The Counterterrorism Draft Law of Switzerland: Rerouting from Human Rights Protection and Justice Delivery
28.10.2020 | Sanskruti Jain OCTOBER 27, 2020 11:30:08 PM Edited by: Vishwajeet Deshmukh | Government Law College Mumbai, IN | 74
Terrorism, a grave danger to the life and property of the world at large, has been addressed by countries differently from time to time. States have the duty to protect its citizens from such “terrorist acts of violence”. However, measures aimed to respect this duty of protection must also comply with the obligations of States under International Human Rights Law. Switzerland, a country is known for propelling human rights, introduced a draft anti-terrorism law which is being discussed in Parliament, and for the same, the UN experts recently reiterated the dangers inherent in the draft. But unfortunately, the parliament didn’t take heed to any such expert recommendations or the danger of it being a grave violator of human rights and implemented it.
There is a huge problem with the definition proposed in this draft as well as various other provisions of this law which stands out from many international obligations and standards, to which Switzerland is a party. This article seeks to identify these inconsistencies and show how these provisions are a serious violation of various human rights and are inconsistent with the justice delivery mechanism of the country itself.
Section 23 (e) of P-SIMA defines “terrorist activities” as actions that aim to influence or modify the state order which is facilitated by serious offenses and their threat which includes the spread of fear. And it describes a “potential terrorist” as an individual who, on the basis of “concrete and current” indicators is presumed capable of carrying out terrorist activities.
On careful analysis of this definition, it becomes clear that these definitions are too vague to be properly construed and no particular explanation is enlisted with the terms “serious offenses”. These “terrorists” according to the definition could also then include journalists, extremists group, or pressure groups, merely articulating their views with an aim to “influence the state order.” And accordingly, the words “spread of fear” is misguided and needs to be replaced by words which encompass the severity of this crime. According to the conventions, these nationally construed definitions need to be in consonance with internationally accepted definitions like that of the Security Council, in its resolution 1566, which defined terrorism as those criminal acts, especially the ones directed against civilians with the intent to cause “death or serious injury or the taking of hostages with the aim of sowing terror among the population”, or a group of people, with the purpose of “intimidating a population or to compel a government or an international organization” to perform an act or to refrain from doing so…, – that means particularly those acts which are categorized as offenses in international conventions and protocols relating to terrorism.
Also according to the model definition provided by the Mandate of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms in the fight against terrorism, TERRORISM constitutes:
(a) Intentional hostage-taking; or
(b) Intention to cause death or serious bodily harm to one or several members of the general population or segments or
(c) Being involved in acts of serious or fatal physical violence against an individual or members of the general population or parts of it;
The definition adopted by the Swiss Parliament stands at a very broad and vague position than that of the Security Council Resolution and Mandate of the Special Rapporteur and thus could be made subject to interpretations which could harm the society, rather than protecting it. Not only this, but the definition is also broader than the national definition under Article 260 of the Swiss Penal Code, which defines it as – An act of criminal violence intended to threaten a community or to force or refrain from performing any act by a state or an international organization. The definition whereby “potential terrorists” has been defined also has a wider connotation, which is not explained in the law and could be subject to wide misinterpretations. There is no mentioning of the fact if people who are construed as “potential terrorists” know about such a designation upon them or not. If this crucial information is concealed, then there could be severe human rights violations when a person unaware of his status, is apprehended by the authorities. Also, the bill at this stage does not explain the term “concrete and current” indicators of terrorist activities. This gives a huge scope of arbitrary and discretionary powers to the authorities.
Firstly, these measures are applied to “potential terrorists,” where the term seeks to restrict them before they are apprehended. The vague notions of the term present a huge discrepancy in itself and label them as “terrorists” without being prosecuted first, which also violates upon their right of privacy by being ‘an unlawful attack on honor and reputation’, according to the International Covenant on Civil and Political Rights, to which Switzerland is a party.
