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Ben Emmerson’s Harvard speech

 

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Ben Emmerson QC

 

United Nations Special Rapporteur

on Counter-Terrorism and Human Rights

 

In the years immediately following the Al Qaida attacks on New York, Washington and Pennsylvania in 2001 the protection of human rights and the rule of law was all but forgotten in the rush to implement unprecedented security measures right across the globe.  The US was by no means unique.  In what has rightly been described as a paradigm shift in State rhetoric and practice, the protection of human rights was swiftly sidelined as a dispensable luxury.  This was a tidal wave of panic legislation across the globe which has caused incalculable and lasting damage to the architecture of international human rights law. 

 

Government officials and policy makers, particularly in the liberal democracies, claimed that the rules had changed, or just invented new rules of international law of dubious provenance.  They dismissed as unrealistic calls for faithful adherence to certain basic minimum rights in confronting this new global threat. 

 

Over time, as the dust has very gradually come to settle, more mature reflection has finally been brought to bear on some of the problems.  The international community has come to accept, at least formally, that it is only by adherence to international human rights standards that counter-terrorism strategies can ultimately succeed.  Respect for the rule of law is not solely a question of legitimacy in this context.  It is also a question of effective prevention.  Experience has shown that human rights abuse by States is an extremely effective means of spreading support for terrorist organisations. 

 

 

The theme of my remarks today is the role played by the United Nations in the learning process that has taken place over the last decade.  As an inter-governmental organisation with an asymmetrical power dynamic, it might be expected that the UN would replicate or at least endorse the patterns of thought that underlay State responses in the immediate aftermath of 9/11.  And to some extent that is true.  But in the decade or so since then a human rights component has slowly but purposefully found its way onto the UN’s counter-terrorism agenda, and is now an inherent and integral part of its work.  

 

Under the Charter of the United Nations it is the primary function of the Security Council to promote and maintain international peace and security and for this purpose it has available a range of powers under Chapter VII of the Charter including the power under Article 41 to impose sanctions on States and non-state entities and individuals.  In the immediate aftermath of 9/11 the Council ramped up its counter-terrorism initiatives, and began to establish the elements of what has now become a permanent counter-terrorism apparatus operating at the international level.   As with national measures adopted in haste, some of the changes implemented at UN level were better thought out than others. 

 

The core Security Council decision was resolution 1373 (2002) which imposed a series of obligations on States to criminalise all forms of terrorism, including terrorist financing, to freeze the assets of terrorist organisations and those associated with them, and to impose penalties reflecting the gravity of these offences.  This was the first time the Security Council had imposed a binding obligation on States to amend their own domestic criminal law.  Many States reacted by introducing new or special legislation, often at great speed and with minimal legislative scrutiny or debate.

 

Initially, there was little mention of human rights in any of the initiatives at UN level.  But in 2003 the Security Council passed resolution 1456 which included for the first time a provision requiring States to ensure that any measures taken to combat terrorism must comply with their obligations under international law, and in particular international human rights, humanitarian and refugee law. 

 

It is perhaps surprising that it should have taken so long for the UN to wake up to this issue.  The promotion and protection of human rights is, after all, one of the core functions of the UN set out in terms in Article 1 of its Charter, on an equal footing with its responsibility to maintain international peace and security.  As the former Secretary-General, Kofi Annan, has said respect for the rule of law is at the very heart of the UN’s mission.  But it is that apparent tension between security and human rights, counter-terrorism and the rule of law that has so polarised opinion within and between UN Member States, and has delayed the development of a meaningful consensus on how international law should respond to the threat of terrorism.

 

It is all very well, some would say, for the Security Council to adopt high-sounding statements of principle. But the practices of States has failed to  follow their commitments.  What makes this area so complex, and so difficult, is the ever-present danger that some States, including States with a proud record of respect for the democracy, human rights and the rule of law, have shown themselves willing to abandon the core values of democracy so quickly on the pretext of defending them.

 

To many, the formulation adopted by the Security Council in resolution 1456, which has repeated in virtually every resolution passed since then, has been little more than boiler-plate language devoid of meaningful content.  For them, the words rang hollow whilst States, including permanent members of the Security Council, continued to flout basic constitutional principles such effective judicial review of executive detention, the prohibition on torture, reliance on evidence obtained by torture, and the introduction of open-ended emergency provisions derogating from their obligations under international human rights treaties.

