Human Rights in Crisis: The International System for Protecting Rights During States of Emergency 9781512815924

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Human Rights in Crisis

Procedural Aspects o f International L a w Series Richard B. Lillich, Editor (1964-1977) Robert Kogod Goldman. Editor (1977-)

A complete list of the books in this series appears at the back of this volume.

Human Rights

in Crisis

The International System for Protecting Rights During States of Emergency Joan Fitzpatrick

Volume 19, Procedural Aspects of International Law Series

University of Pennsylvania Press Philadelphia

Copyright © 1994 by the Procedural Aspects of International Law Institute All rights reserved Printed in the United States of America Library of Congress Cataloging-in-Publication Data Fitzpatrick, Joan. Human rights in crisis: the international system for protecting rights during states of emergency / Joan Fitzpatrick. p. cm. — (Procedural aspects of international law series: v. 19) Includes bibliographical references (p. ) and index. ISBN 0 - 8 1 2 2 - 3 2 3 8 - 0 1. Human rights. 2. War and emergency legislation. 3. International law. 4. Treaties. I. Title. II. Series. K3240.4.F534 1994 341.4'81—dc20 93-30873 CIP

Contents

Editor's Foreword

ix

Acknowledgments

xi

Chapter I. Defining t h e Problem

1

A. Introduction B. The ILA Study C. The Questiaux Report D. Rossiter's Comparative Historical Study

1 3 21 23

Chapter II. Effects of Emergencies on Human Rights

29

A. Introduction B. Changes in the Allocation of Powers C. Violations of Non-Derogable Rights D. Emergency Limitations on Other Fundamental Rights E. Administrative Detention

29 29 35 36 38

Chapter III. Setting Standards

50

A. Introduction B. Treaty Standards 1. Severity 2. Notification and Proclamation 3. Good Faith Motivation 4. Other International Obligations 5. Proportionality 6. Non-Discrimination 7. Non-Derogable Rights

50 51 55 58 59 59 60 61 63

vi

Contents

C. T h e Search f o r General Standards 1. Efforts to Identify Lex Lata 2. Treaty Interpretation 3. Conclusions to General Studies a n d C o m p r e h e n s i v e Standards 4. Model Emergency Laws

Chapter IV. The United Nations System: Treaty Organs A. B. C. D.

Introduction T h e H u m a n Rights C o m m i t t e e T h e International l a b o u r Organisation T h e C o m m i t t e e Against T o r t u r e

Chapter V. The United Nations System: Non-Treaty Mechanisms A. Introduction B. T h e Commission on H u m a n Rights 1. T h e Resolution 1503 P r o c e d u r e 2. Ad Hoc Investigations a n d Advisory Services a. Chile b. Equatorial G u i n e a c. Guatemala d. Bolivia e. El Salvador f. Poland g. Afghanistan h. Iran i. Haiti j. Inaction 3. T h e m e Mechanisms a. Working G r o u p on Enforced o r Involuntary Disappearances b. Special R a p p o r t e u r on Extrajudicial, S u m m a r y o r Arbitrary Executions c. Special R a p p o r t e u r on T o r t u r e d. Special R a p p o r t e u r s o n Religious Intolerance a n d Mercenaries e. Working G r o u p on Arbitrary Detention

66 67 68 70 77

82 82 82 106 112

115 115 116 116 126 127 132 133 136 138 140 142 145 147 148 152 153 159 162 164 164

Contents

vN

4. Special Sessions of the Commission C. T h e Sub-Commission on Prevention of Discrimination and Protection of Minorities 1. Special Rapporteur on States of Emergency 2. Abstract Studies D. United Nations Educational, Scientific and Cultural Organization E. T h e Secretary-General and the Security Council

166

175 176

Chapter VI. Regional Systems

178

A. T h e Organization of American States 1. T h e Inter-American Commission on Human Rights a. Special Country Reports b. On-Site Visits c. Individual Complaints d. Annual Reports 2. T h e Inter-American Court of Human Rights B. T h e Council of Europe 1. The European Commission of Human Rights 2. The European Court of Human Rights 3. The Committee of Ministers of the Council of Europe 4. T h e Parliamentary Assembly of the Council of Europe C. T h e Future for Europe

178 178 178 180 185 188 190 193 193 201

168 168 173

203 204 205

Chapter VII. The Role of Non-Governmental Organizations

210

A. Introduction B. T h e Role of the Press C. T h e Roles of International and National N G O s D. T h e International Committee of the Red Cross

210 212 213 218

Chapter VIII. Conclusion

223

Appendix. The Queensland Guidelines for Bodies Monitoring Respect for Human Rights During States of Emergency

227

«NI

Contants

Bibliography

233

Table of Cases

249

Index

253

Editor's Foreword

Human Rights in Crisis is the most recent book in the Procedural Aspects of International Law Series and the first to be published by the University of Pennsylvania Press. Its author, Joan Fitzpatrick, Professor of Law at the University of Washington, is a respected scholar who has a particular expertise in the subject of states of emergency and their impact on the protection of human rights. From 1985 to 1991 she was Rapporteur to the Committee on the Enforcement of Human Rights Law of the International Law Association. In that role, Professor Fitzpatrick prepared three important analytical reports for the Committee on monitoring human rights during emergency situations. While there is no dearth of scholarly publications on states of emergency, most published material on the subject generally focuses on a particular study or on the effects of an emergency situation in a particular country or region. In contrast, Professor Fitzpatrick's work is thoroughly global in scope and addresses the most recent developments in the field. She begins by defining and categorizing various kinds of emergency situations, and then examines the adverse effects that such situations typically have on the protection of human rights and the rule of law in a particular society. In a chapter on standard setting, Professor Fitzpatrick does a comparative analysis of treaty-based standards applicable to states of emergency and discusses the efforts of official and private groups, confronted with the gaps and deficiencies in existing law, to elaborate new, non-treaty-based guidelines to protect the basic rights of those affected by emergency situations. The remainder of the book is devoted to an in-depth examination of the effectiveness of various treaty implementation bodies and other institutions in monitoring states of emergency. This encompasses a critical assessment of the performance of all relevant UN treaty and non-treaty-based organs, including the Human Rights Committee, the Human Rights Commission and its Sub-Commission on the Preven-

x

Editor's Foreword

tion of Discrimination and Protection of Minorities, various ad hoc investigative mechanisms, and the controversial advisory services program. The innovative use of "theme" mechanisms having a global mandate to monitor specific human rights abuses is also assessed. On the regional level, the author similarly critiques the operations and impact of the supervisory machinery established by the Organization of American States, (i.e., the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights) and of the principal human rights organs of the Council of Europe (i.e., the European Commission on Human Rights and European Court of Human Rights). Professor Fitzpatrick devotes a full chapter to describing the substantial and important contributions of non-governmental human rights organizations in the study, documentation, and exposure of gross abuses by governments during emergency situations, as well as their efforts to set new standards in the field. Unlike many other writers on the subject, Professor Fitzpatrick does discuss the unique mandate and operations of the International Committee of the Red Cross in assisting victims of internal armed conflicts and lesser forms of civil strife. Given Professor Fitzpatrick's exhaustive treatment of the subject, Human Rights in Crisis should prove to be an invaluable source of information for students and practitioners of human rights law. *

#

*

On a personal note, I wish to acknowledge with thanks the very considerable contributions made by my Dean's Fellow, Paul A. Barkan, in editing this volume. Robert Kogod Goldman Washington, D.C.

Acknowledgments

This study is the culmination of more than a decade of work on the problem of protecting human rights during states of emergency, which began with the preparation of a thesis under the supervision of Maurice Mendelson, then of St. John's College, Oxford. Special thanks go to Professor Richard Lillich of the University of Virginia for his constant encouragement and assistance throughout the drafting of the three reports for the Committee on the Enforcement of Human Rights Law of the International Law Association, which led up to the present study. The comments of other members of the Committee, especially Subrata Roy Chowdhury, are gratefully acknowledged. I am extremely thankful for financial support for research provided by the University of Washington Law School Foundation and the Ford Foundation. The Ford Foundation also provided funding that enabled me to obtain the services of three extremely fine research assistants, Alice Miller, Laurie Powers, and Matthew Miller. Their help and that of my secretary, James Thompson, were indispensable for the completion of this work. I am also grateful to Professor Robert Kogod Goldman of American University, the editor of the Procedural Aspects of International Law Series, for his valuable help in revising the manuscript.

Chapter I

Defining the Problem

A. Introduction That human rights may be imperiled during states of emergency 1 is self-evident. Whether patterns of human rights abuse during states of emergency are sufficiently in a class by themselves to justify, or even to demand, distinct monitoring 2 is far less clear. Yet enough people have thought so, and even attempted to do so, that there is a wealth of material to analyze in this study. Indeed, the major problem with an examination of systems for 1. T h e most useful terminology is a matter of debate. "States of exception" is a m o r e general term which emphasizes the fact that exceptions are being m a d e to the normal legal regime, thus stressing the formal legal aspect of the p h e n o m e n o n a n d the notion that there is a preexisting paradigm of normality d u r i n g which rights are protected to a h i g h e r degree. But this phrase has the drawback of describing m o r e accurately the situation in civil law systems a n d is not a particularly apt term for emergencies in c o m m o n law systems or in m o r e chaotic de facto situations of crisis. Likewise, "derogation" implies that the state is a party to a particular h u m a n rights treaty whose provisions it is temporarily suspending to some degree. Since universal ratification of the key treaties has not occurred, this term has obvious defects. "States of emergency" has t h e drawback of having a technical legal meaning in certain civil law systems, as a state of exception of lesser gravity than the "state of siege." T h e term "state of siege" shares this drawback if used as a generic term. However, "states of emergency" possesses the advantages of breadth of reference to a wide variety of factual circumstances, deemphasis u p o n any particular pattern of formal legal alterations, stress u p o n the temporary crisis aspect of the situation, a n d a hint of danger. "States of e m e r g e n c y " thus will be used t h r o u g h o u t this book in its generic rather than technical sense. 2. T h e term "monitoring" is intended to encompass scrutiny by a variety of organs, including treaty implementation bodies such as the E u r o p e a n or Inter-American Commissions on H u m a n Rights and t h e H u m a n Rights Committee; non-treaty-based intergovernmental bodies such as t h e United Nations Commission on H u m a n Rights; nongovernmental organizations concerned with h u m a n rights matters; the press, a n d so on. T h e term "enforcement" overstates the capacity of these bodies to force compliance by g o v e r n m e n t s with their h u m a n rights obligations.

2

Chapter I

m o n i t o r i n g h u m a n rights abuse d u r i n g states of e m e r g e n c y is that o n e must canvass essentially all of the h u m a n rights m o n i t o r i n g mechanisms that have e m e r g e d in the past half-century, a n d some of even earlier origin. T h e p h e n o m e n o n of h u m a n rights abuse d u r i n g emergencies is a matter of concern to all h u m a n rights monitors, f r o m those with t h e most broadly defined agendas to those with t h e narrowest, but not necessarily because of the correlation of the abuse with the emergency. O n e u n d e r c u r r e n t that will run t h r o u g h o u t this study is the question w h e t h e r these monitors should behave in a distinct m a n n e r when they e n c o u n t e r h u m a n rights abuses coincident to states of emergency. No single answer will fit every monitor. Two major obstacles bedevil any attempt to devise special monitoring mechanisms for states of emergency: first, the difficulty in d e f i n i n g a coherent a n d predictably determinable category of situations that fall u n d e r the h e a d i n g of "states of emergency," to the clear exclusion of o t h e r situations in which h u m a n rights abuses also might be occurring; and, second, the fact that only some, but not all, emergencies p r o d u c e h u m a n rights abuses of especial severity or of distinct types. As o n e writer noted, "Hitler could shout 'necessity!' as easily as Lincoln," 3 a n d both did. Yet o n e could a r g u e that the h u m a n rights abuses of a Hitler call for monitoring on an o r d e r entirely different f r o m the abuses of a Lincoln, despite the c o m m o n context of emergency. T h u s , the first task of this introductory c h a p t e r is to a t t e m p t to define and categorize states of emergency, to see if a usable, reasonably coherent concept will be available f o r emergency-specific monitoring. Second, patterns of h u m a n rights abuse that tend to be associated with states of emergency (though without any perfect c o n g r u e n c e ) will be described, in o r d e r to set the stage for analyzing the p r o p e r roles of h u m a n rights monitors. Looking at the pieces of the puzzle individually can be a useful prelude to d e t e r m i n i n g w h e t h e r the pieces, when placed together, f o r m any pattern. T h e creation of a typology of emergency situations has been a t t e m p t e d several times. T h r e e such attempts will be e x a m i n e d here: (1) that offered by the Committee on the E n f o r c e m e n t of H u m a n Rights Law of the International Law Association (ILA), f o r which t h e a u t h o r acted as r a p p o r t e u r ; 4 (2) the "reference model" a n d various 3 . C . R O S S I T E R , C O N S T I T U T I O N A L D I C T A T O R S H I P : C R I S I S G O V E R N M E N T IN T H E M O D E R N

DEMOCRACIES 12 ( 1 9 4 8 ) [ h e r e i n a f t e r ROSSITER],

4. T h e a u t h o r p r e p a r e d three reports for the Committee on the Enforcement of H u m a n Rights Law on the question of monitoring h u m a n rights abuses d u r i n g states of emergency: the Interim Report to the Sixty-Second Conference of the International 1-aw Association in Seoul in 1986 (hereinafter 1986 Seoul Report), the Second Interim Report to the Sixty-Third Conference of the International Law Association in Warsaw in 1988

Defining the Problem

3

"deviations" therefrom identified by Nicole Questiaux in her 1982 study for the United Nations Sub-Commission on the Prevention of Discrimination and the Protection of Minorities;"' and (3) Clinton Rossiter's study of the wartime regimes in the United Kingdom, Germany, France and the United States in which he notes interesting differences among the civil law and c o m m o n law traditions of emergency powers.1'

B. The ILA S t u d y T h e ILA has a long-standing interest in the problem of protecting human rights during states of emergency, going back at least as far as 1976, when one of its subcommittees began to examine regional difficulties in implementing human rights norms. 7 This subcommittee concentrated upon the elaboration of substantive standards to which states should conform even during times of emergency. In 1984, after the adoption of the Paris Minimum Standards of Human Rights Norms in a State of Emergency, 8 the ILA's Committee on the Enforcement of Human Rights Law turned its attention to problems in the monitoring of human rights abuses during states of emergency. A rough survey at the time of the 1986 ILA report revealed approximately seventy states (hereinafter 1988 Warsaw Report), a n d the Final Report on Monitoring States or E m c r gency: Guidelines for Bodies Monitoring Respect for H u m a n Rights During States of Emergency to the Sixty-Fourth C o n f e r e n c e of the International Law Association in Queensland in 1990 (hereinafter Queensland Report). This book draws u p o n those studies, which were f u n d e d by several grants f r o m the Ford Foundation, the University of Washington Law School Foundation, the E u r o p e a n H u m a n Rights Foundation a n d the University of Virginia Center for I-aw and National Security. 5. N. Questiaux, Study of the Implications for Human Righk of Recent Developments Concerning Situations Known as States of Siege or Emergency, U.N. Doc. E/CN.4/Sub.2/ 1982/15, at 2 2 - 2 8 (1982) [hereinafter Questiaux Report). 6. See supra note 3. 7. T h e Subcommittee on Regional Problems in the Implementation of H u m a n Rights, u n d e r the chairmanship of Subrata Roy Chowdhury, prepared a series of three reports c o n c e r n i n g states of emergency which were presented to the ILA conferences in Manila in 1978, Belgrade in 1980, and Montreal in 1982. T h e work of this Subcommittee was m e r g e d into the Committee on the Enforcement of H u m a n Rights Law, which d r a f t e d the Paris Minimum Standards of H u m a n Rights Norms in a State of Emergency (hereinafter Paris M i n i m u m Standards) adopted by the ILA in 1984. T h e work of the ILA in d r a f t i n g substantive standards for protection of h u m a n rights d u r i n g states of emergency is described briefly in the 1986 Seoul Report, supra note 4, at 108-110. See S.R. Chowdhury,

R U L E OF L A W IN A S T A T E OF E M E R G E N C Y : T H E

PARIS M I N I M U M S T A N D A R D S OF

HUMAN RIGHTS NORMS IN A STATE OF EMERGENCY ( 1 9 8 9 ) ( p r o v i d i n g e x t e n s i v e b a c k -

g r o u n d information and analysis of the ILA's standard-setting work in this area). 8. See supra note 7. T h e Paris M i n i m u m Standards were drafted u n d e r the chairmanship of Professor Richard Lillich of the ILA Committee on the Enforcement of H u m a n Rights Law. Paris Minimum Standards, reprinted in 79 AM. J. INT'L. L. 1072 (1985).

4

Chapter I

that were undergoing some type of emergency with varying consequences for the enjoyment of human rights.9 Not all of these emergencies follow upon an official proclamation under procedures laid out formally in the national constitution or basic law and for a limited duration. The ILA Committee chose not to confine its attention to such narrowly and formally defined emergencies out of concern that many serious human rights abuses may occur in other contexts that nevertheless merit the label of state of emergency. Moreover, a restriction to formally declared emergencies would itself be problematic. For example, Brunei has repeatedly extended a formal emergency originally imposed on 12 December 1962 in reaction to a revolt on 8—12 December by the North Borneo National Army, which opposed a plan to federate with Malaysia. Although the revolt was completely quelled by British troops under Brunei's security agreement with the United Kingdom, the Sultan has formally renewed the state of emergency every two years, and several persons involved in the 1962 events remained under detention until January 1990. T h e 1962 Emergency Orders and the Internal Security (Detained Persons) Order of 1964 permit executive detention, expulsion, and exile, and effectively, but not formally, suspend portions of the 1959 Constitution. 10 These measures remain in effect despite the fact that "[s]ince 1962 there have been no disturbances or agitation in Brunei." 11 Defining what is the normal and what is the emergency legal regime of Brunei thus challenges the imagination. The Brunei example has been replicated in a number of other countries around the globe, including Egypt, 12 Turkey, 13 and Paraguay.14 9. 1986 Seoul Report, supra note 4, at 112, 112 n.7. 10. 1988 Warsaw Report, supra note 4, at 143, 143 n.87. See COUNTRY REPORTS ON H U M A N R I C H T S P R A C T I C E S FOR 1 9 9 0 , U . S . D E P ' T O F S T A T E R E P O R T S U B M I T T E D T O T H E S E N A T E C O M M . ON F O R E I G N R E L A T I O N S AND T H E H O U S E C O M M . ON F O R E I G N

AFFAIRS,

102d Cong., 1st Sess. 816 (Joint Comm. Print 1991) [hereinafter COUNTRY REPORTS FOR 1990], 11. COUNTRY REPORTS FOR 1 9 9 0 , supra n o t e 10, at 8 1 6 . 1 2 . A M N E S T Y I N T E R N A T I O N A L , E G Y P T : A R B I T R A R Y D E T E N T I O N AND T O R T U R E

UNDER

EMERGENCY POWERS 3 - 4 (1989) ("an almost continuous state of emergency" since 1967, with a brief hiatus between 15 May 1980 and 6 October 1981). At the time of a three-year extension in May 1988, "the Prime Minister stated to the People's Assembly that its p u r p o s e was to protect democracy, a n d that an end to terrorism in the near f u t u r e was not foreseen." Id. at 3. 13. At a workshop on suites of emergency held at Queen's University in Belfast, N o r t h e r n Ireland, on 5—6 April 1991, Professor Mehmet Semih Gemalmaz of the University of Istanbul noted that for almost thirty of the sixty-seven years of the existence of the Turkish Republic, the nation had been u n d e r some kind of state of exception (martial law, state of siege or state of emergency). See M.S. Gemalmaz, State of Emergency

S

Diflnlnf tfM P r a M t n

But

recognizing

the

states o f e m e r g e n c y

inadequacy

does

of

a

purely

formal

definition

not significantly a d v a n c e inquiry.

For

thing, there are varying d e g r e e s o f formality. Sometimes a n e w

of one

regime

will c a r r y o v e r the e m e r g e n c y laws o f a p r e d e c e s s o r w i t h o u t a n y f o r m a l d e c l a r a t i o n o r s u s p e n s i o n o f c o n s t i t u t i o n a l p r o v i s i o n s . F o r e x a m p l e , in the O c c u p i e d Territories u n d e r the control o f Israel, the p o w e r s o f a d m i n i s t r a t i v e d e t e n t i o n , d e p o r t a t i o n , c u r f e w s , s u m m a r y military trials, a n d the use o f f o r c e b y the Israeli D e f e n s e Forces a r e b a s e d u p o n Defence

(Emergency)

Mandate

in

tinued

by

24 M a y

Palestine.15

Regulations Israel

the proclamation

(EDR)

issued

asserts that the

of a Jordanian

under

1945 E D R

the

1945

British

were

con-

military c o m m a n d e r

on

1948, by J o r d a n i a n a n n e x a t i o n law,16 a n d by the 1952 J o r d a -

n i a n C o n s t i t u t i o n . 1 7 I s r a e l c l a i m s t h a t w h e n it s e i z e d t h e W e s t B a n k it s i m p l y m a i n t a i n e d t h e s e p r o v i s i o n s in f o r c e . A n s w e r i n g t h e q u e s t i o n w h e t h e r Israel o r t h e O c c u p i e d T e r r i t o r i e s a r e u n d e r a n y f o r m a l state of e m e r g e n c y can be quite

vexing.18

Rule M the Turkish Legal System: Perspectives and Texts, 1 1 - 1 2 TURK. Y . B . HUM. RTS. 115 (1989-90). 14. T h e repeatedly r e n e w e d state o f siege in Paraguay was allowed to lapse in 1987. COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 1988, U.S. DEP'T OF STATE REPORT SUBMITTED TO THE SENATE COMM. ON FOREICN RELATIONS AND THE HOUSE COMM. ON FOREIGN AFFAIRS, 101st C o n g . , 1st Sess. 669 (Joint C o m m . Print 1989) [ h e r e i n a f t e r COUNTRY REPORTS FOR 1988], T h e I n t e r - A m e r i c a n C o m m i s s i o n on H u m a n

Rights

( I A C H R ) noted in 1987 that i m p l e m e n t i n g legislation required by Article 79 o f the Constitution had n e v e r been a d o p t e d , and that " t h e provisions o f the state o f siege h a v e been a p p l i e d broadly and in an ad hoc manner, according to the specific needs o f the political m o m e n t and the assessment t h e r e o f by the executive p o w e r . " INTER-AM. C . H . R . , REPORT ON THE SITUATION OF HUMAN RIGHTS IN PARAGUAY 20, O E A / S e r . L / V / 11.71, doc. 19, rev. 1 (1987). Even m o r e interestingly, the I A C H R observed after an onsite visit to Paraguay in February 1990, f o l l o w i n g G e n e r a l A l f r e d o Stroessner's fall f r o m p o w e r in 1989, that "habits and customs that h a m p e r the full observance o f h u m a n rights"

remain because o f the " h e a v y legacy o f three decades o f authoritarian gov-

e r n m e n t systematically violating human rights." INTER-AM. C . H . R . , 1 9 8 9 - 9 0 ANNUAL REPORT 168, O E A / S e r . L / V / I I . 7 7 , doc. 7, rev. 1 ( 1 9 9 0 ) [ h e r e i n a f t e r I A C H R

1989-90

ANNUAL REPORT]. T h u s , the Paraguayan e x a m p l e raises serious questions as to the relevance o f the f o r m a l state o f e m e r g e n c y as a factor in the e n j o y m e n t o f human

rights.

15. [1945] Palestine Gazette (no. 1442) (Supp. 2) 1055. 16. O n 24 A p r i l 1950, a j o i n t session o f the J o r d a n i a n parliament a d o p t e d a resolution p r o c l a i m i n g the unity o f the East and West Banks into the H a s h e m i t e K i n g d o m o f J o r d a n . Y . Z . BLUM, T H E JURIDICIAL STATUS OF JERUSALEM 1 6 - 1 7 (1974). 17. See INTERNATIONAL COMMISSION OF JURISTS, ISRAEL NATIONAL SECTION, T H E RULE OF LAW IN THE AREAS ADMINISTERED BY ISRAEL (1981). 18. T w o additional factors m u d d y the waters in the context o f the O c c u p i e d T e r r i t o ries. W h e n East Jerusalem was a n n e x e d by Israel, apparently o n e result was that the Israeli D e f e n s e Forces w e r e n o l o n g e r r e g a r d e d as an occupying p o w e r and thus lost responsibility f o r e n f o r c i n g the E D R in the city. In January 1988, in the early stages o f

6

Chapter I

Common law states, particularly those without written constitutions, may not require a formal proclamation of emergency in order to permit the imposition of extraordinary security laws in times of crisis. Yet, when such states are parties to human rights treaties, they may be required to file formal notices of derogation under the terms of the treaties. For example, the United Kingdom is a party both to the European Convention on Human Rights 19 and the International Covenant on Civil and Political Rights.'20 T h e long-standing crisis in Northern Ireland has been dealt with through application of a series of statutes granting wide powers of arrest, internment without trial, trial in special courts, investigatory detention, and restrictions on media coverage of proscribed organizations. 21 Parliamentary enactment (perhaps long the intifada, this anomalous situation was highlighted when the police in Jerusalem were secretly authorized to exercise special emergency powers similar to those enforced on the West Bank, including the imposition o f a curfew in one Arab neighborhood and actions to break a strike by shopowners. T h e new police powers were reported to have been announced only over the Arab-language radio station in Jerusalem, and the government appeared to be reluctant to admit the new arrangement or to make any kind o f formal proclamation. Israelis Impose Curfew on East Jerusalem Area, N Y . TIMES, J a n . 23, 1988, at 6, col. 5. T h e status o f emergency powers in Israel and the Occupied Territories is made even more ambiguous by the fact that a state of emergency was declared in Israel on 21 May 1948, and the 1945 EDR were absorbed into Israeli law. See Leon v. Gubernik, H.C. 5/48, I Piskei Din 58 (1948) and Ziv v. Tel Aviv District Commissioner, H.C. 10/48, 1 Piskei Din 85 (1948), cited in H. Rudolph, The Judicial Review of Administrative Detention Orders in Israel, 14 ISR. Y . B . ON HUM. RTS. 148, 149 (1984). Apparently, the application of the EDR does not depend upon the proclamation o f a state o f emergency. S. Shetreet, A Contemporary Model of Emergency Detention Laws: An Assessment of the Israeli Law, 14 ISR. Y.B. ON HUM. RTS. 182, 184 (1984). However, the 1979 amendments to the provisions for administrative detention (Regulations 108 and 111, Emergency Powers [Detention] Law, 5739/1979) do apparently depend on the existence o f a state o f emergency See E. PLAYF A I R , A D M I N I S T R A T I V E D E T E N T I O N IN T H E O C C U P I E D W E S T B A N K ( 1 9 8 6 ) ; M . S a l t m a n ,

Use of the Mandatory (1982).

Emergency Laws by the Israeli Government,

The

10 INT'L. J . S o c . L. 3 8 5

1 9 . E U R . C O M M ' N O F H U M . R T S . , S T O C K - T A K I N G ON THF. E U R O P E A N C O N V E N T I O N ON HUMAN RIGHTS, SUPPLEMENT 1 9 8 8 , at a p p . I ( 1 9 8 9 ) .

20. Report of the Human Rights Committee, 4 5 U.N. GAOR Supp. (No. 40), U.N. Doc. A/45/40 Annex I (1990). 21. E.g., the Civil Authorities (Special Powers) Act (Northern Ireland), 1922, 12 & 13 GEO. 5, N. Ir. Pub. Gen. Acts o f 1922, ch. 5; the Northern Ireland (Emergency Provis i o n s ) A c t 1 9 8 7 , P U B L I C G E N E R A L A C T S & M E A S U R E S OF 1 9 8 7 ( p i . I I ) , c h . 3 0 ; t h e

Preven-

tion o f T e r r o r i s m ( T e m p o r a r y P r o v i s i o n s ) A c t 1 9 7 4 , PUBLIC GENERAL ACTS & MEASURES

OF 1974 (pt. II), ch. 56; the Prevention o f Terrorism (Temporary Provisions) Act 1976, P U B L I C G E N E R A L A C T S & M E A S U R E S OF 1 9 7 6 ( p t . 1), c h . 8 ; t h e P r e v e n t i o n o f

Terrorism

( T e m p o r a r y P r o v i s i o n s ) A c t 1 9 8 4 , P U B L I C G E N E R A L A C T S & M E A S U R E S OF 1 9 8 4 ( p t . I), c h .

8 ; P r e v e n t i o n o f T e r r o r i s m ( T e m p o r a r y P r o v i s i o n s ) A c t 1 9 8 9 , PUBLIC GENERAL ACTS OF

M i n i n g UM P r o b l e m

7

before a specific crisis occurs) or issuance of regulations or directives by administrative officials to whom relevant power has been delegated is all that is formally necessary in the British system as a prelude to application of these emergency powers. However, authorities in the United Kingdom have f o u n d it necessary because of their treaty obligations to proceed in a more formal m a n n e r by issuing or renewing notices of derogation when these emergency laws are actually being applied in a specific crisis, at least if the measures involve suspension of treaty obligations.' 22 Scholars of the Northern Ireland situation have noted that recent legislation "has the effect of blurring a distinction . . . between emergency powers and anti-terrorism provisions. . . . [T]hen a p e r m a n e n t emergency state becomes the 'solution' to the emergency." 23 Despite the differences in formalities, therefore, the distinction between states such as the United Kingdom and Brunei also blurs in defining the "normal" versus the "emergency" legal regimes. 24 But if one moves away f r o m a formal definition of states of emergency, the major line-drawing problem becomes distinguishing between de facto emergencies a n d situations that should not be classified as emergencies at all. Some coherent definition of states of emergency, including both formal and defacto emergencies, is a prerequisite to any emergency-specific system of monitoring h u m a n rights abuses. While recognizing that each emergency is factually unique, as well as complex and variable over time, the ILA Committee attempted to 1989 (pt. I), ch. 4. See Directives issued 19 October 1989 by the Secretary of State under section 29(3) of the Broadcasting Act 1981, reprinted m Brind v. Secretary of State for the Home Department, [1991] 1 All E.R. 720, 727 (H.L.). 22. T h e most recent notice of derogation by the United Kingdom under the European Convention was issued on 23 December 1988, in response to the judgment by the European Court of Human Rights in the case of Brogan v. United Kingdom. Brogan v. United Kingdom, 11 Eur. H .R. Rep. 117 (1988) (ser. A, No. 145-B) (judgment of Eur. Ct. H.R.). Brogan found that investigative detentions under section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 of up to six and a half days, without appearance before judicial authority, violated article 5(3) of the Convention. A similar notice of derogation was filed under the Covenant on 23 December 1988. T h e U.K.'s previous notices of derogation had been terminated on 22 August 1984. See ASSOCIAT I O N OF T H E B A R O F T H E C I T Y O F N E W Y O R K , C R I M I N A L J U S T I C E AND H U M A N R I G H T S IN

NORTHERN IRELAND 2 4 - 3 0 ( 1 9 8 8 ) .

23. J.D. Jackson, The Northern Ireland (Emergency Provisions) Act 1987, 39 N. IR. L.Q. 235, 257 (1988). 24. Another puzzling example of the difficulties in assessing whether a formal emergency exists is provided by Angola. Angola formally established military courts to try civilians in political cases in areas affected by the conflict with UNITA in 1983, but it did not formally proclaim an emergency or suspend its constitution, nor was it required to n o t i f y a n y h u m a n rights t r e a t y b o d y . AMNESTY INTERNATIONAL, ANNUAL REPORT 1 9 8 5 19

(1985). T h e Angolan example is replicated in numerous other situations.

•

QiapMrl

divide emergencies into a six-part typology. T h e two central factors for classification were (1) the distinction between formal (or dejure) emergencies and de facto emergencies, and (2) whether actual conditions in the country constituted a serious public emergency, threatening the life of the nation, from whatever cause. 25 Several further distinctions are necessary within the category of unjustified de facto emergencies. T h e typology can be illustrated graphically in Table 1. T h e importance of categorization along these lines can best be explained by use of concrete examples. Type 1: The "Good" De Jure Emergency This type of emergency is the one sanguinely envisioned by the drafters of the derogation clauses in the major human rights treaties: actual conditions of public emergency threatening the life of the nation that regrettably, but unavoidably, make extraordinary measures and thus suspension of certain treaty rights necessary. T h e imposition of emergency measures is accompanied by formal declaration, if required by national law, plus notification to the other states parties under any relevant treaty. Emergencies meeting the criteria of Type 1 would be included under any mechanism of emergency-specific monitoring. 26 However, the criteria for classifying emergencies into Type 1 contain an element of subjectivity, and their application would be open to dispute in specific situations. While determining whether the formalities have been completed may be easy, measuring the gravity of the threat to the nation is difficult because of the possible inaccessibility of reliable and complete data and potential political or other bias in assessment. Under the ILA Committee's analysis, however, the term "good" should not be taken too literally, because it signifies only that the conditions for a formal emergency have been met. This still leaves open the possibility that the emergency may involve serious human rights abuses, such as violation of non-derogable rights or lack of proportionality between crisis conditions and the specific measures imposed. In fact, the ILA Committee suggested that it would be ex25. T h e threshold of severity is drawn f r o m the three major h u m a n rights treaties with derogation clauses: European Convention Article 15(1), ICCPR Article 4(1) and American Convention Article 27(1). T h e potential causes of serious emergencies are infinitely variable, but can be roughly classed u n d e r three headings: war, internal tension, and natural disaster. 1986 Seoul Report, supra note 4, at 113. 26. Two such examples are the proposal that the H u m a n Rights Committee request immediate supplemental reports from derogating states u n d e r the ICCPR (see C h a p t e r IV) and the Sub-Commission's list of states u n d e r formal emergencies (see Chapter V).

-»W N » W »M• N I^ M — V M• I P D

TABLE

T«

I.

Z)e Jure

De Facto

Actual Emergency

(1) "Good" de jure emergency Actual emergency conditions Formal declaration and/or notification

(3) "Classic" de facto emergency Actual emergency conditions No formal declaration and/or notification

No Actual Emergency

(2) "Bad" de jure emergency

(4) "Ambiguous or potential" de facto emergency No real emergency conditions No formal declaration and/or notification Sudden change in application of security laws

No real emergency conditions Formal declaration and/or notification

(5; "Institutionalized" emergency No real emergency conditions Lifting of prior formal emergency Simultaneous incorporation of emergency laws in ordinary law (6) "Ordinary" repression No real emergency conditions No formal declaration or notification Permanent laws with extreme restrictions on human rights.

10

Chapter I

tremely difficult to identify a single concrete instance of a de jure e m e r g e n c y that fully complied with all international standards. 2 7 A n d even if such a case could be identified, serious h u m a n s u f f e r i n g probably still would have occurred d u r i n g the crisis, since a threat to the life of t h e nation implies that the population is menaced by some grave danger. Type 2: The "Bad" De Jure Emergency T h i s type was also anticipated by the treaty d r a f t e r s a n d certainly merits inclusion in any emergency-specific monitoring p r o g r a m . T h e " b a d " de jure e m e r g e n c y is invoked by g o v e r n m e n t s that are either acting out of antidemocratic or self-interested motives, or are overreacting to modest stresses in imposing a formal state of e m e r g e n c y in the absence of a g e n u i n e t h r e a t to the nation. T h e E u r o p e a n Commission of H u m a n Rights f o u n d in 1967, for example, that the military r e g i m e in Greece had s u s p e n d e d rights u n d e r the E u r o p e a n Convention without any plausible o r substantial reasons. 2 S L o n g - p r o l o n g e d emergencies, such as that in Chile 2 9 a n d many other states, also fit into this category. T h e "bad" de jure e m e r g e n c y is frequently and somewhat inaccurately perceived as the p a r a d i g m f o r abuse of h u m a n rights associated with states of e m e r g e n c y (the p o p u l a r stereotype of the Latin American dictatorship). Such abuses are also associated with "good" de jure 27. 1988 Warsaw Report, supra note 4, at 147. 28. T h e "Greek" Case, 1969 Y.B. EUR. CONV. ON HUM. RTS. 4 5 - 7 6 (Eur. C o m m ' n of H u m . Rts.). This is t h e classic example of a treaty implementation body rejecting a d e r o g a t i n g government's claim that it faced a genuine emergency. T h e Commission focused on the actual situation (the level of disturbances to public order, etc.) and not u p o n the revolutionary character of the Colonels' regime. T h e question of the relevance of g o v e r n m e n t motive will be discussed f u r t h e r in C h a p t e r 11. See F. Hassan, A Juridical Critique of Successful Treason: A Jurisprudential Analysis of the Constitutionality of Coup d'etat m the Common

Law,

2 0 STAN. J . INT'L L . 1 9 1 ( 1 9 8 4 ) .

29. Seventeen years of military rule since the c o u p in September 1973 e n d e d in Chile when an elected civilian government took office on 11 March 1990. IACHR 1989-90 ANNUAL REPORT, supra note 14, at 133-135. According to the IACHR. this "fully reinstated a representative and constitutional democratic system of government." Id. at 133. Prior to that time, however, a series of states of siege (e.g., from 7 September 1986 to 6 J a n u a r y 1987), states of emergency and other states of exception had prevailed. 1988 Warsaw Report, supra note 4, at 193 n.100. Articles 39, 40, 41 and transitory provisions 15 a n d 24 of the 1980 Constitution set out elaborate degrees of states of exception for situations of internal o r external war, internal disturbances or natural calamity. Id. O n e or the other of these states of exception had been almost continually in force d u r i n g the military regime.

Defining the PraMtm

11

emergencies and with the various subcategories of de facto emergencies. But in "bad" dejure emergencies, emergency measures are, almost by definition, disproportionate to the "exigencies" of the situation and frequently result in deprivation of non-derogable rights. T h e imposition or maintenance of a "bad" de jure emergency thus seems to be a reasonably good predictor of h u m a n rights abuse and presents the strongest argument for emergency-specific monitoring. T h e existence of a "bad" formal emergency is not, however, a strong predictor of the severity of associated h u m a n rights abuses. Long-prolonged formal emergencies may blend gradually into the normal legal regime, and h u m a n rights abuses may moderate over time. It may become difficult to distinguish these prolonged formal emergencies from Type 5 ("institutionalized" defacto emergencies) or Type 6 ("ordinary" repression). Yet, the government's invocation of emergency powers in these instances merits scrutiny simply because it is likely to cast some light u p o n the underlying issue of whether there is anything unique about the abuse of h u m a n rights in emergency contexts. Type 3: The "Classic" De Facto Emergency As noted in Table 1, which divides de facto emergencies into four types, non-formal emergencies require a complex scheme of classification, and all may not be suitable for any targeted program of monitoring. Only one of the four types is "genuine" in the sense that it occurs in the context of actual emergency conditions: that is the "classic" de facto emergency. This "classic" type also merits categorization into four distinct subtypes. T h e first is where a conflict or other crisis exists but the imperiled government chooses to maintain, both formally and in practice, its ordinary legal regime. T h e second may be characterized by a conflict or other emergency situation during which the government takes extraordinary measures but without formally declaring or giving notice of an emergency. T h e third may entail the existence of actual emergency conditions, but the government's "legal" regime may be totally ad hoc. And the fourth occurs when a nation is faced with an actual emergency and chooses to respond by incorporating on a p e r m a n e n t basis harsh security laws into its ordinary legislation. Not all of these four subtypes may deserve targeted monitoring. Looking at the first subtype, in which the government successfully preserves the ordinary legal regime (and enjoyment of h u m a n rights) despite extreme stress, little more than admiration or curiosity would seem to justify special monitoring. Genuine examples of this subtype,

12

Chapter I

however, are not immediately apparent. For example, the 1988 Report of the ILA Committee questioned whether the claims of Cyprus 30 and Iraq31 to have coped with war situations without resort to emergency powers were truly credible. The second subcategory concerns governments that impose extraordinary measures frequently by decree but without any formal declaration of emergency. Afghanistan 32 at one time fit this category, which 30. T h e g o v e r n m e n t of the Republic of Cyprus currently controls approximately 60% of the now-divided island, as a result of a 1974 invasion by Turkey. T h e other 40% u n d e r Turkish control unilaterally declared its independence on 15 November 1983 as the Turkish Republic of N o r t h e r n Cyprus. So far, it has been recognized only by Turkey. COUNTRY REPORTS FOR 1990, supra note 10, at 1117. A UN peacekeeping force patrols the volatile "line." It a p p e a r s that both sides are attempting to bolster their claims to control by not resorting to emergency powers. L. Despouy, First Annual Report and List of States Which, Since 1 January ¡985, Have Proclaimed, Extended or Terminated a State of Emergency, U.N. Doc. E/CN.4/Sub.2/1987/19, at 23 (1987) (hereinafter 1987 Despouy Report]. 31. L e a n d r o Despouy noted that "despite the existence of armed conflicts, in Afghanistan, Iran, a n d Iraq, inter alia, the Special Rapporteur f o u n d no indication that a state of emergency h a d been proclaimed." 1987 Despouy Report, supra note 30, at para. 43. H e was speaking of course of the situation d u r i n g the eight-year Iran-Iraq war. At the time of the review of its second periodic report to the H u m a n Rights Committee in 1987, Iraq's representative blithely asserted that "Iraq had not declared a state of emergency nor had it suspended any h u m a n rights covered by its obligations u n d e r the Covenant. In fact, it had continued to improve the material, economic and social conditions of life and on that basis to develop the h u m a n rights of its citizens." Report of the Human Rights Committee, 42 U.N. GAOR Supp. (No. 40), U.N. Doc. A/42/40, at para. 347 (1987). Amnesty International r e p o r t e d that d u r i n g 1987 thousands of political prisoners were arbitrarily detained without trial or after summary trials before the Revolutionary Court, that torture was routinely practiced, and that h u n d r e d s of persons had been executed, including children a n d the relatives of suspected government opponents. AMNESTY INTERNATIONAL, REPORT 1988 2 3 6 - 2 3 9 (1989). Indeed, in response to Amnesty's expression of concern, the Iraqi government justified the large n u m b e r of executions on the g r o u n d s that "the society of any country would be bound to defend itself m o r e strongly u n d e r certain conditions, such as when it is at war." Id. at 238. 32. Special R a p p o r t e u r Despouy noted in 1987 that the Afghan government had not declared any emergency. 1987 Despouy Report, supra note 30, at para. 43. T h e Afghan representative who presented his country's report to the H u m a n Rights Committee in 1985 did little to clarify w h e t h e r Article 4 had been invoked. U.N. Docs. CCPR/C/SR. 603, at para. 58; CCPR/C/Sr. 604, at paras. 6, 27, 43; CCPR/C/SR. 608, at paras. 2 - 4 2 (1985). However, a f t e r the withdrawal of troops by the USSR, the Afghan government did declare a state of emergency a n d transfer the authority of the National Assembly u n d e r article 81(1) of the Constitution to the Council of Ministers. These powers were reportedly transferred back by presidential decree in October 1989, and the National Assembly continued to function d u r i n g the emergency. As noted by the Special Rapporteur for the Commission on H u m a n Rights, Prof. Felix Ermacora, in his 1990 report to the Commission, "the state of emergency was still in force but would appear to have had little incidence on the h u m a n rights situation in general," which was dismal in areas

D a f M n g tfii P r a M i M

also tends to s u b s u m e situations u n d e r martial law, i n c l u d i n g

13

foreign

military o c c u p a t i o n . 3 3 M a r t i a l l a w situations v a r y in t h e i r relative

de-

g r e e o f l e g a l f o r m a l i t y . S o m e , s u c h a s t h a t i n J o r d a n , fit t h e m o d e l o f a de jure

emergency34 which might be " g o o d " or " b a d " d e p e n d i n g

upon

t h e s e v e r i t y o f t h e crisis t h a t t r i g g e r e d t h e i m p o s i t i o n o f m a r t i a l

rule.

