Read the 94th issue of ICJ’s monthly newsletter on proposed and actual changes in counter-terrorism laws, policies and practices and their impact on human rights at the national, regional and international levels.
The E-Bulletin on Counter-Terrorism and Human Rights provides hyperlinks to full texts of reports, statements, laws, court judgments and legal analysis. It aims at fostering an informed debate on the implications of counter-terrorism measures for the promotion and protection of human rights.
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AFRICA & MIDDLE EAST
Chad: Nation-wide ban on burqas imposed after two terrorist attacks
Nigeria: UN High Commissioner and Amnesty International call for accountability for gross human rights violations in armed conflict
Cameroon: Amnesty International calls for release of children detained in anti-terrorism operation
Egypt: UN High Commissioner concerned at gross human rights violations in countering terrorism
AMERICAS
USA: Military commissions cannot try conspiracy offences, rules Court of Appeal
USA: Case against post-9/11 mass discriminatory arrests allowed to proceed
USA: Six Guantánamo detainees transferred; one cleared for release
USA: New restricted surveillance law passed by Congress; NSA programme restarts
USA: Former Guantánamo detainee alleges to have been tortured in rendition with as yet undisclosed harsh techniques
USA: UN Special Rapporteur calls for death penalty moratorium after Boston terrorist’s sentencing
Canada: Court upholds residence stripping of former terrorist group member and his wife
ASIA & PACIFIC
Pakistan: ‘Anti-terrorism’ military operations continue amid claims of gross human rights violations
Australia: Draft law depriving nationality for ‘terrorist’ activities tabled before Parliament
EUROPE & COMMONWEALTH OF INDEPENDENT STATES
UK: Independent Reviewer questions surveillance legal framework amid calls for reform
UK: Adverse media coverage did not prejudice terrorism trial fairness, rules European Court
UK: Spy Group directs smearing actions at home, not only abroad, reveals The Intercept
UK: Surveillance Tribunal reveals Amnesty International and Legal Resource Centre were spied by GCHQ
France/USA: Wikileaks reveals NSA spying of French Presidents
France: National Assembly enacts modified Law on Intelligence Services
Germany: Court dismisses lawsuit against Government for complicity in US drone strikes in Yemen
Germany: Federal prosecutor drops investigations into alleged NSA spying of Chancellor’s phone
Belgium: Constitutional Court invalidates data retention law
Belgium: Extradition of terrorism convict to Morocco would breach non-refoulement, rules European Court
Slovakia: European Court rules eleven-year pre-trial detention in violation of right to liberty
Turkey: Terrorism suspects ill-treated in detention, rules Strasbourg Court
UNITED NATIONS & REGIONAL ORGANIZATIONS
UN: UN Special Rapporteur presents report on encryption and human rights
UN: UN Special Rapporteur sets out legal framework to respond to foreign fighters phenomenon and ISIL
G-7: Leaders’ Declaration outlines global anti-terrorism priorities
EU: Court of Justice sets out rules to assess when terrorism membership may justify withdrawal of refugees’ residence permits
EU: Council approves new internal security strategy
Council of Europe: Parliamentary Assembly calls for more whistleblowers protection
Council of Europe: Human Rights Commissioner complies recommendations on counter-terrorism and human rights
E-BULLETIN no. 94
AFRICA & MIDDLE EAST
Chad: Nation-wide ban on burqas imposed after two terrorist attacks
On 17 June, following two suicide bombings in N’Djamena that killed 33 people on 15 June, Prime Minister Kelzeubé Pahimi Deubet, after a call in this direction by President Idriss Déby, declared a nation-wide ban on the wearing of full face veils, also known as burqas. At least five people have been arrested under suspicion of having contributed to the attacks, attributed to the armed group Boko Haram. According to the Prime Minister’s statement, the ban applies to head-to-toe burqas and religious turbans, and the burqas for sale on the markets would be withdrawn and burnt. The ban is motivated by security reasons as an anti-terrorism measure and is not restricted to public places and schools, but applies to all the national territory of Chad.