 

The process of reform at UN level did not begin in earnest until 2006 when the General Assembly adopted the UN Global Counter-Terrorism Strategy.  This was intended to be the first comprehensive international statement of obligations resting on States to combat terrorism, and to promote international co-operation within a rule of law framework.  Pillar IV of the Strategy sets out specific rule of law guarantees.  The requirement for human rights protection underpins the entire Strategy.  Whilst the Strategy was under negotiation the UN Human Rights Commission established the mandate of Special Rapporteur on Counter-Terrorism and Human Rights, the mandate which I now hold. 

 

As one of the Human Rights Council’s so-called special procedures, the mandate of the Special Rapporteur on Counter-Terrorism and Human Rights operates under the auspices of the Office of the High Commissioner for Human Rights in Geneva.  The Special Rapporteur is required to report every six months to the General Assembly and the Human Rights Council on thematic issues relevant to the mandate, to liaise with UN counter-terrorism bodies, including bodies established by the Security Council, and to provide technical and other advice to States through country visits and other forms of dialogue. 

 

The central priority of my mandate is to maintain a close watch on practices that undermine international standards in the prevention, investigation, prosecution and punishment of those accused of acts of terrorism, as well as the range of executive and even military measures taken at a national and international level to suppress terrorism. 

 

However, I have made it clear since I took office that I intended to ensure that proportionate attention was also paid to the human rights of the victims of terrorist acts.  I want to say just a few words on that subject, because I don’t believe one can sensibly begin talking about human rights in this context without recognising the human tragedies that lie beneath the statistics.  My first thematic report to the Human Rights Council set out an international framework for protecting the rights of the direct and indirect victims of terrorist crime.  At the core of the framework principles is the simple proposition – still surprisingly disputed by some States and many human rights NGOs – that all acts of terrorism in which civilians are killed or seriously injured amount to gross human rights violations. 

 

It is my belief that human rights law needs broadly to conform with the views of the women and men around the world whose rights it exists to protect.  That is the source of its legitimacy.  And if one were to ask any woman or man, in any capital city, in any country in the world, whether the mass killing of innocent civilians in a terrorist attack is a human rights violation they would tell you that the answer is obvious.  Indeed, as Amnesty International has recognised, some such acts can properly be characterised as crimes against humanity.

 

States therefore have a legal obligation to protect the lives of their citizens and those within their jurisdiction.  Indeed it can be said that this is the primary obligation of a State, and part of the very raison d’etre of Statehood.  We should not mince our words here.  Effective counter-terrorism is, in itself, a human rights obligation resting on States.  Constructive dialogue with States on the protection of human rights in countering terrorism begins with this truism.  But it doesn’t end there.

 

Protecting the rights of the victims, and potential victims of terrorism, does not mean infringing the rights of those accused or suspected of involvement in acts of terrorism.  However trite this proposition may have come to sound nowadays, it remains the central axiom for any comprehensive counter-terrorism strategy.  Effective national security and the protection of human rights are not competing imperatives, but complimentary ones.  In drafting the framework principles I consulted widely with organisations representing victims of terrorism and with the victims themselves.  And I can tell you that their call is not for more human rights abuse, more water-boarding and torture, more secret detention, or indefinite detention without trial.  Their call is for accountability through open, fair and transparent criminal procedures that respect the rule of law. 

 

The positive statements of principle by the General Assembly and the Security Council have to be turned from mere rhetoric into practice.  Let me give you a very practical illustration of what I mean by that.  The right to a fair and public hearing by an independent and impartial tribunal, is traditionally regarded as a right belonging to the accused.  But it is just as much a right that belongs to the victim.  Indefinite executive detention, secret trials, and the use of unreliable evidence procured by torture, each amount in their different ways to a denial of the victims’ basic right to truth and accountability. 

 

Security Council resolution 1963 (2010) finally recognised in terms that terrorism will not be defeated by military force, law enforcement measures, and intelligence operations alone, and underlines the need to address the conditions conducive to the spread of terrorism.  It recognises that respect for the rule of law, and the protection of human rights and fundamental freedoms, are essential means of offering a viable alternative to those who could otherwise be susceptible to terrorist recruitment and to radicalization. 

