Counter-terrorism legislation in Egypt, Tunisia and Pakistan
The ICJ today delivered an oral statement on counter-terrorism legislation in these countries, in an interactive dialogue at the UN Human Rights Council with the the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.
The text of the statement follows:
COUNTER-TERRORISM LEGISLATION IN EGYPT, TUNISIA AND PAKISTAN
10 March 2016
Mr President,
The International Commission of Jurists (ICJ) welcomes the attention given by Special Rapporteur Ben Emmerson, to defective counter-terrorism legislation that facilitates violations of human rights, as reflected for example by communications on Egypt, Tunisia and Pakistan in the Communications Report of Special Procedures (A/HRC/31/79).
Numerous counter terrorism laws promulgated or applied in these and other countries include overly broad or imprecise definitions of terrorism-related offences. These extend the laws’ reach beyond acts of a truly terrorist character. Such laws can be and are abused or misapplied to criminalize the legitimate and peaceful exercise of fundamental rights and freedoms.
Further, these laws provide sweeping immunities that contribute to pervasive impunity for unlawful killings by security forces.
These laws also facilitate violations of the right to liberty and fair trial rights and insufficiently safeguard against abuses in detention. In Tunisia a person can be held in police custody without being brought before a judge for up to 15 days. In Pakistan, suspects can be held in preventive detention without charge, and without being brought before a judge, for up to 90 days.
Egypt and Pakistan continue to use military courts to conduct unfair trials of civilians in terrorism cases, contrary to international standards. At least eight civilians sentenced to death in secretive trials by military courts in Pakistan have been hanged since January 2015. “Expedited” procedures in terrorism circuit courts in the Egyptian civilian system also give rise to fair trial concerns.
The ICJ invites the Special Rapporteur to comment on measures or mechanisms that states, inter-governmental organisations, and civil society can take to help ensure that states such as Tunisia, Egypt and Pakistan repeal or amend counter-terrorism legislation to bring it into line with their international human rights obligations and commitments.
Victims still waiting for justice in Tunisia’s incomplete transition
As today marks the fifth anniversary of the toppling of Ben Ali’s regime, the ICJ calls on Tunisian authorities to adopt key legal and policy reforms to combat impunity and to deliver justice to victims of past human rights violations.
Under Ben Ali’s regime, thousands of human rights violations, including torture and other ill-treatment, unlawful killings, enforced disappearances, and arbitrary arrests and detentions, were committed by law enforcement and other security officers.
Numerous similar violations were also committed during the December 2010 to January 2011 uprising and some of them continue today.
“The political and institutional reforms introduced in Tunisia over the past 5 years should not be the sole yardstick to measure the success of the transition,” said Said Benarbia, Director of the ICJ Middle East and North Africa Programme.
“Victims of human rights violations, in particular under Ben Ali’s rule, and during the uprising still await justice,” he added.
Despite several cases being brought before Tunisian courts, in particular military courts, these proceedings have yet to establish the truth about violations, ensure that all those who are responsible are held to account, and fulfill the rights of victims to effective remedies and reparation.
“Until their rights to effective remedies and reparation are realized, including by holding the perpetrators to account, the transition will remain incomplete,” Benarbia said.
Indeed, despite numerous legal and policy reforms, including the adoption of the “Transitional Justice Law”, and the establishment of the Truth and Dignity Commission (Instance Vérité et Dignité), the ICJ is concerned that justice for victims remains mostly elusive.
Obstacles that impede victims’ access to justice and effective remedies include current weaknesses in the Tunisian criminal procedures, such as the broad discretion of the public prosecutor to dismiss cases without providing specific reasons (and the lack of ability of victims effectively to challenge such decisions), the lack of effective measures for the protection of victims and witness, inadequate laws on the definition of crimes and superior responsibility, and the use of military courts to address human rights violations.
“Key reforms both in law and practice are needed for Tunisia to properly address past abuses in Tunisia, end pervasive impunity and provide victims with justice,” Benarbia said.
