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Report of the Eminent Jurists Panel on terrorism, counter-terrorism and human rights
Important protections exist in the interim orders that can be issued by the European
Court of Human Rights, the Inter-American Court of Human Rights, the UN Human
Rights Committee and the UN Committee against Torture to “stay” national security
removals. Regional or international safeguards complement and do not replace effective domestic remedies and, as with domestic remedies, these regional safeguards
will be difficult to invoke effectively if intelligence reports cannot be independently verified. However, in the case of Member States of the Council of Europe, the
European Court of Human Rights has played a particularly important role in staying
deportations to allow for further consideration. The Panel was concerned to learn of
cases where the person was deported despite a “stay” being issued.222
Participants at several Hearings, including in Canada, the European Union and
the United Kingdom, questioned the legitimacy of using deportation as a counterterrorism measure. Some argued that where deportation was used as an alternative
to court action, international justice for terrorist crimes is undermined (possibly
violating the principle of aut dedere aut judicare).223 Concern was also expressed that
deportation may be premised on the person being “dealt with” on his or her return,
in which case deportation is really a disguised form of extradition, but one in which
the safeguards commonly applicable in extradition law are being side-stepped.224
Several representatives of Muslim organisations also highlighted the devastating
impact of forced removals on the right to family and private life, both of the individuals removed and their families, particularly when they concern long-term residents.
They also emphasised the stigma attached to deportations based on allegations
of terrorism, resulting in significant hardship in leading a normal life, including
the risk of detention and torture upon return to their home country. It was argued
that deportation is a disproportionate measure, given the existence of alternatives.225 Individuals suspected of links to terrorism could be prosecuted on a range
of grounds (see Chapter Six) or be subjected to certain restrictions on their movements, communications or other activities (see on).
222 The Panel learned about a case in which the person had been expelled despite UN Committee against
Torture interim measures (Views of 11 May 2007, Adel Tebourski v. France, Communication No 300/2006,
UN Doc. CAT/C/38/D/300/2006) and where people were deported before interim measures could have
been requested – ECtHR, Judgment of 26 April 2007, Gebremedhin v. France, Application No. 25389/05; UN
Committee against Torture, Views of 24 May 2005, Brada v. France, UN Doc. CAT/C/34/D/195/2002.
223 Many terrorism conventions impose on States Parties the obligation to extradite or prosecute (aut dedere,
aut judicare) alleged perpetrators of offences, see also UN Office on Drugs and Crime (UNODC), Legislative
Guide to the Universal Legal Regime against Terrorism, 2008.
224 See summaries of the EJP Hearings in Canada, the EU, the Russian Federation and the UK.
225 See for example, the summary of the EJP Canada Hearing.
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