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Report of the Eminent Jurists Panel on terrorism, counter-terrorism and human rights
6. Conclusions & Recommendations: preventive measures
On the basis of the material submitted, and its own consideration of international
law, the Panel came to a number of conclusions about preventive measures.
In particular, the Panel concluded that the prevention of terrorism cannot be
constrained to a narrow set of legal and procedural arrangements. Learning from
the past suggests that a wide range of policy measures are needed: in the matter
of education, community relations, policing, the economy, foreign policy, respect
for the rights of minority communities, and in the mainstreaming of human rights
and equality considerations into all government policy. The preventive measures
explored in this chapter in no sense reflect the comprehensive programme of action
required of governments if they are to counter terrorism effectively. While it is true
that the Panel, by virtue of its composition, was specially qualified to discuss legal
measures, it is noteworthy that this also seemed to be the focus of government
efforts. Important as law is, it cannot carry all the weight of preventing terrorism,
and governments should take a more holistic approach to the challenges faced.
Having said that law is not the sole answer, law is clearly part of the answer. The
Panel was disturbed at the extent to which crucial legal principles are being degraded
in the name of dealing with terrorism. While recognising the value of taking steps to
try to prevent terrorism, the Panel was left with the impression that some States are
supplanting the normal criminal justice system, in part because of its well-established evidentiary and procedural requirements. This is, the Panel believes, proving
to be a very “slippery slope”. The Panel is particularly concerned that the secrecy
surrounding preventive measures introduced as part of a State’s counter-terrorism
efforts may be seeping into legal systems more generally. In Canada, participants
noted that closed hearings and non-disclosure in immigration proceedings have
become increasingly common in a wide range of cases beyond those relating to allegations of terrorism. In the UK, participants pointed to the expanding use of “special
advocates” in a range of proceedings (including proceedings before parole boards),
and a serving special advocate highlighted how the system was creating worrying
precedents by legitimising greater use of secret evidence and of secret hearings.
a. Preventive measures & immigration
While the Panel acknowledges that deportation is provided for in international
law, it believes that the gravity of the measures must be fully recognised. The
tests of legality, necessity, proportionality and non-discrimination should be
applied rigorously. The following safeguards are vital:
• Immigration law should not serve as a substitute for criminal law;
• Any detention process, and individual detention decisions, should
be properly grounded, and subject to regular and effective review by
a judicial body;
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