2. States of Emergency; Counter-terrorism Measures

• ICCPR article 4• 1 . In time of public emergency which threatens the

life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

• 2. [List of non-derogable rights ]• 3. [Requirement of international notification]

State of emergency under regional human rights treaties

• ECHR article 15• No reference to non-discrimination• Shortest list of non-derogable rights• Doctrine of “margin of appreciation”

• IACHR article 27• Longest list plus: “… or of the judicial

guarantees essential for the protection of such rights”

• “… provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin”

General Comment No. 29

• 3-5. Restrictive interpretation of emergency and derogation

• 7. Non-derogable rights• 6, 8, 13 Protection of rights that are subject to

derogation• Concluding observations on Israel (1998): 21. The

Committee stresses… that a State party may not depart from the requirement of effective judicial review of detention. (CCPR/C/79/Add.93)

• 9-12. Taking seriously other international obligations

• 14-16. Role of procedural guarantees

Relationship between human rights law and humanitarian law

• Inter arma silent leges? Not accepted.• “Old school”: humanitarian law is lex specialis

• A construction of derogation: human rights would cease to apply• Usually, the notion of lex specialis is used more vaguely

• The derogation clauses show that this is not the case; parallel applicability is the prevailing view• Concluding observations on Israel (1998): 10… In response to the

arguments presented by the delegation, the Committee emphasizes that the applicability of rules of humanitarian law does not by itself impede the application of the Covenant or the accountability of the State under article 2, paragraph 1, for the actions of its authorities…

• The problem of a “gray zone” • The high threshold for the applicability of humanitarian law and the

short list of non-derogable rights are the real problems• the project on fundamental standards of humanity (Turku Declaration)

IHL as lex specialis?• HRC General Comment No. 31

• 11. As implied in General Comment 29, the Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applic-able. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive.

• ECHR in Bankovic and Others v. Belgium and Others• Had the drafters of the Convention wished to ensure

jurisdiction as extensive as that advocated by the applicants, they could have adopted a text the same as or similar to the contemporaneous Articles 1 of the four Geneva Conventions of 1949 (para. 75). (“to respect and to ensure respect for the present Convention in all circumstances”)

Advisory Opinions by the International Court of Justice

• Legality of the Threat or Use of Nuclear Weapons (1996): The ICCPR remains applicable in times of war, “except by operation of Article 4”. “The test of what is an arbitrary deprivation of life … falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict… designed to regulate the conduct of hostilities.” (para 24)

• Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004): ”As regards the rel-ationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanit-arian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.” (para. 106)

Fundamental Standards of Humanity and the Problem of “Gaps”

• 1. Application gap as to the circumstances (threshold of IHL)

• 2. Ratification gap (Protocol II + Asia)• 3. Substantive gap (derogation)• 4. Application gap as to the duty-

bearers (non-state actors)• 5. Effectiveness gap (implementation)

Fundamental Standardsof Humanity

• Turku Declaration on Minimum Humanitarian Standards 1990

• existing norms “do not adequately protect”• all situations and all parties covered• identification of fundamental rights of the

human being, derived from a number of sources

• nature of the exercise: Standard-setting? Codification? Identification? Education?

• Implementation is the real problem• Is there any momentum within the Human

Rights Council?• Report by the SR on HR and CT

The “grey zone” or “substantive gap”

90%

30%

60%

GC I-IV, common article 3

Protocol II

GC I-IV

ICCPR art 4 (2)

Protection of human rights

severity of situation

The Turku Declaration

90%

30%

60%

GC I-IV, common article 3

Protocol II

GC I-IV

ICCPR art 4 (2)

Protection of human rights

severity of situation

Addressing the substantive gap

90%

30%

60%

GC I-IV, common article 3

Protocol II

GC I-IV

ICCPR art 4 (2)

protection

severity of situation

HRC General Comment No. 29: necessity, proportionality, compliance with other international obligations

ICRC customarylawstudy

What is terrorism?• 13 international conventions on specific forms of terrorism

• International criminal law in the broad sense• Compare: crimes mentioned in the ICJ Statute (international

criminal law in the strict sense)• The absence of an internationally agreed definition

• States may stigmatize as terrorism whatever they do not like, such as political opposition, religious movements, autonomy aspirations by regional or ethnic minorities, even the use of a minority language

• The international community, when urging states to take effective measures against terrorism without defining it, may end up legitimizing the abuse of the notion of terrorism by states

• For defining terrorism, the methods/means are more important than the aims; terrorism is about tactics• The aims are often not distinguishable from non-violent forms of

pursuing political aspirations, or from non-terrorist violence• No aim justifies morally unjustifiable methods, such as attacks

against innocent bystanders (”civilians”)

Is terrorism a threat to the life of the nation?

