The Anti Terrorism Act in the UK ant the USA PATRIOT Act enable the authorities of the State to detain for a long period or indefinitely non-nationals without charge, on the mere suspicion of them having participated in terrorist activities or having links with terrorist groups. Such detention for an indefinite period of time, without charge is arbitrary, in violation of article 9 of the International Covenant on Civil and political rights. It further violates the presumption of innocence and the rights to a fair and independent trial enclosed in article 14 of the ICCPR. We have serious reasons to consider that such detention attempt to the dignity and the physical and mental integrity of the individual, and therefore constitute a cruel, inhuman and degrading treatment, in violation of article 7 of the ICCPR.
The derogations invoked by the British government under article 4 of ICCPR for reasons of public emergency are invalid. Indeed, the rights infringed are non-derogable under article 4.2 of ICCPR or under the interpretation given by the Human Rights Committee within its General Comment 29.
These laws constitute serious violations of the ICERD, as they prevent non-nationals from the full enjoyment of basic human rights, which are recognised to other citizens. Equally, the Acts violate Article 26 of the ICCPR as they create discrimination on grounds of national origin.
The third case submitted concerns a serious pattern of infringement of Human Rights of non-nationals inherent to the Anti-terrorist legislation in Germany. Amongst the measures, immigration and asylum can be refused on mere suspicion of belonging to a terrorist group or having participated to terrorist activities. Far from responding to a potential terrorist threat, the measure only closes doors to foreigners. The focus on foreigners applying for residency or asylum further exacerbates potential prejudices amongst the German population. It also encloses a serious limitation to the rights of asylum. As such, the Anti-terrorist legislation in Germany has permitted a serious violation of the ICERD, which requires reaction from the CERD, under the form of an urgent procedure.
The right of asylum is further protected by art 3 of CAT and article 7 of the ICCPR, in ensuring that no asylum should be refused to an applicant, which may face torture or inhuman and degrading treatment if he has to return to his country. Such norm has the value of Jus Cogens and is applicable in all circumstances, including the fight against racism. The German legislation does not entail any precision in this respect. It should limit the possibility of refusing asylum on those specific grounds. Preventing non-nationals from the enjoyment of a Jus-Cogens rule should be considered as a serious violation of ICERD.
The FIDH therefore urges the CERD to:
– address an expression of its concern, to the State parties, along with recommendations for action, to abolish such discriminatory measures;
– raise the issue to all other human rights bodies dealing with the question concerned, especially the Counter Terrorism Committee established under the auspices of the Security Council;
– designate a special rapporteur to act as a focal point for monitoring similar situations of violation of the ICERD in reaction to terrorist threats, with mandate to consult with the Chairman of the Committee to initiate the urgent action procedure when further required and to follow up when decisions have been taken.