M a r t i a l l a w i m p o s e d w i t h o u t a n y f o r m a l d e c l a r a t i o n o f e m e r g e n c y in a s i t u a t i o n o f g e n u i n e n a t i o n a l crisis, i n v o l v i n g " a s u s p e n s i o n o f n o r m a l c i v i l g o v e r n m e n t i n o r d e r t o r e s t o r e i t . . . [ w i t h ] c i v i l i a n s f o r its s u b j e c t s a n d civil a r e a s f o r its l o c i o f o p e r a t i o n , " 3 5 fits t h e " c l a s s i c " de facto and

should

be encompassed

in a n y

program

of

model

emergency-specific

monitoring. Even

more

i n f o r m a l is t h e t h i r d s u b t y p e , a l e g a l r e g i m e

which

is

t o t a l l y ad hoc. A r e a s o c c u p i e d b y a r m e d o p p o s i t i o n g r o u p s m a y f a l l i n t o this c a t e g o r y , s u c h as t h e p o r t i o n s o f L e b a n o n

controlled

by

militia

g r o u p s , 3 6 areas o c c u p i e d by the A f g h a n guerrilla factions,37 a n d

controlled both by the g o v e r n m e n t and by the opposition forces. 46 U . N .

the

ESCOR

C o m m ' n on H u m . R t s . a t paras. 3 1 - 7 7 , U . N . Doc. E/CN.4/1990/25 ( 1 9 9 0 ) [hereinafter Ermacora Report], 33. Clinton Rossiter notes o f martial law in E n g l a n d prior to 1914, the "almost c o m p l e t e lack o f institutional status . . . the absence o f statutory foresight f o r its initiation and use." ROSSITER, supra note 3, at 141. As Rossiter explains: " G i v e n a condition o f e m e r g e n c y in England that would call f o r a declaration o f the state o f siege in France, the g o v e r n m e n t (or a local magistrate o r military c o m m a n d e r ) has the p o w e r to d o just about the same things that French officials can d o under the state o f siege. T h e authority to adopt whatever arbitrary measures are necessary to restore public o r d e r proceeds directly f r o m the c o m m o n law right and duty o f the C r o w n and its subjects to 'repel f o r c e by f o r c e in the case o f invasion o r insurrection, and to act against rebels as it might against invaders"' [citations omitted]. Id. at 142. 34. Martial law was declared by Royal Decree o n 5 J u n e 1967, in response to the war with Israel. AMNESTY INTERNATIONAL, JORDAN: HUMAN RIGHTS PROTECTION AFTER THE STATE OF EMERGENCY 6 (1990). Martial Law Directives u n d e r this declaration provide, inter alia, f o r the appointment o f the General Military G o v e r n o r (currently the Prime Minister) ( A r t . 2); unappealability o f orders by the Martial L a w General ( A r t . 5); and the establishment o f a Martial Law Court ( A r t . 6). Martial law is declared by Royal Decree u n d e r Article 125 o f the Constitution o f the Hashemite K i n g d o m o f J o r d a n o f 1952. Id. at 6 - 9 . In 1967, w h e n martial law was declared, Jordan was already u n d e r a state o f e m e r g e n c y that had been imposed in 1939, "thus effectively introducing a dual state o f e m e r g e n c y . " Id. at 4. Martial law was " f r o z e n " in D e c e m b e r 1989, with the announced intention o f gradually eliminating it. Id. at 1. But by the e n d o f 1990, the parliament had not finished d r a f t i n g the necessary legislation. COUNTRY REPORTS FOR 1990, supra note 10, at 1497. Martial law was formally terminated o n 7 July 1991 .Jordanian Martial

Cancels Most

LAW Rules, N Y . TIMES, July 8, 1991, at A 3 col. 5.

35. ROSSITER, supra note 3, at 140. 36. T h e s e g r o u p s include the Lebanese Forces, A m a l , al-Waad, Syrian Social Nationalist P a r t y - E m e r g e n c y C o m m a n d , Hizballah, and several Palestinian groups. Portions o f Lebanese territory are also under control by f o r e i g n armies, including those o f Syria and

14

Chapter I

chaotic war conditions in contested areas in Uganda. 3 * Similarly, chaotic conditions may also pertain in situations short of armed conflict. For example, security forces in Haiti at the time of the aborted 1987 elections appear to have engaged in a perhaps calculated loss of control a n d discipline. S9 In 1989 General Prosper Avril himself referred to his government as "de facto," according to an expert appointed by the United Nations, 40 who f o u n d the Avril regime "without legitimate title or a solid legal basis." T h e s e ad hoc regimes often entail widespread and grave human rights abuses and a sharp d e p a r t u r e from a prior, orderly legal regime. As such, they may present true states of emergency which, in some cases, might even be largely legitimate if the legal chaos is due to factors beyond the control of the government. Thus, it would be important to include them in any targeted program of monitoring. However, it may not always be a simple matter to determine when lawlessness by security forces reaches a level that pushes it beyond an "emergency" threshold. T h e fourth subtype of "classic" de facto emergency is where a nation confronted with armed conflict or other actual emergency conditions responds to the crisis by adopting harsh national security laws not as a temporary emergency measure but as a permanent one. A somewhat debatable example of this situation occurred in El Salvador, which permitted a state of emergency to lapse while making p e r m a n e n t certain Israel (the latter largely working t h r o u g h t h e South L e b a n o n Army). COUNTRY REPORTS FOR 1990, supra n o t e 10, at 1522. 37. Special R a p p o r t e u r E r m a c o r a n o t e d r e p o r t s by Asia Watch of serious h u m a n rights abuses c o m m i t t e d by A f g h a n guerrillas, a n d suggested critically that t h e practice of placing areas u n d e r field c o m m a n d e r s r a t h e r t h a n t h e A f g h a n I n t e r i m G o v e r n m e n t " d o e s not g u a r a n t e e the full respect of basic law a n d o r d e r because full representivity a n d a n effective authority a r e lacking." E r m a c o r a R e p o r t , supra note 32, at paras. 46, 48— 57(1990). 38. 1988 Warsaw Report, supra note 4, at 195 n . l 11; COUNTRY REPORTS FOR 1990, supra n o t e 10, at 4 3 3 - 4 2 . 3 9 . 1 9 8 8 W a r s a w R e p o r t , supra

n o t e 4, at 1 9 5 - 9 6 n . l 12, INTER AM. C . H . R . , REPORT

ON T H E S I T U A T I O N OF H U M A N R I G H T S IN H A I T I , 2 0 - 2 1 , O E A / S e r . L . . / V / I I . 7 4 , d o c . 9 , r e v 1, a t 2 0 - 2 1

(1988).

40. Report on Haiti by the Expert, Mr. Philippe Texter, prepared in conformity with the Commission on Human Rights Resolution 198917J, 4 6 U . N . ESCOR, C o m m ' n on H u m . Rts., U . N . Doc. E / C N . 4 / 1 9 9 0 / 4 4 at 12, at para. 53 (1990). Prof. Philippe T e x i e r n o t e d that as of J a n u a r y 1990, General Avril's g o v e r n m e n t h a d revived some p o r t i o n s of t h e 1987 C o n s t i t u t i o n , but c o n t i n u e d to s u s p e n d "essential provisions about t h e organization of t h e State." Id. Free elections were held in D e c e m b e r 1990. COUNTRY REPORTS FOR 1990, supra n o t e 10, at 660. But o n 30 S e p t e m b e r 1991, elected President J e a n - B e r t r a n d Aristide was o u s t e d by a military coup. Haiti's Military Assumes Power After Troops Arrest the President,

N Y. TIMES, O c t . 1, 1991, a t A l , col. 1.

Defining ttw ProMcfn

f5

measures on administrative detention. 4 1 Where emergency conditions exist and the government chooses to make a transition from emergency measures to harsh ordinary legislation, it becomes more difficult to classify the situation as an emergency. In fact, governments may make such transitions, in part, to escape international attention, which is often attracted by declarations of emergency and reassured when emergencies are terminated. 4 2 Continued monitoring would be essential, however, to determine if the lifting of an emergency actually resulted in improvements in the h u m a n rights climate. T h e ILA Committee recommended that such situations be included in special monitoring if actual emergency conditions still prevailed, or if the revised ordinary laws incorporated a substantial portion of the earlier emergency measures and the new provisions were being applied to a significant extent. 4 3 Type 4: The "Ambiguous or Potential" De Facto Emergency Although in these situations there are no actual emergency conditions and no formal declaration of emergency, they typically entail a sudden increase in the application of harsh, p e r m a n e n t internal security laws. A good example is the sudden crackdown in Singapore in 1987, d u r i n g which the government placed a n u m b e r of opposition figures of varying persuasions in administrative detention for periods of up to two years u n d e r the Internal Security Act (ISA). Without any change in the formal legal regime, a dramatically new political and human rights situation was created in Singapore by unilateral government action, triggering concern and attracting increased international attention. 4 4 41. 1988 Warsaw Report, supra note 4, at 150 n. 113. T h e Inter-American Commission on H u m a n Rights reported in 1990 that El Salvador was u n d e r a state of siege involving increasing numbers of detentions. IACHR 1989-90 ANNUAL REPORT, supra note 14, at 145. See Final Report to the Commission on Human Rights on the Situation of Human Rights in El Sahwdor, 46 U.N. ESCOR C o m m ' n on H u m . Rts., U.N. Doc. E/CN.4/1990/26 at 6, at para. 20 (1990) (citing Amnesty International data on increased arrests u n d e r the state of siege at t h e time of the late 1989 offensive). 42. E.g., 1990 Queensland Report, supra note 4, at 4 n.9 (noting the lifting of "marital law" in Beijing in J a n u a r y 1990); Taiwan's Leader Ends 43-Year Emergency Rule, N Y. TIMES, M a y 1, 1991, at A 6 , c o l . 2.

43. Warsaw Report, supra note 4, at 150-51. 44. In May and J u n e 1987, twenty-two people were arrested u n d e r the Internal S e c u r i t y A c t ( I S A ) o f 1 9 6 0 . A M N E S T Y INTERNATIONAL, R E C E N T D E T E N T I O N S UNDER T H E I N T E R N A L SECURITY A C T : R E P O R T OF AN A M N E S T Y M I S S I O N IN S I N G A P O R E , A I I n d e x : A S A

3 6 / 1 1 / 8 7 ( 1 9 8 7 ) [ h e r e i n a f t e r SINCAPORE MISSION REPORT). T h o s e a r r e s t e d w e r e p r o f e s -

sionals in the media, law, market research, or employed by the Catholic church. Id. at 4. Persons may be detained u n d e r the ISA (which derives f r o m the British Colonial Preser-

1ft

ChapMrl

T h a t increased scrutiny o f Singapore's h u m a n

rights situation

was

j u s t i f i e d in 1 9 8 7 c a n n o t b e d o u b t e d ; w h a t is u n c l e a r is w h e t h e r t h e situation should be labeled an " e m e r g e n c y . " T h e 1 9 8 7 S i n g a p o r e s c e n a r i o is r e p l i c a t e d in m a n y o t h e r c o u n t r i e s , p a r t i c u l a r l y t h o s e with a B r i t i s h c o l o n i a l h e r i t a g e . T h e c o m m o n law s y s t e m p l a c e s , at best, a m o d e s t e m p h a s i s u p o n t h e f o r m a l i t i e s

of

e m e r g e n c y r u l e , in c o m p a r i s o n t o t h e o f t e n B y z a n t i n e c o m p l e x i t y o f d i s t i n c t i o n s in civil law b e t w e e n v a r i o u s s t a t e s o f e x c e p t i o n . O n e l e g a c y o f t h e B r i t i s h E m p i r e w a s a c o m p l e x o f i n t e r n a l s e c u r i t y laws, d e s i g n e d to c o p e with e x t e r n a l threats a n d internal subversion, including struggles f o r d e c o l o n i z a t i o n . It is a f a m i l i a r s t o r y r e p e a t e d t h r o u g h o u t t h e world that w h e n those liberation struggles succeeded, the new leaders e m b r a c e d t h e s a m e t o o l s o f r e p r e s s i o n t h a t h a d b e e n u s e d by t h e colonial m a s t e r s . 4 5 B u t unlike the U n i t e d K i n g d o m , the newly i n d e p e n d e n t states c o m m o n l y a d o p t e d w r i t t e n c o n s t i t u t i o n s . T h e s e c o n s t i t u t i o n s typically p r o vide f o r e m e r g e n c y p o w e r s , o f t e n with a fair d e g r e e o f f o r m a l i t y . 4 6

vation of Public Security Ordinance of 1955) for renewable two-year periods. Id. at 2 - 3 . The absence of emergency conditions prior to these arrests is underlined by a statement by Foreign Minister Suppiah Dhanabalan: "We are not saying the group was on the verge . . . of starting a revolution. . . . Why should we wait until they are on the verge before we act?" J. Katigbak, Singapore Insists Communist Threat Is Real, Reuters, June 2, 1987, available in LEXIS, Nexis Library, Reuters File. See A M N E S T Y I N T E R N A T I O N A L , C O N T I N U I N G D E T E N T I O N S U N D E R T H E I N T E R N A L S E C U R I T Y A C T : F U R T H E R E V I D E N C E OF

Al Index: ASA 36/09/88 (1988). At the end of 1990, no persons were detained under the ISA; one detainee was released in 1989 after twenty-three years of preventive detention under the ISA. C O U N T R Y R E P O R T S FOR 1990, supra note 10, at 1021. Singapore itself implicitly acknowledged the significance of these events by describing them to the Sub-Commission's Special Rapporteur on states of emergency. U.N. Doc. E/CN.4/Sub.2/1989/30/Rev.l, at 5 (1990).

T H E T O R T U R E AND I L L - T R E A T M E N T O F D E T A I N E E S ,

45. See supra note 10 (noting the example of Brunei); supra notes 15-18 (noting the case of Israel in the Occupied Territories); supra note 44 (citing the example of Singapore) to South Africa and Zimbabwe. 46. For example, the Governor-General of Fiji asserted power under Section 72 of the Constitution of 1970 to dismiss the Prime Minister and dissolve Parliament, in the face of a coup d'etat in May 1987. This effort to cope with the political crisis was ineffective and was followed in September 1987 by a second coup d'etai by Colonel Sitiveni Rabuka, who abrogated the 1970 Constitution on 1 October 1987. 1988 Warsaw Report, supra note 4, at 198 n.121. Prof. F.M. Brookfield questions whether the Ciovemor-General actually possessed authority under the Constitution for his actions. See Brookfield, The Ftp Revolutions of 1987, 1988 N.Z.L.J. 250. Sometimes the Constitution offers several alternative sets of extraordinary powers. In 1987, for example, the Punjab was placed under direct presidential rule by the Indian government, invoking Article 356 of the Constitution. Articles 3 5 2 - 3 5 5 of the Constitution allow for the suspension of fundamental guarantees in times of emergency. 1988

Dflflnlnj t f w P r a b l i n

17

Such states may also come under martial law regimes, as in Bangladesh and Pakistan. 47 In addition, these Commonwealth nations possess harsh internal security laws, similar to Singapore's ISA. In time of stress, therefore, these governments have a choice between imposing formal emergencies under their constitutions and implementing emergency legislation, or simply invoking the provisions of their permanent national security laws. They seem to alternate between these responses in an unpredictable, haphazard way.48 Malaysia presents an especially problematic and complex example. Since independence Malaysia has been under a series of states of emergency, including a nationwide state of emergency declared in 1969 in response to post-election communal violence. 49 During that emergency, Malaysia adopted the Emergency (Public Order and Prevention of Crime) Ordinance, 1969,50 which permits detention for a maximum of two years of persons suspected of acting or being likely to act in a manner prejudicial to public order. The 1969 emergency has never been terminated, despite the abatement of communal violence. Malaysia also has an overlay of permanent national security legislation, including the Internal Security Act, 1960 (ISA), which permits persons to be arrested without warrant and detained for renewable two-year periods if they have acted or are about to act "in any manner prejudicial to the security of Malaysia."51 The government of Malaysia typically invokes the provisions of the ISA in order to crack down on its opponents, particularly suspected communists and Islamic extremists.

Warsaw Report, supra note 4, at 199 n.124. In April 1990, the Indian Parliament repealed a constitutional amendment that had permitted suspension of the guarantees of life and liberty and direct presidential rule without legislative approval (a provision invoked only in the Punjab). C O U N T R Y R E P O R T S FOR XQQO, supra note 10, at 1432. During 1990 the slates of Punjab, Jammu and Kashmir, and Assam were all under direct presidential rule at various times. Id. at 1425. 47. 1988 Warsaw Report, supra note 4, at 152 and nn.119 & 120. 48. T h e government of Kenya, for example, orders administrative detention under the Preservation of Public Security Act (PPSA) ("a holdover from colonial days" according to the C O U N T R Y R E P O R T S TOR 1 9 9 0 , supra note 1 0 , at 1 6 9 ) or criminal prosecution on such charges as sedition. Id. at 167. See 1988 Warsaw Report, supra note 4, at 197 n.118. Many persons are simply detained by the authorities without even being held under the PPSA. A M N E S T Y I N T E R N A T I O N A L , 1 9 8 7 R E P O R T 6 1 (two hundred detained, with fifty eventually held under the PPSA). 49. See Warsaw Report, supra note 4, at 153—55. 50. T h e Emergency (Public Order and Prevention of Crime) Ordinance, 1969, published as Ordinance 5, H.M. Govt. Gazette as P.U.(A) 187. Malaysia adopted a series of other emergency laws in 1969 as well. 51. 1988 Warsaw Report, supra note 4, at 154 n.126; I N T E R N A T I O N A L C O M M I S S I O N OF J U R I S T S , S T A T E S OF E M E R G E N C Y : T H E I R IMPACT ON H U M A N R I G H T S 204 (1983).

IS

Qiaptar I

In late 1987, for example, more than 100 persons were detained u n d e r the ISA in "Operation Lallang." 52 T h e ISA was made even harsher in 1989 when detention orders by the H o m e Minister were completely exempted from judicial review. 53 And yet the emergency ordinances in Malaysia are far from morib u n d . They are broadly applied to detain suspected d r u g dealers and members of secret criminal societies. 54 This is done even though the never-terminated 1969 emergency was premised upon racial and political conflict, and not the d r u g problem. Singapore also imposes preventive detention on suspected d r u g offenders, but not in the context of an extended formal emergency. 5 5 T h e Malaysian and Singapore examples thus present a challenge in applying definitional criteria for a "state of emergency." Because Malaysia has retained the formal 1969 emergency, although its original factual premise no longer exists, a plausible argument could be made for including Malaysia in a program of emergency-specific monitoring. 56 In contrast, the sudden increases in the number of detentions u n d e r the ISAs in 1987 in both Singapore and Malaysia, though signaling an important change in the h u m a n rights climate, do not fit easily u n d e r an "emergency" rubric. If such situations are excluded f r o m monitoring, however, an incentive is created for governments to apply harsh permanent laws to suppress dissent, rather than resorting to theoretically temporary emergency measures. Perhaps such a concern exaggerates the significance of h u m a n rights monitoring as a factor in shaping government strategy. But in devising a program for monitoring human rights abuse d u r i n g states of emergency, the legal formalities are naturally of less interest than the potential for abuse. Thus, the ILA Committee decided that some "ambiguous or potential" de facto situations should be 52. 1988 Warsaw Report, supra note 4, at 154 and nn. 128-29. 5 3 . COUNTRY REPORTS FOR 1 9 9 0 , supra n o t e 10, at 9 5 4 .

54. 1988 Warsaw Report, supra note 4, at 154. Although approximately 400 persons were detained u n d e r the Emergency O r d i n a n c e in October 1986, that n u m b e r was reduced to 189 as of December 1990. Id. T h e reduction appears to be largely d u e to the passage of the Dangerous Drugs (Special Preventive Measures) Act of 1985, u n d e r which d r u g suspects can be detained without trial for renewable two-year periods. COUNTRY REPORTS FOR 1990, supra note 10, at 9 5 4 - 5 5 . Approximately 1,200 suspects were detained u n d e r this law as of December 1990. 55. Singapore detains d r u g suspects u n d e r the Criminal I.aw (Temporary Provisions) Act. Detentions u n d e r this act and Singapore's ISA are not subject to judicial review. COUNTRY REPORTS FOR 1 9 9 0 , supra

n o t e 10, at 1 0 2 1 - 2 2 .

56. As the 1988 Warsaw Report noted,supra note 4, at 155, the Special Rapporteur for the Sub-Commission included Malaysia on his 1987 list. See U.N. Doc. E/CN.4/Sub.2/ 1987/19 Annex I, at 18.

Defining the Problciii

19

counted as emergencies with the key criterion being a "quantum of repression" that would have to be calculated on a case-by-case basis.57 Type 5. The "Institutionalized" Emergency This applies to a narrowly defined set of circumstances in which a government terminates a formal emergency after having incorporated many control measures into its ordinary law. In many such cases, the government is responding to international criticism for having long maintained a formal emergency in the absence of any genuine crisis. 58 Where real sources of stress remain, however, a government may find such a strategy unworkable. For example, South Africa in 1986 began incorporating portions of its emergency provisions into ordinary legislation in order to deflect virulent international criticism of its emergency, but later decided to extend the emergency. 59 As Nicholas Haysom notes, the attraction of the emergency regulations over ordinary law lay in how they eliminated forms of supervision either by the courts or by the media over the security forces, 60 advantages that could not be gained in ordinary law within the South African legal system. 61 But in other cases where the government has effective control over the populace, the termination of a formal emergency and its replacement by permanent repressive legislation may be an attractive option that potentially decreases the visibility of the human rights problem. Such a transition presents a painful dilemma for human rights monitors. While no one could logically criticize the lifting of a formal emergency that had no proper basis (because no actual threat to the life of the nation existed), celebration would not be in order where there had been no actual improvement in the human rights situation. Such situations would not be included u n d e r any program for emergencyspecific monitoring because there would exist neither a "bad" formal emergency nor de facto emergency conditions. T h e only category that might encompass such cases would be the "actual or potential" emergency (Type 4 in the ILA typology), in which ordinary security laws were being widely applied in a m a n n e r that created an unusual human 57. 1988 Warsaw R e p o r t , supra n o t e 4, at 1 5 5 - 5 6 . 58. For e x a m p l e , in 1987 l o n g - p r o l o n g e d f o r m a l e m e r g e n c i e s w e r e t e r m i n a t e d in P a r a g u a y a n d T a i w a n . 1988 Warsaw R e p o r t , supra n o t e 4, at 156. 59. Id. at 157. 60. N. H a y s o m , States of Emergency M a Post-Apartheid South Africa, 21 COL. HUM. RTS. L. REV. 139, 147 (1989). 61. H a y s o m a d d s , " T h e S t a t e of E m e r g e n c y r e g u l a t i o n s can b e u n d e r s t o o d o n l y as a n a t t e m p t to c o n f e r u p o n t h e police t h e capacity to o p e r a t e in a grey a r e a b e t w e e n a n ' e x t e n d e d ' legality a n d w a n t o n illegality, to i m p o s e o r d e r w i t h o u t law." Id. at 148.

20

OiapMr I

rights crisis. Again, the difficult task of measuring a threshold "quantum of repression" would be necessary in assessing borderline cases u n d e r this category. Type 6: "Ordinary" Repression Within the ILA typology, this category describes situations that should definitely not be included in any emergency-specific program of monitoring, but not because of the absence of serious h u m a n rights abuse. Rather, these situations fall outside the concept of state of emergency because no benchmark of normalcy remains, and the severe restrictions on h u m a n rights cannot be seen as temporary in any way. O n e example commonly given is that of the Democratic People's Republic of Korea (North Korea). 62 T h e existence of this category underlines the fact that emergency-specific monitoring has the drawback of not necessarily correlating with the most extreme forms of h u m a n rights abuse. Emergency-specific monitoring is thus "inefficient" f r o m a human rights perspective in including rather mild formal emergencies while excluding some situations involving massive restrictions on f u n damental rights, perhaps even non-derogable rights, such as the prohibition on torture or the f r e e d o m of conscience and belief. T h e ILA typology is complex and multidimensional, stressing the difficulty of the task of defining a coherent single concept of "states of emergency" that could be readily and consistently identified by h u m a n rights monitors. Many ambiguous borderline situations exist at the various outer reaches of the concept, especially within the several categories of de facto emergencies. T h e delicacy of the definitional task is underlined by the reluctance of the Sub-Commission's Special Rapporteur to move beyond a purely formal list of emergencies. 6 3 Yet, in 62. 1988 Warsaw Report, supra note 4, at 200 n. 140. T h e H u m a n Rights Committee reviewed the "general and b r i e r ' initial report by the DPRK government u n d e r the ICCPR in 1984, but this review disclosed little about emergency provisions or the actual enjoyment of h u m a n rights in North Korea. Report of the Human Rights Committee, 39 U.N. GAOR Supp. (No. 40), U.N. Doc. A/39/40, at paras. 3 6 4 - 3 9 8 (1984). T h e second periodic report, d u e in 1987, is overdue. Report of the Human Rights Committee, 46 U.N. CAOR Supp. (No. 40), U.N. Doc. A / 4 6 / 4 0 Annex IV (1991). T h e U.S. State Department's entries on North Korea are highly critical but acknowledge the paucity of information available because of the closed n a t u r e of the society. C O U N T R Y R E P O R T S F O R 1990, supra note 10, at 921. 63. In his 1989 report, the Special R a p p o r t e u r urged states to avoid de facto emergencies, which h e defined as situations "in which emergency measures are taken without an official proclamation or in which, after a slate of emergency has been officially repealed, exceptional measures are nevertheless maintained." U.N. Doc. E/CN.4/Sub.2/1989/ 30/Add.2/Rev. l , a t para. 4 (1989). He f u r t h e r noted that "De facto states of emergency .. .

M i n i n g th* ProbUm

21

the I L A Committee's view, inclusion o f de facto emergencies is absolutely vital to any effective and realistic program o f monitoring human rights abuse during states o f emergency. Complexity and difficult linedrawing thus will be inherent in the process. But a moderately restrictive definition will also be crucial f o r keeping a focus upon states of emergency, and not simply human rights abuse per se.

C. The Questlaux Report Nicole Questiaux undertook her study at the behest o f the United Nations Sub-Commission on Prevention o f Discrimination and Protection of Minorities, which had a long-standing interest in administrative detention 6 4 that was transmuted into a more general concern for risks to human rights during states of emergency. A f t e r excluding crises o f underdevelopment, 6 5 natural disaster, 66 and war 67 f r o m the scope o f her concerns, Questiaux o f f e r e d a profile of patterns o f national legislation concerning e m e r g e n c y powers, postulating a " r e f e r e n c e m o d e l " with a high d e g r e e o f formality. 68 In contrast to this reference model, Questiaux describes various "deviations" 6 9 that present an interesting contrast to the I L A typology described above. Questiaux identified five deviations f r o m her reference model: (1)

have an extremely adverse effect, not only on the country's internal legal order but also in respect o f the most fundamental rights." Id. In his fourth annual report, the Special Rapporteur included Iraq, Liberia and Somalia on the basis o f press reports, and notes that a de facto emergency was reported to exist in an area of Mauritania. U . N . Doc. E/CN.4/Sub.2/1991/28, at 11 (1991). 64. T h e Sub-Commission expressed concern over practices o f administrative detention in the course o f its annual review o f detention in Res. 7 ( X X V I I ) o f 20 August 1974, U . N . Doc. E/CN.4/1160, E/CN.4/Sub.2/354 at 52 (1974), and Res. 4 ( X X V I I I ) of lOSeptember 1975, U . N . Doc. E/CN.4//1180, E/CN.4/Sub.2/364 at 59 (1975). T h e SubCommission decided that the situation of persons detained during public emergencies should be studied, in Res. 3 A ( X X I X ) o f 31 August 1976, U . N . Doc. E/CN.4/1218, E/CN.4/Sub.2/378, at 46 (1976). In 1977, the Sub-Commission was convinced o f the connection between states of emergency and the status of human rights, Res. 1 0 ( X X X ) o f 31 August 1977, U . N . Doc. E/CN.4/1261, E/CN.4/Sub.2/399, at 48 (1977), and Mme. Questiaux began her research into the subject. 65. Questiaux Report, supra note 5, at para. 26. 66. Id. at para. 27. 67. Id. at para. 30. 68. Id. at paras. 73-95. T h e "reference model" has aspects including formal proclamation, legal definition o f permissible grounds for exercise o f emergency powers, time limits, specification either o f non-derogable rights or rights explicitly subject to suspension, measures o f control, and formal alterations in the scope o f powers o f various organs o f government. 69. Id. at paras. 96-145.

22

ChapCOT I

the formal emergency not notified to treaty implementation bodies; (2) the de facto emergency, during which rights are suspended without proclamation or notification, or suspension o f rights is continued after termination of a formal emergency; (3) the permanent emergency arising out of continual and decreasingly valid formal extensions of the emergency; (4) the complex emergency involving overlapping and confusing legal regimes through partial suspension o f constitutional norms and issuance of a large volume of far-reaching decrees; and (5) the institutionalized emergency under which an authoritarian government prolongs an extended transitional emergency regime with the purported, but questionable, aim of returning to democracy and the full reinstitution of constitutional guarantees. While Questiaux offers apt examples o f these categories (e.g., Paraguay as a "permanent" emergency, 7 0 Turkey and Brazil as "complex" emergencies, 7 1 Chile and Uruguay as "institutionalized" emergencies 72 ), her typology is not comprehensive. In particular, her discussion o f de facto emergencies is quite cursory and compressed, which may offer some insight into the reasons why the Sub-Commission has failed to come to grips with that concept in a sufficiently serious way. Moreover, while Questiaux attempted to look beyond her own civil law tradition (bemoaning the lack o f useful comparative studies to assist in her task), 73 her typology emphasizes emergencies with a high degree of formality. She does little more than note the proliferation of permanent national security laws as a means of repression as potentially effective as one of her "deviations" from the reference model. 7 4 She fails to recognize that in a common law system a perceived crisis might be efficiently dealt with either through increased application o f prior-enacted permanent national security legislation, or through the rapid passage of new security legislation by a compliant legislature, all without any formal declaration of an emergency, the suspension o f constitutional provisions, or formal alteration in the separation o f powers. 75 Thus, Questiaux's typology seems inadequate for defin-

7 0 . Id. at p a r a . 1 1 4 . 7 1 . Id. at p a r a s .

119-128.

7 2 . Id. at p a r a s .

132-145.

7 3 . Id.

12. S h e r e c o m m e n d s

at p a r a .

that the H u m a n

Rights C e n t r e o f the

UN

S e c r e t a r i a t assist t h e H u m a n R i g h t s C o m m i t t e e in its r e v i e w o f s t a t e r e p o r t s u n d e r t h e C o v e n a n t o n Civil a n d Political R i g h t s by c o m p i l i n g a tile o f n a t i o n a l l a w s o n e m e r g e n t v powers. 7 4 . Id. at p a r a s . 1 2 , 1 6 2 . 7 5 . R o s s i t e r h a s d e s c r i b e d t h e e m e r g e n c e o f " c o n s t i t u t i o n a l d i c t a t o r s h i p s " in t h e United Kingdom and the United States during the nineteenth

and earl)

twentieth

c e n t u r i e s . Q u e s t i a u x ' s flawed t y p o l o g y , a n d t h e analysis's p o s s i b l e r a m i f i c a t i o n s o n n a n -

Defining the Problem

23

ing the range of emergency situations with which human rights bodies should be concerned in devising emergency-specific monitoring programs.

D. Rossiter's Comparative Historical Study Clinton Rossiter's lively and provocative 1948 study of "constitutional dictatorship," 76 though limited to several major Western powers at an earlier point in their histories, nevertheless offers useful insights into types of emergency regimes and the potential effects of each model on the enjoyment of human rights and the preservation of basic democratic values. Rossiter's study is especially valuable for its insights into the evolution o f emergency powers in the c o m m o n law countries of the United K i n g d o m and the United States, which d e f y Questiaux's reference model. A n d his contrast of two civil law systems, Weimar Germany and France, sheds important light upon the variations that can exist in, and the relative merits of, more formal systems f o r declaring emergencies. Such historical studies provide much f o o d for thought, particularly for human rights bodies o f f e r i n g expert advice in the drafting of new national constitutions or devising model standards for such instruments. 77 Rossiter notes that the problem o f elaborating systems of crisis government arises only within states that have previously achieved some level of democracy and retain at least a symbolic, if not real, attachment to its preservation. 78 In Weimar Germany and France, he offers exam-

treaty-based p r o g r a m s o f special m o n i t o r i n g o f e m e r g e n c i e s by the Sub-Commission, was brought to the attention of the Sub-Commission in a submission by Professor T o m H a d d e n o f Q u e e n ' s University. Belfast, in May 1988. P r o f e s s o r H a d d e n o f f e r e d an initial f r a m e w o r k f o r analyzing non-declared e m e r g e n c i e s , by focusing on three important factors including actual or potential level o f disorder, nature o f the extraordinary powers, and the extent to which the powers are actually a p p l i e d . Situations would extend along a c o n t i n u u m , d e p e n d i n g upon the presence o f each o f these factors. R o u g h l y three categories w e r e created including ( I ) low-level e m e r g e n c i e s , in which special powers are introduced to deal with a relatively isolated terrorist or external threat; (2) temporary, g e n e r a l i z e d emergencies, in which sets o f e m e r g e n c y powers are introduced to deal with extensive disorders such as c o m m u n a l conflict; and (3) permanent or preventive e m e r g e n c i e s , in which such t e m p o r a r y measures are m a d e permanent to prevent the g r o w t h o f o r g a n i z e d opposition. 76. See supra

note 3.

77. See C h a p t e r I I I

infra.

78. As h e notes in the case o f France: " T h e history o f the state o f siege begins with the French R e v o l u t i o n . N o civil institution o f crisis g o v e r n m e n t existed under the regime.

ancirn

It is unnecessary to suspend rights that d o not exist o r augment powers that are

already absolute.'' ROSSITER, supra

note 3, at 8 0 T h e same observation might be m a d e

24

Chapter I

pies of two civil law states that created specific m e c h a n i s m s in their constitutions for formal imposition of emergency powers. 7 9 Article 48 of the Weimar Constitution provides an object lesson in loosely written emergency powers, often applied with reactionary aims a n d without real check f r o m any democratic entity, that became the tool f o r the destruction of democracy r a t h e r than its preservation. O n its surface, Article 48 fits Questiaux's r e f e r e n c e model: 8 " t h e g r o u n d s a r e specified (though vaguely); a fairly short list of f u n d a m e n t a l rights that can be s u s p e n d e d is explicitly e n u m e r a t e d ; the President declaring the emergency must immediately i n f o r m the legislature, which can d e m a n d the revocation of the emergency measures; a n d national law must set out the details. But reality t u r n e d out to be far different. T h e Constitution did not prohibit the President f r o m dissolving the Reichstag, the only potential check u p o n abuse of emergency powers. 8 1 J u d g e s a d o p t e d a highly deferential posture toward the exercise of e m e r g e n c y powers, 8 ' 2 noting the absence of any specific provision for judicial review. Jurists agreed that essentially all of the Constitution's provisions were suspendible, despite the terms of Article 48; 8 3 a n d e m e r g e n c y powers were used extensively in the regulation of the economy over an e x t e n d e d period of time. Rossiter notes that the context of Weimar G e r m a n y — a n electorate either confused o r dedicated to the destruction of the constitutional order, a weak legislature a n d an absence of long-standing d e m o cratic values in the society—essentially invited abuse of Article 48. 84 T h e French experience e m e r g e s as a h a p p i e r o n e in Rossiter's view. In the French state of siege, 85 Rossiter finds the "peak of institutional

about m o d e r n repressive states that fall into the "ordinary repression" (Type 6) category in the ILA typology. 79. Rossiter also describes the system within the ancient Roman republic, but this is of less interest. Id. at 15-29. 80. See Questiaux Report, supra note 5, at paras. 7 3 - 9 5 . 8 1 . R O S S I T E R , supra note 3 , at 7 2 . Where the Reichstag had exercised its power under Article 48 to disapprove of emergency measures, nothing prevented the President from dissolving the Reichstag, reissuing the decrees, and then delaying for a substantial period the election of a new Reichstag. 82. Id. at 7 0 - 7 1 . 8 3 . Id. at 6 8 - 6 9 . Rossiter notes that G e r m a n legal theorists had long been interested in an elastic law of necessity. J . K O H L E R , N O T K E N N T K E I N G E B O T ( 1 9 1 5 ) ; W J E I L I N E K , GESETZ UND VERORDNUNG

(1887).

supra note 3 , at 7 1 . 85. T h e origins of the term "state of siege" refer to the essentially unlimited powers c o n f e r r e d u p o n a general in c o m m a n d of a besieged fortress. T h e military state of siege was gradually extended to a political state of siege in which similar powers could be 8 4 . ROSSITER,

Dflflnfny tli4 Problem

and upon

l e g a l p e r f e c t i o n " f o r crisis g o v e r n m e n t . 8 6 T h e s t r o n g f o r m a l legality a n d reliance u p o n

2S

emphasis

the legislature ( r a t h e r

than

the j u d i c i a r y ) to c u r b a b u s e h a v e s t r o n g l y i n f l u e n c e d t h e s t r u c t u r e o f e m e r g e n c y p o w e r s in o t h e r nations.87 T h e i m p l e m e n t i n g l a w s f o r t h e state o f s i e g e e s t a b l i s h e d w h a t h a s b e c o m e a f a m i l i a r p a t t e r n : m i l i t a r y t a k e o v e r o f o r d i n a r y police p o w e r s , a s s u m p t i o n o f jurisdiction by military c o u r t s o v e r o r d i n a r y c r i m e s b y civilians, a n d i n c r e a s e d of

regulations

by e x e c u t i v e a u t h o r i t y o n

issuance

topics f o r m e r l y subject

to

legislation.88 F r a n c e ' s r e j e c t i o n o f t h e m o d e l p r a i s e d b y R o s s i t e r in A r t i c l e 16 o f its 1 9 5 8 C o n s t i t u t i o n casts c o n s i d e r a b l e d o u b t o n t h e v a l i d i t y o f h i s a s s e s s ment.89 T h e e l i m i n a t i o n o f a legislative p o w e r o f control o v e r the i m position o f the e m e r g e n c y

in p a r t i c u l a r m a r k s a d e p a r t u r e f r o m

the

" p e r f e c t i o n " Rossiter h a d p e r c e i v e d . 9 0 O t h e r scholars s u g g e s t that the

exercised over urban populations during both foreign war and internal insurrection. Id. at 8 0 - 8 1 . T h e state o f siege described by Rossiter was governed by the laws o f 9 August 1849, and 4 April 1878, which placed responsibility f o r declaring the state o f siege on the legislature (except provisionally during foreign war when the legislature was adjourned). Id. at 81-83. T h e 1958 Constitution effected important changes, especially by shifting authority for the imposition of the state o f siege to the President o f the Republic in consultation with the presidents o f the two houses of the legislature, the Premier, and the Constitutional Council. See Constitution, art. 16, 4 October 1958. Article 16, however, retains the prohibition on the dissolution o f the legislature by the President during a state o f siege. 86. Id. at 79. Subrata Roy Chowdhury found the French model to have been incorporated into the constitutions o f Dahomey (art. 27 o f the Constitution of 5 January 1964), Algeria (art. 59 o f the Constitution), Morocco (art. 35 of the Constitution) and Tunisia (art. 32 o f the Constitution). See supra note 7, at 57. 87. Questiaux Report, supra note 5, at para. 75. Both Questiauxand Rossiter note that the courts o f France have o f f e r e d only occasional and limited relief to victims o f abuse o f emergency powers, through review of executive actions for exces de pouvoir. Typically, such acts occur only after the state o f siege has been lifted. Id.; ROSSITF.R, supra note 3, at 97. Questiaux notes that control by the legislature has also become only indirect under the 1958 Constitution, through the provision for trial o f the President by the High Court o f Justice (composed o f members o f the legislature) for crimes against the Constitution, should he exceed his very broadly defined powers. Questiaux Report, supra note 5, at para. 75. 88. ROSSITER, supra note 3, at 8 6 - 8 7 . Rossiter notes that these powers are permissive rather than mandatory, and the scope o f their exercise varied geographically and temporally during the two wartime crises o f the early twentieth century. Id. at 8 6 - 8 8 , 94— 125. 89. For a comprehensive examination o f the origins o f Article 16 and its application during the Algerian crisis, see MICHÈLE VOISSET, L'ARTICLE 16 DE LA CONSTITUTION DU 4 OCTOBRE 1 9 5 8 ( 1 9 6 9 ) .