Press Article 1 (F)
Press Article 2 (E)
Press Article 3 (EN)
Press Article 4 (E)
Nigeria: UN High Commissioner and Amnesty International call for accountability for gross human rights violations in armed conflict
On 3 June, Amnesty International published a report, ‘Stars on their shoulders. Blood on their hands: War crimes committed by the Nigerian military’, documenting that, “since March 2011, more than 7,000 young men and boys died in military detention and more than 1,200 people were unlawfully killed since February 2012,” in the armed conflict with Boko Haram, an armed group considered a terrorist organization in Nigeria. Amnesty International called for investigations into the conduct of members of the Nigerian military “for participating, sanctioning or failing to prevent the deaths of more than 8,000 people murdered starved, suffocated, and tortured to death.” On 5 June, the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, denounced the “absolute terror and grave human rights violations” of the members of the armed group Boko Haram, and “violations of international human rights and international humanitarian law by Nigerian armed forces.” The High Commissioner “urged the new administration of Nigerian President Muhammadu Buhari to take urgent measures to bring to justice perpetrators of human rights violations and abuses, whether non-State or State actors.”
NGO Statement
NGO Report
UN Statement 1
UN Statement 2
Cameroon: Amnesty International calls for release of children detained in anti-terrorism operation
On 19 June, Amnesty International called on Cameroon authorities to release 84 children that have been deprived of their liberty for the last six months, after authorities, on 20 December 2014, “raided a series of schools in a town called Guirvidig, arresting 84 children and 43 men – including many teachers” on the ground that the schools were used as fronts for ‘Boko Haram training camps’. According to the human rights organization, “the children remain detained in a children’s centre in Maroua… despite having been charged with no crimes.” It further documents that, during the anti-terrorism operation of last December, “the children were kept in custody at the gendarmerie headquarters for four days before being transferred to a juvenile centre under the control of the Ministry of Social Affairs. The men were taken to the Central Prison in Maroua, where they still remain in detention in extremely poor conditions.”
NGO StatementEgypt: UN High Commissioner concerned at gross human rights violations in countering terrorism
On 15 June, the UN High Commissioner for Human Rights, Zeid Ra’ad al Hussein, during his opening statement at the 29th session of the UN Human Rights Council, expressed concern that “in Egypt, cursory mass trials without adequate procedural guarantees have resulted in the imposition of the death penalty on hundreds of people since March 2014; seven have been put to death so far.” He called for a moratorium on the death penalty in the country. He urged authorities to thoroughly investigate “reports of torture in interrogation centres” and “end the practice of mass arrests and mass prosecutions, and release all those who are currently detained in connection with peaceful protest.” He warned that “counter-terrorism efforts will not bear fruit unless measures are also taken to address socio-economic grievances, to strengthen good governance, and to promote rule of law and human rights.”
HCHR Speech
AMERICAS
USA: Military commissions cannot try conspiracy offences, rules Court of Appeal
On 12 June, the US Court of Appeals for the District of Columbia annulled the conviction by a military commission of Ali Hamza Ahmad Suliman al Bahlul, alleged to have been a personal assistant to Osama Bin Laden, for “inchoate conspiracy”, because it violated the prohibition to set up special courts to try domestic criminal offences under Article III of the US Constitution. The Court of Appeals held that the international law of war, the only body of law under which military commissions could try criminal offences, did not include the offence of conspiracy. On 14 July 2014, the same Court had overturned his conviction on the charges of “providing material support for terrorism” and “solicitation of others to commit war crimes” because they violated the prohibition of criminal conviction under ex post facto laws under the US Constitution.
