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UNITED
NATIONS
A

        General Assembly
Distr.
GENERAL
A/HRC/6/17
21 November 2007

Original: ENGLISH

HUMAN RIGHTS COUNCIL
Sixth session
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,
Martin Scheinin


Summary

The present report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism comprises two parts. Section I refers to the Special Rapporteur’s activities undertaken from 1 January to 31 October 2007. Sections III to V reflect the main thematic issue of economic, social and cultural rights in the context of countering terrorism. Section III refers to the normative framework and contains information on the work done to date by the United Nations human rights treaty bodies, special procedures and other United Nations entities, such as the International Court of Justice and the Counter-Terrorism Committee of the Security Council. Regional organizations, such as the Inter-American Commission on Human Rights and the Council of Europe, and judgements from the European Court on Human Rights, have also addressed the relationship between economic, social and cultural rights and counter-terrorism measures.

In Section IV, the Special Rapporteur’s own country-specific work and other sources illustrate the negative impact that counter-terrorism measures can have on the enjoyment of economic, social and cultural rights. The Special Rapporteur examines a number of thematic and country-specific examples, such as how physical obstacles constructed for security reasons can affect access to health, education, work and so on; how charitable, humanitarian and financial organizations have been hindered from promoting economic, social and cultural rights by the justification of countering the financing of terrorism; how the right to education can be compromised or overlooked in the interest of national security; and how counter-terrorism measures can stigmatize and target indigenous and minority communities, resulting in the destruction of their means of livelihood, forced evictions and internal displacement.

In Section V, the focus shifts to the role of the promotion of economic, social and cultural rights in addressing and countering the conditions conducive to the spread of terrorism. Such considerations need to be included in the formulation of long-term sustainable strategies against terrorism.

The Special Rapporteur’s conclusions and recommendations are presented in section VI, which includes recommendations resulting from the country-specific work by the Special Rapporteur, recommendations for States and the international community, and specific recommendations addressed to various human rights mechanisms of the United Nations.

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I. Introduction

1. The present report is submitted to the Human Rights Council by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism pursuant to Commission on Human Rights resolution 2005/80, General Assembly resolutions 60/158 and 60/251 and Human Rights Council decision 2006/102. It includes a reference to his activities from 1 January to 31 October 2007 and his views on the thematic issue of economic, social and cultural rights in the context of countering terrorism. The Special Rapporteur discusses the negative impact counter-terrorism measures can have on these specific rights and the role of promoting economic, social and cultural rights in preventing terrorism.

2. Addenda to the present report have been issued on communications in 2007 by the Special Rapporteur and the replies of Governments thereto and press releases issued under the mandate (A/HRC/4/26/Add.1); the report on the fact-finding mission to South Africa from 16 to 26 April 2007 (A/HRC/4/26/Add.2); the report on the fact-finding mission to the United States of America from 16 to 25 May 2007 (A/HRC/4/26/Add.3) and the report on the fact-finding mission to Israel, including visits to the Occupied Palestinian Territory, from 3 to 10 July 2007 (A/HRC/4/26/Add.4).

III. ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN THE CONTEXT
OF COUNTERING TERRORISM

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B. Previous work

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2. Other entities in the United Nations system

22. In its advisory opinion of July 2004, the International Court of Justice concluded that Israel was in breach of its obligations under the International Covenant on Economic, Social and Cultural Rights due to the construction of a wall along and partly inside the Occupied Palestinian Territory, described by Israel as a counter-terrorism measure.3 The Court found the International Covenant of Economic, Social and Cultural Rights applicable in relation to the conduct of Israel in the Occupied Palestinian Territory and identified a number of economic, social and cultural rights enshrined in the Covenant and affected by the construction of the wall, namely, the right to work (arts. 6 and 7); protection and assistance accorded to the family and to children and young persons (art. 10); the right to an adequate standard of living, including adequate food, clothing and housing, and the right “to be free from hunger” (art. 11); the right to health (art. 12); and the right to education (arts. 13 and 14).4

23. The Court concluded that the restrictions on the enjoyment by the Palestinians living in the territory occupied by Israel of their economic, social and cultural rights, resulting from the construction of the wall by Israel failed to meet a condition laid down by article 4 of the Covenant, that their implementation must be “solely for the purpose of promoting the general welfare in a democratic society”. According to the Court, the wall, along the route chosen, and its associated regime were a grave infringement of a number of rights of the Palestinians residing in the territory occupied by Israel, and the infringements resulting from that route could not be justified by military exigencies or by the requirements of national security or public order. The construction of such a wall therefore constituted breaches by Israel of several of its obligations under the applicable international humanitarian law and human rights instruments, including the Covenant and the Committee on the Rights of the Child.5