• Dimension of severity• Massive attack on the civilian population (e.g. 9/11)

• Geographical dimension• USA, UK and other countries• The US did not notify of derogation, the UK did

• The US denies extraterritorial effect of HR treaties and tries to exclude unlawful enemy combatants from IHL

• Temporal dimension• Permanent nature of the “war on terror”

• Application by analogy: derogation from human rights in respect of certain individuals• Lawlessness/rule of law

Human rights law as a substitute ”definition”

• The requirement of legality in criminal law (ICCPR art 15)• Non-retroactivity• Prescribed by publicly available laws (enacted by

Parliament)• Precision in defining the elements of crime• Foreseeability of application• Defining the applicable penalties

• Nondiscrimination (ICCPR art 26)• Checklist for national definitions of terrorism

Human rights often affected in the fight against terrorism

• The prohibition against torture and inhuman treatment (ICCPR art 7 and 10)

• The right to a fair trial (art 14)• The prohibition against arbitrary detention

(9)• The right to leave one’s own country and

the right to seek asylum (ICCPR 12-13, Refugee Convention)

• The prohibition against discrimination (inter alia, profiling) (ICCPR art 26)

• Freedom of religion, freedom of expression, freedom of association (arts 18, 19, 21, 22)

• The right to privacy (art 17)

Human rights affected in the fight against terrorism

Fr. of Expression

Right to Privacy

Pr.ag.Torture

How torture is being justified

• ”The ticking bomb scenario”• Factually, legally and morally flawed

• Redefining torture• ”Moderate physical pressure”

• Moving torture offshore• Denial of extraterritorial human rights obligations• Denial of the applicability of IHL• Outsourcing torture/torture by proxy• Compromising non-refoulement

• ”Balancing test”/real risk (Suresh and Ahani)• Diplomatic assurances (Agiza and forthcoming HRC

case)

Secret detention and extraordinary renditions• Issue of ”secret prisons” in Europe

• PACE: study by Dick Marty• CoE: Secretary-General’s questions• EP: ad hoc committee• Venice Commission report• EU Network of independent experts on

fundamental rights• Extraordinary rendition

• Involvement of European states (transit etc)• EU – US Extradition Agreement 2003

• Accompanied by amending protocols to existing bilateral extradition treaties with the US

• Article 12 on ”transfer”• Pending before national parliaments

Some resolutions by the UN Security Council

• 1373 (28 Sep 2001) acting under Chapter VII of the Charter• Reaffirming further that such acts, like any act of international

terrorism, constitute a threat to international peace and security,• 6 establishes the Counter-Terrorism Committee (CTC)

• 1456 (20 Jan 2003) meeting at the level of ministers for foreign affairs• 6 States must ensure that any measure taken to combat

terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law;

• 1566 (8 Oct 2004) acting under Chapter VII of the Charter• 3 defining elements of terrorism• 7 requests the CTC to develop a set of best practices

• 1624 (14 Sep 2005)• 1-3 new measures to combat terrorism, including prohibiting and

preventing incitement to terrorism• 4 compliance with international law (as in res. 1456)• 5 new mandate to the CTC to monitor the implementation of this

resolution

Do counter-terrorism obligations trump human rights?

• Security Council resolutions under Chapter VII of the UN Charter are mandatory

• Article 103 of the Charter: obligations under the Charter prevail in case of conflict• Are human rights treaties suspended? Derogation?

• The Charter has its human rights clauses and the Security Council must respect the principles of the Charter (art. 23-24)• States cannot delegate powers they don’t have

• Many of the counter-terrorism resolutions include a clause that states must respect HR• Enactment/implementation, and external review,

e.g. in the issue of sanctions lists (SR report to GA)

Experiences from the HRC’s reporting procedure after 9/11

• October 2001: UK report and the argument under Charter Art. 103

• March 2002: systematic questioning on post-September-11 measures, incl. Sweden

• July 2002: ex officio review of reports subitted under SC Res. 1373 by the appearing States • New Zealand as a pilot case

• July 2006: the United States• CCPR/C/USA/CO/3

Extraterritorial effect of human rights treaties

• Eur.Court of HR: Bankovic and Others v. Belgium et al. (2001)• High altitude bombings not “effective control”, not exercise of jurisdiction; at

least when a population not previously under the protection of the ECHR• Compare: Ilascu and Others v. Moldova and the Russian Federation (2004)

• HRC: Concluding Observations on Israel (1998 and 2003)• the Covenant applicable to the occupied territories and other areas where Israel

exercises effective control (CCPR/C/79/Add.93) • the provisions of the Covenant apply to the benefit of the population of the

Occupied Territories, for all conduct by [Israel’s] authorities or agents in those territories that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of state responsibility of Israel under the principles of public international law (CCPR/CO/78/ISR)

• HRC: Lopez Burgos v. Uruguay (1981)• Abduction by State agents on foreign soil falls under State responsibility and the

jurisdiction of the HRC

• HRC: Concluding Observations on Iran (1993)• Fatwa on Salman Rushdie and threats to execute it outside Iran

General Comment No. 31 (2004)

• 10. States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party. As indicated in General Comment 15 adopted at the twenty-seventh session (1986), the enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party. This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation.