Statement regarding the Executive Order issued by President Bush on 13 November to combat terrorism

The ICJ wrote the following statement to the Norwegian Ministry of Justice.

The Norwegian Ministry of Justice
Post office box 8005 Dep
0030 OSLO

The Norwegian Association of Judges is concerned by the possible breach of human rights that may follow as a consequence of the Executive Order regarding detention and sentencing of foreign nationals charged with acts of international terrorism, signed by President Bush 13 November 2001.

The International Commission of Jurists (ICJ), which is a world wide non governmental organization consisting of judges and lawyers, focusing on enhancing the rule of law and strengthening the protection of human rights, has criticized the Executive Order, re. Communiqe de presse of the 21 st. of November this year and statement of the 6 th of November.

ICJ points out that the implementation of the Executive Order issued by the president may violate several international covenants to which both the United States and Norway are signatories, specifically UN`s International Covenant on Civil and Political Rights.

An individual tried under the new rules may be detained for an unlimited period of time without being informed about the charge against him. The defendant will not have the right to be represented by a lawyer and can be kept in detention secretly without the right to have his case tried before an ordinary court.

Trials against individuals accused of international terrorism will be conducted by Military Commissions that have the right to keep their proceedings and decisions secret. The indicted person can be denied access to the evidence against him and does not have the right to appeal the sentence to a higher court. The lack of the right of appeal is especially unfortunate because the indicted person risks death penalty. The decisions of the Military Commissions are final and can only be reviewed by the President.

Exception can be made from the obligations under The International Covenant on Civil and Political Rights in case of publicly announced state of emergency “which threatens the life of the nation”, Art 4. Although the United States has proclaimed a national state of emergency, there is reason to believe that the conditions according to the Covenant are not met. The United States has not notified the Secretary-General of the United Nations as required by Art 4. The United Nations Committee on Human Rights set up according to the Covenant, is in any case of the opinion that basic guarantees protecting the rule of law can under no circumstances be set aside, not even during a state of war.

At the joint press conference held by President Bush and the Norwegian Prime Minister Bondevik in the White House on 5 December 2001, President Bush defended the rules set forth by the Executive Order by referring to the need to keep vital information regarding state security secret. This can be achieved however, by keeping part of the court hearings secret and not open to the public or by keeping part of the evidence presented before the court secret. The need for secrecy does not give sufficient reason to set aside the basic principles of the rule of law in the way that the President’s executive order does.

The war against terrorism is international. After the 11 September terror attacks this year the United States has appealed to all other countries to help and to show solidarity. Norway has strongly supported the US position. The rules set forth by the Executive Order can make the cooperation between the US and Norway more complicated specifically when it comes to cases regarding extradition. Norway – and most other countries – do not extradite anyone to countries where they might face treatment that is in breach of the basic principles of the rule of law. In every terrorist case tried under the Executive Order the Norwegian courts have to examine the effects that the new rules may have.

The Norwegian Association of Judges is of the opinion that the United States should review the new rules set forth by the Executive Order given by President Bush on 13 November this year. We request the Norwegian government to raise this problem with the Government of the United States.

If we are not able to fight against terrorism without violating basic human rights, the rule of law and democracy will be undermined. It would be a paradox if the terrorists were to achieve that result.

Bergen, 21 December 2001
Oslo, 27 December 2001

Erik Elstad
Lars Oftedal Broch

Note: also refer to the Open Letter to President BUSH on Military Commissions made by the ICJ.

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