 

In other words, the Security Council itself has now come to accept that it is necessary to tackle not only the manifestations of terrorism but also its causes.  In the process it has also acknowledged that respect for human rights is essential to an effective strategy of prevention, and that the reverse is equally true.  Human rights abuse, such as the use of water-boarding and other forms of torture are in the final analysis counter-productive.

 

Just as the introduction of internment in Northern Ireland turned the IRA from a fringe organisation into a popular movement with grassroots community support, so the photographs of abuse at Abu Graib, and the official authorisation of torture at Guantanamo Bay and elsewhere, have reverberated around the world as clarion calls for terrorist recruitment.

 

So much then for the approach that I take to my mandate.  I want to turn now, if I may, to some of the specific challenges that are among the most pressing concerns that I have to deal with.

 

The first core challenge is what I will call the global war paradigm.  This is the proposition, culled by lawyers and officials of the US State Department under the Bush administration, that since 9/11 the US and its allies have been at war with a stateless enemy and that accordingly its actions are to be judged by the laws of war, rather than the laws applicable in peace-time.  This change of approach was immediately announced by President Bush within days of the 9/11 attacks.  “On September 11”, he said, “the enemies of freedom committed an act of war against our country.  Our war on terror begins with Al Qaida but it does not end there.  It will not end until every terrorist group of global reach has been found, stopped and defeated.”

 

The idea that international terrorism in all of its modern forms and manifestations is capable of being definitively defeated by military means seems with retrospect extremely naïve.  We have seen new forms of terrorism, and new alliances forming even over the past few months in Libya, Mali, other parts of North Africa, Syria and elsewhere.  No one now seriously believes that terrorism is a phenomenon that is capable of being militarily defeated.  It is a reality with which nations and the international community must contend.  It calls for a sustainable approach that tackles not only the manifestations of terrorism but also its root causes.  But in the meantime the global war paradigm has done immense damage to a previously shared international consensus on the legal framework underlying both international human rights law and international humanitarian law.  It has also given a spurious justification to a range of serious human rights and humanitarian law violations.

 

Estimates suggest that thousands of people were detained by US forces as enemy combatants, including the more than 800 detainees to have passed through the Guantanamo Bay detention facility, as well many more who were detained in Afghanistan and Iraq as well as at secret detention facilities in other States, including Poland, Romania and Lithuania and many others, set up and run in co-ordination with the CIA’s secret detention and renditions programme.

 

The war paradigm was always based on the flimsiest of reasoning, and was not supported even by close allies of the US.  The first term Obama administration initially retreated from this approach, but over the past 18 months it has begun to rear its head once again, in briefings by administration officials seeking to provide a legal justification for the drone programme of targeted killing in Pakistan, Yemen and Somalia. 

 

A leading academic study by two US universities, released last month, has endorsed the figures of the London-based Bureau of Investigative as amongst the most reliable sources available in relation to the impact of these drone attacks.  Those figures suggest that at least 474 civilians have been killed in Pakistan alone, and that 176 children are reported among the deaths. The Bureau has also alleged that since President Obama took office at least 50 civilians were killed in follow-up strikes when they had gone to help victims and more than 20 civilians have also been attacked in deliberate strikes on funerals and mourners.  My colleague Christof Heyns, the Special Rapporteur on extra-judicial, summary and arbitrary executions has described such attacks, if they prove to have happened, as war crimes.  I would endorse that view.

 

The Obama administration continues formally to adopt the position that it will neither confirm nor deny the existence of the drone program, whilst allowing senior officials to give public justifications of its supposed legality in personal lectures and interviews.  In reality the administration is holding its finger in the dam of public accountability.  There are now a large number of law suits, in different parts of the world, including in the UK, Pakistan and in the US itself, through which pressure for investigation and accountability is building.   Just last week the High Court in London heard an application for judicial review by the son of a man who was allegedly killed in a US drone strike in North Waziristan in March last year.   The strike killed 40 people who – it is claimed – were meeting to discuss a local mining dispute.  He is seeking a declaration from the High Court that it is unlawful for the UK’s signals intelligence agency GCHQ to share targeting intelligence with the United States, for the purposes of drone attacks.  The claim is that GCHQ has been using telephone intercepts to provide the US with locational intelligence on alleged militants in Pakistan and Afghanistan.

