See A/70/674, para. 41.

8 See A/HRC/33/29, para. 2.

9 General Assembly resolutions 63/185; 64/168; 65/221; 66/171; 68/178 and 70/148.

investigate or prosecute those responsible for serious violations of international human

rights and international humanitarian law that are constitutive of international crimes, the

jurisdiction of the International Criminal Court may be triggered.

9. In the context of terrorist acts and counter-terrorism measures, ensuring

accountability and combatting impunity is key. The obligation of States to hold individuals

to account for terrorist-related offences is set out in a range of multilateral and regional

treaties, protocols, resolutions and declarations. As underscored by the Council in its

resolution 31/30, all measures taken to combat terrorism must, themselves, also comply

with States’ obligations under international law, in particular international human rights,

refugee and humanitarian laws. Ensuring that counter-terrorism legislation and policy are

grounded in human rights helps to promote the prosecution and conviction of individuals

engaged in acts of terrorism in accordance with legally established procedures. This also

encourages legal consistency between national jurisdictions, thereby facilitating

international cooperation.10

10. Conversely, failure to ensure respect for human rights has proven to be both

corrosive to the rule of law and conducive to a climate of impunity and has undermined the

effectiveness of counter-terrorism measures. In its 2016 review of the United Nations

Global Counter-Terrorism Strategy, the General Assembly expressed serious concern at the

occurrence of violations of human rights and fundamental freedoms committed in the

context of countering terrorism and stressed that, when counter-terrorism efforts neglected

the rule of law and violated international law, they not only betrayed the values they sought

to uphold, but they might also further fuel violent extremism that could be conducive to

terrorism.11

11. State responses to terrorism and violent extremism have often resulted in excessive

measures that infringe human rights, including through the enactment in national legislation

of vague or overly-broad definitions of “terrorism” or “terrorist acts”, the expansion of

executive authority without effective procedural safeguards and oversight, and the exercise

of excessive powers by law enforcement agencies. 12 As highlighted by the General

Assembly, a national criminal justice system based on respect for human rights and the rule

of law, due process and fair trial guarantees is one of the best means for effectively

countering terrorism and ensuring accountability.13 World leaders committed, through the

Sustainable Development Goals, to strengthen relevant national institutions, including

through international cooperation, for building capacity at all levels to prevent violence and

combat terrorism and crime.14

12. In its resolution 31/30, the Council underscored the importance of protecting the

rights of victims of terrorism and their families and of providing them with proper support

and assistance, while taking into account, when appropriate, considerations regarding

remembrance, dignity, respect, justice and truth in such a way that promotes accountability

and ends impunity, in accordance with international law.15 In this regard, international and

regional standards relating to victims of crime and victims of gross violations of

international human rights law and serious violations of international humanitarian law, as

well as provisions of the universal treaties relating to specific aspects of terrorism, are

instructive also in addressing the needs of victims of terrorism.

10 See, for example, A/HRC/28/28, paras. 18-53.

11 See General Assembly resolution 70/291, para. 16.

12 See, for example, A/HRC/28/28, paras. 21-30; also the contribution from Child Rights International

Network.

13 General Assembly resolution 70/291.

14 See Transforming our world: the 2030 Agenda for Sustainable Development, Goal 16, target 16.a.

15 Human Rights Council resolution 31/30, para. 13.

13. The International Covenant on Civil and Political Rights requires States parties to

ensure that victims of human rights violations have access to an effective remedy and

specifically “to ensure that any person claiming such a remedy shall have his right thereto

determined by competent judicial, administrative or legislative authorities, or by any other

competent authority provided for by the legal system of the State, and to develop the

possibilities of judicial remedy”.16 States must ensure that the competent authorities enforce

such remedies when granted and take all other necessary steps to prevent the recurrence of

violations.

III. Human rights challenges in the context of terrorism and counter-terrorism

14. The Council addressed issues relating to the effects of terrorism on the enjoyment by

all persons of human rights and fundamental freedoms at a panel discussion during its

twenty-ninth session, held on 30 June 2015. In her opening remarks to the panel, the United

Nations Deputy High Commissioner for Human Rights noted that terrorism destabilized

Governments, undermined societies, jeopardized peace and security and threatened

economic and social development, all of which had serious implications for the enjoyment

of human rights by all. She stressed that terrorist attacks had devastating consequences for

victims, often directly affecting their rights to life, liberty and security. Such acts also

negatively affected relatives, and entire communities lived in fear and suffered long-

standing trauma following attacks. Noting that measures taken by a number of States in the

wake of recent security threats continued to raise serious human rights concerns, she

emphasized the importance of regularly reviewing counter-terrorism laws and practices in

order to ensure that they were human rights-compliant and, in particular, specific,

necessary, effective and proportionate. In that context, she warned that broadly formulated

counter-terrorism legislation that lacked sufficiently precise definitions of what constituted

terrorist acts allowed for arbitrary or discriminatory enforcement by authorities.17

A. Negative effects of terrorism on the enjoyment of human rights and

fundamental freedoms

15. Contributions received for the present report and observations by various

international human rights mechanisms demonstrate the breadth and depth of the negative

impact of both terrorism and counter-terrorism measures on the enjoyment of human rights

and fundamental freedoms, as will be illustrated in a non-comprehensive way in the

paragraphs below.

