SENZA CENSURA n.9
Italy, october 2002
ANTITERRORIST MEASURES AND EUSKAL HERRIA
Statement from the Basque Observatory of Human Rights
From the Basque Observatory of Human Rights, September 2002 The acts of massive destruction that took place last year in the United States and the media impact they had, have generated a particular state of opinion in the international community. This has made possible that security measures has been implemented in opposition to the enjoyment of the human rights and freedoms. Many governments have passed new legislation and designed measures to face the new situation, creating a "law for the enemy rather than for the citizen". Anti-terrorist rhetoric has been exploited by states in their own interest. They have been free to define the concept of terrorism around and in the service of their particular needs. That is why, as there is no commonly accepted definition of terrorism, each government has decided to establish one in its own domestic or geo-strategic interests.
As reaffirmed by the United Nations Commission on Human Rights in its resolution 2001/37 "all measures to counter terrorism must be in strict conformity with international law, including international human rights standards". This is not just rhetoric. International society has noted the serious crimes committed by states in this regard, and this is just an important reminder, if not warning from the most important body for the protection and promotion of human rights all over the world. Meanwhile, many governments (United States of America, United Kingdom, Israel, Colombia…and of course, Spain) have used the international consensus on the priority of combating terrorism to justify and even legitimate their fight against any form of political opposition or dissidence. Even more, they are pushing other states through the Antiterrorist Commission of the Security Council and other regional organizations, to adopt these special measures, create special antiterrorist legislation and implement it. It is again a matter of security versus freedom. We can now appreciate the direct and severe impact that these new so-called terrorism measures have had on the protection of human rights and the enjoyment of public freedoms. We would like to mention the existence of two main practices that have become more and more usual when we refer to counter-terrorism by states:
First, are those special measures taken for the treatment of suspects accused under the generic charge of "being related to terrorist organizations". The widespread use of special legislation to deal with such detainees includes the denial of the presumption of innocence, arbitrary deprivation of liberty, violation of the fundamental principle of fair trial, incommunicado detention and refusal of the right to contact a lawyer… This situation can even result in such deep violations of human rights as torture, extra judicial killings and other mechanisms of what we call in the Basque Country the dirty war. Second, we perceive a clear use of anti-terrorism laws as a pretext to attack peaceful opposition groups or dissident ideas. Several movements and organizations, whose work is public and legal, have been ilegalized and included in national or international lists without fair judicial process that could allow these organizations to appeal such inclusions and defend themselves. In this regard, this legal insecurity has produced flagrant violations of public freedom of opinion and expression, as well as the right of association.
In fact, this special political environment has become even more difficult for those who are standing up for one of the most fundamental rights of all: the right of all peoples to self-determination. As the United Nations Special Representative of the Secretary-General on human rights defenders, Ms. Hina Jilani, has stated in her report (E/CN.4/2002/106) "while spuriously equating legitimate and peaceful advocacy of the right to self-determination with terrorism - however defined - is not a new phenomenon, it is certainly assuming a greater resonance, and human rights defenders working for the realization of peoples' quests for self-determination are experiencing some of their darkest hours" because they are "under renewed and sustained attack worldwide".
NGOs as well as international institutions and organisms have become aware of this phenomenon. The case law of human rights treaty bodies and mechanisms contain a wealth of examples. They also, however, indicate the kind of measures that cannot be adopted to counteract terrorism within the framework of the rule of law and respect for human rights. The Human Rights Committee, the European Court of Human Rights, the Inter-American Commission on Human Rights… have all intervened in this regard.
This polemic phenomenon has been dealt with as well in the European Union. In December the Heads of State and Governments of the EU met in Laeken to adopt the Framework Decisionon to combat terrorism, creating new imperative measures that should be adopted by all the member States, even if they had not any problem with this matter. They didn't find a common definition of terrorism but they defined it taking into account the causes, the intentionality. It means that the assessment of what is or is not terrorism came from the analysis of general effects of supposed terrorist actions. The consequences of this definition are quite clear: any dissidence any opposition group can be considered an act of terrorism in the European Union. In this position, they create the so-called "lists of terrorist" where are included persons and organizations.
In the design of this framework, the Spanish state has had a crucial role, because of its particular interests, regarding the Basque question. Now, the Spanish government can present the whole Basque opposition as terrorist and implement anti-terrorist measures in the two directions that we explained previously:
First, the Spanish state accuses Basque citizens of "being terrorists" without any evidence and without fair. At this stage they have implemented counter terrorism mechanisms in flagrant opposition to the human rights, using incommunicado detention which allows the existence of torture, denying a fair trial in the Special Antiterrorist Court (Audiencia Nacional), where statements taken under tortures are sufficient to find guilty the suspect…. The last report (E/CN.4/2002/76/Add.1) submitted by the Special Rapporteur on Torture Theo van Boben to the Commission on Human Rights, acknowledged the existence of 58 cases of torture denounced by Basque suspects during the year 2000.
Second political and social organizations that until now were working in a public, legal and free manor are now being accused of being terrorists. Doing so, they have violated the rights of association, freedom of expression and opinion. There are nowadays two possibilities to allow the ilegalization of political and social organisations. This last days we have seen the effects of one of them against the political party Batasuna. One of them comes from the intervention of the judge Baltasar Garzón, investigation judge of the Special Antiterrorist Court. He has decided that all the Basque social organisations, political groups and even media, included Batasuna belong to ETA, and in conclusion they are illegal. He can take special measures pre-trial and, as a caution, suspend the activities of this organisations. No substantial evidences are provided. More than 200 people are implicated in this process. Many years later perhaps there will be a trial and the accused exonerated and the caution lifted, but the objective will have already been obtained. The other way consists on reforming the Parties law and considering that the parties that does not agree with the "constitutional principles" are operating outside of Spanish law. The decision will be taken by the Special Court in the Supreme Tribunal. There are no evidences either, but a media campaign to convince Spanish public opinion. Perhaps the European Court will clarify the situation, but by that stage it will be too late. The activity of Batasuna will be suspended for many years, with all the obvious consequences for the party and its electorate.
These methods have not been designed because of the September 11 attacks in New York. They were designed before. Perhaps the global anti-terrorist global has accelerated the new measures, but it's not a new recipe against Basque people. Our experience in the last number of decades has been a serious record of violations of public freedoms and lack of guaranties in the promotion and protection of human rights. The resolution of this situation is the challenge we must face. It's important to rise the voice of alarm in an attempt to prevent this situation being translated into other political contexts, wherever they are.
Basque Observatory of Human Rights
Euskal Herriko Giza Eskubideen Behatokia
Kale Nagusia 50, 1º
20120 Hernani, Gipuzkoa
Basque Country (Spanish state)