90. Id. at 3 1 3 - 1 8 (noting departure of Article 16 in this respect f r o m earlier French

26

Chapter I

French law on the state of siege did not provide an effective check u p o n executive power, 91 and that legislative control was illusory. 92 While the exercise of emergency powers achieved increasing formality in the United Kingdom and the United States d u r i n g the twentieth century, their starting points were far different, and convergence with the civil law model has not yet occurred. In the case of the United Kingdom, great informality and underregulation characterized emergency powers until the First World War. 93 Crises were met by parliamentary action or "independent executive action based on the royal prerogative or the common law," usually taking the form of martial law.94 T h e effects of martial law upon enjoyment of liberties were remarkably similar to those resulting f r o m application of the French implementing legislation for the state of siege. 95 T h e primary curb on abuse of power lay in the courts, but relief could be and often was eliminated through passage of indemnity laws.9,1 Comprehensive emergency legislation was not adopted in the United Kingdom until the Defence of the Realm Act of 8 August 1914, 97 which contained a legislative declaration of martial law, as well as a broad delegation of regulatory authority to the executive. T h i s Act set the model for modern British emergency powers, which "brought the entire scope of English life and liberty u n d e r the control of the government, exalted the Cabinet, and deflated Parliament." 9 " While Parliament continued to sit, it became subservient to the Cabinet, either passing legislation essentially without change or debate or granting broad authorization for regulations. 99 While executive acts could be challenged in the courts as ultra vires, few cases succeeded and then

practice). See also, td. at 8 7 - 1 1 8 , 231 - 5 5 , 3 3 9 - 4 9 (extensive discussion o f l a c k o f e f f e c t i v e legislative c o n t r o l o v e r e m e r g e n c i e s i m p l e m e n t e d u n d e r Article 16). Voisset also finds t h e s u b s t i t u t e , c o n s u l t a t i o n with t h e Conseil C o n s t i t u t i o n n e l , to be in reality not a n e f f e c t i v e check o n t h e P r e s i d e n t . Id. at 2 2 5 - 3 0 . 9 1 . P A U L L E R O Y , L ' O R G A N I S A T I O N C O N S T I T U T I O N N E L L E ET LES C R I S E S 7 4 - 7 8

(1966)

( d u r i n g t h e First World War t h e executive e x c e e d e d t h e p o w e r s e s t a b l i s h e d in t h e 1878 law o n t h e state of siege in r e g u l a t i n g t h e e c o n o m y a n d t h e m o v e m e n t of p e r s o n s ) . 92. Id. at 61, 81, 8 8 - 9 1 , 107, 113. 93. ROSSITER, supra n o t e 3, at 1 3 5 - 3 9 . 94. Id. at 136. 95. See, e.g., td. at 139, 1 4 5 - 4 9 ( n o t i n g t h e trial of civilians by c o u r t m a r t i a l o r s u m m a r y trials). 96. Id. at 138, 1 4 2 - 4 5 . 97. Id. at 153; D e f e n c e of t h e Realm Act, 1914, 4 & 5 Cleo. 5, ch. 29. 98. ROSSITER, supra n o t e 3, at 154 99. Id. at 1 5 4 - 7 2 . Rossiter notes: " W h e n e v e r d o w n t r o d d e n b a c k - b e n c h e r s raised s e r i o u s objections to a p a r t i c u l a r bill or clause, it was d r o p p e d to r e a p p e a r a few d a v s later in t h e f o r m of a D O R A [ D e f e n c e of t h e R e a l m Act) r e g u l a t i o n . " Id. at 163.

Defining ttM Problem generally only after t h e crisis h a d e n d e d . 1 0 0 T h i s p a t t e r n

27

continued

t h r o u g h the E m e r g e n c y P o w e r s A c t o f 1 9 2 0 1 0 1 a n d t h e legislation a n d regulations issued d u r i n g t h e S e c o n d World War.102 Despite British

its w r i t t e n

constitution,

the

United

negligence o f precise definition

States

inherited

of emergency

power.

the Two

s o m e w h a t c o n t r a d i c t o r y a t t i t u d e s a p p e a r t o u n d e r l i e this initial

ap-

p r o a c h — t h a t t h e C o n s t i t u t i o n w a s a d e q u a t e t o c o p e w i t h all c o n c e i v a b l e e m e r g e n c i e s , l 0 : t o r t h a t t h e e x e c u t i v e m i g h t a c t illegally a n d e x t r a constitutionally during an e m e r g e n c y , indemnity.104

During

with t h e h o p e o f

subsequent

t h e Civil W a r o f t h e m i d - n i n e t e e n t h

century,

p o w e r w a s e x e r c i s e d by t h e P r e s i d e n t , s o m e t i m e s w i t h o u t o b v i o u s basis in his d e l e g a t e d c o n s t i t u t i o n a l p o w e r s , 1 0 5 a n d s o m e t i m e s o n t h e b a s i s o f s p e c i f i c o r d i n a r y l e g i s l a t i o n p a s s e d b y C o n g r e s s . "N> During

the

twentieth

century,

however,

the

American

model

of

100. Id. at 158. 101. T h i s statute was passed to deal with an economic crisis involving post-war labor unrest. Id. at 172; Emergency Powers Act, 1920, 10 & 11 Geo. 5, ch. 48. 102 ROSSITER. supra note 3, at 1 9 6 - 2 1 0 . O f particular interest are the regulations on administrative deteiiiion, which will be discussed in a later chapter. See Chapter III infra. 103. See ROSSITER, supra note 3, at 212 (citing the FEDERALIST and Supreme Court decisions in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 1 2 0 - 2 1 (1867), and Home Bldg. & l-oan Ass'n v. Blaisdell, 2 9 0 U.S. 398, 4 2 5 (1934)). 104. J u l e s Lobel describes eighteenth-centurv American attitudes as follows: " The Constitution did not grant the executive any general, inherent, constitutional emergency authority. Rather, eighteenth century leaders and philosophers believed that the executive should be required knowingly to act illegally or unconstitutionally when utilizing emergency power. For these thinkers, emergency power was an unconstitutional exercise o f power by the executive. Officials risked censure and even impeachment for engaging in activities justified solely by the perception o f an emergency context. Courts could impose personal liability on those executive officials who undertook unconstitutional actions, even when such officials acted pursuant to good laith motivations to defuse a crisis. Subsequent to a court's declaration of the unlawfulness of an exercise o f emergency power, however. Congress could decide to indemnify the official if it believed the official's actions really were justified by extreme necessity. This system allowed the executive to act without creating inherent emergency power under the Constitution. Furthermore, the identification o f crisis activity as unlawful and subject to review reinforced the primary assumption that emergencies were not the n o r m . " J . L . o b e l , Emergency Power and the Decline of Liberalism, 9 8 YAI.E L.J. 1385, 1390 (1989). 105. For example. President Lincoln ordered a blockade of Southern ports (later held by the Supreme Court to be an action within his powers as Commander-in-Chief in the Prize Cases, 67 U.S. (2 Black) 635, 6 7 0 (1862)). issued the Emancipation Proclamation in 1862 without prior Congressional approval (later "indemnified" by the ratification o f the Thirteenth Amendment in 1865), and issued the "l.ieber C o d e " for the armies in the field (though Congress has power under Article 1, Section 8, Clause 14 of the Constitution to make rules for the armed forces). ROSSITER, supra note 3, at 2 2 6 - 3 5 . 106. O n e important example is the Act o f 3 March 1863, suspending the writ o f habeas corpus in areas under martial law T h i s Act followed upon Lincoln's controversial

28

Chapter I

e m e r g e n c y powers began to evolve in a m a n n e r similar to that occurring in the United K i n g d o m : the passage o f broadly worded emergency laws that delegated expansive powers to the executive to issue regulations and undertake unusual measures to cope with the crisis. Congress remained in session, but despite the dramatic formal separation o f powers between Congress and the President, a high degree o f legislative acquiescence resulted in an actual concentration o f power in the President. All this occurred without any explicit c h a n g e in the normal constitutional structure or any formal suspension o f liberties. T h e ordinary courts served as the theoretical check upon abuse o f e m e r g e n c y powers, but, as in the British instance, their protections were often illusory o r belated. 1 0 7 T h o u g h dated and drawn from a narrow range o f cultures, Rossiter's study illuminates important differences in the formalities o f emergency powers, differences that are replicated in a wide range o f contemporary states influenced by these Western societies in the creation o f their own e m e r g e n c y regimes. Any accurate typology o f states o f e m e r g e n c y must be sufficient to e m b r a c e not only the highly formal French state o f siege, but also the looser and m o r e elusive approaches o f states sharing a c o m m o n law tradition.

proclamation o f 24 September 1862, suspending the writ on his own inherent authority. Id. at 2 3 5 - 3 6 . 107. T h e classic example o f judicial failure to operate as a check upon abuse of emergency powers is the denial o f relief to American citizens of Japanese ancestry held in internment camps upon military orders during the Second World War. Id. at 252—56, 280-85.

Chapter II Effects of Emergencies o n H u m a n Rights

A. Introduction Generalizations are dangerous in this area, as in so many others, but certain effects upon the enjoyment of h u m a n rights tend to be associated with states of emergency. T h e s e effects can be g r o u p e d into three categories: changes in the allocation of powers within the government; more frequent invasion of absolute rights; and greater restrictions u p o n other f u n d a m e n t a l rights. Each of these areas will be briefly explored in o r d e r to provide a context for u n d e r s t a n d i n g why h u m a n rights monitors have taken or should take a particular interest in states of emergency. T h e final portion of this chapter will be devoted to an extended analysis of the uses of administrative detention and its close association with emergencies.

B. Changes In t h e Allocation off Powers U n d e r the classic model of the state of siege, power is concentrated in the hands of the executive, who proceeds to govern by the issuance of decrees pertaining to n u m e r o u s aspects of civil and economic life, thereby displacing the legislature f r o m its normal role. In some instances, the legislature may be dissolved by executive order. 1 In com1. E.g., Pakistan Emergency Declared; Bhutto Out, L.A. TIMES, Aug. 6, 1990, at P I , col. 4 (noting that t h e state of emergency declared by the President of Pakistan on 6 August 1990 dissolved the Parliament and removed Prime Minister Benazir Bhutto f r o m p o w e r ) ; I N T E R - A M . C . H . R . , R E P O R T ON T H E S T A T U S OF H U M A N R I G H T S IN C H I L E ,

OEA/

Ser.L./V/II.34, doc. 21 (1974) (reporting u p o n the declaration of a state of siege following the coup d'etat in Chile in 1973, d u r i n g which the j u n t a assumed "constituent, legislative a n d executive powers," even t h o u g h Art. 72 No. 17 of the Political Constitution granted the power to declare a state of siege to the Congress, or if not in session, to

30

C h a p t e r II

m o n law countries, such as t h e U n i t e d K i n g d o m a n d the U n i t e d States, t h e legislature may r e m a i n in session, a n d even go t h r o u g h the processes of n o r m a l elections d u r i n g t h e crisis, but the effects of the e m e r g e n c y u p o n the actual e n j o y m e n t of p o w e r may be p r o f o u n d . T h e crisis mentality may result in almost s u p i n e acquiescence in legislative proposals initiated by the executive, or t h e p a r l i a m e n t may cede its legislative powers in a wholesale m a n n e r by a u t h o r i z i n g administrative officials to issue regulations to g o v e r n national life in the place of o r d i n a r y legislation. 2 O n the o t h e r h a n d , the legislature may function as an effective check o n abuse of e m e r g e n c y powers or t h e u n r e a s o n a b l e extension of an emergency, especially w h e r e public criticism remains possible. For exa m p l e , a study by the I n t e r n a t i o n a l Commission of J u r i s t s c o n c l u d e d that c o n t i n u i n g p a r l i a m e n t a r y oversight of the e m e r g e n c y in N o r t h e r n Ireland, in combination with scrutiny by the press a n d h u m a n rights organizations, led to amelioration of e m e r g e n c y m e a s u r e s . T h e Russian Parliament o v e r r o d e President Boris Yeltsin's imposition of e m e r gency rule in the C h e c h e n - I n g u s h region, u r g i n g political negotiations. 4 In devising h e r " r e f e r e n c e m o d e l " for the Sub-Commission, Nicole Q u e s t i a u x highlighted systems, such as that in Costa Rica, in which proclamation of an e m e r g e n c y is kept within the control of the legislature a n d extensions are strictly limited. 5 A m o n g t h e deviations t h e P r e s i d e n t ) . T h e A m i r of K u w a i t d i s s o l v e d t h e N a t i o n a l A s s e m b l y in 198tS, r e l y i n g u p o n his p o w e r s to s u s p e n d p r o v i s i o n s of t h e c o n s t i t u t i o n , a n d s u b s e q u e n t l y r u l e d by d e c r e e . C O U N T R Y R E P O R T S ON H U M A N R I G H T S P R A C T I C E S F O R 1 9 8 9 , U . S . D E P ' T O F S T A T E REPORT SUBMITTED TO THE SENATE C O M M .

ON

FOREIGN

RELATIONS

AND THE

C O M M . ON FOREIGN AFFAIRS, 1 0 1 S T C O N G . , 2 D SESS., 1 4 5 5 ( J o i n t C o m m .

Print

HOUSE

1990)

[ h e r e i n a f t e r COUNTRY REPORTS FOR 1989], O n 2 3 F e b r u a r y 1991, t h e S u p r e m e C o m m a n d e r of t h e a r m e d f o r c e s o f T h a i l a n d a b o l i s h e d t h e c o n s t i t u t i o n a n d P a r l i a m e n t , i m p o s e d m a r t i a l law, p r o m u l g a t e d a n i n t e r i m c o n s t i t u t i o n , a n d a p p o i n t e d a n i n t e r i m p r i m e m i n i s t e r . Thai Military Overthrows Government, N.Y. TIMES. Feb. 2 4 , 1 9 9 ) , § 1 , p i . I., at 1 4 , c o l . 1 . M a r t i a l law was l i f t e d o n 3 M a y 1991. Thailand Ends Martial /.AW, WALL S T . J . , M a y 3 , 1 9 9 1 , at A 8 , col. 4 . 2. See generally

C h a p t e r 1, supra.

3. " I n N o r t h e r n I r e l a n d , t h e c o m b i n e d e f f e c t of p a r l i a m e n t a r y d e b a t e a n d q u e s t i o n i n g of m i n i s t e r s , f r e e d o m of t h e p r e s s a n d t h e activity of n o n - g o v e r n m e n t a l o r g a n i s a t i o n s a n d i n t e r e s t g r o u p s h a s e n c o u r a g e d c o n t i n u i n g r e v i e w of g o v e r n m e n t policies a n d t h e i r e f f e c t s . A b u s e s h a v e b e e n publicly d e b a t e d a n d s a f e g u a r d s d e s i g n e d to p r e v e n t t h e i r r e c u r r e n c e h a v e b e e n i n t r o d u c e d . " INTERNATIONAL COMMISSION OF JURISTS, STATES

OF

EMERGENCY:

I'HEIR

IMPACT

ON

HUMAN

RIGHTS

437

(1983)

[hereinafter

S T A T E S OF E M E R G E N C Y ] ,

4 . C . B o h l e n , legislators a t A 1 2 , col. 4

Block Yeltsin Rule of Breakaway

Area, N.Y

TIMES, Nov. 12, 1 9 9 1 .

5. N . Q u e s t i a u x , Study of the Implications for Human Rights of Recent Developments Concerning Situations Known as States of Siege or Emergency, U . N . D o c . E / C N . 4 / S u b . 2 / 1 9 8 2 / 1 5 , at p a r a . 91 ( 1 9 8 2 ) [ h e r e i n a f t e r Q u e s t i a u x R e p o r t ] ,

Effects of Emergencies on Human Rights

31

f r o m this model, she noted the e m e r g e n c e of "para-legislative" institutions such as the Council of State in Chile a n d the Commission of Legislative Assistance in Argentina, which serve in a consultative role to the decree-issuing executive. 6 T h e effects of states of e m e r g e n c y u p o n the judiciary also vary considerably. O n e of the central e l e m e n t s in the classic French state of siege was the e x p o s u r e of the civilian p o p u l a t i o n to trial in military courts. 7 T h i s m o d e l was assiduously followed by the military rulers of U r u g u a y following the declaration of the "state of internal war" in 1972, with u n u s u a l formality. 8 T h e 1972 Law of National Security created certain crimes against the state a n d declared t h e m military offenses, even if c o m m i t t e d by civilians. 9 In 1975, the Council of State issued a d e c r e e that e x t e n d e d military jurisdiction retroactively f o r acts c o m m i t t e d at any date, even acts c o m m i t t e d prior to the passage of the 1972 Law of National Security that d e f i n e d the offenses. 1 0 T h e s e prosecutions t e n d e d to involve serious delays; h a r s h sentences; evidence o b t a i n e d u n d e r t o r t u r e ; grossly u n f a i r p r o c e d u r e s , including trial in secret; a n d j u d g e s , prosecutors, a n d d e f e n s e counsel w h o w e r e not only all military p e r s o n n e l but u n t r a i n e d as lawyers." I n d e p e n d e n t civilian d e f e n s e counsel, t h o u g h theoretically p e r m i t t e d to participate in the trials, were i m p a i r e d both by lack of access to clients a n d by intimidation that resulted in many being i m p r i s o n e d themselves o r forced into exile. 1 ' 2 T h e U r u g u a y a n model, t h o u g h "classic," is not exclusive. E x p o s u r e of civilians to trial by court-martial is to be expected u n d e r r e g i m e s of martial law. 13 But in o t h e r types of emergencies, perceived e n e m i e s 6. Id. at para. 151. 7. See C h a p t e r I at n o t e 88. 8 . I N T E R N A T I O N A L L E A G U E FOR H U M A N R I G H T S , U R U G U A Y ' S H U M A N R I G H T S R E C O R D 1 1 - 1 4 ( 1 9 8 2 ) [ h e r e i n a f t e r URUGUAY'S HUMAN R I G H T S RECORD],

9. Id. at 12 ( n o t i n g t h e Law of National Security of 10 J u l y 1972). 10. Id. ( n o t i n g Law 14.493 of 2 9 D e c e m b e r 1975). 11. Id. at 1 2 - 1 4 . T h e quality of justice r e n d e r e d by U r u g u a y ' s military c o u r t s was harshly criticized, inter alia, by t h e I n t e r - A m e r i c a n C o m m i s s i o n o n H u m a n Rights in two r e p o r t s in 1978 a n d 1980 a n d in a series of decisions by t h e H u m a n Rights C o m m i t t e e u n d e r t h e O p t i o n a l Protocol to t h e C o v e n a n t o n Civil a n d Political Rights. Id. at 1 2 - 1 3 . See, e.g., M o r i a n a H e r n a n d e z Valentini d e B a z z a n o v. U r u g u a y , C o m m . No. 5 / 1 9 7 7 , Views of t h e H u m a n Rights C o m m i t t e e of A u g u s t 15, 1979, SELECTED DECISIONS UNDER THE O P T I O N A L PROTOCOL, U . N . D o c . C C P R / C / O P / I , at 4 0 - 4 3 ( 1 9 8 5 ) [ h e r e i n a f t e r SE-

LECTED DECISIONS] ( r e p r i n t i n g t h e first decision by t h e H u m a n Rights C o m m i t t e e o n t h e m e r i t s of a n a p p l i c a t i o n u n d e r t h e O p t i o n a l Protocol). 1 2 . U R U G U A Y ' S H U M A N R I G H T S R E C O R D , supra 1 3 . E.g.,

n o t e 8, at

14.

AMNESTY INTERNATIONAL, REPORT 1 9 8 8 , at 1 7 4 ( 1 9 8 9 ) . I n P a k i s t a n p r i o r t o

t h e lifting of martial law in 1985, h u n d r e d s of p e r s o n s w e r e convicted by military c o u r t s . Civilian c o u r t s w e r e f o r b i d d e n to e x a m i n e t h e s e verdicts u n d e r a m e n d m e n t s m a d e to t h e

32

C h a p t e r II

might be tried before other types of special courts not of a military character. For example, in Kuwait suspected subversives were given in camera trials in the State Security Court, which is convened on an ad hoc basis and composed of judges who normally serve on other courts. 14 A similar State Security Court was established in Zaire in 1972. 15 Upon the recommendation of the Diplock Commission, the United Kingdom abolished trial by jury for certain scheduled offenses and modified the common law rules on the admissibility of confessions in Northern Ireland, 16 but otherwise these offenses were tried in the ordinary criminal courts. The victorious Sandinista regime in Nicaragua established the Popular Anti-Somocista Tribunals to try persons associated with the former government. The Tribunals consisted of three-person panels (only one of whom need have legal training) that were appointed by the junta and operated independently of the regular judiciary. 17 Constitution prior to the lifting of martial law. In 1988, however, the S u p r e m e Court permitted certain categories of martial law prisoners to challenge their convictions in civilian courts. In addition, martial law prisoners may seek presidential review. 1989 COUNTRY REPORTS, supra n o t e 1, a t 1 5 2 9 .

Trials before martial law courts in Kuwait after the withdrawal of the Iraqi invaders were criticized for inadequate procedural protections. Although three of the five j u d g e s were civilians a n d the trials took place in public, the d e f e n d a n t s were not permitted to consult with their a p p o i n t e d lawyers, no evidence was presented at trial other than that elicited f r o m the d e f e n d a n t s by the judges, the d e f e n d a n t s were neither permitted to present d e f e n s e witnesses n o r to cross-examine any persons who may have provided information to t h e prosecution, a n d convictions appeared to be based largely u p o n defendants' confessions, which were alleged to have been coerced u n d e r torture. E.A. Gargan, After the War; At Kuwait Trulls, T-Shirt Gets Man 15 Years, N Y. TIMES, May 20, 1991, at A l , col. 2. 1 4 . A M N E S T Y I N T E R N A T I O N A L R E P O R T 1 9 8 8 , supra

n o t e 13, at 2 4 3 - 4 4 ( 1 9 8 9 ) ; COUN-

TRY REPORTS FOR 1989,supra note I, at 1457. N o a p p e a l is permitted f r o m verdicts by the State Security Court. Id. 15. STATES OF EMERCENCY, supra note 3, at 3 8 2 - 8 3 . No appeals are allowed from its judgments. 16. Id. at 2 3 2 - 3 5 . T h e Diplock Report is formally cited as C m n d . 5185, Report of the Commission to consider legal procedures to deal with terrorist activities in N o r t h e r n Ireland, H.M.S.O., 1972. T h e "Diplock Courts" were constituted in 1973, and the new rules on admissibility of confessions were incorporated in section 8(2) of the N o r t h e r n Ireland Emergency Powers Act 1978. T h e ICJ notes that the result was "an increase in the conviction rate in contested cases in which the only evidence consists of a confession allegedly obtained u n d e r duress. Increasingly, the courts have convicted on the basis of alleged verbal confessions which the accused denies ever having made." Id. at 435. Under the new rules on admission of confessions, j u d g e s were to continue to exclude confessions obtained u n d e r t o r t u r e or i n h u m a n or degrading treatment. See D.S. Greer, Admissibility of Confessions and the Common Law m Times of Emergency, 24 N. IR. L.Q. 199 (1973). 17. R. Steinberg, Judicial Independence in States of Emergency: Lessons from Nicaragua's Popular Anti-Somocista Tribunals, 18 COL. HUM. RTS. L. REV. 359. 3 7 0 - 7 3 (1987). Stein-

Effects of E i M r g a n c t e s o n H u n u n R i g h t s

33

Even where ordinary civilian courts retain formal jurisdiction, the independence of the judiciary is often undermined during emergencies by the purging of judges or by the judiciary's own refusal to take jurisdiction over cases involving application of emergency measures. Following the 1967 coup in Greece, the military regime suspended life tenure forjudges for a period of three days and then dismissed approximately thirty judges and prosecutors, including the President of the Supreme Court. 18 An even more thoroughgoing purge took place in Argentina after the 1976 coup, involving the removal of the members of the Supreme Court, the Attorney General, district attorneys and members of the superior provincial courts, and a required loyalty oath to the junta by their replacements. 19 A central aspect of the abrogation of constitutional democracy by the elected President of Peru in April 1992 was the dismissal of judges, including members of the Supreme Court, whom he accused of corruption and ineffectiveness in fighting the drug trade and terrorists. 20 When martial law was declared in Bangladesh in 1982, a decree provided that any high court judge could be removed by the Chief Martial Law Administrator "without assigning any reason."21 Sometimes the same control can be ob-

b e r g notes that t h e T r i b u n a l s have been strongly criticized by h u m a n rights g r o u p s a n d the Inter-American Commission on H u m a n Rights f o r their lack of i n d e p e n d e n c e f r o m t h e executive a n d f o r their denial of fair process. Id. at 3 6 0 - 6 1 , 371. T h e N i c a r a g u a n S u p r e m e C o u r t h a d objected to the creation of t h e T r i b u n a l s on g r o u n d s that t h e o r d i n a r y courts could h a n d l e the large n u m b e r of cases against t h e Somocistas if given a d e q u a t e resources. However, t h e S u p r e m e C o u r t later acquiesced in t h e j u n t a ' s decision. Id. at 3 7 0 - 7 1 . 18. S . R .

CHOWDHURY,

R U L E O F L A W IN A S T A T E OF E M E R G E N C Y

131-32

(1989).

A l t h o u g h t h e S u p r e m e Administrative C o u r t declared these dismissals illegal, the j u n t a nullified that j u d g m e n t a n d placed the president of that c o u r t u n d e r h o u s e arrest, forcing his resignation. T h e j u d g e , Michael Stasinopoulos, was later elected President of t h e G r e e k Republic u p o n its r e t u r n to democracy in 1975. Id. 19. Article 96 of t h e Constitution g u a r a n t e e d t h e j u d g e s of t h e S u p r e m e C o u r t a n d t h e lower courts t e n u r e d u r i n g good behavior. INTER-AM. C . H . R . , REPORT ON THE S I T U A T I O N OF H U M A N R I C H T S IN A R C E N T I N A , O E A / S e r . L . / V / I I . 4 9 , d o c .

1 9 , c o r r . 1, a t

2 2 0 - 2 1 ( 1 9 8 0 ) [ h e r e i n a f t e r I A C H R ARGENTINA R E P O R T ] ; I. G U E S T , B E H I N D T H E D I S A P PEARANCES: A R G E N T I N A ' S D I R T Y W A R AGAINST H U M A N R I G H T S A N D T H E U N I T E D N A T I O N S 26

(1990).

20. N.C. Nash, Peru Chief Orders New Mass Arrests, N.Y. TIMES, Apr. 8, 1992, at A12, col. 1; M. Powers, Ousted Peru Congressmen Vote to Impeach President Fujimori, SEATTLE TIMES, Apr. 10, 1992, at A5, col. 2 (thirteen of twenty-three S u p r e m e C o u r t justices were dismissed). 21. F. N a r i m a n , The Judiciary under Martial Law Regimes, 14 C.I.J.L. BULLETIN 41, 44 (1984) (citing p a r a g r a p h 10(4) of the Proclamation First A m e n d m e n t O r d e r of 11 April 1982, a n d n o t i n g that t h r e e j u d g e s of the S u p r e m e C o u r t of Bangladesh had been r e m o v e d u n d e r this provision within the span of a few months).

34

C h a p t e r II

tained t h r o u g h transfers of j u d g e s rendering opinions unpalatable to the authorities. 2 2 Even where the civilian judiciary retains its tenure of office, key aspects of its jurisdiction over cases involving emergency matters may be formally removed or may simply lie unexercised. In a study of courts in eight common law countries, George Alexander concluded that "in the most serious cases courts have performed badly, will necessarily continue to p e r f o r m badly and should ideally not be involved." 23 Their poor p e r f o r m a n c e could be explained only in part by explicit removals of their jurisdiction, such as the suspension of habeas corpus in India d u r i n g the 1975 emergency, which was sustained in a questionable j u d g m e n t by the S u p r e m e Court of India in 1976. 24 Instead, a tendency to defer to executive authority in the exercise of emergency powers appears to characterize courts in many different types of legal systems, democratic as well as repressive. 25 In Ghana, for example, the Supreme Court held in 1961 that habeas corpus was not available to challenge detentions u n d e r the Preventive Detention Act, 1958, because plenary discretion was vested in the President and because Article 13 of the Constitution, which required the President to respect certain f u n d a m e n t a l rights, "does not represent a legal requirement which can be enforced by the courts." 26 While the courts of Argentina retained habeas corpus jurisdiction after the 1976 coup, they ordered release in only two cases out of the thousands that were filed on behalf of disappeared persons, frequently declining to exercise jurisdiction where the government responded by denying knowledge of the victim's detention. 2 7 22. Chowdhury, supra note 18, at 136 (citing events in India). 23. G. Alexander, The Illusory Protection of Human Rights by National Courts During Periods of Emergency, 5 HUM. RTS. L.J. 1 (1984). T h e states examined were Great Britain, South Africa, Ireland, New Zealand, Ganada, Australia, India, and the United States. 24. A.D M. J a b a l p u r v. Shiv Kant Shukla, 1976 A.I.R. (S.C.) (known as the Habeas Corpus Case). C h o w d h u r y notes that the S u p r e m e Court later held that reasonably fair process was necessary and could be supervised t h r o u g h habeas corpus, citing the case of Gandhi v. Union of India. 1978 A.I.R. (S.C.) 597. See supra note 18. at 138-39. See also STATES OF EMERGENCY, supra note 3, at 1 8 7 - 8 8 (noting that the courts could not even inquire on habeas corpus whether a detention was mala fides or contrary to law and, accordingly, the S u p r e m e Court "suffered severely from self-inflicted wounds"). 25. See discussion infra Section E (noting cases on administrative detention). 26. Baffour Osei Akoto v. T h e Minister of Interior (re Akoto), Civil Appeal 42/61, in STATES OF EMERGENCY, supra

n o t e 3, at 1 0 6 - 7 .

27. O n e of the two cases was that of prominent journalist Jacobo T i m e r m a n , who was ordered by the S u p r e m e Court to be released from house arrest on 17 September 1979, after having been o r d e r e d released from detention in 1978. See J. I IMERMAN, PRISONER WITHOUT A NAME, CELL WITHOUT A NUMBER ( 1 9 8 1 ) . U p o n his r e l e a s e f r o m h o u s e a r r e s t .

T i m e r m a n was stripped of his citizenship and sent into forced exile. I. GUEST, supra note

Effects of Emergencies on Human Rights

35

T h e executive power itself may be transformed during the emergency. Questiaux observed a pattern by which the concept of separation of powers was replaced by the "hierarchization of powers," and, at the summit of executive power, civilian authority was subordinated to the military. 28

C. Violations of Non-Derogable Rights Aside from these institutional metamorphoses, emergencies often entail deprivation of fundamental rights of the population. Again, no single pattern of human rights abuse will characterize every emergency, but often a high incidence of very grave abuse will accompany emergencies. Ironically, this appears to be particularly true of nonderogable rights, those that supposedly can never be suspended, even in time of public emergency threatening the life of the nation.' 2 " Although there is no general agreement on the details of a list of rights that are so fundamental as to never permit suspension, 3 " consensus does exist that any such list would include the prohibition on the arbitrary deprivation of life and the prohibition on torture. Yet, a close correlation has frequently been noted between such practices and states of emergency 3 1 in states as varied as Argentina, Turkey, Myanmar, South Africa, Bahrain, and China. Deaths may occur through the excessive use of force against demonstrators, by clandestine murder committed by security forces or death squads allied with the authorities, 3 ' 2 or through summary execution without minimal

19, at 2 8 4 . D u r i n g the visit o f the I A C H R in S e p t e m b e r 1979, the P r e s i d e n t o f the S u p r e m e C o u r t cited the p e n d i n g T i m e r m a n c a s e a s "a new e x p r e s s i o n o f its i n d e p e n d e n c e . " I A C H R A R G E N T I N A R E P O R T , supra

n o t e 19, at 2 2 1 .

2 8 . Q u e s t i a u x R e p o r t , supra note 5, at p a r a . 159. 29. T h i s f o r m u l a t i o n f o r a n e m e r g e n c y is taken f r o m t h e d e r o g a t i o n p r o v i s i o n s o f the C o v e n a n t o n Civil a n d Political R i g h t s a n d the E u r o p e a n C o n v e n t i o n on H u m a n Rights. 30. See C h a p t e r III infra ( n o t i n g the d i s c u s s i o n on e f f o r t s to set g e n e r a l s t a n d a r d s f o r p r o t e c t i o n o f h u m a n rights d u r i n g states o f e m e r g e n c y ) . 31. T h e Q u e s t i a u x R e p o r t o r i g i n a t e d b e c a u s e o f a c o n c e r n by the S u b - C o m m i s s i o n that its a n n u a l review o f p e r s o n s u n d e r d e t e n t i o n r e v e a l e d "a close c o r r e l a t i o n b e t w e e n the e x i s t e n c e o f states o f e m e r g e n c y a n d s e r i o u s a n d s y s t e m a t i c violations o f t h e r i g h t s o f d e t a i n e e s , particularly rights which d i d not allow o f a n y d e r o g a t i o n , s u c h a s the right to life a n d t h e p r o h i b i t i o n o f t o r t u r e . " U . N . Doc. E / C N . 4 / S u b . 2 / I 9 8 7 / I 9 / R e v . 1, at p a r a . 5 5 (1988). A m n e s t y I n t e r n a t i o n a l r e l e a s e d a study o n the i n c i d e n c e ol t o r t u r e a n d a r b i t r a r y d e p r i v a t i o n o f life d u r i n g states o f e m e r g e n c y in v a r i o u s c o u n t r i e s in J u l y 1988, citing t h e e x a m p l e s o f E g y p t , J o r d a n , Pakistan, P e r u , S o u t h A f r i c a , S r i L a n k a , Syria, a n d T u r k e y . AMNESTY INTERNATIONAL, A I INDEX: P O L

30/02/88.

32. C l a n d e s t i n e m u r d e r as a tool o f i n t i m i d a t i o n by e m e r g e n c y r e g i m e s c a n take

3*

C h a p t e r II

due process. Torture is frequently practiced by emergency regimes (as it is by many other governments) 3 3 and tends to be associated with other human rights abuses characteristic of emergencies, such as incommunicado detention, disappearances, administrative detention, and secret trials in which confessions form the primary evidence of guilt. Such gross abuses often, but not invariably, receive priority attention by human rights monitors, and the subsequent parts of this study will explore in detail how the various bodies concerned with these grave violations have taken the emergency context into account in their work. 34 T h e association of emergencies with widespread deprivations of non-derogable rights has acted as the strongest factor in focusing international attention upon the potential link between emergencies and human rights. 35

D. Emergency Limitations on Other Fundamental Rights T h e r e is nothing remarkable about the fact that substantial restrictions are placed on other human rights during states of emergency. Indeed, the whole point of recognizing a concept of public emergencies in international human rights law was to provide reasonable limits upon the anticipated restrictions of rights that emergencies would entail.3*'

several f o r m s , such as t h r o u g h " d i s a p p e a r a n c e s , " in which t h e victim's f a t e is c o n c e a l e d , a n d k i d n a p p i n g s a n d killings, a f t e r w h i c h t h e victim's body is d u m p e d in a public place in o r d e r to i n t i m i d a t e o t h e r s . 33. A m n e s t y I n t e r n a t i o n a l e s t i m a t e d that o n e - t h i r d of t h e world's g o v e r n m e n t s w e r e practicing t o r t u r e at t h e t i m e it p u b l i s h e d its r e p o r t . AMNF.STV INTERNATIONAL: TORTURE IN T H E E I G H T I E S

(1984).

34. T h e c o n c e r n of h u m a n rights m o n i t o r s with o t h e r n o n - d e r o g a b l e rights in t h e c o n t e x t of e m e r g e n c i e s (such as t h e p r o h i b i t i o n o n cruel, i n h u m a n , a n d d e g r a d i n g t r e a t m e n t ; o r with f r e e d o m of t h o u g h t , conscience a n d religion) will also be discussed in t h e e n s u i n g c h a p t e r s e x a m i n i n g t h e w o r k of specific m o n i t o r i n g bodies. 35. See S u b - C o m m i s s i o n Res. 10(XXX) of A u g u s t 31. 1977. Report of the Sub-Commu51on on Protection of Discrimination and Protection of Minorities on its Thirteenth Session, U . N E S C O R , H u m . Rts. C o m m . , U . N . Doc. E / C N . 4 / 1 2 6 1 , F . / C N . 4 / S u b . 2 / 3 9 9 , at 4 8 (1977). 36. D u r i n g t h e earliest d r a f t i n g stages of t h e C o v e n a n t o n Civil a n d Political Rights in 1947, f o r e x a m p l e , a r e p r e s e n t a t i v e of t h e U n i t e d K i n g d o m o n t h e W o r k i n g G r o u p o n t h e C o n v e n t i o n o n H u m a n Rights p r o p o s e d a d r a f t Article 4 in t h e following t e r m s : " [ U ] n d e r t h e g e n e r a l principles of i n t e r n a t i o n a l law, in t i m e of w a r States w e r e not strictly b o u n d by c o n v e n t i o n a l o b l i g a t i o n s unless t h e c o n v e n t i o n s c o n t a i n e d p r o v i s i o n s to t h e contrary. In o r d e r to p r e v e n t States f r o m arbitrarily d e r o g a t i n g f r o m their obligations in respect of h u m a n rights in t i m e of war, t h e U n i t e d K i n g d o m p r o p o s e d t h e text of Article 4." U . N . Doc. E / C N . 4 / A C . 3 / S R . 8 , at 10 (1947).

E f f e c t s of E i M r g a n d w o n H u n u v i R i g h t s

37

These restrictions were expected to go f u r t h e r than those permitted u n d e r ordinary circumstances for purposes such as the maintenance of public order. Much of the work of treaty-based h u m a n rights monitors with respect to states of emergency has involved setting the contours for emergency derogations from such rights. In a United Nations survey of governments the rights most often mentioned as having been the subject of derogations during emergencies were liberty and security of the person, liberty of movement, protection of privacy, freedom of expression and opinion, and the right of peaceful assembly. 37 Many monitors have noted that excessive invasions of these and other rights have occurred during many emergencies, often in association with deprivations of non-derogable rights, such as the right to life and the prohibition on torture. But, as the International Commission of Jurists observed: S o m e writers have e m p h a s i z e d the effects o f states o f e m e r g e n c y o n individual rights, particularly t h e right to be f r e e f r o m arbitrary deprivation of f r e e d o m a n d the right to a fair trial. T h i s tends to create a s o m e w h a t false i m a g e o f states o f e m e r g e n c y , for o n e o f their most f u n d a m e n t a l characteristics is precisely the breadth of their impact o n a society. T h e y typically affect trade u n i o n rights, f r e e d o m o f o p i n i o n , f r e e d o m o f e x p r e s s i o n , f r e e d o m o f association, the right of access to i n f o r m a t i o n a n d ideas, the right to an education, the right to participate in public affairs . . . not only individual rights but also collective rights and rights of p e o p l e s , such as t h e right to d e v e l o p m e n t and the right to self-determination. 3 *

T h e scope of these effects 39 naturally results in a potential concern with states of emergency by all the monitoring bodies with an interest in any of this wide range of rights. These potentially extensive effects have also influenced the debate over the drafting of non-treaty37. L. Despouy, First Annual Report and List of Slates which, since 1 January 1985, have Proclaimed, Extended or Terminated a State of Emergency, U.N. Doc. E/CN.4/Sub.2/1987/ 19/Rev. 1, at para. 54 (1988) [hereinafter Despouy Report], 38. STATES OF EMERGENCY, supra note 3, at 417 (footnote omitted). 39. T h e state of siege in Argentina, for example, helped the military regime pursue economic policies that temporarily benefited the middle classes but that ultimately, because of heavy reliance on foreign debt, created a severe economic crisis for the nation. See I. GUEST, supra note 19, at 27-30. As the representative of Argentina noted at the H u m a n Rights Committee's review of Argentina's initial report in 1990, "The economic crisis in Argentina made it difficult to protect and promote economic, social and cultural rights. . . . [T]he full implementation of the Declaration on the Right to Development was still remote, since there were other, much more urgent needs to be handled. In their consideration of Argentina's compliance with the International Covenant on Civil and Political Rights, the experts should bear in mind the prevailing social and economic situation in the country." U.N. Doc. CCPR/C/SR.952, at para. 4 (1990) (remarks of Mrs. Regazzoli).

