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Lawyers point way out of anti-terrorism trap

Mary Robinson, panel chair Arthur Chaskalson and Hina Jilani at the launch of the report Keystone

A panel of eminent judges and lawyers has called on the international community to repeal abusive laws and policies enacted in the global counter-terrorism campaign.

In a report based on three years of investigation, the eight-member panel, established by the Geneva-based International Commission of Jurists, has documented the human rights violations committed around the world in the name of combating terrorism.

These include torture, enforced disappearances, secret and arbitrary detentions and unfair trials. The report drew on public and private hearings covering 40 countries.

“The world has not become more secure but more divided,” former United Nations Human Rights Commissioner Mary Robinson told swissinfo at the launch of the report in Geneva.

Robinson deplored collusion between liberal democracies and countries with very bad human rights records.

“There is such cynicism at the moment that countries preach democracy and human rights but actually undermine them. That is a very dangerous situation for our world,” she said.

The former Irish president referred to the lessons of history. “To justify these measures, governments are using the same language as was used in the past in the bad times in South American dictatorships,” she added.

Robinson also recalled the example of Northern Ireland and the introduction of internment without trial in the 1970s, which was used to clamp down on attacks by the Irish Republican Army (IRA).

“The police themselves said that [internment] was an unmitigated disaster,” she said.

More transparency

Robinson called for more transparency and accountability above all. “There is the rhetoric of human rights in countering terrorism. There is no rigorous scrutiny and I feel very strongly as former high commissioner for human rights that that has to change.”

The report points out that many states have fallen into a trap set by the terrorists, allowing themselves to be rushed into hasty responses and introducing measures which undermine cherished values.

“The panel calls on policymakers to rely on civilian legal systems, utilise criminal courts and not resort to ad-hoc tribunals or military courts to try terror suspects,” it said.

“It is time for the international community to regroup, take remedial action and reassert the core principles of international law.”


The panellists listened to testimonies from government officials, victims of terrorism, rendition survivors and civil society groups. It concluded that the legal systems in place after the Second World War were well equipped to handle current terror threats.

“We’ve seen intelligence services around the world acting with insufficient accountability and intelligence cooperation being undertaken outside the rule of law,” said panel member Hina Jilani, lawyer of the Supreme Court of Pakistan and former UN Special Representative on Human Rights Defenders.

“This intelligence is then used in various legal proceedings and cannot be contested. Secrecy is becoming a pervasive feature in our legal systems,” she added.

The scale of the problem is remarkable, according to Swiss panel member Stefan Trechsel, former appeals judge at the International Criminal Tribunals for the former Yugoslavia and Rwanda.

“Almost every country is involved, as well as international organisations,” he said.

“Wake-up call”

However, Trechsel acknowledged that for Switzerland, where legislation and practice in dealing with counter-terrorism were acceptable enough, the report was more of a reminder to stay on guard. An allusion perhaps to the secret CIA transporthowevers of terrorist suspects through Swiss air space.

It remains to be seen if this report will finish – like so many others – on the scrapheap of fine principles that were never respected.

To avoid this fate, the panellists hope to convince the UN Security Council and the Human Rights Council to lead the drive to re-establish the rule of law in the fight against terrorism.

The report repeatedly remarks upon the extent to which undemocratic regimes with deplorable human rights records have referred to counter-terror practices of countries like the US to justify their own abusive policies.

Signs from Washington are promising, according to the former Irish president. “The new administration in the United States recognises the seriousness of the damage done and President Obama has taken some steps to address this already. I hope this is a wake up call for all governments.”

swissinfo, based on an article in French by Frédéric Burnand in Geneva

The International Commission of Jurists (ICJ) is a non-governmental organisation devoted to promoting the understanding and observance of the rule of law and the legal protection of human rights throughout the world.

It is headquartered in Geneva, Switzerland, and has many national sections and affiliated organisations.

Justice Arthur Chaskalson (South Africa), former Chief Justice and first President of South Africa’s Constitutional Court (Panel Chair);
Georges Abi-Saab (Egypt), Emeritus Professor of International Law at Graduate Institute of International and Development Studies, Geneva, former appeals judge at the International Criminal Tribunals for the former Yugoslavia and Rwanda, and member of the World Trade Organization Appellate Body;
Robert K. Goldman (USA), Professor of Law at American University Washington College of Law, former President of the Inter-American Commission on Human Rights, and former UN Independent Expert on the protection of human rights and fundamental freedoms while countering terrorism;
Hina Jilani (Pakistan), lawyer before the Supreme Court of Pakistan and former UN Secretary General’s Special Representative on the situation of human rights defenders;
Vitit Muntarbhorn (Thailand), Professor of Law at Chulalongkorn University, Bangkok, and UN Human Rights Council’s Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea;
Mary Robinson (Ireland), President of Realizing Rights: the Ethical Globalization Initiative, former UN High Commissioner for Human Rights and former President of Ireland;
Stefan Trechsel (Switzerland), judge ad litem at the International Criminal Tribunal for the former Yugoslavia, former President of the European Commission on Human Rights and Emeritus Professor of Law at University of Zurich;
Justice Raúl Zaffaroni (Argentina), judge at the Supreme Court of Argentina, Emeritus Professor at the University of Buenos Aires, and former Director of the UN’s Latin American Institute for the Prevention of Crime and the Treatment of Offenders.

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SWI - a branch of Swiss Broadcasting Corporation SRG SSR

SWI - a branch of Swiss Broadcasting Corporation SRG SSR