7B.2 The ‘war’ and human rights

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international human rights law



At times, the ‘war’ is invoked in an apparent attempt to suggest human

rights are simply inapplicable. While politically insidious, from a legal

point of view this can be straightforwardly dismissed as a clear misunderstanding of the human rights framework and its continued relevance

in situations of emergency.320 However, even on a correct understanding

of IHRL (as not displaced by IHL but complementary to it), the existence

of conflict and application of IHL as the lex specialis undoubtedly has a

dramatic transformative effect on the nature of particular rights. Notably,

killings and detentions may be permissible in conflict while they would

otherwise amount to arbitrary deprivations of life and liberty. A precise

appreciation of when ‘war’ is really war as opposed to a rhetorical device,

is therefore critical to the shape of human rights protection.321

At the same time, recourse to the legal standards applicable in ‘war’

has been selective post 9/11, invoked to justify what would be impermissible under IHRL, yet without acknowledging that corresponding

rights under IHL take effect. It is this attempt to suspend one set of

legal protections, without acknowledging the application of another, that

leaves rights particularly vulnerable.322 The following may serve as an

example.



7B.2.1 The Yemen attack: armed conflict or assassination?

The US authorities justified the aerial attack on an allegedly high-level

member of al-Qaeda and five others as a military operation323 related

to an armed conflict, governed by the laws of IHL, with this particular attack purportedly justified as the killing of persons perceived to be

320



321



322



323



Undoubtedly the most relevant body of law in assessing the lawfulness of certain action

in armed conflict is IHL. One specific advantage that the application of the human

rights framework enjoys over the application of IHL, however, lies in the availability of

mechanisms for individual redress.

While the focus here is on applicable international law, it is noted that the existence of war

may also change applicable domestic law. One example is the domestic law of the United

States relating to the ‘assassination’ of foreign nationals prohibited during peacetime

since 1975, while during wartime a different (and more permissive) body of law is used to

define assassination. See M.N. Schmitt, ‘State Sponsored Assassination in International

and Domestic Law’, 17 (1992) Yale Journal of International Law 609.

Note that IHL itself enshrines protections of the human person that in some cases go

beyond those of IHRL – see, e.g., Prisoners of War discussion in Chapter 8, Guantanamo

Bay.

The strike in Yemen was apparently carried out by the CIA, and not by the US armed

forces. See ‘Deputy Secretary Wolfowitz Interview With CNN International’, 5 November

2002, at http://www.defenselink.mil/transcripts/2002/t11052002 t1105cnn.html.



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enemy combatants.324 As recalled below, the rules on targeting in IHL

stand in stark contrast to those governing law enforcement operations

under IHRL, such that the legitimacy of US claims that this was a military

operation carried out in the context of armed conflict are critical to the

lawfulness of this lethal attack.325

Although the US authorities appeared to suggest that the attack was

part of a global war against terror, in which al-Qaeda members are enemy

fighters and the world is a battlefield, as discussed in Chapter 6 it is

doubtful that there can be an armed conflict against al-Qaeda in any legal

sense.326 Could then the attack on Yemen soil be seen to have taken place

in the context of, or in association with,327 the conflict in Afghanistan?328

The key issue is likely to be the relationship of the individuals targeted to

that conflict: were they ‘combatants’ engaged in the Afghan conflict, in

which case they were entitled to fight but could legitimately be attacked

by the adversary?329 Or were they ‘unprivileged combatants’, essentially

324



325



326

327



328



329



S.M. Hersh, ‘Manhunt – The Bush Administration’s new strategy in the war against

terrorism’, The New Yorker, 23–30 December 2002, 66–73; ‘Washington Changes its Tune

on Targeted Killing’, The Guardian, 6 November 2002, 13. It has also been suggested that

the Yemen attack may be understood as an exercise in self defence. This question, which

relates to the right to use force (jus ad bellum), discussed at Chapter 5, is independent of

the question whether the force is employed lawfully (jus in bello) which must be assessed

by reference to the framework of IHL or IHRL discussed here.

The US argument as to the legitimacy of this action may be premised on one of two

views: (a) that the human rights framework is simply inapplicable to military operations

in time of war (see extra-territoriality above); or (b) that it is superseded to the extent that

the rules governing the right to life in this context are those of IHL which applies as lex

specialis. It should be noted that even if one accepts the qualification of the operation as a

military operation in the context of the global ‘war on terror’, the legality of the conduct

of the US agents would still have to be questionable in line with IHL principles governing

distinction and proportionality. See Chapter 6, para. 6A.3.1.