 

In Pakistan itself, there are two separate claims proceeding in the courts.  One is aimed at triggering a criminal investigation into the actions of two former CIA officials alleged to be responsible for drone strikes which caused disproportionate civilian casualties.  The other is seeking a declaration that the strikes amount to acts of war, in order to pressurise the Pakistani air force into shooting down drones operating in the country’s airspace.  Whatever the outcome of these cases, the suggestions that have been made to the effect that the Government of Pakistan has given tacit consent to the use of US drones on its territory is under scrutiny.

 

During the last session of the UN Human Rights Council in Geneva in June many states, including Russia and China called for an investigation into the use of drone strikes as a means of targeted killing.   One of the States that made that call was Pakistan.  I was asked by these States to bring forward proposals on this issue, and I have been working closely on the subject of drones with Christof Heyns.  The issue is moving rapidly up the international agenda.

A great deal of ink has been spilt debating whether these operations should be judged according humanitarian law (the law of war) or the principles of international human rights law.  But either way, the first step is to establish the facts.  Even in areas affected by international or internal armed conflict, humanitarian law requires combatants to take adequate precautions to prevent avoidable civilian casualties – the so-called principles of discrimination and proportionality. 

 

I have therefore called upon those states using drone technology as a means of targeted killing to establish a system of independent investigation into the justification for the targeting, and the proportionality of the action taken.   Whichever legal regime applies, the first step is to determine what actually happened.  The standards for an effective independent investigation are set by international human rights law.

 

If these standards are to be met it will, in the first instance at least, be for the States that use this technology, and the States on whose territory it is used, to establish sufficiently robust and independent investigative procedures.  Independence here means institutional independence from the bodies whose actions are in question.  Mechanisms can readily be devised for securing the confidentiality of intelligence and technical data, whilst entrusting the investigation to specialist investigators with security clearance, that are genuinely independent of the authorities making use of the technology whose actions may be under investigation. 

 

If the relevant States are not willing to establish effective independent monitoring mechanisms that meet these international standards, then it may in the last resort be necessary for the UN to act, and to establish such mechanisms itself.  Steps are already in hand to set up the necessary modalities, and following discussions this week I can today announce that, together with my colleague Christof Heyns, I will be launching an investigation unit within the Special Procedures of the Human Rights Council to inquire into individual drone attacks, and other forms of targeted killing conducted in counter-terrorism operations, in which it is alleged that civilian casualties have been inflicted, and to seek explanations from the States using this technology and the States on whose territory it is used.  This unit will begin its work early next year and will be based in Geneva. 

 

The second topic I want to touch upon is the principle of accountability and so naturally follows on from the last topic.   In February 2010 my mandate, together with three other UN special procedures mandates, presented a  Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism to the United Nations Human Rights Council. The UN Study included a detailed analysis of the evidence as to the practice of secret detention both before and after 11 September 2001 in Asia, Central Asia, Europe, the Middle East and North Africa and Sub-Saharan Africa and made recommendations including as to the duty of states to investigate allegations of secret detention, torture and rendition and, where appropriate, provide reparation to victims of these practices. 

 

The report identified a number of States that appeared to have been directly complicit in violations of international law by detaining so-called high-value detainees in secret black site locations on their territory, or allowing the use of their air transport facilities or airspace to facilitate extraordinary renditions, that is international movement of suspects outside the framework of international law.  Some of those detained have alleged that they were tortured at these locations.

 

Similar investigations have been conducted by the Human Rights Sub-Committee of the European Parliament and by the Council of Europe’s Parliamentary Assembly.  Despite significant obstacles, the case for securing accountability is gathering momentum.  Congress has also conducted an investigation into these practices, although its report has not yet been made public.  Meanwhile there are criminal, parliamentary and judicial inquiries taking place in a number of States.  A prosecution of a senior official has begun in Poland, and the European Court of Human Rights has recently demanded a complete explanation from Poland and from Romania of their involvement in the CIA programme in the context of an application brought by one of the Guatanamo detainees who is currently facing the death penalty in a military commission trial alleging his participation in the attack on the USS Cole.  There are at least four other cases in the pipeline in which European States are being called to account for the complicity in the use of secret detention, rendition and torture in support of the operations run by the Bush-era CIA. 

