2015 | Principles and Guidelines on Human and Peoples Rights while Countering Terrorism in Africa
The African Commission on Human and Peoples’ Rights developed and adopted these Principles and Guidelines in May 2015 to assist States to implement their human rights obligations while countering terrorism and other forms of violent extremism. The Principles and Guidelines contain ‘explanatory notes’ that refer to the various sources of African and international law they originate from.
The work also points at 14 “general principles” particularly relevant to the protection of human rights while combating terrorism of which a State Party’ obligation to provide an effective remedy for, and to provide reparations to, victims of (counter-)terrorism activities, form part of. An effective remedy is available, effective and sufficient. Available means that the individual can pursue the remedy without impediment, effective means that if it offers a prospect of success, and the remedy is sufficient if it is capable of redressing the complaint. Reparations must be full and effective including restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition (p. 13-14).
Human Rights violations in the context of (counter-)terrorism and remedies
Although the basis of the chapter layout seems rather inconsistent, the chapters are nevertheless clearly linked to human rights (abuses) and (counter-)terrorism related issues. This summary, confines itself to those human rights issues in the context of (counter)terrorism to which the Principles and Guidelines explicitly link the right to a remedy:
Right to Life & the use of (lethal) force – No one may be arbitrarily deprived of his life. While countering terrorism, State authorities may only use lethal force to the extent strictly necessary in order to protect life and required for the performance of their duty. In all other instances where the use of lethal force leads to an infringement of the right to life, States are obliged to provide an effective remedy and reparation (p. 17).
Arbitrary Detention & access to justice - Arbitrary detention is prohibited. Any individual arrested or detained by the authorities has a the right to access to justice through taking proceedings before a competent, independent, and impartial court and challenge the arbitrariness and lawfulness of his or her deprivation of liberty without delay and receive immediate, appropriate and accessible remedies (p. 20). When during arrest or imprisonment, torture or cruel, inhuman or degrading treatment or punishment occur, States have a responsibility to provide an effective remedy and reparations (p. 22).
The Right to know & fair trial - Any individual arrested or detained has the right to a fair trial. This requires access for the accused to all relevant information held by the prosecution or other public authorities that could help him/her to exonerate him or herself, or cast doubt on the State’s case against him or her. In order to enable lawyers to provide effective legal assistance to their client, a State must ensure that lawyers have timely access to appropriate information (p. 25).
Criminalization of terrorism & Listing – Under domestic criminal law, States may prosecute individuals who engage in terrorism and human rights abuses. In turn, the criminalization and sanctioning of terrorism-related activities must be done in accordance with international human rights law. When listing an individual or entity as a terrorist, the principles of legality and non-discrimination ánd procedural protection standards must be met. Listed persons or entities must be enabled to seek judicial review and apply for de-listing before and independent, impartial adjudicative body. States must provide reparation for any violation of an individual’s rights associated with listing laws and procedures (p. 28-29).
Protection of victims & accountability - States must ensure that witnesses, victims of terrorism and counterterrorism-related human rights abuses, their family members and other involved parties (e.g. investigators and human rights defenders) are safe and protected from violence, intimidation or reprisal. This may require States develop witness protection programmes. Furthermore, States have the duty to hold perpetrators of human rights violations in the context of (counter-)terrorism accountable and conduct effective investigations in to these violations.
Right of access to information & right to the truth – Victims of (counter-)terrorism activities have a right of access to information and a right to the truth. States that are reluctant to disclose information must demonstrate that the access to information may cause harm that is greater than any benefit to the public interest served by the disclosure. Any refusal to disclose information shall be subject to judicial review. Information about gross violations of human rights or serious violations of international humanitarian lay may not be withheld on national security grounds in any circumstances. States may not block access to information in order to preclude the accountability of States or individuals. Nor may States preclude victims from securing a remedy to gross human rights violations or serious violations of international humanitarian law.