The law as it stands suggests that there can be no international armed conflict with an

international organisation as one of the parties.

The criterion for determining whether an act is governed by IHL is whether or not

the act is committed in the context of or in association with an armed conflict. See,

however, ‘Introduction to Article 8 – War Crimes’, International Criminal Court, Elements

of Crimes, UN Doc. PCNICC/2000/1/Add.2 (2000), which sets a higher threshold for the

qualification of an act as a war crime within the jurisdiction of the ICC, requiring that,

for an act to constitute a war crime or a serious breach of IHL, it must take place in the

context of and be associated with an armed conflict.

As noted in this chapter, para. 7B.1.2, the Afghan conflict commenced, if not before, on 7

October 2001. While one instance of the use of armed force may, in certain circumstances,

give rise to the existence of an armed conflict, there is nothing to suggest that any such

conflict arose in Yemen, particularly given purported consent by the Yemen state.

See the IHL rules governing the definition of ‘armed conflict’ and its territorial scope,

Chapter 6, para. 6A.1. Doubts arise from the occurrence of the attack outside the territory



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civilians who took up arms in the context of the conflict, in which case

they lose their immunity and can be killed, but only for as long as they

are directly participating in hostilities?330 Or, as seems more likely, do the

crimes of which they are suspected have nothing to do with the Afghan

conflict at all, in which case the Yemen action should properly be understood as an exercise in extra-territorial law enforcement against al-Qaeda

and the legality of the action assessed in the light of the standards of

IHRL?331

Although under IHRL the use of force by law enforcement officials

may be tolerated, it is subject to extremely strict limits.332 The question is

whether the use of lethal force was ‘strictly unavoidable to protect themselves or other persons from imminent threat of death or serious injury’333

and whether the obligation to plan and execute operations with a view to

ensuring that lethal force is not employed was met. While difficult issues

of necessity and proportionality may arise in law enforcement cases gonewrong, this is distinct from planned execution, where no imminent threat

is envisaged and where no attempt is made to apprehend the suspected

criminal, which is manifestly inconsistent with legal standards. Indeed

discussion of the lawfulness of the Yemen scenario was to some degree

foreshadowed in a recent decision of the Human Rights Committee, in

which it condemned the practices of targeted killings by Israel, irrespective

of the threat of terrorism that the state may seek to confront.334

Viewed through the prism of human rights law, then, the action of US

agents in Yemen territory appears to constitute a violation of the internationally recognised right to life, amounting to an extra-judicial execution,



330

331



332

333

334



of any of the states involved in any such conflict, although the issue of the parties to the

conflict is more likely to be the definitive one. See G.L. Neuman, ‘Humanitarian Law and

Counterterrorist Force’, 14 (2003) EJIL 283, in particular at 296–8.

See Article 50 GC IV and Chapter 6 above.

Other issues may arise regarding possible breach of the territorial sovereignty of another

State under international law, although in the present case, since the action was reportedly

conducted with the consent of Yemen authorities, these are unlikely to pose particular

problems.

See para. 7A.4.3.1.

Inter-American Commission on Human Rights, Report on Terrorism and Human Rights,

para. 87; see also para. 107.

See Concluding observations of the Human Rights Committee: Peru, UN Doc.

CCPR/C/79/Add.8 (1992), para. 8. E. Gross, ‘Thwarting Terrorist Attacks by Attacking

the Perpetrators or Their Commanders as an Act of Self Defence: Human Rights Versus

the State’s Duty to Protect its Citizens’, 15 (2001) Temple International and Comparative

Law Journal 195.



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an international legal norm that has attained jus cogens status.335 The onus

lies on the state carrying out the attack to demonstrate its legitimacy,336

which it may do by showing that the requirements of human rights law

were in fact met or that, in accordance with IHL, it reasonably believed

upon proper inquiry that the targeted individuals were combatants in the

Afghan conflict or other persons directly participating in active hostilities in relation to that conflict, as they drove through Yemen territory.

