In 2016, Switzerland was stuck between a rock and a hard place. It had to choose between complying with a binding UN Security Council Resolution which was a security measure against terrorism or comply with the human rights provisions of European Court of Human Rights (ECHR). This was an undesirable position to be in and demonstrates the difficulties of reconciling security and human rights.
A common notion that presents itself to someone who studies or practices in human rights law is the conflict between human rights and measures taken to protect security interests. These conflicts have been further exacerbated with the 9/11 attacks which brought terrorism to the forefront. Since then, the on-going debate of human rights versus security measures has been put under the spotlight of legal scholarship.
In this answer, the author argues that the security and human rights are complementary and mutually reinforcing. This position is supported by the interpretation and implementation of the various instruments; analysing the framework of limitation of rights and freedoms; and looking into case laws. As most of the field has developed due to the increase in terrorism, the author will confine her answers and reasoning to terrorism and counter-terrorism mechanisms. While the author agrees that these are mutually reinforcing and complementary concepts, it is to be noted that their implementation as a reactionary tool has yet to reflect the claim.
II. Whether Security can be implemented in a Human Rights positive environment?
Several domestic legislations such as New Zealand, USA, UK and Australia have enacted Anti-terrorism statutes. The common thread which ties together these legislations coming into place would be the terrorist attacks that each of these countries faced. Coming at the heels of shock and a desperate motivation to spring to action, legislations which would violate civil rights were enacted to fight against terrorism. These legislations have created new crimes, and increased the police powers to collect intelligence in the pursuit of security. But there has been an increase in the recognition of human rights (or non-violation of civil rights and freedoms) in the pursuit to fight terrorism, especially on the international level.
II.1. Response by the UN to Counter-terrorism measures
The High Level Panel on Threats, Challenges and Change in its report “A More Secure World: Our Shared Responsibility” of 2004 acknowledged the importance of continued human rights protection in its global comprehensive strategy to fight terrorism that strengthens ‘responsible States and the rule of law and fundamental human rights’. This report considered the concept of Human Security stating that it is similar to human rights but also more considerate of simultaneous obligations such as national security concerns. In a 2005 Report by UN Secretary General titled “In Larger Freedom: Towards Development, Security and Human Rights for All”, advanced a framework that placed human rights at the centre, by making freedom from fear his central idea.
In 2006, Kofi Annan in his report titled Uniting Against Terrorism, enlisted 4 main pillars of counter-terrorism strategy:
- Addressing conditions conducive to the spread of terrorism
- Measures to prevent and combat terrorism
- States’ capacity to prevent and combat terrorism
- Respect for human rights and the rule of law
These pillars were adopted as an annex to the UN Global Counter-Terrorism Strategy (GA Res 60/288).
II.2. Security Council and Counter-terrorism measures
Earlier, the mandate of the Security Council to maintain international peace and security was seen to be independent of any human rights obligations. Thus, when it started its counter terrorism mechanism, there was nothing explicitly specifying that human rights must be protected.
In 2003, SC Resolution 1456, the States ensured that measures to combat terrorism would comply with the international obligations including human rights and refugee law. Although it was only in the Annex and not binding, it was made part of the binding treaty in future resolutions.
II.3. Challenges to a Human Rights Based Approach to Security
While there has been an acknowledgment of respecting and upholding of human rights by both General Assembly as well as the Security Council, reconciling the two still poses certain challenges. The reason for lack of a binding international instrument on counter-terrorism could be pointed to the following:
Although a human rights based approach to combating terrorism is the basis for an international action plan, the content for the same has not been identified. This lack of development stems from the fact that there has not been any agreement with regard to the definition of terrorism per se. One of the main point of issue that is debated is whether State Terrorism should be included within the definition of terrorism. Overtly broad definitions would lead to its misuse, while narrow ones could lead to the person responsible going free. The special rapporteur has suggested a model definition.
- Terrorism Sanction Regimes
The Terrorist Sanctions Regime is a procedure introduced by Security Council resolution to impose targeted sanctions against individuals, groups or entities who have been listed as “terrorists” in the Sanctions list. Nominating states may provide a narrative summary through which the individual may be enlisted through a no objection procedure.
Currently there are sanctions on ISIL and Al Qaida in accordance with Security Council Resolution 2368 (2017). In fact, this resolution recognises that “development, security, and human rights are mutually reinforcing and are vital to an effective and comprehensive approach to countering terrorism, and underlining that a particular goal of counter-terrorism strategies should be to ensure sustainable peace and security”.
One of the challenges facing a sanctions regime is that there is no need for a criminal charge to list a person. The narrative summaries for terrorism in the sanctions regime are a lower threshold than in other less serious crimes. This may sometimes even lead to a wrong person being put on the list, or being mistaken, as was seen in the Khalid El-Masri case.
Another challenge is whether the sanctions regime itself is legal and enforceable in accordance with human rights. Although M. Scheinin, the first UN Special Rapporteur on terrorism and human rights, took the view that since the sanctions regime does not involve the due process of law, it is ultra vires the UN Charter; B. Emmerson voiced grave concerns regarding the regime.
