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28 November 2007
HUMAN RIGHTS COUNCIL
Agenda item 3
PROMOTION AND PROTECTION OF ALL HUMAN RIGHTS
CIVIL, POLITICAL, ECONOMIC, SOCIAL AND CULTURAL
RIGHTS, INCLUDING THE RIGHT TO DEVELOPMENT
Report of the Special Rapporteur on the promotion and protection of
human rights and fundamental freedoms while countering terrorism,
Communications with Governments*
The present report is being circulated as received, in the languages of submission only, as it greatly exceeds the word limitation set by the relevant General Assembly resolution.
1. The present report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism contains communications transmitted to Governments between 1 January and 15 September 2007, as well as replies received up to 1 November 2007. In addition, the report also covers press releases issued in 2007.
2. During the period under review the Special Rapporteur corresponded with Governments, either separately or jointly with other mandate-holders, and he issued press releases that relate to a total of 14 countries or territories. The Special Rapporteur recognizes that problems concerning human rights and fundamental freedoms in the context of countering terrorism are not only confined to the countries and territories mentioned in this report.
3. During the period of review, the Special Rapporteur received replies from five Governments relating to communications sent in 2007 and communications that had not been replied to in 2006. The Special Rapporteur welcomes the detailed substantive information received from these Governments and encourages cooperation by those Governments which have not yet provided replies to his communications. Replies received after 1 November 2007 will be reflected in the next report to the Human Rights Council on communications.
4. As in previous years, the Special Rapporteur acted upon information received from reliable sources concerning individual cases of alleged breaches of fundamental freedoms and human rights in the context of countering terrorism, and also took action with respect to legislative developments and proposals undertaken by a number of Member States. In this context, the Special Rapporteur reiterates his encouragement to Member States to enter into dialogue, ideally during the preparatory stage of the adoption of new counter-terrorism legislation or legislation on terrorism-related offences, to seek his advice in accordance with paragraphs 14 (a) and (e) of Commission on Human Rights resolution 2005/80 (extended by the Human Rights Council pursuant to its decision 2006/102).
COMMUNICATIONS TRANSMITTED, REPLIES RECEIVED
AND STATEMENTS MADE TO THE PRESS
Statement of the Special Rapporteur on his mission to Israel
61. On 10 July 2007, the Special Rapporteur issued the following statement during a press conference held in Jerusalem (see the Special Rapporteur’s report on his mission to Israel, (A/HRC/6/17/Add.4), which highlights some, but not all, of his preliminary findings:
“The Special Rapporteur conducted an eight-day mission to Israel, with visits to the Occupied Palestinian Territory. The purpose of the mission, conducted at the invitation of the Israeli Government from 3 to 10 July 2007, was to undertake a fact-finding exercise, and a legal assessment of Israeli law and practice in the fight against terrorism, measured against international law, and considering the impact of Israeli counter-terrorism practices and policies. His conduct of country visits is also aimed at identifying and disseminating best practice in the countering of terrorism. Following this visit, a more thorough report, which will become publicly available, will be prepared and submitted to the Human Rights Council, a subsidiary body of the United Nations General Assembly. The Special Rapporteur will engage in a further process of written consultations between now and the completion of his final report for the purpose of clarifying open issues.
“The Special Rapporteur met with the Minister for Foreign Affairs, Ms Tzipi Livni in Tse’elim. In Jerusalem, the Special Rapporteur had meetings on a specialist level with the Ministry of Foreign Affairs, Ministry of Justice, “The Special Rapporteur met with the Minister for Foreign Affairs, Ms Tzipi Livni in Tse’elim. In Jerusalem, the Special Rapporteur had meetings on a specialist level with the Ministry of Foreign Affairs, Ministry of Justice, Israeli Defence Force, Israeli Security Agency, members of the Knesset (Parliament), the Counter Terrorism Bureau, as well as the former and current President of the Supreme Court of Israel. The Special Rapporteur also travelled to other parts of Israel, including to the HaSharon and Hadarim prisons where he was able to conduct private interviews of security detainees, and to the Ofer Military Court where he observed ongoing proceedings. Within the Occupied Palestinian Territory he visited, inter alia, Bethlehem, Ramallah and Nablus, examined the route and impact of the barrier erected by Israel, and met with the President’s Office of the Palestinian Authority. He met with lawyers, academics, victims of terrorism and non-governmental organizations from Israel and the Occupied Palestinian Territory. He was also briefed by a number of international organizations, including United Nations interlocutors.
“The Special Rapporteur is deeply mindful of the difficulties faced by Israel in its efforts to combat acts of terrorism, and the long history of violence in the region, with devastating effects on the Israeli and Palestinian civilian population. He was touched by the personal accounts of victims of terrorism, who have not only faced the bereavement of family and other physical losses, but also struggle to overcome the psychological and fear-inducing consequences of terrorism. He emphasises that sustainable security can only be achieved through due respect for human rights.
“The Special Rapporteur notes with encouragement that Israel is reconsidering its derogation from aspects of the International Covenant on Civil and Political Rights under a declared state of emergency, which has been in existence since the establishment of the State of Israel. This reform is long overdue, as the current legal framework for countering terrorism is vague and outdated, partly based on pre-1948 instruments and hardly compatible with the requirement of legality and Israel’s commitment to democracy. He was informed that new counter-terrorism legislation is being drafted and is further encouraged by advice from the Israeli Ministry of Justice that he will be consulted and invited to comment upon this legislation prior to its introduction to the Knesset.
