Human Rights and Terrorism: An Interview with a Former UN Rapporteur

Rights International Spain spoke with Martin Scheinin, the UN special rapporteur on human rights and the fight against terrorism from 2005 to 2011.

Here we highlight the different subjects we discussed during the interview, which you can watch below.

The dangers of vague and broad legislation

In Scheinin's opinion, the only efficient way of fighting against terrorism is adopting very clear legislation. “If the laws are vague and broad, they end up being misused and in the worst case, they become counter-productive,” Scheinin says. “Through characterizing any dissent as associated with terrorism, the state is undermining its own legitimacy.”

The only thing that should be criminalized is incitement to terrorism, but “there must be an intention to incite other people to commit acts of terrorism and an objective danger that one or more terrorist acts are then committed. Only then is expression to be criminalized.”

Incommunicado detention in Spain an “anomaly in Europe”

According to Scheinin, “It is really an anomaly in current Europe that Spain insists on the institution of incommunicado detention for terrorist suspects […], a terribly wrong position to take.”

The risks of legislating after terrorist attacks

“Panic produces very bad legislation. It produces wrongly formulated laws that are violating human rights and do not produce a proper response to terrorism,” Scheinin says. The biggest problem is that authorities take measures without examining whether the old laws are good or whether they are producing any effect in the fight against terrorism. In Scheinin’s opinion, after the attack of the French newspaper Charlie Hebdo, we are repeating the same mistake we made after 9/11 by enacting legislation that constitutes “a real danger to civil liberties.”

The failure of profiling

Scheinin is clear: “Terrorist profiling is one of the biggest failures in the post 9/11 panic.” In fact, he says, “Nothing came out of these efforts – it was a mistake from the very beginning; you start by identify nationalities, and then you exclude your own nationality, but still most of the real terrorists are your own nationals. So, we end up excluding the real threat.”

Mass surveillance: ineffective violation of rights

“The current big failure is electronic mass surveillance.” The former UN special rapporteur says Snowden’s revelations have disclosed how there has been a massive collection of data, including complex metadata, which reveals a whole lot of information on individuals “including sensitive personal information.”

“The problem is not that the police and the intelligence services don’t know who they are looking for," he says. "The problem is that they are trying to follow far too many people because of their obsession of collecting data on everybody.” Scheinin believes that mass surveillance has shown itself to be ineffective in the fight against terrorism.

The right to privacy needs to be developed

Scheinin regrets that privacy has become an “under-developed right, in the sense that there is not much of a case law.” It would be very positive, according to him, if “the Human Rights Committee adopts a General Comment on the right to privacy” that includes “a proper limitations test on how we assess what’s unlawful or what’s arbitrary interference with privacy” (similar to the freedom of expression test).

The new Council of Europe protocol on foreign terrorist fighters

“This protocol is an illusion, because it pretends to address the phenomenon of foreign terrorist fighters, but in fact is useless, because terrorism is defined in relation to acts that are not committed by foreign terrorist fighters.” Scheinin believes that with this protocol, “we are creating a new legal mess.”

The urgency to work in a constructive manner

The former rapporteur declared himself in favor of promoting “practical measures to engage with communities, including those from which there is recruitment for terrorism.” He insisted that this type of work should by no means be “prevention of radicalization,” but instead “prevention of terrorism.” The aim is to prevent people from being recruited to commit acts of terrorism.

Violations of human rights and reparation for victims of terrorism

Scheinin highlighted the paradoxical attitude of many states when they are condemned for violating human rights in fighting against terrorism. They tend to say, “Why do you come here and criticize us, why don’t you criticize the terrorists, and why don’t you speak in favor of the rights of the victims of terrorism?” In his experience, when he asked these people what they are you doing to promote and protect the rights of victims of terrorism, “quite often they were silent.”

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