Terrorism and Human Rights in Spain: Comments on a Report of Human Rights Watch

por Juan Avilés, 23 de febrero de 2005

Last January Human Rights Watch has published a report entitled “Setting an example? Counter-Terrorism Measures in Spain” (available on line). After condemning the horrific March 11 bombings it states that “legitimate and effective action against terrorism must, however, be carried out with due respect to fundamental laws”.  I entirely agree with this statement. The monitoring of the fight against terrorism by respected NGOs such as HRW is therefore very convenient and its report on Spain should be carefully considered. It points to important questions that cannot be ignored but unfortunately it presents also a bias that should be criticised.
It seems to me that the most important conclusions of the report are the following:
•         After the March 11 bombings there has not been an increase in hate crimes against Moroccan or other Muslims. In an interview with HRW Mustapha M’Rabet, president of the Association of Moroccan Workers and Immigrants in Spain, said that “the reaction has overall been exemplary, that of a society that knows how to distinguish between a few terrorist and a community”.
•         “Law enforcement agencies do not appear to have engaged in widespread, indiscriminate police actions in the Moroccan community”.
•         HRW “did not hear any allegations of torture” of the defendants arrested in November 2001 as alleged members of an Al Qaeda cell connected with the 11/9 attacks in the USA, nor of those arrested in connection with the 11/3 attacks in Madrid.
•         “The new Zapatero government sees itself as a leader in the effort to combine effective antiterrorism efforts with respect for human rights”.
None of this is new. Nevertheless the fact that HRW had confirmed the moderation of the Spanish society and the Spanish authorities after such an outrage as the 11/3 bombings is good news. It would seem that Spain is really setting a good example in the fight against terrorism. This is not however what the report suggests. None of the conclusions that I have highlighted are in fact included in the executive summary of the report.
The concern of HRW is that some of the counter-terrorism measures that Spain has adopted during its long fight against ETA terrorists and now uses against Al Qaeda and other practitioners of the terrorist yihad could infringe the rights of those arrested with charges of terrorism. Therefore it recommends many changes, both in law and practice.
The main concerns of HRW regard the following questions.
a)         HRW admits that there is no prohibition under international law of incommunicado detention per se, but it criticises the fact that in Spain detainees could, in the most dangerous cases, be held incommunicado for up to thirteen days. On the other hand the Spanish authorities have stated that this avoids destruction of relevant evidence and the flight of accomplices. In the fight against such an enemy as the Al Qaeda global network it seems to me that incommunicado detention for less than two weeks is not an unfounded or unnecessary measure. Forensic medical officers assure the protection of detainees form the danger of torture during this period.
b)        HRW criticises the common use in terrorist cases of secret legal proceedings, which restricts access by defence attorneys to the evidence collected in an ongoing investigation. However the Spanish Constitutional Court has ruled that secret legal proceedings do not violate the constitutional right to defence. In fact the defence has unlimited access to the evidence from the moment the investigation ends. In cases as those of the 11/9 Spanish Al Qaeda cell or the 11/3 bombings, with so many connections with the global terror network, an early disclosure could severely hamper the investigation.
c)         HRW admits that international human rights law does not specify a maximum allowable period of detention before trial, and that the complexity, breadth, and international dimensions of the legal procedures against the Spanish Al Qaeda cell, seven of whose alleged members have been in pre-trial detention since November 2001, are undeniable. Nevertheless it recommends that the extension of pre-trial detention up to four years, the legal maximum in Spain, should be “highly exceptional” and it implies that it shouldn’t be applied to some of the defendants in this case. But if you consider that the Spanish Al Qaeda cell is accused of complicity in the 11/9 attacks, you can possibly think otherwise.
d)        HRW complains about the conditions in which allegedly 11/3 suspects were held incommunicado. It criticises the solitary confinement in which Al Qaeda inmates were held for some time after the 11/3 attacks. And finally it criticises the dispersal of inmates in various prisons, away from their family and lawyers. This last criticism is worth commenting. Since 1989 Spain has implemented the dispersal of ETA inmates in order to avoid large concentrations in the same prison, to break their control by ETA and to prevent the planning of new crimes inside the prisons. It seems that all of these arguments apply also to Al Qaeda inmates.
Perhaps some of the HRW recommendations are worth considering, but if all of them should be adopted the result would be an important reduction in the effectiveness of the counter-terrorism measures and therefore a greater probability of new terrorist atrocities. It seems to me that this report, like some others, does not consider the major question of terrorism and human rights, but focuses in the specific question of the rights of suspected terrorists. Therefore the difficult balance between the need to protect the right to life, freedom and security of the population at large and the need to respect the fundamental human rights of even the terrorists is altogether forgotten. If the utmost protection to the defendants could be assured, all would be right for HRW, regardless of the consequences that this could have on the human rights of future victims. 
Finally I have a last remark on the vocabulary used in the report. It includes a reference to “judicial investigations into international terrorism”, who covers both the investigation into the 11/3 attacks and the previous investigation into the Spanish Al Qaeda cell. It seems therefore that for HRW international terrorism does exist. Oddly enough it is not clear that it also considers ETA as a terrorist organization. In fact the word terrorism is never employed in connection with ETA. In that case what it finds is “internal political violence” or “Basque separatist violence”. And it states that the Spanish Supreme Court permanently banned “the Basque political party Batasuna”, without mentioning that it was banned because the Court assumed that it was a part of the terrorist network headed by ETA. It was not a political party it was a political wing of a terrorist organization. By concealing this to the readers of its report Human Right Watch presents a distorted image of the Spanish policy, which both under the Zapatero government and under its predecessor the Aznar government, has truly combined effective counter-terrorism efforts with respect for human rights.