“The Special Rapporteur is furthermore pleased to receive assurances from Israeli Government sources that Israel is not involved in any global programme of extraordinary rendition or secret detention. Central to Israel’s strategy in the fight against terrorism has become the continuing construction of a barrier between Israel and certain towns in the West Bank. The route of the barrier, partly a wall and partly a fenced zone with multiple physical obstacles, does not follow the Green Line but is largely located within the Occupied Palestinian Territory, capturing on its western side or within so-called ‘fingers’ extending deep into the Palestinian Territory several Israeli settlements located there. At the same time a considerable part of the Occupied Palestinian Territory, including towns and villages, is being separated from the rest of the Territory by the barrier. The winding route of the barrier is creating multiple obstacles for movement between even close-by communities within the Occupied Palestinian Territory. According to Israeli Government interlocutors heard during the visit, the barrier has, together with intelligence and surveillance technologies, resulted in a higher level of security and protection against terrorist attacks. It is nevertheless having an enormously negative impact upon the enjoyment of human rights by the Palestinian people.
“The Special Rapporteur heard from Israeli Government sources of a long-term perspective to replace the current and not yet complete unilaterally-positioned barrier with an agreed international border with a future Palestinian State. Until this is achieved on the basis of genuine negotiations and agreement, the Special Rapporteur emphasises that no part of the barrier must be treated as a fait accompli or annexation of territory. Further, any associated security measures must not impact disproportionately upon the lives of ordinary Palestinian people. Two crucial elements are relevant in this regard in order to both comply with the requirements of international human rights and to counteract the experiences by Palestinians of the barrier causing increasing arbitrariness and oppression. There must be a reduction in the level of hardship to people moving within the Occupied Palestinian Territory. The practical implementation of all security measures, including at checkpoints and terminals, must also be by professional, transparent, accountable and, to largest possible extent, civilian means. The current practices surrounding the route of the barrier, and associated security measures, bear a substantial risk of negative and counter-productive effects, which may in themselves create conditions conducive to the spread of, and recruitment to, terrorism.
“The Special Rapporteur is gravely concerned about the impact of the barrier and accompanying measures upon the freedom of movement, right to property, right to work, right to health, right to education, the right to private and family life, the right to non-discrimination and the human dignity of all persons. The route of the barrier and associated ‘closures’ is impacting upon the access of Palestinians to their land and water resources, including through the devastation or separation from villages of agricultural land in the course of erecting the barrier, and in some cases has had a devastating socio-economic impact upon communities. As a result of closures and the system of permits regulating the movement of people from one area to another, the Palestinian people are adversely affected in their ability to access education; health services, including emergency medical treatment; other social services; and places of employment. The means of security screening and searches at checkpoints raises concerns about privacy and non-discrimination, particularly heightened in the case of women and children . The permits regime furthermore impacts upon the integrity of family units and the ability of men and women to marry with persons outside their own permit zones. The legal framework against which Israel’s conduct in its measures against terrorism is to be addressed is the combined effect of international humanitarian law and international human rights law.
“The Special Rapporteur identifies as a particularly problematic area in the overlap between armed conflicts and policing, Israel’s policy of the targeted killing of persons identified as involved in terrorist conduct. Although always a morally inexcusable decision, participation in terrorism does not create a vacuum in the application of the law, and the Special Rapporteur is encouraged in that regard by the position of the Supreme Court of Israel that the fight against terrorism must be achieved through compliance with the law, including international law. He is, however, troubled by the decision of the Supreme Court concerning targeted killings, in which the court correctly noted that under international humanitarian law a person directly participating in hostilities may during armed conflict be a legitimate military target, but where it applied an overly broad and vague explanation of what amounts to direct participation in hostilities and paid insufficient attention to the fact that not every instance of terrorist conduct will fall under the law of armed conflict. The Court nevertheless qualified its position by stating that such recourse must be by way of last resort and that arrest must always be preferred and actively pursued. The Special Rapporteur is concerned that the policy of targeted killings may in fact result in cases of extrajudicial execution.
“The Human Rights Committee welcomed, in 1999, the decision of the Supreme Court invalidating the former governmental guidelines governing the use by the Israeli Security Agency (ISA) of ‘moderate physical pressure’ during interrogation. The same decision left open the possibility of the application, ex post facto, of the ‘necessity defence’ under Israeli Penal Law. Even when properly applied this defence does not validate the application of physical or psychological means of torture or any form of cruel, inhuman, or degrading treatment, but instead means that such wrongful conduct may, in certain very limited circumstances, go unpunished in respect of a particular individual but never absolve the duty of the state to secure accountability and provide an effective remedy for the human rights violation suffered.
“The Special Rapporteur was shocked by the unconvincing and vague illustrations by the ISA of when such ‘ticking bomb’ scenarios may be applicable. He was troubled by the process by which individual interrogators would seek approval from the Director of the ISA for the application of special interrogation techniques, potentially rendering this as a policy rather than a case-by-case, ex post facto, defence in respect of wrongful conduct. He was furthermore concerned by the lack of truly independe “The Special Rapporteur was shocked by the unconvincing and vague illustrations by the ISA of when such ‘ticking bomb’ scenarios may be applicable. He was troubled by the process by which individual interrogators would seek approval from the Director of the ISA for the application of special interrogation techniques, potentially rendering this as a policy rather than a case-by-case, ex post facto, defence in respect of wrongful conduct. He was furthermore concerned by the lack of truly independent and impartial investigation mechanisms following the application of such methods. A number of further issues will be examined by the Special Rapporteur in his full report including, but not limited to: the definition and classification of terrorism, terrorist organizations, and security suspects; the demolition of houses; the use of ‘human shields’ by the Israeli Defence Force; the movement of goods and people to and from Gaza; the use of, and procedures surrounding, the administrative detention of security suspects and military courts to try terrorist suspects; the use of military force by Israel, including outside its own territory; and the rights of victims of terrorism and their families.”