Chapter 16

THE ADMINISTRATION OF JUSTICE DURING STATES OF EMERGENCY

Learning Objectives

_ To familiarize course participants with the specific legal rules that States are required to follow in derogating from international human rights obligations
_ To provide details of non-derogable rights and obligations
_ To familiarize the participants with the basic principles that apply to derogable rights
_ To create awareness among the participating judges, prosecutors and lawyers of their essential role as pillars of enforcement of the rule of law, including the protection of human rights, also in states of emergency
_ To stimulate discussion on, and awareness of, alternative conflict resolution measures

Questions

_ Is it possible in the legal system within which you work to derogate from, or suspend, the full enjoyment of human rights and fundamental freedoms?
_ If your answer is in the affirmative:
– In what circumstances can this be done?
– Which body decides?
– Which rights can be affected by a decision to derogate from, or suspend, the full enjoyment thereof?
_ If a state of emergency/state of exception/martial law, etc. is declared in the country in which you work, what remedies are available
– to challenge the decision to declare the state of emergency/state of exception/ state of alarm/state of siege/martial law, etc.?
– to challenge the decision to derogate from, or suspend, the full enjoyment of specific human rights?
– to examine the full enjoyment of non-derogable rights?
– to challenge the necessity of an emergency measure as applied in a specific case (e.g. extrajudicial deprivation of liberty for a suspected terrorist)?
_ In your view, what is, or should be, the purpose of the declaration of a state of emergency and the derogation from human rights obligations?
_ In your view, why could it be necessary to suspend the full enjoyment of human rights and fundamental freedoms in order to deal with a severe crisis situation?
_ Could there, in your view, be any reason why it might be counterproductive for a Government to suspend the full enjoyment of some human rights in order to deal with a severe crisis situation?
_ In your view, are there any human rights that might be particularly vulnerable in a crisis situation?
_ Might there, in your view, be means other than derogations from human rights obligations whereby States could deal constructively with a severe crisis situation?

Relevant Legal Instruments
Universal Instruments
_ International Covenant on Civil and Political Rights, 1966
_ International Covenant on Economic, Social, and Cultural Rights, 1966
_ International Convention on the Elimination of All Forms of Racial Discrimination, 1965
_ Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984
_ Convention on the Elimination of All Forms of Discrimination against Women, 1979
_ Convention on the Rights of the Child, 1989 Regional Instruments
_ African Charter on Human and Peoples’ Rights, 1981
_ American Convention on Human Rights, 1969
_ Inter-American Convention to Prevent and Punish Torture, 1985
_ Inter-American Convention on Forced Disappearance of Persons, 1994
_ European Convention on Human Rights, 1950
_ European Social Charter, 1961, and European Social Charter (Revised) 1996

1. Introduction

1.1 General introductory remarks

The present chapter will provide some basic information about the main legal principles in international human rights law that govern the right of States to take
measures derogating from their legal obligations in emergency situations. It is an undeniable fact of life that many States will at some stage be confronted with serious crisis situations, such as wars or other kinds of serious societal upheavals, and that in such situations they may consider it necessary, in order to restore
peace and order, to limit the enjoyment of individual rights and freedoms and possibly even to suspend their enjoyment altogether. The result may be disastrous not only for the persons affected by the restrictions but also for peace and justice in general. The drafters of the International Covenant on Civil and Political Rights, who had learned their lessons during a long and devastating war, knew all too well that recognition of human rights for all “is the foundation of freedom, justice and peace in the world”.1 However, they were not, of course, oblivious to the serious problems that may develop in a country and may endanger its very survival. They therefore included, after much debate – and only after including protections against abuse – a provision allowing States parties to resort to derogatory measures on certain strict conditions (art. 4). Similar provisions were included in the American Convention on Human Rights (art. 27) and the European Convention on Human Rights (art. 15). Contrary to the International Covenant on Economic, Social and Cultural Rights, which contains only a general limitation provision inspired by article 29 of the Universal Declaration of Human Rights, the European Social Charter envisages the possibility of derogation both in its original version (art. 30) and in its revised version (Part V, art. F). States may apply various terms to the special legal order introduced in crisis situations such as “state of exception”, “state of emergency”, “state of alarm”, “state of siege”, “martial law” and so forth. These exceptional situations often involve the introduction of special powers of arrest and detention, military tribunals and, for instance, the enactment of criminal laws that are applied retroactively and limit the right to freedom of expression, association and assembly. Worse, in many situations of upheaval, States have recourse to torture and other forms of ill-treatment to extract confessions and may also, with or without the help of private or semi-private groups, resort to abduction and extrajudicial killings. Furthermore, the right to have recourse to domestic remedies such as the writ of habeas corpus may be suspended, so that, for instance, victims of arbitrary arrest and detention are left without legal protection, with devastating results. This abusive use of extraordinary powers is not lawful under the aforementioned treaties. These treaties provide States parties with limited but flexible and well-balanced exceptional powers designed to restore a constitutional order in which human rights can again be fully ensured. The purpose of this chapter is therefore to explain the various conditions that the international treaties impose on States parties’ right to resort to derogations. Following a general survey of the travaux préparatoires relating to the relevant provisions, the notion of public emergency threatening the life of the nation will be examined. The rights and obligations that may not in any circumstances be derogated from will then be dealt with in some detail. This will be followed by an analysis of the concept of strict necessity and a brief description of the condition of consistency with other international legal obligations, as well as the prohibition of discrimination. The chapter will close with a number of suggestions regarding the role to be played by the legal professions in emergency situations, followed by some concluding remarks.

1.2 Introductory remarks on limitations and derogations in the field of human rights

Before going into the subject of derogations in detail, it may be useful to consider briefly the nature of derogations from human rights obligations as compared
with limitations on the exercise of human rights under normal circumstances. As seen in Chapter 12 of this Manual, States may impose limitations on the enjoyment of many rights such as the right to freedom of expression, association and assembly for certain legitimate purposes. Such limitations are often called “ordinary” limitations since they can be imposed permanently in normal times. So-called derogations, on the other hand, are designed for particularly serious crisis situations that require the introduction of extraordinary measures. Derogations have therefore also been called “extraordinary limitations” on the exercise of human rights. Indeed, on closer examination, it will be seen that ordinary limitations on the exercise of human rights and extraordinary limitations in the form of derogations “are closely linked and … rather than being two distinct categories of limitations, they form a legal continuum”.2 This link between ordinary and extraordinary limitations on human rights is made even more evident by the fact that, as will be shown infra in subsection 2.3.2, while some rights may be subjected to further strict limitations in emergency situations, such limitations must not annihilate the substance of the rights inherent in the human person. There must, in other words, at all times be a continuum in respect of the legally protected substance of a right. This is an important fact for all members of the legal professions to bear in mind when they have to deal with questions of emergency powers that may interfere with the effective enjoyment of human rights and fundamental freedoms.

2. The Notion of Public Emergency in International Human Rights Law

2.1 Relevant legal provisions

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, colour, sex, language, religion or social origin.” Article 27(1) of the American Convention on Human Rights reads as follows: “In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, 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.” Article 15(1) of the European Convention on Human Rights stipulates that: “In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.” Lastly, article 30 of the 1961 European Social Charter states that: “In time of war or other public emergency threatening the life of the nation any Contracting Party may take measures derogating from its obligations under this Charter to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.” The wording of article F of the 1996 European Social Charter as revised is in substance identical with this provision.

2.1.1 Derogations and the African Charter on Human and Peoples’ Rights

In contrast to the American and European Conventions on Human Rights, the African Charter on Human and Peoples’ Rights contains no derogation provision.
In the view of the African Commission on Human and Peoples’ Rights, this means that the Charter “does not allow for states parties to derogate from their treaty obligations during emergency situations”.3 In other words, even a civil war cannot “be used as an excuse by the state (for) violating or permitting violations of rights in the African Charter”.4 In a communication brought against Chad, the Commission stated that the Government concerned had “failed to provide security and stability in the country, thereby allowing serious or massive violations of human rights”. The national armed forces were “participants in the civil war” and there had been several instances in which the Government had “failed to intervene to prevent the assassination and killing of specific individuals”. Even where it could not “be proved that violations were committed by government agents, the government had a responsibility to secure the safety and the liberty of its citizens, and to conduct investigations into murders”.5 The civil war could not therefore be used as a legal shield for failure to fulfil the legal obligations under the African Charter, and Chad was held to have violated articles 4, 5, 6, 7 and 9.6