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IV. IMPACT OF COUNTER-TERRORISM MEASURES ON THE ENJOYMENT
OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS

33. The above examples of the attention paid by United Nations and regional human rights actors to issues pertaining to the promotion and protection of economic, social and cultural rights illustrate various ways and situations where counter-terrorism measures may have a negative impact on the enjoyment of some of the human rights in question. A number of economic, social and cultural rights enshrined in the International Covenant on Economic, Social and Cultural Rights and other core human rights treaties with a special focus on economic, social and cultural rights have been found at risk because of counter-terrorism measures, namely the right to work (arts. 6 and 7); protection and assistance accorded to the family and to children and young persons (art. 10); the right to an adequate standard of living, including adequate food and housing (art. 11); the right to health (art. 12); and the right to education (arts. 13 and 14). Many examples demonstrate how some measures have a concurrent impact on several human rights, and thus the interdependent nature of civil, political, economic, social and cultural rights.

34. This section provides additional information on that negative impact, primarily with reference to the Special Rapporteur’s own country-specific work but also on the basis of publicly available information from other sources. With regard to the latter category of cases in particular, the Special Rapporteur emphasizes that his intention is to provide illustrative examples of real or perceived negative impact, not to indicate whether the cases mentioned amount to a violation of human rights treaty obligations.

A. Construction by Israel of a barrier in the Occupied Palestinian Territory

35. The most illustrative case encountered to date by the Special Rapporteur was during his mission to Israel in July 2007 (A/HCR/6/17/Add.4), which included visits to the Occupied Palestinian Territory. During that mission, he made observations at various locations and consulted a number of governmental and non-governmental actors in Israel and the Occupied Palestinian Territory on the construction of the barrier, partly a wall and partly a fenced zone with multiple physical obstacles. The barrier is being built by Israel along and partly inside the Occupied Palestinian Territory, referring to security concerns including combating terrorism. He assessed both the effectiveness of the barrier as a security measure and its impact on all human rights, including the economic, social and cultural rights of the Palestinian people.

36. Notwithstanding a demonstrated statistical correlation between the construction of the barrier and the reduction in the number of successful terrorist attacks against Israeli civilians, the barrier is having an enormously negative impact on the enjoyment of human rights by the Palestinian people. 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 inside the Occupied Palestinian Territory and is establishing a “seam zone” of land between the Green Line and the route of the barrier, representing approximately 10 per cent of the West Bank. The Office for the Coordination of Humanitarian Affairs in the Occupied Palestinian Territory has reported a dramatic and continuing deterioration in the socio-economic conditions of many parts of the West Bank since the construction of the barrier (A/HCR/6/17/Add.4, para. 31).

37. 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 gain access to education; health services, including emergency medical treatment; other social services; and places of employment. Access by ordinary 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, is also being impeded, in some cases to the point of having a devastating socio-economic impact on communities.

38. Delays at checkpoints have complicated childbirth for Palestinian women. This has resulted in the delivery of children at checkpoints and unattended roadside births, putting at risk the health of both child and mother, and leading to numerous miscarriages and the death of at least five mothers. These hardships are reported to have contributed to an 8.2 per cent increase in home deliveries.22

39. As a result of the barrier, Palestinian children encounter significant obstacles in attending or remaining at educational institutions. It also affects the movement of teaching staff, whether this be as a result of the barrier having been erected between “closed” communities and educational facilities, or the difficulties in obtaining special permits from the Israel Defense Forces to enter areas in which educational facilities are present. Various restrictions of movement associated with the barrier, including checkpoints and their limited daily operation hours, can effectively result in Palestinian children dropping out of school or enjoying only limited access to education.23

40. The barrier and its practical operation have caused diverse negative effects on the economic situation of the Palestinian population. Thousands of people no longer have direct access to their area of cultivation, such as olive trees, or are allowed to take machinery with them, such as tractors, or temporary workers to assist them. Under these circumstances, their earnings are so low and their very livelihood is at risk (A/HCR/6/17/Add.4, para. 39).

41. In sum, the construction of the barrier has broad and complex effects on the enjoyment of economic, social and cultural rights of the Palestinians living in the Occupied Palestinian Territory. The Special Rapporteur acknowledged in his mission report that many of the human rights affected by the barrier and associated security measures are under human rights law subject to permissible limitations. However, as arbitrariness or unprofessional conduct are frequent in the implementation of the security measures, and as the route of the barrier continues to breach international law as affirmed by the International Court of Justice (see paragraph 25 above), the Special Rapporteur has concluded that the barrier and its associated regime continues also to cause effects that violate the international obligations of Israel under human rights law. With regard to the Special Rapporteur’s own mandate, it is even more relevant that the barrier and its associated measures are widely experienced by the Palestinians as unlawful, destructive to norma l human life, and humiliating. As a consequence, the barrier has a counterproductive effect by contributing to conditions that are conducive to the recruitment to and spread of terrorism (A/HCR/6/17/Add.4, para. 43).

