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Refugees and terrorism must not be conflated, says UN Special Rapporteur

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21 October 2016

A new report by the UN's Special Rapporteur on terrorism and human rights calls for an end to the conflation of migrants and refugees with acts of terrorism: "in the clear majority of cases, refugees and migrants do not pose a risk, but are in fact at risk, fleeing the regions where terrorist groups are the most active," says the report, which was presented to the UN General Assembly in New York on Friday 21 October.

The report examines the effects that counter-terrorism measures have had on migrants and refugees, noting for example that enhanced border control measures:

"often have a direct impact on the human rights of migrants and refugees. The Special Rapporteur recalls that, while States have a sovereign right to determine conditions of entry and stay in their territories, they also have an obligation to respect and protect the human rights of all individuals under their jurisdiction, regardless of their nationality, origin or immigration status. International borders are not zones of exclusion or exception with respect to human rights obligations, and a the jurisdiction of States at borders must, therefore, be exercised in a manner that is compatible with its human rights obligations towards all persons."

Laws enacted to ensure that individuals who have committed terrorist acts are excluded from refugee status also come in for scrutiny: the Special Rapporteur notes that a 2001 Security Council resolution passed following the 11 September 2001 attacks in the United States contains provisions that "reinforce the misperception that international refugee law is an obstacle when it comes to addressing security concerns."

"Terrorist lists" should be treated with caution by officials responsible for asylum decision-making, warns the report, which also seeks to remind states that decisions to revoke refugee status "must be non-discriminatory and proportionate, made on a case-by-case basis, through procedures which respect the standards of due process."

The need to respect the absolute prohibition also comes under scrutiny, and the report notes:

"the Special Rapporteur is concerned about the European Union-Turkey statement, agreed to on 18 March 2016, which provides for the blanket return of all migrants crossing from Turkey into Greece... Of particular concern are returns in the absence of individual assessments of migrants’ situations that, despite the above statement, may amount to collective expulsion, and reports that Turkey may violate the rights of individuals by detaining them contrary to human rights law and in violation of the principle of non-refoulement. The Special Rapporteur is also concerned that the current proposal for a new European border and coast guard agency would give it competence to carry out return operations from third country to third country, provided that the sending country complies with the European Court of Human Rights."

The report also highlights the increasing use of systematic detention, and issues another reminder to states:

"While it is not disputed that States have the right to detain foreigners prior to deportation and extradition, detention should always be a last resort and must comply with the principle of legality. Exhaustive reasons must be given, and deterring irregular migration can never be a legitimate ground for detention. In all cases, detention must be necessary, reasonable and proportionate. The detention of children, however, can never ever be in their best interest: alternatives to detention must be provided to unaccompanied migrant children and families with children."

A subsequent section deals with measures taken to try to stem the flow of "foreign fighters" travelling to conflict zones. The most significant international measure enacted in this respect is UN Security Council Resolution 2178, agreed in 2014, which requires all states to ensure that they criminalise foreign fighters' travel and the funding, organisation of or recruitment for that travel. The EU is currently in the process of enacting the Resolution's requirements into its latest counter-terrorism Directive (SEMDOC, link).

The report says:

"As the Special Rapporteur has highlighted elsewhere, there are well-founded concerns about resolution 2178 (2014)... including: the broad nature of some of the provisions and the lack of definitions for the terms “terrorism” and “extremism”; the legal uncertainty of efforts to identify those to whom it is intended to apply; the vague and low standard for enforcement action in response to “credible information” that an individual will engage in relevant acts; the stigmatization caused by and the ramifications and imprecision of the labelling of individuals as “terrorists” and “fighters”; and the requirement that airlines provide advance passenger information to detect individuals travelling on civilian aircraft who may be foreign terrorist fighters...

The Special Rapporteur urges States to ensure that national measures operationalizing Security Council resolution 2178 (2014) fully comply with international human rights law, including the principle of legality enshrined in article 15 of the International Covenant on Civil and Political Rights. The Special Rapporteur is particularly concerned that the criminalization of offences, such as receiving training for terrorism or travelling abroad for the purpose of terrorism, would rely on national definitions of terrorism that are sometimes overly broad or vague.78 The criminalization of ancillary offences, which arise from conduct that may be distant from the principal terrorist offence, may also be incompatible with the principle of legality."

Many similar criticisms have been levelled at the EU's proposed Directive (see for example the comments of the Meijers Committee (pdf)), for which the final text is currently being hammered out in secret trilogue meetings between the Council and the Parliament.

Full-text: Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism: the impact of counter-terrorism measures on the human rights of migrants and refugees (pdf)

And see the press release: Refugees and terrorism: “No evidence of risk” – New report by UN expert on counter-terrorism (UN Human Rights, link):

"NEW YORK (21 October 2016) – “Overly-restrictive migration policies introduced because of terrorism concerns are not justified and may in fact be damaging to state security,” today warned the United Nations Special Rapporteur on counter-terrorism and human rights, Ben Emmerson, at the UN General Assembly in New York.

Presenting a new report on the impact of counter-terrorism measures on the human rights of migrants and refugees, Mr. Emmerson, showed that “while there is no evidence that migration leads to increased terrorist activity, migration policies that are restrictive or that violate human rights may in fact create conditions conducive to terrorism.”"