OSCE Launches New “Human Rights in Counter-Terrorism Investigations” Manual

Recently, the Organisation for Security and Cooperation in Europe (OSCE)’s Office for Democratic Institutions and Human Rights (ODIHR) launched a new practical manual for law enforcement officers on “Human Rights in Counter-Terrorism Investigations.” The manual, produced in partnership with the OSCE Strategic Police Matters Unit, provides practical guidance for law enforcement policy and training on conducting counter-terrorism operations in a human rights compliant matter.

OSCE explains that:

“[t]his manual focuses on the investigation process and has been produced following requests from law enforcement officers working in the field for a practical tool to aid their work. It is designed to help improve democratic policing practice across the OSCE and to assist law enforcement practitioners in strengthening their compliance with OSCE commitments and international human rights standards in the investigation of terrorism-related crimes.”

The OSCE manual’s guidance thoroughly covers many facets of a counter-terrorism investigation: Part I deals with intelligence gathering and special investigative techniques including surveillance and the use of agents and informants;  Part II addresses protocols for witnesses, victims and crime scenes;  Part III covers the exercise of arrest, detention and questioning powers; and Part IV discussess accountability mechanisms and the security and integrity of investigations.

The U.S., while not directly involved in the launch of this new OSCE manual, is a participating State in the OSCE and involved with ODIHR.  Additionally, the U.S. has officially adopted approaches to counterterrorism similar to the OSCE manual. On November 4-5, 2013, the U.S. took part in a peer review of the OSCE Draft Training Curriculum on Countering Terrorism, Protecting Human Rights Manual – a companion manual to the new OSCE manual on Human Rights in Counter-Terrorism Investigations. The new OSCE manual has not been the topic of much conversation in the U.S., but as the U.S. remains deeply committed to co-ordinated international counter-terrorism efforts, this manual could be of significant use to U.S. agencies. Explicit U.S. support for, and implementation of, this manual could be a valuable step in improving  U.S. practices in the context of countering terrorism while upholding human rights norms.  The government is well situated to give  support to the manual and its core messages.

The U.S. has already publicly supported the OSCE’s mission to increase rule of law and human rights in counter-terrorism techniques. In November, 2012, the U.S. Acting Principal Deputy Coordinator of the Bureau of Counterterrorism, Anne A. Witkowsky, recognized the OSCE (and more specifically the ODIHR) for the “unique” and “critical role” it plays in “developing and implementing human rights-compliant counterterrorism policies and practices.” She stated clearly that “there is no tradeoff between security and human rights,” and furthermore that counterterrorism efforts are more effective “when they are grounded in human rights obligations and the rule of law.” These sentiments concur with the positioning of the OSCE manual, which emphasizes the counterproductive nature of violating human rights in counterterrorism endeavors. Witkowsky also expressed the desire that the OSCE become a key partner of the U.S. founded Global Counterterrorism Forum in “supporting training and otherwise promoting the implementation” of good counterterrorism practices. For example in the Preview of U.S. Goals for the 2013 OSCE Ministerial, one finds the view articulated that each world citizen is “entitled to human rights and fundamental freedoms.”

A fundamental testing ground for these lofty principles will be the Anti-Terrorism Assistance Program (ATA) and the Global Counterterrorism Forum (GCTF). The ATA is the primary provider of U.S. government anti-terrorism training and has more recently emphasised “the importance of the rule of law and respect for human rights,” though the bulk of its operations and policy framing remains focused on narrowly defined technical assistance and capacity building.  The greater breadth of the GCTF work is seen in its multilateral cooperation with the U.N. and other regional NGOs, with a definitive emphasis on the rule of law and human rights. On November 14-15, 2013, the U.S. hosted a “Seminar on the Judiciary in Handling Counterterrorism Cases within a Rule of Law Framework” as a part of establishing best practices in counterterrorism within the GCTF. Additionally, the U.S. is also a large donor to the OSCE, providing over $18 million in 2012 alone.

One recurring topic during the consultations on the OSCE manual was the “temptation” of law enforcement officials to engage in the ill treatment or torture of detainees in order to “progress” counter terrorism investigations. The manual, as well as the outreach to promote it, has made absolutely clear the range of reasons that coalesce to banish such practice from state engagement with the threat of terrorism.  These include the absolute prohibition on torture in human rights law, the pragmatic assessment that such practices fuel conflict, thwart effective investigations and remedies, and lead to the extraction of ultimately false information and to miscarriages of justice. OSCE lessons learnt concur with experiences in the U.S. “war on terror” with the consequences that follow from practices of “enhanced interrogation techniques,” extraordinary rendition, among others.

Despite rhetorically supporting the importance of respecting human rights and rule of law in a counterterrorism regime – the same regime encouraged by the OSCE manual – inconsistent and controversial procedures have continue to damage the U.S. reputation in the context of fully adhering to the rule of law in countering terrorism. The OSCE recognizes that the official stance of the U.S. no longer allows torture or other forms of cruel, inhuman, or degrading treatment. But despite such progress, the U.S. is still criticized in numerous dimensions of its counterterrorism practices which remain in conflict with the new OSCE manual. For example, Human Rights Watch continues to urge the U.S. to close Guantanamo and end the military commissions, bring the drone program in line with international human rights and humanitarian law, and take full responsibility for past torture practices. And in 2013, the Open Society Justice Initiative roundly criticized the CIA for their secret detention and extraordinary rendition programs and the continued lack of transparency and accountability. The European Parliament, in 2014, adopted a resolution condemning the CIA Rendition program. Rendition is simply one example of where fully adopting the OSCE Manual as well as addressing remedies for past violations would be a step in the right direction for the U.S.

Meanwhile, the U.S. Executive continues to publicly align itself with support for human rights. In response to concerns over U.S. spying and detention practices, the U.S. Department of State Representative to the OSCE recently claimed that the U.S. is “clearly on record in being a strong defender of the truth that human beings everywhere are entitled to human rights.” But as the “war on terror” has demonstrated, the use of torture and ill treatment of detainees in “counter-terrorism” scenarios is far from a thing of the past, even in states otherwise regarded as democratic. This manual is one cogent example of a learning curve where democratic states take on board the lessons learnt and recalibrate the human rights and security balance in their day to day counter-terrorism conduct. Strong endorsement and practical implementation by the U.S. of key elements of the OSCE approach should be welcomed and encouraged. 

About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism; This article is written in the author's personal and academic capacity; Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland; Follow her on Twitter (@NiAolainF).