B. Impact of measures against the financing of terrorism

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46. The application of government measures to curtail charity work because of a perceived risk that the funds might end up in support of terrorism is not always based on evidence. Such counter-terrorism measures are unlikely to be effective because they do not rely on the reality of charity work. They can also undermine general confidence in charities and encourage less transparent ways to transfer funds, thereby producing counterproductive effects. Counter-terrorism legislation has created uncertainty about the provision of humanitarian aid in some parts of the world, for example in Iraq, Afghanistan and the Occupied Palestinian Territory, even though these humanitarian activities are needed for the development of these places. 24

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VI. CONCLUSIONS AND RECOMMENDATIONS

A. Conclusions

69. The Special Rapporteur concludes that counter-terrorism measures have both a direct and an indirect impact on the enjoyment of economic, social and cultural rights. The measures adopted by States to combat terrorism often pose serious challenges to economic, social and cultural rights. States therefore need to be mindful of their duty to ensure the conditions allowing all people living within their jurisdiction to enjoy all human rights, including economic, social and cultural rights. This is particularly important as the promotion of those rights should be seen as a means of addressing conditions conducive to the spread of terrorism and hence of preventing acts of terrorism.

70. The social and economic marginalization of and discrimination against vulnerable groups, such as minorities, indigenous peoples or underprivileged households of women and children often amount to violations of their human rights, in particular of their economic, social and cultural rights. These circumstances may also provide fertile soil for recruitment to movements that promise a prospect for change but resort to the unacceptable means of acts of terrorism.

71. Through their negative impact on the effective enjoyment of economic, social and cultural rights, insensitive counter-terrorism measures, even when they may have a justification as permissible limitations to human rights, often result in counterproductive effects that undermine the long-term beneficial role of the promotion of economic, social and cultural rights in sustainable strategies to prevent terrorism.

B. Recommendations

72. With reference to his country-specific work, the Special Rapporteur makes the following recommendations:

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(c) In his report on his mission to Israel, which included visits to the Occupied Palestinian Territory (A/HRC/6/17/Add.4), the Special Rapporteur addressed the adverse human rights consequences of the security barrier/wall constructed by Israel along and inside the Occupied Palestinian Territory, and its negative impact on, inter alia, the rights to work, health, housing and education. The Special Rapporteur recommends that the Government of Israel make an immediate decision to withdraw all Israeli settlements from the Occupied Palestinian Territory and replace the still unfinished barrier, which extends deep into Palestinian territory, with a security infrastructure that, by its geographical position, respects the Green Line or is otherwise accepted by the Palestinians. While that decision is being implemented, the Special Rapporteur recommends that urgent action be taken to ensure that the permits regime, the administration of checkpoints and all other associated measures in the Occupied Palestinian Territory do not have a disproportionate impact on the enjoyment of human rights, including economic, social and cultural rights;

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(f) With reference to his reports on his missions to Israel (A/HRC/6/17/Add.4) and Turkey, the Special Rapporteur urges Governments to ensure that any demolition of housing or other destruction of private property conducted as a measure aimed at combating or preventing terrorism is resorted to in strict compliance with international standards of international law and is accompanied by adequate reparation. Given that the high emotional impact of such measures could easily lead to counterproductive effects in the fight against terrorism, the Special Rapporteur recommends that Governments exercise extreme caution when resorting to such measures.

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Notes

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3Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion, I.C.J. 2004 Reports, 136, para. 116.

4 Ibid., paras. 112, 130 and 134.

5 Ibid., paras. 136 and 137.

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22 Henrietta Aswad, “Checkpoints compound the risks of childbirth for Palestinian women”, 15 May 2007. Available from www.unfpa.org; see also report of the Secretary-General on the situation of and assistance to Palestinian women (E/CN.6/2002/3), paras. 18-20.

23 Defence for Children International, Palestinian Section, “Sustained occupation: an analysis of human rights violations against Palestinian children in 2005” (Ramallah, 2005), pp. 55-62; Amnesty International report entitled “Enduring occupation: Palestinians under siege in the West Bank”, 2007, available from www.amnesty.org/resources/Israel_Report0706/.

24 Report of OMB Watch on “Muslim Charities and the War on Terror”, 2006, available from www.ombwatch.org.

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