Contraterrorisme en mensenrechten

Toespraak | 03-05-2010

Let me ask you a question: if you have to choose between more security, in the sense of being relatively safe – total safety is illusory - from terrorist attacks, combined with certain limitations of freedom and rights, or unrestricted human rights and fundamental freedoms, what would you choose ?

A majority of you accepts certain limitations in order to provide more individual and collective security. If that is the case, what limitations would you accept ?

In the sphere of privacy, would you accept collection of information, wiretapping on your and other people’s activities by state agencies, body scans? Would you accept limited freedom of expression, limited freedom of assembly and movement? Would you accept torture or psychological maltreatment in case of a ticking bomb and a suspect?

Big brother

These questions are very real and very complex. There are lots of grey zones. It is not easy to draw the line. To strike the right balance. To provide safety without undermining our rule of law and our democratic values. To provide security without becoming a Big-Brother-is-watching-you state, or worse: a police state in order to be secure.

There are no easy answers. We consider the safety of each individual as a fundamental right and the protection of individuals, including protection from terrorist attacks, as a fundamental responsibility of each government.

But there is tension between individual freedom and human rights and collective security. And at the same time respecting human rights will create a safer, because stable, society. And security in principle can contribute to more chances for rule of law and freedoms to flourish.

The binding decisions of the European Court of Human Rights have given some direction to European countries, for instance on due process and interrogation matters. But globally there is currently little agreement on many of these matters – politically or legally. Even though over the past 60 years the international community has build a solid structure of human rights promotion and protection and has agreed on 16 specific counterterrorism conventions.

Security

In the western world I can see a gradual shift towards security at the expense of some fundamental rights. Each terrorist threat, each failed attempt (see Detroit), each attack leads to new calls to improve security, even if it undermines certain fundamental rights, for instance body scanners and videocameras. If you would ask Dutch citizens their opinion, I believe that most, like you, would accept certain limitations of certain rights. This is probably similar in many other countries.

Since 9/11, new counterterrorism laws have been introduced in the Netherlands. A law on terrorist crimes, providing for higher punishment of terrorist crimes, a law on expanding room for investigation and detention of suspects, and a law on punishment of financing of terrorism. A draft law is being prepared to prohibit glorifying or trivialising terrorism, and a draft law to punish participation in terrorist training camps. To name a few.

All these laws are, to my knowledge, not very different from other western countries. Our CT-laws are often based on decisions taken in the European Union and the Council of Europe, which includes both Western and Eastern European countries.

Although there should be no doubt whatsoever about the need to fight terrorism head-on , which includes the need for legislation, and our commitment to do so, this development can also become a slippery slope where we risk slow and almost unnoticed undermining of our values and freedoms, our rule of law. The recent report of the International Court of Justice gives ample testimony and examples of that.

Core values

Therefore, in my opinion it is essential that if we introduce new legislation and measures, we are constantly alert to add measures to protect our core values, freedoms, rule of law, in short our democratic society. That means:

  • That information on the threat requiring action, legislative or administrative, is available and transparant;
  • That new laws and related measures are very precise in their objectives and proportional to the threat (and there must be a pressing need);
  • That they are non-discriminatory;
  • That they are temporary, with sufficient monitoring and review;
  • That the impact of the proposed legislation on human rights is systematically assessed;
  • And that there is adequate judiciary supervision, both at the national level and at the international level (in our situation in particular by the European Court in Straatsburg.

The Netherlands generally meets the standards. We are open to criticism where it has been expressed on aspects of Dutch counterterrorism legislation, for instance by the European Court, by the Committee on the Prevention of Torture of the Council of Europe (regarding detention conditions for terrorist suspects)), and by the HR Commissioner of the Council of Europe.

Such criticism is taken seriously. For instance the recommendation to evaluate the current overall counterterrorism legal framework, including its compatibility with international human rights standards, is being implemented.

International

One concern of ours from an international human rights perspective is that a fair number of countries in the world abuse the argument of the agreed need for counterterrorism to oppress non-violent domestic political opposition or civil society or ethnic or religious minorities, calling them terrorist or extremist elements. Examples are: Ethiopia, Egypt, Uzbekistan, China.