Contact:
Theo Boutruche, Legal Adviser of the ICJ Middle East and North Africa Programme, tel: +96 170 888 961, e-mail: theo.boutruche(a)icj.org
Tunisia-Anniversary-News Press Release-2016-ARA (Arabic version, in PDF)
Tunisia: proposed Counter-Terrorism Law infringes on human rights and erodes the rule of law
The ICJ today called on the Tunisian authorities to amend the deeply flawed draft Counter-Terrorism and Money Laundering law with a view to ensuring its full compliance with international standards.
“Tunisian authorities have obligations under international law to protect individuals under their jurisdiction against all acts of terrorism,” said Said Benarbia, Director of the Middle East and North Africa Programme at the ICJ.
“At the same time, all counter-terrorism measures must fully respect human rights guarantees and the rule of law,” he added.
The draft Counter-Terrorism and Money Laundering law, revised since it was first introduced last year, was revived following a series of attacks against members of the security forces and the army and the deadly Bardo Museum (photo) attack on 18 March 2015.
In response to the killing of 38 tourists in Sousse on 26 June and the following declaration of a state of emergency on 4 July 2015 by the Tunisian President, the Tunisian Assembly of the People’s Representatives has accelerated the process of discussing and adopting the Draft Law.
The Draft Law criminalizes a wide range of acts through overbroad and imprecise definitions of terrorism and terrorism-related acts.
Such definitions could potentially have the effect of criminalizing activities not actually related to terrorism, or even the lawful and peaceful exercise of fundamental rights and freedoms, including the right to freedom of expression, the ICJ says.
The ICJ is particularly concerned that the draft law grants, in its article 68, immunity from criminal prosecution for security forces, outside cases of self-defence, when using force in the course of their duties.
This provision requires amendment to ensure that it does not immunize use of force that violates the right to life in violation of international law and standards, including for instance intentional use of lethal force when it is not strictly unavoidable in order to protect life, the Geneva-based organization adds.
“The draft law should not dilute the specificity of terrorist acts by drawing ordinary crimes within the scope of the counterterrorism legislation, nor should it be used as a tool to shield members of security forces from accountability in cases of human rights violations committed in the course of their functions,” Benarbia said.
Furthermore, the bill contains provisions that could potentially result in undue prosecution of whistleblowers and journalists, or otherwise disproportionally limit the freedoms of expression and information in violation of international law, the ICJ notes.
A number of offences under the Draft Law are punishable with the death penalty.
The ICJ opposes the death penalty in all circumstances as a violation of the right to life and the prohibition of torture and other cruel, inhuman or degrading punishment.
The Draft Law also creates an exceptional regime for police custody, allowing the prosecutor to order up to a period of 15 days of detention (articles 37 and 39) without access to a lawyer or a judge, in violation of the right to liberty, fair trial guarantees, and guarantees for the prevention of torture and other abuses in detention.
It further provides for extensive infringements of the right to privacy through various forms of surveillance, and potentially breaches lawyers’ duties of confidentiality in ways that have not been justified.
“In reviewing and approving the Draft Law, members of the Assembly must ensure that it is fully in line with Tunisia’s obligations under international law, including those relating to the right to life, to liberty and to a fair trial,” Benarbia added.
Contact
Theo Boutruche, Legal Adviser of the ICJ Middle East and North Africa Programme, t: +96 170 888 961 ; e: theo.boutruche@icj.org
Tunisia-Counter Terrorism Draft Law-2015-ARA (Full text in Arabic, PDF)
UN Special Rapporteur on Judges & Lawyers dialogue with Human Rights Council
Mrs Gabriela Knaul (Brazil) today participated in an Interactive Dialogue with the Human Rights Council. Topics included children in the justice system, her visits to Qatar, United Arab Emirates, Tunisia and Portugal, and the need more generally for better implementation of relevant UN standards.
Mrs Knaul’s appearance before the Human Rights Council will be her last before her term in the mandate comes to an end in the coming months.
Her successor as UN Special Rapporteur on the independence of judges & lawyers is to be appointed at the end of the Council session, on 3 July 2015.
Following an initial presentation by the Special Rapporteur, the concerned countries responded, followed by discussion by other states, and civil society.
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