Legal and Policy Issues in Establishing an International Framework for Human Rights Compliance...

The relationship between terrorism and human rights is a matter that has been reflected upon by the United Nations General Assembly and Commission on Human Rights, and to a more limited extent by the UN Security Council, well before the events of September 11, 2001. Consideration had also been given to the potentially negative impact of counter-terrorism upon human rights. Since 9/11, with events such as the establishment of the detention camp in Guantanamo Bay and the proliferation of security and counter-terrorist legislation throughout the world, a considerable amount of attention has been paid to the issue of the extent to which counter-terrorism impacts upon human rights.

Four years on from 9/11, this paper seeks to take stock of international and regional commentary on the subject and the move from various quarters to establish an international framework for human rights compliance when countering terrorism. The first substantive part of this paper (Part II) considers the general issue of the interface between counter-terrorism and human rights: the relevance of human rights when countering terrorism; what human rights compliance demands (in either absolute or qualified terms); the general approaches to the latter question within various international and regional guidelines (which essentially advocate a qualified approach to human rights compliance when countering terrorism); whether the nature of terrorism justifies such a qualified methodology; and how treaty-monitoring bodies are likely to respond to this. To date little comparison of the guidelines mentioned has been undertaken, nor consideration of why the qualified approach called for within those guidelines is appropriate in the context of counter-terrorism.

More importantly, while the guidelines offer general advice on when limitations upon rights are justifiable (with some helpful rights-based analyses), they suffer from a lack of specific and practical advice on how the proper balance between counterterrorism and human rights is to be struck. Part III of this paper gives careful consideration to the means by which counter-terrorist measures should be evaluated when such measures seek to impose rights limitations. Particular attention is paid to an issue that has lacked constructive deliberation: how to assess proportionality between the two objectives of countering terrorism and maintaining human rights standards. Against the background of that analysis, and the matters considered within Part II, Part IV of the paper offers legislators, policy-makers and judicial officers with a seven-step guide on assessing the legitimacy of counter-terrorist measures. The paper concludes with a case study on the controversial question of racial profiling, to illustrate the dynamics in the application of this guide. (p. 3)