Advisory letter 11: Counterterrorism in a European and international perspective. Interim report on the prohibition of torture.

March 2, 2006 - nr.11
Summary
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Advice request
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Government reactions

The President of the

House of Representatives

Human Rights and Peacebuilding Department

Binnenhof 4

Bezuidenhoutseweg 67

Den Haag

Postbus 20061

 

2500 EB Den Haag

 

 

Date                 20 February 2006

Contact            DMV/MR

Our ref.             DMV/MR-018/06

Tel.                 +31 (0)70 348 5061

Page                1/6

Fax                 +31 (0)70 348 5049

Encl.

E-mail              dmv-mr@minbuza.nl

 

Re:                   Interim advisory report on the prohibition of torture

 

 

 

Dear Mr Weisglas,

 

With reference to AIV advisory letter no. 11: ‘Counterterrorism in a European and international perspective: interim report on the prohibition of torture’, I hereby present to you the government’s response.

 

General

On 15 July 2005, I asked the Advisory Council on International Affairs (AIV) to prepare an advisory report on counterterrorism from a European and international perspective, with a focus on human rights-related issues. More specifically, the government sought the AIV’s opinion and advice on measures taken to combat international terrorism, the applicability of human rights conventions and international humanitarian law in the fight against terrorism, the possibility of suspending certain rights, the question of how government authorities should handle both information obtained from third parties and the extradition of persons suspected of involvement in terrorism, and possible ways the Netherlands can help improve the international human rights acquis.

 

The AIV concluded that it would be impossible to produce an advisory report addressing all the issues mentioned in my letter of 15 July 2005 in the short term, but was sufficiently concerned about international developments related to the prohibition of torture and its enforcement that it published an interim advisory letter on this issue on 2 December 2005.

 

The advisory letter

The AIV believes that, in taking action against terrorism, the government must do everything in its power to prevent casualties and social upheaval. When performing state duties, the authorities concerned must strike a balance between various rights, and between the rights of different individuals. In doing so, they are bound by international obligations, in particular those relating to human rights, including the absolute ban on torture.

 

The AIV points out that until recently the national and international consensus was that the ban on torture was absolute, but that in recent years a trend towards circumventing the absolute nature of the ban can be discerned. The AIV believes that this trend weakens the absolute nature of the ban and undermines the entire system of interconnecting human rights norms.

 

The AIV advises the government to take a strong public stance in support of the unconditional enforcement and defence of the ban on torture. In addition, it calls on the government to uphold unequivocally the universality of human rights standards both in policy and in practice. If it does not heed this advice, the government will not only jeopardise fundamental human rights principles but also compromise the protection offered to ordinary citizens by the rule of law.

 

 

Government response

The government welcomes the interim advisory letter and shares the AIV’s concerns about the enforcement of the ban on torture. The Netherlands is actively involved in the fight against terrorism in order to protect the international rule of law, halt the advance of extremism and prevent terrorist attacks and loss of innocent life. It goes without saying that, while combating terrorism, we must never lose sight of relevant human rights issues. A state governed by the rule of law should defend itself against terrorists by lawful means; acting in accordance with the motto that ‘the ends justify the means’ places us on the same level as the terrorists we are attempting to stop. In this context, the government attaches great importance to complying with obligations relating to human rights and international humanitarian law, including the application of the provisions of the Geneva Conventions.[i]

 

In addition to the above, the government wishes to inform the House in greater detail about the Dutch position on the four aspects of the ban on torture mentioned by the AIV: the scope of the prohibition, incommunicado detention, the non-refoulement principle and the use of information. This response also describes Dutch efforts to combat torture and specifies how the government has pushed for compliance with the ban on torture and cruel, inhuman or degrading treatment or punishment, at bilateral level and within the United Nations.

 

Scope of the prohibition

The Dutch government supports the AIV’s view that redefining the ban on torture is unacceptable. It also supports the AIV’s view that conduct and actions constituting cruel, inhuman or degrading treatment or punishment should continue to fall under the absolute ban on torture.

 

The Netherlands will therefore continue to do its utmost to maintain the absolute nature of the ban on torture, with a view to preventing and combating torture and other cruel, inhuman or degrading treatment or punishment.

 

Incommunicado detention

The AIV notes that many countries are increasingly holding suspects incommunicado and emphasises that it is in these very circumstances that the risk of torture or other cruel, inhuman or degrading treatment is greatest. It therefore has reservations about the incommunicado detention of persons whose names and identities have been disclosed. The AIV expresses grave concern regarding the situation of detainees held in secret detention facilities.

 

The government shares the AIV’s concerns and condemns the incommunicado detention of persons without charge. As it has already indicated to the House of Representatives, the government also considers the use of secret detention facilities unacceptable.[ii] At the present time, the Council of Europe and the European Parliament are conducting investigations into the alleged existence of secret detention facilities. The government is cooperating by responding to the questions directed to the Netherlands and awaits the outcome of the investigations. According to the interim report by the Council of Europe’s special investigator, Dick Marty, on the alleged existence of secret CIA camps in Europe, no conclusive evidence of the existence of such camps has thus far been found.

