A/HRC/20/14
emphasizes that “the State has the right and duty to guarantee the security of all.”23 The
State’s duty to uphold national security and its obligation to ensure the protection of the
human rights of all those within its jurisdiction thus amount to a series of complementary,
simultaneous and mutually reinforcing obligations.
19.
It is axiomatic that States are under the obligation of an international law to put in
place effective criminal law provisions to deter the incitement,24 preparation and
commission of terrorist offences, supported by law-enforcement machinery for the
prevention, suppression and sanctioning of breaches of such provisions.25 Defences
available under national laws must be drafted with sufficient precision to ensure effective
protection of the right to life and physical security. 26
20.
The right to life under article 6 of the Covenant cannot be construed in such a way
as to place States in the position of guarantor against every terrorist threat, as this would
impose a disproportionate burden on the authorities. 27 However, in certain defined
circumstances, public officials can come under a positive obligation to take operational
measures to prevent a terrorist act from occurring.28 For such a positive operational
obligation to arise, it must be established that (i) the authorities knew or ought to have
known of (ii) the existence, at the relevant time, of a real and immediate (iii) risk to the life
of an identified individual or group of individuals within its jurisdiction due to (iv) criminal
acts of a third party, and that they failed to (v) take measures within the scope of their legal
powers and available resources, and in conformity with their international obligations
which, judged objectively and reasonably, might have been expected to avoid that risk. 29
21.
In relation to requirement (i), States are required to establish effective mechanisms
for identifying potential future threats of terrorist attack, to analyse the information with
reasonable care, to reach an informed risk assessment and to take appropriate action. That
action may include not only the disruption of threatened attacks by law enforcement
agencies but also, where appropriate, the provision of information to the public. Many
States have established dedicated institutions, mostly in the form of intelligence or security
agencies, whose task is to detect potential national security threats, including terrorist
threats, through the gathering and analysis of relevant information. The activities of those
agencies must be fully compliant with international human rights law. 30
22.
In relation to requirement (ii), authorities will not, in general, be in possession of all
relevant facts in advance, and are therefore often obliged to plan counter-terrorism
operations on the basis of incomplete factual hypotheses. State authorities are confronted
on a daily basis with an immense amount of material about possible security threats. 31
Purely ex post facto assessments cannot be the sole basis for a finding of State
responsibility for a violation of the right to life. They may however be of central
importance when relevant authorities are called upon to conduct investigations for the
23
24
25
26
27
28
29
30
31
Inter-American Commission on Human Rights (IACHR), “Report on Terrorism and Human Rights,”
para. 107, available at http://www.cidh.oas.org/Terrorism/Eng/toc.htm; see also IACtHR, NeiraAlegria et al. v. Peru, Judgment of 19 January 1995,.
See Security Council resolutions 1372 (2001) and 1625 (2005).
ECHR, Osman v. The United Kingdom, paras. 115-116.
ECHR, A v. The United Kingdom, no. 100/1997/884/1096; X and Y v. The Netherlands, no. 8978/80.
See footnote 25 above; see also ECHR, Branko Tomašić and Others v. Croatia, no. 46598/06, para.
50; ECHR, Giuliani and Gaggio v. Italy, no. 23458/02, Judgment of 24 March 2011, para. 245.
See footnote 25.
Ibid.
See the compilation of good practices on legal and institutional frameworks for intelligence services
and their oversight, promulgated by the former Special Rapporteur (A/HRC/14/46, paras. 9-50).
See for example “Coroner’s Inquests into the London Bombings of 7 July 2005,” Report under rule
43 of the Coroner’s rules 1984, paras. 11-12.
7
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