2.2. Derogations from legal obligations: A dilemma for the drafters

As may be seen from the preceding provisions, the notion of emergency in article 4(1) of the International Covenant is very similar to that in article 15 of the
European Convention on Human Rights. This resemblance is due to the fact that the drafting of the two treaties was at first carried out simultaneously, albeit within the framework of two different organizations, the United Nations and the Council of Europe. However, while the European Convention was adopted on 4November 1950, work on the Covenant continued. Article 4 therefore underwent changes until it was given its final form – in terms of substance – by the United Nations Commission on Human Rights in 1952.7 The introduction of a derogation provision into the Covenant was first proposed by the United Kingdom in a Drafting Committee of the United Nations Commission on Human Rights in June 1947. The provision was contained in article 4 of the United Kingdom draft International Bill of Human Rights, and it envisaged possible derogations from all obligations enumerated in article 2 of the draft “to the extent strictly limited by the exigencies of the situation”. This implied that States would also have been able to derogate from the obligation to provide effective remedies for human rights violations, remedies that should “be enforceable by a judiciary whose independence [was] secured”.8 A slightly modified version of the proposed derogation
provision was subsequently rejected by a Working Group, although subsequently narrowly approved by the Commission itself. Prior to the vote, the United Kingdom expressed the view that “if such a provision were not included, in time of war it might leave the way open for a State to suspend the provisions of the Convention.” It was “most important that steps should be taken to guard against such an eventuality”.9 The arguments for and against the advisability of a derogation provision continued during the subsequent sessions of the Commission on Human Rights. The United States, for instance, was against such a provision and favoured a general limitation clause, while the Netherlands feared that it might “imperil the success of the work of the Commission”, emphasizing that “the circumstances under which a Party may evade its obligations should be defined as precisely as possible”.10 Although later abandoning the idea of a general limitation provision, the United States was still against the derogation provision.11 The USSR was “in favour of the least possible limitation” and therefore proposed to limit the scope of the derogation article by adding the phrase “directed against the interests of the people” after “in time of war or other public emergency”.12 Although it had previously opposed the derogation article “fearing the arbitrary suppression of human rights on the plea of a national emergency,”13 France expressed the view during the fifth session of the Commission in 1949 that article 4 “should neither be deleted nor limited to time of war”. It considered that there “were cases when States could be in extraordinary peril or in a state of crisis, not in time of war, when such derogations were essential”. In the view of France, the following principles should be recognized:

_ “that limitations on human rights were permissible in time of war or other emergency”;
_ “that certain rights were not subject to limitation under any conditions”; and
_ “that derogation from the Covenant must be subject to a specified procedure and that such derogation, undertaken under exceptional circumstances, must
accordingly be given exceptional publicity”.14

France considered that the principle of non-derogability of certain rights “was a sound and permanent safeguard” and that there was, in addition, “an essential
distinction between the restriction of certain rights and the suspension of the Covenant’s application”.15 During the same session, India, Egypt and Chile accepted the principles contained in the draft derogation provision, but the United States and the Philippines were still against it.16 Lebanon was likewise against the derogation provision, fearing that, if the term “war” was deleted – as many delegates wanted – it would “be difficult to determine the cases in which derogations were permissible on the basis of so elastic a term as ‘public emergency’.” Compared to the term “war”, the meaning of the concept of a “public emergency” was, according to Lebanon, “very hazy [and] might give rise to interpretations more far-reaching than…intended”.17 During the Commission’s sixth session in 1950, Uruguay expressed support for the derogation provision “in spite of the serious problems it raised”, because it “set forth a new principle in international law – that of responsibility of States towards the members of the community of nations for any measures derogating from human rights and fundamental freedoms”. This principle was, moreover, “established in most national legislations under which the executive power was responsible for its measures suspending constitutional guarantees”.18 Chile now withdrew its previously declared support for article 4 and proposed its deletion since it was “drafted in such indefinite terms that it would permit every kind of abuse”. In the opinion of Chile, concepts such as “national security” and “public order” as contained in some articles “sufficiently covered all cases which might arise in time of war or other calamity”.19 France disagreed, pleading for the retention of the derogation provision since it was “essential for the covenant to include a list of articles from which there could never be any derogation”. Such a list was necessary “to prevent abuses by dictatorial regimes”.20
France now also proposed the insertion of “the clause concerning the official proclamation” of the public emergency aimed at preventing States “from derogating
arbitrarily from their obligations under the covenant when such an action was not warranted by events”.21 At the same session, the Commission eventually decided to retain article 4 in the draft Covenant and further decided to replace the terms “In time of war or other public emergency threatening the interests of the people” by “In the case of a state of emergency officially proclaimed by the authorities or in the case of public disaster”.22 The Commission’s last substantive discussion on the derogation provision took place at its eighth session in 1952 when, as suggested by the United Kingdom, it was decided to change the terms of the first paragraph which were now to read “In time of public emergency threatening the life of the nation”. At the suggestion of France, it was further decided to add the requirement of official proclamation so as to avoid “arbitrary action and abuse”. This clause had been absent from the United Kingdom amendment.23 Chile also importantly pointed out that “it was difficult to give a precise legal definition of the life of the nation [but it] was significant that the text did not relate to the life of the government or of the state.”24

These glimpses into the drafting history of the emergency notion contained in article 4(1) of the Covenant provide an idea of the dilemma facing the drafters, who had to live up to the expectations of a world avid for peace, justice and respect for the basic rights of the human person. At the same time, they could not leave out of consideration the complex realities that confront many countries in times of crisis. The fear of an abusive use of the right to derogation was real and evident, and it resulted in the drafting of an article that imposes strict conditions on the exercise of that right, controls that were almost totally absent from the original draft. The discussions thus had a wholesome effect on the theoretical protection of the individual in emergency situations, in that the freedom of action of States in the field of human rights was limited by:
_ the principle of exceptional threat;
_ the principle of official proclamation;
_ the principle of non-derogability of certain rights;
_ the principle of strict necessity;
_ the principle of compatibility with other international legal obligations;
_ the principle of non-discrimination; and
_ the principle of international notification.

Generally speaking, the discussions were less difficult at the regional level and the divisions more easily overcome. The emergency concept contained in article 27(1) of the American Convention on Human Rights is worded differently from its universal and European counterparts. Rather than referring to a threat to “the life of the nation”, it authorizes derogations “in time of war, public danger, or other emergency that threatens the independence or security of a State party”. The draft derogation article submitted to the Specialized Inter-American Conference on Human Rights held in San José, Costa Rica, in 1969 contained no reference to “public danger”.25 During the Conference, however, El Salvador proposed to amend the text so as to have the terms “or other public calamity” (“u otra calamidad pública”) inserted because, in its view, it was “a situation that was not necessarily a threat to internal or external security, but which could nevertheless arise”.26 The amendment was adopted although the text was subsequently modified to “of public danger” (“de peligro público”).27 During the Conference, Mexico
proposed to delete the reference to the principle of consistency with other international obligations, the principle of non-discrimination and the principle of non-derogable rights. The Mexican proposal was defeated.28

The only differences between the emergency concept contained in article 15(1) of the European Convention and that in article 4(1) of the International Covenant
are that the former also refers to “war” and that the verb is in the gerund (“threatening”) rather than the simple present tense (“which threatens”). To judge from the travaux préparatoires, the elaboration and final adoption of article 15 were relatively uneventful. As with the Covenant, the United Kingdom proposed that a derogation provision be inserted in the draft Convention.29 The early draft prepared by the Consultative Assembly of the Council of Europe contained no derogation provision but only a general limitation provision.30 The Committee of Experts that had been entrusted with the task of elaborating a convention subsequently submitted two alternatives to the Committee of Ministers of the Council of Europe. One alternative contained a simple enumeration of rights to be protected, while the second defined the rights in some detail, attaching specific limitation provisions to each relevant right. A derogation provision had, however, been inserted in both alternatives.31 There is no record of any criticism of the inclusion of a derogation provision in the version that was finally adopted, namely the version that defined rather than simply enumerated the rights to be protected. However, France and Italy disapproved of the derogation provision in the version containing a simple enumeration of rights, since it would be “contrary to the system”. Other members of the Committee of Experts considered it important to retain the relevant provision also in that context “since it had the advantage of excluding, even in the case of war or threat to the life of the nation, any derogation of certain fundamental rights, and because the procedure laid down in paragraph 3 could prove to be useful for the protection of human rights in exceptional circumstances”.32 As at the universal level, it was accepted in the Americas and Europe that States might need to have wider powers to manage particularly serious crisis situations, but on condition that the exercise of emergency powers be accompanied by strict limits on and international accountability for the acts taken. The years of human injustice that had led to a global cataclysm made it imperative for the drafters not to give Governments a free hand in managing crisis situations. The derogation provisions, in other words, strike a carefully weighed balance between, on the one hand, the needs of the State and, on the other, 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. Although some differences exist between the three relevant provisions, this basic tenet is equally valid for all. Some of the major international human rights treaties allow States parties to derogate from some of their obligations under these treaties in exceptional crisis situations. 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. It is clear from the travaux préparatoires that the right to derogate was not intended to be used by authoritarian regimes seeking to eliminate human rights and that it cannot be used to save a specific Government.