1. Impact on the rights to life, security, liberty and integrity of person

16. The right to life is basic to all human rights. It is the supreme right from which no

derogation is permitted even in time of public emergency which threatens the life of the

nation.18 In order to protect the right to life, States must enact a protective legal framework

that involves effective criminal prohibitions on all forms of arbitrary deprivation of life by

individuals, including terrorist attacks that may result in such deprivation of life.

16 International Covenant on Civil and Political Rights, art. 2 (3) (b).

17 See A/HRC/30/64, paras. 4-7.

18 International Covenant on Civil and Political Rights, art. 6; see also Human Rights Committee

general comments No. 6 (1982) on the right to life, para. 1; and No. 14 (1984) on the right to life, para.

1.

17. Measuring the effects of terrorism on the enjoyment of the right to life is

challenging, in part owing to the lack of an internationally agreed definition of what

constitutes “terrorism”. In addition, recent actions taken by States have contributed to a

“blurring of the lines between armed conflict and terrorism and their respective legal

frameworks”,19 with implications also for the gathering of statistics on deaths that may have

resulted from acts of terrorism. While reported data vary widely, the Global Terrorism

Index 2016 suggests that 2015 was the second deadliest year on record, with 74 per cent of

“terrorism deaths” being attributed to only four groups — Islamic State in Iraq and the

Levant (ISIL), Boko Haram, the Taliban and Al-Qaida.20 The same source reported that, in

Afghanistan during the same period, there had been a significant increase in deaths as a

result of terrorism and that the Taliban had been responsible for the majority of terrorist

attacks in 2015. In one contribution to the present report, it was reported that 3,129 civilians

had lost their lives in Afghanistan in 2015, with 34.7 per cent of them killed as a result of

suicide bombings.21

18. Contributions to the present report also highlighted the deprivation of liberty of

individuals by Boko Haram, ISIL and the Taliban, including serious injuries to the body

and the mind.22 It should be recalled in this regard that, according to the Human Rights

Committee, States parties to the International Covenant on Civil and Political Rights have

the duty to take appropriate measures to protect the right to liberty of person against

deprivation by third parties and against abduction or detention by terrorist groups operating

within their territory.23

19. In its 2016 report on crimes committed by ISIL against the Yazidis, the Independent

International Commission of Inquiry on the Syrian Arab Republic found that ISIL’s

conduct constituted serious abuses of international human rights, including the prohibition

against slavery. It stated that female survivors of sexual slavery had been shattered, many

experienced suicidal thoughts and some of the families had tremendous difficulty

acknowledging the crimes committed against, in particular, the youngest female victims of

sexual slavery.24 Reports from several Special Rapporteurs and OHCHR on violations and

abuses committed by Boko Haram and the impact on human rights in the countries affected

stressed that, since 2009, Boko Haram has subjected women and girls to widespread and

severe forms of abuse, including sexual slavery, which has resulted in many becoming

pregnant.25

20. The Commission of Inquiry on the Syrian Arab Republic stated that the sexual and

physical violence, together with the severe mental trauma, that Yazidi women and girls

over the age of 9 had experienced at the hands of ISIL had risen to the level of torture,

causing them serious physical and psychological harm.26 Furthermore, women and children

living in Boko Haram-controlled areas had been subjected to repeated beatings when they

19 See Christine Beerli, Vice-President of the International Committee of the Red Cross, “Terrorism,

counter-terrorism and international humanitarian law”, statement to the 17th edition of the Bruges

Colloquium, 20-21 October 2016. Available at www.icrc.org/en/document/terrorism-counter-

terrorism-and-international-humanitarian-law.

20 See Institute for Economics and Peace, Global Terrorism Index 2016, pp. 2-3. Available at

http://economicsandpeace.org/wp-content/uploads/2016/11/Global-Terrorism-Index-2016.2.pdf.

Details relating to the methodology of the Index are set out in pp. 98-100.

21 See contribution from the Afghanistan Independent Human Rights Commission.

22 See contributions from Alliance Defending Freedom International and Freemuse.

23 See Human Rights Committee, general comment No. 35 (2014) on liberty and security of person,

paras. 3 and 7.

