Fair trial is an important human rights issue, and denial of that right created deep feelings of injustice and exclusion, which, for some, might trigger the decision to resort to the “inexcusable tactics of terrorism”, Martin Scheinin, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, told reporters this evening.
Securing fair trial might be strategically important in preventing people from taking that catastrophic step, he added. Mr. Scheinin was at Headquarters to deliver his annual report to the General Assembly’s Third Committee (Social, Humanitarian, Cultural), and brief two of the three Security Council counter-terrorism committees: the 1267 Sanctions Committee, which compiled the list of Al-Qaida and Taliban terrorists, and the Counter-Terrorism Committee.
Among the major challenges to the United Nations action against terrorism was that the Organization’s terrorist listing procedures did not meet due process requirements of fair trial, he said. As long as that was the case, national courts must review sanctions implementation measures.
To improve the regime, he favoured introducing an independent review body composed of independent experts, which would be part of the Security Council’s decision-making procedure. A more radical option would be to abolish the 1267 Committee and list of Al-Qaida/Taliban terrorists, which would move the question of listing to the Counter-Terrorism Committee’s jurisdiction, on the basis of resolution 1373 (2001). The United Nations could provide expertise in identifying persons to be listed, but decisions would be made at the national level and, thus, avoid legal obstacles for effective review.
Taking questions, he described his visit in May to Spain, where he examined the country’s responses to domestic and international terrorism, including the Madrid bombings. He had identified best practices in the conduct of the trial for those bombings, but had concerns relating to the pre-trial phase of investigation and detention of suspects. He was in talks with the Spanish Government concerning the exact formulation of those concerns in his forthcoming report.
To a query on the Guantanamo Bay detention centre, he had a “strong expectation” that the new United States Administration, irrespective of who would be the President, would rapidly announce a plan to close that facility. He based that expectation on public statements by Senators John McCain and Barack Obama, who both criticized the facility.
The next stage would be release of those detainees who posed no threat, and the trial of those suspected of serious crimes. Mr. Scheinin expected those trials to be taken to federal courts, citing a “very convincing, reasoned report” by Human Rights First, which showed United States federal courts as competent to deal with terrorism cases in a sophisticated way that would meet fair trial guarantees.
Most difficult was the issue of how to handle detainees that were neither ready for release nor trial, he said, noting there might be proposals for an administrative detention regime, whereby indefinite detention would be continued under new legislation. He strongly recommended against that solution, as the Military Commissions Act had “many, many flaws” from the perspective of both international human rights law and United States constitutional law. Replacing it with an ex post facto law would unavoidably be assessed by international human rights bodies as constituting arbitrary detention.
As to the future of a Canadian detainee who was 15 years old at the time of his imprisonment at Guantanamo, and Canada’s decision to not request that he face fair trial in that country, he was concerned about that case, which deserved “serious attention” by human rights observers. It was troubling that Canada was not doing what others had done to get their citizens out of Guantanamo. Many countries had secured the release of their citizens; some had even instituted criminal charges with respect to those persons, which had resulted in convictions. Should Guantanamo close, he expected the case to be tried through the Military Commission or the federal courts.
To another query on Iceland’s concern at the freezing of bank assets in London under an anti-terrorism law, he said the Icelandic case demonstrated the risk that measures, initially inserted into legislation in the name of anti-terrorism, could create an unintended spill-over effect. It was a more general concern that anti-terrorism legislation could easily be abused for the purpose of curtailing protest opposition. In various countries, there was a broadening scope of application of terrorism legislation, or measures justified with reference to terrorism.
To a question on the length of pre-charge detention in the United Kingdom, he said the House of Lords had rejected a proposal to extend pre-charge detention to 42 days. He had addressed the issue with the Government, and in his most recent letter, underlined that the focus should not be on the number of days, but rather the scope of judicial review during that time. The United Kingdom had judicial review when charges were being prepared, but the scope of that judicial review was “insufficient”. He also underscored that the United Kingdom was sending the wrong message to the world, in that authoritarian Governments would be happy to copy the number of detention days from British legislation, but not the safeguards.
Responding to a question on measures in the United Arab Emirates to rid society of extremist Islamist elements, he said the issue was important and he had addressed it in a report, which stated that racial profiling was always prohibited, and profiling based on other in-born characteristics, such as ethnicity or religion, triggered close scrutiny as to what was being done.
He had recommended as a best practice, learning from investigation of ordinary crimes, which investigated suspects based on conduct, rather than ethnicity. To make his point, he highlighted Germany’s use of profiling in finding “sleepers”, which was “hugely expensive” and had led to the intrusion into the privacy of millions of people, whose data produced nothing in the search of identifying persons of risk.
To a question on whether the Security Council was acting illegally, he said that was not necessarily the case. If a distinction was maintained between the Council’s imposition of the sanction, and the national authorities’ implementation of it, he could live with a situation whereby national implementation was subject to review. The Security Council listing would be treated as a “rebuttable presumption”. He was aware, however, that listing was seen as mandatory, and not subject to domestic, judicial or any other review.
