1. The international legal framework The right and duty of states to fight terrorism A system of checks and balancing? Thordis Ingadottir, thi@ru.is Reykjavik University

2. United Nations – 16 Treaties 1.Aircraft Convention (1963) 2.Unlawful Seizure Convention (1970) 3.Civil Aviation Convention (1971) 4.Diplomatic Agents Convention (1973) 5.Hostages Taking Convention (1979) 6.Nuclear Material Convention (1979) 7.Airport Protocol (1988) 8.Maritime Convention (1988) 9.Fixed Platforms Protocol (1988) 10.Convention on the Marking of Plastic Explosives for the Purpose of Detection (1991) 11.Terrorist Bombings Convention (1997) 12.Terrorist Financing Convention (1999) 13.International Convention for the Suppression of Acts of Nuclear Terrorism (2005) 14.Amendments to the Nuclear Material Convention (2005) 15.Protocol to the Maritime Convention (2005) 16.Protocol to the Protocol on Fixed Platform (2005)

3. UN Conventions Limited to certain offences Duty to prosecute or extradite Universal jurisdiction Draft Convention on the definition of terrorism still being negotiated

4. UN Security Council and terrorism 1267 (1999): concerning Al-Qaida and the Taliban and Associated Individuals and Entities 1373 (2001) and 1624 (2005) Sanctions Committee Counter terrorist Committee

5. Legal framework of resolutions 1267 and 1373 Chapter VII of the UN Charter Article 25 of the UN Charter Article 39 and 41 of the UN Charter Article 103 of the UN Charter

6. Conventions of the Council of Europe  The European Convention on the Suppression of Terrorism [ETS No. 90].  Council of Europe Convention on the Prevention of Terrorism [ETS No. 196]  Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism [ETS No. 198]  The European Convention on Extradition (ETS No. 24) and its 2 Additional Protocols (ETS Nos 86 and 98)  The European Convention on Mutual Assistance in Criminal Matters (ETS No. 30) and its Additional Protocols (ETS Nos 99 and 182)  The European Convention on the Transfer of Proceedings in Criminal Matters (ETS No. 73)  The European Convention on the Compensation of Victims of Violent Crimes (ETS No. 116)  The Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (ETS No. 141).  The Convention on Cybercrime (ETS No. 185) and its Additional Protocol (ETS No. 189)

7. Council of Europe Convention on the Prevention of Terrorism (ETS 196) Approved by the CODEXTER: February 2005 Adopted by the Committee of Ministers: May 2005 Opened for signature: 16 May 2005 Entry into force: Ratification by 6 States 42 signatures and 14 ratifications. Convention entered into force on 1 June 2007

8. “Apologie du terrorisme” Aims: The definitions used in relation to terrorism The concepts of "apologie du terrorisme" and the search for an equal balance between freedom of expression and the need to prevent terrorism. Results: Publication of "Apologie du terrorisme" and "Incitement to terrorism" (2004) Inclusion of the provision to the Convention for the prevention of terrorism on “Public provocation to commit a terrorist offence” (Article 5)

9. COE Country Profiles

11. The fight against terrorism and infringement of human rights

12. Council of Europe: Guidelines on Human Rights and the Fight against Terrorism Adoption by the Committee of Ministers: 11 July 2002 Aim: to help States to contribute effectively to the fight against terrorism whilst respecting human rights and fundamental freedoms and to show that it is possible to reconcile the needs of the defence of society with the protection of fundamental rights and freedoms. This is the first international legal document dealing with this issue. Contents: 17 principles setting the limits States must impose in their fight against terrorism, in the light of international texts and the case-law of the European Court of Human Rights. Guidelines on the Protection of Victims of Terrorist Acts, adopted by the Council of Ministers on 5 March 2005.

13. SC Resolution 1456(2003): “States must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular human rights, refugee, and humanitarian law”.

14. Monitoring by the UN Human Rights Mechanism UN human right treaties: Non-derogable rights; Complaints mechanism UN Human Rights Council

15. UN Special Rapporteurs and independent experts “Although they share in the unequivocal condemnation of terrorism, they voice profound concern at the multiplication of policies, legislation and practices increasingly being adopted by many countries in the name of the fight against terrorism which affect negatively the enjoyment of virtually all human rights – civil, cultural, economic, political and social.” (E/CN.4/2004/4, annex 1)

16. “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.” Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (Martin Scheinen). Report 21 November 2007 (UN Doc. A/HRC/6/17).

17. Counter Terrorist Committe Review Report 2008 on the implementation of Res. 1373 162. However, United Nations human rights mechanisms continue to express concerns over measures that appear to violate States’ obligations under international law. Such measures have been identified, to varying degrees, in virtually all the world’s regions. In connection with resolution 1373 (2001), those concerns fall into several categories. 163. With respect to the requirement that States establish terrorist acts as serious criminal offences in domestic laws and regulations, concerns have been raised over vague or overbroad legal definitions of terrorist acts or groups which infringe the principle of legality and may be used to suppress freedom of opinion, expression and association in a manner that violates State obligations under international human rights law.

18. 164. With respect to the need to ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice, a number of concerns have been raised regarding certain aspects of the administration of justice in some Member States, including conduct that violates State obligations under international human rights law that involves disregard for the presumption of innocence, the use of incommunicado detention, the practice of torture, denial of access to the court system and due process rights, extended or indefinite detention without trial, and excessive use of force by law enforcement agencies.