Some of them copy western legislation but apply these laws, under the title of the war on terror to deal with internal conflicts. It is a difficult issue to address and to solve: countries will refer to the necessity to face brutal extremists, and they will refer to western counterterrorism laws, practices and use of double standards.

United States

In particular the policies and actions of the previous US administration opened a box of Pandora (Abu Ghraib, Guantanamo, waterboarding, secret detention centers, extraordinary renditions). Those actions have often rightly caused protests and have in any case dramatically, tainted and damaged America’s credibility – and to some extent that of the western world as a whole - as undisputed human rights defenders. It has been, is, and will for a long time to come, be exploited by Jihadist groups.

It will take a lot of efforts to restore that credibility. It will take a long-term investment. Abusive laws need to be repealed, as the International Court of Justice suggested. The tone and words of President Obama (closing of Guantanamo, no acceptance of torture under any circumstance, more dialogue with the islamic world) and of Secretary Clinton are very important and very welcome and will have an impact to repair America’s image.

Tone and words are influential, as the Jihadists show from the mountains of Pakistan. Al- Qaida claims that the bigger part of its struggle is won by winning the hearts and minds of the islamic people. But clearly the right tone and words from the western world are not enough to end the threat of terrorism. It is not only our values that count, but also, and maybe even more so, our actions. The US will require a lot of support in this from as many countries as possible. We are one of those.

Principles

A second major concern from an international human rights perspective is that some very fundamental human rights principles have come under more pressure. The universality of human rights, that is: basic rights for everyone, everywhere, at all times, regardless of political, social, religious, cultural background, is being contested.

In the UN debates, the priority for national sovereignty and cultural specificities is being pushed by a variety of hardline developing countries. There is a sharper tone between islamic and western countries in the Human Rights Council in Geneve on issues like freedom of expression, defamation of religion, the possibility to discuss gross violations in individual countries.

And the growing self-confidence of emerging powers like China, India, Brazil with different views on human rights concepts is also a development to reckon with. This will require much more, and more intelligent dialogue. With the aim to see the promotion of human rights again as a common project to contribute to global peace and safety. And not as a presumed imposition from the west.

Terrorists

A few more words on international terrorism and the fight against it. First of all: terrorism, terrorists, terrorist threats are very real. They are there. And they are not going away on their own. As you have noticed, they are back on the front page. Full force: Detroit, Newark, the attempt to murder the Danish cartoonist, suicide attacks in Pakistan, Afghanistan. There is hardly a pause.

Terrorism didn’t start or stop on 9/11 in New York. It has been around for centuries. In Europe, we know many examples: RAF in Germany, Brigado Rosso in Italy, ETA in Spain, IRA in Northern Ireland. Horrendous as their activities have been, and sometimes – see ETA in Spain – still are, they were essentially focused on domestic situations and targeted at domestic leaders and institutions.

9/11 and subsequent attacks (London, Madrid, Mumbai, Bali) – mostly committed by groups or individuals that highjack or abuse religion – are different: global, international, larger scale, more randomly, targeted at not only official institutions like military, police and judiciary, but also, and sometimes especially, at innocent citizens. With a mix of religious interpretations and explanations to legitimize political objectives.

Causes

I believe it is essential to intensify our efforts to analyze what are often called the “root causes” for this new type of terrorism; or as it is officially called “the factors conducive to the choice of groups or individuals of political violence or terrorism”. Not to justify violence or terror, but to understand who is attracted to it and why.

Some argue that extreme poverty is a major factor. There is a case to be made that lack of development can lead to weak states which can then become a haven for terrorists (see Somalia, Yemen). But I doubt that there is really an intrinsic link between poverty and terrorism, and in fact, quite some terrorists, like the 9/11 attackers, the Detroit suspect, Bin Laden himself, are from well-to-do-families, are well-educated (in the west) and often lived in developed countries.

