In recent years Europe has been struck by the most vicious terrorist acts. We still remember with horror the attacks in Beslan, Istanbul, London, Madrid and several other cities. It is of the utmost importance that effective measures are taken to prevent such evil crimes in future. One of the crucial lessons we have learnt is that terrorism should not be fought with methods violating human rights. Such means undermine precisely those values which we want to defend against the enemies of democracy. And they are not effective.
Immediately after 9/11 the US administration started its ‘war on terror’. Seven years later it is obvious that the approach of the Bush administration has been deeply flawed. The ‘warfare’ has not only been ineffective, there are clear indications that the methods on the whole have even been counter-productive. The so-called collateral damage has planted seeds for further extremism.
People have been kidnapped and detained for several years without due process, some of them were even brought to secret prisons. Torture has been approved on the highest level in the US administration and systematically practiced. People have been blacklisted without a possibility to defend themselves and had their bank accounts frozen. Bugging, phone-tapping and other techniques of surveillance have been surreptiously introduced.
The civil rights of a high number of innocent people have been violated during this ‘warfare’. In particular, Muslims and persons coming from Arab countries or South Asia have been targeted. ‘Profiling’ of a racist or Islamophobic nature has been used.
Sadly, European countries have cooperated with this policy or looked the other way when US security agents have been active on their soil. This is also what made the rendition flights possible.
It is now urgent that the counter-terrorism measures be reviewed in Europe. This requires a sober approach, without scare-mongering and hysteria. The time has come to resurrect the respect for the human rights principles we once agreed upon but have been compromised in recent years.
I would recommend taking a close look at the experiences of Northern Ireland which suffered from the terrorist threat during no less than 30 years. The Committee on the Administration of Justice (CAJ) – a cross-community human rights group based in Belfast – has published an interesting and well -documented 120 page report: ‘War on Terror: Lessons from Northern Ireland’. In this work the CAJ has cooperated with the International Commission of Jurists in Geneva and in particular with the Eminent Jurists Panel.
More than 3,600 persons were killed during the ‘troubles’ (of a population of only 1,6 million people) and different emergency legislations and counter-terrorism measures were tried to put an end to the violence. At last, through the 1998 Good Friday Agreement the tide was turned and peace building could start. The CAJ report defines the good and bad lessons from these experiences. Many of them are relevant for other parts of the world.
A major lesson was that emergency legislation could easily lead to serious abuses and therefore be counter-productive. The experience in Northern Ireland was that such laws corroded the normal criminal justice system and politicised the rule of law.
Such legislation also proved ineffective in deterring terrorism as it tended to demonise and alienate the very communities that could be of most assistance in fighting terrorism. It fuelled the violence it attempted to contain by making real or perceived grievances worse, by normalising violence and by potentially giving propaganda victories to state opponents.
When special legislation was introduced in Northern Ireland, there were also supposed human rights safeguards adopted, such as regular reviews of the emergency powers. However, these safeguards were not enough to keep in check a state with extraordinary powers. The review processes were mostly ineffective. One reason was that their terms of reference were too limited.
Another reason was that the reviewers themselves were unwilling to take clear positions. Not even the judges turned out to be immune to the climate of fear that was dominating at the time. References to ‘national security’ tended to prevent an independent analysis. The government was left to interpret such requirements itself.
The counter-terrorism legislation was not balanced by stronger protection for human rights. This had an effect on policing which became very controversial in Northern Ireland and there were frequent allegations of ill-treatment, lethal force and discriminatory stop-and-search practices. An independent international commission was later set up to address these problems.
The commission proposed a series of measures to ensure that the police became more representative; that they received thorough human rights training; that effective accountability mechanisms were introduced; that a completely independent complaints system was established; and that greater community involvement with the police was actively encouraged.
Such measures could certainly have a preventive effect if taken at an early stage. The fact that the police commission was set up in Northern Ireland and came with concrete recommendations did clearly build trust. Indeed, the independent complaints system established there is now an impressive model for others.
Next lesson: it is absolutely crucial to protect the rule of law and the principles of due process. Public confidence in the justice system breaks down if people engaged in criminal acts are not arrested or if wrong suspects are imprisoned.
The report listed the lessons:
• Long or indeterminate pre-trial detention is unacceptable;
• Ill-treatment of detainees and prisoners must be actively prevented and allegations must be immediately and independently investigated;
• False allegations of torture or ill-treatment can avoided by ensuring independent medical examinations; immediate and confidential access to legal advice and to family; audio and video recording of interrogations; and unannounced visits to places of detention by independent observers;
• Coercive interrogations should also be prevented by proper police training; detailed custody records; court’s refusal to accept confession evidence secured through unacceptable interrogation methods; and serious penalties for wrongful behaviour of interrogators;
• The principle of ‘innocent until proven guilty’ requires that suspects be allowed to retain their right to silence and their right not to self-incriminate;
• Trials should be prompt and thereby avoid ‘internment by remand’; bail should be available for all but the most serious of charges;
• Trials should be fair and ensure equality of arms with full disclosure of evidence to defence solicitors; speedy access by the accused to independent legal advice; and an adequate legal aid system.
The experience in Northern Ireland underlines once again the importance of addressing the underlying causes of conflict. Effective programmes to tackle poverty, education gaps and discrimination are necessary as human rights requirements but also in order to prevent social exclusion, anger and violence.
A remaining challenge in Northern Ireland is how to deal with the tragedies of the past. Of course, the idea is not to provoke new tensions between the communities but to engage with the rights of the individual victims. Lasting peace and security requires that complaints of gross injustices are heard and handled by way of proper procedures in accordance with national and international human rights standards. This has to be handled with care but not ignored.
The CAJ report also explains about the impact of interventions from the Council of Europe and other international human rights bodies. The experience was largely positive and the various initiatives did contribute to the protection of human rights. ‘Sometimes international pressure can be much more influential than local efforts, though of course such pressure is best exerted when it is informed by local knowledge and expertise.’
Thomas Hammarberg