24 See A/HRC/32/CRP.2, paras. 16, 174 and 177.

25 See A/HRC/32/32/Add.2, para. 37; and A/HRC/30/67, para. 38.

26 See A/HRC/32/CRP.2, para. 130.

were unable to recite the Koran or refused to adopt the group’s beliefs. Boko Haram

reportedly ill-treated those in captivity through deprivation of food and water or stoned

abductees to death.27

21. Measures adopted to counter real or perceived threats of terrorism have also had

serious implications for the enjoyment of the rights to life, security, liberty and integrity of

person. Some States enacted legislation containing a definition of terrorism that lacks

precision and allows for arbitrary or discriminatory enforcement by authorities, for

example, with particularly serious consequences in States that retain the death penalty for

terrorism-related crimes. 28 In this regard, it should be recalled that article 6 (2) of the

International Covenant on Civil and Political Rights provides that, in countries which have

not abolished the death penalty, 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 Covenant and of the Convention on the

Prevention and Punishment of the Crime of Genocide.

22. In one contribution to the present report, it was noted that States often used

definitions of terrorist acts that were very broad, vague and included non-violent acts or

acts that did not constitute the “most serious crimes” pursuant to article 6 (2) of the

International Covenant on Civil and Political Rights. The contributor expressed concern

that the participation in “criminal gangs” or “terrorist groups” was often considered a

terrorist act that was punishable by death in several States, in violation of international

standards.29 Special procedure mandate holders have also warned that imposing the death

penalty was an ineffective — and most times also an unlawful — deterrent to terrorism and

expressed concern “to see a small minority of States wildly disregarding the international

standards for the imposition of the death penalty and the protection of the right to life in

their quest to thwart a real or perceived threat posed by terrorism”.30 The Secretary-General

also stressed that capital punishment did not reduce terrorism and that the death penalty was

a cruel and inhumane practice that had no place in the twenty-first century.31

23. In addressing the heightened risk of torture and ill-treatment in the context of

counter-terrorism, the Committee against Torture reiterated that the prohibition against

torture was absolute and non-derogable, and emphasized that no exceptional circumstances

whatsoever, including the threat of terrorist acts, may be invoked by a State party to justify

acts of torture in any territory under its jurisdiction.32 Furthermore, the Committee stated

that States parties should ensure that their laws were applied to all persons regardless of the

reason for which they were detained, including those accused of terrorist acts, and that

redress was equally accessible.33

24. Special procedures mandate holders have expressed concern that Governments have

used vague and broad definitions of “terrorism” or “extremism” to punish those who do not

27 See A/HRC/30/67, paras. 35-37; also contribution from Alliance Defending Freedom International.

28 See A/HRC/28/28, paras. 21-30.

29 See contribution from World Coalition against the Death Penalty.

30 See joint press release of 7 October 2016 by the Special Rapporteur on extrajudicial, summary or

arbitrary executions; the Special Rapporteur on torture and other cruel, inhuman or degrading

treatment or punishment; and the Special Rapporteur on the promotion and protection of human rights

and fundamental freedoms while countering terrorism. Available at www.ohchr.org/EN/NewsEvents/

Pages/DisplayNews.aspx?NewsID=20659&LangID=E.

31 See the message by the Secretary-General on the World Day against the Death Penalty, 10 October

2016. Available at www.un.org/press/en/2016/sgsm18185.doc.htm.

32 See Committee against Torture, general comment No. 2 (2008) on the implementation of article 2,

para. 5.

33 Ibid., para. 21; and general comment No. 3 (2012) on the implementation of article 14, para. 32.

conform to traditional gender roles or who belong to a religious minority, and have called

on States to ensure that no one is subjected to arbitrary arrest or detention.34 In addition,

several contributions to the present report referred to counter-terrorism laws that have

granted authorities the power to criminalize freedom of expression, including for human

rights defenders, which has led to an increase of arbitrary arrest or detention.35 As stressed

by the Human Rights Committee, the right to take proceedings for release from unlawful or

arbitrary detention applies to all detention by official action or pursuant to official

authorization, including counter-terrorism detention.36

25. The Working Group on Arbitrary Detention voiced its concern at the continuing

tendency towards deprivation of liberty by States abusing states of emergency or

derogation, invoking special powers specific to states of emergency without formal

declaration, having recourse to military, special or emergency courts, not observing the

principle of proportionality between the severity of the measures taken and the situation

concerned, and employing vague definitions of offences allegedly designed to protect State

security and combat terrorism.37

2. Impact on freedom of movement and on the right to a nationality

26. In response to growing concern about the threat of terrorism, some States have

expanded the administrative powers that allow for deprivation of nationality for crimes

related to national security, while others have considered amending their domestic laws,

with implications, in some cases, for the right to freedom of movement and the right to a

nationality.38 For example, several States have taken a wide range of administrative and

legislative measures to deter individuals who have or who are seeking to become foreign

fighters, including blocking the validity of travel documents, revoking citizenship, freezing

financial assets, imposing travel bans and introducing exclusion orders to prevent their own

nationals or permanent residents from returning.39

27. One contribution to the present report highlighted a draft legislative proposal under

consideration to amend the nationality act. The contributor expressed concern that the

proposal did not offer adequate legal protection, included terms that did not provide a

sufficiently clear and precise legal basis for the withdrawal of nationality, and would have a

discriminatory effect by distinguishing between citizens who had dual nationality from

those who did not — a distinction that risked stigmatizing those with an immigrant

background.40 Another contribution referred to the revocation of citizenship on charges of

terrorism against individuals, which reportedly included peaceful dissidents, human rights

defenders, journalists, academics and religious scholars.41

28. The Human Rights Committee considers that the right to freedom of movement

embraces, at the very least, an individual who, because of his or her special ties to or claims

