HUMAN RIGHTS Historical development of International Human Rights

HUMAN RIGHTS

Historical development of International Human Rights n. Events of WW 1 & 2 – violation of basic human rights by States n. Adoption of UN Charter

Preamble to UN Charter “We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom”

Article 1 of the UN Charter Article 1 provides as follows: “To achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedom for all without distinction as to race, sex, language, or religion…”

Adoption of UDHR n A political divergence of views between States on what rights could be guaranteed and enforced led to the splitting of the UDHR into two Covenants: n Universal Declaration of Human Rights 1948 (UDHR), often referred to as the Bill of Rights provides for comprehensive protection for all rights – civil, political, social, cultural and economic. n International Covenant on Civil & Political Rights 1966 [ICCPR] – 1 st Generation rights n International Covenant on Economic, Social and Cultural Rights 1966[ICESCR] – 2 nd Gen. rights

Regional Instruments n European Convention on Human Rights (1950) n American Convention on Human Rights (1978) n African (Banjul) Charter on Human and Peoples’ Rights (1981) n Asian Human Rights Charter n Arab League (emerging)

3 tiers of protection There are therefore 3 tiers for the protection and enforcement of IHRL: n. International n. Regional n. Municipal/Domestic

What are HR? /Nature of HR n Human Rights law encompasses 2 regimes: – International Human Rights Law [IHRL] – International Humanitarian Law [IHL] n IHRL is applicable during peace times and governs the relationship between the State and citizens or others within its jurisdiction or control n IHL applies during armed conflict

What comprises a State? n Essentially it covers all organs of the State, including its ‘agents’ – Government officials – Police – Prosecutors – Investigators – Courts

State Organs Conduct by State officials never takes place in a legal vacuum. Their actions are at all times governed by the law. Violations of which engage in certain circumstances, individual criminal responsibility.

Nature of Rights engaged in CT context Generally speaking the rights engaged within the context of any criminal investigation/prosecution would fall in the category of ‘civil & political rights’

Application of IHL to Terrorism n Generally speaking the International Humanitarian Law (IHL) is applicable during armed conflict; n Acts of terrorism represent a unique class of offences as they may engage the laws of armed conflict (e. g. of UK cases - Abu Hamza & El-Faisal)

Rights engaged (contd. ) n Right to life [Article 6 ICCPR, Article 4 African Charter] n Right not to be subjected to torture/cruel & inhumane treatment/punishment [Article 7 ICCPR, Article 5 African Charter] n Right to liberty & security [Article 9 ICCPR, Article 6 African Charter] n Right to fair trial [Article 14 ICCPR, Article 7 African Charter] n No punishment without law [Article 15 ICCPR, Article 7(2) African Charter]

Rights engaged (contd. ) n Right to privacy/family life [Article 17 ICCPR, Article 27 African Charter refers to family within the context of society as a whole] n Freedom of thought, conscience & religion [Article 18 ICCPR, Article 8 African Charter only relates to conscience and religion] n Freedom of expression [Article 19 ICCPR, Article 9 African Charter] n Freedom of association [Article 22 ICCPR, Article 10 African Charter]

Derogations Article 4 ICCPR permits a State to derogate from certain rights ‘in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, The State Parties…may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided such measures are not inconsistent with their other obligations under international law and do not involve discrimination. ” Similar provisions are found in Article 15 ECHR, Article 27 ACHR but the African Charter does not provide for any derogations

Derogations (contd) The criteria are therefore: n Threat to the life of the nation – different criteria under the various Conventions: – ICCPR: time of public emergency which threatens the life of the nation – ECHR: time of war or other public emergency threatening the life of the nation – ACHR: time of war, public danger, or other emergency that threatens the independence or security n Derogations must be officially proclaimed n Necessary and proportionate n Non-discrimination n Time-frame of derogations

Absolute/Restrictive Rights n Under IHRL some rights are considered to be so fundamental that a State cannot derogate from these rights under any circumstances. The two most significant absolute rights which are common to all IHRL instruments are: n Right to life – (which implicitly prohibits murder, crimes against humanity and genocide); and n Prohibition on torture A violation of these rights gives rise to individual criminal responsibility.

Absolute or non-derogable rights Other rights which are considered as absolute (non-derogable) rights are: ICCPR: n Prohibition on slavery n Imprisonment for contractual obligations n No punishment without due process of law n Recognition before the law n Freedom of thought, conscience and religion

Absolute/Non-derogable rights (cont’d) ECHR: n Prohibition on Slavery n No punishment ex post facto ACHR: n n n n n Recognition before the law Freedom from slavery Freedom from ex post facto laws Freedom of conscience and religion Rights of the family Right to a name Rights of the child Right to nationality right to participate in Government Judicial guarantees for the protection of these rights

Right to Life n Right to life imposes 3 basic obligations on States: 1. A negative obligation- not to take life; 2. A positive obligation- to take steps to preserve life; 3. A procedural obligation- to ensure an adequate & effective investigation into death alleged to have arisen at hands of agents of State or from State’s negligent failure to protect lives. A State must act of its own motion when matters are drawn to their attention