38

C h a p t e r II

based substantive standards f o r government behavior during states o f emergency. 4 0

E. Administrative Detention Despite the cautionary note sounded by the International Commission o f Jurists that states o f emergency have a profound and troubling impact upon rights other than the liberty o f the person, 4 1 the special connection between states o f emergency and the practice o f administrative detention merits extended discussion. It was in t h e course o f its annual review o f the human rights o f persons subjected to detention or imprisonment that the Sub-Commission developed its specific interest in the human rights implications o f states o f emergency. 4 '* While the Sub-Commission's work on states o f emergency has become delinked from t h e specific issue o f administrative detention, 4 : i cogent reasons exist for devoting special attention to this aspect o f government behavior during emergencies. First, one o f the most serious defects in existing international standards governing states o f emergency is the absence o f precise a n d agreed limits on the derogability o f the right o f personal liberty. Second, international norms a r e equally ambiguous on t h e question whether administrative detention is ever permissible in a non-emergency context. While the next chapter will b e devoted to t h e general question o f standard-setting f o r emergencies by human rights monitors, a brief digression into the lack o f clarity surrounding the issue o f administrative detention may help to set the stage for that discussion, as well as to illuminate some general flaws in the monitoring system. T h e practice o f administrative detention examined here can be defined as detention ordered by the executive, without charge and without intention to place the detainee on trial, o f persons suspected o f threatening public order o r state security. 41 O n e thing is clear: such 40. See Chapter III mfra (noting the differences in defining the list o f rights that should be non-derogable, in whole or in part). 41. See supra note 38. 42. Questiaux Report, supra note 5, at paras. 7 - 1 1 . 43. T h e Sub-Commission's Special Rapporteur in his fourth annual report on states o f emergency discusses the specific phenomenon o f administrative detention. L'.N. Doc. E / C N . 4 / S u b . 2 / 1 9 9 1 / 2 8 , at paras. 2 6 - 4 2 (1991). T h e Sub-Commission undertook a study o f administrative detention that considered but was not limited to states o f emergency, and ultimately created a Working Croup on Arbitrary Detention, not limited to emergency detentions nor administrative detention. See Chapter V mfra. 44. Louis Joinet's report on administrative detention for the Sub-Commission adopted the following definition: "[DJetention is considered administrative detention' if, de jure and/or de faclo, it has been ordered by the executive alone and the power o f decision

Effects of Emergencies on Human Rights

39

practices are not categorically prohibited under the key human rights treaties that specify permissible derogations f r o m human rights during states of emergency. 4 5 Yet the treaty drafters left their j o b unfinished by simply deciding to make the relevant rights derogable without precisely specifying the circumstances under which administrative detention would be tolerated. T h e y identified neither the nature o f an emergency justifying the practice (and, indeed, whether it would be tolerable only under a genuine emergency), nor mandatory safeguards to prevent abusive application o f detention measures. This lack o f clarity in treaty standards has contributed to a widespread laxness of practice: Contrary to what o n e m i g h t suppose, administrative detention is not banned on principle under international rules. . . . Virtually all countries, including those which regard themselves as being a m o n g the most democratic, p r o v i d e in their legislation f o r detention w h e r e the p o w e r o f decisions lies with the administrative authority alone. . . .

rests solely w i t h t h e a d m i n i s t r a t i v e a u t h o r i t y , e v e n if a r e m e d y a posteriori

d o c s exist in

t h e c o u r t s . " U . N . D o c . E / C N . 4 / S u b . 2 / 1 9 9 0 / 2 9 , at para. 2 2 ( 1 9 9 0 ) [ h e r e i n a f t e r J o i n e t Report). J o i n e t ' s r e p o r t a d d r e s s e d d e t e n t i o n s f o r s e c u r i t y r e a s o n s , but also c o n s i d e r e d d e t e n t i o n o f r e f u g e e s a n d a s y l u m s e e k e r s , r e e d u c a t i o n c a m p s , d i s c i p l i n a r y m e a s u r e s such as solitary c o n f i n e m e n t f o r c o n v i c t e d p r i s o n e r s a n d " m e a s u r e s t o c o m b a t social m a l a d j u s t m e n t " i n c l u d i n g d e t e n t i o n o f v a g r a n t s a n d j u v e n i l e s . Id.

at p a r a . 24. J o i n e t ' s

study

e m e r g e d f r o m a c o n c e r n by t h e S u b - C o m m i s s i o n in 1985 that i n f o r m a t i o n m a d e a v a i l a b l e t o it f r o m n o n - g o v e r n m e n t a l o r g a n i z a t i o n s in c o n s u l t a t i v e status w i t h t h e E c o n o m i c a n d Social C o u n c i l h a d r e v e a l e d that " h u n d r e d s a n d , in s o m e cases, t h o u s a n d s o f p e r s o n s a n d t h e i r f a m i l i e s w e r e b e i n g s u b j e c t e d t o d e t e n t i o n as a n a d m i n i s t r a t i v e

measure,

w i t h o u t a n y a r r e s t w a r r a n t , c h a r g e o r trial by an i n d e p e n d e n t j u d i c i a l b o d y , a n d t h e s e p e r s o n s w e r e , o f t e n d u r i n g states o f e m e r g e n c y , b e i n g h e l d i n c o m m u n i c a d o f o r s e v e r a l months, o r years, o r e v e n indefinitely, without the services o f a lawyer o r t h e possibility o f e x e r c i s i n g t h e i r r i g h t o f d e f e n c e . " Id. at para. 2. See D. P r e m o n t , United Nations for

the Protection

of All Persons Subjected

to Any Form of Detention

or Imprisonment,

Procedures 2 0 SANTA

C I ^ R A L . REV. 6 0 3 ( 1 9 8 0 ) ( d i s c u s s i n g t h e o r i g i n s o f t h e S u b - C o m m i s s i o n ' s c o n c e r n w i t h the rights o f detainees). 45. P r o p o s e d d r a f t s o f A r t i c l e 4 o f the C o v e n a n t o n Civil and Political R i g h t s submitt e d by F r e n c h a n d U . S . r e p r e s e n t a t i v e s , f o r e x a m p l e , w o u l d h a v e m a d e t h e p r o h i b i t i o n o n arbitrary arrest, the right to p r o m p t notice o f charges, a n d the right to fair a n d p r o m p t trial n o n - d e r o g a b l e . B o t h p r o p o s a l s , h o w e v e r , w o u l d h a v e m a d e d e r o g a b l e t h e right

to take p r o m p t j u d i c i a l p r o c e e d i n g s t o c h a l l e n g e the lawfulness o f d e t e n t i o n . U . N .

Doc. E/CN.4/324 (1949) (French draft); U . N . Doc. E/CN.4/325 (1949) (U.S. draft). T h e r e p r e s e n t a t i v e o f t h e U . K . o b j e c t e d that t h e p r o h i b i t i o n a g a i n s t a r b i t r a r y a r r e s t a n d t h e r i g h t o f f a i r a n d p u b l i c trial m i g h t b e i m p o s s i b l e t o r e s p e c t d u r i n g w a r t i m e . U . N . D o c . E / C N . 4 / S R . 126, at 4 - 5 ( 1 9 4 9 ) ( r e m a r k s o f Miss B o w i e ) . T h e U . K . v i e w p r e v a i l e d w h e n t h e list o f n o n - d e r o g a b l e Working

rights

Paper for the Committee

Q . 89, 1 1 5 - 1 8 ( 1 9 8 5 ) .

w a s a g r e e d t o p r o v i s i o n a l l y in 1950. See J. H a r t m a n ,

of Experts on the Article

4 Derogation

Provision,

7 H U M . RTS.

40

C h a p t e r II

Governments might at the very least be expected to use it only in truly exceptional cases, while judicial detention remained the rule. In all too many countries, on the contrary, the exception is tending to become the rule, not only when states of emergency are declared but also under "internal security" or "State security" laws which remain permanently in force.4b T h e dangers of administrative detention, as well as a perceived n e e d for its availability during times of e x t r e m e crisis, affected the drafting of the derogation articles in each o f the three major h u m a n rights treaties. T h e earliest to be c o m p l e t e d was the European Convention, 4 7 whose drafters were nevertheless able to draw on the models of the Universal Declaration of H u m a n Rights, as well as the embryonic U n i t e d Nations covenant, w h e n they began their work in 1949. 4M During the early debates, an Irish delegate raised the issue of protecting minorities from deprivations of liberty u n d e r e m e r g e n c y laws as a matter of urgency requiring protection in the draft. 4 9 A l t h o u g h a specific derogation article was inserted in the Convention, the prohibition o n arbitrary detention did not figure a m o n g the non-derogable 46. Joinet Report, supra note 44, U.N. Doc. E/CN.4/Sub.2/1990/29, at paras. 17, 19. 47. European Convention for the Protection of H u m a n Rights and Fundamental Freedoms, opernd for signature Apr. 11, 1950, entered into force Nov. 4, 1950,213 U.N.T.S. 222, [hereinafter European Convention]. 48. An initial draft prepared by members of the European Movement, strongly influenced by the Universal Declaration and the early drafts of the Covenant, was considered by the Consultative Assembly in August 1949. 1 COLLECTED EDITION OF THF. T R A V A U X P R E P A R A T O I R E S O F T H E E U R O P E A N C O N V E N T I O N ON H U M A N R I C H T S 1 6 6 ( 1 9 7 5 ) [ h e r e i n a f t e r C O L L E C T E D E D I T I O N OF T H E T R A V A U X ] .

49. T h e Irish delegate stressed the need to protect minorities from provisions such as the Special Powers Act for N o r t h e r n Ireland. 1 id. at 104. A delegate from the United Kingdom rejoined that "(i]t is defined in every declaration of h u m a n rights that in times of emergency the safety of the community is of first concern." Id. at 152. T h e r e a f t e r , the U.K. led the move to insert a specific derogation article in the draft treaty. T h e draft initially adopted by the Consultative Assembly had included only a general limitation clause based on Article 29 of the Universal Declaration, which permitted limitations "with the sole aim of ensuring recognition and respect for the rights and f r e e d o m s of others, and in o r d e r to meet the p r o p e r requirements of morality, order, public safety and the general well-being in a democratic society." Id. at 178. A committee of experts had the Secretary-General of the Council of Europe undertake a comparative study of the European d r a f t and the U.N. draft covenant; this study concluded that the general limitations article made a specific derogation clause superfluous. 3 COLLECTED EDITION OF THE TRAVAUX, supra note 48, at 28. T h e U.K. delegation persisted, however, and in March 1950 submitted a d r a f t derogation article. Id. at 280—82. T h e experts also included a nearly identical derogation article in a March 1950 draft submitted to the Ministers. 4 COLLECTED EDITION OK THE TRAVAUX, supra note 48, at 56. Neither version made the rights of personal liberty or fair trial non-derogable, although the article's inclusion of a list of non-derogable rights was seen by the drafters as its most desirable feature. Id. at 30.

Effictt of E i n i f j c f i d c s on Human Rlyhii

41

provisions. O n the other hand, Article 5 o f the Convention, concerning liberty o f the person, contains n o clause permitting limitations for reasons of public order or national security,50 suggesting that only in times o f emergency meeting the requirements of Article 15 could the provisions of Article 5 be compromised. 5 1 At the time o f the drafting o f the E u r o p e a n Convention and in the early stages of drafting the C o v e n a n t on Civil and Political Rights, the experiences o f democratic governments d u r i n g the Second W o r l d W a r were fresh in memory. T h e s e experiences included widespread use of administrative detention, against both enemy aliens and citizens whose loyalty was questioned. 5 2 W h i l e early proposals for derogation articles in the Covenant, submitted by the United States and France, w o u l d have m a d e the provisions on arbitrary detention and fair trial nonderogable, objection was raised by the United K i n g d o m that the exigencies of w a r might require suspension of such

rights.53

As in the case of the E u r o p e a n Convention, the drafters did not include the provisions on arbitrary detention and fair trial within the list of n o n - d e r o g a b l e rights in Article 4(2) of the Covenant, but, at the same time, they inserted no limitations clauses in Article 9 on detention and Article 14 on fair trial, other than a clause permitting the closure o f all or part of a trial to the public u n d e r certain circumstances. 54

50. Article 5( 1 )(c) o f the European Convention permits detention o f a person " f o r the purpose o f bringing him before the competent legal authority on reasonable suspicion o f having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having d o n e so" (emphasis added). European Convention, supra note 47. However, Article 5(3) requires that all persons detained under Article 5( 1 )(c) be brought promptly b e f o r e a j u d g e or other officer authorized to exercise judicial power, and that all such persons "shall be entitled to trial within a reasonable time or to release pending trial." Article 5(2) requires prompt notice of the reasons for the arrest and o f "any charge"; Article 5(4) mandates that all detained persons may take proceedings to have the lawfulness o f their detention "decided speedily by a court." Article 6 on fair trial contains a limitations clause only to the provision on public trial, permitting exclusion o f the press and public "in the interests o f morals, public order or national security in a democratic society. . . ." 51. See infra notes 7 7 - 9 0 (discussing the Brogan case). 52. Both the United Kingdom and the United States made extensive use o f administrative detention during the war. See A.W. Brian Simpson, Detention without Trial in the Second World War: Comparing the British and American Experiences, 34 LAW QUADRANGLE NOTES 48 (1990) (published by the University o f Michigan) (offering a brief comparison between American and British experiences). 53. See supra note 45. 54. Article 14(1) o f the International Covenant on Civil and Political Rights, adopted Dec. 19, 1966, entered into force Mar. 23, 1976, G . A . Res. 2200 ( X X I ) , 21 U . N . G A O R Supp. ( N o . 16) 52, U . N . Doc. A/6316 (1966), provides, in part, that the "[pjress and the public may be excluded from all or p a n o f a trial for reasons o f morals, public order (ordre public) o r national security in a democratic society."

42

C h a p t e r II

During the drafting of the American Convention on H u m a n Rights, the suspendability of the provisions on arbitrary detention and fair trial also became a matter of debate, eventually leading to the insertion of a phrase that marks an advance over the earlier two treaties. A draft convention prepared by the Inter-American Commission on H u m a n Rights (IACHR) in 1968, at the request of the Council of the OAS, included "protection against arbitrary detention" and "due process of law" a m o n g the rights from which no derogation was permitted. 5 5 T w o objections were raised by delegates attending the Conference of San José in 1969: (1) Mexico argued that there should be no list of nonderogable rights at all, because its constitution "establishes the possibility of suspending all those rights that may be an obstacle to dealing rapidly and effectively with an emergency situation";5*' and (2) the United States objected that the IACHR draft was vague in its definition of the non-derogable rights. 57 A small drafting committee 5 8 was appointed to revise the derogation article, and its recommendation was substantially different from the IACHR proposal. It added provisions such as protection of the family while deleting the references to arbitrary detention and fair trial. 59 T h e 55. Draft Inter-American

Convention on Protection of Human Rights, O E A / S e r . L / I I . 19,

d o c . 4 8 , r e v . 1 ( 1 9 6 8 ) , r e p n n l e d i n 2 H U M A N R I G H T S : T H E INTER-AMERICAN SYSTEM, p t . 2 ,

Booklet No. 13, at a n . 24 ( T h o m a s B u e r g e n t h a l and Robert Norris eds. 1982) (hereina f t e r H U M A N R I G H T S : T H E INTER-AMERICAN SYSTEM).

56. Preliminary Draft of Observations by the G o v e r n m e n t of Mexico on the Draft Inter-American Convention on Protection of H u m a n Rights, submitted 3 Julv 1969, to t h e C o n f e r e n c e o f S a n J o s é , reprinted

in H U M A N R I G H T S : T H E I N T E R A M E R I C A N S Y S T E M ,

supra note 55, at 138. In a submission d a t e d 5 N o v e m b e r 1969, however, Ecuador indicated that it was also concerned with the disparity between IACHR d r a f t Article 24 a n d the terms of its own constitution, a n d suggested that the article be r e p h r a s e d to forbid the suspension of "the rights to life and to the integrity of one's person." The submission also indicated that "Mexico shares that desire." Id. at 117. D u r i n g the discussion of the I A C H R d r a f t on 17 N o v e m b e r 1969, however, Mexico proposed the deletion of t h e entire list of n o n - d e r o g a b l e rights. T h i s motion was d e f e a t e d . Id. at 134—36. 57. T h e U.S. delegate stated that h e considered " p a r a g r a p h 2 of Article 24(27] essential but warns that, in o r d e r to e n s u r e its a d e q u a t e functioning, the specific h u m a n rights that cannot be d e r o g a t e d f r o m at any time must be cited in detail." Id. at 136. In written c o m m e n t s submitted to the C o n f e r e n c e of San J o s é on 2 July 1969, the United States had p r o p o s e d a list of n o n - d e r o g a b l e rights, based primarily on Article 4(2) of ihe C o v e n a n t on Civil a n d Political Rights. T h e United States list did not include provisions against either arbitrary detention or fair trial. Id. at 164. 58. T h e d r a f t i n g committee included m e m b e r s who were delegates for the States, Brazil, Chile, El Salvador, a n d Ecuador. Id., Booklet No. 12, at 136. 59. T h e revised Article 24(2) prohibited the suspension of the right to judicial ality, the right to life, integrity of the p e r s o n , f r e e d o m of conscience a n d religion, m a t r i m o n y a n d protection of the family, right to a n a m e , right to nationality a n d

United personrighi lo righi lo

Efforts of Emergencies on Human Rights

43

U.S. delegate objected that the provisions on "the protection of an individual arrested without being informed on the cause or charges, and his right to have a hearing to respond to the accusations that are brought against him" should also have been included. 60 This proposal was defeated, 6 1 but three days later the United States successfully proposed the addition o f "the judicial guarantees essential for the protection of such rights" to the list of non-derogable rights.6'2 Where these formulations leave the permissibility of administrative detention under the three treaties is not entirely clear. Under both the European Convention and the Covenant, it appears that administrative detention is permissible during emergencies if "strictly required by the exigencies of the situation." 63 T h e implementation bodies created by these two treaties have devoted substantial attention to applying this rule of proportionality to derogating states resorting to administrative detention. 6 4 While the Inter-American Court of Human Rights has clarified that access to habeas corpus must remain available even during emergencies by virtue of the "essential judicial guarantees" language of Article 27(2) o f the American Convention, 6 5 its opinion does not categorically exclude the possibility of administrative detention. 6 6 Within

participate in government. Slavery and ex post facto laws were also prohibited. All rights referred to the draft Convention articles defining these rights. Id at 137. 60. Id. 61. Id. 62. Id. at 254. 63 All measures taken in derogation of rights under the treaties are subject to this overarching principle o f proportionality, by virtue of Article 15(1) of the European Convention and Article 4(1) o f the Covenant. See supra note 47, at art. 15(1); see also Chapter III infra note 11. 64. See Chapter VI mfra (discussing the European Commission on Human Rights and the European Court o f Human Rights); Chapter IV infra (discussing the Human Rights Committee). 65. Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) of the American Convention on Human Rights), Inter-Am. Ct. H.R. (Advisory Opinion OC-8/87 o f J a n u ary 30, 1987), O A S. Doc. OC-8/87 (ser. A) No. 8 (1987) [hereinafter Habeas Corpus m Emergency Situations]. See American Convention on Human Rights, Nov. 22, 1969, OEA/ Ser. K/XV. 1.1, doc. 65, rev. l . c o r r . 1 (1970) [hereinafter American Convention], 66. In its request for an advisory opinion, the IACHR acknowledged that "the right to personal liberty may be temporarily suspended in time o f war, public danger or other emergency that threatens the independence or security of the State, and that the authority vested in the executive branch permits the temporary detention of a person solely on the basis o f information that he or she endangers the independence or security o f the State." Habeas Corpus in Emergency Situations, supra note 65, at 15. T h e Court emphasized that habeas corpus plays an essential role in ensuring not only that non-derogable rights such as the right to life are protected, but also that emer-

44

C h a p t e r II

s o m e systems of administrative detention, habeas corpus jurisdiction is preserved, but the courts e x a m i n e the subjective g o o d faith of the official ordering the detention and d o not inquire w h e t h e r objective reasons exist to suspect that the detainee poses a public danger, nor d o they insist that recognizable criminal charges be filed and fair trial be provided to detained individuals. 6 7 T h e suspendability of the rights of personal liberty and fair trial has b e c o m e a central focus of efforts to draft non-treaty-specific guidelines for protection of h u m a n rights d u r i n g emergencies, with a n u m b e r of efforts being made to identify a core of irreducible procedural guaran-

gency measures meet the strict requirements of Article 27(1), such as the principle of proportionality: A f u r t h e r question that needs to be asked, and which goes beyond the consideration of habeas corpus as a judicial remedy designed to safeguard the non-derogable rights set out in Article 27(2), is whether the writ may remain in effect as a means of ensuring individual liberty even d u r i n g states of emergency, despite the fact that Article 7 is not listed a m o n g the provisions that may not be suspended in exceptional circumstances. [A] violation would occur, for example, if the measures taken infringed the legal regime of the slate of emergency, if they lasted longer than the lime limit specified, if they were manifestly irrational, unnecessary or disproportionate, or if, in adopting them, there was a misuse or abuse of power. If this is so, it follows that in a system governed by the rule of law it is entirely in o r d e r for an autonomous and i n d e p e n d e n t 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 f u n d a m e n t a l importance.

Id. at 28. 67. See, e.g., Liversidge v. Anderson, [1941] 3 A l l E.R 338, 348 (H.I..) (in which the House of Lords held, over a passionate dissent by l.ord Atkin, that persons detained u n d e r Defence (General) Regulations, reg. 18B, d u r i n g the Second World War for "hostile associations" could take "no appeal from the decision of the Secretary of Slate in these matters, provided only that he acts in good faith"). While Lwersuige was brought as an action for false imprisonment, the companion case of R. v. Home Secretary, Ex parte Greene, was brought as an action in habeas corpus, and a similar result obtained. R. v. Home Secretary, Ex parte Green, [ 1941 ] 3 A11 E.R. 104. Even for Lord Atkin, the issue was not whether Parliament could create a system of administrative detention not subject to effective judicial control, but merely whether Parliament had in fact authorized such a system through adoption of the Emergency Power (Defence) Act, 1939, 2 & 3 Cieo. 6. ch. 62: "In England amidst the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace. . . . In this case, I have listened to arguments which might have been addressed acceptably to the Court of King's Bench in the time of Charles I." Id. at 361.

E f f e c t s of E n i c r Q t n d i i o n H u n u n Rfgffrts

45

tees. 6 * In addition, the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, 6 9 though not intended specifically as guidelines for administrative detention 7 0 or for detention during emergencies, provides important procedural guarantees for all detainees, regardless of emergency context. 71 T h e three major human rights treaties not only leave lingering ambiguities concerning the constraints under which governments must operate in instituting administrative detention during emergencies, they also d o not make it entirely clear whether administrative detention is ever allowed outside the context of a genuine public emergency. T h e typology of emergencies presented in Chapter I indicated that many states have permanent internal security laws that permit the executive to detain suspected opponents without charge or trial and without the formal imposition of a state of emergency. 7 2 T h e Joinet study of administrative detention also noted this fact. 73 Yet the Special Rapporteur on States of Emergency has indicated a belief that administrative detention is permissible only pursuant to a valid declared emergency. 7 4 Non-governmental organizations such 68. Str C h a p t e r III infra. 69. G.A. Res. 43/173 of Dec. 9, 1988,43 U.N. GAOR Supp. (No. 49) at 297, U.N. Doc. A/43/49 (1989). 70. T h e Body of Principles applies to regimes of administrative detention, as the Commission on H u m a n Rights recently observed. Commission Res. 1991/42 of Mar. 5, 1991, U.N. ESCOR Supp. (No. 2) at 105, U.N. Doc. E/1991/22, E/CN.4/1991/91 (1991). 71. T h e Body of Principles does not exclude the possibility of administrative detention without charge or trial, but it does require, inter aim, supervision of detention by a judicial or other authority with competence, impartiality, and independence (Principle 4); prompt disclosure of the reasons for the arrest and any charges (Principle 10); an effective opportunity to be heard by a judicial or other authority (Principle 11(1)); prompt and full communication of any detention o r d e r and review of continuance of detention by a judicial or other authority (Principles 11(2) and (3)); information to the detainee on how to exercise his or her rights (Principle 13); provision for notice to family and counsel (Principles 15-17); the right to communicate with counsel (Principle 18); and the right to take proceedings before a judicial or other authority to challenge the l a w f u l n e s s of d e t e n t i o n ( P r i n c i p l e 3 2 ) . See AMNESTY INTERNATIONAL, A GUIDE r o THE U N I T E D N A T I O N S B O D Y OF P R I N C I P L E S FOR T H E P R O T E C T I O N O F A L L P E R S O N S U N D E R A N Y F O R M O F D E T E N T I O N OR I M P R I S O N M E N T , A I I n d e x : I O R 5 2 / 0 4 / 8 9

(1989).

72. See Chapter I supra text accompanying note 49 (noting the factors involved with the Type 4 or the "ambiguous or potential" de facto emergency. See also C h a p t e r I supra text accompanying notes 2 7 - 2 8 . 73. See supra note 44. 74. "Note should also be taken of another serious problem, which the Special Rapporteur proposes to analyze in depth, that exists in some countries, where persons can be arrested and detained, sometimes for very long periods, without a state of emergency have been proclaimed." Third annual report and list of States which, since I January 1985, have

4«

C h a p t e r II

as the International Commission o f Jurists also have supported this view. 75 T h e absence of limitations clauses in the treaty articles on arbitrary detention and fair trial (aside f r o m the narrow issue of public trial) can be read in either o f two ways: that denial o f due process rights is permissible only where governments enter a valid derogation in time o f emergency; or, conversely, that governments have essentially carte blanche discretion to intern their political opponents administratively during ordinary non-emergency times, rather than placing them on trial f o r specific charges, at least as long as the detainee is i n f o r m e d of the reasons for the detention, can take proceedings (e.g., by habeas corpus) to question the lawfulness of the detention and can receive compensation f o r unlawful detention. 7 6

proclaimed,

extended or terminated

a state of emergency,

U.N. Dot.

K/CN.4/Sub.2/1989/30/

Rev. 1, at para. 3 3 ( d ) ( 1 9 9 0 ) . I n p r e s e n t i n g his r e p o r t t o t h e S u b - C o m m i s s i o n in 1989, t h e S p e c i a l R a p p o r t e u r stated: " A d m i n i s t r a t i v e d e t e n t i o n w a s t h e o n l y p o s s i b i l i t y o f h o l d i n g p e o p l e f o r a n y l e n g t h o f t i m e w i t h o u t a c h a r g e b e i n g m a d e a g a i n s t t h e m , but a state o f e m e r g e n c y h a d t o h a v e b e e n p u b l i c l y p r o c l a i m e d in s u c h cases. H o w e v e r , t h e r e w e r e c o u n t r i e s w h e r e it was p o s s i b l e t o h o l d p e r s o n s u n d e r a d m i n i s t r a t i v e d e t e n t i o n w i t h o u t t h e n e e d to d e c l a r e a n y state o f e m e r g e n c y . H e i n v i t e d m e m b e r s to g i v e t h o u g h t to t h e q u e s t i o n o f h o w to restrict such a r b i t r a r y a d m i n i s t r a t i v e d e t e n t i o n w i t h o u t p r i o r d e c l a r a tion o f a state o f e m e r g e n c y . " U . N . D o c . E / C N . 4 / S u b . 2 / I 9 8 9 / S R . 3 2 , at p a r a . 2 6 ( 1 9 8 9 ) . 75. T h e O r a l I n t e r v e n t i o n o f t h e I n t e r n a t i o n a l C o m m i s s i o n o f Jurists o n A d m i n i s t r a tive D e t e n t i o n

to t h e F o r t y - f i r s t session o f t h e U n i t e d

Nations Sub-Commission

on

P r e v e n t i o n o f D i s c r i m i n a t i o n a n d P r o t e c t i o n o f M i n o r i t i e s s t a t e d : " ( T ] h e I.C.J, has, e v e r since its c o n g r e s s in L a g o s in 1952, r e c o m m e n d e d : that it o n l y be a d o p t e d d u r i n g an o f f i c i a l l y d e c l a r e d state o f e m e r g e n c y w h i c h t h r e a t e n s t h e l i f e o f t h e n a t i o n , f o r t h w i t h r e p o r t e d to, a n d subject t o r a t i f i c a t i o n by, a d e m o c r a t i c a l l y e l e c t e d l e g i s l a t u r e ; a n d that the d e t e n t i o n b e f o r a s p e c i f i e d a n d l i m i t e d p e r i o d o f t i m e n o t e x c e e d i n g six m o n t h s . " U . N . D o c . E / C N . 4 / S u b . 2 / 1 9 8 9 / S R . 3 2 , at p a r a . 6 6 ( 1 9 8 9 ) . 76. See, e.g., T h e C o v e n a n t o n C i v i l a n d P o l i t i c a l R i g h t s , 21 U . N . G A O R S u p p . ( N o . 16), U . N . D o c . A / 6 3 1 6 ( 1 9 6 6 ) , at arts. 9 ( 1 ) , 9 ( 2 ) , 9 ( 4 ) a n d 9 ( 5 ) . T h e

Human

Rights

C o m m i t t e e ' s " g e n e r a l c o m m e n t " o n A r t i c l e 9 s i m p l y states that " i f s o - c a l l e d p r e v e n t i v e d e t e n t i o n is u s e d , f o r r e a s o n s o f public security, it m u s t b e c o n t r o l l e d by . . . p r o v i s i o n s , i.e., it must n o t b e a r b i t r a r y , a n d m u s t be b a s e d o n g r o u n d s a n d p r o c e d u r e s e s t a b l i s h e d by law ( p a r a g r a p h

1), i n f o r m a t i o n a v a i l a b l e ( p a r a g r a p h 4 ) as w e l l as c o m p e n s a t i o n in t h e

case o f b r e a c h ( p a r a g r a p h 5 ) , " w i t h o u t i n d i c a t i n g w h e t h e r " p r e v e n t i v e d e t e n t i o n " is l i m i t e d t o p u b l i c e m e r g e n c i e s . Report of the Human

Rights Committee,

37 U . N . G A O R S u p p .

( N o . 4 0 ) , U . N . D o c . A / 3 7 / 4 0 , at 9 6 ( 1 9 8 2 ) . I n a case c o n c e r n i n g t h e " p r o m p t security m e a s u r e s " a p p l i e d p r i n c i p a l l y d u r i n g t h e p e r i o d o t m i l i t a r y r u l e in U r u g u a y ( i n v o l v i n g a t e n - y e a r p r e - t r i a l d e t e n t i o n p r i o r to c o n v i c t i o n by a m i l i t a r y t r i b u n a l ) , t h e H u m a n R i g h t s C o m m i t t e e i n d i c a t e d that " a d m i n istrative d e t e n t i o n m a y n o t b e o b j e c t i o n a b l e in c i r c u m s t a n c e s w h e r e t h e p e r s o n conc e r n e d c o n s t i t u t e s a c l e a r a n d s e r i o u s t h r e a t to s o c i e t y w h i c h c a n n o t b e c o n t a i n e d in any other manner.

. . ." C a m p o r a

S c h w e i z e r v. U r u g u a y , C o m m .

No. 66/1980,

decided

O c t o b e r 12, 1982, in 2 SELECTED DECISIONS OF THE H U M A N RIGHTS C O M M I T T E E UNDER THE O P T I O N A L PROTOCOL, U . N . D o c . C C P R / C / O P / 2 , at 9 0 ( 1 9 9 0 ) . T h e Campora

Schwet-

zer d e c i s i o n is i n c o n c l u s i v e o n t h e issue w h e t h e r a d m i n i s t r a t i v e d e t e n t i o n is p e r m i s s i b l e

Effects of Emergencies o n Human Rights

47

T h e European Court of H u m a n Rights in its decision in the Brogan case 77 grapples with this issue in an interesting way, but does not entirely eliminate the ambiguities. After terminating its emergency derogation f r o m the European Convention with respect to events in Northern Ireland in 1984, the United Kingdom invoked the provisions of the Prevention of Terrorism (Temporary Provisions) Act 1984 (PTA) 78 to arrest persons suspected of commission or involvement in acts of terrorism and to hold them for u p to seven days without access to judicial authority. 7 9 Brogan and three other persons were arrested in their homes in Northern Ireland in 1984 on suspicion of involvement in terrorism and held for periods ranging from four days and six hours to six days and sixteen hours, before being released without charge and without having had an opportunity to challenge their detentions before a judicial authority. 8 0 T h e PTA was adopted as part of the U.K.'s "criminalisation" policy in Northern Ireland, which replaced internment with a program of prosecution on terrorism charges u n d e r modified rules of criminal process.81 However, as the ratio of those charged to those arrested began to fall (from 90% in 1978 to 27% in 1986),8* the impression grew that the PTA was being used primarily for intelligence gathering, rather than as a prelude for prosecution. As such, detention for up to seven days under the PTA would in essence be a form of short-term administrative detention for purposes of interrogation, rather than a type of pretrial detention. 8 3 Since the United Kingdom no longer purported to be

u n d e r t h e C o v e n a n t in n o n - e m e r g e n c y c o n t e x t s , for several reasons: t h e U r u g u a y a n r e g i m e of p r o m p t security m e a s u r e s , as u s e d by t h e dt facto military g o v e r n m e n t , always e n t a i l e d t h e p r o s p e c t of trial o n c r i m i n a l c h a r g e s (albeit b e f o r e a n i n a d e q u a t e military t r i b u n a l ) a n d did not really involve a d m i n i s t r a t i v e d e t e n t i o n of t h e type m e n t i o n e d by t h e C o m m i t t e e ; t h e issue of d e r o g a t i o n was not raised by t h e slate party (which particip a t e d only to t h e e x t e n t of filing a p r e l i m i n a r y objection to admissibility on g r o u n d s of n o n - e x h a u s t i o n of d o m e s t i c r e m e d i e s ) t h o u g h t h e events o c c u r r e d d u r i n g a de facto state of siege; a n d t h e H u m a n Rights C o m m i t t e e correctly f o u n d t h a t violations of Article 9(3) a n d (4) h a d o c c u r r e d in that C a m p o r a Schweizer was d e n i e d a n o p p o r t u n i t y for judicial c h a l l e n g e to his l e n g t h y p r e - t r i a l d e t e n t i o n . 77. B r o g a n v. U n i t e d K i n g d o m , 145 E u r . Ct. H . R . (ser. A) (1988) ( j u d g m e n t ) . 7 8 . PUBLIC G E N E R A L A C T S & MEASURES OF 1 9 8 4 ( p t . I), c h . 8, § 12, at

34-35.

79. A f t e r a n initial f o r t y - e i g h t - h o u r p e r i o d , t h e suspect's d e t e n t i o n could be e x t e n d e d by u p to a n o t h e r five days by a n o r d e r of t h e Secretary of State Id. § 12(4), 12(5). 80. Brogan, supra n o t e 77, at 1 9 - 2 1 . 81. S. L i v i n g s t o n e , A Week Is a Ijmg Time m Detention: Brogan and Others v. United Kingdom, 4 0 N. IR. I..Q. 2 8 8 (1989). 82. Id. at 289. 83. In Kx parte Lynch, l . o r d l.owry l.CJ h a d h e l d that a d e t e n t i o n u n d e r section 12 of t h e P T A "is not necessarily . . . t h e first s t e p in a criminal p r o c e e d i n g against a s u s p e c t e d

4«

C h a p t e r II

d e r o g a t i n g f r o m its obligations u n d e r the E u r o p e a n C o n v e n t i o n , the Brogan case theoretically p r e s e n t e d the E u r o p e a n Commission a n d C o u r t with an o p p o r t u n i t y to consider w h e t h e r n o n - e m e r g e n c y regimes of administrative d e t e n t i o n were permissible u n d e r Article 5 of the Convention. T h i s o p p o r t u n i t y was not really seized by either body. Both the C o m mission a n d the C o u r t accepted the g o v e r n m e n t ' s a r g u m e n t that the applicants' d e t e n t i o n might h a v e led to t h e filing of criminal charges against t h e m , h a d sufficient evidence been obtained d u r i n g their interrogations, a n d that a reasonable suspicion of involvement in terrorism h a d existed in each case. 84 T h u s , the applicants' characterization of their d e t e n t i o n s as being purely f o r p u r p o s e s of i n t e r r o g a t i o n a b o u t t h e activities of o t h e r s was simply not accepted, a n d the cases were seen to resemble an o r d i n a r y criminal case in which the state's evidence is not sufficiently s t r e n g t h e n e d following arrest to justify f u r t h e r proceedings against the arrestee, w h o is t h e n released without charge. However, the "administrative d e t e n t i o n " aspect of Brogan was explored in relation to t h e exclusion of judicial involvement in d e t e n t i o n b e y o n d the initial f o r t y - e i g h t - h o u r period. T h e r e a s o n i n g of the C o m mission majority is particularly interesting, citing the "struggle against t e r r o r i s m " as j u s t i f y i n g m o r e extensive isolation f r o m judicial supervision t h a n in "ordinary criminal cases."* 5 T h i s might be taken to suggest that t h e r e a r e s o m e implicit limitations p e r m i t t e d u n d e r Article 5 even outside the context of an e m e r g e n c y derogation. 8 , 1 T h e Court's rejection of this r e a s o n i n g is t h u s equally noteworthy. 8 7 While n o t i n g the g o v e r n m e n t ' s c o n c e r n s that judicial supervision of d e t e n t i o n s u n d e r the PTA would p r e s e n t difficulties in the context of a c o n t i n u i n g terrorist threat, t h e C o u r t simply f o u n d that Article 5(3)'s r e q u i r e m e n t that suspects be b r o u g h t " p r o m p t l y " b e f o r e a judicial authority h a d very little scope f o r flexibility a n d h a d been b r e a c h e d with respect to all f o u r applicants. 8 8 p e r s o n o n a c h a r g e which was i n t e n d e d to be judicially investigated " Ex parte l.ynch, [1980) N. Ir. 126, 131. 84. Brogan, supra n o t e 77, at 2 8 - 3 0 . T h e relevant p o r t i o n s of t h e C o m m i s s i o n ' s decision a r e r e p r i n t e d in t h e s a m e d o c u m e n t . Id. at 5 9 - 6 2 . 85. Id. at 63. T h e C o m m i s s i o n m a j o r i t y f o u n d t h a t d e t e n t i o n for u p to f o u r days eleven h o u r s was c o m p a t i b l e with Article 5(3). 86. T h e C o m m i s s i o n m a j o r i t y n o t e s that " t h e b a c k g r o u n d of a c o n t i n u i n g terrorist t h r e a t in N o r t h e r n I r e l a n d " m u s t be t a k e n into a c c o u n t , a n d cites a previous decision (in t h e K / a i s case of 1981) to t h e effect t h a t o r g a n i z e d t e r r o r i s m has e m e r g e d as an i m p o r t a n t issue in F.urope a f t e r t h e d r a f t i n g of t h e C o n v e n t i o n , a n d must be taken into a c c o u n t in b a l a n c i n g individual r i g h t s against t h e interests of t h e society. Id. at 59. 87. Brogan, supra n o t e 77, at 3 0 - 3 4 . 88. Id. at 33.

Effects of E i M f ^ c n d c i on H u m n Rfjytits

49

Events s u b s e q u e n t to t h e Brogan j u d g m e n t invite f u r t h e r reflection on t h e question w h e t h e r administrative d e t e n t i o n can be justified in n o n - e m e r g e n c y contexts. H a v i n g d e t e r m i n e d that the seven-day period of non-judicial d e t e n t i o n was indispensable to its a n t i t e r r o r i s m strategy, t h e U.K. g o v e r n m e n t r e e n a c t e d the PTA in 1989, 1 , 9 after filing a new notice of d e r o g a t i o n f r o m t h e E u r o p e a n C o n v e n t i o n o n 2 3 Dec e m b e r 1988. 9 0 T h i s s e q u e n c e of events a p p e a r s to suggest t h a t n o n judicial d e t e n t i o n can only be justified u n d e r t h e C o n v e n t i o n as a f o r m a l e m e r g e n c y m e a s u r e . T h i s a p p e a r a n c e is a bit deceiving, however, since it is possible to devise a system of administrative d e t e n t i o n that involves p r o m p t recourse to limitedjudicial supervision a n d which nevertheless entirely dispenses with the possibility of trial o n criminal charges. 89. W h e n the PTA was enacted in 1984, it was presented as temporary a n d nonrenewable. C o m m e n t , The United Kingdom's Obligation to Balance Human Rights and lis Anti-Terrorism Legislation: The Case of Brogan and Others, 13 FORDHAM INT'L L.J. 328, 350 (1989-90). 90. Id. at 353.

