Dunja Mijatović: The fight against terror should not be a fight against basic human rights

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We know Europeans want something to be terrorism. Living in a perpetual state of fear is not the natural consequence of living in 21st century liberal democracies. But neither is living in a police state.

By Dunja Mijatović

08 Sep 16

Counter Terrorism | Digital Freedom | Europe and Central Asia | News and features

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The appalling scene on the strand in Nice on Bastille Day. The dead at the airport and in the Metro in Brussels in March. Terrorist attacks, designed to inflict the highest possible level of fear and apprehension among ordinary citizens, is now ordinary in Europe.

The stakes were raised in earnest in January 2015 with the carnage at the editorial offices of the satirical magazine Charlie Hebdo in Paris, where 10 staffers were brutally murdered by terrorists.

How can such atrocities be avoided or squelched? That is the question.

We know Europeans want something to be done. Living in a perpetual state of fear is not the natural consequence of living in 21st century liberal democracies.

But neither is living in a police state, where personal privacy gives way to the exigencies of war, however unlike this war compares to ones of the past; where mere idle chatter can be misconstrued to the point that it becomes the criminal offense of glorifying terrorism.

Simply put, do our rights to personal privacy and free expression and free association vanish in order to provide a safer physical environment for our residents?

The answer, or answers are not easily arrived at; the debates are nuanced and people of good will and good character can find themselves on opposite sides of issues while both hoping for a similar outcome: peace, security and an open society that respects the inherent rights of individuals to live freely.

Under these difficult circumstances, I think it is important to make the case, once again, to protect individual rights in times of civil turmoil. To do so, I issued a statement earlier this month, as the OSCE Representative on Freedom of the Media setting out the arguments in favour of protection.

First and foremost, the Organization for Security and Co-operation in Europe, the world’s largest regional security body, appears fully on board with the notion of protection of these individual rights. The participating States, in the Astana Declaration of 2010, reiterated the commitment to comprehensive security and related the maintenance of peace to respect for human rights.

And in a Ministerial Council Decisions on Preventing and Countering Violent Radicalization that Lead to Terrorism and on Counter-terrorism that was adopted in 2015, the States confirmed the notion “..that respect for human rights, fundamental freedoms and the rule of law are complementary and mutually reinforcing with effective counter-terrorism measures, and are an essential part of a successful counter-terrorism effort.”

Furthermore, any counter-terrorism measures restricting the right to free expression and free media must be in compliance with international standards, most notably Article 19 of the UN Covenant on Civil and Political Rights and strictly adhere to the principles of legality, necessity and proportionality and implemented in accordance with the rule of law.

Read alone, these pronouncements ought to put an end to any notion that the rights and values inherent in an open society should not survive the fight against terrorism. But it has not. Across the OSCE region, which comprises 57 countries from North America to Mongolia, governments are considering laws that chip away at those fundamental rights.

As a result, I have suggested that lawmakers of OSCE participating States give ample weight and consideration to the following when addressing any legislation that would affect, in law or in practice, the right of people to exercise their human rights:

Ensure journalists’ freedom and safety at all times, including while reporting on terrorism.
Recognize that free expression and the use of new technologies are also tools to fight terrorism by creating social cohesion and expressing alternative narratives.
Clearly and appropriately define, in line with international human rights law, the notions of violent extremism, terrorism, radicalisation and other terms used in legislation, programs and initiatives aimed to prevent and counter terrorism.
Acknowledge that the media has a right to report on terrorism. Requests for media blackouts of terrorist activities must be avoided and media should be free to consider, based on ethical standards and editorial guidelines, available information to publish in the public interest.
Fully respect the right of journalists to protect sources and provide a legal framework securing adequate judicial scrutiny before law enforcement and intelligence agencies can access journalists’ material in terror investigations.
Refrain from indiscriminate mass surveillance because of its chilling effect on free expression and journalism. Targeted surveillance should be used only when strictly necessary, with judicial authorization and independent control mechanisms in place.
Acknowledge that anonymity and encryption technologies may be the only guarantee for safe and secure communications for journalists and therefore are a prerequisite for the right to exercise freedom of expression. Blanket prohibitions are disproportionate and therefore unacceptable, and encryption regulation introducing “backdoors” and “key escrows” to give law enforcement and intelligence access to “the dark web” should not be adopted.
Only restrict content that is considered a threat to national security if it can be demonstrated that it is intended to incite imminent violence, likely to incite such violence and there is a direct and immediate connection between the expression and the likelihood of occurrence of such violence.
Review applicable laws and policies on counter-terrorism and bring them in line with the above principles.

Adherence to these simple rules is necessary because limiting the space for free expression and civic space advances the goals of those promoting, threatening and using terrorism and violence.

If we give up on our fundamental freedoms we will erode the very substance of democracy and the rule of law.

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