Secondly, there has been a wide range of restrictions stemming from provisions of this draft (art. 23k), (art. 23l), (art. 23m), and (art. 23n). But what is striking is that, in case of failure of these, gross restrictions are imposed on an individual’s liberty and freedom in the form that “assigned residence” is allotted to them provided that there are “concrete and current indications that the person concerned poses a considerable threat to the life or physical integrity of third parties that cannot be otherwise prevented” (Article 23o (1)(a)).
This is allowed for three months and can be extended twice for the same period. (Article 23o (5)).
This constitutes a deprivation of liberty under Article 5 of the European Commission on Human Rights. Here the Swiss legislators contend that this right can be restricted under Article 5(1) (b) of ECHR where a restriction to liberty can be imposed, ‘in order to secure the fulfillment of any obligation prescribed by law’. This means that failure to comply with the above-mentioned Articles (23k-23n) becomes a ground for the imposition of “ assigned residence”.
BUT it can be noted from the case of S., V. and A. v. Denmark (2018) where the correct explanation of Article 5(1) (b) has been rendered. According to it, such deprivations of liberty are allowed if it is “aimed at or directly contribute to securing the fulfillment of that obligation and not be punitive in character”. But from the wordings of the draft section, it appears clearly that the measure has been punitive in character and it is not to ensure that the orders have been complied to, but because the imposed measures have not been respected. This provides a serious discrepancy with the wordings of Article 5(1) (b) of ECHR and hence, needs to be struck down.
Thirdly, persons affected by the measures imposed under these sections of the bill can ask Fedpol to end these measures or challenge them before the Federal Administrative Court. The question is that whether there is even a scope of questioning these measures as it is not clear whether a person can challenge his designation as a “potential terrorist” or only the measures resulting from this designation.
Fourthly, the duration of three months for this detention is again questionable with regard to proportionality. Although the ECHR has not mentioned the time regarding such detention in accordance with this principle, most detentions have been for days, if not months. (A 42 day detention in the case of Gothlin v. Sweden was considered the longest time for detention in such a case.)
The measures provided for in Articles 23 (k) -23 (n), 23 (q), and 24 (c) of the bill may be imposed in respect of children aged 12 and over. It is important to note that such administrative measures may affect the right to education of children aged 12 to 18 as well as university and professional students. Interference with the right to education can be particularly serious in the case of children subject to a residence. There is also a threat that designating them as “potential terrorists” may amount to stigmatizing them and hence affecting their right to live with dignity, resulting in marginalization and discrimination by different societies.
According to Article 37 of the Convention on Rights of the Child, deprivation of liberty should only be imposed as a last resort and “for the shortest possible time”. But as noted earlier the disproportionate measures and infringement on various liberties and freedoms, can affect the rights of a child severely and hence is at crossroads with this Convention too. Also, Article 3 (1) of this Convention asserts the need to keep the best interests of the child, while imposing any punitive measures upon them. Looking at the provisions, it cannot be said that same has been adhered to. Also, it needs to be understood that all measures taken for children in this sense, should not be of a punitive character but of a rehabilitative character so that the child does not lose its value as an asset to society, when subject to such stringent measures.
Hence it comes to our notice that there are severe discrepancies in this draft law, summarized as: vagueness and ambiguity of the definition of “terrorism” itself, the threat regarding labeling someone “potential terrorist” prior to their committing any grave act, the severe constrictions in liberty and movement of individuals on the basis of baseless definitions contrary to ECHR, and also the various discriminations and atrocities which could be inflicted upon children as young as 12 years, which could contribute to their improper development and a growth mindset for terrorist activities in the future. As was noticed by HACKER(197645) that “remediable injustice is the basic motivation for terrorism.”
Hence what the Swiss Government needs to do is recheck these and other provisions of the draft and match their compatibility with various international conventions which they are party to, and International Best Practices on Terrorism, so that such grave violations which are at risk to flourish do not occur in the future and the other countries, do not have to think twice before seeking precedence from this human rights protector when it comes to drafting a law on Terrorism per se.
Sanskruti Jain is a law student from Hidaytullah National Law University, Raipur.