Terrorist attacks or the threat of terrorist attacks have been recognized as situations that “threaten the life of the nation.” The aim of terrorist attacks is to use violence, intimidation and fear to achieve ideological or political goals. As such, they can endanger the physical safety of people, government institutions or officials and disrupt the normal functioning of society.
Activities of terrorist groups or the threat of serious terrorist attack does not have to cover the entire territory of the state. Even where the threat only concerns one region of the state, it can justify derogation from human rights. In such case, the state will have to justify the necessity of all measures, including those that apply outside that region.
note The threat of serious terrorist attacks must be sufficiently demonstrated and measures taken in response must be used to strictly address that threat. The threat of terrorism cannot be used to declare civil society, activists, or political opponents as terrorists or supporters of terrorism and to interfere with their work. It also cannot be used to exercise police control over the general population or over specific groups of people such as foreign nationals, racialized communities or other groups on discriminatory grounds.
Restrictive measures
States may take a number of measures to address the risk of serious terrorist attack. These measures often relate to deprivation of liberty by extending the grounds for detention or maximum periods of detention. States also often restrict freedom of movement or residence and expand the surveillance and investigative powers of law-enforcement authorities, derogating from the right to private life. All measures must be necessary and proportional to the threat presented by the emergency.
example Following a terrorist attack state, a may derogate from the right to private life, home and correspondence and adopt measures such as search and seizure powers without a court order or extend surveillance powers. These measures cannot be arbitrarily used against people about whom there is no evidence that they are connected to terrorist activities or to carry out mass surveillance over the general population.
Emergency measures must also be effective in addressing the threat and their application cannot be expanded arbitrarily.
example Following a terrorist attack, a state may derogate from the right to liberty by extending the maximum period of detention. However, these extensions must be justified and proportional. Indefinite detention without the possibility of judicial review is likely to be disproportionate and violate the right to liberty, even in an emergency.
Exceptional nature of restrictive measures
Investigations to prevent terrorist attacks or to track down terrorist organizations are part of the ongoing work of law-enforcement authorities. Normal day-to-day investigative activities should not be confused with emergency measures. Normal investigative activities have to fully comply with human rights.
Derogation from human rights and measures taken in response to terrorist activities or the serious risk of terrorist attacks are exceptional and should not be expanded or integrated as a permanent part of the fight against terrorism. Derogation suspends human rights obligations, and should, therefore, be used only to respond to the emergency and only to the extent that they are absolutely necessary to tackle the emergency. Any derogation should apply only as long as the emergency persists and as long as this required due to normal measures not being effective.
All emergency measures, including whether a terrorist threat is still sufficiently serious to justify derogation, must be regularly reviewed.
Non-discrimination
Derogation and measures taken in response to a terrorist threat cannot be discriminatory. This means that the measures adopted by a state have to genuinely address the risks faced and they cannot apply only to certain groups of people based on their nationality, residence status, religious beliefs or other similar grounds.
example As a response to a terrorist threat, states often derogate from the right to liberty by extending the grounds for detention or maximum periods of detention. Such measures cannot apply only to certain groups of people, such as terrorism suspects who are non-nationals or people of a certain religion, when they do not apply also to suspects who are nationals of the country.