19. 165. As for international cooperation, United Nations mechanisms have expressed concern over the transfer of terrorism suspects and where such transfer would be contrary to States’ non-refoulement obligations under international law, including the obligation of State Parties under article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment not to expel, return or extradite a person to another State where he or she would be in danger of being subjected to torture. Whether or not States use diplomatic assurances, they must ensure that they comply with their obligations with regard to the principle of non-refoulement. Concerns have also been expressed about the erosion of the rightto seek asylum and counter-terrorism measures that undermine the humanity and dignity of asylum seekers.

20. Impact Security Council - 1373 implementation reports; Working Group addressing human rights issues (2008) - Res.1267; Focal point for De-listing (SC Res 1730 (2006)

21. Role of international courts and tribunals

22. International Court of Justice: Advisory Opinion 2004 – Wall Case Protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation included in those instruments.

23. European Court of Human Rights Saadi v. Italy (February 28, 2008) European Court of Human Rights Reasserts the Absolute Prohibition on Refoulment in Terrorism Extradition Cases Absolute Nature of Article 3 Diplomatic Assurances and Non- Refoulment

24. Saadi v. Italy (February 28, 2008) The absolute nature of the prohibition on torture, inhuman and degrading treatment or punishment "enshrines one of the fundamental values of democratic societies“ and must therefore be maintained, even in times of emergency or war. Notwithstanding the fact that states face "immense difficulties" in combating the contemporary international terrorist threat, one's suspected involvement in terrorist activity does not take away from the absolute nature of their rights under Article 3: As the prohibition of torture and of inhuman or degrading treatment or punishment is absolute, irrespective of the victim's conduct [internal ref omitted], the nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3 [internal ref omitted]. The Court noted that it had reached a similar conclusion in Chahal v UK and held that even if it were true that the terrorist threat has increased since that time this does not call into question the absolute nature of the prohibition in Article 3.

25. European Court of Justice Court of First Instance 21. september 2005, Case T-306/01 Ahmet Ali Yusuf, Al Barakaat International Foundation v. Council of the European Union and Commission of the EC

26. Court of First Instance “From the standpoint of international law, the obligations of the Member States of the United Nations under the Charter of the United Nations clearly prevail over every other obligation of domestic law or of international treaty law including, for those of them that are members of the Council of Europe, their obligations under the ECHR and, for those that are also members of the Community, their obligations under the EC Treaty.” p. 231

27. Grand Chamber 3 September 2008 283 In addition, according to settled case-law, fundamental rights form an integral part of the general principles of law whose observance the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international instruments for the protection of human rights on which the Member States have collaborated or to which they are signatories. In that regard, the ECHR has special significance (see, inter alia, Case C ‑ 305/05 Ordre des barreaux francophones et germanophone and Others [2007] ECR I ‑ 5305, paragraph 29 and case-law cited). 284 It is also clear from the case-law that respect for human rights is a condition of the lawfulness of Community acts (Opinion 2/94, paragraph 34) and that measures incompatible with respect for human rights are not acceptable in the Community (Case C ‑ 112/00 Schmidberger [2003] ECR I ‑ 5659, paragraph 73 and case-law cited).

28. Grand Chamber, cont. 285 It follows from all those considerations that the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights, that respect constituting a condition of their lawfulness which it is for the Court to review in the framework of the complete system of legal remedies established by the Treaty. 326 It follows from the foregoing that the Community judicature must, in accordance with the powers conferred on it by the EC Treaty, ensure the review, in principle the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law, including review of Community measures which, like the contested regulation, are designed to give effect to the resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations.

29. Grand Chamber, cont. 322 Indeed, such immunity, constituting a significant derogation from the scheme of judicial protection of fundamental rights laid down by the EC Treaty, appears unjustified, for clearly that re-examination procedure does not offer the guarantees of judicial protection. 323 In that regard, although it is now open to any person or entity to approach the Sanctions Committee directly, submitting a request to be removed from the summary list at what is called the ‘focal’ point, the fact remains that the procedure before that Committee is still in essence diplomatic and intergovernmental, the persons or entities concerned having no real opportunity of asserting their rights and that committee taking its decisions by consensus, each of its members having a right of veto. 324 The Guidelines of the Sanctions Committee, as last amended on 12 February 2007, make it plain that an applicant submitting a request for removal from the list may in no way assert his rights himself during the procedure before the Sanctions Committee or be represented for that purpose, the Government of his State of residence or of citizenship alone having the right to submit observations on that request. 325 Moreover, those Guidelines do not require the Sanctions Committee to communicate to the applicant the reasons and evidence justifying his appearance in the summary list or to give him access, even restricted, to that information. Last, if that Committee rejects the request for removal from the list, it is under no obligation to give reasons.

30. cont. It must, therefore, be held that the contested regulation, in so far as it concerns the appellants, was adopted without any guarantee being given as to the communication of the inculpatory evidence against them or as to their being heard in that connection, so that it must be found that that regulation was adopted according to a procedure in which the appellants’ rights of defence were not observed, which has had the further consequence that the principle of effective judicial protection has been infringed.

31. Future Europeanization of the UN system?