However, reports suggest that the US has refused to present any such

justification for its action.337

Finally, if a state seeks to rely on ‘wartime’ standards, the consequences

of the application of the IHL framework must be taken on board in their

entirety. Thus, if the suspected al-Qaeda operatives are to be treated as

combatants for targeting purposes, they (and other al-Qaeda operatives)

are also entitled to be treated as POWs if captured. On the other hand, if

they are instead considered to be unprivileged combatants, they are for

IHL purposes ‘civilians’ entitled to the protections of the Fourth Geneva

Convention upon capture.338 However, as discussed in Chapter 8, the

authorities apparently reject both of these, denying the entitlement of

similarly placed persons to POW status or to protection as civilians under

the Geneva Conventions.339

The Yemen incident is therefore an example of how resort to the

ambiguous language of war may be invoked to avoid responsibility under

IHRL, without either a) demonstrating the justification for reliance on

IHL standards or b) accepting the consequences that flow therefrom

in terms of the application of IHL protections. In this way a policy of

335



336

337



338

339



Restatement (Third) of the Foreign Relations Law of the United States, para. 102(2).

As there can be no derogation from the right to life under human rights treaties, and as

‘necessity’ cannot justify violations of jus cogens norms, the human rights framework does

not appear to provide any justification for this action. As discussed in Chapter 4, such

executions are among the violations in respect of which all states may exercise jurisdiction

and individuals may be held to account.

See para. 7A.4.1.2.

Ari Fleischer, White House Press Secretary, responding to a question on the ‘transparence

of the operation’ and reliability of intelligence: ‘[T]he President has said very plainly to

the American people that this is a war in which there will sometimes be visible moments

and sometimes there are going to be long lulls. And there are going to be things that are

done that the American people may never know about’ (Press Gaggle by Ari Fleischer, 24

October 2002).

See Article 50 GC IV, and generally Chapter 8 on Guantanamo Bay.

See Chapter 8 on the procedural rights denied to persons who, like the Yemen targets, fall

into the US ‘enemy combatant’ category.



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assassinations, long rejected by the US,340 was de facto reintroduced, of

which the Yemen attack provides the clearest example.341 The serious

implications for the right to life are not isolated, but mirrored by other

rights potentially adversely affected by a sloppy discourse on war replacing

the language of law enforcement, some of which are discussed in Chapter 8

in relation to the rights of detainees. 342



7B.3 Derogation and emergency post 9/11

Among the most controversial of the measures adopted post 9/11 are

those that relate to the rights to liberty and fair trial. Prolonged or indefinite detention of persons perceived by government as dangerous and

the limitation or denial of judicial guarantees has become widespread,

including through adoption of new – or resort to existing – terrorism

laws and ‘creative’ use of immigration laws. Examples of increasingly liberal resort to arrest and detention powers are plentiful, as highlighted in

relation to ‘Indefinite Detention’ below and in the following chapter dedicated to the situation in Guantanamo Bay, Cuba.343 As illustrated in that

340



341



342



343



The ban, originally contained in an Executive Order adopted by President Ford in 1975,

is now in force as Executive Order No. 12,333 (Exec. Order No. 12,333, 3 C.F.R. § 200

(1982), reprinted in 50 USC § 401 (1982)), though it has been noted that there are

‘so many options . . . to get around the ban that the Order should not be viewed as a

practical ban, but instead as a preventive measure to stop unilateral actions by officials

within the government and a guarantee that the authority to order assassinations lies

with the President alone’; N. Canestaro, ‘American Law and Policy on Assassinations

of Foreign Leaders: The Practicality of Maintaining the Status Quo’, 26 (2003) Boston

College International and Comparative Law Review 1 at 24. For a detailed discussion of

the practice of the United States regarding ‘assassination’ and an analysis of the relevant

national legislation, see M.N. Schmitt, ‘State Sponsored Assassination’, at 616 ff.

Whilst denying that the US administration was about to formally rescind the executive

order banning assassinations, the White House Press Secretary stated in relation to war in

Iraq: ‘[T]he President has not made any decisions about military action or what military

option he might pursue . . . I can only say that the cost of a one-way ticket is substantially

less than that. The cost of one bullet . . . is substantially less than that . . . Regime change

is the policy, in whatever form it takes’; Press Briefing by Ari Fleischer, 1 October 2002,

available at http://www.whitehouse.gov/news/releases/2002/10/20021001-4.html#3.

On the different rules applying to detention see Chapter 8 on Guantanamo Bay: the lawful

bases for detention differ between IHL and IHRL and a more limited right of judicial

oversight exists under the former.