 

There are also domestic investigations, including criminal investigations, taking place in the United Kingdom into the collaboration of public officials with the  unlawful counter-terrorism practices of the Bush-era CIA.

 

Accountability of public officials for human violations in a counter-terrorism context is the theme of my next report to the Human Rights Council which will be presented in March of next year.  The time has come for the international community to agree minimum standard principles for investigating such allegations and holding those responsible to account.  Let us be clear on this.  Secret detention is unlawful as a matter of international law.  Water-boarding is always torture.  Torture is an international crime of universal jurisdiction.  The torturer, like the pirate before him, is regarded in international law as the enemy of all mankind.  There is therefore a duty on States to investigate and to prosecute acts of torture.

 

Whilst there has been significant progress towards securing accountability for these crimes, there is not the slightest room for complacency.  It is perhaps surprising that the position of the two candidates on this issue has not even featured during their presidential elections campaigns, and got no mention at all in Monday’s night’s foreign policy debate. 

 

We now know that the two candidates are in agreement on the use of drones.  But the issue of so-called enhanced interrogation techniques is an one which, according to the record, continues to divide them.  I should make it absolutely clear that my mandate does not see to eye to eye with the Obama administration on a range of issues – not least the lack of transparency over the drone programme.  But on this issue the President has been clear since he took office that water-boarding is torture that it is contrary to American values and that it would stop.  This is not a uniquely democrat position.  Senator McCain clashed fiercely with Governor Romney in the 2007 Republican primaries on this issue, accusing Romney of adopting a position that would put the US administration on a par with Pol Pot. 

 

But Governor Romney has said that he does not believe that water-boarding is torture.  He has said that he would allow enhanced interrogation techniques that go beyond those now permitted by the army field manual, and his security advisers have recommended that he rescind the existing restrictions.  This surely is an issue that is worth debating in the foreign policy aspects of the current election? 

 

Anyone who is in doubt about whether water boarding is torture should read the account of the late, great Anglo-American polemicist Christopher Hitchens who decided, not long before he died, to submit himself voluntarily to water-boarding at the hands of some former CIA interrogators in order to be able to answer for himself the question whether water-boarding is torture. 

 

Anyone who is in doubt about whether water-boarding is torture should visit Tuol Sleng, the infamous S-21 detention facility operated by the Khymer Rouge in Phnom Penh.  Over a period of 4 years 14,000 people were systemmatically tortured and killed there.  It is now a genocide museum.  And right there, in the middle of the central torturing room, is the apparatus used by Pol Pot’s security officials for water-boarding. 

 

In his fascinating book Why Terrorism Works the great Harvard law professor Alan Dershowitz draws on the history of torture warrants issued in England by the Tudor and Stuart monarchs as a possible model for the introduction of Presidential torture warrants.  The English House of Lords took a rather closer look at this history in 2005 in a decision considering whether information derived from US water-boarding could be admitted in an English court whose function it was to review executive action – in that case administrative detention on national security grounds.  The case is known as A and others No. 2.  As the judgment makes clear, even during the Tudors and Stuarts the judges would have nothing to do with torture warranting because they regarded it as unlawful.  The reason they tolerated torture under the hand of the monarch was because the monarch derived his or her authority directly from God and was above the law.  For many, the single greatest achievement of the English civil war was the abolition of this abusive power.  Voltaire regarded England’s rejection of torture, at a time when it was tolerated by lawyers and judges in continental Europe, as the very root of the English common law, of the rule of law, and as the prime illustration of the principle that the monarch is subject to the law like everyone else.  The result was that without the need to refer to modern international instruments prohibiting the use of evidence obtained by torture the English House of Lords was able to say that evidence derived from interrogation techniques such as water-boarding could not be relied upon in any judicial proceeding.  The principle, they said, was as old as the common law itself.

