Findings and Recommendations of
CHRI’s Report on the Impact of Counter-Terrorism on Policing

Many Commonwealth countries have enacted laws increasing police powers to stop and search, use force, arrest without warrant, preventively detain suspects for long-periods and limit fundamental due process rights as a response to the threat of terrorism. Abusive policing is already rife in many Commonwealth countries and anti-terrorism legislation is allowing the police to act with further impunity while adding to the distance between police and society, alienating marginalised communities and undermining policing at a time when it most needs public support. The Commonwealth Human Rights Initiative (CHRI) 2007 report to the Commonwealth Heads of Government – ‘Stamping Out Rights: The impact of anti-terrorism laws on policing’ examines the changing face of policing throughout the Commonwealth, the applicable international law and standards, the legislative response, the human rights abuses occurring, and counter-terrorism police accountability mechanisms.

Our research revealed that it is being conceived as necessary to violate human rights to enhance security and successfully police terrorism. Yet, human rights and security are interdependent, countering terrorism derives from the obligation of states to avoid interference with the fundamental rights of their citizens (including right to life), and security cannot be achieved unless each and every individual in the country feels safe, both from terrorists, and from states' practices to counter terrorism. Human rights and counter terrorism share a common objective; one cannot therefore be used as a justification to undermine the other. Without human rights, counter-terrorism is counter-productive. Furthermore, states are bound by their international and constitutional obligations to uphold human rights. This first finding led us to recommend the ratification of international instruments by member states, as well as their implementation, amongst other things, by undertaking police reform to ensure compliance with the standards of democratic policing in accordance with human rights principles and the rule of law.

A first glance at the various pieces of legislation highlighted that the principle of legal certainty, at the heart of the rule of law, failed to be complied with in all the countries having enacted anti-terrorism laws. No international agreement on the definition of terrorism has yet been reached, yet states legislated, crafting their own definitions. However, none of these provide with the required clarity and certainty. The questions of state terrorism failed to be answered, and the border between the right to self-determination and terrorism was left blurry. The definitions contain a long list of actions that often, but not always, have to be coupled with the intention to influence the government, to spread terror, or to promote a political, religion, or ideological idea. Therefore, as practice shows, abuses (yet legal!) are frequent, and special counter-terrorism powers are being used to violently tackle demonstrations (they indeed promote a political opinion, or try to influence the state). We therefore urged states not to enact any specific legislation until they are able to fulfill this criterion of legal certainty, and for the international community to resume discussions on the topic (based on the cumulative characteristics identified in Security Council Resolution 1566).

These laws have not only criminalised certain behavior, or enhanced penalties of existing crimes, but they significantly reduced the procedural guarantees of suspects. For example, pre-trial detention was enhanced drastically, and can last indefinitely in certain countries. Such detention is particularly difficult to challenge - the law allowing for the non-disclosure of the grounds of detention for national security reasons (this is always the case with terrorists suspects). Powers to stop and search, to arrest, and to use force have also been enhanced in violation of fundamental liberties. Such measures are even more worrying for they are coupled with low accountability amounting in certain cases to de facto immunity for law enforcement bodies. It is necessary to undertake a full review of the proposed anti-terrorism laws with human rights standards, to establish and implement appropriate, robust, independent police oversight bodies, and to ensure that alleged abuses are actively investigated.

Human Rights violations are further encouraged by the militarisation of police practices, such as the establishment of “shoot to kill policies”, or by the creation of mixed police and army units such as the Rapid Action Battalion in Bangladesh, or the Black mambas in Uganda. These practices are to be condemned, and states should ensure that in all cases civilian police are the only agents empowered to carry out policing tasks.

States are primarily responsible to respect and promote human rights while countering terrorism. Yet, the Commonwealth must ensure that its member states will take such steps and monitor those changes. The Commonwealth Ministerial Action Group is mandated to address “serious or persistent violations” of the principles outlined in the 1991 Harare Commonwealth Declaration that gives recognition to principles of human rights, democracy and good governance. Similarly, the rule of law and human rights are part of the new strategic plan of the Commonwealth Secretariat, it should therefore endeavor to support the states by providing them with a model law, which, unlike the existing one, would promote the respect of human rights standards and the rule of law. The Creation of a police expert group to guide and assist police practices and operations would also add value to this effort.

The recommendations of the report also stressed the potential of the Heads of Police meeting to exchange best practice on police accountability, on transparency, on strengthening relationships between the police and communities, on establishing recruitment policies reflecting the population diversity, or on ensuring that policing is demonstrably non-discriminatory and that bias is neither tolerated within the service nor in law enforcement. These tools are indeed fundamental to enhance community oriented policing, in turn necessary to counter terrorism efficiently.

Interaction and cooperation between the police and various communities is considered as the key to gather reliable information on terrorism. Too often, by targeting certain categories of people through the use of racial profiling, in particular with the lower threshold of proof for terrorism suspicion and with the little importance given to human rights and non-discrimination in the context of terrorism, communities who would have otherwise provided with the most valuable information are alienated, and their frustration against the state enhanced.

Rife human right abuses committed under the pretext of countering terrorism are not limited to the Commonwealth. Similarly, counter terrorism is being dealt with in other international instances such as the United Nations. Their findings could be of a great use for the Commonwealth to reach the goals we recommend, and it could for example ensure that member states take full account of the observations of the UN Human Rights Council and of the UN special rapporteurs pursuant this issue. If the Commonwealth Secretariat promotes respect to human rights while countering terrorism within the Commonwealth, it should as well encourage the member states to channel this message in other international organisations. This could be done through the adoption of common positions. The Commonwealth states speaking with one voice at the UN level. Such positions should include support for a stronger cooperation between the UN Counter-Terrorism Committee (CTC) and the Special Rapporteur on Human Rights while countering terrorism, or stressing the importance of a review through a human rights filter of countries submissions on the steps they have taken to counter terrorism.

A clear example of the need to promote the Commonwealth principles at that level is the absence of reaction of the CTC on the 2005 Pakistani report demonstrating its commitment to 1373 Resolution by stating that “Pakistan also launched a military operation in Tribal Areas of Pakistan to flush-out al Qaeda/Taliban miscreants. Their hide-outs were destroyed and a number of foreign al-Qaeda elements and their local collaborators were killed during the military operation”.

The Commonwealth States demonstrated little care for human rights while enacting counter-terrorism legislation. It is necessary for States to respect their international obligations, and to promote the Commonwealth’s principles. Steps to amend or repeal existing acts have to be taken, and due pre-legislative scrutiny should be carried prior to the enactment of Bills on this human rights sensitive topic. This is primarily the duty of states, but the Commonwealth has a major role to play in ensuring that states live up to their pledges. It is the duty of the Commonwealth bodies to promote the Harare Declaration principles who have been shamelessly been stamped upon by states efforts to counter terrorism.