USA: Case against post-9/11 mass discriminatory arrests allowed to proceed
On 17 June, the US Court of Appeals for the Second Circuit of New York allowed a lawsuit to proceed in which it is alleged that six former Government officers had violated the right not to be arrested without due process and undertaken searches without a judicial warrant (Fourth Amendment to the US Constitution), and the right to equal protection (Fourteenth Amendment). The suit pertains to eight men arrested and detained in the wake of 9/11, together with many other hundreds of persons, based on a policy “in the most restrictive conditions of confinement available, simply because these individuals were, or appeared to be, Arab or Muslim.” The named officers are former Attorney General, John Ashcroft, former FBI Director, Robert Mueller, former Commissioner of the Immigration and Naturalization Service, James W. Ziglar, and three former wardens of the Metropolitan Detention Center. The Court ruled, in a 2-1 decision, that these violations of the US Constitutions qualified for a Bivens cause of action for breach of Constitutional rights. The justices expressed the opinion that the Court “simply cannot conclude at this stage that concern for the safety of our nation justified the violation of the constitutional rights on which this nation was built.”
USA: Six Guantánamo detainees transferred; one cleared for release
On 13 June, the Department of Defense announced the transfer to Oman of Emad Abdullah Hassan, Idris Ahmad ‘Abd Al Qadir Idris, Jalal Salam Awad Awad, Sharaf Ahmad Muhammad Mas’ud, Saa’d Nasser Moqbil Al Azani and Muhammad Ali Salem Al Zarnuki, six Guantánamo detainees of Yemeni nationality, who had been held in the detention centre at Guantánamo Bay since 2002 and had been cleared for release since 2010. On 27 June, the US Periodic Review Board cleared for release, into his country of origin, Abdul Rahman Shalabi, a Guantánamo detainee of Saudi Arabian nationality, also detained since 2002, and who has been on a nine-year hunger strike. There are currently 116 detainees in Guantánamo Bay detention centre. On 30 June, US Secretary of State, John Kerry, appointed Lee Wolosky as the new Special Envoy for Guantánamo Closure
DoS Statement
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USA: New restricted surveillance law passed by Congress; NSA programme restarts
On 2 June, in a change of its previous position of 23 May, the US Senate approved the USA Freedom Act that bars the NSA from collecting and storing telephone records, but obliges phone companies to keep such data for later access in terrorism investigations. On 1 June, due to a lack of approval for extension of section 215 of the PATRIOT Act, authorizing the NSA mass surveillance programme, the White House had announced its suspension. The programme may now be restarted with new restrictions. Additionally, the USA Freedom Act includes the Senate’s authorization to ratify the International Convention for the Suppression of Acts of Nuclear Terrorism and the 2005 amendment to the Convention on the Physical Protection of Nuclear Material. On 22 June, The Intercept revealed that the National Security Agency and the UK Government Communications Headquarters “have worked to subvert anti-virus and other security software in order to track users and infiltrate networks, according to documents from NSA whistleblower Edward Snowden.”
Law
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USA: Former Guantánamo detainee alleges to have been tortured in rendition with as yet undisclosed harsh techniques
On 2 June, Reuters reported on an interview of former Guantánamo detainee Majid Khan, in which he alleged to have been subject to torture techniques not included in then US Senate Intelligence Committee’s report on extraordinary renditions. Majid Khan, who was captured in Pakistan and held at an unidentified CIA secret detention centre from 2003 to 2006, said “interrogators poured ice water on his genitals, twice videotaped him naked and repeatedly touched his ‘private parts’ [and] threatened to beat him with a hammer, baseball bats, sticks and leather belts.” Majid Khan pleaded guilty in 2012 to charges of ‘conspiracy, material support, murder and spying charges’ for having delivered USD $50,000 to Al Qaeda members to be used for the 2003 Marriott hotel attack in Jakarta. Under a plea agreement, he will be sentenced to up to nineteen years’ imprisonment,. He is reportedly a witness for the Government in some counter-terrorism cases. On 24 June, during the 29th session of the UN Human Rights Council, the ICJ and 100 other organizations called for accountability of US officials responsible for torture and enforced disappearances in the rendition and secret detention programme and for reparations to be provided to victims.