For instance, in the matter of Sayadi and Vinck v. Belgium, the question that came up before the Human Rights Committee (HRC) was whether the UNSC Resolutions imposing sanctions is ultra vires the UN Charter. Instead of contributing to the debate, the HRC avoided the entire issue of whether there was a conflict between the security measures under the sanctions regime and the human rights obligations of the State through other instruments (which in this scenario is the ICCPR). The Committee found Belgium guilty, while Committee Member Mr. Ivan Shearer dissented stating that Belgium was only doing its duty in accordance with the superior sanctions law under the UN Charter.
Similarly, in the case of Al-Jeddah v. UK, the question that came up before the European Court of Human Rights was whether there was a norm conflict between the European Convention of Human Rights and the UNSC Res. 1546. The Court reconciled the conflict by interpreting that the resolution did not intend to impose any obligation in breach of the fundamental principles of human rights. The Court held as follows:
In the event of any ambiguity in the terms of a Security Council Resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law.
This is not the only time that the ECtHR has been confronted with the task of interpreting a UNSC resolution based on security in compliance with Human Rights. In the case of Nada v. Switzerland as well as Kadi and Al Barakaat, these themes have been touched upon. In all these cases, the court has looked into some way of interpretation which reads the inconsistent provisions together.
A problem is presented when there is an irreconcilable conflict which does not allow for the interpretation. This was the situation in the case of Al-Dulimi v. Switzerland, where the ECtHR had to push the interpretation of systemic harmonisation to its limit. Instead of applying the Bosphorous equivalent protection analysis to the UNSC, the court denied that there even was a conflict between the norms.
Although there are criticisms of the sanctions regime, it is well established. Due to the pervasive influence of the regimes, there has been a trend to interpret the sanctions regime with human rights rather than look at the human rights implications of any sanction regime. And in case of any human rights implications, there can be a balancing of interests.
III. Balancing of interests
To read security issues and human rights together, the notions must be balanced against each other. According to Golder and Williams, three guidelines can be gleaned with regard to the balancing of interests:
- Never derogate from absolute human rights
- If derogation is necessary, it must be in accordance with cogent empirical evidence available
- If national security can be achieved through an alternate method without derogating from human rights, or derogating to a lesser extent, then that method must be chosen.
Secretary General of UN, António Guterres, said “Terrorism is fundamentally the denial and destruction of human rights and the fight against terrorism will never succeed by perpetuating the same denial and destruction.”
It is for this reason that there has been increasing literature on showing that security and human rights are the two sides of a same coin. Various GA resolutions as well as SC resolutions have tried to read the two concepts together, ensuring that any security measures undertaken do not violate human rights. Considering the case law, as well as the language used in the resolutions, the author is of the belief that the two are mutually reinforcing and complementary ideas.
While the author believes that the two are mutually reinforcing, it is necessary to acknowledge that the interpretation and implementation of the two streams of rights and duties in courts leaves room for improvement.
 GOLDER, B. & G. WILLIAMS, “Balancing National Security and Human Rights: Assessing the Legal Response of Common Law Nations to the Threat of Terrorism” (2006) 8(1) Journal of Comparative Policy Analysis 43, at 46
 Id. at 45
 ALMQVIST, J., “Rethinking Security and Human Rights in the Struggle against Terrorism”, paper presented at the European Society of International Law Forum on International Law: Contemporary Issues, Workshop on ‘Human Rights under Threat’ (27 May 2005)
 A/RES/60/288 – https://unispal.un.org/DPA/DPR/unispal.nsf/0/1EF6E139F9F1786F852571FE0069FF46
 S/RES/1456 (2003)
 S/RES/1624 (2005); S/RES/2178 (2014)
 ALMQVIST, J., “Rethinking Security and Human Rights in the Struggle against Terrorism”, paper presented at the European Society of International Law Forum on International Law: Contemporary Issues, Workshop on ‘Human Rights under Threat’ (27 May 2005).
 Report of the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ten areas of best practices in countering terrorism, UN Doc A/HRC/16/51 (2010)
 CASE OF EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA, (Application no. 39630/09) (ECtHR, 2012).
 Sayadi and Vinck v. Belgium, Human Rights Committee, Communication No. 1472/2006, UN Doc CCPR/C/94/D/1472/2006 (2008).
 Id. at Shearer, Dissenting Opinion.
 App. No. 27021/08, 7 July 2011
 Id. at para. 102.
 Case T-315/01, Yassin Abdullah Kadi v. Council and Commission, Judgement of the Court of 21 September 2005; Case T-306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council and Commission, Judgement of the Court of 21 September 2005.
 GOLDER, B. & G. WILLIAMS, “Balancing National Security and Human Rights: Assessing the Legal Response of Common Law Nations to the Threat of Terrorism” (2006) 8(1) Journal of Comparative Policy Analysis 43, at 55.