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Human Rights Quarterly 27.1 (2005) 350-356

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The Berlin Declaration

Introduction to the Berlin Declaration

In pursuing a global "war against terrorism," states have sent shock waves through the human rights community by calling into question the most fundamental rights principles. The International Commission of Jurists (ICJ), in common with most serious proponents of human rights, has consistently affirmed that states have a positive obligation to protect people, including by preventing and punishing acts of terrorism. Terrorism in any form imperils human rights. We have insisted, however, that the counter-terrorism laws, policies and practices of states must not undermine the rule of law and legal obligations, including human rights. Existing human rights law already gives states flexibility to protect national security, but within strictly defined limits.

The rule of law is the first defense against arbitrary power, which is why for fifty-two years the central mission of the ICJ has been to develop, defend and promote the rule of law. Yet we have watched with increasing alarm as states, including those that see themselves as promoters of law-based societies, have engaged in a pattern of human rights violations in the name of fighting terrorism. The post-September 2001 climate has also given new life to old laws that have violated human rights in the name of national security for decades. As states not only pursue such blatantly unlawful practices, but also claim overriding justification for their actions, many rights are new being degraded. Especially threatened are freedom from torture; the right to life; freedom from arbitrary detention; the right to a fair trial by an independent and impartial tribunal established by law; freedoms of association and expression; the right to asylum; and the right to non-discrimination.

The ICJ had made upholding human rights while countering terrorism a predominant part of its program. We will work to demonstrate how the rule of law and human rights can and must be respected in addressing terrorism. The conceptual framework within which this work will be pursued is the [End Page 350] Berlin Declaration. Conceived, drafted and adopted by 160 leading jurists from around the world on 28 August 2004 at the ICJ Biennial Conference, the Berlin Declaration is a call for action. The ICJ also believes that the eleven core principles set out in the text should be a central point of reference for governments, judges, lawyers, academics, NGOs and all human rights advocates, as they confront the grave challenges that lie ahead.

The ICJ Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism

Adopted 28 August 2004

160 jurists, from all regions of the world, meeting as Commissioners, Honorary Members, National Sections and Affiliated Organisations at the International Commission of Jurists (ICJ) Biennial Conference of 27-29 August 2004, in Berlin, Germany, where it was founded 52 years ago, adopt the following Declaration:

The world faces a grave challenge to the rule of law and human rights. Previously well-established and accepted legal principles are being called into question in all regions of the world through ill-conceived responses to terrorism. Many of the achievements in the legal protection of human rights are under attack.

Terrorism poses a serious threat to human rights. The ICJ condemns terrorism and affirms that all states have an obligation to take effective measures against acts of terrorism. Under international law, states have the right and the duty to protect the security of all people.

Since September 2001 many states have adopted new counter-terrorism measures that are in breach of their international obligations. In some countries, the post-September 2001 climate of insecurity has been exploited to justify long-standing human rights violations carried out in the name of national security.

In adopting measures aimed at suppressing acts of terrorism, states must adhere strictly to the rule of law, including the core principles of criminal and international law and the specific standards and obligations of international human rights law, refugee law and, where applicable, humanitarian law. These principles, standards and obligations define the boundaries of permissible...


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