For legal research purposes, I wish to share with the readers some thoughts on the matter of “the administration of justice during states of emergency”, based on the human rights library manual of the
In this respect, the relevant universal human rights legal instruments that should be studied are the International Covenant on Civil and Political Rights, 1966; the International Covenant on Economic, Social, and Cultural Rights, 1966; the International Convention on the Elimination of All Forms of Racial Discrimination, 1965; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984; the Convention on the Elimination of All Forms of Discrimination against Women, 1979; and the Convention on the Rights of the Child, 1989 Regional Instruments.
Article 4(1) of the International Covenant on Civil and Political Rights provides that: “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, color, sex, language, religion or social origin.”
The derogation provision strikes a balance between the needs of the State and the right of individuals to have most of their rights and freedoms effectively protected in public emergencies, and to have guarantees that the exercise of other rights will not be subjected to undue limitations.
The right to derogate is a flexible instrument designed to help Governments to overcome exceptional crisis situations. The right to derogate does not mean that the derogating State can escape its treaty obligations at will. It is a right that is circumscribed by several conditions such as the principle of non-derogability of certain rights, the principle of strict necessity and the principle of international notification.
With regard to the purpose of derogation, the UN Human Rights Committee hold that the restoration of a state of normalcy where full respect for the Covenant can again be secured must be the predominant objective of a State party derogating from the Covenant. This means that, whenever the purpose of the derogation is alien to the restoration of a constitutional order respectful of human rights, it is unlawful under article 4(1) of the Convention and the actions of the State concerned have to be judged in the light of its ordinary treaty obligations.
A state party must comply with “two fundamental conditions” before invoking article 4(1) of the Covenant, namely (1) “the situation must amount to a public emergency which threatens the life of the nation” and (2) “the State party must have officially proclaimed a state of emergency”.
The latter requirement, according to the Committee, is essential for the maintenance of the principles of legality and the rule of law at times when they are most needed. When proclaiming a state of emergency with consequences that could entail derogation from any provision of the Covenant, States must act within their constitutional and other provisions of law that govern such proclamation and the exercise of emergency powers; it is the task of the Committee to monitor that the laws in question enable and secure compliance with article 4.
The Covenant requires that even during an armed conflict measures derogating from the Covenant are allowed only if and to the extent that the situation constitutes a threat to the life of the nation. If States parties consider invoking article 4 in other situations than an armed conflict, they should carefully consider the justification why such a measure is necessary and legitimate in the circumstances.
The structure of derogation provisions may lead to the belief that the only rights from which no derogations can be made are those enumerated in article 4(2) of
the International Covenant. However, the field of non-derogability also covers, for instance, rights and obligations that are inherent in international human rights law as a whole or guaranteed under international humanitarian law. In spite of their non-derogability, human rights such as the right to life and the right to freedom from torture and other forms of ill-treatment are frequently violated.
It is regrettable that, as repeatedly noted with concern by the Human Rights Committee, the domestic law of the States parties to the International Covenant on Civil and Political Rights does not always meet the requirements of article 4(2) and thus fails to provide absolute legal protection for some human rights in times of crisis.
Article 4(2) of the International Covenant stipulates that: “No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.”
The articles enumerated in this provision protect the following rights:
the right to life; the right to freedom from torture, cruel, inhuman and degrading treatment or punishment, and medical or scientific experimentation without one’s free consent; the right to freedom from slavery, the slave trade and servitude; the right not to be imprisoned on the ground of inability to fulfil a contractual obligation; the right not to be subjected to retroactive legislation (ex post facto laws); the right to recognition as a person before the law; the right to freedom of thought, conscience and religion; andthe right not to be subjected to the death penalty under the Second Optional Protocol.
The fundamental right to life is non-derogable, which means that it must be protected by law and that no person may at any time be arbitrarily killed except “when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection”.
It must be stressed that states must at all times take positive steps to protect the right to life. States must at no time participate in, or condone, the arbitrary or extrajudicial taking of human life. Even in public emergencies threatening the life of the nation, States have a strict legal duty to prevent, investigate, prosecute, punish and redress violations of the right to life.