34 See A/64/211 and Corr.1, para. 27; A/HRC/28/66/Add.1, paras. 49 and 67; A/HRC/16/53/Add.1, para.

100; and E/CN.4/2005/61/Add.1, para. 152; also the contribution from the Organization for Security

and Cooperation in Europe/Office for Democratic Institutions and Human Rights.

35 See contributions from Americans for Democracy and Human Rights in Bahrain; Fédération

internationale de l’Action des chrétiens pour l’abolition de la torture; and the International Centre for

Justice and Human Rights.

36 See the Committee’s general comment No. 35 (2014), para. 40.

37 See A/HRC/7/4, para. 59.

38 See A/HRC/25/28, para. 13; A/HRC/28/28, paras. 51-52; A/HRC/33/43/Add.2, paras. 16, 50 and 92;

A/70/330, para. 70; and A/71/318, paras. 21-24.

39 See A/HRC/28/28, para. 50; and A/70/330, paras. 68-69.

40 See contribution from the Netherlands Institute for Human Rights.

41 See contribution from Americans for Democracy and Human Rights in Bahrain.

in relation to a given country, cannot be considered a mere alien, such as the national of a

country who has been stripped of his or her nationality in violation of international law. The

Committee also considers that there are few, if any, circumstances in which the deprivation

of the right to enter one’s own country could be considered reasonable.42 In that regard, one

contribution to the present report suggested that counter-terrorism provisions that would

have a profound impact on freedom of movement should always require prior judicial

review and that new counter-terrorism laws should have a limited duration, for instance by

including a sunset clause.43

3. Impact on due process, including the right to a fair trial

29. Respect for due process rights of individuals accused of terrorist-related activities —

including recognition of the right of an individual to know the reasons why he or she has

been detained; the right of the family of a detainee to know where he or she is being held;

and the right of a detainee to have access to a lawyer and to challenge the lawfulness of his

or her detention — is critical for ensuring that counter-terrorism measures are effective and

respect the rule of law. In many jurisdictions, however, respect for these rights is neither

fully acknowledged nor respected in practice.

30. One contribution to the present report highlighted anti-terrorist legislation in one

State that allowed an investigatory body to hold individuals incommunicado for up to 90

days and to detain them for up to one year without judicial review. The contributor

expressed concern that a specialized counter-terrorism court in that State accepted

confessions obtained by torture as admissible evidence to convict individuals, as well as

testimony or evidence without the presence of the defendant or the defendant’s lawyer.44

31. Another contribution referred to the jurisprudence of the Human Rights Committee,

which found that imposing a death sentence at a trial that failed to meet the legal standards

of fairness breached not only article 14 of the International Covenant on Civil and Political

Rights, but also article 6 on the right to life.45 Special procedure mandate holders, also, have

stressed that executions carried out without adherence to the strictest guarantees of fair trial

and due processes are unlawful and tantamount to an arbitrary execution. They noted that

many States in which the death penalty has been implemented for terrorism-related

offences lack a system that guarantees the right to a fair trial for the accused.46

4. Impact on the right to privacy

32. Digital communications technologies can be, and have been, used by individuals for

criminal objectives, including recruitment for and the financing and commission of terrorist

acts. As such, the lawful, targeted surveillance of digital communication by a State may

constitute a necessary and effective measure for intelligence and/or law enforcement

entities when conducted in compliance with international and domestic law, including

respect for the right to privacy as reflected in international human rights instruments.47

33. Governments frequently justify expansive digital communications surveillance

programmes, however, on the grounds of the risks posed by terrorism. In this regard, the

High Commissioner for Human Rights, special procedure mandate holders and treaty

42 See the Committee’s general comment no. 27 (1999) on freedom of movement, paras. 20-21.

43 See contribution from the Netherlands Institute for Human Rights.

44 See contribution from Americans for Democracy and Human Rights in Bahrain.

45 See contribution from World Coalition Against the Death Penalty; and communication No. 250/1987,

Reid v. Jamaica, Views adopted on 20 July 1990.