See para 7B.6, below. In addition to the examples below, see, e.g., Concluding observations

of the Human Rights Committee: Yemen, UN Doc. CCPR/CO/75/YEM (2002), para. 18:

‘while it understands the security requirements connected with the events of 11 September

2001, the Committee expresses its concern about the effects of this campaign on the human

rights situation in Yemen, in relation to both nationals and foreigners. It is concerned, in



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chapter, certain core aspects of the rights to liberty and fair trial cannot be

derogated from in any circumstances.344 However, much of the content

of these rights can be restricted, provided there is a public emergency,

the treaty provisions have been duly derogated and certain conditions are

met. The following questions are among those to arise in relation to the

legal requirements for derogation post 9/11, upon which the legitimacy

of many measures, including those restricting liberty and security of the

person, depend.



7B.3.1 An emergency threatening the life of the nation?

States are afforded broad, but not unlimited, discretion to assess their own

security situations and whether there is in fact an emergency threatening

the life of the nation.345 Thus, had a derogation clause been invoked by

the United States in the immediate aftermath of September 11, this issue

would almost certainly not have been subject to dispute. The appropriateness of derogation did, however, give rise to controversy – and was

the subject of legal challenge346 – in the context of the United Kingdom,

which derogated from its obligations despite the fact that it had not, and

still has not, itself been the subject of any related terrorist attack in the

UK; the threat to that country was, at the time of derogation, broadly

perceived as speculative.347 The fact that other European states failed to

see the need for derogation (post 9/11 or indeed in the context of other

‘terrorist’ threats) compounded doubts as to the reality of the emergency

and the necessity of derogation.



344



345



346



347



this regard, at the attitude of the security forces, including Political Security, proceeding to

arrest and detain anyone suspected of links with terrorism, in violation of the guarantees

set out in the Covenant (Article 9).’

Those aspects – such as the right to habeas corpus and the right to access counsel –

are discussed in relation to the application of the legal framework to the Guantanamo

detainees, in Chapter 8.

The first question upon which valid derogation depends is whether there is in fact an

emergency threatening the life of the nation. On the state’s discretion in the context of

the ECHR, see, e.g., Brannigan and McBride v. the United Kingdom (App 1453/89 and

1454/89), Judgment, 26 May 1993, Series A, No. 258, para. 43–7; Ireland v. the United

Kingdom, Judgment, 18 January 1978, ECtHR, Series A, No. 25, pp. 78–9, para. 207.

A challenge to the lawfulness of the UK’s derogation to the ECHR was denied by the Court

of Appeal in A and others v. Secretary of State for the Home Department; X and another

v. Secretary of State for the Home Department [2002] EWCA Civ. 1502; [2004] QB 335.

Leave to appeal to the House of Lords has been granted.

D. Pannick, ‘Opinion on the derogation from Article 5(1) of the European Convention

on Human Rights to allow for detention without trial’, on file with author.



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This is not a new phenomenon – with several states having been under

state of emergency for decades with no meaningful oversight of the legitimacy of that classification.348 This casts shadows back to the insidious

notion of the ‘war without end’.349 If, as has been suggested, the struggle

against terrorism post 9/11 is a war the duration of which ‘is measured

by the persistence of fear that the enemy retains the capacity to fight’,350

there is a real risk of a perception of ‘permanent emergency’ whereby

the exception becomes the norm.351 This only serves to highlight the

importance of clarity in the international sphere as to what constitutes

an ‘emergency’ for these purposes and, as discussed below, the need for

oversight of determinations by the state in this respect.



7B.3.2 A valid process of derogation?

As the framework in the preceding chapter notes, a valid process of derogation involves two elements. First, the state declares the emergency and

engages in the process of derogating, which itself ensures a degree of transparency and accountability in the opaque world of counter-terrorism and

national security. Second, despite great deference afforded to a state’s

assessment of its security situation, ultimately the body charged with

oversight of the treaty in question determines whether the derogation is

348



349

350

351



See generally the ‘List of States which have proclaimed or continued a state of emergency’ contained in the paper on ‘The Administration of Justice and Human Rights:

Question of Human Rights and States of Emergency’ prepared by the Sub-Commission

on Prevention of Discrimination and Protection of Minorities, 5 July 1999, UN Doc.

