Combating Terrorism with Human Rights

On 8 April 2005 the Dutch section of the International Commission of Jurists (NJCM) organised the conference ‘Combating Terrorism with Human Rights’. The conference highlighted the tension between the fight against terrorism and the importance of protecting human rights. The conference, which was attended by more than 200 participants and was chaired by the Dutch judge at the European Court of Human Rights Prof B.E.P. Myjer, took place at the Peace Palace in The Hague.

The Minister of Government Reform and Kingdom Relations, Mr Pechtold, said in this speech that the Dutch government recognises the tension between the fight against terrorism and respect for human rights. The starting point for legislation should be freedom, the minister argued, and exemptions from freedom should be interpreted in a limited way. Furthermore, the minister stated in his speech: «Should we not stress our basic values more and should we not look more at the ‘breeding ground’ of terrorism’?» In this context he said that human rights are the core values of the European Union.

Prof Van Boven, Professor of Law at Maastricht University and former Special Rapporteur on torture of the United Nations Commission on Human Rights, stressed that human rights should also be respected in times of crisis. «Most human rights are linked to specific exemptions. This belongs to the work of specialists of human rights law. This process of balancing may however not be applied in case of torture or cruel or inhuman treatment.»

The Member of the Dutch Senate Jurgens pointed out that the Council of Europe is at present preparing a Convention on the Prevention of Terrorism. «Conquering terrorism is a normal task for governments. When performing this task human rights have to be respected», the senator argued. The Member of the Dutch House of Representatives Van Fessem stressed in his speech that the current threat to the rule of law comes from terrorism, not from the state. «We need to strengthen our democracy against this threat», he said.

Mr J.P. Loof, lecturer in constitutional and administrative law of Leiden University, pointed out that the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECRH) does not contain a definition of terrorism. He stressed that the same legal framework applies to counter-terrorism measures as to other government measures. The European Court does, however, leave a wide margin of appreciation to national authorities within which they may interpret and implement the Convention. Prof Franken, attorney at law and Professor of Criminal Law and Criminal Procedure at Utrecht University, pointed out that the ECRH contains minimum guarantees. This does, however, in his view not mean that jurists should not contemplate on the desirability of certain government measures. «Let us not trust too much on legislation, especially not if it contains terms which are not clear», he said.

The chairman of the Dutch Data Protection Authority, Mr J. Kohnstamm, argued that criminal law is an absolutely unsuitable mean to combat terrorism. «Those who argue in favour of creating new powers fail to investigate whether the existing powers are sufficient», he argued. «Many data of innocent citizens are collected, with the aim of catching a single terrorist. Not all data are correct and the links that are made are therefore hypothetical».

Prof G.A.M. Strijards, legal advisor international affairs of the High Prosecutorial Office and Professor of International Law at the University of Groningen argued that «the legal arguments which we now formulate are no answers to the motives of the terrorists. Their motive is namely destabilization.» Dr C. Wiebes, Associate Professor of Political Science at the University of Amsterdam and expert on intelligence and security services, said that terrorists have learned from previous experiences and avoid the use of certain means of communication. In his view intelligence services do not need more powers, but more analysis capacity. «And what we need most of all», he said, «is clear directions from politicians».

The representative of the Dutch Government at the European Commission against Racism and Intolerance, Ms W. Sorgdrager, spoke about the prevention of terrorism and respect for human rights. «Youth who have no chances become radical, whereas in the past they would follow a criminal career», she argued. Promoting human rights is in her view an important task for education institutions. «Budget cuts on education can later be found back in bigger numbers in the budget for law enforcement,» she said in this context.

Dr A. Ellian, Associate Professor of Jurisprudence of Leyden University, stressed that human rights can be used in the fight against terrorism. In his view this does not only apply to The Netherlands, but everywhere in the world. «If Islamic countries become democratic and introduce respect for human rights, persons like Mohammed B. [the person who is suspected of murdering Theo van Gogh] shall no longer cause problems to us.»

Prof Dr P.B.Cliteur, Professor of Jurisprudence at Leyden University, said that is important to be able to debate freely about religion, just like about politics. Professor Cliteur: «By attaching a penalty to hurting religious feelings, one creates people whose religious feelings are more rapidly hurt.»

At the end of the conference the Dutch section of the ICJ presented the NJCM Principles ‘Combating Terrorism with Human Rights’.

Download NJCM Principles at PDF format

Combating Terrorism with Human Rights