Assessing Damage, Urging Action Introduction: Setting the context September 11th In the wake of the 11 September 2001 attacks in the United States, many States, responding to United Nations Security Council resolutions and public anxiety, began to adopt an increased array of counter-terrorism measures. While the Security Council failed to immediately refer to States’ duty to respect human rights in their responses to terrorism, it subsequently made it clear in a 2003 declaration that “States must ensure that any measures taken to combat terrorism must comply with all their obligations under international law, in particular international human rights, refugee and humanitarian law.” 1 Despite this guidance, some government officials and policy-makers – most notably in some liberal democracies – began claiming that the rules had changed and even dismissed as unrealistic the observance of certain basic human rights in confronting the new global threat. Human rights treaty bodies and non-governmental organisations soon began documenting the fact that States were violating human rights in the name of countering terrorism. The ICJ Berlin Declaration Alarmed by these developments, in August 2004 the International Commission of Jurists (ICJ) convened 160 jurists from all regions of the world in Berlin to discuss the impact of counter-terrorism on human rights and the rule of law. Delegates spoke about serious breaches of human rights and of the rule of law allegedly committed in the name of countering terrorism. Concern was expressed at the conference about the cumulative impact of emerging counter-terrorism measures, and the risk of unravelling the international human rights standards that had been painstakingly developed over the second half of the last century. As a result, the participants adopted the ICJ Declaration On Upholding Human Rights and the Rule of Law in Combating Terrorism (the ICJ Berlin Declaration).2 The Declaration sets out eleven fundamental principles of human rights and the rule of law, “which give governments a reasonable margin of flexibility to combat terrorism without contravening human rights and humanitarian legal obligations”.3 1 UN Security Council Resolution 1456 (2003) adopted on 20 January 2003, UN Doc. S/RES/1456 (2003); see also UN Security Council Resolution 1373 (2001), adopted on 28 September 2001, UN Doc S/RES/1373 (2001). 2 See text in Annex 1. The ICJ has since published a Legal Commentary to the Declaration which elaborates on the international jurisprudence upon which it is founded, ICJ, Legal Commentary to the ICJ Berlin Declaration: Counter-terrorism, Human Rights and the Rule of Law (hereinafter: Legal Commentary to the ICJ Berlin Declaration), Geneva, 2008. 3 ICJ, Legal Commentary to the ICJ Berlin Declaration, p. ix. 5