46 See www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20659&LangID=E.

47 See A/HRC/27/37, in particular, para. 24.

bodies have expressed serious concern about the potential for arbitrary or unlawful

interference in the right to privacy that such programmes have raised.48 One contribution to

the present report noted that the use of information and communications technologies by

terrorist organizations for recruitment purposes does not diminish the importance of States’

obligations to respect the right to privacy as enshrined in international law.49

34. With regard to draft legislation on intelligence and security services, one

contribution to the present report criticized the fact that, in one jurisdiction, the necessity of

extending the power of untargeted interception of telecommunications and other means of

data transfer had not been sufficiently demonstrated; the draft legislation provided for prior

authorization of interception and other surveillance measures by a Cabinet minister, not by

an independent body or judge; and the supervisory body was not granted the power to take

binding decisions on the legality and proportionality of ongoing surveillance and

interception operations.50 Concerning the bill on investigatory powers in another country,

one contribution suggested that its safeguards be improved since the unlawful use of

investigatory powers may not be subjected to sufficient scrutiny under the current draft

because those subject to surveillance would often be unaware of it and thus not in a position

to be able to make a complaint.51 In another contribution, concern was expressed at national

legislation introduced in 2015 to combat the movement of foreign fighters, which

authorizes the defence intelligence service to process information on residents of that

country and allows for interference in private communications of individuals who have a

lower suspicion threshold than what the security and intelligence service of the national

police would need to meet within the criminal justice system.52

5. Impact on freedom of opinion and expression, freedom of religion or belief and

freedom of peaceful assembly and association

35. On 23 July 2016, a suicide attack against peaceful demonstrators in Kabul — for

which ISIL claimed responsibility — resulted in the deaths of at least 85 civilians and

injury to more than 400 others, mainly Shia Muslims of Hazara ethnicity. In a special

report, the United Nations Assistance Mission in Afghanistan concluded that the attack

appeared to have deliberately targeted persons belonging to a specific ethnic and religious

community and had a serious negative impact on demonstrators’ rights to freedom of

opinion and expression and peaceful assembly.53

36. Reports indicate that ISIL deliberately prevents members of religious minorities

from practising their faith and specifically targets them because they belong to a religious

minority. In Nigeria, Boko Haram has engaged in forced religious conversions and targeted

civilian objects protected under international law, including bomb attacks against churches

and mosques.54

37. Security-related measures taken by States, including the adoption of national

counter-terrorism legislation, have resulted in violations of the right to freedom of opinion

and expression and have directly affected the work of media professionals, human rights

48 See A/HRC/27/37; and A/HRC/28/28, para. 25.

49 See contribution from Brazil; also General Assembly resolutions 68/167 and 69/166.

50 See contribution from the Netherlands Institute for Human Rights.

51 See contribution from the Equality and Human Rights Commission, Great Britain.

52 See contribution from the Danish Institute for Human Rights.

53 See United Nations Assistance Mission in Afghanistan, “Attack on a peaceful demonstration in Kabul,

23 July 2016”, special report (October 2016), para. 39. Available at https://unama.unmissions.

org/sites/default/files/23_july_suicide_attack_against_peaceful_demonstration_-_18_oct_2016.pdf.

54 See A/HRC/30/67, paras. 29 and 47-48; also contribution from Alliance Defending Freedom

International.

defenders, political groups and civil society more broadly.55 The Special Rapporteur on the

rights to freedom of peaceful assembly and of association noted that the fight against

terrorism had, in many instances, been used as a justification for the adoption of state of

emergency regulations to void the rights to freedom of peaceful assembly and of

association and to clamp down on those freedoms.56

38. The Human Rights Committee has emphasized that States parties should ensure that

counter-terrorism measures are compatible with article 19 (3) of the International Covenant

on Civil and Political Rights. It also emphasized that offences such as “encouragement of

terrorism” and “extremist activity” as well as offences of “praising”, “glorifying”, or

“justifying” terrorism, should be clearly defined to ensure that they do not lead to

unnecessary or disproportionate interference with freedom of expression and that

journalists should not be penalized for carrying out their legitimate activities.57 Article 20 of

the Covenant states that any advocacy of national, racial or religious hatred that constitutes

incitement to discrimination, hostility or violence shall be prohibited by law. One

contribution to the present report suggested that States be reminded to put in place

measures to implement the Rabat Plan of Action on the prohibition of advocacy of national,

racial or religious hatred that constitutes incitement to discrimination, hostility or violence,

which provides guidance, through a six-part threshold test (taking into account the context,

speaker, intent, content and form, extent of speech act and likelihood of incitement), on

how to establish whether expressions should be considered as criminal offences.58

39. Counter-terrorism measures taken by States must be coherent with international

human rights standards relating to freedom of religion or belief, such as choice of clothing,

which may be limited only in specific circumstances to protect public safety, public order,

and public health or morals. In this context, one contribution to the present report59 noted as

a positive example the decision taken by the highest administrative court in France on 26