The right to freedom from torture or other forms of ill-treatment is also non-derogable in all three treaties (article 7 of the International Covenant). This means that States may at no time resort to torture or to cruel, inhuman or degrading treatment or punishment in order, for instance, to punish or to extract confessions or information from suspected terrorists or other offenders. The State must remain as the guarantor of human rights, including the rights of people deprived of their liberty, and is thus also responsible for the conditions in detention establishments.
The right to freedom from slavery and servitude is non-derogable under the International Covenant (arts. 4(2) and 8(1) and (2)). Article 8(1) of the International Covenant specifies that “slavery and the slave-trade in all their forms shall be prohibited”.
It is also noteworthy that, under articles 34 and 35 of the Convention on the Rights of the Child, which contains no derogation provision, the States parties have a legal duty both to protect children from sexual exploitation and abuse and “to prevent the abduction of, the sale of or traffic in children for any purpose or in any form”.
These legal obligations are reinforced by the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, which entered into force on 18 January 2002.
Slavery, the slave trade, servitude, and trafficking in women and children are strictly prohibited at all times, including in public emergencies threatening the life of the nation. Even in times of armed conflict or in other kinds of emergencies, States are therefore under a legal obligation to take positive measures to prevent, investigate, prosecute and punish such unlawful practices as well as to provide redress to the victims.
The right not to be held guilty of any criminal offence on account of an act or omission that did not constitute a criminal offence when committed is guaranteed by
article 15(1) of the International Covenant. Although the temptation may be considerable in crisis situations to introduce retroactive legislation to deal with particularly reprehensible acts, this is strictly forbidden under international human rights law. The purpose of this essential rule is obvious: a person must be able to foresee at any given time – including in emergency situations – the consequences of any specific action, including possible penal prosecution and associated sanctions (the principle of foreseeability). Any other situation would entail intolerable legal insecurity in a State governed by the rule of law, which presupposes respect for human rights. Article 15(2) of the International Covenant nonetheless makes an exception for “the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations”.
Everybody’s right to freedom of thought, conscience and religion – including the freedom to hold beliefs – is non-derogable under article 18 of the International Covenant, read in conjunction with article 4(2). The limitations have to be “prescribed by law” and be “necessary to protect public safety, order, health, or morals or the (fundamental) rights and freedoms of others”. Limitations on the right to manifest one’s freedom of thought, conscience and religion must not therefore be imposed for any other reason, even in armed conflicts or other serious crisis situations. Under the International Covenant on Civil and Political Rights, the right to freedom of thought, conscience and religion must be guaranteed at all times and cannot be derogated from in any circumstances. In time of war or any other public emergency, the right to manifest one’s religion and beliefs must be determined exclusively by the ordinary limitation provisions.
Article 4(1) of the International Convent lays down the principle of strict proportionality, which means that, in a public emergency threatening the life of the nation, the derogating State may take measures derogating from its legal obligations only “to the extent strictly required by the exigencies of the situation”.
The Human Rights Committee has observed that the principle of strict proportionality is “a fundamental requirement for any measures derogating from the Covenant” and that it is a requirement that relates “to the duration, geographical coverage and material scope of the state of emergency and any measures of derogation resorted to because of the emergency.
The Human Rights Committee notes in General Comment No. 29 that article 2(3) of the International Covenant “requires a State party to the Covenant to provide
remedies for any violation of the provisions of the Covenant”.
Even if a State party, during a state of emergency, and to the extent that such measures are strictly required by the exigencies of the situation, may introduce adjustments to the practical functioning of their procedures governing judicial or other remedies, the State party must comply with the fundamental obligation, under article 2, paragraph 3, of the Covenant, to provide a remedy that is effective.
In other words, even in situations in which a State party concludes that a threat to the life of the nation requires it to derogate from its obligations under the Covenant, it remains legally bound to provide effective remedies to victims of human rights violations, including those who are victims of an excessive or wrongful application of emergency measures.
The legal duty of States to provide effective domestic remedies for violations of human rights remains in full force in public emergencies in respect of rights that have not been derogated from, including non-derogable rights that must be fully guaranteed at all times. To the extent that States resort to derogations from their obligations under human rights treaties, they have to provide effective remedies for the purpose of assessing the strict necessity of the emergency measures and preventing abuses both in general and in any given case.
