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Report of the Eminent Jurists Panel on terrorism, counter-terrorism and human rights
human rights law. The Panel heard of the terrible impact on individuals of measures
such as administrative detention, expulsion or deportation. In some cases, where
persons are expelled or tortured, they risk being tortured upon return; in other
cases, the results are not quite so dire, but such measures have led to family breakup and serious trauma. The potential damaging impact can range well beyond the
individuals directly affected, and the Panel was told that whole communities felt
disproportionately targeted by some of preventive measures being pursued. If individuals are seen to be targeted for arrest and deportation because of a fear of their
influence, rather than because of any active involvement in terrorism, the State
might alienate whole communities. Preventive measures could come to be perceived
as nothing more than an attempt to penalise controversial speech and ideas.
The risk of alienating individuals and groups (often those most needed to assist in
the prevention of terrorist acts) is greater still when governments rely on unsubstantiated secret intelligence. Doubts about the reliability, quality and provenance of
intelligence can undermine otherwise legitimate action because secret intelligence is
less amenable to independent verification: preventive measures may be, or appear,
arbitrary and discriminatory. States are prevented in law from deporting, or depriving
individuals of their liberty, on the basis of information secured by means of torture
and other cruel, inhuman or degrading treatment; yet, there is grave suspicion that
this may be happening. Although the use of torture and cruel, inhuman or degrading
treatment is often difficult to establish, particularly where detainees have been held
incommunicado, illegal actions of this nature are more likely to be disclosed, and
possibly remedied, by the tried and tested principles of criminal law: the individuals
concerned have an opportunity to hear, and contest, the evidence against them, to
report on any wrongdoing by the authorities, and then to have an impartial authority
adjudicate any contradictory claims. The Panel, however, was told of many preventive measures that appear to be created precisely in order to avoid the tried and
tested legal requirements of the past.
In effect, the criminal justice system, with its well established evidentiary requirements, has been supplanted, at least in part, by a new network of procedures to be
found in administrative, civil and immigration law. Some countries have indicated
that criminal prosecutions remain their preferred option, but in practice they seem
to prefer to be able to act on the lower standard of “risk” rather than “proof ” of
criminal activities. Intelligence agencies are less accustomed to having their activities scrutinised, and often have an institutional culture of secrecy that is particularly
resistant to disclosure of information in legal proceedings.
The Panel recognises that preventive measures, when measured against international tests such as legality, necessity, non-discrimination and proportionality, can
be helpful in countering terrorism. However, the evidence shows that in practice
such measures are proving problematic and must not be undertaken lightly, or with
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