Chapter III Setting Standards

A. Introduction A logical precursor to monitoring h u m a n rights abuses d u r i n g states of emergency is setting reasonable standards for government behavior during such crises, in order to create a benchmark against which actual events can be measured. In part, this standard-setting process has occurred in the context of treaty drafting and interpretation, and at least four major treaties (or sets of treaties) merit close examination.' These treaty provisions possess interesting similarities and differences, thereby complicating the process of monitoring emergencies. T h e effectiveness of various treaty implementation bodies in monitoring states of emergency will be examined closely in subsequent chapters. At this point, the treaties will be analyzed for purposes of comparing the substantive standards that they impose on the states parties. Because of divergences among treaty standards, inherent flaws in the treaty texts, and less than universal ratification of these instruments, various groups have attempted to articulate non-treaty-based standards for protection of h u m a n rights during states of emergency. Twin aims seem to dominate this continuing articulation of norms: (1) the creation of universal standards binding outside any treaty process, and thus applicable without regard to specific acceptance by states and capable of invocation by any h u m a n rights monitor; and (2) the creation of model legislation that could be voluntarily adopted by states as a preventive measure against f u t u r e abuse of h u m a n rights during emergencies, particularly by states undergoing a process of democratization after a long period of repression. Several of these sets of 1. T h e s e f o u r t r e a t i e s i n c l u d e t h e C o v e n a n t o n Civil a n d Political R i g h t s (see infra 11); t h e E u r o p e a n C o n v e n t i o n o n

Human

R i g h t s (see infra

n o t e 6); t h e

note

American

C o n v e n t i o n o n H u m a n R i g h t s (see infra n o t e 15); a n d t h e f o u r G e n e v a C o n v e n t i o n s o f 1 9 4 9 in t h e i r C o m m o n A r t i c l e 3 (see infra n o t e '2).

Setting Standards

SI

standards will be examined in this chapter, both to e x p l o r e the impulses behind this o n g o i n g norm-creating process and also to set the stage f o r examining the monitoring roles f o r the various non-treatybased organs that are also the subject of this study.

B. Treaty Standards Approaching this question chronologically, the first legally significant standard is Article 3 c o m m o n to the four Geneva Conventions of 1949, also known as " C o m m o n Article 3.'"2 Applicable during periods o f internal armed conflict, a frequent setting f o r the invocation of emergency powers in the past several decades, C o m m o n Article 3 prescribes a set of minimal protections 3 that must be a f f o r d e d even under these dire circumstances. T h e guarantees o f C o m m o n Article 3 are further elaborated in Articles 4 to 6 o f Protocol II o f 1977, particularly with respect to non-derogable fair trial standards. 4 Indeed, the entire body 2 See C o n v e n t i o n f o r the A m e l i o r a t i o n o f the C o n d i t i o n o f the W o u n d e d a n d Sick in A r m e d Forces in t h e Field, A u g . 12, 1949, 6 U.S. I. 3114, T . I . A S. N o . 3362, 75 U . N . T . S . 31; C o n v e n t i o n f o r t h e A m e l i o r a t i o n o f t h e C o n d i t i o n o f the W o u n d e d Sick and Shipw r e c k e d M e m b e r s o f A r m e d Forces at Sea, A u g . 12, 1949, 6 U.S.T. 3217, 1.1.A S. N o . 3363, 75 U . N . T . S . 85; G e n e v a C o n v e n t i o n R e l a t i v e to the T r e a t m e n t o f Prisoners o f War, A u g . 12, 1949, 6 U . S . T . 3316, T . I . A S. N o . 3364, 75 U . N . T . S . 135; C o n v e n t i o n Relative l o the Protection o f C i v i l i a n P e r s o n s in T i m e o f War, A u g . 12, 1949, 6 U . S . T . 3516. T . I . A S . N o . 3365, 75 U . N . T . S . 287. 3. C o m m o n A r t i c l e 3 o f the G e n e v a C o n v e n t i o n s o f 1949 states: "In the case o f a r m e d conflict not o f an i n t e r n a t i o n a l c h a r a c t e r o c c u r r i n g in the territory o f o n e o f the H i g h C o n t r a c t i n g Parties, each Party t o the conflict shall be b o u n d to apply, as a m i n i m u m , t h e f o l l o w i n g provisions: ( 1 ) Persons taking n o active p a n in the hostilities, i n c l u d i n g m e m bers o f a r m e d f o r c e s w h o have laid d o w n t h e i r arms a n d those placed hors dt combat by sickness, w o u n d s , d e t e n t i o n , o r any o t h e r cause, shall in all circumstances be treated h u m a n e l y , w i t h o u t a d v e r s e distinction f o u n d e d o n race, c o l o u r , r e l i g i o n o r faith, sex, birth o r wealth, o r any o t h e r similar criteria. " ' I o this e n d , the f o l l o w i n g acts a r e a n d shall r e m a i n p r o h i b i t e d at any l i m e and in any place w h a t s o e v e r with respect to t h e a b o v e - m e n t i o n e d persons: (a) v i o l e n c e to life a n d p e r s o n , in particular m u r d e r o f all kinds, m u t i l a t i o n , cruel t r e a t m e n t a n d torture; ( b ) taking o f hostages; ( c ) o u t r a g e s u p o n p e r s o n a l dignity, in particular h u m i l i a t i n g and d e g r a d i n g t r e a t m e n t ; ( d ) the passing o f sentences and the c a r r y i n g out o f e x e c u t i o n s w i t h o u t previous j u d g m e n t p r o n o u n c e d by a regularly constituted court, a f f o r d i n g all t h e j u d i c i a l g u a r a n t e e s which a r e r e c o g n i z e d as indispensable by civilized peoples. ( 2 ) T h e w o u n d e d and sick shall be c o l l e c t e d a n d c a r e d for. " A n impartial h u m a n i t a r i a n body, such as t h e I n t e r n a t i o n a l C o m m i t t e e o f the R e d Cross, m a y o f f e r its services to t h e Parties t o t h e conflict. " T h e parties to t h e c o n f l i c t s h o u l d f u r t h e r e n d e a v o r to b r i n g into f o r c e , by m e a n s o f special a g r e e m e n t s , all o r part o f t h e o t h e r provisions o f the present C o n v e n t i o n . " T h e application o f t h e p r e c e d i n g p r o v i s i o n s shall not a f f e c t the legal status o f t h e Parties t o the c o n f l i c t . " 4. P r o t o c o l A d d i t i o n a l to the G e n e v a C o n v e n t i o n s o f A u g u s t 12, 1949 a n d R e l a t i n g to

52

C h a p t e r III

of international humanitarian law, both customary and codified, is highly relevant to protection of h u m a n rights during states of emergency, especially in defining non-derogable rights. International humanitarian law by nature is designed to apply in full force during the subset of emergencies involving armed conflict, 5 so in a sense it is all emergency law. And because situations of armed conflict tend to be a m o n g the direst of emergencies, protections available then should logically be available in any other emergency context. Two crucial sets of treaty standards were also drafted at approximately the same time as Common Article 3. Article 15 of the European Convention 6 was drafted primarily during early 1950 with the benefit of almost three years of discussion by drafters of the Covenant on Civil and Political Rights within the United Nations. 7 T h e derogation article of the European Convention served as a focal point for the debate between two alternate approaches to treaty drafting, which might be called "general enumeration" and "precise definition." T h e proponents of general enumeration favored drafting a document with positive definitions of rights and no exceptions or restrictions other than a single general limitations clause, similar to Article 29 of the Universal Declaration. 8 T h e proponents of precise definition, on the other hand, wanted not only specific limitations clauses in many provisions defining particular rights but also a derogation article for emergencies, t h e P r o t e c t i o n of Victims of N o n - I n t e r n a t i o n a l A r m e d Conflicts, d o n e at G e n e v a J u n e 8, 1977, entered into force Dec. 7, 1978, reprinted in 1977 U . N . J u r i d . Y.B. 135 [ h e r e i n a f t e r A d d i t i o n a l Protocol II]. 5 . See generally,

T . M E R O N , H U M A N R I G H T S IN I N T E R N A L S T R I F E : T H E I R I N T E R N A T I O N A L

PROTECTION (1987) ( f u n c t i o n i n g to c a t a l o g u e , analyze, a n d c o m p a r e not only t h e relevant p r o v i s i o n s of C o m m o n Article 3 b u t also o t h e r p o r t i o n s of t h e G e n e v a C o n v e n t i o n s of 1949 a n d t h e two A d d i t i o n a l Protocols of 1977 to h u m a n rights treaties). 6. E u r o p e a n C o n v e n t i o n f o r t h e Protection of H u m a n Rights a n d F u n d a m e n t a l Freedoms,.signed Nov. 4, 1950, entered into force Sept. 3, 1953, 213 U.N.T.S. 222 [ h e r e i n a f ter E u r o p e a n Convention], 7. T h e C o m m i t t e e of Ministers, f o r e x a m p l e , o r d e r e d its a p p o i n t e d g r o u p of d r a f t i n g e x p e r t s to pay "[d]ue a t t e n t i o n . . . to t h e p r o g r e s s which has b e e n achieved in this m a t t e r by t h e c o m p e t e n t o r g a n s of t h e U n i t e d Nations." 2 COLLECTED EDITION OF THE TRAVAUX P R E P A R A T O I R E S OF T H E E U R O P E A N C O N V E N T I O N ON

HUMAN

RIGHTS 2 9 0 ( 1 9 7 5 ) .

The

S e c r e t a r y - G e n e r a l of t h e C o u n c i l of E u r o p e t h e r e a f t e r m a d e a c o m p a r a t i v e study of the C o n s u l t a t i v e Assembly a n d U N d r a f t s , which c o n c l u d e d that a d e r o g a t i o n article would be u n n e c e s s a r y if t h e E u r o p e a n C o n v e n t i o n i n c l u d e d a g e n e r a l limitations article. 3 id. at 28. 8. An initial d r a f t of t h e E u r o p e a n C o n v e n t i o n p r e p a r e d by t h e R a p p o r t e u r of the C o n s u l t a t i v e Assembly of t h e C o u n c i l of E u r o p e c o n t a i n e d simply a collective g u a r a n t e e of existing rights u n d e r t h e n a t i o n a l laws of t h e m e m b e r states a n d a g e n e r a l limitations clause similar to Article 2 9 of t h e Universal Declaration. 1 id. at 178.

Setting Standards

53

arguing that these clauses would actually prevent abusive suspension or denial of rights. 9 During the final stages of the drafting process, the attraction of entrenching a list of non-derogable rights swayed a majority to favor inclusion of the derogation article. 10 Whereas the drafting of the Covenant on Civil and Political Rights dragged on until 1966," debate on the advisability and specific terms of a derogation article occurred during the relatively compressed period between 1947 and 1952. 12 Article 4 became the focus of the division of opinion between the general-enumeration and precisedefinition camps, as had Article 15 in the case of the European Convention. 13 Another key division, leading to an awkward compromise, 9. In March 1950, for example, the United Kingdom submitted a proposal containing both a derogation article (based on draft Article 4 of the Covenant) and exceptions clauses to the articles concerning public trial, religion, expression, assembly, a n d association. 3 id. at 2 8 0 - 8 2 , 2 8 4 - 8 8 . 10. T h e French and Italian experts on a committee a p p o i n t e d by the Committee of Ministers protested that a derogation clause was inconsistent with the general e n u m e r a tion approach. However, the majority favored the derogation article, especially because of its absolute protection for certain rights. 4 id. at 30. A C o n f e r e n c e of Senior Officials in June ¡950 included the derogation articic in the final d r a f t , a n d presented the d r a f t for signature in November 1950. 4 id. at 92, 280. 11. T h e Covenant was adopted by the General Assembly a n d opened for signature on December 16, 1966, and entered into force three m o n t h s after the thirty-fifth ratification. G.A. Res. 2200 A (XXI), 21 U.N. GAOR Supp. (No. 16), U.N. Doc. A/6316 (1966), entered into force Mar. 23, 1976 [hereinafter Covenant). 12. T h e United Kingdom submitted a d r a f t derogation article in 1947 to the Drafting Committee of the Commission on H u m a n Rights, which was working on both the Universal Declaration of H u m a n Rights as well as the d r a f t covenant. U.N. Docs. F./CN.4/AC.1/4, E/CN.4/21 Annex B (1947). T h e last significant a m e n d m e n t s to Article 4 were made in 1952 by the Commission on H u m a n Rights when the non-discrimination clause was added to Article 4( 1). Summary Record of the Commission on Human Rights, U.N. Doc. E/CN.4/SR.331 (1952). Only minor revisions were m a d e by the T h i r d Committee of the General Assembly in 1963 (clarifying that two notices must be provided by derogating states, once when the emergency is notified a n d later when it is terminated). Report of the Third Committee, U.N. Doc. A/5655 (1963). 13. As in the Council of Europe, the United Kingdom was the primary p r o p o n e n t of the precise definition approach d u r i n g the early d r a f t i n g stages. See supra note 8 a n d accompanying text. T h e United States favored a general limitations clause. See U.N. Doc. F./CN.4/AC. 1 /SR.22 (1948). T h e derogation clause was rejected by the Drafting Committee in 1947 (U.N. Doc. E/CN.4/AC.3/SR.8 (1947)), but sent forward as an alternative to the Commission in 1948. Report of the Commission on Human Rights, 4 th Sess., U.N. Doc. F./600 (1948). After specific limits had been attached to various substantive articles, s u p p o r t for a general limitations clause eroded. U.N. Doc. E/CN.4/SR.126 (1949). S u p p o r t then built for a derogation clause, but delegates disagreed on the details. When the Commission provisionally adopted a version of Article 4 in 1949, for example, the organization left a blank space in place of the list of non-derogable rights. U.N. Doc. E/CN.4/SR. 127 (1949).

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developed on the question whether the clause on non-derogable rights should include only those rights most important and central to human dignity and most at risk during typical emergencies, or should be expanded to include all rights that no reasonable government would need to limit substantially in any conceivable emergency. 1 4 T h e drafters of the American Convention on H u m a n Rights, who began work in earnest in the 1960s, had the benefit of earlier-drafted human rights treaties as a model and began with an apparent consensus on the precise-definition approach.'"> Moreover, the OAS had the benefit of a specific study of the problem of the protection of human rights during states of emergency, conducted by the Inter14. T h e initial U n i t e d K i n g d o m p r o p o s a l of 1947 d i d not c o n t a i n a n o n - d e r o g a b l e rights clause, a l t h o u g h this omission was rectified in an a m e n d e d p r o p o s a l of 1949 by t h e insertion of a b s o l u t e p r o t e c t i o n s f o r t h e right to life; p r o t e c t i o n against t o r t u r e , cruel t r e a t m e n t , a n d u n c o n s e n t e d medical e x p e r i m e n t a t i o n ; p r o h i b i t i o n o n slavery; a n d b a n o n r e t r o a c t i v e criminal penalties. U . N . Docs. E / C N . 4 / A C . 1 / 4 (1947); E / C N . 4 / 1 8 8 (1949). I h e s e rights a r e essentially t h e s a m e as t h o s e m a d e n o n - d e r o g a b l e by t h e E u r o p e a n C o n v e n t i o n in its Article 15(2). France, o n t h e o t h e r h a n d , s u g g e s t e d several a d d i t i o n a l n o n - d e r o g a b l e rights in a p r o p o s a l m a d e in 1949 i n c l u d i n g b a n s o n a r b i t r a r y a r r e s t , i m p r i s o n m e n t f o r c o n t r a c t u a l obligations, r i g h t of e m i g r a t i o n , fair trial, a n d t h e r i g h t t o j u r i d i c a l personality. U . N . Doc. E / C N . 4 / 3 2 4 (1949). As n o t e d in C h a p t e r II, t h e a r b i t r a r y a r r e s t a n d fair trial provisions w e r e e v e n t u a l l y m a d e d e r o g a b l e , a l o n g with t h e r i g h t of e m i g r a t i o n . Ultimately, however, Article 4(2) did i n c l u d e t h e b a n o n i m p r i s o n m e n t f o r c o n t r a c t u a l obligations a n d t h e right t o j u r i d i c a l personality, as well as f r e e d o m of t h o u g h t , c o n s c i e n c e , a n d religion. See Report of the Commission on Human Rights, 6 t h Sess., U . N . Doc. E / 1 6 8 1 (1950). 15. In May 1966, t h e C o u n c i l of t h e O r g a n i z a t i o n of A m e r i c a n States sent d r a f t c o n v e n t i o n s p r e p a r e d by t h e I n t e r - A m e r i c a n C o u n c i l of J u r i s t s (IACJ) a n d t h e g o v e r n m e n t s of C h i l e a n d U r u g u a y to t h e I n t e r - A m e r i c a n C o m m i s s i o n o n H u m a n Rights lor its r e c o m m e n d a t i o n s . T h e n t h e I A C H R p r e p a r e d a d r a f t treaty, a f t e r u n d e r t a k i n g a comp a r a t i v e s t u d y of t h e d r a f t s it h a d received, as well as t h e I n t e r n a t i o n a l C o v e n a n t o n Civil a n d Political R i g h t s a n d t h e I n t e r n a t i o n a l C o v e n a n t o n E c o n o m i c , Social, a n d C u l t u r a l Rights. T h e I A C H R d r a f t treaty was t r a n s m i t t e d t o t h e C o u n c i l of t h e O A S in J u l y 1968. T h e C o u n c i l resolved to use this d r a f t as a w o r k i n g d o c u m e n t f o r t h e C o n f e r e n c e of San J o s é in 1969, at which t h e A m e r i c a n C o n v e n t i o n was c o m p l e t e d . INTER-AM. C . H . R . , H A N D B O O K OF E X I S T I N G R U L E S P E R T A I N I N G T O H U M A N R I G H T S , O E A / S e r . l . / V / I I . 2 3

doc.

21, rev. 6 (1979). T h e I A C H R d r a f t treaty i n c l u d e d not only a d e r o g a t i o n clause (as h a d t h e earlier d r a f t s by t h e IACJ, Chile, a n d U r u g u a y ) b u t specific limitations clauses in a n u m b e r of t r e a t y provisions. A n n o t a t i o n s o n t h e D r a f t I n t e r - A m e r i c a n C o n v e n t i o n o n Protection of H u m a n Rights, p r e p a r e d by t h e S e c r e t a r i a t of t h e I A C H R , reprinted m 2 H U M A N R I G H T S : T H E INTER-AMERICAN SYSTEM 2 7 - 3 1 ( T h o m a s B u e r g e n t h a l & R o b e r t

N o r r i s eds., b o o k l e t 13, 1982). At a s y m p o s i u m in 1959, discussing t h e possibility of a n I n t e r - A m e r i c a n h u m a n rights treaty, t h e s u g g e s t i o n was m a d e by o n e p a r t i c i p a n t (Dr. A l f o n s i n ) t h a t t h e r e be n o d e r o g a t i o n clause, but that slates be p e r m i t t e d flexibility f o r d e a l i n g with e m e r g e n c i e s t h r o u g h r e s e r v a t i o n s to t h e treaty. M a r t i n s study, infra n o t e 16, at 39. See A m e r i c a n C o n v e n t i o n o n H u m a n Rights, Nov. 22, 1969, O E A / S e r . K / X V / 1 . 1 , doc. 65, rev. l . c o r r . 2 (1970) [ h e r e i n a f t e r A m e r i c a n C o n v e n t i o n ) .

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American Commission on H u m a n Rights. 16 This study was undertaken with t h r e e aims, which sound rather familiar to anyone who has worked in this field: (1) to examine the history of states of siege in the Americas to see how h u m a n rights had been violated; (2) to determine if it would be possible to articulate general principles that could be binding on all countries in the region and that might be incorporated into the internal laws of those countries; and (3) to determine if there might be international organs that could control the juridical and practical regimes of states of siege. 17 T h e special interest developed within the OAS on protecting h u m a n rights during states of emergency may help explain the rather different form the derogation article takes in the American Convention, as compared to those in the European Convention and the Covenant. A brief comparison of the three derogation articles in the h u m a n rights treaties to the relevant portions of the major humanitarian law instruments reveals some interesting similarities and differences, as well as "lacunae," IK that have attracted ongoing efforts to formulate additional, more complete standards. Discussion will be limited to the substantive aspects of these emergency provisions, since the ensuing chapters will focus u p o n measures for their implementation. Certain basic principles are embodied in each of the three derogation articles: a threshold of severity of cause, requirements of notification a n d / o r proclamation, good faith motivation, consistency with other international obligations of the derogating state, proportionality between cause and measures taken, non-discrimination in the application of emergency measures, and entrenchment of a core of non-derogable rights. 1. Severity

While the threshold for a legitimate derogation u n d e r the three hum a n rights treaties is largely similar, there are interesting variations in terminology. T h e Covenant offers the simplest formulation: a public emergency threatening the life of the nation. T h e E u r o p e a n Convention in addition makes explicit reference to "war," but the inclusion of 16. INTER-AM.

C.H.R.,

LA P R O T E C C I Ó N

DE LOS D E R E C H O S H U M A N O S F R E N T E A LA

S U S P E N S I Ó N DE LAS G A R A N T Í A S C O N S T I T U C I O N A L E S O " E S T A D O DE S I T I O , " 3 9

OEA/Ser.L/

V / I I . 1 5 , doc. 12 (1966) ( p r e p a r e d by I A C H R m e m b e r Daniel H u g o Martins) [hereinafter Martins study). 17. Id. at iv. 18. See T. M e r o n , On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New Instrument, 77 AM. J. INT'L L. 589 (1983) (noting the i n a d e q u a t e reach of h u m a n rights law in situations short of a r m e d conflict).

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war as a ground for derogation is implicit in the Covenant. 1 9 T h e text of Article 27 of the American Convention differs strikingly: "war, public danger, or other emergency that threatens the independence or security of a State Party." O n the surface, the American Convention might appear to set a lower threshold than the two earlier treaties, but the drafting history of the provision suggests the contrary. 20 While "the life of the nation" is clearly intended to have a restrictive meaning, its scope is not self-evident. An emergency that threatens the life of the nation must imperil some fundamental element of statehood or survival of the population—for example, the functioning of a major constitutional organ, such as the judiciary or legislature, or the flow of vital supplies. 21 Threats to a discrete segment of the national territory are particularly problematic, although a risk of detachment or loss of control over an important region, which would have a significant impact on central institutions and the general population, would appear to be sufficient. 22 T h o u g h not arising out of political causes, certain natural disasters might meet the criteria for derogation. 2 3 19. Explicit reference to "war" in Article 4 of the Covenant was deleted in 1952 out of a sentiment that an organization such as the United Nations, devoted to peace, should avoid mentioning the possibility of war, even though there was no indication of an intention to prohibit derogation in wartime should the life of the nation be threatened Summary Records of the Commission on Human Rights, 5th Sess., U.N. Doc. E/CN.4/SR. 127 (1949); Summary Records of the Commission on Human Rights, 8th Sess., U.N. Doc. E/CN.4/ SR.330 (1952). At one point the phrase "threatening the life of the nation" was replaced by "threatening the interests of the people," in order to stress that derogation should not be made to protect a regime against the interests of its people. However, this decision was reversed out of concern that the latter phrase was too vague. Summary Records of the Commission on Human Rights, 5th Sess., U.N. Doc. E/CN.4/SR. 127 (1949); Summary Records of the Commission on Human Rights, 6th Sess., U .N. Doc E/CN.4/SR. 195 (1950); Summary Records of the Commission cm Human Rights, 8th Sess., U.N. Doc. E/CN.4/SR.330 (1952). 20. T h e drafting history of the threshold for derogation under Article 27 is lucidly described in R. Norris & P. Reiton, The Suspension of Guarantees: A Comparative Analysis of the American Convention on Human Rights and the Constitutions of the States Parties, 30 AM. U L. REV. 189, 191-99 (1981) [hereinafter Norris & Reiton], 21. J. Hartman, Derogation from Human Rights Treaties in Public Emergencies, 22 HARV. INTL. L.J. 1, 16 (1981). A study conducted by Daniel Hugo Martins for the IACHR identified the three constituent elements of the state as the people, the national territory, and the legal order. Only if the integrity or existence of the state were threatened would an emergency be legitimate. See supra note 16, at 31. T h e commentary to the draft Guidelines for the Development of legislation on States of Emergency suggests that "even serious disruption of the organized life of the community . . . would not constitute sufficient grounds for a state of emergency if the disruption would not present a serious danger to the life, physical security, or other vital interests of the population." Draft Guidelines for the Development of legislation on States of Emergency, U.N. Doc. E/GN.4/ Sub.2/1991/28 Annex I (1991). 22. Hartman, supra note 21, at 16.

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War presents its own special problems. As a textual matter, it has been suggested that a reference to "war" in a derogation clause encompasses only external war and not internal armed conflict, though the latter would fit under the general term "emergency." 24 Satisfaction of technical criteria for the existence of a state of war is neither necessary nor sufficient for derogation from human rights treaties, though it bears obvious importance with respect to the applicability of international humanitarian law.25 Derogation would not be permissible in the case of a war that did not threaten the "life of the nation" or "the independence or security" of the derogating state. For example, involvement in foreign hostilities that did not threaten attack or have a significant impact on domestic institutions, 26 or the mere existence of a state of war without active hostilities, 27 would not meet the threshold of severity to justify substantial restrictions on the domestic enjoyment of fundamental rights. Despite the benefit of the high threshold set in the earlier two human 23. Id.; S. Marks, Principles and Norms of Human Rights Applicable in Emergency Situations: Underdevelopment, Catastrophes and Armed Conflicts, in THE INTERNATIONAL DIMENSIONS OF HUMAN RIGHTS at 175 (Karel Vasak and Philip Alston eds., 1982). At o n e point, d r a f t Article 4 of the Covenant m a d e specific mention of natural disaster, but later this phrasing was replaced by the phrase "life of the nation." Summary Records of the Commission on Human Rights, 6th Sess., U.N. Doc. E/CN.4/SR. 195, at 18 (1950). T h e consequences of natural disasters may have a political dimension, through public dissatisfaction with governmental responses to the crisis. T h e appropriateness of derogating f r o m h u m a n rights obligations because of a natural disaster was questioned by one m e m b e r of the H u m a n Rights Committee, owing to little linkage between natural disasters and political rights. See Summary Records of the Human Rights Committee, U.N. Doc. CCPR/C/ SR.430, at para. 32 (1983) (detailing Peru's extension of a state of emergency). Norris and Reiton explained the insertion of the phrase "public d a n g e r " in Article 27 of the American Convention as motivated by a desire to have the article conform as closely as possible to the constitutions of OAS states. Many of these constitutions contained provisions allowing "for t h e declaration of a state of exception as a means of responding to a 'public disaster,' 'calamity,' or 'catastrophe."' See supra note 20, at 199. 24. See Norris & Reiton, supra note 20, at 195 (using Oppenheim's definition that "war" is a contention between two o r more states and thus "would not include civil wars"). 25. While satisfaction of some definition of a r m e d conflict is necessary for the application of humanitarian law, the precise rules that apply are determined by the specific nature of the conflict. "Although Protocol II has expanded and improved the content of h u m a n rights applicable under the provisions of common Article 3 in a r m e d conflicts not of an international character, it raises the threshold of applicability to an exceedingly high level." Meron, supra note 5, at 46. T h e scope of a r m e d conflict ranges f r o m an essentially undefined "armed conflict not of an international character" to an a r m e d conflict between the armed forces of a state and dissident a r m e d groups "which, u n d e r responsible c o m m a n d , exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol." 26. H a r t m a n , supra note 21, at 16 n.86. 27. Norris & Reiton. supra note 20, at 195.

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rights treaties and significant experience within the region of problems arising out of states of emergency, initial proposed drafts of the American Convention would have set a very low threshold of severity for derogation. T h e version prepared by the Inter-American Council of Jurists (IACJ) permitted derogation in undefined "exceptional situations"; the proposals of Chile and Uruguay also adopted this formula, while making it explicit that each state could define such "exceptional situations" for itself. 28 T h e IACHR, with the benefit of the Martins study, criticized this terminology and adopted a resolution in 1968 stating that suspension of guarantees should be permissible only "when adopted in case of war or other serious public emergency threatening the life of the nation or the security of the State." 29 T h e IACHR draft submitted to the Conference of San José offered the formula "[i]n time of war or other emergency which threatens the independence or security of a State Party or Parties." 30 During the Conference, the term "public danger" was inserted. Norris and Reiton explain that while this phrase may seem "strikingly broad," 11 it was intended to cover "public calamity" that was "not necessarily a threat to internal or external security." 32 They question the need for this provision, suggesting that the limitations clauses in particular treaty articles would be adequate to permit governments to deal with such natural disasters. 33 2. Notification and Proclamation Because the notification requirements are basically procedural in nature and implicate the competence of the treaty organs, they will be discussed in greater detail in connection with the performance by those bodies of their monitoring roles. 34 For the present, it is sufficient to note that all three treaties require formal notification, though the 28. Id. at 1 9 1 - 9 2 . 29. id. at 192 ( q u o t i n g t h e 1968 I A C H R r e s o l u t i o n ) . 3 0 . 2 H U M A N R I G H T S : T H E I N T E R - A M E R I C A N S Y S T E M , supra

n o t e 1 5 , a t 11 ( b o o k l e t

13,

d r a f t article 24). Norris a n d R e i t o n f o u n d n o e x p l a n a t i o n f o r t h e I A C H R ' s f a i l u r e t o use precise l a n g u a g e in its 1968 r e s o l u t i o n as s h o w n by i n c l u d i n g t h e "life of the n a t i o n " p h r a s e in t h e d r a f t c o n v e n t i o n . See supra n o t e 20. at 192. 31. Id. at 198 ( N o r r i s a n d Reiton o b s e r v e d t h a t " p u b l i c d a n g e r " " m i g h t m e a n a l m o s t anything"). 32. Proposal by an El S a l v a d o r d e l e g a t e , quoted and translated in N o r r i s &: Reiton, supra n o t e 20, at 198. 33. id. at 199. 34. See generally H u m a n R i g h t s C o m m i t t e e , C h a p t e r IV infra text a c c o m p a n y i n g notes 5 2 - 7 5 ; t h e E u r o p e a n C o m m i s s i o n a n d C o u r t , C h a p t e r VI infra text a c c o m p a n y i n g notes 9 8 - 1 0 0 , 105; a n d the I A C H R , C h a p t e r VI infra text a c c o m p a n y i n g notes 4. 10.

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details vary in three respects: (1) while the Covenant and the American Convention require that the other states parties be notified through the intermediary of the secretaries-general of the United Nations and Organization of the American States, respectively, the European Convention simply requires notification to the Secretary-General of the Council of Europe, without mentioning the states parties; (2) the Covenant and the American Convention require that this notice be supplied "immediately," while the European Convention is silent as to timing; and (3) the Covenant requires information concerning the provisions from which the state has derogated, the European Convention demands an explanation of the "measures which it has taken," and the American Convention requires information concerning "the provisions the application of which it has suspended, the reasons that gave rise to the suspension, and the date set for the termination of such suspension." 3 "' T h e Covenant is unique among the three in also requiring proclamation of a public emergency. T h e aim of this provision was to ensure that derogating states also complied with domestic legal requirements for states of emergency. 36 3. G o o d Faith Motivation This requirement is merely implicit in the derogation articles themselves, though it is express in certain other clauses of the three treaties, which provide that no state party may perform any act aimed at the destruction or undue limitation of rights and freedoms protected by the treaties. 37 Thus, a state of emergency declared in order to destroy a democratic system of government would arguably be invalid. 4. Other International Obligations Each of the three human rights treaties specifically forbids derogations that are inconsistent with the state's other obligations under international law.38 Chief among these obligations in relevance would be nonderogable rights in customary and conventional international human35. See H a r t m a n , supra n o t e 21, at 1 8 - 2 1 (citing specifically Article 4(3) of t h e C o v e n a n t , Article 15(3) of t h e E u r o p e a n C o n v e n t i o n , a n d Article 27(3) of t h e A m e r i c a n Convention). 36. Id. at 18; U.N. Doc. A / 2 9 2 9 , at 2 3 (1955). 37. C o v e n a n t , supra n o t e 11, at Article 5; E u r o p e a n C o n v e n t i o n , supra n o t e 6, at Article 17; A m e r i c a n C o n v e n t i o n , supra n o t e 15, at Article 29(a). 38. C o v e n a n t , supra n o t e 1 1, at Article 4(1); E u r o p e a n C o n v e n t i o n , supra n o t e 6, at Article 15(1); A m e r i c a n C o n v e n t i o n , supra n o t e 15, at Article 27(1).

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itarian law,39 as well as the more restrictive or demanding provisions of other human rights treaties and customary human rights law (e.g., any human rights that are jus cogens and thus not subject to suspension or denial under any circumstances). An intriguing question is whether these other international obligations are thereby substantively incorporated into the derogation articles and thus subject to the treaty-based monitoring mechanisms. 5. Proportionality Along with the threshold of severity, the principle of proportionality is the most important and yet most elusive of the substantive limits imposed on the privilege of derogation. T h e three treaties impose a similar standard—measures in derogation of treaty rights are permitted only to the extent "strictly required by the exigencies of the situation," 40 although the American Convention also makes explicit the preeminently important requirement that such measures may be imposed only "for the period of time strictly required." 41 The principle of proportionality embodied in the derogation clauses has its roots in the principle of necessity, which also forms one of the key pillars of international humanitarian law.42 T h e existence of competent, active, and informed organs of supervision, both at the national as well as at the international level, is vital if the proportionality principle is to have meaning in practice. As the ensuing chapters will demonstrate, both 39. C o m m i s s i o n o n H u m a n R i g h t s C h a i r m a n E l e a n o r Roosevelt specifically m e n tioned t h e G e n e v a C o n v e n t i o n of 1949 w h e n s h e s u g g e s t e d t h a t t h e provision m e e t o t h e r i n t e r n a t i o n a l o b l i g a t i o n s t h r o u g h Article 4 of t h e C o v e n a n t . Summary Records of the Commission on Human Rights. 6 t h Sess., U . N . Doc. E / C N . 4 / S R . 195, at para. 45 (1950). 40. C o v e n a n t , supra n o t e 11, at Article 4(1); E u r o p e a n C o n v e n t i o n , supra n o t e 6, at Article 15(1). 41. A m e r i c a n C o n v e n t i o n , supra n o t e 15, at Article 27(1). 42. As M e r o n d e s c r i b e s it: " A l t h o u g h h u m a n i t a r i a n c o n s i d e r a t i o n s a r e also a p o w e r f u l m o t i v a t i n g f o r c e b e h i n d t h e law of a r m e d conflict, these c o n s i d e r a t i o n s b l e n d with o t h e r s . . . to c r e a t e a c o u n t e r f o r c e to military necessity. T h e tension between military necessity a n d r e s t r a i n t o n t h e c o n d u c t of b e l l i g e r e n t s is t h e h a l l m a r k of h u m a n i t a r i a n law. T h e w e i g h t a s s i g n e d to t h e s e t w o conflicting factors has c h a n g e d greatly in t h e c o u r s e of history. Originally, military necessity was d o m i n a n t . T h e principle of h u m a n itarian restraints, o n c e of limited f o r c e , is of g r o w i n g i m p o r t a n c e , particularly in the e l a b o r a t i o n of n e w i n s t r u m e n t s , a l t h o u g h , regrettably, not necessarily in actual practice." T. M e r o n , supra n o t e 5, at 1 0 - 1 1 . M e r o n n o t e s several p r o v i s i o n s of G e n e v a C o n v e n t i o n IV of 1949 that explicitly p e r m i t certain c o n d u c t by g o v e r n m e n t s with respect to p r o t e c t e d p e r s o n s lor " i m p e r a tive military r e a s o n s . " E x a m p l e s of " i m p e r a t i v e military reasons" i n c l u d e t h e e v a c u a t i o n of t h e civilian p o p u l a t i o n (Article 49(2)), t h e r e p l a c e m e n t of t h e p e n a l laws of o c c u p i e d t e r r i t o r y (Article 64(1)), a n d t h e i n t e r n m e n t of civilians (Article 78(1)). Id. at 15.

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logistical (access to information a n d ability to act promptly) and attitudinal (deference to national authorities, e.g., by extension of a "margin of appreciation") factors affect the functioning of the various treaty implementation organs.

6. Non-Discrimination T h e Covenant and the American Convention include clauses specifying that derogation measures may not be imposed in a m a n n e r that discriminates on the grounds of race, color, sex, language, religion, or social origin. 43 T h r e e interesting issues are raised by these clauses: (1) why no similar provision exists in the European Convention, and whether its absence denotes a real substantive difference a m o n g the treaties; (2) what the term "discrimination" is intended to mean; and (3) whether this meaning is affected by the f u r t h e r inclusion of the qualifying term "solely" in the Covenant. Article 15 of the European Convention is silent on the issue of discrimination in the application of emergency measures. Of course the European Convention, like the o t h e r two treaties, elsewhere prohibits discrimination on the grounds listed. 44 But these various nondiscrimination provisions outside the derogation articles are generally subject to derogation. 4 5 T h e issue of discriminatory treatment of minorities in the application of emergency measures was touched on during the drafting of the European Convention, 4 6 but it never achieved prominence in the discussions, and no concrete proposals for a nondiscrimination clause were made. Nevertheless, arbitrary discrimina43. Covenant, supra note 11, at Article 4( 1 ); American Convention, supra note 15, at Article 27(1). 44. T h e European Convention includes a general non-discrimination clause in Article 14, which also extends to classifications based on political or o t h e r opinion, national origin, association with a national minority, property, birth, or other status. T h e Covenant also contains a general non-discrimination clause in Article 2(1), as well as provisions on t h e equal rights of m e n and women in Article 3, equality in marriage in Article 23(4), non-discrimination a m o n g children in Article 24, a n d equality b e f o r e the law in Article 26. T h e American Convention contains a general non-discrimination clause (including classifications on the basis of economic status) in Article 1(1), as well as provisions on equality in marriage in Article 17(2) and (4), equal rights between children born within and outside wedlock (Article 17(5)), a n d equal protection of the law (Article 24). 45. Article 17 of the American Convention, which concerns the rights of the family, is m a d e non-derogable by Article 27(2). 46. An Irish delegate to the Consultative Assembly of the Council of E u r o p e stressed the need to protect minorities from deprivations of liberty as had occurred u n d e r the S p e c i a l P o w e r s Act in N o r t h e r n I r e l a n d . 1 COLLECTED EDITION OF THE TRAVAUX PRÉ-

PARATOIRES, supra note 8, at 104.