August 2016 to suspend the ban on supposedly inappropriate beachwear, which had been

widely interpreted as targeting the burkini and other forms of dress worn by Muslim

women. Such clothing bans do not improve the security situation, but rather fuel religious

intolerance and stigmatization of Muslims, especially women, and may, as a result, actually

undermine the efforts to counter terrorism and prevent violent extremism.60

40. One contribution to the present report from an academic source noted that the

practice of racial or religious profiling in some States had led to the perception of imaginary

“crimes” shaped by racial or religious prejudice in expressions such as “driving while

Black”, “flying while Arab” or “perambulating while Muslim”. The number of attacks

against Muslims in Europe increased following the terrorist attacks in Paris in November

2015. One report on anti-Muslim hatred showed a 300 per cent rise in hate crime incidents

in the United Kingdom of Great Britain and Northern Ireland in the week following the

Paris attacks, particularly affecting Muslim women and girls aged between 14 years and 45

years wearing hijabs. Many of those attacked indicated that no one had come to their

assistance and that they felt victimized, embarrassed and alone following the incidents.61

55 See A/HRC/7/14, para. 47.

56 See A/HRC/20/27, para. 21.

57 See the Committee’s general comment No. 34 (2011) on freedoms of opinion and expression, para. 46.

58 See contribution from Child Rights International Network; and A/HRC/22/17/Add.4, appendix, in

particular, para. 29.

59 See contribution from Libya.

60 See OHCHR press briefing note on France of 30 August 2016, available at

www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20430&LangID=E.

61 See contribution from Child Rights International Network.

41. The Committee on the Elimination of Racial Discrimination emphasized that States

should ensure that any measures taken in the fight against terrorism do not discriminate, in

purpose or effect, on the grounds of race, colour, descent, or national or ethnic origin and

that non-citizens are not subjected to racial or ethnic profiling or stereotyping.62 Moreover,

it has been emphasized in several contributions to the present report that religious leaders

can play a particularly important role in the context of interreligious dialogue and

tolerance63 as well as in countering terrorism and violent extremism by presenting religious

messages that promote human civilizational values and spread the concepts of love and

mercy for everyone.64

6. Impact on the right to work and the right to health

42. Acts of terrorism have had a significant impact on the enjoyment of the right to

health for direct and indirect victims. Attacks by Boko Haram in September 2013 on 21

health districts in Cameroon, for example, lead to the shutdown of 47 health centres in

Fotokol, Guzdal and Koza. These centres reportedly hosted internally displaced persons

before they fled for fear of further attacks by Boko Haram.65 In addition, attacks on girls’

education have a negative impact on the right to health for girls, their families and

communities because girls who are prevented from accessing education are less exposed to

basic information and less empowered to make decisions about health issues, including

nutrition, sexual and reproductive health, hygiene and preventive health care. 66 One

contribution to the present report highlighted the long-term impairments that may result

from acts of terrorism, such as loss of limbs or of the senses, causing the victims to live

with incapacity and pain for their entire lives and to require someone to care for them and

their family. 67 Furthermore, public spending on counter-terrorism often focuses on

investment in the military, on policing and on intelligence gathering and analysis, which

may adversely affect financial allocations to basic social services, including the health

sector.68

43. Another contribution to the present report highlighted the impact of terrorist attacks

— such as the bombing of an aeroplane over the Sinai Peninsula in October 2015 — on the

tourism industry, with negative implications for employment, tourism facilities and the

national economy.69 More broadly, terrorism may have both a direct impact on the tourism

sector — through decreased tourist numbers, leading to decreased spending — and an

indirect impact, owing to decreased employment and reduced flow-on effects to other

industries, such as food services, cleaning and maintenance businesses.70 In the context of

counter-terrorism measures, the right to work may also be negatively impacted by the

freezing of assets or the inclusion of individuals on a sanctions list, which could prevent

them from travelling freely and accepting offers of employment in another country.71

62 See the Committee’s general recommendation No. 30 (2004) on discrimination against non-citizens,

para. 10.

63 See, for example, the contributions from Mexico and Togo.

64 See contribution from Association pour la défense des droits de la femme en Mauritanie.

65 See A/HRC/30/67, para. 49.

66 See www.ohchr.org/Documents/HRBodies/CEDAW/Report_attacks_on_girls_Feb2015.pdf.

67 See contribution from Egypt.

68 See A/HRC/12/22, para. 24.

69 See contribution from Egypt.

70 See Institute for Economics and Peace, Global Terrorism Index 2016, p. 67. Available at

http://economicsandpeace.org/wp-content/uploads/2016/11/Global-Terrorism-Index-2016.2.pdf.

71 See A/HRC/12/22, para. 41; and communication No. 1472/2006, Sayadi and Vinck v. Belgium, Views

adopted on 22 October 2008.