2.3 The interpretation of the international monitoring bodies

2.3.1 Article 4(1) of the International Covenant on Civil and Political Rights

In General Comment No. 29 adopted in July 2001, which replaces General Comment No. 5 of 1981, the Human Rights Committee confirms that “article 4
subjects both this very measure of derogation, as well as its material consequences, to a specific regime of safeguards”.33 With regard to the purpose of derogation, the Committee states 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.”34 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. As noted by the Committee, 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”.35 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.”36 With regard to the condition of exceptional threat, it is evident that “not every disturbance or catastrophe qualifies as a public emergency which threatens the life of the nation” within the meaning of article 4(1).37 In this regard, the Committee states that: “During armed conflict, whether international or non-international, rules of international humanitarian law become applicable and help, in addition to the provisions in article 4 and article 5, paragraph 1, of the Covenant, to prevent the abuse of a State’s emergency powers. 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.”38 The Committee here makes it clear that, irrespective of whether article 4(1) is invoked in an armed conflict or some other kind of crisis, the situation must be so serious as to constitute “a threat to the life of the nation”. As further emphasized by the Committee, “the issues of when rights can be derogated from, and to what extent, cannot be separated from the provision in article 4, paragraph 1, of the Covenant” according to which any derogatory measures must be limited “to the extent strictly required by the exigencies of the situation”. “This condition requires that States parties provide careful justification not only for their decision to proclaim a state of emergency but also for any specific measures based on such a proclamation. If States purport to invoke the right to derogate from the Covenant during, for instance, a natural catastrophe, a mass demonstration including instances of violence, or amajor industrial accident, they must be able to justify not only that such a situation constitutes a threat to the life of the nation, but also that all their measures derogating from the Covenant are strictly required by the exigencies of the situation. In the opinion of the Committee, the possibility of restricting certain Covenant rights under the terms of, for instance, freedom of movement (article 12) or freedom of assembly (article 21) is generally sufficient during such situations and no derogation from the provisions in question would be justified by the exigencies of the situation.”39 In other words, there is a presumption against allowing derogations from articles 12 and 21 in response to natural catastrophes, mass demonstrations and major industrial accidents, and States parties would have to submit strong evidence to rebut this presumption. When considering the reports of States parties, the Committee has on “a number of occasions … expressed its concern over States parties that appear to have derogated from rights protected by the Covenant, or whose domestic law appears to allow such derogation in situations not covered by article 4”.40 The Committee thus, inter alia, expressed concern in the case of the United Republic of Tanzania “that the grounds for declaring a state of emergency are too broad and that the extraordinary powers of the President in an emergency are too sweeping”. It therefore suggested “that a thorough review be undertaken of provisions relating to states of emergency with a view to ensuring their full compatibility with article 4”.41 The Committee expressed similar concern regarding the Dominican Republic, where “the grounds for declaring a state of emergency are too broad”. It recommended in general “that the State party should undertake a major initiative aimed at harmonizing its domestic legislation with the provisions of the Covenant”.42 The Committee further expressed concern at the constitutional provisions “relating to the declaration of a state of emergency” in Uruguay, which “are too broad”. It recommended “that the State party restrict its provisions relating to the possibilities of declaring a state of emergency”.43 The Committee was also concerned that Bolivia’s legislation “in respect of the state of siege does not comply with the provisions of the Covenant” and that the expression “conmoción interior” (internal disturbance) is much too wide to fall within the scope of article 4.44 The proposals for constitutional reform in Colombia caused “deep concern” to the Committee because, if adopted, they “would raise serious difficulties with regard to article 4”. The impugned proposals were aimed at “suppressing time limits on states of emergency, eliminating the powers of the Constitutional Court to review the declaration of a state of emergency, conceding functions of the judicial police to military authorities, adding new circumstances under which a state of emergency may be declared, and reducing the powers of the Attorney-General’s Office and the Public Prosecutor’s Office to investigate human rights abuses and the conduct of members of the paramilitary, respectively”. The Committee therefore recommended that the proposals be withdrawn.45 It also recommended that Trinidad and Tobago comply “with the categorization of an emergency that it must threaten the ‘life of the nation’”.46 A State party may, of course, only derogate from article 4 of the Covenant for as long as it is genuinely confronted with a “public emergency which threatens the life of the nation”. Emergency legislation cannot therefore remain in force for so long that it becomes institutionalized so that it is the rule rather than the exception. In this regard, the Committee expressed “its deep concern at the continued state of emergency prevailing in Israel, which has been in effect since independence”. It recommended “that the Government review the necessity for the continued renewal of the state of emergency with a view to limiting as far as possible its scope and territorial applicability and the associated derogation of rights”.47 The Committee expressed a similar concern in the case of the Syrian Arab Republic, where “Legislative Decree No. 51 of 9 March
1963 declaring a state of emergency has remained in force ever since that date, placing the territory of the … Republic under a quasi-permanent state of emergency, thereby jeopardizing the guarantees of article 4”. It therefore recommended that the state of emergency “be formally lifted as soon as possible”.48
The Committee recommended to the United Kingdom in 1995 that “further concrete steps be taken so as to permit the early withdrawal of the derogation made
pursuant to article 4 and to dismantle the apparatus of laws infringing civil liberties which were designed for periods of emergency”. “Given the significant decline in
terrorist violence in the United Kingdom since the cease-fire came into effect in Northern Ireland and the peace process was initiated, the Committee [urged] the Government to keep under the closest review whether a situation of ‘public emergency’ within the terms of article 4, paragraph 1, still [existed] and whether it would be appropriate for the United Kingdom to withdraw the notice of derogation which it issued on 17 May 1976.”49 In communications brought under the Optional Protocol, the Committee has made it clear that it is for the State party to substantiate the allegation that it is indeed facing exceptional circumstances that may justify a derogation under article 4(1). It is not sufficient for the country concerned simply to invoke “the existence of exceptional circumstances”.50 Rather it is “duty bound” in proceedings under the Optional Protocol “to give a sufficiently detailed account of the relevant facts to show that a situation of the kind described in article 4 (1)…exists in the country concerned”.51 As stated by the Committee in the case of Landinelli Silva and Others v. Uruguay, “In order to discharge its function and to assess whether a situation of the kind described in article 4 (1) of the Covenant exists in the country concerned, it needs full and comprehensive information. If the respondentovernment does not furnish the required justification itself, as it is required to do under article 4(2) of the Optional Protocol and article 4 (3) of the Covenant, the Human Rights Committee cannot conclude that valid reasons exist to legitimize a departure from the normal legal régime prescribed by the Covenant.”52

From these comments and recommendations it is clear in the first place that, in order to be consistent with article 4(1), domestic law must authorize derogations
from human rights obligations only in genuine emergency situations that are so serious as to actually constitute a threat to the life of the nation. Whether or not the crisis situation is caused by an armed conflict, it is the survival of the very nation that must be in jeopardy. It follows that no one crisis situation automatically justifies the declaration of a public emergency and derogations from a State’s obligations under the Covenant. In the light of the Committee’s statements, it appears clear that situations such as simple riots or internal disturbances do not, per se, justify the resort to derogations under article 4(1) of the Covenant. Second, the state of emergency with ensuing limitations on the enjoyment of human rights can only lawfully remain in force for as long as the situation so warrants. As soon as the situation ceases to constitute a threat to the life of the nation, the derogations must be terminated. In other words, states of emergency and derogations from international human rights obligations cannot lawfully be maintained for so long that they become a permanent or quasi-permanent part of a country’s internal legal
system. Third, States parties continue to be bound by the principle of legality and the rule of law throughout any “public emergency which threatens the life of the nation”.

2.3.2 Article 27(1) of the American Convention on Human Rights

To interpret article 27 of the American Convention on Human Rights, it must first be determined what is meant by the term “suspension of guarantees”, which is the
title of the article and recurs in the opinions and judgments of the Inter-American Court of Human Rights. The term “suspension” is also found in article 27(2) and (3), while the expression “measures derogating from” is used in article 27(1). The Inter-American Court has answered this question as follows: “18.…An analysis of the terms of the Convention in their context leads to the conclusion that we are not here dealing with a ‘suspension of guarantees’ in an absolute sense, nor with the ‘suspension of … (rights),’ for the rights protected by these provisions are inherent to man. It follows therefrom that what may only be suspended or limited is their full and effective exercise.”53 Although made in the context of article 27 of the American Convention on Human Rights, this statement is of relevance to international human rights law in general, which derives from a recognition of the unique nature and “inherent dignity”54 of the human person. In the preambles to the Universal Declaration of Human Rights and the two International Covenants, human rights are described as “the equal and inalienable rights of all members of the human family”, the recognition of which “is the foundation of freedom, justice and peace in the world”.

In its groundbreaking advisory opinion on Habeas Corpus in Emergency Situations, the Inter-American Court of Human Rights described in the following terms
the function of article 27, which “is a provision for exceptional situations only”: “20. It cannot be denied that under certain circumstances the suspension of guarantees may be the only way to deal with emergency situations and, thereby, to preserve the highest values of a democratic society. The Court cannot, however, ignore the fact that abuses may result from the application of emergency measures not objectively justified in the light of the requirements prescribed in Article 27 and the principles contained in other here relevant international instruments. This has, in fact, been the experience of our hemisphere. Therefore, given the principles upon which the inter-American system is founded, the Court must emphasize that the suspension of guarantees cannot be disassociated from the ‘effective exercise of representative democracy’ referred to in Article 3 of the OAS Charter. The soundness of this conclusion gains special validity given the
context of the Convention, whose Preamble reaffirms the intention (of the American States) ‘to consolidate in this hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man.’ The suspension of guarantees lacks all legitimacy whenever it is resorted to for the purpose of undermining the democratic system. That system establishes limits that may not be transgressed, thus ensuring that certain fundamental human rights remain permanently protected. 21. It is clear that no right guaranteed in the Convention may be suspended unless very strict conditions – those laid down in Article 27(1) – are met. Moreover, even when these conditions are satisfied, Article 27(2) provides that certain categories of rights may not be suspended under any circumstances. Hence, rather than adopting a philosophy that favors the suspension of rights, the Convention establishes the contrary principle, namely, that all rights are to be guaranteed and enforced unless very special circumstances justify the suspension of some, and that some rights may never be suspended, however serious the emergency.”55 In its opinion the Court held, moreover, that: “24. The suspension of guarantees also constitutes an emergency situation in which it is lawful for a government to subject rights and freedoms to certain restrictive measures that, under normal circumstances, would be prohibited or more strictly controlled. This does not mean, however, that the suspension of guarantees implies a temporary suspension of the rule of law, nor does it authorize those in power to act in disregard of the principle of legality by which they are bound at all times. When guarantees are suspended, some legal restraints applicable to the acts of public authorities may differ from those in effect under normal conditions. These restraints may not be considered to be non-existent,
however, nor can the government be deemed thereby to have acquired absolute powers that go beyond the exceptional circumstances justifying the grant of such exceptional legal measures. The Court has already noted, in this connection, that there exists an inseparable bond between the principle of legality, democratic institutions and the rule of law.”56 While each State has, of course, the legal duty effectively to protect the rights and freedoms of the individual, the State also has, according to the Inter-American Court of Human Rights, not only the right but the duty to guarantee its security.57 The Court stresses, however, that: “regardless of the seriousness of certain actions and the culpability of the perpetrators of certain crimes, the power of the State is not unlimited, nor may the State resort to any means to attain its ends. The State is subject to law and morality. Disrespect for human dignity cannot serve as the basis for any State action.”58

These excerpts from the opinions and judgments of the Inter-American Court of Human Rights show that article 27 of the American Convention is intended to
be used in truly exceptional situations when the State party concerned has no other means available to defend the independence and security of its democratic
constitutional order. Conversely, derogations on the basis of article 27 can in no circumstances be invoked to install an authoritarian regime. In addition to the principle of democracy, States parties are also at all times bound by the principle of legality and the rule of law. While the exercise of some human rights may be subjected to special limitations in an emergency, such limitations must never go so far as to annihilate the substance of the rights inherent in the human person.
2.3.3 Article 15(1) of the European Convention on Human Rights The interpretation by the European Court of Human Rights of article 15 of the Convention provides some guidance as to what constitutes a threat to the life of the nation. As the cases are complex and the legal reasoning detailed, only the most
important aspects of the jurisprudence will be highlighted in this context.

