A/HRC/28/28 A. Legislative measures taken by States 21. Some States have enacted broadly formulated national counter-terrorism legislation containing a definition of terrorism that lacks precision and allows for arbitrary or discriminatory enforcement by authorities, or otherwise undermines the enjoyment of human rights. An imprecise definition of a crime can lead to the criminalization of innocent conduct and to the broadening of proscribed conduct in judicial interpretation. Legislation of this type has led to the infringement of the rights to liberty and security of the person and the freedom of expression, association and assembly, and to violations of due processrelated rights, including the right to a fair trial. Legislation also has been misused to curb otherwise legitimate activities and to target journalists, human rights defenders, minority groups, members of the political opposition or other individuals, some of whom have been arbitrarily detained and subjected to torture or cruel, inhuman or degrading treatment or punishment while in custody.7 These concerns are equally relevant to measures taken by States to curb the flow of foreign fighters (see paras. 49-50 below). 22. Legislation in some States has equated legitimate expressions of protest and opposition to the Government with terrorism, thereby effectively criminalizing freedom of expression.8 For example, one jurisdiction has adopted legislation that defines terrorism to include such acts as “insulting the reputation of the State or its position”, which could result in the criminalization of any discourse critical of the Government or its policies. In some jurisdictions, authorities have used broadly worded counter-terrorism laws to charge journalists and members of the political opposition with, inter alia, “encouraging terrorism”, thereby imposing an unjustified limitation on their right to freedom of expression. In their efforts to counter incitement to terrorism, States parties to the International Covenant on Civil and Political Rights should ensure that counter terrorism measures are compatible with article 19, paragraph 3 of the Covenant. In its general comment No. 34, the Human Rights Committee specified that offences such as the “encouragement of terrorism”, and “extremist activity” or “praising”, “glorifying” or “justifying” terrorism should be clearly defined to ensure that they do not lead to unnecessary or disproportionate interference with freedom of expression. 9 23. States have resorted to detaining persons accused of terrorism without respect for the safeguards that are due under international law to all persons deprived of their liberty. Some have expanded the power of security forces to arrest “suspected criminals” without warrant. In some jurisdictions, legislation allows for preventive detention without appropriate safeguards, including by extending the permissible period for pre-charge detention of persons suspected of terrorist activity and the length of time a person may be held without judicial authorization or review of the reasons for detention. As a result, individuals accused of terrorist activity have been held for prolonged periods without charge or trial, in some cases without proper access to legal counsel or recourse to independent judicial review.10 Such practices violate the rights to liberty and to be free from arbitrary detention. Recently adopted legislation in one jurisdiction allows for the retrospective authorization of 7 8 9 10 8 See OHCHR, "UN experts urge Ethiopia to stop using anti-terrorism legislation to curb human rights”, press release, 18 September 2014. See OHCHR, “Statement by the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association at the conclusion of his visit to the Republic of Rwanda”, press release, 27 January 2014. See CCPR/C/GC/34. See UN News Centre, “Independent UN human rights expert urges Qatar to reform its justice system”, 14 January 2014; and The Malaysian Bar, “Press Release: Amendments to the Prevention of Crime Act 1959 are Regressive and a Blow to the Rule of Law in Malaysia”, 3 October 2013.