What is it then? Anger about domestic political oppression and lack of voice and rights? Anger about “western arrogance” and domination? Anger about western presence in the Islamic world and the way in which it has been operating (Abu Ghraib etc)? Envy or rejection of “western lifestyles”? Religious zeal and fanaticism; the global jihad against the infidels? Political ambitions? Rage about the situation in the Palestinian occupied territories and the lack of progress in the peace process? Personal frustrations and experiences, failed ambitions? The handling of migrants in the western world? Attractiveness of a life dedicated to “a cause” instead of a life with little hope for a role in society?

There are no simple or single answers. It will often be a mix. My point is that we have to dig deeper into the “state of mind” of terrorists and prospective terrorists, and to develop the right strategies to counter some of these factors, if we want to be better capable of preventing and reducing global terrorism.

Definition

One complication is that there is no agreement at the UN on the definition of terrorism. Since many years that lack of definition has blocked a highly desirable agreement on a comprehensive UN counter-terrorism convention. One person’s terrorist is another person’s freedom fighter: Mandela; Hamas; Dutch resistance during WWII. There is in fact an internationally recognized right to stand up against oppression. Some countries insist that not only terrorism conducted by non-state groups and individual actors are to be included, but also acts of state terrorism. The whole debate is unfortunately very much centered on the Palestinian/Israeli conflict.

When I served in New York, a British ambassador once described terrorism as “you know it is terrorism when you see it”. That is not a very good solution. More apt, although not complete satisfactory, is the description that the core elements of terrorism “consist of criminal acts committed with the intent to cause death or serious bodily injury with the purpose of provoking terror in order to compel governments or international organisations to do or to abstain from doing any act”. This has to be solved, and we will do our utmost to contribute to an agreement.

What, nonetheless, was hopeful, is the agreement, in september 2006, on a UN Counterterrorism Strategy and an Action Plan for counterterrorism activities. I will say a few words on that in a minute.

Prevention

The fight against terrorism is multi-layered. It is partly about repressing terrorism through counterterrorism legislation, through punishment, through eliminating financing terrorism, through blacklisting, through better information exchange.

But at least as important a part of fighting terrorism is about prevention of radicalisation and extremism, often of youngsters with little future. We have to address the underlying factors. That will require implementation of what we call the “broad approach to counterterrorism”:

  • dialogue between different and sometimes clashing cultures;
  • institutional reforms in weak or oppressive states;
  • support to rule of law and to respect for human rights;
  • development activities, for instance in the area of education;
  • investments;
  • exchanges;
  • increased public diplomacy – especially in islamic countries - in order to take away the current negative perceptions of what the west is all about the 3 D (defense, development, diplomacy) approach in conflict zones.
  • and it will also require a good level of self-reflection in the west (migrants).

Relation

Now, a few more things on the relationship between the fight against terrorism and human rights: both are priorities of Dutch foreign policy. And essentially, this relationship can be described in five simple statements:

  • human rights and terrorism rule each other out; but human rights and counter-terrorism can and should go together;
  • terrorism is a threat to human rights: the fight against terrorism is a fight for human rights;
  • lack of respect to human rights can contribute to the development of extremism and violence;
  • the fight against terrorism has to be fought within the boundaries of international law (with a question whether current international law is effective enough);
  • the fight against terrorism should not be abused to oppress the rights of non-violent groups. We should call governments to account who do so. Fighting terrorism should not become a license to suspend human rights indefinitely.

Defence

The best defence against terrorism is a well-functioning national and international legal order which provided peaceful means for everyone to express him or herself and defend his and her own rights.

The fight against terrorism sometimes demands new restrictions on individual rights. We discussed that in the beginning. Though such restrictions must always remain within the limitation clauses of the various international human rights instruments. Examples: extra-ordinary renditions and secret detention facilities are not acceptable or compatible with international law.

Developments

The fight against terrorism is obviously mostly an international, often multilateral affair. I still have time to briefly mention some of the international developments and activities, in particular at the UN.

As I mentioned, the UN/GA adopted in september 2006a Global CT-strategy and an associated Action Plan. Human rights are a key element of that strategy. It emphasises the need to look into the factors that are conducive to terrorism. It spells out the need for national counterterrorism capacity building and the need for international support. We give that support. To us, it is urgent to pursue these points and the Netherlands is one of the promotors to implement the strategy.

