A/HRC/16/50
explicitly guaranteed under international humanitarian law during armed conflict, the
Human Rights Committee has stated that the requirements of fair trial in human rights law
also must be respected during a state of emergency.20
1.
Challenges to due process and the right to a fair trial
31.
In their fight against terrorism, some States have adopted measures or conducted
activities which infringe on basic standards of fair trial or otherwise limit access to the
judicial process. For example, some States have extended the maximum limit of pre-charge
detention, limited the possibility of a review of the legality of detention, broadened the kind
of evidence that can be withheld from the defence, taken measures that directly impact on
the presumption of innocence, made an overly broad use of anonymous witnesses, rendered
assistance by counsel extremely difficult, or used evidence such as a confession obtained
through physical or undue psychological pressure, including torture or ill-treatment. A
number of countries also have established specialized chambers within the ordinary courts,
made use of military courts to try civilians, or created special courts to deal with terrorismrelated cases, in some cases in a manner that is inconsistent with human rights standards.
Exceptional courts such as these often lack independence and impartiality of the judiciary,
and do not provide for sufficient guarantees for the accused.
32.
I continue to be deeply concerned by policies and practices such as these, and am
pleased that the working group on protecting human rights while countering terrorism,
which is chaired by my Office, will host an expert symposium in early2011 specifically to
address these and other challenges to the right to a fair trial in the context of counterterrorism. The objectives of the expert symposium will be: to assess and analyse the
obstacles and challenges to implementing the requirements for fair trial as set out in
international human rights standards; to identify other key rights to secure the fundamental
requirements of a right to a fair trial in the context of counter-terrorism; and to exchange
experiences regarding good practices with respect to protection on human rights in this
regard. A report on the outcome of the expert symposium will be produced with a view to
providing guidance to Member States on how the right to fair trial and other related human
rights can best be protected in the context of countering terrorism.
2.
Specific challenges: the use of intelligence in the context of criminal justice processes
33.
For the purposes of the present report, I wish to highlight some of the specific
challenges to due process raised by the increased reliance by States on intelligence
information in the context of counter-terrorism, all of which require a more in-depth and
comprehensive analysis, and greater attention by the international community. The use of
accurate intelligence is indispensible to preventing terrorist acts and bringing individuals
suspected of terrorist activity to justice. However, the increased reliance on intelligence for
countering terrorism and the advent of “intelligence-led law enforcement” in many
countries, particularly in the decade since the terrorist attacks of 11 September 2001, has led
to the expansion of intelligence authority, often without adequate consideration for the due
process safeguards necessary to protect against abuses.
34.
In addition to the challenges to human rights raised by the extension of traditional
law enforcement powers and functions to intelligence services, the increased reliance on
intelligence has had a deleterious effect on criminal justice in many countries. Policies and
practices such as the broad application of the national security or “State secrets” doctrine to
20
12
International Armed Conflicts, art. 75; Protocol Additional to the Geneva Conventions of 12 August
1949, and relating to the Protection of Victims of Non-International Armed Conflicts, art. 6.
Human Rights Committee general comment 29 (2001) on states of emergency, para. 15.
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