NGO Statement
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USA: UN Special Rapporteur calls for death penalty moratorium after Boston terrorist’s sentencing
On 26 June, after the sentencing to the death penalty of Dzhokhar Tsarnaev for being one of the perpetrators of the terrorist attack at the Boston Marathon of 2013, in which three people died and 240 were wounded, the UN Special Rapporteur on extrajudicial, arbitrary and summary executions called on the US to establish a moratorium on the death penalty with a view to abolishing it. The UN expert said that “despite the fact that the crimes committed by Dzhokhar Tsarnaev fall within the most serious crimes provision of international safeguards, this decision contradicts the trends towards abolishing the death penalty in the country in law and practice.” The attack was carried out with “homemade bombs, assembled from pressure cookers loaded with gunpowder and nails.” Dzhokhar Tsarnaev was nineteen at the time of the bombing.
UN StatementCanada: Court upholds residence stripping of former terrorist group member and his wife
On 5 June, the Federal Court of Canada dismissed the application for judicial review of a decision refusing permanent residence in Canada to Gurmail Singh and his wife Baljinder Kaur on humanitarian and compassionate grounds. Gurmail Singh had been previously recognized by an immigration officer as a member of the All India Sikh Student Federation (AISSF), a terrorist organization according to Canadian authorities, and thus declared the application for residence in Canada inadmissible. Baljinder Kaur was determined inadmissible for being the wife of an inadmissible person. The officer further decided that the humanitarian and compassionate factors relied upon by the couple did not outweigh the seriousness of Mr. Singh’s inadmissibility. The Court concluded that the former decision was reasonable, in particular considering that Gurmail Singh did not contest his “active and substantial” participation in the organization
Ruling
ASIA – PACIFIC
Pakistan: ‘Anti-terrorism’ military operations continue amid claims of gross human rights violations
On 29 June, a representative of the army announced that the military operations against the Taliban and other armed groups in North Waziristan, termed a counter-terrorism operation, was “90 per cent done.” Reportedly, there have been several deaths of persons not implicated in the armed conflict but it is impossible to independently verify this information as observers do not have access to the areas of operation. The media reports concerns “about the resumption of executions and introduction of military courts, which have sat in secret.” The Human Rights Commission of Pakistan (HRPC) has stated that it does not accept the legitimacy of military courts, which handed out their first rulings in April, sentencing six militants to death and another to life in jail. The army reports to have killed 2,700 militants since the launch of the offensive last June. On 27 June, the Supreme Court of Pakistan finished the hearings on a case challenging the setting up of military courts by the Pakistan Government under the 21st Constitutional amendment in January 2015 for the speedy trial of terrorists in the aftermath of the deadly Peshawar school massacre by the Taliban that killed 150 people.
Press Article 1
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Australia: Draft law depriving nationality for ‘terrorist’ activities tabled before Parliament
On 24 June, Immigration Minister Peter Dutton introduced in Parliament the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, announced as a means to tackle the phenomenon of foreign fighters. If enacted, the draft legislation would allow the Government to take away the Australian nationality of dual nationals that have: engaged in “international terrorist activities using explosive or lethal devices”; engaged in “a terrorist act”; have been “providing or receiving training connected with preparation for, engagement in, or assistance in a terrorist act”; have been “directing the activities of a terrorist organization”, “recruiting for a terrorist organization”, “financing terrorism” or “a terrorist”; or have engaged in “foreign incursions and recruitment.”
Draft Law
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EUROPE & COMMONWEALTH OF INDEPENDENT STATES
UK: Independent Reviewer questions surveillance legal framework amid calls for reform
On 11 June, the Prime Minister published the report of the UK Independent Reviewer of Terrorism Legislation, David Anderson Q.C., entitled “A Question of Trust: Report of the Investigatory Powers Review”, and submitted it to Parliament. The report reviews the existing legal framework on investigatory and surveillance powers of UK authorities and makes recommendations for reform. Mr Anderson found that “intrusive powers must be shown to be necessary, clearly spelled out in law, limited in accordance with international human rights law and subject to demanding and visible safeguards” and concluded that the “current law is fragmented, obscure, under constant challenge and valuable in the protection it affords to the innocent. It is time for a clean slate.” According to the 2015 Queen’s Speech, a draft law will be presented that would require providers of applications such as Whatsapp to hand messages from suspects under investigation to the security service (MI5), the secret intelligence service (MI6) and the Government Communications Headquarters (GCHQ). On 26 May, 38 academics published an open letter calling on the Government “to ensure that any changes in the law, and especially any expansions of power, are fully and transparently vetted by parliament, and open to consultation from the public and all relevant stakeholders”.
