amnesty international
United Nations General Assembly, 56th
Session 2001, Draft Comprehensive Convention on International Terrorism: A
Threat to Human Rights Standards
PUBLIC
|
22 October
2001 |
AI Index: |
IOR
51/009/2001 |
AI Statement to the UN General
Assembly
Amnesty
International is deeply concerned that some provisions in the draft
Comprehensive Convention on International Terrorism (draft Convention), U.N.
Doc. A/C.6/55/1, 28 August 2000[1], would
violate fundamental human rights, and calls for the draft to be amended.
Amnesty International’s concerns
A.
Overly broad definition of “terrorism”
risks violating the right to freedom of expression and the right to association
Article 2 (3) is
dangerously broad and could be used to prosecute persons for the peaceful
exercise of freedom of expression and association if they express sympathy for
the aims of “terrorist” organizations without endorsing their
means. It states that a person
commits a “terrorist” offence if he or she, inter alia, “[i]n any other way contributes to
the commission of one or more offences referred to in paragraphs 1, 2 or 3 (a)
by a group of persons acting with a common purpose;
such contribution
shall be intentional and either be made with the aim of furthering the general
criminal activity or purpose of the group or be made in the knowledge of the
intention of the group to commit the offence or offences concerned”. Thus, a person may be held criminally
responsible simply for voicing support for the aims of a “terrorist”
group without endorsing the violent means of the group.
B. Failure
to protect the right to seek asylum and not to be subject to refoulement
The draft
Convention undermines rights of asylum-seekers currently enshrined in
international law. Article 7
states that AStates Parties shall take appropriate measures, before granting
asylum, for the purpose of ensuring that asylum is not granted to any person in
respect of whom there are reasonable grounds indicating his involvement in any
offence referred to in article 2.”
The obligations of states with regard to
asylum-seekers and refugees, including provisions on exclusion from refugee
status, are set out in international instruments including the 1951 Convention relating to the
Status of Refugees (Refugee Convention) and its 1967 Protocol. Grounds for exclusion under Article
1(F) of the Refugee Convention include crimes against peace, war crimes or
crimes against humanity. The
effect of Article 2 and 7 of the draft Convention would be to expand the
grounds for exclusion to acts of violence that do not amount to such
crimes. Article 2 could be
interpreted as considering all acts of armed political groups to be acts of
“terrorism”, even when they do not violate international
humanitarian law. As such the
draft Convention would create an obligation on states to prosecute or extradite
members of armed political groups for such acts, who currently might qualify
for asylum.
Further,
Article 7 undermines a fundamental procedural safeguard in asylum cases.
Currently any decision to exclude someone from refugee status must be made
within the context of a full and fair individual process of determination of an
asylum claim, in line with relevant international standards such as the 1996
UNHCR The exclusion clauses: guidelines on their application.
Insisting on a prior screening of all asylum seekers risks criminalizing
the concept of refugee and could unnecessarily burden the asylum determination
process, given that only a small percentage of applicants would be
excluded. The relevant references
to these instruments or standards should either be mentioned here and in
Article 21, or Article 7 should be dropped.
The
draft Convention also fails to recognize the right of all persons not to be
subject to refoulement to places
where they would risk persecution or other serious human rights abuses,
including torture, extrajudicial executions and
“disappearances”.
Amnesty International also opposes the refoulement of persons at risk of being sentenced to death. The
principle of non-refoulement is
set out in a number of international treaties and is generally regarded as a principle of customary
international law. Amnesty International believes that the prohibition of refoulement applies in all cases where persons are at risk of
serious human rights abuses, regardless of whether it may be argued that the
person concerned falls outside the scope of the protection afforded by the 1951
Refugee Convention. The principle of non- refoulement should be expressly recognized in the Convention,
and it should also be recognized as a mandatory ground for refusal of an
extradition request.
C. Absence of adequate guarantees of the right to
fair trial
The draft Convention fails to provide adequate
guarantees of the right to fair trial.
For example, Article 12, although it requires that any person taken into
custody should be guaranteed fair treatment, expressly refers only to rights
under national law of the detaining state and “applicable provisions of
international law, including international humanitarian law”. If a state is not a party to the
International Covenant on Civil and Political Rights (ICCPR), the due process
and fair trial guarantees in Articles 9, 14 and 15 of the ICCPR would not
expressly apply. In addition, there
is a broad range of human rights guarantees not in the form of treaties which
apply to all persons under detention, such as those in the Body of Principles
on the Protection of All Persons under Any Form of Detention or Imprisonment,
the Standard Minimum Rules for the Treatment of Prisoners, the Basic Principles
on the Role of Lawyers, the Guidelines on the Role of Prosecutors and the Basic
Principles on the Independence of the Judiciary, which are intended to apply at
all times. Article 10 (5) provides
for notice to the state of the person’s nationality, but not to families
or to lawyers; often that state may not be the most effective protector of the
detainee’s rights. The
Convention must include safeguards guaranteeing the right to fair trial.
D. Collective punishment and infringement of the
right to freedom of association
Article 9 would permit states to prosecute legal
entities, such as trade unions, political parties and other non-governmental
organizations, based solely on the commission of a “terrorist”
offence by one of its officers.
This could result in collective criminal punishment of an organization -
and, possibly, its members - for the criminal act of one individual. This article should be deleted.