7. Impact on the right to education and the right to participate in cultural life

44. The enjoyment of the right to education in Nigeria has been impacted significantly

by internal displacement resulting from attacks by Boko Haram. Displaced children have

been unable to access education, while those who have remained in their communities often

receive poor quality education owing to insecurity, the lack of teachers — as many have

fled — and the destruction of schools.72 Several cases of attacks against girls accessing

education have highlighted the fragile nature of achievements in increasing the

accessibility, availability, adaptability, acceptability and quality of education for all. These

events include the abduction of nearly 300 schoolgirls by Boko Haram in northeast Nigeria;

the killing of more than 100 children in an attack by the Taliban at an army school in

Peshawar, Pakistan; the shooting of education activist, Malala Yousafzai, by members of

the Taliban in Pakistan; the reported forced removal of girls from schools in Somalia to

become “wives” of Al-Shabaab fighters; the abduction and rape of girls at a Christian

school in India; as well as several incidents of poisoning and acid attacks against

schoolgirls in Afghanistan.73 One contribution to the report noted that, in Afghanistan, the

Taliban had closed or burned some 245 schools in two Afghan provinces in 2015 and that

25 schoolteachers and students had been killed by anti-government elements.74

45. The negative impact of terrorism on cultural life is evident from the attacks carried

out by Al-Shabaab, Al-Qaida, Ansar Eddine, ISIL and the Taliban against artists and

citizens attending cultural events, cinemas, concerts or theatres. One contribution to the

report noted that artists and citizens in Afghanistan, Iraq, Libya, Mali, Pakistan, Somalia

and Syrian Arab Republic have been particularly severely affected by attacks committed in

the name of religion, while the attacks in Belgium, Denmark, France, Germany and Sweden

have led to fear, self-censorship and financial loss for artists and cultural industries.75

46. With regard to censorship by States, the Special Rapporteur in the field of cultural

rights noted that, in some countries, artistic expressions criticizing the Government had

been labelled as “terrorism”. She expressed concern that many artists had been

disproportionately sentenced under charges of criminal offences such as “terrorism”,

“extremism” or “hooliganism”.76

47. At a more general level, the reallocation of State resources towards counter-

terrorism measures can also have negative consequences on the right to education, for

example, when allocations are drawn away from programmes in the education sector.77

B. Ensuring respect for the human rights of victims

48. In its 2016 review of the United Nations Global Counter-Terrorism Strategy, the

General Assembly deeply deplored the suffering caused by terrorism in all its forms and

manifestations to the victims and to their families. It expressed its profound solidarity with

them and encouraged Member States to provide them with proper support and assistance

while taking into account, inter alia, when appropriate, considerations regarding

remembrance, dignity, respect, justice and truth, in accordance with international law.78 In

their contributions to the present report, several States referred to the human rights of

72 See A/HRC/30/67, para. 9.

73 See http://www.ohchr.org/Documents/HRBodies/CEDAW/Report_attacks_on_girls_Feb2015.pdf.

74 See contribution from the Afghanistan Independent Human Rights Commission.

75 See contribution from Freemuse.

76 See A/HRC/23/34, paras. 31 and 46.

77 See A/HRC/12/22, para. 45.

78 See General Assembly resolution 70/291, para. 24.

victims, including the importance of victim support and protection as provided for in

Constitutions, national laws and regional directives.

49. The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of

Power defines “victims” as:

“persons who, individually or collectively, have suffered harm, including physical or

mental injury, emotional suffering, economic loss or substantial impairment of their

fundamental rights, through acts or omissions that are in violation of criminal laws

operative within Member States, including those laws proscribing criminal abuse of

power.”79

A person may be considered a victim “regardless of whether the perpetrator is identified,

apprehended, prosecuted or convicted and regardless of the familial relationship between

the perpetrator and the victim”. The term “victim” may also include “the immediate family

or dependants of the direct victim and persons who have suffered harm in intervening to

assist victims in distress or to prevent victimization”.80

50. The Declaration outlines the minimum standards for the fair treatment of victims

according to the basic principles of justice. Victims should be treated with compassion and

respect for their dignity; be informed of their rights in seeking redress; have their views and

concerns presented in legal proceedings; receive proper assistance throughout the legal

process; be protected against intimidation and retaliation; have their privacy protected; be

offered the opportunity to participate in informal mechanisms for the resolution of disputes,

including mediation; enjoy restitution and compensation, as appropriate; and receive the

necessary material, medical, psychological and social assistance.