 

Non-refoulement principle

Regarding the ‘standard’ transfer of suspects, the AIV believes that the use of diplomatic guarantees need not be rejected categorically but that it should be ruled out in cases of countries where torture is endemic and systematic and/or where the persons to be transferred are at risk of persecution. The AIV’s position on the use of guarantees is thus less rigid than that of the UN Special Rapporteur on torture, Manfred Nowak, who rejects this instrument under all circumstances.[iii]

 

The government supports the AIV’s view that the use of diplomatic guarantees should not be allowed to undermine the non-refoulement principle. A person will not be extradited if there are substantial grounds for believing that he or she would be in danger of being subjected to torture in the country of destination. In such cases, diplomatic guarantees are not sufficient.

 

Diplomatic guarantees could, however, play a role in other cases, where there are no indications that the person concerned would be in danger of being subjected to torture or other cruel, inhuman or degrading treatment or punishment, if additional certainty is required regarding the treatment of that person, or the monitoring of that treatment.

 

The AIV emphasises that it does not intend to address the subject of ‘extraordinary rendition’, i.e. capturing persons and transporting them to unknown destinations, without the involvement of the judiciary or any court proceedings. It does, however, point out that this practice is unacceptable under all circumstances. The Dutch government supports this view.

 

Use of information

The AIV emphasises that the absolute ban on torture remains a peremptory norm under all circumstances. It rejects the use of information which may have been obtained by means of torture or other forms of maltreatment as evidence in court. It believes that the authorities should evaluate its sources and intelligence and, if necessary, take action, particularly when there is an unacceptable risk to society and the public.

 

The government endorses the AIV’s view. For the record I would refer to my response to questions from Lousewies van der Laan (MP) concerning secret prisons in Afghanistan (House of Representatives II 2005-2006, no. 815).

 

Dutch efforts

The AIV emphasises the prominent role the Netherlands has played over the years in shaping and embedding the ban on torture and advises the government to monitor developments in this area closely and critically. Where necessary, the AIV recommends that the Netherlands take a strong public stance to prevent any tampering with the ban on torture. In doing so, it should devote particular attention to the four above-mentioned aspects of the ban.

 

The government points to the Dutch contribution thus far. In addition, it is currently preparing to ratify the Optional Protocol to the UN Convention against Torture, the aim of which is to establish an international monitoring mechanism supported by national monitoring mechanisms.

 

In the various UN consultative bodies, the Netherlands is arguing for strong resolutions on the ban on torture and the protection of human rights in the fight against terrorism. These resolutions emphasise the absolute nature of the ban on torture and other cruel, inhuman or degrading treatment or punishment and confirm states’ obligations in relation to human rights and international humanitarian law. In addition, they call on states to cooperate with the relevant UN bodies, such as the Special Rapporteur on torture and the Special Rapporteur on the protection of human rights, while combating terrorism.

 

In 2005, the Netherlands contributed €830,000 to the UN Voluntary Fund for Victims of Torture to support UN activities on behalf of torture victims, making it one of the largest donors to the fund. This is in addition to the Dutch contribution to the Office of the High Commissioner for Human Rights in support of the treaty-monitoring committees and the Special Rapporteurs, among other things.

 

The Netherlands confronts states bilaterally as well as through the European Union if it suspects that individuals in those states are being subjected to torture or other cruel, inhuman or degrading treatment or punishment. The implementation of the EU Guidelines on torture and other cruel, inhuman or degrading treatment or punishment underscores the importance that the EU countries attach to this issue.

 

In the future, the Netherlands will continue to urge respect for and compliance with human rights and international humanitarian law in the fight against international terrorism, including the full and universal enforcement of the absolute ban on torture, both at bilateral level and within the European Union and the United Nations.

 

Yours sincerely,

 

 

(Signed)

 

 

Bernard Bot

Minister of Foreign Affairs of the Kingdom of the Netherlands

 



[i]      See inter alia my letter of 23 December 2005 (Parliamentary Paper 27 925/30 300 V, no. 196) on the outcome of the informal meeting of NATO and EU ministers of Foreign Affairs on 7 December 2005 and the way the government is implementing the motion submitted by MPs Bert Bakker and Hans van Baalen on compliance with the Geneva Conventions during Operation Enduring Freedom (Parliamentary Paper 27 925, no. 169) and the motion submitted by Van Baalen and others on the treatment of detainees during military missions in accordance with the Geneva Conventions (Parliamentary Paper 30 300 V, no. 55).

[ii]     Response to parliamentary questions by Harry van Bommel (MP) concerning secret CIA prisons in Romania and Poland (House of Representatives II, 2005-2006, no. 449).

[iii]    Report by Special Rapporteur Manfred Nowak to the UN General Assembly, UN Doc. A/60/316.

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