A fine line

No one can blame the government of France for taking some draconian measures after the appalling terrorist attacks that occurred on its soil more than a week ago.

The counterterrorism actions ordered by French President Francois Hollande include the declaration of a state of emergency, revocation of the citizenship of citizens implicated in acts of terrorism, putting some suspects under house arrest and even applying stricter border controls.

These legitimate steps beg the question whether the pendulum of civil and political rights has swung too far in favour of the individual at the expense of the collective rights of people to law and order and, above all, security and safety.

The only legitimate guidance the international community has on this question can be found in Article 4 of the universally ratified International Covenant on Civil and Political Rights (ICCPR), which stipulates 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 obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin”.

The second paragraph of the same article goes on to state that “no derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16, and 18 may be made under this provision”.

Article 6 referred to above is about the right to life and the restricted resort to the death penalty and Article 7 is about the prohibition of torture, cruel, inhuman or degrading treatment of punishment.

Article 8 is about the prohibition of slavery. Article 11 is against imprisonment on the ground of inability to fulfil a contractual obligation.

Article 15 is against the retroactive application of anti-crime laws. Article 16 calls for the right of recognition of everyone as a person.

And finally, Article 18 is about the right to freedom of thought, conscience and religion.

It can be argued, therefore, that none of the restrictions on the derogation of rights that a state may invoke in an emergency would delegitimise the measures adopted and applied by France.

That said, the underlying question of whether individual human rights must be allowed to jeopardise the collective rights of peoples to safety and security remains an open policy issue over and above what the ICCPR states. 

In these troubling times, when terrorism, extremism and radicalism are on the rise, it would be fair to say that an equitable equilibrium must be drawn between individual and collective human rights.

Where to draw this magical line requires much thought and deliberation by the international community in a special forum that can be convened in the near future.