The Human Rights Committee has stated unequivocally that States parties may in no circumstances invoke article 4 of the Covenant as justification for acting in
violation of humanitarian law or peremptory norms of international law, for instance, through arbitrary deprivations of liberty.
In other words, judicial remedies, such as the writ of habeas corpus, must be effectively available at all times.
As the right to a fair trial by a competent, independent and impartial tribunal is not made non-derogable expressis verbis either by the International Covenant, questions arise as to what elements of this fundamental right may be derogated from in states of emergency.
It is important to recall at the outset that Principle 5 of the United Nations Basic Principles on the
Moreover, while the Covenant does not prohibit military or special courts, “nevertheless the conditions which it lays down clearly indicate that the trying of civilians by such courts should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in article 14… If States parties decide in circumstances of a public emergency as contemplated by article 4 to derogate from normal procedures required under article 14, they should ensure that such derogations do not exceed those strictly required by the exigencies of the actual situation, and respect the other conditions in paragraph 1 of Article 14.”
With regard to international humanitarian law, the four Geneva Conventions of 1949 and the two Additional Protocols of 1977 provide a number of fundamental fair trial guarantees. Although the guarantees vary from treaty to treaty, they include such aspects of a fair trial as: the right to be tried by a court offering the essential guarantees of independence and impartiality; the right to have access to a lawyer; the right to an interpreter; the right of the accused to be informed without delay of the particulars of the offence alleged against him and the right before as well as during the trial to all necessary rights and means of defense; the right not to be convicted of an offence except on the basis of individual penal responsibility; the right to be tried in one’s presence; the right not to be compelled to testify against oneself; the right to examine, or to have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; the right to have the judgment pronounced publicly; the right to an appeal.
Every person has the right at all times to be tried by a court or tribunal which is competent, independent and impartial and which respects the right to a fair trial/due process guarantees as well as the right to be presumed innocent until proved guilty. Trials by special courts may not per se violate the right to a fair hearing/due process guarantees. However, vigilance is required to ensure that such courts comply with all basic requirements of a fair trial/due process guarantees, including the requirement that the court should be competent, independent and impartial. Like all regular courts, specially established tribunals must also strictly respect the principle of equality before the law and the prohibition of discrimination.
Military courts are not competent, a priori, to try civilians suspected of having committed criminal acts, since such courts are unlikely to dispense justice fairly, independently and impartially.
Article 4(1) of the International Covenant on Civil and Political Rights, article 27(1) of the American Convention on Human Rights and article 15(1) of the European Convention on Human Rights lay down the condition that derogatory measures must not be “inconsistent with” a State party’s “other obligations under international law”.
Article 4 of the Covenant cannot be read as a justification for derogation from the Covenant if such derogation would entail a breach of the State’s other obligations, whether based on treaty or general international law. This is reflected also in article 5, paragraph 2, of the Covenant according to which there shall be no restriction upon or derogation from any fundamental rights recognized in other instruments on the pretext that the Covenant does not recognize such rights or that it recognizes them to a lesser extent.”
When States parties make use of their right to derogate, they also have a legal obligation to comply with the regime of international notification.
Article 4(3) of the International Covenant reads as follows: “Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.”
The Human Rights Committee holds that “notification is essential not only for the discharge of the Committee’s functions, in particular in assessing whether the measures taken by the State party were strictly required by the exigencies of the situation, but also to permit other States parties to monitor compliance with the provisions of the Covenant”.
It emphasizes “the obligation of immediate international notification whenever a State party takes measures derogating from its obligations under the Covenant. The duty of the Committee to monitor the law and practice of a State party for its compliance with article 4 does not depend on whether that State has submitted a notification.”
In view of the “summary character” of many of the notifications received in the past, the Committee emphasizes that “the notification should include full information about the measures taken and a clear explanation of the reasons for them, with full documentation attached regarding the law. Additional notifications are required if the State party subsequently takes further measures under article 4, for instance by extending the duration of a state of emergency. The requirement of immediate notification applies equally in relation to the termination of derogation. These obligations have not always been respected.”
by:
LCM LAW, Las Pinas City
Philippines