E/CN.4/Sub.2/1999/31. An example is the state of emergency declared by Israel in 1948

which remained in force unexamined until 1996, when the Knesset replaced it with the

Basic Law. Since then, the Knesset has routinely extended the state of emergency without

seriously considering whether Israel’s situation warrants such an extension (see Consideration of reports submitted by States parties under Article 40 of the Covenant: Israel,

UN Doc. CCPR/C/ISR/2001/2 (2001); Concluding observations of the Human Rights

Committee: Israel, UN Doc. CCPR/C/79/Add.93 (1998), para. 11). See other examples,

notably from the Middle East, set out in the Framework section.

See Chapter 6, para. 6B.1.2.3.

Fitzpatrick, ‘Speaking Law to Power’, at 251.

See Human Rights Committee, General Comment No. 29: Derogations during a state of

emergency (Article 4) [2001], UN Doc. HRI/GEN/1/Rev.6 (2003) at 186, in particular

at para. 2: ‘Measures derogating from the provisions of the Covenant must be of an

exceptional and temporary nature’ and para. 4: ‘[A] fundamental requirement for any

measures derogating from the Covenant . . . is that such measures are limited to the

extent strictly required by the exigencies of the situation. This requirement relates to the

duration, geographical coverage and material scope of the state of emergency and any

measures of derogation resorted to because of the emergency.’



human rights and security post september 11



347



valid or not, thereby safeguarding the integrity of the treaty rights and

derogation process.

Following the September 11 attacks, the UK derogated from its obligations under the ECHR and the ICCPR.352 By contrast, the United States has

not formally sought to derogate from its obligations under the ICCPR.353

In law, the US would appear to be either accepting that the full range of

human rights apply, or disregarding its obligations in respect of the operation of the human rights procedures. In practice, that the US administration considers itself in a situation of emergency is plain (as reflected

in the internally declared state of emergency)354 and the failure to notify

derogation is difficult to interpret as anything other than contempt for

international legal process.

The events of 9/11 and differing approaches to derogation in their

aftermath may highlight the need – and provide the opportunity – to

clarify whether derogation notification is a genuine prerequisite to be

taken seriously or a formality of little real import. Ambiguity surrounding

the concept of war and emergency post 9/11, and allegations as to their

overuse and abuse, may in turn highlight the need for a more rigorous

approach on the part of treaty bodies to overseeing the validity of the

assertion of a state of ‘emergency’.355



7B.3.3 Linkage between measures taken and the emergency?

Post 9/11, questions have arisen as to whether measures taken are necessary and proportionate to the emergency justifying derogation. In the

UK context, for example, one of the most controversial questions was

whether, assuming there was an emergency, the measures taken could

be justified pursuant to it. In this respect, certain legal experts opined

that the breadth of scope of the anti-terrorist law, covering, for example,

352



353



354

355



Note Verbale from the Permanent Representation of the United Kingdom, dated 18

December 2001, registered by the Secretariat General on 18 December 2001: the text

of the note is available at http://conventions.coe.int (last visited 30 January 2004).

Immediately after the attacks of 9/11, the US President declared a state of

national emergency (see Proclamation No. 7453, Declaration of a National Emergency by Reason of Certain Terrorist Attacks, 14 September 2001, 66 Fed. Reg. 48,

available at http://www.whitehouse.gov/news/releases/2001/09/print/20010914-4.html).

However, the US has never notified the state of emergency to the competent organs of

the human rights conventions to which it is a party.

See US Declaration of National Emergency, above.

See Fitzpatrick, ‘Speaking Law to Power’, at 252, on the human rights bodies’ ‘generally

deferential approach to states’ claims of the existence of an emergency’.



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persons suspected of having ‘links’ with a terrorist organisation (including organisations not involved in 9/11 and that posed no threat to the

United Kingdom but rather to other states), meant that individuals fell

within its scope that were in no way linked to the events of September 11

or the ‘emergency’ that was deemed to arise in its wake. It was therefore

questioned to what extent these legislative measures could be said to be

responsive to, still less ‘strictly required’ by, the particular emergency in

the United Kingdom.356

Examples of measures affecting detention and fair trial rights post 9/11

that raise doubts as to the requirements of necessity and proportionality

include the limitation on or denial of access to lawyers, or interference

with lawyer–client confidentiality.357 Broader questions have been raised

repeatedly as to whether a rights restrictive counter-terrorism strategy is

predictably counterproductive,358 raising questions as to the satisfaction

of the necessity and proportionality tests, as a strategy that cannot reasonably be considered effective to achieve the stated aim, logically cannot

be necessary or proportionate to it.



