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Key issues

 

Despite the fundamental nature of fair trial rights, in practice the degree of conformity can vary between States, such as when investigating and prosecuting persons accused of terrorist offences. For example, consecutive United Nations Special Rapporteurs on the protection of human rights while countering terrorism have frequently expressed their concern that "in the fight against terrorism fair trial rights have not always been respected" (General Assembly report A/63/223, p. 5). For such reasons, other entities within inter alia the United Nations human rights system have similarly reiterated the importance and associated benefits of adherence to basic human rights protections, including due process, when countering terrorism. For example, the United Nations High Commissioner for Human Rights, in a report to the United Nations Human Rights Council in 2017, emphasized that "[t]he protection and promotion of human rights while countering terrorism is both an obligation of States and a condition for an effective and sustainable counter-terrorism strategy. All counter-terrorism measures must comply fully with States' international human rights obligations, including the right to a fair trial" ( UN Global Counter-Terrorism Strategy, Pillar IV). This is reflective of a broader sentiment shared by many, including the United Nations General Assembly, Human Rights Council and various special mandate holders, that human rights are under increasing strain globally (OHCHR, 2016; General Assembly resolution 64/168). Consequently, the Commissioner emphasized the importance of "regularly reviewing counter-terrorism laws and practices in order to ensure that they were human rights-compliant and, in particular, specific, necessary, effective and proportionate" (General Assembly, Human Rights Council report 34/30, para. 14).

Challenges associated with the effective implementation and enforcement of fair trial and due process standards are not unique to counter-terrorism. Rather they can occur in the context of the protection of other rights as well as in different situations as well. The context of counter-terrorism though - due to accompanying factors and related pressures, such as national security imperatives, public outcry following a terrorist attack, internal/international political pressures, and so forth to deal quickly and decisively with perpetrators of terrorism - could raise the risk of human rights protections related to the right to fair trial not being fully observed.

This Module commences by examining the principal international, regional and some national legal frameworks governing due process and fair trial rights applicable during both times of peace and armed conflict. It then examines a number of the core principles underpinning each of the three principal phases of criminal justice proceedings, namely investigation, trial and sentencing. Throughout the Module, the focus is primarily on substantive rights since the procedural elements are examined in detail elsewhere. (See further reading, UNODC Counter-Terrorism Legal Training Curriculum Modules on international cooperation in criminal matters, and human rights and criminal justice responses to terrorism).

The sub-pages to this section provide a descriptive overview of the key issues that lecturers might want to cover with their students when teaching on this topic.

 

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