A ‘negative’ obligation n Death/killing by police officers/investigators (death in custody) – Mc. Cann [ECt. HR] n Agents of State inflicting violence/causing injury – Ozkan v Turkey [ECt. HR]

A ‘positive’ obligation R (Amin) v Sec of State for the Home Dept (HL, 2003) n Persons in custody are vulnerable, and authorities under a duty to protect. The obligation to account for the treatment of a prisoner is particularly stringent when that person dies n A systemic failure, resulting in death, may well call for even more anxious consideration n Investigation must be effective (i. e. capable of leading to a proper determination) n Person(s) responsible for and carrying out the investigation must be independent (i. e. a lack of hierarchical, institutional and practical connection) n Must be public scrutiny and involvement of family

A ‘procedural’ obligation n Independent investigation: where the death occurs in state custody, the burden is on the state, and it is a particularly stringent one, to account for the death: for it is the duty of the state to protect those in its custody - R (on the application of Al-Skeini and others) v Secretary of State for Defence

Torture/Cruel & inhuman treatment n Apart from IHRL & IHL, the Convention Against Torture [CAT] (1984) also applies; n CAT defines torture in Article 1 as: any act by which severe pain or suffering (physical/mental) is intentionally inflicted for the purposes of obtaining information or confession n Article 16 addresses ‘other acts of cruel, inhuman or dergrading treatment or punishment not amounting to torture…’

Confession evidence n Article 15 of CAT requires States to ensure that any statement made as a result of torture is not admitted as evidence in any proceedings; n Confession evidence: A & others v Secretary of State for Home Department [HL] [2005] n Interrogation methods: Supreme Court Judgment concerning the legality of GSS’ Interrogation methods (6 September 1999)

Conditions of detention n Conditions of detention: the special security imperatives in terrorism cases may permit persons detained to be subject to more stringent conditions than in other cases (eg more restricted access to information and exchange of information) but suspects must be treated with humanity and respect: – Ireland v UK

Deportation n Deportation to face torture in another State will amount to a breach of the prohibition against torture: Chahal v UK; n Deportation based on intelligence only and without sufficient safeguards or oversight - Arar (Canadian case)

Restrictive Rights IHRL permits States to restrict or limit certain rights to allow for public order/safety. However, such limitations must be: n Lawful n Necessary n Proportionate

Arbitrary Detention n. Arbitrary detention – R (on the application of Saadi) v Secretary of State for the Home Dept

Right to a Fair Trial n See, e. g, Art 7 of the African Charter and Art 6 of the ECHR n An absolute or restrictive right? n Equality of arms n An impartial tribunal n The opportunity to mount a ‘full’ and robust defence n Disclosure by the prosecution/Handling sensitive information

Right to Private/Personal Life n A ‘qualified’ right. n Must be a basis in domestic law for the breach, and that law must be clear and accessible. n Must be necessary (in a democratic society) n Must be a reasonable relationship of proportionality between the breach (e. g. covert means) used and the legitimate aim pursued. There must also be adequate and effective safeguards against the abuse of such methods.

Right to Private/Personal Life (contd) n E. g. the Belgium Privacy Commission ruled (Sept 2006) that the US surveillance program from the Belgium-based Society for Worldwide Interbank Financial Telecommunication (SWIFT) was illegal and criticised the handing over of information without due regard to the principle of proportionality, transparency and requirement for independent control and adequate protection

Consequences of non-compliance n “Principled consequences”: violations can lead to a criminal prosecution n “Practical consequences”: neglect or violation of human rights of individuals in the community, can lead to a breakdown in community relations and cycles of distrust and tension between law enforcement agencies and the community. n “Professional consequences”: Enforcement agencies should consider how history shows that a failure to self-regulate, can lead to public outcry and, as a consequence, the imposition of external, intrusive regulation by other agencies.

Quote Secretary-General of the Council of Europe, September 2002: “…The temptation for governments and parliaments in countries suffering from terrorist action is to fight fire with fire, setting aside the legal safeguards that exist in a democratic state. But…while the State has the right to employ to the full its arsenal of legal weapons to repress and prevent terrorist activities, it may not use indiscriminate measures which would only undermine the fundamental values they seek to protect. For a State to react in such a way would be to fall into the trap set by terrorism for democracy and the rule of law. It is precisely in situations of crisis, such as those brought about by terrorism, that respect for human rights is even more important, and that even greater vigilance is called for. ”

Quote UN Secretary General Kofi Annan, October 2002: “…to pursue security at the expense of human rights is short-sighted, self-contradictory, and (in the long run), selfdefeating. ”

Quote Commonwealth Heads of Government, 25 October 2001: “[In cooperating against terrorism in response to Security Council Resolution 1373]…our actions will reflect the fundamental values upon which the Commonwealth is based, including democracy, human rights, the rule of law, freedom of belief, freedom of political opinion, justice and equality…”

UNSCR 1456 United Nations Security Council Resolution 1456 (2003): “States must ensure that any measure taken to combat terrorism comply with all their obligations under international law…in particular, international refugee, human rights and humanitarian law. ”