51. Furthermore, the Basic Principles and Guidelines on the Right to a Remedy and

Reparation for Victims of Gross Violations of International Human Rights Law and Serious

Violations of International Humanitarian Law underscore the need for victims to be treated

with humanity and respect for their dignity and their human rights, and emphasize that

appropriate measures should be taken to protect their safety, physical and psychological

well-being and privacy, as well as those of their families. The remedies to be made

available to victims of violations of international human rights and humanitarian law are

also outlined. These include the victim’s right to equal and effective access to justice,

effective and prompt reparation for harm suffered, and access to relevant information

concerning the violations and reparation mechanisms. More specifically, the Basic

Principles and Guidelines outline States’ obligations to provide reparation to victims for

acts or omissions that may be attributed to the State and that constitute gross violations of

international human rights law or serious violations of international humanitarian law.

Furthermore, States should endeavour to establish national programmes for reparation and

other assistance to victims, if the parties liable for the harm suffered are unable or unwilling

to meet their obligations.81

52. In her opening statement to a Human Rights Council panel discussion, held on 1

June 2011, the former High Commissioner for Human Rights highlighted that victims of

terrorist acts required immediate assistance and long-term medical and psychosocial

support, as well as financial aid. She emphasized that victims of terrorist acts should be

provided with information, in a timely, truthful and transparent manner, about the facts and

circumstances of the terrorist act and any ensuing investigations and judicial proceedings.

Victims should be given the opportunity to effectively participate in judicial proceedings

79 See General Assembly resolution 40/34, annex, para. 1.

80 Ibid., para. 2.

81 General Assembly resolution 60/147, annex, para. 16.

and other mechanisms with the appropriate protection against intimidation, retaliation and

arbitrary interference with their right to privacy. Victims should also be provided with

equal access to justice and appropriate assistance throughout the legal proceedings.82

53. Wherever there is credible evidence to suggest that there have been violations of

human rights in the context of counter-terrorism, States must conduct prompt, independent,

impartial and thorough investigations. Where these investigations result in establishing that

a violation has occurred, victims must be afforded effective redress, including payment of

compensation to individuals who have been denied due process, particularly in cases of

excessive pretrial detention, which would also prevent the fostering of resentment among

aggrieved individuals and their families as a result of unfair or even illegal practices. In

addition to providing a concrete form of remedy, payment of compensation could also serve

as an investment in future stability by recognizing State fault.

54. Alongside such payments, care should also be taken to ensure that necessary legal

reforms to avoid repeat cases of breaches of due process are also implemented in a timely

fashion and seen as an essential element of the guarantee of non-recurrence. Oversight

processes, adequate checks and balances, and effective complaints mechanisms are

essential to ensuring that the use of counter-terrorism powers is narrowly and appropriately

tailored to achieve specific ends and is not deployed in an over-broad or oppressive fashion.

While non-judicial mechanisms may have potential value, there should always be the

possibility for victims to have recourse to judicial remedies.83

IV. Conclusions and recommendations

55. Acts of terrorism that have been committed in countries worldwide are stark

reminders of their negative effects on the enjoyment of human rights and fundamental

freedoms by all, with devastating consequences for victims. Each State has the duty to

take measures to protect all individuals within its territory and those subject to its

jurisdiction from terrorist acts. At the same time, States must ensure that any

measures taken to counter terrorism are fully compliant with their obligations under

international law, including international human rights law.

56. Effective counter-terrorism measures and the protection of human rights are

complementary and mutually reinforcing objectives, which must be pursued together

as part of States’ duty to protect individuals within their jurisdiction. Experiences in

countries around the world have demonstrated that protecting human rights and

ensuring respect for the rule of law itself contribute to countering terrorism, notably

by creating a climate of trust between the State and those under their jurisdiction.

57. In the context of terrorist acts and counter-terrorism measures, ensuring

accountability and combating impunity is key. The contributions received for the

present report and the above-mentioned observations by various international human

rights mechanisms illustrate the wide range of negative effects that terrorist acts and

counter-terrorism measures have on the enjoyment of human rights and fundamental

freedoms. Criminal justice systems that function in line with international human

rights standards are the best means for ensuring accountability for acts of terrorism.

Strengthening the rule of law, including through the implementation of appropriate

checks and balances, is essential to ensuring the legality and legitimacy of counter-

terrorism measures. Constant monitoring and regular review will help to ensure that

82 See A/HRC/19/38, para. 4.

83 See A/HRC/22/26, paras. 47-49.

counter-terrorism laws, policies and practices achieve their goals and that any

negative impact on human rights is promptly addressed.

58. The human rights of victims of terrorism need to be respected, including their

rights to reparation, truth and justice as well as their right to live free from fear and

be provided with the support they require. Victims need immediate assistance but also

long-term medical and psychosocial support, as well as financial support to

compensate the destruction of their property or loss of their livelihood and jobs.

Victims should be provided with equal access to justice and an effective remedy,

through which they can benefit from adequate and prompt reparation for the harm

suffered. With regard to alleged human rights violations in the counter-terrorism

context, States must conduct prompt, independent, impartial and thorough

investigations. If it is established that a violation has occurred, victims must be

afforded effective redress, including payment of compensation to individuals who

have been denied due process.