Report
Reviewer Statement
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UK: Adverse media coverage did not prejudice terrorism trial fairness, rules European Court
On 30 June, the European Court of Human Rights ruled that the extensive adverse media coverage of the second criminal proceedings of Abdulla Ahmed Ali did not violate his right to a fair trial. Abdulla Ali was arrested, in 2006, for conspiracy to construct and simultaneously explode improvised explosive devices on transatlantic airplanes. He was later convicted of conspiracy to murder and sentenced to life imprisonment with a minimum term of forty years. Following his first conviction, extensive media coverage reported on material that had not been put before the jury. A retrial was consequently opened, for the more specific charge of conspiracy to murder by way of detonation of explosive devices on an aircraft mid-flight. Ali argued that it was impossible for the retrial to be fair because of the impact of the adverse publicity. The European Court concluded that the adverse publicity had not influenced the jury to the point of prejudicing the outcome of the proceedings, and that there had therefore been no violation of the right to fair trial under article 6(1) of the European Convention on Human Rights.
JudgmentUK: Spy Group directs smearing actions at home, not only abroad, reveals The Intercept
On 22 June, The Intercept revealed that the Joint Threat Research Intelligence Group (JTRIG) within the Government Communications Headquarter (GCHQ) was “responsible for some of the United Kingdom’s most controversial tactics of surveillance, online propaganda and deceit focuses extensively on traditional law enforcement and domestic activities”, even if officially this was directed to foreign intelligence and anti-terrorism operations. The revelations come from documents provided by former US National Security Agency agent and whistleblower, Edward Snowden. According to The Intercept, the JTRIG is “involved in efforts against political groups it considers ‘extremist’, Islamist activity in schools, the drug trade, online fraud and financial scams.”
Press Article 1 Press Article 2UK: Surveillance Tribunal reveals Amnesty International and Legal Resource Centre were spied by GCHQ
On 22 June, the Investigatory Powers Tribunal (IPT), in an additional communication to its ruling of 6 February in which it found that UK surveillance programmes prior to 5 December 2014 violated the right to privacy and freedom of expression, communicated to the ten non-governmental organizations (NGOs) who brought the case that, in the period of concern, two of them had been subject to surveillance by the Government Communications Headquarters (GCHQ): Amnesty International and the Legal Resource Centre (South Africa). In both cases, the breach was considered “technical” because the data had not been accessed after the expiry of the maximum retention period. Nonetheless, the Tribunal held that the mere retention of data breached section 65 of the Regulation of Investigatory Powers Act (RIPA) and article 8 of the European Convention on Human Rights (right to privacy). It therefore ordered destruction of the data. In a prior communication, the Tribunal had erroneously notified that the NGO under surveillance was the Egyptian Initiative for Personal Rights instead of Amnesty International.
Ruling
NGO Statement 1
NGO Statement 2
NGO Statement 3
France/USA: Wikileaks reveals NSA spying of French Presidents
On 23 June, Wikileaks published a collection of secret documents “Espionage Elysée” concerning the US National Security Agency (NSA) surveillance of the communications of three French Presidents, Jacques Chirac, Nicolas Sarkozy and François Hollande, as well as of high-level officers of different French Governments in power from 2006 to 2012. US President Barack Obama, in a phone conversation with French President François Hollande, reiterated his commitment to put an end to the spying practice, deemed “unacceptable” by allied countries. On 29 June, Wikileaks published “seven top secret documents detailing how the US has had a decade- long policy of economic espionage against France, including the interception of all French corporate contracts and negotiations valued at more than $200 million.” The leaks reveal NSA surveillance “on the French Finance Minister, a French Senator, officials within the Treasury and Economic Policy Directorate, the French ambassador to the United States, and officials with direct responsibility for EU trade policy.”
