UNSC’s response to terrorism must respect international human rights norms

Open Letter addressed to Members of the United Nations Security Council

New-York, Paris September 18, 2014

Your Excellency ,

On the eve of the Summit on Counter-terrorism hosted by the United States of America under its Presidency of the UN Security Council (UNSC), FIDH calls upon members of the UNSC to guarantee that its response to the scourge of terrorism guarantees and furthers the respect of international human rights norms.

While some States may have portrayed human rights as an obstacle to an « effective » response to the threat of terrorism, international human rights instruments are structured to respond to conflict and to provide mechanisms to ensure peace and stability. In particular, guaranteeing that measures combating terrorism respect international human rights, will ensure that they are sustainable, effective, and efficient.

In addition, putting the body of international human rights norms at the heart of its response to counter-terrorism, notably in addressing the prevalent impunity and discrimination in the societies in which terrorism proliferates, will contribute to defeating the ideological propaganda conveyed by criminal organisations such as the Islamic State in Iraq and the Levant (ISIL), the Al Nusrah Front (ANF) or Al Qaida.

In this context, UNSC Resolution 2170 adopted on August 15, 2014 provides a useful and unified response to the crimes and potential threats of ISIL and ANF. In particular, it reaffirms that States must ensure that any measures to combat terrorism is taken in compliance with all their obligations under international law, in particular international human rights, refugee and international humanitarian law.

However, Resolution 2170 fails to address the shortcomings of the UNSC procedures when dealing with counter-terrorism, thus sustaining a system which has proven to be in contradiction with international human rights norms, at the expense of its efficiency.

In addition, Resolution 2170 provides a limited response to the crisis in Iraq, in failing to address the situation in a holistic manner nor in tackling, among others, the prevalent problems of impunity and discrimination that have fuelled the crisis. As a consequence, the resolution may fail to resolve the crisis.

Thus, the following recommendations should guide the UNSC’s further analysis and response to the situation.

Addressing the shortcomings of the UN Sanctions and Counter-terrorism Committees

Resolution 2170, following-up on Resolution 2161 (2014), foresees the asset freeze, travel ban and arms embargo to a listing of individuals, groups, undertakings, and entities associated with ISIL and ANF. It thus expands the regime of sanctions provided for Al-Qaïda.

However, it fails to address some of its limitations which numerous counter-terrorism and human rights experts have presented. It intervenes in a context when fewer and fewer states are putting forward names that should be included on the list, in particular because of the misgivings about the fairness of the procedure. In addition, on a number of occasions, national and regional courts have rejected the legality of measures adopted by States in application of the Sanctions committee’s decisions, because of its failure to guarantee due process rights to individuals and entities listed.

While over the past years, efforts have been made to strengthen the conformity of the procedures with international human rights standards, notably in the decision to announce publicly the motives of the listing, and the setting-up, in March 2007, of a ’focal-point’, an ombudsperson, to receive and instruct complaints by individuals, groups and entities that would be willing to challenge their inclusion on the sanctions list.

In spite of these advances, concerns remain that international, regional, or national courts might find the Security Council’s regime of sanctions incompatible with due process norms, such as the right to be heard and defend oneself against these charges, and the right to an effective remedy.

In particular, while the creation of a focal point is a positive step, it still leaves the ultimate decision for de-listing in the hands of the Sanctions committee and does not address the right of listed individuals to an effective review mechanism, which requires a certain degree of impartiality and independence in the decision-making itself.

In addition, the evidence brought forward by States to justify their request for individuals or entities to be included on the Sanctions list, varies greatly, contributing to creating a list with a mixed quality of inputs, thus impacting on its efficiency and effectiveness.

As a consequence, and as recommended by the UN Special rapporteur on Protecting human Rights while countering Terrorism, and by the UN High Commissioner for Human Rights, the Security Council should adopt a resolution which:

  • ensures a listing process which is transparent, based on clear criteria, and with an appropriate, explicit and uniformly applied standard of evidence;
  • sets-up an effective, accessible and independent panel of experts to consider de-listing requests, thus ensuring that individuals on the list are guaranteed their rights to effective review of their listing by a competent and independent mechanism and to effective remedy.

Addressing shortcomings in country situations confronted with Counter-terrorism : the case of Iraq

FIDH welcomes the mobilisation of the UNSC as well as of the UN Human Rights Council (UN HRC) in responding to the situation in Iraq. This mobilisation has in particular enabled the deployment of the Office of the High commissioner for Human Rights (OHCHR) in order to conduct a full and comprehensive investigation into human rights violations and abuses committed by ISIS in Iraq.

Effective accountability mechanisms are required to punish and deter the commission of international crimes. The Syrian experience shows that the lack of accountability mechanisms has paved the road for the rise of new groups and provided a green light for the perpetration of further atrocities.

However, in deploying their mobilisation, both the UNSC and the UNHRC have failed to adopt a holistic approach in tackling impunity for the crimes perpetrated, targeting ISIS and its affiliated groups only, while serious and grave human rights violations, including international crimes, are committed by all parties to the conflict, including by the Iraqi military and its affiliated militias. Victims of grave human rights violations, regardless of their origin, deserve equal recognition, protection and redress without discrimination.

It is essential that the UNSC rises to the challenge to avoid a further deterioration and assist Iraq in complying with its obligation to protect its citizens and ensure their rights.

Therefore, the UNSC should adopt a resolution on the situation in Iraq, which:

  • urges the Iraqi government to bring all perpetrators of human rights violations and abuses to justice, whatever their affiliation;
  • echoes the request formulated by the UN High Commissioner for Human Rights to the Government of Iraq that it ratifies the Rome Statute creating the International Criminal court, and calls upon the Iraqi authorities to issue a declaration of competence under Article 12.3 of the Rome Statute;
  • demands that Iraqi authorities rescind discriminatory policies and practices to prevent recurring violations and abuses.

Sincerely Yours,

Karim Lahidji
FIDH President

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