A/HRC/28/28
resolution 2178 (2014) to “terrorism in all forms and manifestations” as one of the most
serious threats to international peace and security, without qualification or further
definition, has prompted well-founded concerns that the resolution may fuel the adoption of
repressive measures at the national level against otherwise lawful, non-violent activities of
groups or individuals. The lack of an explicit exemption for acts that otherwise may be
lawful under international humanitarian law is also a cause for concern.
47.
Particularly in view of the legally binding nature of Security Council resolution
2178 (2014), concerns also have been raised at the lack of definition of the terms
“terrorism” or “extremism”, as well as to references in the resolution to “terrorists” as a
category of individuals in addition to specific acts to be sanctioned.
48.
Resolution 2178 (2014) is, however, explicit in requiring States to ensure
compliance with international law, including human rights law, in its implementation.
States must therefore ensure that any legislation adopted on the basis of the resolution is in
line with the principle of legality, as enshrined in article 15 of the International Covenant
on Civil and Political Rights. This requires that the imposition of criminal liability be
limited to clear and precise provisions so as to respect the principle of certainty of the law
and ensure that it is not subject to interpretation, which would unduly broaden the scope of
the proscribed conduct. Overly vague or broad definitions of terrorism would not meet this
requirement and may be used by States as a means to cover peaceful acts, to discriminate
against particular individuals or groups or to limit any sort of political opposition.
49.
Some of the measures taken under the scope of Security Council resolution 2178
(2014) may have a negative impact, for example, on the right to due process for affected
individuals, including the right to presumption of innocence; to enjoyment of the right to
freedom of movement, and be protected against arbitrary deprivation of nationality; to the
rights to freedom of religion, belief, opinion, expression or association; 27 and to protection
against arbitrary or unlawful interference in privacy. It should not be presumed, for
example, that every individual travelling to an area of conflict has criminal intent or is
supporting or engaging in criminal terrorist activity. This consideration is fundamental to
ensuring respect for due process and the presumption of innocence. While the resolution
does not explicitly reflect a minimum age for liability of individuals it seeks to target,
States also must take every measure to ensure respect for the rights of individuals under the
age of 18 years, and ensure that any measure taken to counter the flow of foreign fighters is
compliant with all international legal obligations, including human rights.
50.
A number of States have taken measures to curtail the movement of foreign fighters.
These include travel bans, the withdrawal of passports and the denial of citizenship, all of
which have an impact on the right to freedom of movement, as enshrined in article 12 of the
International Covenant on Civil and Political Rights. The right to freedom of movement
includes the right to enter one’s own country and, as explained by the Human Rights
Committee in its general comment No. 27, covers at the very least an individual who,
because of his or her special ties to or claims in relation to a given country, cannot be
considered a mere alien, such as nationals of a country who have been stripped of their
nationality in violation of international law. 28 While the right to freedom of movement is
not absolute, limitations must be lawful, pursuant to a legitimate aim and necessary to
achieve that aim. The Committee further specified that there were few, if any,
circumstances in which the deprivation of the right to enter one’s own country could be
27
28
See for example Human Rights Committee general comment No. 34 (CCPR/C/GC/34), para. 46, and
A/HRC/22/17Add.4, annex, appendix.
CCPR/C/21/Rev.1/Add.9, para. 20.
15
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