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International Law

Interview with UN Special Rapporteur Martin Scheinin

The locking up of individuals on the US base of Guantanamo, Cuba, is an arbitrary form of dentention and part of the CIA secret prisons program discretely referred to as "proxy detentions". Contrary to the claims of certain governments, there is no such thing as a global war against terror, and Al Qaeda is but a metaphor. Martin Scheinin is a Finnish Law professor and was recently appointed as UN Special Rapporteur on the protection and promotion of Human Rights. He’s interviewed by Sandro Cruz for Voltaire Network.

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Whoever Commits an Act of Terrorism is a Terrorist Interview with UN Special Rapporteur Martin Scheinin.

The holding of detainees at the US naval base in Guantanamo, Cuba, is a form of arbitrary detention. The old CIA secret prison program has been replaced with a new one called “Proxy Detentions.” There is not any long war on terror, and Al Qaeda is a metaphor.

Martin Scheinin, United Nations’ Special Rapporteur on the Protection and Promotion of Human Rights and Fundamental Freedoms, while Countering Terrorism, granted an interview to journalist Sandro Cruz from Peru’s IPI Agency and Voltaire Network, at the end of the recent 5th Session of the UN Human Rights Council, held June 11-18, in Geneva.

Question. Sandro Cruz: What is the UN concept of terrorism, today?

Answer. Martin Scheinin: -There is not an agreed universal comprehensive definition of terrorism, there are many international conventions against specific forms of terrorism and of course you can sum up existing definitions of particular forms of terrorism to form the notion of terrorism at the international level.
UN Security Council Resolution 1566 takes this approach of referring back to existing counter terrorism conventions and then adding that terrorism means deadly or otherwise serious violence mainly against civilians and that is for me the decisive point, it is the targeting of innocent bystanders as victims of usually deadly violence, that is terrorism. Terrorism is a choice of tactics, a question of means and the aims are not decisive; there are often political or religious aims behind terrorism but those aims are shared between or among terrorists for the interest of political organizations, so the aims are not decisive, it is really the method of using deadly violence against innocent bystanders, which defines terrorism. There is no agreement on this point because so many governments want to continue with their overly broad abusive definitions of terrorism, which usually means that a government can stigmatize as terrorism something it doesn’t like, for instance, political movement or minorities, or indigenous groups, or trade unions and that is one of the major problems in my work as special rapporteur on human rights and counter terrorism, that all too many governments in the world continue to abuse the notion of terrorism to stigmatize groups that do not properly fit under that notion.

Sandro Cruz: Do you think that the concept of terrorism is being used by some states for political interests?

Martin Scheinin: It is quite clear that in very many countries the notion of terrorism is being used for political purposes to stigmatize political opponents and this takes many forms; one form is that there are isolated individual acts of terrorism by some groups or some individuals, but the government uses it then to dub broad groupings, broad political movements, broad ethnic groups as terrorists without any foundations. That is one form, and the other is when a government is simply trying to get away with the persecution of its opponents by calling them terrorists, even though never there was any single act of terrorism. Those two cases refer to the overly broad use of the notion of terrorism.

Sandro Cruz: And what is your personal assessment of state terrorism?

Martin Scheinin: Well, to me the acts are decisive. Whoever commits an act of terrorism is a terrorist; that is attacks against members of the general population with deadly or other serious kind of violence for political purposes, such as compelling a government or an international organization to do something, or to terrorize the general population. I see that states can be involved in acts of terrorism; they can also be in the background recruiting or financing a terrorist group to commit a terrorist attack. I don’t think there should be any difference in the response, whether it is a state actor or a non-state actor, the acts are decisive and whoever commits them is a terrorist.

Sandro Cruz: Could you give me some examples of state terrorism at present?

Martin Scheinin: Well, we can look at the past, where of course there are indications of some states, governments being behind terrorist attacks at least in the form of financing or otherwise facilitating the acts of terrorism.

Sandro Cruz: But, could you mention some countries in this regard?

Martin Scheinin: I would not cite particular countries.

Sandro Cruz: And as to the situation in Latin America, where the name of Luis Posada Carriles is well known. Could you give me your opinion on that specific case?

Martin Scheinin: I am not a criminal court, so I don’t want to make any assessment of individual guilt; it is for states to find the evidence, investigate a crime, prosecute and their courts apply the punishment. But of course this is varying if there is a selective approach, so that even a country such as the United States, which otherwise is very strict on terrorism, would look through its fingers in respect of particular forms of terrorism or particular individuals that on good grounds are suspected of having committed acts of terrorism.
I raised this issue, this case with US authorities during my visit there and I don’t have a response that I could express as my position, but at least I can say that the case was discussed.