The UN Office on Drugs and Crime in Vienna has a Terrorism Prevention Branch that provides technical assistance to states to promote implementation of the existing counterterrorism conventions. There are 16 of those, eventually to be integrated in the overall-convention. We cofinance the activities of this prevention branch.

The SC has a key role in addressing counterterrorism. One of our efforts is to push the SC to uphold human rights standards when addressing counterterrorism matters. That does not come automatically. The SC has adopted resolutions with sanction regimes and black lists on Al Quaeda and the Taliban members and suspects, with rather limited regard to human rights concerns for suspects.

We obviously have to support SC decisions, and it is essential that we reduce any breathing space for terrorist groups; but we have been active, together with others, to reach a SC decision to add a focal point at the UN to which individuals on the blacklist can submit a request to be de-listed. At the outset, there was no right whatsoever to appeal the SC decisions. We believe that further improvements can and should be made.

The new Human Rights Council in Geneva too has an essential role in promoting human rights in the fight against terrorism. Its work so far has been fairly modest in this area. Our focus here is on the work of the Special Rapporteur, the Finnish professor Martin Scheinin. We cofinance his activities.

Finally on the UN, we will continue to press for improvements to international counterterrorism standards, particularly in relation to human rights. Finalizing the comprehensive convention – which would encompass all the existing conventions - is one of our goals.

Netherlands

For the Netherlands, the EU obviously is not only essential for our domestic policies, but it is also a key channel for our international cooperation. I will only mention that respect for human rights while fighting terrorism is a constant message in the EU’s external contacts and a standard part of its partnership agreements with third countries. The EU too has established blacklists of terrorists and suspects. After criticism from ngo’s and the EP it has started to monitor whether human rights standards are being met in their implementation.

I don’t have time to go into the counterterrorism activities of regional organizations like the Council of Europe and the OSCE. They are indispensable.

Dutch initiatives

I do want to mention three specific recent Dutch initiatives that in our view can make an important contribution to both the fight against terrorism and to upholding human rights:

First, we are about to establish an international counter-terrorism institute in The Hague, which will focus on prevention of terrorism and address questions like how to avoid radicalisation.

Second, we support an international process at Leiden University to look at current international law related to terrorism and human rights in order to identify if there are any gaps in the international legal framework and how these should be addressed. And what law is exactly applicable: international human rights law, humanitarian law, the law of wars, criminal law? At the moment there are too many different opinions whether the existing framework can handle terrorist crimes. The US labelled terrorists “combatants” and applied the laws of war, but that has been a disastrous simplification. The fact that terrorists are usually members of non-state groups which have no regard whatsoever for laws and for international agreements, makes this an urgent matter.

And third, since we want to ensure that no safe havens exist for people suspected of committing terrorist acts, we promote the establishment of universal jurisdiction related to terrorist crimes. For that reason, we have proposed to include prosecution of terrorist acts under the Statute of the International Criminal Court in The Hague, in cases where states fail to do so. This is a complex and disputed issue, but we hope that it will be eventually and generally accepted.

Key points

Let me sum up some of my key points:

  • promoting human rights and fighting terrorism are both priorities of our foreign policy;
  • human rights and terrorism rule each other out; human rights and counter-terrorism can and should go together; the fight against terrorism is a fight for human rights, terrorism is a threat to human rights;
  • we have to know the root causes of terrorism if we want to prevent terrorism: certainly lack of human rights is a factor in causing extremism, violence, but it is not the only factor;
  • prevention is as important as repression;
  • there can be no impunity for terrorists;
  • there can be tension between individual freedoms and human rights on one hand, and collective security on the other hand: therefore solid rules of the game are required to harmonise freedom, human rights and security, without giving up core democratic values;
  • fighting terrorism is no license to suspend human rights indefinitely;
  • we need to fill any gaps in international law in order to make sure that respect for human rights is preserved and no terrorist can go unpunished.