The UN Security Council Is About to Dangerously Undermine Fair Trial Guarantees

Fair trial rights are hard won, the pinnacle of centuries of legal battles, reforms, and campaigns. Yet in one fell swoop, the United Nations Security Council risks undermining these crucial safeguards. The Security Council is currently considering a draft resolution, proposed by Indonesia, that appears to seek to have States introduce classified evidence in criminal justice proceedings. In short, this appears to be yet another attempt by States to water down human rights protections in the name of countering terrorism.

The draft U.N. Security Council resolution relates to so called “foreign fighters,” and rather than providing that those accused of crimes recognizable under international law be brought to justice through fair trials without recourse to the death penalty, it, in fact, risks dangerously undermining the right to a fair trial globally. It’s staggering that a 13-page draft resolution, which is meant to be focused on criminal prosecution, does not mention fair trial standards once.

Under the auspices of allowing for battlefield evidence to be used in criminal proceedings, U.N. member States would be urged to develop systems for it to be kept classified. This may lead to the use of secret evidence to convict defendants. At no stage does the draft explicitly safeguard the right of the accused and their counsel to see the evidence being used against the accused in order to effectively challenge it. This is taking one step further the dangerous procedures we see in countries like the United Kingdom for admitting “secret evidence” in court – although prior to this draft resolution that system was rarely, if ever, the basis of criminal convictions and was mainly used in immigration proceedings. It’s a safe bet that what may be introduced as a means of admitting battlefield evidence will quickly develop into a broader system for the use of classified evidence in court. The ability to effectively challenge the evidence being presented against you is a key component of the right to a fair trial, as is the requirement that justice not only be done but be seen to be done through open proceedings.

The right to fair criminal proceedings is safeguarded by the Universal Declaration of Human Rights (article 10), the International Covenant on Civil and Political Rights (ICCPR) (article 14) and every other major regional human rights instrument. While some of these provisions allow for the exclusion of the public from the hearing, there is a clear requirement that the accused be present throughout the hearing. (See, for example Article 14 of the ICCPR, which includes “The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security …” but makes no such allowance for exclusion of a party to the proceedings). Equality before the law is a key requirement of a fair trial. The U.N. Human Rights Committee is clear by its General Comment 32 on the Right to equality before courts and tribunals and to a fair trial:

The right to equality before courts and tribunals also ensures equality of arms. This means that the same procedural rights are to be provided to all the parties unless distinctions are based on law and can be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness to the defendant. …The principle of equality between parties applies also to civil proceedings, and demands, inter alia, that each side be given the opportunity to contest all the arguments and evidence adduced by the other party.

This draft resolution should be seen within a broader context of global measures that seek to water down human rights protections in the name of countering terrorism and safeguarding national security. We can see globally what happens when national security is used as a rationale to target human rights norms and standards, including the right to a fair trial. Take for example Egypt’s use of national security prosecutions to target activists. Many of the pitfalls of this resolution are illustrated through the Egyptian national security court system, where the accused is unable to properly challenge the case against them, torture is widespread, and justice is fatally undermined. Or consider the “note blanche” system in France, where suspects have their liberty curtailed on the basis of undisclosed intelligence evidence. In China, it is the so-called exceptionalism of national security measures that is the pretense for the mass incarceration of the Muslim Uighur population of Xinjiang Province, without even a semblance of a trial. There, the Uighurs are detained in order to address their so-called “radicalization” – a problematic concept provided with further international credence by its frequent inclusion in the current resolution. Counter-terrorism measures are all too often the thin end of the wedge – undermining hard won rights and leaving the door open to human rights violations across a justice system.

It is crucial that whenever U.N. bodies are considering how best to safeguard national security, they do so in a way that strengthens human rights protections. Dangerous flaws in the current draft resolution need to be addressed, if the Security Council is to live up to its responsibility to respect human rights. 

About the Author(s)

Simon Crowther

Legal adviser to Amnesty International where he focuses on counter-terrorism, criminal justice and the right to freedom of peaceful assembly