Right of review/the role of the Court: It falls, of course, “in the first place to each Contracting State, with its responsibility for ‘the life of (its) nation’ to determine whether that life is threatened by a ‘public emergency’ and, if so, how far it is necessary to go in attempting to overcome the emergency”.59 According to the Court: “By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position
than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. In this matter Article 15 § 1 leaves those authorities a wide margin of appreciation.”60 “Nevertheless, the States do not enjoy un unlimited power in this respect. The Court, which is responsible for ensuring the observance of the States’ engagements (Article 19) is empowered to rule on whether the States have gone beyond the ‘extent
strictly required by the exigencies’ of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision.”61In later cases the Court specified that, in exercising this supervision, it must give appropriate weight to “such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of, the emergency situation”.62 The existence of a public emergency threatening the life of the nation: In the Lawless case, the Court held that “the natural and customary meaning of the words ‘other public emergency threatening the life of the nation’ is sufficiently clear considering that” “they refer to an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the state is composed.”63 According to the French version of the judgment, which is the authentic text, the natural and customary meaning of the emergency concept in article 15(1) indicates: “en effet, une situation de crise ou de danger exceptionnel et imminent qui affecte l’ensemble de la population et constitue une menace pour la vie organisée de la communauté composant l’État”.64 The addition of the term “imminent” means that the exceptional situation of
danger or crisis must be a reality or be about to happen and that article 15 cannot be invoked to justify derogations in the event of a remote or hypothetical crisis in or danger to the life of the nation. On the basis of this definition, the Court went on to determine whether the Government was justified in declaring that there was a public emergency in the Republic of Ireland in July 1957 that threatened the life of the nation, thereby justifying the derogation under article 15(1).65 The situation concerned the activities of the IRA and related groups in Ireland, and the derogation authorized the Minister of Justice to resort to extrajudicial detention of persons suspected of engaging in activities prejudicial to the State. The Court concluded that “the existence at the time of a ‘public emergency threatening the life of the nation’, was reasonably deduced by the Irish Government from a combination of several factors, namely”:
_ the existence in its territory “of a secret army engaged in unconstitutional activities and using violence to attain its purpose”;
_ “the fact that this army was also operating outside the territory of the State, thus seriously jeopardising the relations of the Republic of Ireland with its neighbour”;
and
_ “the steady and alarming increase in terrorist activities from the autumn 1956 and throughout the first half of 1957”.66
The Court admitted thereafter that “the Government had succeeded, by using means available under ordinary legislation, in keeping public institutions functioning
more or less normally”. But “the homicidal ambush” carried out in early July 1957 in Northern Ireland close to the border with the Republic “had brought to light … the imminent danger to the nation caused by the continuance of unlawful activities in Northern Ireland by the IRA and various associated groups, operating from the territory of the Republic of Ireland”.67 Seventeen years later, the Court was called upon to consider article 15 in the case of Ireland v. the United Kingdom, which concerned, inter alia, the terrorist legislation used by the United Kingdom in Northern Ireland. The existence of an emergency “threatening the life of the nation” was, in the view of the Court, “perfectly clear from the facts” of the case and had not been challenged by the parties before it.68 The Court simply referred to its summary of the facts which showed, inter alia, that, at the relevant time in Northern Ireland, “over 1,100 people had been killed, over 11,500 injured and
more than £140,000,000 worth of property destroyed. This violence found its expression in part in civil disorders, in part in terrorism, that is organised violence for
political ends.”69 In the case of Brannigan and McBride v. the United Kingdom, which ended in a judgment in 1993, the Court once more concluded, after “making its own assessment, in the light of all the material before it as to the extent and impact of terrorist violence in Northern Ireland and elsewhere in the United Kingdom”, that “there can be no doubt that such a public emergency existed at the relevant time”.70

The situation obtaining in Northern Ireland in 1998 was considered in the case of Marshall v. the United Kingdom, which was very similar to the Branningan and
McBride case, but was dismissed at the stage of admissibility in July 2001. The applicant argued that “the security situation had changed beyond recognition” so that “any public emergency which might have existed in Northern Ireland was effectively over by the time of his unlawful detention”. In his view, moreover, “the Government should not be permitted under the Convention to impose a permanent state of emergency on the province with the pernicious consequences which that would entail for respect for the rule of law.”71 For its part the Government argued that “at the material time the security situation in Northern Ireland could still be described with justification as a public emergency threatening the life of the nation”. It noted that “in the seven-week period leading up to the applicant’s arrest … thirteen murders had taken place in the province”. There had also been numerous bombing incidents.72 The Court accepted the Government’s argument, noting that “the authorities continued to be confronted with the threat of terrorist violence notwithstanding a reduction in its incidence”. Referring to the “outbreak of deadly violence” in the weeks preceding the applicant’s detention, the Court stated that: “This of itself confirms that there had been no return to normality since
the date of the Brannigan and McBride judgment such as to lead the Court to controvert the authorities’ assessment of the situation in the province in terms of threats which organised violence posed for the life of the community and the search for a peaceful settlement.”73 With regard to the situation in South East Turkey, the Court concluded in the Aksoy case that “the particular extent and impact of the PKK terrorist activity [had] undoubtedly created, in the region concerned, a ‘public emergency threatening the life of the nation’.”74 However, in the case of Sakik and Others, the Court importantly stated that it would be “working against the object and purpose of [article 15] if, when assessing the territorial scope of the derogation concerned, it were to extend its effects to a part of Turkish territory not explicitly named in the notice of derogation” submitted under article 15(3) to the Secretary-General of the Council of Europe.75 As the legislative decrees challenged in this case were applicable only to the region where a state of emergency had been proclaimed, which did not, according to the derogation notice, include Ankara, the derogation was “inapplicable ratione loci to the facts of the case”.76 It is for the State party invoking the right to derogate to prove that it is
faced with a public emergency as defined in the relevant treaty. The ultimate purpose of derogations under international law is to enable the States parties concerned to return to normalcy, i.e., to restore a constitutional order in which human rights can again be fully guaranteed. It is the right and duty of international monitoring bodies, in the cases brought before them, to make an independent assessment of crisis situations in the light of the relevant treaty provisions. At the European level, however, a wide margin of appreciation is granted to the Contracting States in deciding on the presence within their borders of a “public emergency threatening the life of the nation”. The crisis situation justifying the derogation must be so serious as to actually constitute a threat to the life of the nation (universal and European levels) or its independence or security (the Americas). This excludes, for instance, minor riots, disturbances and mass demonstrations.
National law must carefully define the situations in which a state of emergency can be declared. The exceptional nature of derogations mean that they must be limited in time and space to what is strictly required by the exigencies of the situation. States parties cannot lawfully extend their exceptional powers beyond the
territories mentioned in their derogation notices. Derogations under international human rights law must not adversely affect the substance of rights, since these rights are inherent in the human person. Derogations can only lawfully limit their full and effective exercise.

3. Non-Derogable Rights and Obligations in International Human Rights Law

3.1 Introductory remarks

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, article 27(2) of the American Convention and article 15(2) of the European Convention. However, the legal situation is more complex and 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 view of the complexity and evolving nature of this subject, only its most salient features will be considered below.

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.
Moreover, 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.77

3.2 Relevant legal provisions

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 – article 6;
_ the right to freedom from torture, cruel, inhuman and degrading treatment or punishment, and medical or scientific experimentation without one’s free consent –
article 7;
_ the right to freedom from slavery, the slave trade and servitude – article 8;
_ the right not to be imprisoned on the ground of inability to fulfil a contractual obligation – article 11;
_ the right not to be subjected to retroactive legislation (ex post facto laws) – article 15;
_ the right to recognition as a person before the law – article 16;
_ the right to freedom of thought, conscience and religion – article 18; and
_ the right not to be subjected to the death penalty – article 6 of the Second Optional Protocol.
Article 27(2) of the American Convention on Human Rights reads: “The foregoing provision does not authorize any suspension of the following articles: Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to a Nationality), and Article 23 (Right to Participate in Government) or of the judicial guarantees essential for the protection of such rights.” Article 15(2) of the European Convention states: “No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.”
Furthermore, article 3 of Protocol No. 6 to the Convention relating to the abolition of the death penalty stipulates that there shall be no derogation from the
provisions of this Protocol under article 15 of the Convention. Lastly, the principle of ne bis in idem, as proclaimed in article 4 of Protocol No. 7 to the Convention, is likewise non-derogable under article 4(3) thereof. The non-derogable rights under the European Convention are therefore:
_ the right to life – article 2;
_ the right to freedom from torture and from inhuman or degrading treatment or punishment – article 3;
_ the right to freedom from slavery and servitude – article 4(1);
_ the right not to be subjected to retroactive penal legislation – article 7;
_ the right not to be subjected to the death penalty – article 3 of Protocol No. 6;
_ the principle of ne bis in idem or double jeopardy – article 4 of Protocol No. 7.