Wikileaks Statement (E)
Press Article 1 (E)
Press Article 2 (F)
Press Article 3 (F)
France: National Assembly enacts modified Law on Intelligence Services
On 24 June, the National Assembly enacted the Law on Intelligence Services, after amendment by the Senate of its original version. The main amendments to the previous draft include: the obligation for the Prime Minister to provide reasons for his decision to bypass the negative advice of the ‘National Commission for the control of intelligence techniques’ (CNCTR) for the authorization of surveillance; the strengthening of the powers of supervision and control of the CNCTR (communication not only of ‘authorization decisions’, but also of ‘requests for authorization’ for the implementation of information gathering methods); permanent access to records, registers, collected information, transcripts and extracts; control of the traceability systems of collected information; and the limitation to one year of retention of the information that transport operators have to collect concerning passenger’s identity.
Draft Law (F) Legislative File (F) Press Article (E)Germany: Court dismisses lawsuit against Government for complicity in US drone strikes in Yemen
On 30 May, the Cologne Administrative Court dismissed a lawsuit against the German Government brought by three Yemeni nationals, represented by the European Center for Constitutional and Human Rights and Reprieve, alleging that the German Ramstein airbase was being used to forward data to guide drone strikes in Yemen. The three plaintiffs argued that the German Constitution and international law obliged Germany to protect the lives and property of people, and that this protection extended to other forms of support for drone attacks. The complaint was filed as a consequence of a US drone attack killing five men in Yemen, on 29 August 2012, two of whom where not suspected of any harmful behavior or link to any terrorist organization. In the ruling, the Court stated that “the German government is not obliged to prevent the United States from using the air base in Ramstein for executing drone strikes in Yemen.”
Press Article 1 (E)
Press Article 2 (E)
Press Article 3 (German)
Germany: Federal prosecutor drops investigations into alleged NSA spying of Chancellor’s phone
On 12 June, the German Federal Prosecutor, Harald Range, announced to have dropped a formal investigation into allegations, prompted by documents provided by whistleblower and former US National Security Agency (NSA) agent Edward Snowden, that the mobile phone of Chancellor Angela Merkel had been tapped by the NSA. It was the first formal investigation of a German authority into the NSA surveillance programme. The reason for the dropping of the investigations was, reportedly, lack of concrete evidence. Harald Range was reported to have declared that authorities had not been able to prove that the document provided by revelations of Der Spiegel, being one of the leaked documents, was “an authentic eavesdropping order from the N.S.A., or another U.S. intelligence agency,” or that it concretely showed the Angela Merkel’s phone had been put under surveillance.
Press ArticleBelgium: Constitutional Court invalidates data retention law
On 11 June, the Constitutional Court declared invalid the Data Retention Act of 30 July 2013 for having disproportionally interfered with the right to privacy and data protection, enshrined in articles 7 and 8 of the EU Charter of Fundamental Rights, of persons present under Belgian jurisdiction. The legislation attempted to salvage the content of the EU Data Retention Directive, previously declared invalid by the Court of Justice of the European Union. The Belgian Constitutional Court ruled that the law had not sufficiently met the requirements imposed by the EU judges, as it: still referred to an imprecise list of “serious” criminal offences; did not provide a due process for access to information; allowed for the targeting of people not constituting a genuine threat to security; and provided for excessively long times of storage of intercepted information.