Sandro Cruz: Many humanitarian organizations are now talking the detention center at the US naval base in Guantanamo, Cuba. What is your personal opinion on that issue?

Martin Scheinin: The issue of Guantanamo was high on my visit’s agenda to the United States and my press statements include various issues in relation to the Guantanamo Base detainees and I will also address the issue in my final report to the Human Rights Council. There are many legal issues involved; one of them relates to the conditions of detention, methods of interrogation of the Guantanamo detainees. I am focusing primarily on two other issues. One of them is the legal status of the Guantanamo detainees, on what grounds they are being held there, on what grounds they are being prosecuted if they are, and then the other one is the closure of Guantanamo.

I am quite critical of the Military Commissions Act, which was created to provide a legal basis for trying the Guantanamo base suspects. But at the moment it looks like that the legal system has become so contradictory that the military commissions will not be able to do their job about trying the Guantanamo base detainees. In a sense, we are back in square one; they are held there without a proper basis in international or US domestic law for a very long time and this means that it has become a form of arbitrary detention.

As to the closure of Guantanamo, I do recommend getting rid of this legal black hole as soon as possible and I specifically emphasize that as the United State has created this situation, this primary leaves possibilities for them to find a solution.

Many of the people who are not being prosecuted and that are eligible for release can not be returned home because of their fear of torture or persecution, and there, I recommend that the United States invites the UN High Commissioner for Refugees to make refugees status determination in order to then recommend other third countries that they be willing to receive some of the Guantanamo Base detainees.

Sandro Cruz: The European press has been talking about the secret CIA flights and there is an investigation into the issue.

Martin Scheinin: Yes, I was heard by the temporary ad-hoc committee of the European Parliament on secret flights, secret prisons. I was not able to provide any additional factual information, but I could add some specific legal issues into their discussion and in my future reports I will address the CIA program of extraordinary rendition and secret places of detention, so-called classified locations.

It is my assessment that the United States has not abandoned this program, but it is likely to continue in new forms; there are roughly forty individuals that are known to have been in detention by the CIA and quite likely the old program of secret prisons has been replaced by a new form of the same program which would be the so-called proxy detentions, other countries temporarily taking control of the persons on behalf of the United States, on behalf of the CIA.

Many NGOs are suggesting that Africa has now became the main location of those secret prisons, and various countries have been mentioned, those in northern Africa like Morocco and in eastern African Djibouti; I do not want to list all the countries that have been mentioned, but those two examples.

Sandro Cruz: After 9/11, the United States launched what they called a long global war on terror. What is your opinion on that?

Martin Scheinin: My assessment, which is not an official assessment as special rapporteur, is that there is not such a thing as a global war against terrorism. There may have been temporary situations where the fight against terrorist groups qualifies as an armed conflict under the Geneva Conventions or its protocols too, either we are speaking on an international armed conflict, which was for a short while the situation in the armed conflict between the United States and the Taliban regime of Afghanistan, that was an international armed conflict. And then we might have non-international armed conflicts between one state or several states on one side and an army on the other, a terrorist group that is organized in a manner that it qualifies as an armed force.

There may be pockets of that kind of a situation, but I don’t see the global war between states and Al Qaeda as anything more than a metaphor. I don’t see Al Qaeda as qualifying as a global army that could be party of a global, never-ending armed conflict. Maybe there are pockets of that kind of situation when we speak of a more strictly defined hierarchical organized group and concrete acts of violence, but generally it is not that situation.

In overall developments, I think world globalization is important because globalization entails that states actually have lost part of their control over what’s happening in the world; other actors are increasingly important, such as multinational corporations, international financial institutions, other intergovernmental organizations and finally cross border criminal organizations including violent criminal organizations, such as terrorist groups, they have become actors of their own power across national borders and states have lost terrain as to whether they can control events over the world. This is why new forms of international terrorism are more dangerous than the previous ones, but it should not make us conclude that there is a never-ending, global, armed conflict that qualifies as a war. I don’t think we are there, I don’t think we are getting there, I think it is still a question of crime and fighting crime at the international level.

Sandro Cruz: Thank you very much Mr. Martin Scheinin for answer this questions.

Martin Scheinin was born November 4, 1954 in Helsinki, Finland. He is a Law professor of the Abo Akademi University in Finland. He was appointed United Nations Special Rapporteur on the protection and promotion of human Rights and Fundamental Freedoms while countering Terrorism for the period 2005-2008.

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