A brief and non-exhaustive description will be given below of States’ duties with regard to the major non-derogable rights. The cases chosen to illustrate the legal
duties of States in this chapter are those of greatest relevance to emergency situations and/or the fight against hard crime and terrorism. For more details on the
interpretation of some of these rights such as the right to life, the right to freedom from torture, the prohibition of slavery, the right to freedom of thought, conscience and religion and the prohibition of discrimination, readers are referred to the relevant chapters of this Manual. In spite of their non-derogable nature, these rights tend in many cases to be the most frequently violated in emergency situations, thereby rendering a return to normalcy more difficult. In such situations, the role of judges, prosecutors and lawyers in contributing to the effective protection of the individual becomes more crucial than ever, and their respective responsibilities must be exercised with full independence and impartiality lest the individual be left without legal protection.

3.3 The right to life

The fundamental right to life is non-derogable under all three treaties, which means that it must be protected by law and that no person may at any time be arbitrarily killed. It is true that the exact extent of the protection afforded by article 6 of the International Covenant, article 4 of the American Convention and article 2 of the European Convention varies according to the specific treaty limitations on imposition of the death penalty, and, as pointed out by the Human Rights Committee, such limitations are “independent of the issue of derogability”.78 Of the three treaties, only the European Convention defines the specific situations in which “deprivation of life shall not be regarded as inflicted in contravention of this Article”, namely “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” (art. 2(2)). According to the European Court of Human Rights, “the exceptions delineated in paragraph 2 indicate that this provision extends to, but is not concerned exclusively with, intentional killing”. Paragraph 2 rather “describes the situations where it is permitted to ‘use force’ which may result, as an unintended outcome, in the deprivation of life”.79 The term “absolutely necessary” indicates that “the force used must be strictly proportionate to the achievement of the aims set out in sub-paragraphs 2(a), (b) and (c) of Article 2”.80 These examples may serve as useful indicators for both domestic judges and members of other international monitoring bodies who have to consider the use to force with a lethal outcome in connection with law enforcement activities. The right to life as protected by international human rights law means, inter alia, that States must at no time engage in, or condone, arbitrary or extrajudicial killings of human beings, and that, as set forth at length in Chapter 15, they have a legal duty to prevent, investigate, prosecute, punish and redress violations of the right to life. The legal duty to take positive steps effectively to protect the right to life is equally valid in
times of public emergency. 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.

3.4 The right to freedom from torture and from cruel, inhuman or degrading treatment or punishment

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, article 5(2) of
the American Convention and article 3 of the European Convention). 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 Inter-American Court of Human Rights has specified that, as in times of peace, the State remains 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.81

The European Court found that the combined and premeditated use “for hours at a stretch” of the following five “disorientation” or “sensory deprivation”
techniques “amounted to a practice of inhuman and degrading treatment” contrary to article 3 of the European Convention: wall-standing, hooding, subjection to noise, deprivation of sleep and deprivation of food and drink. These “techniques” were used in various interrogation centres in Northern Ireland in the early 1970s.82 The Court also found a violation of article 3 in the case of Tomasi v. France, in which the applicant, during a police interrogation that lasted for “a period of forty odd hours”, had been “slapped, kicked, punched and given forearm blows, made to stand for long periods and without support, hands handcuffed behind the back; he had been spat upon, made to stand naked in front of an open window, deprived of food, threatened with a firearm and so on”.83 The Court concluded that this treatment was “inhuman and degrading” contrary to article 3 of the European Convention, adding that “the requirements of the investigation and the undeniable difficulties inherent in the fight against crime, particularly with regard to terrorism, cannot result in limits being placed on the protection to be afforded in respect of the physical integrity of individuals”.84 The treatment meted out to the applicant in the Aksoy case was, however, “of such a serious and cruel nature that it [could] only be described as torture”. The applicant, who was detained on suspicion of being involved in terrorist activities, had been subjected to Palestinian hanging”, that is to say he had been “stripped naked, with his arms tied together behind his back, and suspended by his arms”. This ill-treatment, which was
“deliberately inflicted” and “would appear to have been administered with the aim of obtaining admissions or information from the applicant”, had led to “a paralysis of both arms which lasted for some time”.85

In the Castillo Petruzzi et al. case, the Inter-American Court of Human Rights concluded that the combination of incommunicado detention for 36 and 37 days and
the appearance in court of the persons in question “either blindfolded or hooded, and either in restraints or handcuffs” was in itself a violation of article 5(2) of the
Convention.86 In the same case, the Court concluded that the terms of confinement imposed on the victims by the military tribunals “constituted cruel, inhuman and degrading forms of punishment” violating article 5 of the American Convention.87 According to the rulings of the military courts, the terms of incarceration included ‘continuous confinement to cell for the first year … and then forced labour, which sentences they [the alleged victims] are to serve in solitary-confinement cells chosen by the Director of the National Bureau of Prisons’” in Peru.88 In its reasoning the Court recalled its jurisprudence, according to which “prolonged isolation and deprivation of communication are in themselves cruel and inhuman punishment, harmful to the psychological and moral integrity of the person and a violation of the right of any detainee to respect for his inherent dignity as a human being.”89 According to the Court, “incommunicado detention is considered to be an exceptional method of confinement because of the grave effects it has on persons so confined. ‘Isolation from the outside world produces moral and psychological suffering in any person, places him in a particularly vulnerable position, and increases the risk of aggression and arbitrary acts in prison.’”90 In its view, therefore, “incommunicado detention, … solitary confinement in a tiny cell with no natural light, … a restrictive visiting schedule … all constitute forms of cruel, inhuman or degrading treatment in the terms of Article 5(2) of the American Convention.”91 With regard to the use of force against detainees, the Court invoked its jurisprudence, according to which: “Any use of force that is not strictly necessary to ensure proper behaviour on the part of the detainee constitutes an assault on the dignity of the person … in violation of Article 5 of the American Convention. The exigencies of the investigation and the undeniable difficulties encountered
in the anti-terrorist struggle must not be allowed to restrict the protection of a person’s right to physical integrity.”92 On the issue of torture see also, in particular, Chapter 8, section 2, and Chapter 11, section 4. The use of torture and of cruel, inhuman or degrading treatment or punishment is prohibited at all times, including in time of war or any other public emergency threatening the life of the nation. The prohibition of torture and other forms of ill-treatment is thus also strictly prohibited in the fight against terrorism and hard crime. Torture or other forms of ill-treatment may not be used to extract information or confessions from suspects. Prolonged incommunicado detention amounts to a form of ill-treatment prohibited by international law even in emergency situations.

3.5 The right to humane treatment

The right to humane treatment is made non-derogable by article 27(2) of the American Convention on Human Rights, read in the light of article 5(2) according to
which “all persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person”. On the same subject, article 10 of the International Covenant states that “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”. However, article 10 is not mentioned as a non-derogable right in article 4(2) of the Covenant. Yet in General Comment No. 29 the Committee states its belief that “here the Covenant expresses a norm of general international law not subject to derogation. This is supported by the reference to the inherent dignity of the human person in the preamble of the Covenant and by the close connection between articles 7 and 10.”93

The distinction made in the work of the Human Rights Committee between articles 7 and 10 is not clear-cut. A violation of article 10(1) was found, for example, in
the case of S. Sextus v. Trinidad and Tobago, in which the author complained of his conditions of detention: his cell measured a mere 9 feet by 6 feet and there was no integral sanitation but a simple plastic pail was provided as a toilet. A small hole (8 by 8 inches) provided inadequate ventilation and, in the absence of natural light, the only light was provided by a fluorescent strip illuminated 24 hours a day. After his death sentence was commuted to 75 years’ imprisonment, the author had to share a cell of the same size with 9 to 12 other prisoners and, since there was only one bed, he had to sleep on the floor. In the absence of any comments by the State party, the Committee relied on the detailed account given by the author to find a violation of article 10(1).94 One of many others cases involving a violation of article 10(1) was that of M. Freemantle v. Jamaica, which also concerned deplorable conditions of detention. The State party failed
to refute the author’s claim that he was confined to a 2 metre square cell for 22 hours every day, “spent most of his waking hours in enforced darkness”, remained isolated from the other men most of the time, and was not permitted to work or to undertake education.95 The positive right of all persons deprived of their liberty to be treated humanely is to be guaranteed at all times, including in emergency situations. The right to be treated humanely implies, inter alia, that people deprived
of their liberty must be held in conditions respectful of their human dignity.