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tion against disfavored groups of various types would be difficult to justify as being "strictly required." 47 Thus, there may be n o substantive difference between the silence of the European Convention and the explicit non-discrimination clauses of the other two treaties, if only arbitrary distinctions are outlawed by the latter. Draft non-discrimination provisos to the Covenant's derogation article were proposed by the United States (in 1948) 48 and by France (in 1949), 4 9 but adding the element of non-discrimination was not easily accomplished. T h e Commission on H u m a n Rights voted in May 1950, on the basis of an oral a m e n d m e n t during debate, to add Article 20, the non-discrimination article, to the list of non-derogable rights in Article 4. 5 0 Objections were immediately raised that disparate treatment of e n e m y aliens would be necessary during wartime, and the decision was reversed the following day. 51 A way around this impasse was found in 1952 when a non-discrimination clause, not including the classification of national origin, was added to the draft derogation article. 52 47. T h e non-discrimination aspect of Article 15 was a prominent part of the case of Ireland v. United Kingdom, 25 Eur. Ci. H.R. (ser. A) (1978). T h e European Court of H u m a n Rights did not distinguish itself in its discussion of the non-discrimination aspect. See Chapter VI infra. 48. In 1948, the United States opposed the inclusion of a derogation article and favored instead a general limitations clause. In Mav of that year, the United States suggested that the then draft derogation article be replaced with a limitations clause that would permit "action reasonably necessary for the preservation of peace, order or security or the promotion of the general welfare . . . taken only pursuant to law, in conformity with Article 20 [the draft non-discrimination article] hereof." U.N. Doc. E/CN.4/AC.1/19, at 4 (1948). This suggestion was renewed by the United States in May 1949, U.N. Doc. E/CN.4/170, at 5 (1949), although U.S. resistance to a derogation article began to wane at that time. See U.N. Doc. E/CN.4/170/Add. 1 (1949) (noting the U.S. suggestion for adding a clause on non-derogable rights to draft Article 4). 49. France appeared to abandon its support for the general limitations approach and submitted a comprehensive derogation article in May 1949, which provided that emergency measures may not "be applied in a manner to imply discrimination in respect of race, religion, sex, language or origin." U.N. Doc. E/CN.4/187 (1949); U.N. Doc. E/ CN.4/SR.89, at 9 (1949) (remarks of Mr. Cassin). However, this proposal was withdrawn in favor of an a m e n d m e n t to insert a clause on non-derogable rights into the draft derogation article proposed by the United Kingdom. U.N. Doc. F./CN.4/SR. 126, at 4 (1949) (remarks of Mr. Cassin). T h e non-discrimination aspect of the French proposal was thus lost. 50. Summary Records of the Sixth Session, U.N. Doc. E/CN.4/SR. 195, at paras. 142-43 (1950) (proposal of Mr. Malik of Lebanon, vote of 8 - 4 - 1 ) . 51. U.N. Doc. E/CN.4/SR. 196, at paras. 1 - 1 9 (1950) (vote of 8 - 2 - 3 ) . 52. T h e government of Israel, in comments on the draft Covenant made at the Fifth Session of the Ceneral Assembly, argued that derogation from the non-discrimination principle would violate the UN Charter, at least if it involved discrimination on the grounds of race, sex, religion, or language, as opposed to political opinion or national origin. U.N. Doc. E/CN.4/528, at para. 53 (1951). At the Eighth Session of the Commis-

Setting Standards

63

T h e idea that only arbitrary discrimination is outlawed by Article 4(1) is underlined by the deliberate inclusion of the word "solely" in its text. 53 Even without this term, however, the reference to discrimination in Article 4 conveys the implication that only arbitrary and unjustifiable distinctions in the application of emergency measures would be outlawed. 5 4 T h u s , where an identifiable racial or religious g r o u p poses a distinct security threat not posed by other members of the community, presumably, emergency measures could be deliberately targeted against the group, despite the non-discrimination clause. The absence of the word "solely" from the non-discrimination clause in Article 27(1) of the American Convention on H u m a n Rights apparently has no intended significance. T h e word was included in the draft prepared by the IACHR but "disappeared from the final text, and the records of the conference provide no clue as to the reason." 5 5 T h u s , the three treaties would seem to impose a virtually identical nondiscrimination obligation, despite disparate phraseology. 7. Non-Derogable Rights T h e three treaties diverge dramatically with respect to defining absolute rights never subject to suspension. T h e process of defining nonderogable rights has been a markedly progressive one, with each laterdrafted instrument expanding the core of non-derogable rights. T h e European Convention begins with just four, sparely defined: the right to life, excepting deaths resulting from lawful acts of war (Article 2); the ban on torture or inhuman or degrading treatment or punishment (Article 3); the prohibition on slavery or servitude (Article 4(1)); and the prohibition on retroactive criminal penalties (Article 7).r,h sion on H u m a n Rights, the d e l e g a t e f r o m the United K i n g d o m successfully o f f e r e d a n a m e n d m e n t to add a non-discrimination clause to the d e r o g a t i o n article. T h e United K i n g d o m ' s proposal was altered by a friendly a m e n d m e n t to a d d the notion of "social origin." U . N . Docs. F . / C N . 4 / S R . 3 3 0 , at 4, 10; E / C N . 4 / S R . 3 3 1 , at 6 (1952). 53. A s e p a r a t e vote was taken on the U . K . p r o p o s a l to f r a m e the clause in terms o f discrimination "solely" o n o n e of the f o r b i d d e n g r o u n d s . U . N . Doc. E / C N . 4 / S R . 3 3 1 , at 6 ( 1 9 5 2 ) (vote of 9 - 7 - 2 ) . S u p p o r t for inclusion o f "solely" was p r e m i s e d on the notion that wartime m e a s u r e s a i m e d at a particular nationality, for e x a m p l e , might p r e d o m i n a n t l y affect p e r s o n s o f a particular race without b e i n g race-based. U . N . Doc. E / C N . 4 / S R . 3 3 0 , at 10 ( 1 9 5 2 ) (remarks o f Mr. H o a r e of the U.K.). 54. Norris and Reiton suggest that discrimination in international h u m a n rights law e n c o m p a s s e s "'only arbitrary, invidious or unjustified distinctions, u n w a n t e d by those m a d e subject to them. " Norris & Reiton, supra note 20, at 204 n . 1 0 5 (quoting W.A. McKean). 55. See td. at 2 0 5 ( r e f e r r i n g to the 1969 C o n f e r e n c e o f S a n J o s e ) . 56. E u r o p e a n C o n v e n t i o n , supra note 6, at Article 15(2).

64

C h a p t e r III

T h e United Kingdom's initial proposal for a clause on non-derogable rights in the Covenant tracked this list closely,57 but suggestions were immediately m a d e for extensive expansion of the catalogue of nonderogable rights. 5 8 W h e n the blank space for the list of non-derogable rights was filled in by the United Nations Commission on H u m a n Rights in 1950, the additional provisions included the ban on imprisonment for failure to fulfill a contractual obligation, right to juridical personality, and f r e e d o m of thought, conscience and religion. 59 T h e drafters of the Covenant touched on the basic issue whether defining non-derogable rights should proceed from the perspective of identifying those rights most vital to h u m a n integrity and most likely at risk d u r i n g abusive emergencies, or whether those rights should include all provisions whose suspension could not conceivably be necessary d u r i n g times of public emergency. 6 0 Article 4(2) appears to be an uneasy compromise between these two camps, especially with respect to the anomalous inclusion of the ban on imprisonment for contractual debt and the provision on f r e e d o m of religion, which has the distinction of being non-derogable, yet subject to limitation at all times. 61 T h e American Convention is somewhat more consistent in its approach and includes many rights that are not as central as the right to life or the protection against torture, but whose suspension would not be justifiable in an imaginable emergency. T h e 1966 study by IACHR m e m b e r Martins favored the approach of listing rights subject to derogation and suggested making suspendable only the provisions on arbitrary detention a n d p r o m p t notice of charges, interference with

57. Whereas the article on torture in the Covenant bars unconsented medical experimentation, the U.K. proposed to make such medical practices non-derogable. U.N. Doc. E/CN.4/188 (1949). 58. France simultaneously submitted a draft derogation article that included, in addition to the rights contained in the U.K. proposal, the protections against arbitrary arrest and imprisonment for contractual obligations, along with guarantees allowing the right to emigrate, the right to a fair trial and the right to juridical personality. U.N. Doc. E/CN.4/187 (1949). 59. Summary Records of the Human Rights Committee, 6th Sess., U.N. Doc. E/CN.4/ SR.195, at paras. 113-146(1950). 60. At one point, the Philippines made the radically different proposal that Article 4 should permit derogation only from a specific list of suspendable rights, including the provisions against arbitrary arrest and detention, liberty of movement, expulsion of aliens, freedom of speech and freedom of association. U.N. Doc. E/CN.4/365, at 19 (1950). 61. Covenant, supra note 11, at Article 18(3). Article 18(3) permits limitations on the manifestation of religious belief for purposes of public safety, order, health, morals, or the fundamental rights and freedoms of others. Id.

Setting Standards

65

private life a n d c o r r e s p o n d e n c e , a n d p r i o r restraint o n p u b l i c a t i o n ; the rights

o f assembly, association, a n d m o v e m e n t w o u l d n o t n e e d to b e

i n c l u d e d b e c a u s e they w o u l d b e subject to limitation e v e n u n d e r o r d i n a r y circumstances.62 T h e I A C H R d r a f t p r e s e n t e d to the C o n f e r e n c e o f S a n J o s é d i d n o t f o l l o w this r e c o m m e n d a t i o n , b u t o f f e r e d i n s t e a d a list o f n o n - d e r o g a b l e

rights

o n l y slightly m o r e e x p a n s i v e t h a n that o f

the C o v e n a n t . 6 3 During IACHR

Conference

debate,

the

suggestion

was

made

that

the

draft was too vague, a n d a w o r k i n g g r o u p was a p p o i n t e d

to

r e d r a f t the clause.64 T h e i r p r o d u c t was a m a j o r t r a n s f o r m a t i o n o f the I A C H R d r a f t , a d d i n g n o t j u s t n u m e r i c a l r e f e r e n c e s to p a r t i c u l a r treaty articles that w o u l d b e n o n - d e r o g a b l e , b u t d e l e t i n g t h r e e i n c l u d i n g five n e w

rights.66

rights65

and

T h e h a n d i w o r k o f the w o r k i n g g r o u p was

later m o d i f i e d by t h e a d d i t i o n to A r t i c l e 2 7 ( 2 ) o f t h e key p h r a s e

"the

j u d i c i a l g u a r a n t e e s essential f o r the p r o t e c t i o n o f such r i g h t s , " w h i c h

62. Martins study, supra note 16, at 30, 3 7 - 4 4 . Martins r e c o m m e n d e d that national constitutions take the same approach, with economic, social and cultural rights being non-derogable because their continued enjoyment poses no obstacle to the reestablishment o f public order. Id. at 30, 41. 63. T h e significant additions were "protection against arbitrary detention" and " d u e process o f law." HUMAN RIGHTS: THE INTER-AMERICAN SYSTEM, supra note 15, at 56 (booklet 13, draft Article 24(2)). 64. T h e suggestion came f r o m the United States delegate, whose primary concern seemed to be, not that the I A C H R list was incomplete, but that the non-derogable rights "must be cited in detail." Summary Minutes o f the C o n f e r e n c e o f San José, in HUMAN RIGHTS: THE INTER-AMERICAN SYSTEM, supra note 15, at 136 (booklet 12) (remarks o f Mr. Kearney). T h e delegates appointed by the President o f the C o n f e r e n c e to serve on the working g r o u p were f r o m the United States, Brazil, Chile, El Salvador, and Ecuador. Id. 65. T h e deleted rights were protection against arbitrary detention and due process o f law, and against imprisonment f o r contractual debt. Id. at 137. T h e I A C H R had included the first two as a result o f its 1968 resolution on states o f siege, which identified the rights to life, liberty, security o f the person, protection against arbitrary detention, to due process o f law, and to f r e e d o m o f thought, conscience, and religion as the key nonderogable rights. INTER-AM. C.H.R., ANNOTATIONS OF THE DRAFT INTER-AMERICAN CONVENTION ON PROTECTION OF HUMAN RIGHTS, reprinted™ HUMAN RIGHTS: THE INTERAMERICAN SYSTEM, supra note 15, at 57 (booklet 13). T h e rights to juridical personality and against imprisonment f o r contractual debt were included in the I A C H R draft specifically in order "to coordinate the Preliminary Draft with paragraph 2 o f Article 4 o f the United Nations International Covenant on Civil and Political Rights." Id. at 59. 66. T h e five new non-derogable provisions included the rights not to be subject to ex post facto laws, to contract matrimony and to protection o f the family, to a name, to nationality, and to participate in government. Later, the five non-derogable provisions became six Convention articles when draft Article 18 was subdivided into two provisions, concerning the rights o f children and the right to nationality. T h e s e two provisions are now contained in Articles 19 and 20 of the Convention.

66

Chapter III

includes at least some aspects of the protections against arbitrary detention and for d u e process of law that would have been nonsuspendable u n d e r the original IACHR proposal. 0 7 T h e gradual expansion of the list of non-derogable rights in the three major h u m a n rights treaties and, particularly, the recognition of a core of fundamental process rights for detainees in the American Convention have stimulated non-treaty-based efforts to articulate standards for protection of h u m a n rights during states of emergency. Efforts to refine and perfect these standards continue to the present. An awareness that, in some respects, the principles of international humanitarian law are more advanced than those of the h u m a n rights treaties has been an especially important factor in stimulating some of these standard-drafting efforts.

C. The Search for General Standards As indicated, the treaty texts are imperfect documents. And, as will be discussed, the implementation of the treaties has been basically weak. This dual sense—that the obligations themselves, as well as the system for securing conformance to them, are deeply flawed—has fed the ongoing search for more effective standards attracting a higher rate of compliance. These efforts have been various and have involved inter-governmental bodies (IGOs), non-governmental organizations (NGOs), scholars, activists, and national officials. These standard-setting exercises can be grouped u n d e r four basic headings, with some overlap a m o n g the categories: (1) efforts to define binding obligations under existing customary international law; (2) attempts by entities other than the treaty implementation bodies to interpret the terms of the treaty texts and to make recommendations for more effective implementation; (3) conclusions drawn from comparative studies of states of emergency by h u m a n rights groups or IGO experts, and efforts by scholars and NGOs to articulate comprehensive standards without particular concern that the standards be demonstrably part of the existing body of customary law; and (4) creation of model emergency laws, sometimes as an abstract exercise, but frequently in the context of offering expert advice to the constituent organs of a specific state, often u p o n emerging from a lengthy period of repression.

67. See Norns & Reiton.supra note 20, at 211-13.

Setting Standards

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1. Efforts to Identify Lex Lata Rigorous attempts to identify actual norms o f customary law have not dominated this standard-setting. Relevant principles o f customary international humanitarian law d o exist, 6 * but the scope of these norms remains a subject of debate. 6 9 Some o f these norms may even merit designation as jus cogens,70 but the restricted scope o f international humanitarian law ratione maleriae limits the usefulness of customary humanitarian law as a source o f comprehensive norms for protecting human rights during all types of emergencies. While proof that certain norms g o v e r n i n g human rights during states o f emergency have achieved the status o f customary law "would strengthen the moral claim o f the international community for their observance," 7 1 the technical legal nature o f these norms is, at best, moderately significant. O n e might assert, f o r example, that the four non-derogable rights c o m m o n to the three major human rights treaties merit recognition as customary norms, perhaps even norms o f jus

68. Hans Peter Gasser has found that "[i]t has been generally recognized that the substance o f Article 3, based on customary law, is part o ( j u s cogens, and therefore binding on all states. Consequently, the obligations stated in Article 3 transcend that article's field o f application; they are valid f o r all forms of armed conflict. T h e International Court of Justice recently confirmed this in itsjudgment in the case of Nicaragua versus the United States (footnote omitted]. T h e Court reached the conclusion that Article 3, as part o f customary law, constitutes a 'minimum yardstick' applicable to all armed conflicts." H. Gasser, A Measure of Humanity in Internal Disturbances and Tensions: Proposal for a Code of Conduct,

2 8 I N T ' L REV. RED CROSS, J a n . - F e b .

1 9 8 8 , at 3 8 , 4 4 - 4 5 .

69. T h e o d o r Meron, unlike Hans-Peter Gasser, sharply criticizes at least the metho d o l o g y by which the International Court o f Justice in the Nicaragua Case concluded that C o m m o n Article 3 f o r m e d a part of the corpus o f customary law. Meron has stated [footnotes omitted]: " T h e Court's discussion o f the Geneva Conventions is remarkable, indeed, f o r its total failure to inquire whether opinio juris

and practice support the

crystallization o f Articles 1 and 3 into customary law. . . . [TJhe parties to the Geneva Conventions have built a poor record o f compliance with the norms stated in Article 3 and evidence o f practice by nonparties is lacking. Nevertheless, it is not so much the Court's attribution of customary law character to both Articles 1 and 3 of the Geneva Conventions that merits criticism; rather, the Court should be reproached f o r the virtual absence o f discussion o f the evidence and reasons supporting this conclusion." T. Meron, The Geneva Conventions as Customary Law, 81 AM. J. INT'L I,. 348, 3 5 7 - 5 8 (1987). 70. M e r o n observes that "the Geneva Conventions, and especially c o m m o n Article 3, stale a great numbei o f basic rights of the human person, some that may have attained the status of jus cogens." Id. at 355. Meron also notes the conclusion o f the International I,aw Commission that some o f the rules o f humanitarian law impose obligations o f jus cogens. Reports of the International Law Commission on the Work of its Thirty-Second Session, 35 U . N . G A O R Supp. ( N o . 10) at 98, U . N . Doc. A/35/10 (1980). 71. Meron, supra note 69, at 350.

U

C h a p t e r III

cogens.72 But only in the context of actual adjudication, before either an international or domestic court in a case where the treaty itself could not be invoked, 7 3 is the outcome likely to turn on this question.

2. Treaty Interpretation T h e primary vehicles for interpreting the derogation articles of the three h u m a n rights treaties are the bodies specifically charged by the treaties with monitoring their implementation. 7 4 T h e s e bodies discharge their interpretive roles in a variety of ways, ranging from application of treaty articles to specific facts presented in individual applications 75 to the issuance of "general comments." 7 6 T h e effectiveness with which these organs have fulfilled their interpretive roles will be 72. T h e four common non-derogable rights are the right to life, the prohibition on torture and cruel and degrading treatment or punishment, the prohibition on slavery, and the prohibition on ex post facto criminal laws. However, these rights are not identically defined in the three treaties. For example, the prohibition on torture and cruel treatment extends to unconsented medical experimentation in Covenant Article 7, but the American and European Conventions make no explicit mention of this practice T h e Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, adopted by a group of experts at a conference convened in 1984 by several non-governmental organizations, assert that the right to life, the freedom from torture, inhuman or degrading treatment or punishment and unconsented medical or scientific experimentation, the right not to be held in slavery or involuntary servitude, and the right not to be subjected to retroactive criminal penalties may not be denied u n d e r any circumstances, as a matter of customary interna tional law. T h e Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, reprinted m 7 HUM. RTS. Q. 3 (1985) [ h e r e i n a f t e r S i r a c u s a P r i n c i p l e s ] ; 3 6 REV. INT'L C O M M ' N JURISTS 4 7 ( 1 9 8 6 ) ; U . N . D o c .

E / C N . 4 / 1 9 8 5 / 4 , at p r i n c i p l e 6 9 .

73. In Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27), the issue was important because of questions concerning the Court's jurisdiction to enforce the Geneva Conventions in the circumstances of the case. As Meron notes, states that have failed to implement their treaty obligations in domestic law may nevertheless permit domestic enforcement of customary law on the same subject. Meron, supra note 69, at 348. 74. These bodies include the H u m a n Rights Committee under the Covenant, the European Commission and Court of H u m a n Rights under the European Convention, and the Inter-American Commission and Court of Human Rights under the American Convention. 75. T h e mechanisms for hearing individual applications are largely optional, with the exception of the authority of the IACHR to receive individual communications. See Chapters IV and VI infra. 76. T h e H u m a n Rights Committee possesses rather abstract authority by virtue of Article 40(4) of the Covenant.

Setting Standards

69

e x a m i n e d as part o f the critique of their p e r f o r m a n c e in the ensuing chapters and, accordingly, will not be addressed here. However, o t h e r g r o u p s have sometimes a t t e m p t e d to assist these bodies by tackling the interpretive task. For e x a m p l e , a c o n f e r e n c e o f experts organized by several n o n - g o v e r n m e n t a l organizations in 1 9 8 4 p r o m u l g a t e d the Siracusa Principles on the Limitation and Derogation Provisions in the International C o v e n a n t on Civil and Political Rights. 7 7 T h e Siracusa Principles address both the substantive limits a n d the procedural requirements o f Article 4 o f the C o v e n a n t . Specific substantive issues addressed by the Principles include the permissibility of e m e r g e n c i e s premised on economic causes, 7 8 the p r e s u m p t i o n that measures in derogation of the Covenant cannot be "strictly required" if ordinary measures permissible under the specific limitations clauses o f the C o v e n a n t would have been adequate to deal with the t h r e a t , 7 9 and the elaboration of a core o f procedural rights for detainees whose suspension "can never be strictly necessary in any conceivable emerg e n c y " and whose respect "is essential in o r d e r to e n s u r e e n j o y m e n t o f non-derogable rights and to provide an effective r e m e d y against their violation." 8 0 T h i s latter standard imports a notion o f "essential judicial guarantees" into Article 4 o f the Covenant, analogous to that o f Article 2 7 ( 2 ) o f the A m e r i c a n Convention. L a r g e portions o f the Siracusa Principles a r e addressed to procedural aspects o f Article 4, many of which had not been c o m p r e h e n 77. Ste supra note 72 (stating the basic standards o f the Siracusa Principles). 78. Principle 41 provides that economic difficulties per se cannot justify derogation from the Covenant's obligations. Id. 79. Id. at principle 53. 80. Id. at principle 70. These rights, drawn from the theoretically derogable provisions o f Articles 9 and 14 o f the Covenant, include the recording o f arrests and places o f detention, the right not to be detained indefinitely, a ban on incommunicado detention beyond three to seven days, the right to periodic review o f administrative detention by an "independent review tribunal," the right to a fair trial by a competent and impartial court for persons charged with criminal offenses, the close control on use o f military courts to try civilians, the presumption o f innocence, the right to be informed promptly and intelligibly of any criminal charge, the right to adequate time and facilities for preparing a defense, the right to a lawyer o f one's choice and free legal counsel if necessary, the right to be present at one's trial, the right not to testify against oneself and protection against coerced confession, the right to attendance o f witnesses, the right to trial in public unless security reasons prevent, the right to appeal, the right to a record o f the proceedings and the protection against double jeopardy. T h e drafters o f the Siracusa Principles assumed that although these rights are derogable under Article 4(2), their denial is often not justified under the principle o f proportionality contained in Article 4(1). Accordingly, except in the most unusual emergencies, these rights are functionally nonderogable.

70

C h a p e a r III

sively addressed by the H u m a n Rights Committee. T h e recommendations made to the H u m a n Rights Committee include more detailed guidelines for the contents of an adequate notion of derogation 8 1 and the suggestion that the Committee develop a procedure for requesting additional reports u n d e r Article 40(1 )(b) f r o m those states giving notice of derogations or reasonably believed to have imposed emergency measures subject to the constraints of Article 4. 82 T h e Siracusa Principles also venture into the territory covered by non-treaty-based studies, with recommendations addressed to national authorities, such as involvement of the legislature in the review of the necessity for specific derogation measures 8 3 and maintenance of the jurisdiction of the ordinary courts to adjudicate complaints that non-derogable rights have been violated. 84 3. Conclusions to General Studies and Comprehensive Standards A great variety of efforts both by inter-governmental and non-governmental organizations fits u n d e r this category. T h e Martins study for the IACHR 8 5 and the Questiaux Report for the United Nations SubCommission on Prevention of Discrimination and Protection of Minorities, 86 for example, canvass available information about the behavior of states during emergencies, categorize the types of h u m a n rights abuses that appear to be associated with emergencies and offer a set of recommendations directed to national authorities and to the IGOs sponsoring the studies on preventive measures to reduce the level of abuse. T h o u g h not cast in formal terms as sets of principles, nor even as conscious efforts to interpret specific treaty texts, 87 the conclusions 81. Id. at p r i n c i p l e 45. 82. Id. at p r i n c i p l e 73. 83. Id. at p r i n c i p l e 55. 84. Id. at p r i n c i p l e 60. 85. See supra n o t e 16 a n d a c c o m p a n y i n g text. 86. Study on the Implications for Human Rights of Recent Developments Concerning Situations Known as States of Siege or Emergency, U . N . Doc. E / C N . 4 / S u b . 2 / 1 9 8 2 / 1 5 (1982) [ h e r e i n after Questiaux Report], 87. T h e M a r t i n s study p r e d a t e d t h e d r a f t i n g of t h e A m e r i c a n C o n v e n t i o n . While this is not t r u e of t h e Q u e s t i a u x R e p o r t a n d t h e C o v e n a n t , Q u e s t i a u x ' s r e c o m m e n d a t i o n s a r e a d d r e s s e d only in p a r t to the H u m a n Rights C o m m i t t e e a n d in Article 4 of t h e C o v e n a n t . For e x a m p l e , s h e suggests t h a t r e g i o n a l h u m a n r i g h t s bodies m i g h t serve as m o r e effective m o n i t o r s because "they a r e in a position to take action t h a t is m o r e a c c e p t a b l e to M e m b e r States." T h e list of n o n - d e r o g a b l e r i g h t s " s h o u l d be e x t e n d e d by r e f e r e n c e to t h e i n s t r u m e n t which specifically c o n f e r s t h e m o s t liberal g u a r a n t e e s . " T h e A m e r i c a n C o n v e n t i o n is less liberal t h a n t h e o t h e r h u m a n r i g h t s treaties b e c a u s e it e x c l u d e s the

Setting Standards

71

o f these I G O studies are important referents for m o r e conscious efforts to elaborate guidelines on states o f emergency. Equally relevant are the conclusions and r e c o m m e n d a t i o n s contained in comparative studies undertaken by academics o r non-governmental organizations, such as the 1983 study by the International Commission o f Jurists. 8 8 In addition, NGOs and academics in recent years have elaborated several sets o f general guidelines for controlling human rights abuse during states o f emergency, which are designed to apply to all types o f emergencies 8 9 without being grounded in the text o f a single specific treaty. T h e s e guidelines are the 1984 Paris Minimum Standards o f H u m a n Rights Norms in a State o f Emergency adopted by the International Law Association, 9 0 the 1987 Oslo Statement on Norms and Procedures in T i m e s o f Public Emergency or Internal Violence, 9 1 and the 1990 T u r k u / Ä b o Declaration o f Minimum Humanitarian Standards. 9 2 T h e Paris M i n i m u m Standards include a n u m b e r o f procedural and structural r e c o m m e n d a t i o n s to national authorities and international monitoring bodies, and the thrust o f the Oslo Statement is essentially structural; these recommendations can usefully be compared to those o f the Questiaux Report, the I C J study, and the Siracusa Principles. B u t the most intriguing aspect o f these standards is their attempt to expand and to refine the core o f absolute rights never

right not to be imprisoned for contractual debt from its provisions. U.N. Doc. E/CN.4/ S u b . 2 / 1 9 8 2 / 1 5 , at 4 4 - 4 5 (1982). 8 8 . I N T E R N A T I O N A L C O M M I S S I O N O F J U R I S T S , S T A T E S O F E M E R G E N C Y : T H E I R I M P A C T ON H U M A N R I G H T S 4 5 9 - 6 4 ( 1 9 8 3 ) [ h e r e i n a f t e r S T A T E S OF E M E R G E N C Y ] ,

89. T h e draft code of conduct applicable in internal disturbances and tensions, prepared by Hans-Peter Gasser of the International Committee of the Red Cross, merits discussion although the provisions were never formally adopted by that body. Although similar to those standards discussed, the proposed set of guidelines would have had a more restrictive scope of application than the other standards. Gasser, supra note 68, at 49-50. 90. 1984 Paris Minimum Standards of Human Rights Norms in a State of Emergency, reprinted

in 7 9 A M . J . I N T ' L L . 1 0 7 2

(1985).

9 1 . N O R W E G I A N I N S T I T U T E O F H U M A N R I G H T S , 1 9 8 7 O S L O S T A T E M E N T ON N O R M S AND P R O C E D U R E S IN T I M E S O F P U B L I C E M E R G E N C Y ON I N T E R N A L V I O L E N C E , reprinted Doc. E / C N . 4 / S u b . 2 / 1 9 8 7 / 3 1

in

( 1 9 8 7 ) ; 5 M E N N E S K E R OG R E T T I G H E T E R — N O R D I C J .

U.N. HUM.

RTS. 2 (1984) (adopted at a meeting of experts convened by the Norwegian Institute of Human Rights in J u n e 1987). 9 2 . T H E A B O AKADEMI U N I V E R S I T Y

I N S T I T U T E FOR H U M A N R I G H T S IN T U R K U / A B O .

FINLAND, T H E 1 9 9 0 T U R K U / A B O DECLARATION OF MINIMUM HUMANITARIAN STANDARDS,

reprinted in 85 A M . J . I N T ' L L. 375 (1991) [hereinafter Turku/Abo Declaration], Also noteworthy is a code of minimum combatant duties adopted in Manila in 1988 with the i n v o l v e m e n t o f E d u a r d o M a r i n o . See

HUMAN R I G H T S READER: TOWARDS A J U S T AND

HUMANE SOCIETY 1 6 2 - 6 6 (Ed Garcia ed., 1990).

72

C h a p t e r III

subject to suspension. This element of the standard-setting impulse merits close attention. As previously noted, the Questiaux Report and the Siracusa Principles, though basically focused on Article 4 of the Covenant, both recommended that an irreducible core of procedural rights for detainees be recognized. An awareness that international humanitarian law provides many such guarantees in the context of armed conflict affected the formulation of the Siracusa Principles 93 and the Paris Minimum Standards. 9 4 T h e most groundbreaking aspect of the Paris Minimum Standards is its dramatic expansion and precise elaboration of a broad range of non-derogable rights, including certain social and economic rights. 95 T h e apparent deficiencies of h u m a n rights law applicable in situations short of armed conflict, especially in relation to non-derogable rights, attracted the interest of Hans-Peter Gasser of the International Committee of the Red Cross (ICRC) and academics such as T h e o d o r Meron, who began to propose a synthesis of norms and the possible elaboration of a new instrument that either would guide the ICRC's activities in situations of internal strife 96 or could be promulgated as a set of general standards applicable in all emergencies without regard to treaty ratification. 97 A comparison of these various documents reveals a diversity of views concerning the rights that should be recognized as absolute. T h e continuing articulation of comprehensive sets of norms may promote greater respect for h u m a n rights d u r i n g emergencies simply by draw93. Siracusa Principles, supra note 72, at principle 67. 9 4 . I N T E R N A T I O N A L L A W A S S O C I A T I O N , R E P O R T O F T H E C O M M I T T E E ON T H E E N F O R C E MENT OF H U M A N R I C H T S LAW, S I X T Y - F I R S T C O N F E R E N C E OF T H E INTERNATIONAL LAW

ASSOCIATION, T H E PARIS MINIMUM STANDARDS 8 4 - 8 5 ( 1 9 8 4 ) ( f a i r trial r i g h t s ) . See S.R. C H O W D H U R Y , R U L E O F L A W IN A S T A T E O F E M E R G E N C Y : T H E P A R I S M I N I M U M S T A N D A R D S O F H U M A N R I G H T S N O R M S IN A S T A T E O F E M E R G E N C Y 1 4 5 , 2 0 9 - 1 5

(1989).

95. Paris Minimum Standards, § C, arts. 1 — 16, reprinted in 79 AM. J. INT'L L. 1072, 1 0 7 5 - 8 1 ( 1 9 8 5 ) [ h e r e i n a f t e r PARIS MINIMUM STANDARDS],

96. See supra note 68 (noting the thrust of the Code of Conduct floated by Gasser in 1988); see also ICRC Protection and Assistance Activities in Situations Not Covered by International Humanitarian Law, INT'L REV. RED CROSS 9 (Jan.-Feb. 1988) (describing the ICRC's competence in situations short of a r m e d conflict a n d the historical roots of its involvement in such activities). 97. Meron's original focus was on the declaration of n o r m s applicable in situations of internal strife. See T. Meron, Towards a Humanitarian Decision on Internal Strife, 78 AM. J. INT'L L. 859 (1984); T. Meron, Draft Model Declaration on Internal Strife, 28 INT'L REV. RED CROSS 59 (Jan.-Feb. 1988); see also infra note 18. However, the focus of the T u r k u / Ä b o Declaration of December 1990 "shifted from exclusive applicability in internal strife to applicability in all situations, including internal violence, disturbances, tensions and public emergency." See supra note 92, at 376.

Sotting Standard!

73

ing public a n d governmental attention to the fact that despite earlier efforts to set standards, "the abuses continue unabated." 9 8 Also, ideas can be refined with each new elaboration of norms. Yet, after a certain point, a proliferation of instruments may become counterproductive by creating confusion concerning applicable standards, particularly where no precise effort is made to distinguish norms that could reasonably be said to be part of customary law and those that may be at most de lege ferenda. By comparing definitions of non-derogable rights in these various documents, a j u d g m e n t might be made whether the h u m a n rights community has passed the threshold of counterproductivity or whether continuing the effort to define new standards is justified as a legitimate component in the monitoring of emergency-specific h u m a n rights abuses. An examination of the treatment of several clusters of rights in these instruments helps to illuminate their differences in focus and origin. For comparison purposes, these rights include the right to life, nondiscrimination, the rights of the child and of the family, and fair trial rights. T h e right to life, without doubt, is the most basic of all rights, and its fundamental nature is recognized in the three major h u m a n rights treaties as well as in international humanitarian law. But the right to life is a limited one, subject to certain exceptions even u n d e r ordinary circumstances, for instance, with respect to the death penalty or deaths resulting f r o m lawful acts of war. T h e scope of those exceptions varies among the treaties, and these variations carry over into the non-treaty standards examined here. For example, the Paris Minimum Standards of the ILA would exempt f r o m the death penalty persons over seventy or u n d e r eighteen years of age, pregnant women, and mothers of young c h i l d r e n . " T h e draft Code of Conduct a n d the T u r k u / A b o Declaration would exempt some of these groups, but not persons over seventy. 100 T h e Paris Minimum Standards thus draw from and combine the most protective provisions in all the international h u m a n rights and humanitarian law instruments. 1 0 1 In the two other documents the approach appears to have been to adopt the most advanced standards f r o m international 98. T u r k u / A b o Declaration, supra note 92, at 376. 99. Paris Minimum Standards, supra note 95, Section c, at art. 4(5). 100. Gasser, supra note 68, at 53 (Rule 9); T u r k u / A b o Declaration, supra note 92, at 3 7 9 - 8 0 (Article 8). 101. T h u s , the American Convention contributes the protection for those over seventy, while mothers of young children are specifically protected only in Article 6 of Additional Protocol II of 1977.

74

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h u m a n i t a r i a n law. 1 0 2 With r e s p e c t to p e r s o n s u n d e r e i g h t e e n a n d p r e g n a n t w o m e n , a n a r g u m e n t c o u l d b e m a d e that their e x e c u t i o n violates c u s t o m a r y i n t e r n a t i o n a l l a w 1 0 3 in light o f state p r a c t i c e a n d w i d e s p r e a d ratification of instruments containing such prohibitions.104 However, e x e m p t i o n o f t h e e l d e r l y a n d o f n e w m o t h e r s f r o m t h e d e a t h p e n a l t y is f o u n d only in i n s t r u m e n t s that h a v e not b e e n u n i v e r s a l l y r a t i f i e d , a n d s t a t e p r a c t i c e in this r e g a r d is u n c l e a r . 1 " 5 W h y t h e later two sets o f s t a n d a r d s s h o u l d m a r k a s t e p b a c k f r o m the Paris M i n i m u m S t a n d a r d s is n o t easily e x p l a i n e d , u n l e s s e x e c u t i o n o f t h e e l d e r l y w a s s i m p l y not r e g a r d e d as a n i m p o r t a n t i s s u e . 1 0 6 T h e Paris M i n i m u m S t a n d a r d s a d o p t Q u e s t i a u x ' s s u g g e s t i o n , a l s o r e f l e c t e d in t h e A m e r i c a n C o n v e n t i o n , " ' 7 that t h e d e a t h p e n a l t y s h o u l d not b e a d o p t e d a s a n e m e r g e n c y m e a s u r e a n d s h o u l d n o t b e i m p o s e d 102. C a s s e r specifically identifies Protocol II as the source of his standard. See supra note 6 8 , at 57. 103. See J . H a r t m a n , "Unusual" Punishment: The Domestic Effects of International Norms Restricting the Application of the Death Penalty, 52 CINN. L. REV. 6 5 5 (1983); Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, E .S.C. Res. 1984/50, U . N . E S C O R , 1st Sess., S u p p . (No. 1) at 33, U . N . Doc. E / 1 9 8 4 / 8 4 (1985); G.A. Res. 3 9 / 1 1 8 , 39 U . N . G A O R , S u p p . (No. 51) at 211, U . N . D o t . A / 3 9 / 5 1 (1985), reprinted m AMNESTY INTERNATIONAL, W H E N THE S T A T E K I L L S . . . T H E DEATH PENALTY: A HUMAN

RICHTS ISSUE 2 4 5 (1989) (endorsing the Economic a n d Social Council's decisions by p r o v i d i n g that p e r s o n s u n d e r a g e eighteen at the time of the crime, p r e g n a n t women, new mothers, and insane p e r s o n s may not be executed). 104. Article 68 of G e n e v a Convention IV o f 1949 prohibits the execution of persons u n d e r a g e eighteen d u r i n g international a r m e d conflicts. Article 6(5) of the Covenant prohibits such executions at any time, a s d o e s the American Convention but not the E u r o p e a n Convention. However, Protocol No. 6 to the E u r o p e a n Convention would abolish the death penalty entirely d u r i n g peacetime, a n d as of J a n u a r y 1993 it had been ratified by eighteen states of the Council o f E u r o p e . J . B . Marie, International Instruments Relating to Human Rights: Classification and status of ratifications as of 1 January 1993, 14 HUM. RTS. L . J . 57, 63 (1993). See supra notes 2, 6, 11. 105. As o f 29 February 1992, there were ninety-eight states parties to Protocol II. Ratifications and Accessions to the Geneva Conventions and I or the Additional Protocols Between 1.5.1991 and 29.2.1992, DISSEMINATION, Apr. 22, 1992, at 5. T h e American Convention had been ratified by twenty-two of the thirty-four m e m b e r s o f the Organization of A m e r i c a n S t a t e s by F e b r u a r y

1 9 9 1 . I N T E R - A M . C . H . R . , A N N U A L R E P O R T OF T H E I N T E R -

A M E R I C A N C O M M I S S I O N ON H U M A N

RIGHTS

1990-1991,

OEA/Ser.L/V/11.79

doc.

12,

A n n e x "A" (1991). Note, however, that mothers of young children are included in E C O S O C resolution 1984/50. See supra n o t e 103. 106. According to Meron and Rosas, the T u r k u / Â b o Declaration draws on both h u m a n rights a n d humanitarian sources. " M a n y , " but presumably not all, of the Declaration's provisions "codify m i n i m u m s t a n d a r d s already recognized by extant h u m a n rights or h u m a n i t a r i a n law." See supra note 92, at 377. 107. Articles 4(3) and 4(4) prohibit the reintroduction of the d e a t h penaltv in states that have abolished it a n d its imposition for political crimes. See American Convention, supra note 15, at Articles 4(3), 4(4).

Setting Standards

75

f o r political crimes. 1 0 8 T h e C o d e o f C o n d u c t and the T u r k u / A b o Declaration are silent o n these questions, which are not a c o d i f i e d part o f international humanitarian law. 109 U n l i k e execution o f the elderly, these concerns seem highly relevant in many e m e r g e n c i e s , and their absence in the later-drafted sets o f standards is noteworthy. S o m e c o m m o n a l i t y can be f o u n d in the documents' assertion that e m e r g e n c y measures may not be a p p l i e d in a discriminatory m a n n e r 1 1 0 and in e n t r e n c h i n g certain rights o f minorities, which are not included in any o f the treaty clauses on n o n - d e r o g a b l e rights. 111 But the Paris M i n i m u m Standards g o f u r t h e r in a d o p t i n g the suggestion o f the International C o m m i s s i o n o f Jurists that prohibitions on hate speech should also be n o n - d e r o g a b l e . " 2 T h i s suggestion is a n o m a l o u s in the sense that it requires p e r m a n e n t restrictions on the right o f f r e e expression (rather than preserving e n j o y m e n t o f that right, as is the case with o t h e r n o n - d e r o g a b l e rights), but the o f f e r e d justification is the h e i g h t e n e d d a n g e r o f violence resulting f r o m hate speech

during

times o f crisis. 113 T h e reasons f o r the absence o f this provision f r o m the later-drafted standards are unclear, but international

humanitarian

law is silent on this issue. D i f f e r e n c e s in treatment o f the rights o f the child and the rights o f 108. Paris M i n i m u m Standards, supra note 95, section c, at arts. 4(2), 4 ( 4 ) ( f i n d i n g that the death penalty should not be a d o p t e d as an e m e r g e n c y measure in countries that have abolished it and should not be imposed f o r political crimes). See Questiaux R e p o r t , supra note 86, at 36, 45 (noting that the application o f the death penalty o f t e n increases dramatically d u r i n g emergencies and should either be abolished or, at a m i n i m u m , be prohibited in circumstances involving political ofTenses). G u i d e l i n e 7(d)(vii) o f the Draft Guidelines f o r the D e v e l o p m e n t o f Legislation on States o f E m e r g e n c y tracks this r e c o m m e n d a t i o n . See m/ra note 125. 109. I n d e e d , Article 68 o f G e n e v a C o n v e n t i o n I V provides that protected persons should be e x e c u t e d only f o r espionage or serious acts o f sabotage against the o c c u p y i n g power's military installations, as well as other intentional homicides. 110. W h i l e the Paris M i n i m u m Standards (in Article 3 ( 2 ) o f Section ( C ) ) list the g r o u n d s on which discrimination may not be based (including the factor o f nationality that was e x c l u d e d f r o m Article 4( 1) o f the C o v e n a n t ) , the T u r k u / A b o Declaration m o r e generally forbids "any adverse discrimination" (in Article 2). T h e C o d e o f C o n d u c t addresses discrimination only in regard to the care o f the w o u n d e d ( R u l e 10), t h o u g h Article 2 o f A d d i t i o n a l Protocol II contains a broad non-discrimination clause ( d e f i n i n g "adverse distinction"). 111. T h e phrasing o f the Paris M i n i m u m Standards and t h e T u r k u / A b o Declaration is quite d i f f e r e n t . Article 10 o f the Paris Standards guarantees to "ethnic, religious o r linguistic minorities" the rights to enjoy their culture, practice their religion, and use their language. Article 16 o f the T u r k u / A b o Declaration requires protection o f the "dignity and identity" o f " g r o u p s , minorities and peoples." See supra notes 9 2 - 9 5 . 1 12. Paris M i n i m u m Standards, supra note 95, section C, at art. 10(2). See STATES OF EMERGENCY, supra note 88, at 440. I 13. Id.; C h o w d h u r y , supra note 94, at 238.

