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Rights and threats

Apr 02,2016 - Last updated at Apr 02,2016

If there is an international consensus that terrorism has become endemic across the globe and its treatment requires effective response, then nations may want to lower the threshold of respect for civil and political rights for a certain period of time till the danger ceases, subsides or can be kept under control.

I am basing this view on the rationale of Article 4 of the International Covenant on Civil and Political Rights, which stipulates that “in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the state 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…”

Of course, there are limitations on this right to derogate from principles of human rights recognised worldwide.

The second paragraph of the same Article 4 says that “no derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15,16 and 18 shall be allowed”, meaning emergency or non emergency, there are some basic human rights that must be observed at all times.

These are the basic civil and political rights and no derogation from them is allowed under any condition. All other rights, however, can be temporarily put in deep freeze, pending the termination of the public emergency. 

Article 6 of the same covenant talks about the right to life, of which no one can be deprived in an arbitrary way, such as by applying the death penalty in a summary way or without the due process of the law.

Paragraph 2 of the same provision calls on countries to abolish the death penalty even during a state of emergency, but if they do, maintain the extreme punishment, limiting it to the most serious crimes.

In any case, the death sentence may not be applied on persons under the age of 18 or carried out on pregnant women, under no circumstances.

Article 7 prohibits torture or cruel, inhuman or degrading treatment or punishment, including in an emergency situations.

These basic human rights are now jus cogens in international law and must be observed under all situations, including in an emergency.

Article 8 prohibits slavery or slavery-like practices, including all contemporary forms of slavery, like trafficking in persons.

Compulsory labour is also outlawed, while Article 11 outlaws imprisonment for failure to fulfil a contractual obligation, Article 15 prohibits criminal accountability of an act or omission which did not constitute a criminal offence at the time it was committed and Article 18 gives persons the right to freedom of thought, conscience or religion.

These are the only limitations on the extent that a country may derogate from its human rights obligations during a state of war or emergency.

A country may suspend all other human rights or derogate from them during a state of emergency, and these would include holding elections, freedom of expression and administrative detention.

 

The extent to which governments would go to restrict respect of human rights on the basis of Article 4 of the Covenant on Civil and Political Rights is a policy decision that depends on the nature of the treat it is facing.

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