3.6 The right to freedom from slavery and servitude

The right to freedom from slavery and servitude is non-derogable under the International Covenant (arts. 4(2) and 8(1) and (2)) and the European Convention (arts. 15(2) and 4(1)). However, only article 8(1) of the International Covenant specifies expressis verbis that “slavery and the slave-trade in all their forms shall be prohibited”. According to article 27(2) of the American Convention, on the other hand, article 6 as a whole is non-derogable, which means that not only is the right not to be subjected to slavery, involuntary servitude, slave trade and traffic in women non-derogable but also the right not to be required to perform forced and compulsory labour. Like the articles regulating the right to life, the articles defining the right not to be subjected to forced and compulsory labour contain limitation provisions that exempt from the definition of “forced or compulsory labour” certain kinds of labour such as services exacted in times of emergency, danger or calamity that threaten the well-being of the community. To the extent that the labour required falls within this category, it can, of course, also be required in public emergencies (for the texts of the relevant provisions, see article 8(3)(c)(iii) of the International Covenant, article 6(3)(c) of the American Convention and article 4(3)(c) of the European Convention). 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 2002.96 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 (at the universal and European levels) or the independence or security of the State (in the Americas). 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.

3.7 The right to freedom from ex post facto laws and the principle of ne bis in idem

3.7.1 The prohibition of ex post facto laws

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, article 9 of the American Convention and article 7(1) of the European Convention. The same provisions also prohibit the imposition of a heavier penalty than that applicable at the time when the offence was committed. Moreover, article 15(1) of the International Covenant and article 9 of the American Convention guarantee the right of the guilty person to benefit from a lighter penalty introduced after the commission of the offence.
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”. Article 7(2) of the European Convention contains a virtually identical provision, although it refers to “civilized nations” rather than to “the community of nations”.

The Human Rights Committee concluded that article 15(1) was violated in the case of Weinberger v. Uruguay, in which the victim had been convicted on the basis of the retroactive application of penal law. The author was convicted and sentenced to eight years’ imprisonment under the Military Penal Code for “subversive association” “with aggravating circumstances of conspiracy against the Constitution”. The conviction was allegedly based, inter alia, on the victim’s “membership in a political party which had lawfully existed while the membership lasted”.97

In its judgment in the case of Kokkinakis v. Greece, the European Court held that article 7(1) of the European Convention not only outlaws “the retrospective
application of the criminal law to an accused’s disadvantage. It also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy; it follows from this that an offence must be clearly defined in law. This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him liable.”98 In other words, the unreasonable uncertainty of legal provisions criminalizing a certain conduct also falls foul of the requirements of article 7(1) of the European Convention. However, whenever the retroactive application of criminal law is to the accused person’s advantage rather than to his or her disadvantage, there has been no violation of article 7(1) of the Convention.99 Although preventive measures are not per se covered by article 15(1)of the International Covenant or articles 9 and 7(1) of the American and European Convention respectively, they can in special circumstances be considered to constitute a “penalty” for the purposes of these provisions. The European Court of Human Rights concluded in the case of Welch v. the United Kingdom that a confiscation order constituted a “penalty” within the meaning of article 7(1) although the Government considered that it was a preventive measure falling outside the ambit of article 7(1).100 The applicant had been convicted of a drug offence and sentenced to an ultimately 20-year-long prison term; in addition, the trial judge had issued a confiscation order under a law that had entered into force after the applicant had committed his criminal acts.101 In default of the payment of the relevant sum, the applicant was liable to serve a consecutive prison sentence of two years.102

3.7.2 The principle of ne bis in idem

The principle of ne bis in idem has been made expressly non-derogable only under the European Convention on Human Rights and then only with regard to
criminal proceedings taking place in one and the same country (see article 4 of Protocol No. 7 to the Convention). According to article 4(1) of the Protocol:
“No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.” The proceedings can nevertheless be reopened on certain conditions “if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case” (art. 4(2) of Protocol No. 7). The European Court of Human Rights concluded that the principle of ne bis in idem had been violated in the case of, for instance, Gradinger v. Austria. The applicant was first convicted by an Austrian Regional Court of causing death by negligence while driving a car and sentenced to pay a fine. In addition, a district authority fined him under the Road Traffic Act for driving under the influence of alcohol.103 The Regional Court, however, had concluded that the applicant had not been drinking to such an extent that he could be considered to have caused death by negligence under the influence of drink within the meaning of the Criminal Code.104 The principle of ne bis in idem as contained in article 14(7) of the International Covenant is applicable to both convictions and acquittals, while the corresponding provision in article 8(4) of the American Convention concerns only acquittals “by a nonappealable judgment”.
Every person has the right not to be held guilty of any criminal offence for an act or omission that was not a criminal offence when committed. At the European level, the prohibition of the retroactive application of criminal law also means that a criminal offence must be clearly defined in law and that the law cannot be interpreted extensively to the accused person’s disadvantage. International human rights law also prohibits the retroactive application of penalties to the disadvantage of the convicted person. The International Covenant on Civil and Political Rights and the American Convention on Human Rights further guarantee the right of a guilty person to benefit from a lighter penalty introduced after the commission of the offence. The principle of ne bis in idem is non-derogable under the European Convention on Human Rights and protects against double jeopardy in respect of proceedings taking place in one State. These rights must be effectively guaranteed at all times, including in time of war or any other public emergency.


3.8 The right to recognition as a legal person

Every person’s non-derogable right to juridical personality is expressly guaranteed by articles 16 and 4(2) of the International Covenant and articles 3 and 27(2)
of the American Convention. The right to recognition as a person before the law is of fundamental importance in that it not only entitles every person to have rights and duties but also vests in the person concerned the right to vindicate his or her rights and freedoms before national courts and other competent organs and moreover allows the person in many instances to bring complaints to international monitoring bodies. The fundamental nature of the right to juridical personality as a precondition for the enjoyment and exercise of human rights is recognized by the American Convention which logically places it before the right to life.

In the context of article 16 of the International Covenant, the Human Rights Committee requested that Egypt submit information on the legal status of Muslims
who convert to another religion since it appeared that such Muslims were “legally dead” under the Muslim Code of Religious Law.105 Article 16 was also examined in a case against Argentina concerning a child of disappeared persons who was adopted by a nurse. The Committee did not accept the claim that the girl’s right to juridical personality had been violated in this case, since the Argentine courts had “endeavoured to establish her identity and issued her identity papers accordingly”.106 In the view of the Inter-American Commission on Human Rights, on the other hand, the removal of children of disappeared persons is a violation of their right “to be recognized legally as persons” in accordance with article 3 of the American Convention.107 Every human being has the right at all times to be recognized as a legal person before the law. No circumstances or beliefs can justify any limitation on this fundamental right.

3.9 The right to freedom of thought, conscience and religion

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), while freedom of conscience and religion is non-derogable in the Americas by virtue of articles 12 and 27(2) of the
American Convention. The substance of these rights was considered in Chapter 12 and will not therefore be analysed again in this context. It should, however, be pointed out that both article 18(3) of the International Covenant and article 12(3) of the American Convention authorize certain limitations on the freedom to manifest one’s religion or beliefs, limitations that are also permissible in public emergencies. But even in such serious crisis situations, the principle of legality must be respected in that 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”.108 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.109 Under the International Covenant on Civil and Political Rights and the American Convention on Human 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.

3.10 The right not to be imprisoned merely on the ground of inability to fulfil a contractual obligation

The right not to be “imprisoned merely on the ground of inability to fulfil a contractual obligation” is guaranteed by article 11 of the International Covenant and is
non-derogable pursuant to article 4(2). With regard to Gabon, the Human Rights Committee expressed “concern about the practice of putting people in prison for civil debts, which is in breach of article 11 of the Covenant”. The State party was told that it must abolish imprisonment for debt.110 The Committee also asked why the Government of Madagascar “had not repealed the ordinance sanctioning failure to fulfil a contractual obligation by imprisonment”, which was not in conformity with article 11.111 In other words, this right must be ensured in all States at all times, independently of the stage of development of the country concerned. The right not to be imprisoned for being unable to comply with contractual obligations must be guaranteed by all States at all times, including in time of war or public emergency.


3.11 The rights of the family

The rights of the family are only expressly made non-derogable in the American Convention (article 27(2) read in conjunction with article 17). According to
article 17(1), “the family is the natural and fundamental group unit of society and is entitled to protection by society and the state.” This article also guarantees “the right of men and women of marriageable age to marry and to raise a family” (art. 17(2)) and stipulates that “no marriage shall be entered into without the free and full consent of the intending spouses” (art. 17(3)). It further imposes a duty on States parties to “take appropriate steps to ensure the equality of rights and the adequate balancing of responsibilities of the spouses as to marriage, during marriage, and in the event of its dissolution” (art. 17(4)). Lastly, it states that “the law shall recognize equal rights for children born out of wedlock and those born in wedlock” (art. 17(5)). Although the right of the family as contained in article 23 of the International Covenant and article 12 of the European Convention has not been made non-derogable, it is difficult to see for what purpose it could ever be strictly necessary in a public emergency to derogate from this right. Rights corresponding to those contained in article 17 of the American Convention are also recognized in article 16 of the Convention on the Elimination of All Forms of Discrimination against Women, a treaty that makes no provision for derogation.
The rights of the family, including the right of men and women to marry with their free and full consent and the right to raise a family, have been made expressly non-derogable under the American Convention on Human Rights and must be protected at all times.

3.12 The right to a name

The right to a name is guaranteed by article 18 of the American Convention, according to which “every person has the right to a given name and to the surnames of
his parents or that of one of them. The law shall regulate the manner in which this right shall be ensured for all, by the use of assumed names if necessary.” The Inter-American Commission on Human Rights expressed the view that the minor children of disappeared parents had been denied the right to their identity and name contrary to article 18 by virtue of their separation from their parents.112 The right to a name is not expressly guaranteed by either the International
Covenant or the European Convention but is recognized in articles 7 and 8 of the Convention on the Rights of the Child. This Convention makes no provision for
derogations and it has been pointed out by the Human Rights Committee that, “as article 38 of the Convention clearly indicates, the Convention is applicable in
emergency situations”.113 Under article 38(1) of the Convention on the Rights of the Child, “the States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.” The right of every person to a name under the American Convention on Human Rights, and the right of every child to a name under the Convention on the Rights of the Child, must be guaranteed at all times, including in time of war or any other public emergency.