7*

C h a p t e r III

the family in the three sets of standards also seem to derive primarily f r o m the relative influence of international humanitarian law versus h u m a n rights law in their drafting. T h e Code of Conduct and the T u r k u / A b o Declaration both prohibit the participation of children u n d e r age fifteen in the a r m e d forces," 4 and the T u r k u / A b o Declaration f u r t h e r provides that displaced children should be kept with their families." 5 T h e rights of the child and the family are given only general protection in the Paris Minimum Standards. 1 "' T h o u g h children have been victimized in emergencies, especially by the practice of disappearances, the non-derogability of their rights as a matter of law is addressed only in the American Convention" 7 and in certain respects by international humanitarian law. T h e United Nations Convention on the Rights of the Child does not contain a derogation clause that would identify which of its wide-ranging rights (which include such provisions as a ban on execution or life imprisonment for those u n d e r eighteen) are to be regarded as absolute."" Of more central importance is the treatment of fair trial rights in the three documents u n d e r discussion. T h e deficiencies of the h u m a n rights treaties are especially great in this area, leaving much room for improvement in standards, particularly if those standards could be incorporated back into the treaties by interpretation of the principle of proportionality. A high degree of consensus a m o n g these NGO documents might be of great value in promoting this progressive development, but unfortunately the overlap a m o n g them is far from complete. For example, while the Code of Conduct and the T u r k u / A b o Declaration insist on "necessary right and means of defence," 1 1 9 it is not clear if 114. Turku/Abo Declaration, supra note 92, at Article 10. See supra note 92 (noting Rule 12 of Gasser's Code of Conduct). 115. T u r k u / A b o Declaration, supra note 92, at Article 7(1). 116. Article 11 protects the right to marry and calls for protection of the family; Article 13 assures minor children the "protection required by his condition." Paris Minimum Standards, supra note 95, section C, at arts. 11, 13. A similar provision is included in Article 10 of the T u r k u / A b o Declaration. See supra note 92. A controversial suggestion in the d r a f t of the Paris Minimum Standards that governments could limit the size of families to one child (draft Article 1 1 ( 4 ) ) was deleted. I N T E R N A T I O N A L L A W A S S ' N , REPORT OF THE COMM. F E R E N C E IN P A R I S 8 9

ON

E N F O R C E M E N T OF H U M A N

RIGHTS

LAW,

SIXTY-FIRST

CON-

(1984).

117. American Convention, supra note 15, at Article 27(2). 1 18. Convention on the Rights of the Child, G.A. Res. 44/25, Nov. 20, 1989, 44 U.N. GAOR Supp. (No. 49) at 166, U.N. Doc. A/44/49 (1990). 119. T u r k u / A b o Declaration,.iupra note 92, at Article 9(a); Gasser.supra note 68, at 52 (stating Rule 8(c) of the Code of Conduct). Article 75 of Additional Protocol I and Article 6 of Additional Protocol II adopt similar terminology. See Protocol Additional to the Geneva Conventions of August 12, 1949 and Relating to the Protection of Victims of

Setting Standard!

77

this includes a right to counsel (guaranteed by Article 7(2) of the Paris Minimum Standards), or the right to present defense witnesses and to cross-examine or test the veracity of non-appearing prosecution witnesses (guaranteed by Article 7(13) of the Paris Minimum Standards). 120 Nor do the latter two documents adopt the suggestion of the Questiaux Report and the Paris Minimum Standards that if the right to public trial is suspended, at least the family of the accused should be permitted to attend. 121 They are also silent on the right to appeal (Paris Minimum Standards Article 7(12)). Conversely, both the Turku/Abo Declaration and the Code of Conduct take from international humanitarian law the requirement that trial be provided within a reasonable time, 122 which is not guaranteed by the Paris Minimum Standards. Ironically, the International Commission of Jurists' study concluded that only three fair trial rights should ever be subject to suspension in emergencies, among them the right to prompt trial. 123 Perhaps there is no contradiction here in that a trial whose delayed start was compelled by the exigencies might nevertheless be held within a "reasonable" time. But a greater degree of consistency, both in substance and in stvle : a m o n g these various efforts to articulate an agreed set of non-derogable fair trial rights would enhance their rhetorical force and offer a greater likelihood of positive influence on the thinking of treaty implementation bodies and also of governments. 4. Model Emergency Laws Given the weakness of the treaty-based and other international monitoring systems, the implementation of international standards in do-

N o n - I n t e r n a t i o n a l A r m e d Conflicts, reprinted in 16 I.L.M. 1391, 1423; see also Additional Protocol II, supra note 4, at Article 6. 120. Article 75(4)(g) of Additional Protocol I i n s u r e s similar rights. Additional Protocol I, supra n o t e 119, at Article 75(4)(g). 121. Q u e s t i a u x R e p o r t , s u p r a n o t e 86, at 45; Paris M i n i m u m S t a n d a r d s , s u p r a n o t e 90, at Article 7(4). Article 6(3) of Additional Protocol II provides that convicted p e r s o n s shall be advised of the availability a n d time-limits of judicial or o t h e r r e m e d i e s . Additional Protocol II, supra note 4, at Article 6(3). 122. T u r k u / A b o Declaration,supra n o t e 92, at Article 9(a); Gasser, supra n o t e 68, at 52 (stating R u l e 8(d) of t h e C o d e of Conduct). 123. STATES OF EMERGENCY, supra note 88, at 429. T h e ICJ s u g g e s t e d that "[p]ermitting l a r g e r delay t h a n n o r m a l in p r o c e e d i n g to trial" m i g h t be permissible if strictly r e q u i r e d by t h e exigencies, along with s u s p e n d i n g t h e right to public trial a n d p e r m i t t i n g t e s t i m o n y by n o n - a p p e a r i n g prosecution witnesses if m e a n s a r e available to test t h e veracity of their evidence.

78

C h a p t e r III

mestic law is vital, especially in the basic or constitutional law of each state. T h e creation of effective legal and institutional infrastructures at the national level for the control of abuses of emergency powers has received growing attention. 1 2 4 T h e Special Rapporteur on states of emergency has devoted increasing attention to this matter, and the Sub-Commission in 1990 directed him to draft standard emergencv provisions that could be adopted into national law.12S Model emergency laws must not just define and entrench nonderogable rights but also create structures of national government that reduce the potential for abuse, such as preserving the integrity and authority of the legislature and of thejudiciary, setting time limits upon states of emergency, and the like. Many of these concerns were addressed generally in the Questiaux Report and in Martins' study for the IACHR, 1 2 6 and more specifically in the recommendations of the International Commission of Jurists 127 and in the International l^aw Association's Paris Minimum Standards. 1 2 8 An attempt to assist the Sub-Commission's Special Rapporteur in drafting a model code of emergency law was made by a group of experts in 1991 at a meeting convened in Ceneva by the Association of International Consultants on H u m a n Rights. 129 T h e terms of this model code track many of the substantive recommendations made in the sets of standards discussed above, such as defining an irreducible core of fair trial rights and protections for detainees, particularly those 124. T h e O s l o S t a t e m e n t o n N o r m s a n d P r o c e d u r e s in l i m e s of Public E m e r g e n c y o r I n t e r n a ] V i o l e n c e , f o r e x a m p l e , c o n c e n t r a t e s u p o n c r e a t i o n of a d e q u a t e c o n t r o l m e c h a n i s m s at t h e n a t i o n a l level as well as i m p r o v e m e n t of i n t e r n a t i o n a l s u p e r v ision. See supra note 91. 125. T h e Special R a p p o r t e u r i n d i c a t e d a n i n t e n t t o u n d e r t a k e t h e task of d r a f t i n g m o d e l legal p r o v i s i o n s in his s e c o n d a n n u a l r e p o r t . U . N . D81 ( h e r e i n a f t e r C o p e n h a g e n D o c u m e n t ] , See 29 I.L.M. 1305 (1990). 142. See infra note 144 (held 10 S e p t e m b e r to 4 O c t o b e r 1991). 143. C o p e n h a g e n D o c u m e n t , supra n o t e 141, at para. 25.

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207

T h e p a r t i c i p a t i n g States c o n f i r m t h a t any d e r o g a t i o n s f r o m obligations relating to h u m a n rights a n d f u n d a m e n t a l f r e e d o m s d u r i n g a state of public e m e r g e n c y m u s t r e m a i n strictly within t h e limits p r o v i d e d f o r by i n t e r n a t i o n a l law, in particular t h e relevant i n t e r n a t i o n a l i n s t r u m e n t s by which they a r e b o u n d , especially with respect to rights f r o m which t h e r e can be n o d e r o g a t i o n . T h e y also r e a f f i r m that — m e a s u r e s d e r o g a t i n g f r o m such obligations m u s t be taken in strict c o n f o r mity with t h e p r o c e d u r a l r e q u i r e m e n t s laid d o w n in t h o s e i n s t r u m e n t s ; — t h e imposition of a state of public e m e r g e n c y m u s t be p r o c l a i m e d officially, publicly, a n d in a c c o r d a n c e with t h e provisions laid d o w n by law; — m e a s u r e s d e r o g a t i n g f r o m obligations will be limited to t h e e x t e n t strictly r e q u i r e d by t h e exigencies of t h e situation; — s u c h m e a s u r e s will not d i s c r i m i n a t e solely o n t h e g r o u n d s of race, colour, sex, l a n g u a g e , religion, social origin o r of b e l o n g i n g to a minority.

These standards draw upon norms in both the Covenant on Civil and Political Rights and in the European Convention. The standards of the Copenhagen document were further elaborated in the Document of the Moscow Meeting, which occurred in the immediate aftermath of the failed coup. The Moscow Document added an unusual and potentially significant emphasis upon the motivation for imposition of emergency measures and the legitimate role of the press in monitoring events during an emergency: T h e p a r t i c i p a t i n g States r e a f f i r m t h a t a state of public e m e r g e n c y is justified only by t h e most exceptional a n d g r a v e circumstances. . . . A state of public e m e r g e n c y may not be used to s u b v e r t t h e d e m o c r a t i c constitutional o r d e r , n o r a i m at t h e d e s t r u c t i o n of internationally recognized h u m a n rights a n d f u n d a mental freedoms. . . . A state of public e m e r g e n c y m a y be p r o c l a i m e d only by a constitutionally lawful body, duly e m p o w e r e d to d o so. In cases w h e r e t h e decision to i m p o s e a state of public e m e r g e n c y may be lawfully taken by t h e executive authorities, t h a t decision s h o u l d be subject to a p p r o v a l in t h e shortest possible time o r to c o n t r o l by t h e legislature. A de facto imposition o r c o n t i n u a t i o n of a state of public e m e r g e n c y n o t in a c c o r d a n c e with provisions laid d o w n by law is not permissible. T h e p a r t i c i p a t i n g States will e n d e a v o r to e n s u r e t h a t t h e n o r m a l f u n c t i o n i n g of t h e legislative bodies will be g u a r a n t e e d to t h e highest possible e x t e n t d u r i n g a state of public e m e r g e n c y . T h e p a r t i c i p a t i n g States will e n d e a v o r to e n s u r e t h a t t h e legal g u a r a n t e e s necessary to u p h o l d t h e rule of law will r e m a i n in force d u r i n g a state of public emergency. . . . T h e p a r t i c i p a t i n g States will e n d e a v o r to m a i n t a i n f r e e d o m of expression a n d f r e e d o m of i n f o r m a t i o n . . . with a view to e n a b l i n g public discussion o n t h e o b s e r v a n c e of h u m a n rights a n d f u n d a m e n t a l f r e e d o m s as well as o n t h e lifting of t h e state of public e m e r g e n c y . T h e y will . . . take n o m e a s u r e s a i m e d at b a r r i n g j o u r n a l i s t s f r o m the legitimate exercise of their profession o t h e r t h a n t h o s e strictly r e q u i r e d by t h e exigencies of t h e situation.

20«

Chapter VI

W h e n a state of public e m e r g e n c y is declared o r lifted in a participating State, t h e State c o n c e r n e d will immediately i n f o r m the C S C E Institution of this decision, as well as of any derogation m a d e f r o m the State's international h u m a n rights obligations. T h e Institution will i n f o r m the o t h e r participating States without delay. 144

Perhaps even more significant than the restatement and development of substantive norms in these documents is continued elaboration of improved measures of implementation within the CSCE process. As Thomas Buergenthal observed about the Copenhagen Document, in recent years: [T]he conceptual u n d e r p i n n i n g s of the CSCE u n d e r w e n t a d r a m a t i c transformation: a n a r e n a for dialogue between w a r r i n g ideological blocs was o n the way to becoming an institution of p a n - E u r o p e a n c o o p e r a t i o n with s h a r e d values. T h e s h a r e d values—democratic pluralism, t h e rule of law a n d h u m a n rights—gave birth to a new a n d democratic E u r o p e a n public o r d e r based on these principles.' 4 5

This new solidarity enabled the participating states to create permanent institutions within the CSCE, including a CSCE Council of Ministers of Foreign Affairs, a Committee of Senior Officials, a Secretariat in Prague, a Conflict Prevention Centre in Vienna, and an Office of Free Elections in Warsaw.146 The participating states pledged themselves to new implementation measures as well, including a state-to-state mechanism of requests for information, written responses, and bilateral meetings. 147 Potentially most significant for monitoring states of emergency, the participating states agreed in Moscow to create a resource list of experts who could undertake fact-finding missions at the invitation of a participating state, as a sequel to bilateral contacts where six states agree, or at the behest of ten states where "a particularly serious threat to the fulfilment of the provisions of the CSCE human dimension has arisen." 148 The new monitoring mechanisms of the CSCE were brought to bear upon the deteriorating human rights situation within the former terri144. Document of the Moscow Meeting, 30 I.L.M. 1670, paras. 28.1, 28.2, 28.4, 28.5, 28.8, 28.9, 28.10 (1991) [hereinafter Moscow Document], 145. T. Buergenthal, CSCE Human Dimension: The Birth of a System, COLLECTED COURSES OF T H E ACADEMY OF EUROPEAN LAW, b k . 2 , 1 6 3 ,

190(1992).

146. Id. at 195-98 (discussing the Charter of Paris for a New Europe of 21 November 1990). 147. Copenhagen Document, supra note 141, at p a r a 42; Moscow Document, supra note 138, at para. 2. 148. Moscow Document, supra note 144, at paras. 3 - 1 6 . The Committee of Senior Officials may also initiate a mission on the request of a participating state. Id. at para. 13.

SyittiK

209

tory of Yugoslavia In October 1991 the Committee of Senior Officials authorized the establishment of a human rights rapporteur mission and in March 1992 authorized a follow-up mission. 149 This action was in addition to the CSCE's efforts to establish a monitor mission to assist in establishing a ceasefire and peaceful settlement of the armed conflicts. 150 The creation of new monitoring bodies within the CSCE understandably aroused concern within the Council of Europe. As the President of the European Court of Human Rights cautioned: [T]he idea has been floated in some quarters of establishing a system of individual protection of human rights within the framework of the CSCE process. This idea, undoubtedly inspired by laudable reasons, nevertheless gives cause for serious concern. There is indeed a real danger in having on a permanent basis in Europe two parallel human rights systems, two parallel sets of standards and fundamental values, one perhaps less demanding than the other. It is in the interests of all of us in this part of the world not to see the unique and hard-earned system of enforcement under the European Convention diluted in the long term. 151

While the CSCE offers the advantage of broader membership, including two non-European states (Canada and the United States), the Council of Europe benefits from decades of experience and a proven inclination toward progressive development of its monitoring techniques. 152 149. Decision of the C o m m i t t e e of Senior Officials of October 22, 1991, reprinted in 3 U . S . DEPARTMENT OF STATE D I S P A T C H , NO. 6 a t 3 7 ( 1 9 9 2 ) ; D e c i s i o n o f t h e C o m m i t t e e o f

Senior Officials of March 2, 1992, id. at 38. See also, Prague Document on Further Development of CSCE Institutions and Structures, 13 HUM. RTS. L.J. 174 (1992). 150. Decision of the C o m m i t t e e of Senior Officials of July 4, 1991, id. at 34; Decision of Senior Officials of August 9, 1991, id. T h e s e actions were taken in collaboration with the peacekeeping efforts by the E u r o p e a n C o m m u n i t y a n d the United Nations. 151. Rolv Ryssdal, address at a colloquy entitled "Europe: T h e Roads to Democracy," Council of E u r o p e Doc. C o u r (90) 223, Sept. 18 19, 1990, at 2. 152. Set E. Schlager, The Procedural Framework of the CSCE: From the Helsinki Consultations to the Pans Charter, 1 9 7 2 - 1 9 9 0 , 12 HUM. RTS. L.J. 221 (1991).

Chapter VII The Role of Non-Governmental Organizations

A. Introduction N o n - g o v e r n m e n t a l organizations (NGOs) play a n active a n d vital role in creating public awareness of h u m a n rights violations o c c u r r i n g d u r i n g states of emergency, o f t e n supplying the basic data that fuel t h e i n t e r - g o v e r n m e n t a l m e c h a n i s m s profiled in the previous c h a p t e r s . Alt h o u g h of central i m p o r t a n c e , t h e N G O role is n e i t h e r well d e f i n e d n o r efficiently c o o r d i n a t e d . T h e attention given by N G O s to m o n i t o r i n g abuses d u r i n g states of e m e r g e n c y may be episodic, with the internal d y n a m i c s of each g r o u p d e t e r m i n i n g its priorities without particular r e g a r d to coordination with o t h e r s or to sustained a n d c o m p r e h e n s i v e m o n i t o r i n g of e m e r g e n c i e s as a discrete p h e n o m e n o n . T h e m o r e formal the m o n i t o r i n g m e c h a n i s m of an inter-governm e n t a l body, the less likely it is to rely or at least to acknowledge its reliance on N G O data. For e x a m p l e , the E u r o p e a n Commission a n d C o u r t of H u m a n Rights h e a r only f r o m t h e parties b e f o r e t h e m , w h e t h e r states or individual applicants. 1 T h e Inter-American C o u r t in c o n t e n t i o u s cases does not even provide a f o r m a l role for counsel f o r the petitioners, m u c h less N G O s with which they may be associated. 2 Of course, N G O d o c u m e n t a t i o n o n h u m a n rights abuses can be used by state or individual applicants invoking these f o r m a l proceedings, a n d N G O s may provide counsel to the victims or amicus briefs. Less 1. See supra C h a p t e r VI (for a discussion of t h e s e o r g a n s ) 2. C l a u d i o G r o s s m a n has d e s c r i b e d his e x p e r i e n c e s as counsel with ] u a n M e n d e z of A m e r i c a s Watch f o r t h e victims in t h e first c o n t e n t i o u s cases h e a r d by t h e I n t e r - A m e r i c a n C o u r t of H u m a n Rights a n d n o t e d t h a t t h e I n t e r - A m e r i c a n C o m m i s s i o n o n H u m a n Rights ( I A C H R ) a g r e e d to a p p o i n t t h e m as a g e n t s to p e r m i t t h e m to p a r t i c i p a t e in t h e C o u r t p r o c e e d i n g s . C. G r o s s m a n , Proposals to Strengthen the Inter-American System of Protection of Human Rights, 32 GERM. Y.B. INT'I. 1.. 264, 277 (1990).

The Roi* of Non-Governmental Organizations

211

judicially oriented mechanisms for handling individual communications, such as Resolution 1503, UNESCO's individual communication procedure, and the lACHR's petition process, all permit communications to be filed directly by NGOs themselves, without prior authorization by the victim. s T h e special rapporteurs and working groups of the UN Commission on Human Rights tend to be very candid about their reliance on NGO data. T h e Sub-Commission's Special Rapporteur on States of Emergency frankly acknowledged his heavy reliance on information supplied and organized by NGOs, especially Amnesty International. 4 T h e H u m a n Rights Committee in its reviews of state reports has adopted a middle position; some members rely on NGO-supplied information in f raming questions to state representatives without revealing the source of the data, while other members have questioned the propriety of referring to non-state information. 5 Given the inadequate resources of the United Nations Centre for Human Rights, the proliferation of treaty, thematic, and ad hoc bodies, and the Sub-Commission's continual authorization of additional abstract studies of human rights issues, the reliance of UN bodies on NGOs for basic information concerning human rights practices can only be expected to increase. Thus, it is a matter of some concern in devising an effective and efficient system for emergency-specific monitoring that the NGO community is so complex and its fact-finding methodology so poorly defined. As Diane Orentlicher notes, although the "credibility of their factfinding is their stock in trade . . . the leading NGOs have not adopted uniform methodological standards; most have not even adopted comprehensive, formal standards for use by their own staffs." 6 In essence, more reporting is better in this rather chaotic world. "[H]uman rights reporting is a haphazard enterprise. . . . [T]o date, the chief antidote to unreliable information . . . derives from the multiplicity of independently published assessments by non-governmental organizations . . . [w]hile reliable taken in their entirety, they do not provide systematic and comprehensive coverage of human rights violations." 7 This lack of uniform methodology stems from two understandable causes, the diversity in mandate and resources among NGOs and the 3. 4. 5. 6.

See discussion supra Chapters V and VI (concerning these three procedures). U.N. Doc. F/CN.4/Sub.2/1987/19/Rev.l, at para. 36 (1988). See supra Chapter IV. D. Orentlicher, Bearing Witness: The Art and Science of Human Rights Fact-Finding, 3

H A R V . H U M . R T S . J . 8 3 , 8 5 , 9 2 ( 1 9 9 0 ) . See I N T E R N A T I O N A L L A W AND F A C T - F I N D I N G IN T H E FIELD OF HUMAN RIGHTS ( B . G . R a m c h a r a n e d . ,

1981).

7. Symposium, Statistical Issues in the Field of Human Rights: Introduction, 8 HUM. RTS. Q. 551. 555 (1986).

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multiple uses even a single NGO may have for information concerning a particular state or situation. As David Weissbrodt and James McCarthy observe: In some respects, [ N G O ] fact-finding processes resemble the methods of investigative journalism. In other ways, these organizations function in a quasiadjudicative m o d e . O n most occasions, h u m a n rights organizations collect information only at their central offices or secretariats. At other times, they send fact-finding missions to perform on-site interviews and observations. . . . NGOs use the results of these fact-finding efforts in very different ways . . . for example, (a) diplomatic contacts, (b) limited or massive letter-writing campaigns, (c) issuance o f limited circulation reports, (d) distribution of press releases, (e) publication of detailed reports in pamphlet or book format, (f) printing brief statements in organization periodicals or annual reports, (g) filing communications or lobbying in international h u m a n rights bodies, (h) testimony before United Nations organs and national legislative bodies, (i) lobbying certain governments to raise h u m a n rights issues with other governments, (j) lobbying with governments or corporations to take trade, aid, or other measures against violating nations, and (k) a combination of several techniques."

There is no constant or compelling reason why such divergently oriented NGOs using such diverse techniques to gather information should pay special attention to the emergency context within which human rights abuses are occurring. Only where the competence of an IGO monitor to which the information is being supplied is defined in specific emergency terms are NGOs likely to organize their material under the rubric of derogation norms, such as the principle of severity or the principle of proportionality. 9 Yet, aside from the treaty organs considering breaches of derogation clauses or the Sub-Commission's Special Rapporteur on States of Emergency, few of the monitoring bodies profiled in this study create a demand for precise analysis of human rights situations in terms of the legality of states of emergency. B. T h e Role of t h e Press T h e extreme diversity among NGOs both increases the need for and impedes the possibility of efficiently coordinating their efforts. The local and international press, for instance, serve as a major source of information on a particular government's exercise of emergency powers, as well as a vital amplifying device for the information disseminated by h u m a n rights groups and the evaluations of monitoring 8. D. Weisbrodt & J . McCarthy, Fact-Finding by Nongovernmental NATIONAL LAW AND F A C T - F I N D I N C , supra

n o t e 6, at 1 8 6 .

9. See supra C h a p t e r III (for a discussion of t h e s e principles).

Organizations,

in INTER-

The Role of Non-Govcrnmcntal Organizations

213

IGOs. Yet t h e a t t e n t i o n of t h e press may be fickle, a n d its reliability difficult to verify. W h e r e systematic abuses of h u m a n r i g h t s a r e most severe, t h e r e m a y be n o local i n d e p e n d e n t press to g a t h e r t h e basic data. 1(1 H e a d l i n e s may s p r o u t w h e n a f o r m a l e m e r g e n c y is i m p o s e d or t e r m i n a t e d without any g r e a t c o n s e q u e n c e f o r t h e e n j o y m e n t of h u m a n rights, while l o n g - s t a n d i n g defacto e m e r g e n c i e s with severe conseq u e n c e s in r e m o t e areas m a y go u n r e p o r t e d . Partly o u t of suspicion of bias or sloppiness, i n t e r n a t i o n a l petition processes o f t e n c o n d i t i o n the admissibility of a c o m m u n i c a t i o n on its not b e i n g exclusively based on " r e p o r t s d i s s e m i n a t e d by mass m e d i a . " "

C. The Roles of International and National NGOs T h o u g h a basic distinction can be d r a w n b e t w e e n national N G O s , which work within a n d focus their concerns u p o n a single state, a n d international N G O s , which e i t h e r o p e r a t e within several states a n d direct t h e i r a t t e n t i o n to h u m a n rights issues in m o r e t h a n o n e state, o r focus u p o n i n t e r n a t i o n a l h u m a n rights n o r m s a n d s t r u c t u r e s , it is not simple to d e t e r m i n e w h e n a g r o u p is a h u m a n rights N G O . For e x a m ple, the fact t h a t a g r o u p ' s work makes use of i n t e r n a t i o n a l h u m a n rights n o r m s r a t h e r t h a n exclusively national law, is not necessarily a dispositive criterion. 1 2 Many g r o u p s based within a single state that have a t r a d e u n i o n , religious, or d e v e l o p m e n t focus may be t h e best sources of timely a n d reliable i n f o r m a t i o n c o n c e r n i n g t h e actual impact of e m e r g e n c y m e a s u r e s o r t h e e x t e n t of gross h u m a n rights abuse. Yet t h e s e g r o u p s may have n o links with the i n t e r n a t i o n a l N G O s , which could r e p a c k a g e a n d m o r e effectively d i s s e m i n a t e t h e i r d a t a to the international c o m m u n i t y , a n d n o direct access to t h e I G O s with a u t h o r ity to m o n i t o r t h e abuses. T h e e x p e r i e n c e of Servicio Paz y Justicia (SERPAJ) in U r u g u a y is instructive. Like m a n y national N G O s outside N o r t h A m e r i c a a n d E u r o p e , SERPAJ h a d a b r o a d view of h u m a n rights as e m b r a c i n g e c o n o m i c a n d social equity as well as civil a n d political rights. D u r i n g the p e r i o d of military rule in U r u g u a y , however, SERPAJ f o u n d itself w o r k i n g "full t i m e to protect rights to p e r s o n a l security." 1 3 With a r e t u r n to d e m o c r a t i c g o v e r n m e n t , SERPAJ again r e d e f i n e d its goals, 10. Orentlicher, supra note 6, at 95. 11. See, e.g., Sub Commission Res. I (XXIV), U.N. Doc. E / C N . 4 / 1 0 7 0 , at 5 0 - 5 1 , para. (3)(d) (1971) (stating the admissibility standards imposed by the Sub-Commission on communications u n d e r Resolution 1503). 12.

H.

STEINER, DIVERSE PARTNERS:

HUMAN RIGHTS MOVEMENT 5 - 8

13. Id. at 52.

(1991).

NON-GOVERNMENTAL ORGANIZATIONS

IN T H E

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only to find itself not only without the same intense attention from international NGOs, but also with eroding support even within Uruguay's middle class. 14 While a healthy symbiosis would seem to be the ideal prescription for the interaction between international and national NGOs, jealousies and disparate interests may interfere with such cooperative l i n k s . F o r example, during states of emergency international NGOs may forge strong informational links to national NGOs with access to information on emergency measures and details o f abuses. T o preserve their own credibility, however, the international NGOs may attempt to filter the information they receive to eliminate the possible biases of the source. 1H These biases may consist of deliberate exaggeration of the scope of abuse or simple sloppy reporting in the heat of the moment, or, conversely, efforts to picture reported abuses as relatively moderate "in context." 1 7 T h e imprecise nature of human rights fact-finding compounds the risks of misunderstanding and suspicion, not only among NGOs but between them and their various audiences. And even with respect to the most straightforward aspect of fact-finding in emergency contexts, compiling information on violations on non-derogable rights, the truth of reported events may be murky: T h e facts surrounding r e p o r t e d violations . . . are rarely beyond dispute, in large part because the violations themselves are often deliberately shrouded in 14. Id. 15. S u g g e s t i o n s for b e t t e r a x ) r d i n a t i o n a m o n g N G O s o f t e n meet with skepticism, based o n a candid a c k n o w l e d g m e n t that r e s o u r c e s ( m o n e y and publicity) for even the largest a n d best-known g r o u p s a r e always insufficient to meet their self-imposed goals. As o n e participant in t h e s e m i n a r described stated: " N G O s 'hated' c o o r d i n a t i o n , prized t h e i r a u t o n o m y o f decision making, a n d rarely c a m e t o g e t h e r to divide responsibilities or to a r r a n g e jointly a mission o r c a m p a i g n . T h i s . . . was e x p l a i n e d by the i m p o r t a n c e o f egotistical struggles for power a n d for public r e c o g n i t i o n a m o n g leaders o f many organizations. T h o s e struggles led to fights over j u r i s d i c t i o n a n d strategies rather than to p l a n n i n g within a unified h u m a n rights m o v e m e n t . ' ' Id. at 6 7 . 16. Weissbrodt & McGarthy, supra

n o t e 8, at 187. O r e n t l i c h e r suggests a n u m b e r o f

relevant factors that must be assessed by an i n t e r n a t i o n a l N G O that relies on data from d o m e s t i c h u m a n rights monitors, including w h e t h e r the local g r o u p reports only violations against its own m e m b e r s or, m o r e generally, w h e t h e r it relies o n the local press and, if so, what the prevailing j o u r n a l i s t i c standards a r e ; how the domestic m o n i t o r may d e f i n e t e r m s such as "massacre "; w h e t h e r it c o n f i n e s its r e p o r t i n g to urban r a t h e r than rural areas; w h e t h e r it is linked with insurgent g r o u p s a n d , if so, whether t h e link seriously d a m a g e s its credibility. Supra

n o t e 6 , at 126—29.

17. T h e Israel National Section o f the I n t e r n a t i o n a l C o m m i s s i o n of Jurists, lor e x a m p l e , o f f e r e d a report that was consciously d e s i g n e d as an answer to criticism o f Israeli use o f e m e r g e n c y regulations in the O c c u p i e d Territories. RULE OF I.AW IN rut: A R E A S A D M I N I S T E R E D BY ISRAEL ( T e l Aviv

1981).

T h « R o i « of N o n - O o v r n m a n f I O f t f u l i i l l i m i

215

secrecy: military forces o r g a n i z e a n o n y m o u s "death squads" to kill political o p p o n e n t s u n d e r cover o f darkness; a g e n t s o f the state seize suspected political o p p o n e n t s without judicial warrant a n d torture their victims in unauthorized, secret d e t e n t i o n centers.'"

T h e very context of the emergency may impede the ability of national NGOs to function or to disseminate their information, no matter how eager the audience outside the state. "Protection against torture . . . [and] prevention against massacres all start with information in the hands of a few who are themselves in peril." 19 O n e of the greatest benefits of a linkage between international NGOs, with steady access to the international press and to IGOs, and local NGOs in crisis-torn states is some degree of "insurance" against arrest or assassination for members of the latter, t h r o u g h the threat of rapid publicity that may harm the government's image in the world community. 2 " International NGOs also may enjoy consultative status with IGOs and have greater familiarity and sophistication in handling IGO processes. They may provide a platform for local h u m a n rights figures to address IGOs directly, although this carries a risk of lending credence to claims by target governments that the criticism of its h u m a n rights record is politically motivated. For example, the widow of President Salvador Allende of Chile spoke as a special representative of the International Association of Democratic Lawyers and the Women's International Democratic Federation to the UN Commission on Human Rights in 1974, shortly after the military coup. 21 T h e International Commission of Jurists lent the benefit of its consultative status at the Sub-Commission in 1976 to Rodolfo Matarollo of the Argentine H u m a n Rights Commission, who provided a firsthand account of the gross abuses occurring u n d e r the Argentine state of siege. 22 While the well-established international NGOs thus can provide

18. Orentlicher, supra note 6, at 94. 19. Statement of Martin Ennals, quoted by Tobin, infra note 31, at 977. 20. As participants at the retreat described by Steiner found: "[T]hreats to human rights activists that sometimes culminate in detention or killings have become more common—so much so that, in the words of one participant, 'what we need is not an umbrella of protection but a bullet-proof vest.' Publicity by I NGOs [international NGOs] about threats, and mobilization of strong protests against a government intimidating human rights workers, have been helpful. A government may be deterred if aware of the political costs of harming workers." STEINER, supra note 12, at 69. 21. D. Weissbrodt, The Contribution of International Nongovernmental Organizations to the Protection

of Human

Rights,

in 2 HUMAN RIGHTS IN INTERNATIONAL LAW: LEGAL AND

POLICY ISSUES 4 0 3 , 4 1 8 ( T h e o d o r M e r o n e d . , 1 9 8 4 ) . 22.

IAIN G U E S T ,

B E H I N D T H E DISAPPEARANCES: ARGENTINA'S DIRTV WAR

H U M A N R I G H T S AND T H E U N I T E D N A T I O N S 1 1 1 - 1 5

(1990).

AGAINST

21*

Chapter VII

assistance and access to national NGOs, there is an obvious risk of resented patronization. 25 The insular and esoteric world of IGO work can create a certain detachment and arrogance in prominent NGOs that may impede their ability to forge mutually beneficial links to local groups: "Among the organizations which attend [UN meetings] most assiduously, and tend to appoint the same delegates repeatedly, there has grown up an international 'corps' of observers reflecting some of the characteristics of the corps of professional diplomats." 24 On the other hand, the closer involvement such NGOs have with IGOs may facilitate their participation in standard-setting relevant to states of emergency. For example, the Geneva-based Association of International Consultants on Human Rights organized a session in 1991 to assist Special Rapporteur Leandro Despouy with his task of drawing up model emergency laws, as requested by the Sub-Commission. 25 More legally oriented NGOs, such as the International Commission of Jurists and Amnesty International, have played a prominent role in drawing attention by IGOs to the human rights problems posed by emergencies and in suggesting appropriate norms. 26 On the other hand, local or regional human rights groups also can provide the primary impetus for development of new standards, such as the Declaration on the Protection of All Persons from Enforced or Involuntary Disappearances and a proposed convention on the same subject. 27 Many NGOs are international not only in the sense of relying upon international human rights norms in their work and in directing their monitoring activities to more than one country, but also in themselves having a multinational structure. One of the older major NGOs, for example, is the International League for Human Rights, which operates as a confederation of national civil liberties organizations. 28 The scarcity of such bodies outside Western Europe and the Americas 23. STEINER, supra nole 12, at 65. 24. P. Archer, Action by Unofficial Organizations on Human Rights, m THE INTERNAT I O N A L P R O T E C T I O N OF H U M A N R I G H T S 1 7 0 ( E v a n L u a r d e d . ,

1967).

25. U.N. Doc. E/CN.4/Sub.2/1991/28 Annex I (1991). 2 6 . See,

e.g.,

I N T E R N A T I O N A L C O M M I S S I O N OF J U R I S T S , S T A T E S OF EMERGENCY: T H E I R

I M P A C T ON H U M A N R I G H T S ( 1 9 8 3 ) ; A M N E S T Y I N T E R N A T I O N A L , STATES OF EMERGENCY: T O R T U R E AND V I O L A T I O N S OF T H E R I G H T T O L I F E UNDER S T A T E S OF E M E R G E N C Y ,

AI

INDEX: P O L 3 0 / 0 2 / 8 8 ( 1 9 8 8 ) .

27. See Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its Forty-Second Session, U.N. Doc. E/CN.4/1991/2, at 63 (1990); Report of the Working Group on Enforced and Involuntary Disappearances, U.N. Doc. E/CN.4/1985/15 Annex III (1985) (Draft Convention on Enforced Disappearances prepared by FEDEFAM, the Latin American Federation of Associations of Relatives of Disappeared Detainees). 28. L. Wiseberg & H. Scoble, The International League for Human Rights: The Strategy of a Human

Rights

NGO,

7 GA. J . INT'L * COMP. L. 2 8 9 ( 1 9 7 7 ) .

Th» Rolt of Non-Cownnimit»! O r g m l n t l o r a

217

places limits on the possibility that such a structure could provide in itself the coordination that would produce a comprehensive monitoring program for states of emergency. Likewise, Amnesty International and the International Commission of Jurists also have active membership structures in numerous countries, but tend to centralize their research and to be driven by mandate concerns that extend beyond states of emergency. 2 9 Multinational lawyers groups, such as the International Law Association, have limited resources, an almost exclusively volunteer structure, and an agenda that extends far beyond human rights. For a truly comprehensive monitoring project on states of emergency to c o m e into existence, effective coordination and compatible technology would have to be devised. A pilot project at Queen's University in Belfast, Northern Ireland, has made a promising start in developing a computer program that organizes data in a usable format that could reasonably be made accessible to a wide range of groups. Its full-scale implementation, however, would require establishing ongoing links with local human rights groups to gather and update the pertinent information. Although some human rights clearinghouses have been established 3 " and some steps have been taken to create standardized bibliographic formats, 3 1 there does not exist a "standard

29. Amnesty International has hundreds of thousands o f individual members throughout the world and national sections in over forty countries, but it generally imposes "work on own country rules" that direct members' activities away from human rights abuses committed by their home governments and toward human rights abuses committed abroad. T h e aim is to maintain AI's impartial and non-political image as well as to protect the safety o f members. Research is centralized at the professional Internat i o n a l S e c r e t a r i a t in L o n d o n . See E . LARSON, A FLAME IN BARBED W I R E : T H E STORY OF A M N E S T Y INTERNATIONAL ( 1 9 7 9 ) ; A M N E S T Y INTERNATIONAL, HANDBOOK 6 8 - 7 0 ,

77-80

(1983).

T h e ICJ itself consists o f forty eminent jurists, a vestige o f the older-style N G O composed o f a tightly knit elite group. But others may join as associates and the ICJ has national sections and affiliated legal organizations in more than sixty countries. T h e professional staff in Geneva includes research experts for different regions as well as the Centre for the Independence o f the Judiciary. See INTERNATIONAL COMMISSION OF JURISTS, O B J E C T I V E S , ORGANIZATIONS, ACTIVITIES

(1965).

30. T h e most prominent o f these is Human Rights Internet which publishes the HUMAN RIGHTS INTERNET REPORTER, i n f o r m i n g r e a d e r s o f t e x t s o f new h u m a n

rights

instruments, recent decisions o f IGOs, calendars o f upcoming events, news on NGO activities and articles on human rights issues, as well as directories o f NGOs in different regions. Internet is currently located at the University Human Rights Centre at the University o f Ottawa. 31. T h e Human Rights Information and Documentation System ( H U R I D O C S ) , for example, was created in 1982 to facilitate information-sharing among NGOs by promoting a standard bibliographic format for storing and retrieving information. See J . Tobin,

218

Chapter VII

f o r m a t for the recording of events constituting h u m a n rights violations . . . and situations that constitute patterns of violations,"' 2 nor e v e n for recording the more formal aspects of emergencies, such as proclamations and terminations.

D. The International Committee of the Red Cross Deserving separate and e x t e n d e d consideration is the International C o m m i t t e e of the Red Cross (ICRC), not only because it is the oldest body involved in the monitoring process 3 3 but also because of its distinctive structure, methodology, a n d legal c o m p e t e n c e . T h e situations within which the ICRC acts, from international armed conflict to internal a r m e d conflict to internal strife, might all be categorized as states of emergency. It seems strange e v e n to speak o f the ICRC, given its unusual m o d e of operation, as a h u m a n rights N G O , t h o u g h this aspect of its identity is growing in visibility both internally and externally. 3 4 T h e ICRC is unique a m o n g N G O s in its operational capacity and its special entitlement to act u n d e r the G e n e v a C o n v e n t i o n s of 1949 and the Additional Protocols of 1977. 3 5 O n the o t h e r hand, the ICRC o f t e n

Book Note,

81 AM. J . INT'L L. 9 7 7 ( 1 9 8 7 ) ( r e v i e w i n g B. STORMORKFN,

HURIDOCS

S T A N D A R D F O R M A T S FOR T H E R E C O R D I N G AND E X C H A N C E OF I N F O R M A T I O N ON H U M A N

RIGHTS ( 1 9 8 5 ) ) .