7B.4 ‘Terrorism’ and the legality principle

In the wake of 9/11, the Security Council called on states to take wideranging ‘counter-terrorist’ measures, including to ‘[e]nsure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice’.359

Yet, as discussed in Chapter 2, there was not – and still is not, despite



356



357



358



359



D. Anderson and J. Statford, ‘Joint Opinion on Proposed Derogation from Article 5 of

the European Convention on Human Rights; Anti-Terrorism, Crime and Security Bill,

Clauses 21–32’, on file with author.

See International Bar Association’s Task Force on International Terrorism, ‘International

Terrorism: Challenges and Responses’ (2003) (hereinafter ‘IBA Task Force Report 2003’),

pp. 132–3.

This risk has been underlined, inter alia, by the UN Secretary-General: ‘By their very

nature, terrorist acts are grave violations of human rights. Therefore, to pursue security

at the expense of human rights is short-sighted, self-contradictory, and, in the long run,

self-defeating. In places where human rights and democratic values are lacking, disaffected

groups are more likely to opt for a path of violence, or to sympathize with those who

do.’ (Secretary-General’s statement to the Security Council at Meeting to Commemorate

the One-Year Anniversary of the Committee on Counter-Terrorism, 4 October 2002, UN

Doc. SC/7523).

SC Res. 1373 (2001), 28 September 2001, UN Doc. S/RES/1373 (2001), Article 2(e) and

generally, at www.un.org/Docs/scres/2001/sc2001.htm.



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efforts post 9/11 – an accepted definition of what constitutes terrorism

under general international law.

The result has been a proliferation of specific anti-terrorism laws. While

definitions differ dramatically, as the country reports of the Human Rights

Committee post 9/11 illustrate, commonly they have been couched in

broad-reaching and ambiguous language. The Committee has criticised

numerous states for the ‘exceedingly broad scope of . . . proposed legislation’, and specifically for the adoption of ‘broad and vague definition[s]

of acts of terrorism’,360 which draw a broad range of conduct under their

rubric, encompassing serious and less serious offences.361 Yet the terrorist label is often invoked precisely to connote a degree of gravity, thereby

purportedly to justify measures not otherwise considered acceptable.

At times the problem relates not only to the amorphous nature of ‘terrorism’ itself, but to a lax approach to those deemed to be associated with

terrorism, or supportive of terrorist organisations, who are brought within

the reach of the wide-ranging counter-terrorist measures. The United

Kingdom Anti-terrorism, Crime and Security Act 2001,362 for example,

like the United States Military Order of 13 November 2001,363 extends to

persons considered to have undefined ‘links’ with organisations deemed

to constitute a ‘terrorist’ threat.364 The EU Common Position adopted

post 9/11, which includes ‘participating in the activities of a terrorist

group’, illustrates the manifestation of the problem on the international

plane.365

360



361

362

363

364



365



Concluding Observations of the Human Rights Committee: Philippines, UN Doc.

CCPR/CO/79/PHL (2003), para. 9. See also, e.g., Concluding observations of the Human

Rights Committee: Egypt, UN Doc. CCPR/CO/76/EGY (2002), para. 9; Concluding

observations of the Human Rights Committee: New Zealand, UN Doc. CCPR/CO/75/

NZL (2002), para. 11.

See, e.g., Concluding Observations of the Human Rights Committee: Egypt, UN Doc.

CCPR/C/79/Add.23 (1993), para. 8.

See www.hmso.gov.uk/acts/acts2001/20010024.htm.

Military Order relating to ‘Detention, treatment, and trial of certain non-citizens in the

war against terrorism’, issued 13 November 2001 by the President of the United States.

Both go beyond persons associated with the particular al-Qaeda terrorist organisation suspected of responsibility for the September 11 attacks. See also, e.g., the concern expressed

by the Human Rights Committee in relation to the broad definition of terrorism and of

‘belonging to a terrorist group’ in Estonia’s penal code: see Observations finales du Comit´

e

des droits de l’homme: Estonia (15/04/2003), UN Doc. CCPR/CO/77/EST, para. 8.

See European Council, Common Position 2001/931/CFSP on the application of specific

measures to combat terrorism, 27 December 2001, OJ L 344, 28 December 2001, p. 93,

Article 2(3)(k): ‘participating in the activities of a terrorist group, including by supplying

information or material resources, or by funding its activities in any way, with knowledge

of the fact that such participation will contribute to the criminal activities of the group’. See