3.13 The rights of the child

According to article 19 of the American Convention, “every minor child has the right to the measures of protection required by his condition as a minor on the part
of his family, society, and the state”. The Inter-American Commission on Human Rights considers that it amounts to a violation of this article to remove children from their disappeared parents.114 The Commission also concluded that this provision was violated when the Peruvian Armed Forces kept the four minor children of former President García under house arrest for several days.115 The right of the child to special measures of protection is also guaranteed by article 24 of the International Covenant, including the right to “be registered immediately after birth”, the right to a name and the right to acquire a nationality. Again, this provision is not made non-derogable expressis verbis, but the duty to provide special protection for minors is particularly significant in times of societal upheaval. Among the various provisions of the Convention on the Rights of the Child that impose duties on States parties to take special measures to protect the child, special
reference should be made to article 19, which requires them to take all appropriate measures to protect the child “from all forms of physical or mental violence”, and article 34, which requires them to “take all appropriate national, bilateral and multilateral measures” to prevent the sexual exploitation and abuse of the child. As the Convention on the Rights of the Child contains no derogation provision, there is a presumption in favour of its being applicable at all times, including in emergency situations. In any event, all forms of physical or mental ill-treatment of the child committed or condoned by the State fall under the general prohibition of torture and other forms of ill-treatment. The right of the minor child to measures of special protection has been made expressly non-derogable in the Americas.
The child has the right to enjoy full and effective protection of all non-derogable rights, and special measures must be taken at all times, including in time of war or other public emergency, to protect the child against all forms of ill-treatment and exploitation.

3.14 The right to a nationality

Pursuant to article 20(1) and (2) of the American Convention, “every person has the right to a nationality” and “every person has the right to the nationality of the
state in whose territory he was born if he does not have the right to any other nationality”. Article 20(3) stipulates that “no one shall be arbitrarily deprived of his
nationality or of the right to change it”. Under the International Covenant, only the child has the right to a nationality (cf. article 24(3) of the Covenant and subsection 3.13 supra). The Inter-American Court of Human Rights “has defined nationality as ‘the political and legal bond that links a person to a given state and binds him to it with ties of allegiance and loyalty, entitling him to diplomatic protection from that state’”.116 In its view, however, “‘international law does impose certain limits on the broad powers enjoyed by the states’ and…‘nationality is today perceived as involving the jurisdiction of the state as well as human rights issues’.”117 With reference to the exceptional powers of the Chilean President to strip Chileans of their nationality in emergency situations during the military dictatorship in the 1970s, the Inter-American Commission on Human Rights stated that since all emergencies are, by nature, transitory, it could not see how “it is possible or necessary to take measures of an irreversible nature, that will affect a citizen and his family for the rest of their lives”.118 The right to a nationality is non-derogable in the Americas and must therefore be guaranteed at all times.


3.15 The right to participate in government

Article 23 of the American Convention guarantees the right of every citizen:
_ “To take part in the conduct of public affairs, directly or through freely chosen representatives” – article 23(1)(a);
_ “To vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters” – article 23(1)(b); and
_ “To have access, under general conditions of equality, to the public service of his country” – article 23(1)(c).
Article 23(2) makes it possible to regulate the exercise of these rights, but “only on the basis of age, nationality, residence, language, education, civil and mental
capacity, or sentencing by a competent court in criminal proceedings”. The inclusion of the right to participate in government in the list of non-derogable rights in article 27(2) of the American Convention is an expression of the conviction of the American States of the fundamental importance of maintaining a democratic constitutional order for the purpose of meeting the exigencies of emergency situations. The corresponding rights in article 25 of the International Covenant have not been made non-derogable. The same applies to the more limited rights contained in article 3 of Protocol No. 1 to the European Convention. The right to participate in government must be guaranteed at all times in the Americas, including in public emergencies threatening the independence or security of the States parties to the American Convention on Human Rights.

3.16 Non-derogable rights and the right to effective procedural and judicial protection

To ensure full and effective protection of non-derogable rights in emergency situations, it is not sufficient to make them non-derogable per se: these rights must, in
addition, be accompanied by the availability at all times of effective domestic remedies to alleged victims of violations of these rights. In General Comment No.
29 on article 4 of the International Covenant, the Human Rights Committee states that: “It is inherent in the protection of rights explicitly recognized as non-derogable in article 4, paragraph 2, that they must be secured by procedural guarantees, including often judicial guarantees. The provisions of the Covenant relating to procedural safeguards may never be made subject to measures that would circumvent the protection of non-derogable rights. Article 4 may not be resorted to in a way that would result in derogation from non-derogable rights. Thus, for example, as article 6 of the Covenant is non-derogable in its entirety, any trial leading to
the imposition of the death penalty during a state of emergency must conform to the provisions of the Covenant, including all the requirements of articles 14 and 15.”119 With regard the principle of legality and the rule of law, the Committee states that: “16. Safeguards related to derogation, as embodied in article 4 of the
Covenant, are based on the principles of legality and the rule of law inherent in the Covenant as a whole. As certain elements of the right to a fair trial are explicitly guaranteed under international humanitarian law during armed conflict, the Committee finds no justification for derogation from these guarantees during other emergency situations. The Committee is of the opinion that the principles of legality and the rule of law require that fundamental requirements of fair trial must be respected during a state of emergency. Only a court of law may try and convict a person for a criminal offence. The presumption of innocence must be respected. In order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party’s decision to derogate from the Covenant.”120

In addition to containing a long list of rights that cannot in any circumstances be derogated from, article 27(2) of the American Convention in Human Rights makes
non-derogable “the judicial guarantees essential for the protection of such rights”. This phrase, which has taken on singular importance in the jurisprudence of the
Inter-American Court of Human Rights, was adopted by the 1969 Specialized Inter-American Conference in response to a proposal by the United States.121
With regard to the meaning of the term “judicial guarantees essential for the protection” of non-derogable rights, the Inter-American Court has held that: “Guarantees are designed to protect, to ensure or to assert the entitlement to a right or the exercise thereof. The States Parties not only have the obligation to recognize and to respect the rights and freedoms of the persons, they also have the obligation to protect and ensure the exercise of such rights and freedoms by means of the respective guarantees (art. 1.1), that is, through suitable measures that will in all circumstances ensure the effectiveness of these rights and freedoms.”122 However, “the determination as to what judicial remedies are ‘essential’ for the protection of the rights which may not be suspended will differ depending upon the rights that are at stake. The ‘essential’ judicial guarantees necessary to guarantee the rights that deal with the physical integrity of the human person must of necessity differ from those that seek to protect the right to a name, for example, which is also non-derogable.”123 It follows that “essential” judicial remedies within the meaning of article 27(2) “are those that ordinarily will effectively guarantee the full exercise of the rights and freedoms protected by that provision and whose denial or restriction would endanger their full enjoyment”.124 However: “The guarantees must be not only essential but also judicial. The
expression ‘judicial’ can only refer to those judicial remedies that are truly capable of protecting these rights. Implicit in this conception is the active involvement of an independent and impartial judicial body having the power to pass on the lawfulness of measures adopted in a state of emergency.”125 It thus remained for the Court to decide whether the guarantees contained in articles 25(1) and 7(6) of the Convention “must be deemed to be among those ‘judicial guarantees’ that are ‘essential’ for the protection of the non-derogable rights”.126 Article 25(1) of the American Convention reads: “Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their
official duties.” Article 7(6) provides that: “Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the
lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies.”
With regard to article 25(1), the Court concluded that it “gives expression to the procedural institution known as ‘amparo’, which is a simple and prompt remedy
designed for the protection of all of the rights recognized by the constitutions and laws of the States Parties and by the Convention.” Clearly, therefore, “it can also be applied to those that are expressly mentioned in Article 27(2) as rights that are non-derogable in emergency situations”.127 Article 7(6) was just one of the components of the institution called “amparo” protected by article 25(1).128 With regard to the fundamental importance of the writ of habeas corpus in protecting a person’s right to life and physical integrity, the Court stated: “35. In order for habeas corpus to achieve its purpose, which is to obtain a judicial determination of the lawfulness of a detention, it is necessary that the detained person be brought before a competent judge or tribunal with jurisdiction over him. Here habeas corpus performs a vital role in ensuring that a person’s life and physical integrity are respected, in preventing his disappearance or the keeping of his whereabouts secret and in protecting him against torture or other cruel, inhumane, or degrading punishment or treatment. 36. This conclusion is buttressed by the realities that have been the experience of some of the peoples of this hemisphere in recent decades, particularly disappearances, torture and murder committed or tolerated by
some governments. This experience has demonstrated over and over again that the right to life and to humane treatment are threatened whenever the right to habeas corpus is partially or wholly suspended.”129 The Court therefore concluded “that writs of habeas corpus and of ‘amparo’ are among those judicial remedies that are essential for the protection of various rights whose derogation is prohibited by Article 27(2) and that serve, moreover, to preserve legality in a democratic society”.130 With regard to article 25(1) of the Convention, the Court has furthermore ruled that the absence of an effective remedy for a violation of a right guaranteed by the Convention is by itself a violation of the Convention. A remedy must be “truly effective” and whenever it “proves illusory because of the general conditions prevailing in the country, or even in the particular circumstances of a given case, [it] cannot be considered effective”.131 In “normal circumstances” these conclusions “are valid with respect to all the rights recognized by the Convention”. However, in the Court’s view: “it must also be understood that the declaration of a state of emergency —whatever its breadth or denomination in internal law— cannot entail the suppression or ineffectiveness of the judicial guarantees that the Convention requires the States Parties to establish for the protection of the rights not subject to derogation or suspension by the state of
emergency.”132 Moreover, according to the Court, “the concept of due process of law expressed in Article 8 of the Convention should be understood as applicable, in the main, to all the judicial guarantees referred to in the American Convention, even during a suspension governed by Article 27 of the Convention.”133 Reading article 8 together with articles 7(6), 25 and 27(2) of the Convention “leads to the conclusion that the principles of due process of law cannot be suspended in states of exception insofar as they are necessary conditions for the procedural institutions regulated by the Convention to be considered judicial guarantees. This result is even more clear with respect to habeas corpus and amparo, which are indispensable for the protection of the human rights that are not subject to derogation.”134 In a paragraph summing up its basic conclusions on the question of judicial guarantees the Court held that: “the judicial guarantees essential for the protection of the human rights not subject to derogation, according to Article 27(2) of the Convention, are those to which the Convention expressly refers in Articles 7(6) and 25(1), considered within the framework and the principles of Article 8, and also those necessary to the preservation of the rule of law, even during the state of exception that results from the suspension of guarantees.”135 These interpretative criteria were later applied in the Neira Alegría et al. case, in which the Court concluded that Peru had, to the detriment of three persons, violated the right to habeas corpus guaranteed by article 7(6) in relation to the prohibition in article 27(2) of the American Convention. In this case “the control and jurisdiction of the armed forces over the San Juan Bautista Prison translated into an implicit suspension of the habeas corpus action, by virtue of the application of the Supreme Decrees that imposed the state of emergency and the Restricted Military Zone status.”136 The quelling of a riot in the prison concerned had resulted in the death of numerous inmates. Habeas corpus proceedings were brought on behalf of Mr. Neira-Alegría and two other prisoners who disappeared following the riot. The habeas corpus applications were, however, dismissed on the ground that the petitioners had not proved that the inmates had been abducted, that the incidents were investigated by the military courts and that “such occurrences were outside the scope of the summary of habeas corpus procedure”.137 In international human rights law, the principle of legality and rule of
law must be guaranteed at all times, including in public emergencies threatening the life of the nation (International Covenant and European Convention) or the security or independence of the State (American Convention). This means that, in a constitutional order respectful of human rights and fundamental freedoms,
law governs the conduct both of the State and of individuals. Non-derogable rights must be fully protected in such emergency situations. To this end, States must at all times provide effective domestic remedies allowing alleged victims to vindicate their rights before domestic courts or other independent and impartial authorities. No derogatory measures, however lawful, are allowed to undermine the efficiency of these remedies. The right to be tried by an independent and impartial tribunal is absolute under the International Covenant on Civil and Political Rights in cases in which criminal proceedings may result in the imposition of capital punishment. Such proceedings must at all times respect all the due process guarantees contained in article 14 of the Covenant which are also, to that extent, non-derogable. They must, of course, also be consistent with the prohibition of retroactive criminal law defined in the non-derogable provisions of article 15 of the Covenant.
At the American level, domestic remedies to ensure the full enjoyment of non-derogable rights must be judicial in nature, such as the writ of habeas corpus and amparo, and the proceedings concerned must respect the principles of due process of law. These principles are therefore to that extent also non-derogable under the American Convention on Human Rights.