Judgment (F)Belgium: Extradition of terrorism convict to Morocco would breach non-refoulement, rules European Court
On 2 June, the European Court of Human Rights ruled that the extradition to Morocco of Abdellah Ouabour, a Moroccan national, would risk to expose him to inhuman and degrading treatment or punishment, in violation of article 3 of the European Convention on Human Rights (ECHR). Abdellah Ouabour was sentenced in 2006 to five years’ imprisonment, increased to seven years in 2007, for “forming a group to prepare and commit terrorist acts”, the Groupe Islamique Combattant Marocain. In light of the general situation in Morocco of documented human rights violations in countering terrorism, the Court ruled that his extradition would amount to a violation of his right to be free from inhuman and degrading treatment under article 3 of the ECHR.
Judgment (F)Slovakia: European Court rules eleven-year pre-trial detention in violation of right to liberty
On 2 June, the European Court of Human Rights ruled that the excessive length of the habeas corpus procedure and the arbitrariness and excessive length of the detention of Volodymyr Yegorov amounted to a violation of article 5(1)(c) and 5(4) of the European Convention on Human Rights (ECHR). Volodymyr Yegorov, a Ukrainian national, was held in pre-trial detention from 25 June 2002 until 19 September 2013, on charges of conceiving, setting up and financing a criminal and terrorist organization and of murder. The Court ruled, consistent with the national Constitutional Court, that his detention was arbitrary because it was grounded on “various offences [prosecuted] both in parallel and consecutively, that the relevant statutory limits on the maximum duration of detention could not be interpreted as authorising detention pending trial for the maximum period in relation to each individual charge; and that doing otherwise, as had occurred in the applicant’s case, would mean that a person could be detained for the maximum permissible period repeatedly for consecutively levelled charges ad infinitum, which was not justified by any public interest.”. The Court also found a violation of the right of habeas corpus, as enshrined in article 5(4) of the ECHR, for the excessive length of the detention remedy
JudgmentTurkey: Terrorism suspects ill-treated in detention, rules Strasbourg Court
On 23 June, the European Court of Human Rights ruled the treatment of Yusuf Salin and Nihat Karşin during their detention amounted to substantial and procedural violations of article 3 of the European Convention on Human Rights (ECHR), prohibiting inhuman and degrading treatment or punishment. Yusuf Salin and Nihat Karşin, Turkish nationals, were arrested during an operation by the security forces and placed in police custody, under suspicion of; membership in a terrorist organization, the Kurdistan Workers’ Party (PKK); possession of explosives; and having set fire to municipal buses. In December 2009, they were sentenced to three years and nine months of imprisonment for possession or use of explosives, and to six years and three months for having being members of the PKK. Based on a medical report on their bodily injures, the European Court concluded that they had been subjected to treatment prohibited by article 3 of the ECHR. The Court further found that the investigations into their allegations of ill-treatment had been deficient, in violation of the procedural obligation under article 3 of the ECHR.
Judgment (F)
UNITED NATIONS & REGIONAL ORGANIZATIONS
UN: UN Special Rapporteur presents report on encryption and human rights
On 17 June, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye, presented his annual report to the UN Human Rights Council on the issue of encryption. The report addresses whether “the rights to privacy and freedom of opinion and expression protect secure online communication, specifically by encryption or anonymity”, and “to what extent may governments, consistent with human rights law, impose restrictions on encryption and anonymity.” As a result of replies by States to questionnaires and submissions of stakeholders, and “[d]rawing from research on international and national norms and jurisprudence… the report concludes that encryption and anonymity enable individuals to exercise their rights to freedom of opinion and expression in the digital age and, as such, deserve strong protection.”
UN: UN Special Rapporteur sets out legal framework to respond to foreign fighters phenomenon and ISIL
On 16 June, the UN Special Rapporteur on the protection and promotion of human rights while countering terrorism, Ben Emmerson, published his annual report to the UN Human Rights Council dedicated to the “challenges posed by the fight against the Islamic State in Iraq and the Levant.” The Special Rapporteur affirmed that the “threshold for ISIL to be bound by human rights obligations has clearly been met. This means, at a minimum, that ISIL is bound under international law to respect core human rights obligations.” With regard to the approach taken by the UN Security Council towards foreign fighters engaging in the Syrian/Iraqi conflict, the UN expert found that it “could create legal uncertainty in efforts to identify those to whom it is intended to apply.” The Special Rapporteur concluded that “States are under an obligation to take measures to protect civilian populations from widespread and systematic acts of violence and terrorism,” and recommended the UN Security Council to refer to situation to the International Criminal Court (ICC). He also called on Iraq and Syria to become parties to the Rome Statute on the ICC and recommended States “to prosecute individuals who have committed such crimes where they are able to exercise jurisdiction.”