 

If Governor Romney or his advisers believe that water-boarding is not torture then they are quite simply wrong.  Not only is it currently regarded as torture by the present administration but it is also regarded as such by leading republican figures.  The rest of the world is quite clear on this, and some countries are, as we speak, going after those responsible for collaborating with this practice in order to bring them to justice.  As the Security Council has come to recognise, the use of human rights abusive counter-terrorism policies such as water-boarding is one of the conditions conducive to the spread of terrorism. 

 

Let me make it absolutely clear that my job as special rapporteur is not to speak for the United Nations but to speak to the United Nations and its member States.  I am an independent mandate-holder reporting to the General Assembly and the Human Rights Council.  It is certainly not my function to advise people how they should vote.  But on an issue as important as this it is my responsibility to raise questions, to seek clarifications and to bring attention to an issue with profound international implications.  So let me make the position of this mandate absolutely clear.  The re-introduction of water-boarding would be a retrograde step and would put the United States in clear breach of international law once again.  It could expose officials to investigation and prosecution in other States and it would seriously hamper intelligence-sharing with States that do not use torture.  So far from making the world a safer place, the re-introduction of water-boarding would have precisely the opposite effect. 

 

Perhaps the last word on the subject should go to a great Catholic thinker, Christopher Dawson, who wrote in 1943, when Britain and the United States were pitted together against the evils of Nazi Germany:  “As soon as men decide that all means are permitted to fight an evil, then their good becomes indistinguishable from the evil that they set out to destroy”.

 

I would not want to leave you with the impression that the United Nations is above criticism when it comes to the implementation of its own counter-terrorism measures. Under resolution 1989 (2011) the Security Council renewed its regime of targeted sanctions against Al Qaida and those associated with it.  In its current form the regime requires all States to impose a range of measures, including asset freezes, international travel bans, and arms embargoes on individuals and entities designated by its own sanctions committee as being associated with Al Qaida.  These sanctions typically result in a denial of access by listed individuals to their own property, a refusal of social security benefits, limitations on their ability to work, and restrictions on their ability to move around domestically or travel abroad.  It affects every area of their daily lives and led the United Kingdom Supreme Court to describe designated individuals as effectively prisoners of the state. 

 

The adoption of a measure which enables the Security Council to make listing decisions without any ex ante independent review has been seen by many as a ready means by which individual States can make executive decisions with far reaching consequences for their own citizens unconstrained by domestic judicial review or the human rights treaties by which they are bound.  Predictably therefore the regime has come under sustained and strongly worded criticism over the years, including from the UN High Commissioner for Human Rights, my predecessor, as well as a wide range of national and regional judicial and academic criticism.  The concerns of the international community were summed up in 2009 by the Eminent Jurists Panel of the ICJ.  Referring to the virtually uniform criticism of the regime as it currently operates, the Panel concluded that it violated fundamental principles of human rights and the rule of law and agreed with the Parliamentary Assembly that it was unworthy of an international institution.

 

Under mounting pressure the Security Council introduced an Ombudsperson with power to make non-binding recommendations to the Committee for the de-listing of individuals, and subsequently strengthened her mandate to give it added traction.  But the ultimate decision-making power still rests with the Committee which is, on any view, a purely executive body that is not subject to binding judicial review on the merits.

 

On 29 October I will be presenting to the General Assembly my report on the compatibility of the sanctions regime, and the role of the Ombudsperson, with international norms of due process.  I have consulted widely in preparing the report, with the Sanctions Committee itself, the Sanctions Monitoring Team, the Ombudsperson and many of the lawyers acting for listed individuals.  I have seen material that satisfies me that individuals have been designated on the basis of evidence supplied by States known to practice torture – including information supplied by Mubarak’s Egypt, and information derived from water-boarding at Guantanamo Bay.

 

My report will recommend that the Ombudsperson be replaced by an independent adjudicator, with power to direct the de-listing of individuals; that evidence obtained through torture should always be excluded when considering the justification for an individual’s continued listing; that there should be a duty to disclose exculpatory material and to adopt a fair and transparent procedure which enables affected individuals to know the case they have to meet; and that de-listing decisions should be fully reasoned, and made public, subject to any necessary redactions on security grounds.