4. Derogable Rights and the Condition of Strict Necessity

Both article 4(1) of the International Convent and article 15(1) of the European Convention lay 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”. Under article 27(1) of the American Convention, the State concerned may take such measures only “to the extent and for the period of time strictly required by the exigencies of the situation”. As shown below, however, the specification as to the time element in article 27(1) does not add anything of substance to what is already implied by the condition of strict necessity contained in articles 4(1) of the Covenant and article 15(1) of the European Convention. Lastly, article 30 of the European Social Charter, 1961, and article F of the European Social Charter, 1996 (Revised), stipulate that any derogatory measures taken must be limited “to the extent strictly required by the exigencies of the situation”.

4.1 General interpretative approach

4.1.1 Article 4(1) of the International Covenant on Civil and Political Rights

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. Derogation from some Covenant obligations in emergency situations is clearly distinct from restrictions or limitations allowed even in normal times under several provisions of the Covenant. Nevertheless, the obligation to limit any derogations to those strictly required by the exigencies of the situation reflects the principle of proportionality which is common to derogation and limitation powers.”138 Moreover, the Committee points out that: “The mere fact that a permissible derogation from a specific provision may, of itself, be justified by the exigencies of the situation does not obviate the requirement that specific measures taken pursuant to the derogation must also be shown to be required by the exigencies of the situation. In practice, this will ensure that no provision of the Covenant, however validly derogated from, will be entirely inapplicable to the behaviour of a State party.”139 Furthermore, the enumeration of non-derogable rights in article 4(2) cannot justify, even where a threat to the life of the nation exists, an a contrario argument to the effect that unlimited derogations are permissible from rights not contained in that provision, since “the legal obligation to narrow down all derogations to those strictly
required by the exigencies of the situation establishes both for States parties and for the Committee a duty to conduct a careful analysis under each article of the Covenant based on an objective assessment of the actual situation.”140 It is clear from this statement that the Committee will make its own assessment of the strict necessity of any derogatory measures taken. The Committee thereby confirms the view adopted in the Landinelli Silva and Others case considered in the early years of its work. Although the facts of that case, which concerned drastic limitations on the political rights of members of certain political groups, were not
considered ultimately under article 4 of the Covenant, the Committee made a hypothetical examination of the strict necessity of the impugned measures on the
assumption that an emergency situation existed in Uruguay.141 The Committee has on various occasions raised doubts regarding compatibility with the condition of strict proportionality when considering the periodic reports of States parties. For example, it expressed “deep concern at the continued state of emergency prevailing in Israel, which has been in effect since its independence” and recommended “that the Government review the necessity for the continued renewal of
the state of emergency with a view to limiting as far as possible its scope and territorial applicability and the associated derogation of rights”. It recalled in particular that some articles may never be derogated from and that others may only “be limited to the extent strictly required by the exigencies of the situation”.142 Spain and the United Kingdom have, among others, been criticized for prolonged and excessive use of emergency measures. In the case of Spain, the Committee was concerned, for instance, about “the suspension of the rights of terrorist suspects under article 55(2) of the Constitution and the fact that circumstances had given rise to what amounted to permanent emergency legislation”. In the case of the United Kingdom, the Committee expressed concern about “the excessive powers enjoyed by police under anti-terrorism laws” in Northern Ireland, “the liberal rules regarding the use of firearms by the police” and “the many emergency measures and their prolonged application”.143 These few examples show that the Committee is clearly concerned about the territorial, temporal and material extent of any emergency measures taken by State parties.

4.1.2 Article 27(1) of the American Convention on Human Rights

In its advisory opinion on Habeas Corpus in Emergency Situations, the Inter-American Court of Human Rights held that: “Since Article 27(1) [of the Convention] envisages different situations and since, moreover, the measures that may be taken in any of these emergencies must be tailored to ‘the exigencies of the situation,’ it is clear that what might be permissible in one type of emergency would not be lawful in another. The lawfulness of the measures taken to deal with each
of the special situations referred to in Article 27(1) will depend, moreover, upon the character, intensity, pervasiveness, and particular context of the emergency and upon the corresponding proportionality and reasonableness of the measures.”144 The right to resort to derogatory measures under article 27 is, in other words, a flexible tool to deal with emergency situations, a tool aimed at bringing back normalcy to the community. It follows that derogations from articles that cannot possibly be instrumental in restoring peace, order and democracy are not lawful under the Convention. In the above-mentioned advisory opinion, the Inter-American Court further stated that action taken by the public authorities “must be specified with precision in the decree promulgating the state of emergency” and that any action that goes beyond the limits of that strictly required to deal with the emergency “would also be unlawful notwithstanding the existence of the emergency situation”.145 The Court then pointed out that, since it is improper to suspend guarantees without complying with the foregoing conditions, “39. … it follows that the specific measures applicable to the rights and freedoms that have been suspended may also not violate these general principles. Such violation would occur, for example, if the measures taken infringed the legal regime of the state of emergency, if they lasted longer than the time limit specified, if they were manifestly irrational, unnecessary or disproportionate, or if, in adopting them there was a misuse or abuse of power. 40. If this is so, it follows that in a system governed by the rule of law it is entirely in order for an autonomous and independent judicial order to exercise control over the lawfulness of such measures by verifying, for example, whether a detention based on the suspension of personal freedom complies with the legislation authorized by the state of emergency. In this context, habeas corpus acquires a new dimension of fundamental importance.”146 4.1.3 Article 15(1) of the European Convention on Human Rights The European Court of Human Rights has examined the consistency of derogatory measures with the condition that they must be “strictly required by the exigencies of the situation” in connection with the use of special powers of arrest and detention.147 According to its jurisprudence, however, a “wide margin of appreciation”
should be left to national authorities, not only in determining whether the State is faced with a “public emergency threatening the life of the nation” but also in deciding on “the nature and scope of derogations necessary to avert it”.148 However, “The Contracting Parties do not enjoy an unlimited power of appreciation.
It is for the Court to rule on whether inter alia the States have gone beyond the ‘extent strictly required by the exigencies’ of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision… At the same time, in exercising its supervision the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of, the emergency s