G-7: Leaders’ Declaration outlines global anti-terrorism priorities
On 8 June, the Heads of State and Government of the Group of Seven (G7), comprising USA, Italy, Germany, Japan, UK, Canada and France, issued a Leaders’ Declaration at the end of their summit in Schloss Elmau, under German presidency. In their Declaration, the G-7 said that, in “light of the Foreign Terrorist Fighters phenomenon, the fight against terrorism and violent extremism will have to remain the priority for the whole international community.” Furthermore, it stressed that it is “a task for all nations and societies to confront the conditions conducive to the spread of terrorism and violent extremism, including the spread of hatred and intolerance, also through the internet, by promoting good governance and respect for human rights. We stress the importance of implementing the necessary measures to detect and prevent acts of terrorism, to prosecute those responsible, and rehabilitate and reintegrate offenders, in accordance with international law, and to prevent the financing of terrorism.”
Leaders’ Declaration
FM Statement
EU: Court of Justice sets out rules to assess when terrorism membership may justify withdrawal of refugees’ residence permits
On 24 June, the Court of Justice of the European Union ruled that, under the EU Qualification Directive, setting out the criteria to be recognized for international protection, a refugee that had provided support to an organization listed as “terrorist” by the European Union could see his or her residence permit revoked where: “there are compelling reasons of national security or public order within the meaning of that provision”; there are reasonable grounds for considering him or her as a danger to the security of the Member State in which he or she is present; or he or she, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that Member State. However, the Court of Justice also ruled that, to determine ‘support’, “the competent authorities are… obliged to carry out, under the supervision of the national courts, an individual assessment of the specific facts concerning the actions of both the organisation and the refugee in question.”
JudgmentEU: Council approves new internal security strategy
On 16 June, the Justice and Home Affairs Council of the EU approved the Renewed European Union Internal Security Strategy 2015-2020. The Strategy identifies as priorities: “tackling and preventing terrorism, radicalisation to terrorism and recruitment as well as financing related to terrorism, with special attention to the issue of foreign terrorist fighters, reinforced border security through systematic and coordinated checks against the relevant databases based on risk assessment as well as integrating the internal and external aspects of the fight against terrorism”; “preventing and fighting serious and organised crime, on the basis of the EU policy cycle”; and ”preventing and fighting cybercrime, as well as enhancing cybersecurity.”
Council of Europe: Parliamentary Assembly calls for more whistleblowers protection
In it resolution 2060, adopted on 23 June, the Parliamentary Assembly of the Council of Europe called on Council of Europe Member States, the EU and Observer States, including the USA, to “enact whistle-blower protection laws also covering employees of national security or intelligence services and of private firms working in this field”; “grant asylum, as far as possible under national law, to whistle-blowers threatened by retaliation in their home countries”; and agree on a convention on whistle-blower protection. It further called on the USA to “allow Mr Edward Snowden to return without fear of criminal prosecution under conditions that would not allow him to raise the public interest defence.”
Council of Europe: Human Rights Commissioner complies recommendations on counter-terrorism and human rights
On 5 June, the Council of Europe’s Commissioner for Human Rights published a collection of his positions on human rights on counter-terrorism. Among the key recommendations, the Commissioner stated that all counter-terrorism measures “should be subjected to thorough, effective human rights proofing. Counter-terrorism measures must be taken in accordance with the law; must pursue a legitimate aim; must be necessary in a democratic society and justified on relevant, objective grounds; and must be supervised or monitored by an independent authority.”
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