32. Id. at 979. 33. T h e ICRC came into existence in 1863 a n d was instrumental in the successful conclusion of a conference organized by the Swiss government to draw u p the first Geneva Convention on international humanitarian law in 1864. T h e inspiration for the conference came from Henri Dunant's book, A MEMORY OF SOLFERINO, which chronicled his experiences at the 1859 battle of Solferino in Italy, at which he organized relief, with the help of local residents, to assist thousands of u n a t t e n d e d wounded soldiers on both s i d e s . A N N U A L R E P O R T OF T H E I N T E R N A T I O N A L C O M M I T T E E OF T H E R E D C R O S S 1 9 9 0 , a t 3 ;

P . BOISSIER, FROM SOLFERINO TO TSUSHIMA ( 1 9 8 5 ) ; D . F o r s v t h e , Human

Rights

and

the

International Committee of the Red Cross, 12 HUM. RTS. Q. 265, 266 (1990). 34. Forsythe, supra note 33, at 265. 35. States ratifying the Geneva Conventions of 1949 recognize the right of the ICRC to visit prisoners of war and civilian detainees a n d to take initiatives to secure compliance with other treaty provisions by parties to the conflict. Detained foreign combatants and civilian detainees "have a right to communicate directly and privately with the 1C.RC about their conditions of detention." Forsythe, supra note 33, at 270. See G. Peirce, Humanitarian Protection for the Victims of War: The System of Protecting Powers and the Role of the ICRC, 90 MIL. L. REV. 89 (1980). However, in internal a r m e d conflict "fighting parties are not legally obligated . . . to admit the ICRC to territory they control for prisoner visits . . . [though the] ICRC is authorized to request such access" u n d e r 1977 Protocol II. Forsythe, supra note 33, at 271. T h e Statutes of the International Red Cross and Red Crescent Movement also permit the ICRC to offer its services in the event of internal disturbance and tension, without the offer constituting interference in a state's in-

TTM R o t « o f N o n - G o v e m m e n t e l O r g a n i z a t i o n s

219

consciously eschews f r a m i n g its a p p r o a c h in legal terms, c o n t r i b u t i n g to its i m a g e "as a charitable organization, p e r h a p s even as a h u m a n itarian do-gooder." 3 6 I n d e e d , t h e ICRC's role is constantly evolving, generally following a distinct p a t t e r n : "[T]he invariable s e q u e n c e of events has seen an ad hoc action of t h e ICRC d e v e l o p into a general practice that later achieved t h e status of a c u s t o m a r y n o r m in international law a n d was finally codified by treaties a n d conventions." 3 7 O t h e r characteristics that distinguish the ICRC f r o m t h e r e m a i n d e r of the N G O world a r e its u n u s u a l organization a n d f u n d i n g . T h e I C R C is an all-Swiss o r g a n i z a t i o n . Its Assembly is c o m p o s e d of p r o m i n e n t Swiss, traditionally d r a w n f r o m t h e elite of business a n d g o v e r n m e n t , w h o themselves are generally a m a t e u r s motivated by noblesse oblige in their h u m a n i t a r i a n work. 3 8 Following r e s t r u c t u r i n g in the 1970s, I C R C o p e r a t i o n s b e c a m e m u c h m o r e professionalized, a n d its work today is carried on by m o r e t h a n six h u n d r e d h e a d q u a r t e r s staff, m o r e t h a n five h u n d r e d "delegates" in t h e field, a n d t h o u s a n d s of local employees of m a n y nationalities. 3 9 But the I C R C is only o n e c o m p o n e n t of t h e Red Cross a n d Red Crescent " m o v e m e n t " a n d m u s t m a i n t a i n sometimes tense relationships with national societies a n d a L e a g u e that may e i t h e r have inconvenient a g e n d a s or be too closely identified with h o m e g o v e r n m e n t s . 4 0 Participation at the q u a d r e n n i a l c o n f e r e n c e s of the m o v e m e n t e x t e n d s not only to t h e I C R C a n d t h e national societies, but also to g o v e r n m e n t s of states that have ratified t h e G e n e v a C o n v e n t i o n s . T h e interjection of politics into this o t h e r w i s e h u m a n i t a r i a n m o v e m e n t created

t e r n a l a f f a i r s . INTERNATIONAL C O M M I T T E E OF T H E RED CROSS, ANNUAL REPORT

1988,

al 7 (1989); ICRC Protection and Assistance Activities in Situations Not Covered by International Humanitarian

Law, 2 8 INT'L REV. RED CROSS 9, 1 3 - 1 8 ( 1 9 8 8 ) [ h e r e i n a f t e r

ICRC

Protection). 36. Forsythe, supra note 33, at 265. 37. J. D. Armstrong, The International Committee of the Red Cross and Political Prisoners, 39 INT'L ORG. 6 1 5 , 6 2 1 ( 1 9 8 5 ) .

38. Forsythe, supra note 33, at 2 7 8 - 7 9 . 39.

INTERNATIONAL COMMISSION

OF T H E

RED CROSS,

1 9 8 8 ANNUAL REPORT

123

(1989).

40. Forsythe describes the awkward crisis that arose in Ethiopia in 1988, when the ICRC decided to withdraw because it could not obtain adequate assurances from the government that food relief in the conflicted north would be distributed equitably to persons on all sides. T h e Ethiopian Red Cross was closely allied with the government and could not be trusted to distribute the aid neutrally. But the League of Red Cross Societies, without consulting the ICRC, undertook to distribute the aid without insisting on guarantees from the Ethiopian government. Forsythe indicates that ICRC officials were privately incensed by this action, although they agreed to cooperate with it. Supra note 33, at 268.

220

O t a p M r VII

difficulties for the ICRC in 1986 when the conference voted to exclude the government of South Africa f r o m participation. T h e South African government retaliated by temporarily suspending ICRC access to political detainees. 4 1 This unusual government involvement in the affairs of an N G O is f u r t h e r complicated by the fact that the bulk of the ICRC's regular and special budgets are derived from government contributions rather than from private fund-raising. 4 2 Nevertheless, the ICRC has succeeded in carving out a distinct niche for itself within the Red Cross movement and also within the N G O world. While national Red Cross and Red Crescent societies concentrate u p o n disaster relief and related work, the ICRC performs its unique role of humanitarian initiative in international and internal armed conflicts and continues its unusual program of prison visits to political detainees. Sensitivity to sovereignty concerns caused the ICRC's role in internal armed conflict and internal strife to evolve slowly, but in 1919 the ICRC began to develop a program of visiting prisoners detained because of their involvement in civil war or internal strife. 43 Since then, the ICRC has visited over a half a million political detainees in ninety-five countries. 44 While other NGOs, such as Amnesty International, are not entirely averse to the attractions of quiet diplomacy where it holds some prospect for ameliorating a particular h u m a n rights situation, none have made this approach so central to their mission as has the ICRC. T h e ICRC uses publicity as a very selective tool in its work, both to promote respect for international humanitarian law during armed conflicts and in its prison-visit and tracing activities. 45 Ironically, one key bit of leverage the ICRC sometimes uses against recalcitrant governments is to threaten publicly to withdraw its operations in the country, an action that carries the implicit suggestion that the government is committing 41. While the government later restored partial access, the ICRC itself later withdrew because the access was inadequate. Forsythe, supra note 33, at 267; INTERNATIONAL LAW A S S O C I A T I O N , S E C O N D I N T E R I M R E P O R T O F T H E C O M M I T T E E ON T H E E N F O R C E M E N T OF HUMAN RIGHTS LAW, SIXTY-THIRD CONFERENCE 1 6 9 ( W a r s a w

1988).

42. In 1990, of a budget of about 385 million Swiss francs, approximately 270 million francs were donated by governments (the leaders in donations were Switzerland at 72 million a n d t h e U n i t e d S t a t e s at 5 0 m i l l i o n ) . ANNUAL REPORT OF THE INTERNATIONAL C O M M I T T E E OF T H E R E D C R O S S 1 9 9 0 2 6 - 2 8

(1991).

43. T h e first visits occurred in the USSR and in Hungary. Armstrong, supra note 37, at 623; ICRC Protection, supra note 35, at 14. 44. Forsythe, supra note 33, at 272. 45. T h e ICRC also engages in a great deal of promotional and educational work, however, for which wide dissemination is centrally important. See, e.g., M. Harroff- l'avel, The Principle of Neutrality, DISSEMINATION, April 1992, at 14.

The Rota of Non-Governmental Organizations

221

and seeking to conceal gross abuses of detainees or others. 46 In contrast, the lifeblood of other major N G O s is high-profile publicity for their detailed reports on human rights abuse, and their offering to go away would be warmly welcomed by many governments. T h e confidentiality o f the ICRC's work is sometimes overestimated, as information concerning the countries in which it is operating, the number of detainees visited, and so forth, can easily be gleaned from its annual reports and other publications. Indeed, because the ICRC's work takes place largely in emergency situations, these public reports describing I C R C operations serve as a good source of basic information on the occurrence of emergencies. But the details of the conditions discovered and formally reported by I C R C delegates in detention centers largely remain confidential, unless the government chooses selectively to release portions of the report. 47 I C R C discretion creates a risk that the government may manipulate its cooperation with the I C R C to bolster its internal or external legitimacy or to justify noncooperation with I G O s and N G O s using more public methods of inquiry. 48 T h e ICRC's policy is to continue its visits as long as it is satisfied that its presence may provide benefits to the detainees. O n e commentator concludes: I f the I C R C w e r e the o n l y v o i c e t o be h e a r d o n the issue o f political prisoners, the m o r a l i t y o f its r e f u s a l to criticize g o v e r n m e n t s o r r e v e a l its f i n d i n g s m i g h t be m o r e t e n u o u s . It is because o t h e r N G O s ( a n d g o v e r n m e n t s ) are actively i n v o l v e d in t r y i n g to b r i n g a b o u t the release o f political p r i s o n e r s a n d c o n d e m n i n g the d e t a i n i n g g o v e r n m e n t s that the I C R C is able to play its m o r e restricted r o l e w i t h o u t serious q u a l m s o f conscience. 4 9

T h e ICRC's involvement in standard-setting is also distinct from that of the other key N G O s concerned with human rights during states of emergency. T h e I C R C does not work like Amnesty International or the International Commission of Jurists within U N or other I G O structures to shape the content o f international human rights law. O n the other hand, it does prepare draft texts for the international diplomatic conferences that draw up new instruments of humanitarian law and actively promotes ratification of such instruments. Hans-Peter Gasser of the I C R C floated a proposal to draw up a code of conduct for states

46. Forsythe cites as examples South Vietnam, Portuguese Mozambique, South Africa, and El Salvador. Forsythe, supra note 33, at 275. 47. Id. at 275; Armstrong, supra note 37, at 638-39. 48. Armstrong, supra note 37, at 638-39 (citing example of interaction with Greek junta in 1967-70). 49. Id. at 642.

222

Chapter VII

i n v o l v e d in internal strife, d r a w i n g u p o n strands o f customary and c o d i f i e d h u m a n rights a n d humanitarian law, as well as basic principles o f humanity, 5 " but this c o d e was n e v e r f o r m a l l y a d o p t e d by the I C R C o r the R e d Cross C o n f e r e n c e . Nevertheless, it has served as a useful m o d e l f o r f u r t h e r discussion o f the potential core o f n o n - d e r o g a b l e rights o f detainees in e m e r g e n c y situations. 51 In recent years m a j o r h u m a n rights N G O s have shown an increasing interest in the relevance o f international humanitarian law to their work, particularly with respect to abusive actions by n o n - g o v e r n m e n t a l entities d u r i n g

periods o f

armed

conflict. A m n e s t y

International

b r o a d e n e d its concerns with respect to such violations at its 1991 International C o u n c i l M e e t i n g , 5 2 and g r o u p s such as A m e r i c a s Watch have increasingly d r a w n o n the standards o f international

human-

itarian law in their r e p o r t s o n strife-torn states. 51 T h u s , an increasing c o n v e r g e n c e o f interests is likely a m o n g the I C R C and human rights NGOs.

5 0 . H P . G a s s e r , A Measure a Code of Conduct,

5 1 . See d i s c u s s i o n supra 52.

of Humanity

m Internal

Disturbances

and Tensions:

Proposal

for

2 8 I N T ' L REV. RED CROSS 38 ( 1 9 8 8 ) . Chapter

III.

R E P O R T S A N D D E C I S I O N S OF T H E 2 0 T H

INTERNATIONAL COUNCIL

OF

AMNESTY

I N T E R N A T I O N A L , Y O K O H A M A , J A P A N , D E C I S I O N 5 OF T H E 2 0 T H I N T E R N A T I O N A L C O U N C I L , A U G . 3 1 - S E P T . 7 1 9 9 1 , A I I N D E X : O R G 5 2 / 0 1 / 9 2 at 31 ( 1 9 9 2 ) . 5 3 . See, e.g., A M E R I C A S W A T C H , V I O L A T I O N OF F A I R T R I A L G U A R A N T E E S BY THE F M L . N ' s AD HOC C O U R T S ( 1 9 9 0 ) ; H U M A N R I G H T S W A T C H , NEEDLESS D E A T H S IN T H E G U L F (1991).

WAR

Chapter VIII Conclusion

Measuring the effectiveness of the various bodies profiled in this study is difficult because cause and effect relationships in protection of international h u m a n rights are inherently elusive 1 and also because there are multiple goals to the monitoring process. As the Committee on the Enforcement of H u m a n Rights Law of the International Law Association (ILA) noted in 1986: [A]s with "states of emergency" the concept of "effectiveness" is multi-faceted and elusive. At least six possible aspects of effectiveness can be identified, including: exposing the fact of human rights abuses; stopping or moderating abuses during the course of an emergency; providing redress to individual victims through findings of violations, compensation, rehabilitation, release from detention, or clarification of the fate of missing persons; securing the punishment of violators; terminating a state of emergency; and prevention of possible future abuses or invalid imposition of emergency measures.'2

Examples of small successes in each of these categories can be f o u n d scattered throughout this study, but on no count can the existing monitoring system be seen as ideally effective. Yet moderate goals for improving existing mechanisms can be set and concrete steps taken to improve coordination. At its Sixty-Fourth Conference in Brisbane in 1990, the ILA adopted the Queensland Guidelines for Bodies Monitoring Respect for H u m a n Rights During 1. See, e.g., D. Weissbrodt & M.L. Bartolomei, The Effectiveness of International Human Rights Pressures: The Case of Argentina, 1976-1983, 75 MINN. L. REV. 1009 (1991). 2 . I N T E R N A T I O N A L L A W A S S O C I A T I O N , I N T E R I M R E P O R T O F T H E C O M M I T T E E ON T H E E N F O R C E M E N T OF H U M A N R I G H T S L A W , S I X T Y - S E C O N D C O N F E R E N C E O F T H E TIONAL LAW ASSOCIATION 1 1 2 ( S e o u l

1986).

INTERNA-

224

Chapter VIII

States of Emergency,® whose primary drafter was the author of this study. These Guidelines are reprinted in the Appendix. The Queensland Guidelines remain pertinent and timely. No simple or single answer exists to the question whether all human rights monitors should devote special attention to the phenomenon of human rights abuse during states of emergency. Rather, the linkage between a certain pattern of human rights abuse and the occurrence of a particular form of emergency will be of varying significance for different components of the international human rights monitoring system. Each monitor could improve its effectiveness against abuse associated with states of emergency by responding to the Guidelines' recommendations most pertinent to its work, without necessarily undertaking a major redirection of its operations specifically toward states of emergency. By maximizing the impact of the existing complex, but patchy, system of international monitoring of states of emergency, reducing inconsistency and redundancy, and improving coordination, scarce resources can be made to stretch further. Many years of additional incremental improvements by all participants are likely to be required before a comprehensive monitoring system with real and rapid influence on governments facing or claiming an emergency emerges. Several issues demand priority attention or stand on the brink of major developments. With respect to the interpretation of the derogation clauses of human rights treaties, these issues include: (1) clarification of the threshold of severity to meet the definition of a public emergency justifying suspension of rights; (2) stricter and more purely objective application by treaty implementation bodies of the principle of proportionality to suspensions of derogable rights; (3) identification of rights that are functionally non-derogable, either because their suspension is never strictly required by the exigencies of any emergency or because their violation would breach other obligations under international law; and (4) development of criteria for determining when reservations to derogation clauses or to non-derogable provisions are impermissible. Greater effort must also be made to reach consensus concerning a core of rights that are non-derogable as a matter of customary law, particularly with respect to limits on arbitrary detention and for fair trial during emergencies. The greater involvement of the United Nations Security Council in emergency situations with important human rights dimensions poses a 3 . Q U E E N S L A N D G U I D E L I N E S FOR B O D I E S M O N I T O R I N G R E S P E C T FOR H U M A N D U R I N G S T A T E S OF E M E R G E N C Y , reprinted

in 8 5 A M . J . I N T ' L ! . . 7 1 6

(1991).

RIGHTS

Conclusion

225

challenge and an opportunity to the bodies described in this study. T h e use o f forceful measures to promote human rights and the deployment o f large numbers of on-site monitors with a human rights protection mission may become increasingly c o m m o n techniques o f international response to certain visible emergencies. Integration o f the specialized human rights organs as active participants, along with the political and humanitarian assistance authorities, in these multilateral efforts is crucial.

A p p e n d i x : The Queensland Guidelines for Bodies M o n i t o r i n g Respect for H u m a n Rights During States of Emergency

Treaty Implementation Bodies A. Treaties Containing Derogation Clauses 1. Treaty implementation bodies with responsibility to review periodic state reports should carefully scrutinize those reports for their adequacy in describing emergency provisions in national law and especially for their description of and justification for any emergency measures actually imposed. In any dialogue with state representatives in the context of report reviews, the treaty implementation body should insist upon receiving adequate information about emergency laws and practices, requesting supplemental reports if necessary. 2. Treaty implementation bodies with the authority to request additional reports from states parties (e.g., the H u m a n Rights Committee u n d e r article 40( 1 )(b) of the International Covenant on Civil and Political Rights; the Secretary-General of the Council of Europe u n d e r article 57 of the European Convention on H u m a n Rights and Fundamental Freedoms) should institute a procedure by which they automatically require a supplemental report, within a reasonable period of time, from any state party which has filed a notice of derogation u n d e r the treaty, or as to which reliable reports from credible sources indicate that the state party is either undergoing a defacto emergency with great consequences for protection of h u m a n rights or has recently substantially increased its use of such measures as detention without trial u n d e r "ordinary" security laws or trial of civilians by military courts. 3. Treaty implementation bodies with report review responsibilities may consider information from sources other than the state party, such as information provided by non-governmental h u m a n rights organiza-

22S

Appendix

tions (NGOs) o r o t h e r intergovernmental organizations (IGOs), a n d media reports. Treaty i m p l e m e n t a t i o n bodies should actively seek o u t such i n f o r m a t i o n and, in particular, should create effective systems of information-sharing with o t h e r IGOs. 4. States parties to treaties requiring formal notification of emergency measures must e n s u r e that their derogation notices include a description of the e m e r g e n c y measures, their expected duration, the provisions of national law being suspended o r invoked and the treaty provisions affected. T h e derogation notice should also include a summary of the facts indicating t h e existence of a public emergency of the necessary magnitude. T h e notice should be provided promptly (generally within a week of t h e imposition of emergency measures) a n d should be regularly u p d a t e d as conditions change. P r o m p t notice of the termination of an e m e r g e n c y should also be made. 5. I m p l e m e n t a t i o n bodies u n d e r treaties r e q u i r i n g notification should develop a p r o c e d u r e by which the depositary of the notices or the h e a d of the i m p l e m e n t a t i o n body scrutinizes derogation notices as they are received and immediately requests t h e state party to cure any deficiencies in the notice. T o assist in this process, the implementation body might consider the creation of a "model" derogation notice that sets o u t defined categories of essential information. 6. Treaty implementation bodies with the authority to hear applications by o n e state party that a n o t h e r state party has breached its treaty obligations in the context of a state of emergency should make full use of their authorized powers to find the facts, including whenever possible on-site visits and e x a m i n a t i o n and cross-examination of all feasible and relevant witnesses. In mediating a friendly settlement between the parties to a contentious case, t h e treaty implementation body should seek m a x i m u m assurances that respect for h u m a n rights will be concretely p r o m o t e d by such settlement. 7. Treaty implementation bodies with jurisdiction to receive individual applications alleging that the terms of the treaty have been breached d u r i n g a state of e m e r g e n c y also should u n d e r t a k e to find the facts as thoroughly as possible. T h e powers of such bodies should be defined so that the individual applicant may submit oral as well as written testimony and pleadings. Provision of legal aid should be m a d e wherever possible. 8. In contentious cases arising out of both inter-state and individual applications, the treaty i m p l e m e n t i n g body should not extend a broad "margin of appreciation" to the derogating state but should make an objective determination w h e t h e r a public emergency as defined in the treaty actually existed, w h e t h e r the measures taken were proportional

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to the emergency and non-discriminatory, whether the proper procedures (under both the treaty and national law) for lawful derogation were followed, and whether any non-derogable rights were violated. 9. Treaty implementing bodies with authority to issue general interpretations or advisory opinions under the treaty should make creative and effective use of this authority to inform the states parties of their obligations under the derogation clauses. B. Other Treaty Implementation Bodies 10. Bodies set up to implement human rights treaties that do not contain an explicit derogation clause should nevertheless be guided in their work by fundamental principles of proportionality and necessity. Such bodies should take note that certain rights are regarded as being non-derogable, including those rights mentioned in the ILA's Paris Minimum Standards of Human Rights Norms in a State of Emergency, Section (C). 11. In construing limitation clauses, treaty implementation bodies should not approve restrictions on rights more severe than would be permitted in time of emergency under derogation clauses. 12. Bodies with authority to undertake on-site investigations of human rights abuses that tend to be associated with states of emergency, such as the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, should be strongly encouraged as a model for preventative measures to reduce the level of human rights abuse, especially in the case of non-derogable rights. Charter O r g a n s a n d Subsidiary Bodies 13. General and parliamentary assemblies of universal and regional inter-governmental organizations should support studies of the impact on human rights of states of emergency, both in specific countries and as a general matter. Adequate resources should be made available for these studies. 14. Inter-governmental assemblies and subsidiary bodies empowered to adopt resolutions concerning human rights practices in specific member states should adopt resolutions condemning human rights violations associated with formal and de facto emergencies whenever credible evidence of such violations is brought to their attention. 15. Programs of advisory services in human rights that include training in the preparation of periodic reports on compliance with human rights treaties should emphasize adequate attention to emergency de-

230

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rogations f r o m treaty obligations. Advisory services aimed at assisting r e f o r m of national laws should include attention to emergency provisions of such laws to e n s u r e consistency with international standards. 16. Ad hoc working g r o u p s or special r a p p o r t e u r s delegated responsibility to e x a m i n e certain types of h u m a n rights abuse and to act on a h u m a n i t a r i a n basis in response to reports of individual instances of such abuse (e.g., disappearance, torture, s u m m a r y execution) should analyze, where possible, the data they have collected to d e t e r m i n e w h e t h e r t h e r e a p p e a r s to be any correlation between the level of abuse and the existence of some type of state of emergency. 17. H u m a n rights bodies with a general authority to issue country reports a n d ad hoc working g r o u p s or special r a p p o r t e u r s delegated authority to study the h u m a n rights situation in particular countries should include, where a p p r o p r i a t e , an analysis of any observed relationship between h u m a n rights abuse in the particular country a n d the existence of some type of state of emergency. In making r e c o m m e n d a tions to the subject country, these bodies should address as a matter of priority compliance with international standards concerning the violation of emergency powers. 18. Initiatives such as that u n d e r t a k e n by the Sub-Commission on the Prevention of Discrimination a n d the Protection of Minorities of the United Nations Commission on H u m a n Rights u n d e r the Economic a n d Social Council resolution 1985/37, to authorize a Special R a p p o r t e u r on States of Emergency, deserve high praise and adequate s u p p o r t services. T h e following aspects of the Special Rapporteur's p r o g r a m m e of work in particular represent a positive model for such undertakings: (1) the initiative shown in g a t h e r i n g data f r o m a wide variety of sources, including governments, o t h e r inter-governmental organizations (such as the derogation notices filed with the Organization of American States), n o n - g o v e r n m e n t a l organizations and the press; (2) the systematic listing of states of emergency proclaimed or terminated; (3) systematic scrutiny of formal derogation notices and requests to the relevant g o v e r n m e n t s f o r additional information; (4) efforts to analyze thoroughly the context and consequences of a particular state of emergency, t h r o u g h exchanges of information with n o n - g o v e r n m e n t a l organizations and the state concerned; (5) efforts to analyze the general p h e n o m e n o n of states of emergency and their relation to respect for h u m a n rights; (6) emphasis u p o n measures to prevent violation of non-derogable rights;

TIM Q u w r n l i n d GukMlna*

231

(7) plans to d e v e l o p m o d e l legal provisions to p r o m o t e c o n t i n u e d respect f o r f u n d a m e n t a l rights d u r i n g states of e m e r g e n c y ; a n d (8) plans to d e v o t e f u r t h e r attention to de facto states of e m e r g e n c y a n d to administrative d e t e n t i o n u n d e r internal security laws without p r o c l a m a t i o n of a n e m e r g e n c y , so as to avoid the potentially negative c o n s e q u e n c e s of an exclusive focus on f o r m a l emergencies.

Non-Governmental Organizations 19. Given t h e variety of N G O s in t e r m s of s t r u c t u r e , m a n d a t e a n d resources, it is n e i t h e r possible n o r desirable to prescribe particular m e t h o d s of work not t h e priority to be given to states of e m e r g e n c y a n d their impact o n h u m a n rights. N G O s t e n d to specialize by region o r by the types of h u m a n rights abuse they seek to expose a n d prevent, a n d this specialization has t h e a d v a n t a g e of e n h a n c i n g t h e d e p t h of inform a t i o n they a r e able to develop, p r o m o t e s l o n g - t e r m work against particular abuses a n d t e n d s to r e d u c e duplication of e f f o r t a m o n g NGOs. 20. N G O s s h o u l d c o n t i n u e to e n h a n c e their collaborative efforts at i n f o r m a t i o n - s h a r i n g a n d the d e v e l o p m e n t of m o r e sophisticated inform a t i o n technology in c o n n e c t i o n with states of emergency. Institutions with r e s o u r c e s f o r issuing grants f o r h u m a n rights work should be e n c o u r a g e d to s u p p o r t collaborative efforts a m o n g N G O s , academic institutions, l e a r n e d societies, a n d I G O s (including the UN's C e n t r e f o r H u m a n Rights) f o r systematic d a t a - g a t h e r i n g a n d analysis of p a t t e r n s of h u m a n rights abuse, including those associated with states of e m e r gency. 21. N G O s s h o u l d c o n t i n u e to provide i n f o r m a t i o n , within the limits of their resources, on a r e g u l a r a n d sustained basis to IGOs m o n i t o r i n g h u m a n rights abuse d u r i n g states of emergency. 22. Established i n t e r n a t i o n a l N G O s should strive to p r o m o t e direct links between relevant I G O m o n i t o r i n g bodies a n d smaller, m o r e localized N G O s which m a y have access to timely a n d accurate i n f o r m a tion o n h u m a n rights a b u s e associated with states of emergency.

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corr. 1 (1978). I N T E R - A M E R I C A N C O M M I S S I O N ON H U M A N R I G H T S , R E P O R T ON T H E S I T U A T I O N OF H U M A N R I G H T S IN P A R A G U A Y , O . A . S . D o c . O E A / S e r . L / V / I I . 7 1 , d o c .

19

rev. 1 ( 1 9 8 7 ) . I N T E R - A M E R I C A N C O M M I S S I O N ON H U M A N R I G H T S , R E P O R T ON T H E S I T U A T I O N OF H U M A N R I G H T S IN SURINAME, O . A . S . D o c . O E A / S e r . L / V / I I . 6 1 , d o c . 6 rev. 1 (1983). INTER-AMERICAN

C O M M I S S I O N ON H U M A N

RIGHTS,

R E P O R T N O . 2 9 / 9 2 o f 2 O C T O B E R 1 9 9 2 , reprinted

REPORT in

N O . 28/92

and

13 H U M . R r s . L.J. 3 3 6

(1992). L A PROTECCIÓN DE LOS DERECHOS H U M A N O S FRENTE A LA SUSPENSIÓN DE LAS GARANTÍAS CONSTITUCIONALES O "ESTADO

DE S I T I O , " O . A . S .

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OEA/

S e r . L / V / 1 1 . 1 5 , d o c . 12 ( 1 9 6 6 ) . I N T E R - A M E R I C A N C O U R T OF H U M A N R I G H T S , A N N U A L R E P O R T OF THE INTERAMERICAN

COURT

OF H U M A N

RIGHTS

1987, O . A . S .

Doc.

OEA/Ser.L/V/

I I I . 1 7 , d o c . 13 ( 1 9 8 7 ) . I N T E R - A M E R I C A N C O U R T OF H U M A N R I G H T S , A N N U A L R E P O R T OF THE INTERAMERICAN

COURT

OF H U M A N

RIGHTS

1988, O . A . S .

Doc.

OEA/Ser.L/V/

I I I . 1 9 , d o c . 13 ( 1 9 8 8 ) .

UN Documents HUMAN RIGHTS COMMITTEE Reports

of the Human

Rights

Committee:

33 U . N . G A O R Supp. ( N o . 40), U . N . Doc. A/33/40 (1978) 34 U . N . G A O R S u p p . ( N o . 40), U . N . D o c . A/34/40 ( 1 9 7 9 ) 35 U . N . G A O R Supp. ( N o . 40), U . N . D o c . A/35/40 ( 1 9 8 0 ) 36 U . N . G A O R Supp. ( N o . 40), U . N . Doc. A/36/40 (1981) 37 U . N . G A O R Supp. ( N o . 40), U . N . Doc. A/37/40 (1982) 38 U . N . G A O R Supp. ( N o . 40), U . N . Doc. A/38/40 (1983) 39 U . N . G A O R Supp. ( N o . 40), U . N . Doc. A/39/40 (1984) 4 0 U . N . G A O R Supp. ( N o . 40), U . N . Doc. A/40/40 ( 1 9 8 5 ) 42 U . N . G A O R Supp. ( N o . 40), U . N . Doc. A/42/40 ( 1 9 8 7 ) 44 U . N . G A O R Supp. ( N o . 40), U . N . Doc. A/44/40 (1989) 45 U . N . G A O R Supp. ( N o . 40), U . N . Doc. A/45/40 (1990) 46 U . N . G A O R Supp. ( N o . 40), U . N . Doc. A/46/40 (1991) 47 U . N . G A O R Supp. ( N o . 40), U . N . Doc. A/47/40 (1992)

Summary

Records

of the Human

Rights

Committee:

U . N . Docs. C C P R / C / S R . 65, 67, 82, 84, 84, 87 ( 1 9 7 8 ) ;

128, 181 ( 1 9 7 9 ) ; 2 6 0

(1980); 308 (1981); 334, 349, 351, 404, 414 (1982); 420, 430, 442, 443, 446, 463, 468, 477 ( 1 9 8 3 ) ; 492, 499, 513, 520, 527, 528, 529, 530, 531, 541, 546, 547, 548 (1984); 575, 599, 603, 604, 6 0 9 ( 1 9 8 5 ) ; 713, 765, 771, 776 (1987); 952, 973, 1062/Add. 1 (1990).

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S E L E C T E D D E C I S I O N S O F T H E H U M A N R I G H T S C O M M I T T E E UNDER T H E O P T I O N A L PROTOCOL VOLUME 2, U . N . D o c . C C P R / C / O P / 2 ( 1 9 9 0 ) .

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Report of the Working Group on the Declaration on the protection of all persons from enforced disappearances, U.N. Doc. E / C N . 4 / 19/Rev. 1 ( 1 9 9 2 ) S u B - C O M M I S S I O N ON PREVENTION OF DISCRIMINATION AND PROTECTION OF M I N O R I T I E S

Study of the implications for human rights of recent developments concerning situations known as states of siege or emergency, U.N. Doc. E / C N . 4 / S u b . 2 / 15 ( 1 9 8 2 ) (Questiaux Report). Explanatory paper on the best way of undertaking the drawing up and updating of a list of countries which proclaim or terminate a state of emergency each year, U.N. Doc. E / C N . 4 / S u b . 2 / 1 9 8 5 / 1 9 (1985). First annual report and list of states which, since 1 January 1985, have proclaimed, extended or terminated a state of emergency, U.N. Docs. E / C N . 4 / S u b . 2 / 1 9 8 7 / 1 9 ( 1 9 8 7 ) and Rev.l ( 1 9 8 8 ) (Despouy Report). Second annual report and list of states which, since 1 January 1985, have proclaimed, extended or terminated a state of emergency, U.N. Docs. E/ C N . 4 / S u b . 2 / 1 9 8 8 / 1 8 and Add.l and Rev.l (1988). Third annual report and list of states which, since 1 January 1985, have proclaimed, extended or terminated a state of emergency, U.N. Docs. E / C N . 4 / S u b . 2 / 1 9 8 9 / 3 0 and A d d . 2 / R e v . l (1989), and Rev.l and Rev.2(1990). Question of human rights and states of emergency, working paper, U.N. Docs. E / C N . 4 / 1 9 9 0 / 3 3 and Add.l ( 1 9 9 0 ) .

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Note verbale dated 14 August 1990 from the Chargé d'affaires a.i. o f the Permanent Mission of El Salvador, U.N. Doc. A/44/971, S/21541 (1990). Central America: Efforts towards Peace, U.N. Doc. S/224494 (1991). Report o f the Secretary-General on the Work o f the Organization, U.N. Doc. A/47/1 (1992). INTERNATIONAL LABOUR ORGANISATION I L O OFFICIAL BULLETIN I L O OFFICIAL BULLETIN

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(Special Supplement), Vol. X L I X , 1966, No. 3. (Special Supplement), Vol. L I V , 1 9 7 1 , No. 2 . Series B , Vol. L X V I , 1983, No. 3. Series B (Special Supplement), Vol. L X V I I , 1984.

R E P O R T O F T H E C O M M I T T E E O F E X P E R T S ON T H E A P P L I C A T I O N O F C O N V E N T I O N S

AND RECOMMENDATIONS, 52nd Session of the International Labour Conference, Report III (Part 4) (1968). R E P O R T O F T H E C O M M I T T E E O F E X P E R T S ON T H E A P P L I C A T I O N O F C O N V E N T I O N S

AND RECOMMENDATIONS (Articles 19, 22, and 35 o f the Constitution), Volume B, 69th Session of the International Labour Conference, Report III (Part 4 B ) (1983). R E P O R T OF T H E C O M M I T T E E OF E X P E R T S

ON T H E A P P L I C A T I O N

OF

CONVEN-

(Articles 19, 22 and 3 5 o f the Constitution), 72nd Session o f the International l a b o u r Conference, Report III (Part 4A) (1986).

T I O N S AND R E C O M M E N D A T I O N S

24«

Bfcünyphy

C O U N C I L OF E U R O P E [ 1 9 5 8 - 5 9 ] Y . B . E U R . C O N V . ON H U M A N R I G H T S [ 1 9 6 9 ] Y . B . E U R . C O N V . ON H U M A N R I G H T S [ 1 9 7 6 ] Y . B . E U R . C O N V . ON H U M A N R I G H T S [ 1 9 7 8 ] Y . B . E U R . C O N V . ON H U M A N R I G H T S [ 1 9 8 5 ] Y . B . E U R . C O N V . ON H U M A N R I G H T S H U M A N R I G H T S INFORMATION SHEET N O .

27, Doc.

H/INF

(91)1 (1991)

R E F O R M OF T H E C O N T R O L S Y S T E M OF T H E E U R O P E A N C O N V E N T I O N ON H U M A N RIGHTS,

reprinted in

14 H U M . RTS. L . J . 3 1

(1993).

S T O C K T A K I N G ON T H E E U R O P E A N C O N V E N T I O N ON H U M A N R I G H T S , T H E F I R S T T H I R T Y YEARS: 1 9 5 4 UNTIL 1 9 8 4 ( 1 9 8 4 ) . S T O C K T A K I N G ON T H E E U R O P E A N C O N V E N T I O N ON H U M A N R I G H T S , S U P P L E M E N T 1988 (1989).

Brannigan and McBride v. U.K., Report of the European Commission of H u m a n Rights, adopted 3 December 1991. E U R O P E A N C O M M I T T E E ON T H E P R E V E N T I O N OF T O R T U R E , P U B L I C S T A T E M E N T ON T U R K E Y ,

reprinted m

14 H U M . RTS. L . J . 4 9 ( 1 9 9 3 ) .

PARLIAMENTARY A S S E M B L Y , T H E S I T U A T I O N OF H U M A N

reprinted in

13 H U M . RTS. L.J. 4 6 4

(1992).

R I G H T S IN T U R K E Y ,

Table of Cases

International Court of Justice Military a n d Paramilitary Activities (Nicar. v. U.S.) (1986), 67, 68

Human Rights Commlttc«. Antonaccio v. Uruguay, C o m m . No. 63/1979 (1981), 105 Baboeram v. Suriname, Comms. Nos. 146/1983 8c 148-154/1983 (1985), 104 Bleier v. Uruguay, C o m m . No. 30/1978 (1982), 104 Buffo Carballal v. Uruguay, C o m m . No. 33/1978 (1981), 100, 101 Campora Schweizer v. Uruguay, C o m m . No. 66/1980 (1982), 4 6 - 4 7 , 102 Conteris v. Uruguay, C o m m . No. 139/1983 (1985), 100, 104 Estrella v. Uruguay, C o m m . No. 74/1980 (1980), 105 Fals Borda v. Colombia, C o m m . No. 46/1979 (1982), 101, 102 Gomez de Voituret v. Uruguay, C o m m . No. 109/1981 (1984), 103 Grille Motta v. Uruguay, C o m m . No. 11/1977 (1980), 100, 101, 103 Landinelli Silva v. Uruguay, C o m m . No. 34/1978 (1981), 9 8 - 1 0 0 , 101 Lopez Burgos v. Uruguay, C o m m . No. 52/1979 (1981), 100 Martinez Machado v. Uruguay, C o m m . No. 83/1981 (1983), 103, 104 Millan Sequeira v. Uruguay, C o m m . No. 6/1977 (1980), 100 Moriana Hernandez Valentini d e Bazzano v. Uruguay, Comm. No. 5/1977 (1979), 31 Muteba v. Zaire, C o m m . No. 124/1982 (1984), 103 Oxandabarat Scarrone v. Uruguay, C o m m . No. 103/1981 (1984), 1 0 3 - 5 Pietraroia v. Uruguay, C o m m . No. 44/1979 (1981), 100, 101, 103 Ramirez v. Uruguay, C o m m . No. 4/1977 (1980), 105 Romero v. Uruguay, C o m m . No. 85/1981 (1984), 104 S.E. v. Argentina, Communication No. 275/1988 (1990), 1 5 4 - 5 5 Salgar de Montejo v. Colombia, C o m m . No. 64/1979 (1982), 101 Soriano de Bouton v. Uruguay, C o m m . No. 37/1978 (1981), 100 Suarez de Guerrero v. Colombia, C o m m . No. 45/1979 (1982), 101 T o u r o n v. Uruguay, C o m m . No. 32/1978 (1981), 100, 105 Valcada v. Uruguay, C o m m . No. 9/1977 (1979), 104 Vasilskis v. Uruguay, C o m m . No. 80/1980 (1983), 103 Weinberger v. Uruguay, C o m m . No. 28/1978 (1980), 100 Weismann v. Uruguay, C o m m . No. 8/1977 (1980), 100, 103

2S0

T a M a o f CaMS

European Commission of Human Rights Brannigan and McBride v. United Kingdom (1991), 194, 195, 1 9 7 - 9 8 Cyprus v. Turkey (I & II) (1976), 149, 194, 1 9 5 - 9 6 , 199, 204 Cyprus v. Turkey (III) (1979), 194, 199 Donnelly v. United Kingdom (1975), 201 France, Norway, Denmark, Sweden and the Netherlands v. Turkey (1985), 198 Greece v. United Kingdom ( 1 9 5 8 - 5 9 ) , 194 "Greek" Case (1969), 10, 195, 197, 201, 204 Ireland v. United Kingdom (1976), 195, 197, 2 0 1 - 2 "Lawless" Case (1960), 195, 197, 201 McGlinchey v. U.K. (1990), 194 Mr. and Mrs. H. and Mr. A. v. Turkey (1992), 200 Sargin and Yagci v. Turkey (1992), 200 Second "Greek" Case (1977), 2 0 0 - 2 0 1

European Court of Human Rights Brogan v. United Kingdom (1988), 7, 41, 4 7 - 4 9 , 196, 197, 202 Fox, Campbell and Hartley v. United Kingdom (1990), 202 Ireland v. United Kingdom (1978), 62 Stocké v. Germany (1991), 2 0 1 - 2

Inter-American Commission on Human Rights Case 9 1 7 8 (Costa Rica) (1984), 187

Inter-American Court of Human Rights Compatibility of Draft Legislation with Article 8(2) (h) of the American Convention on Human Rights, Advisory Opinion OC-12/91 (1991), 190 Fairen Carbi & Solis Corrales Case (1989), 193 Godinez Cruz Case (1989), 193 Habeas Corpus in Emergency Situations (Arts 27(2), 25(1) and 7(6) of the American Convention on Human Rights), Advisory Opinion OC-8/87 (1987), 190, 191 Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 American Convention on Human Rights), Advisory Opinion OC-9/87 ( 1987), 1 9 0 - 9 3 Restrictions to the Death Penalty, Advisory Opinion OC-8/83 (1983), 190 Velasquez Rodriguez Case (1988), 193

National Courts A. D. M. Jabalpur v. Shiv Kant Shukla (1976) (India), 34 Baffour Osei Akoto v. T h e Minister of Interior (re Akoto) (1961) (Ghana), 34 Brind v. Secretary of State for the Home Department (1991) (United Kingdom), 7

Tabi« of C i n i Ex parte Lynch (1980) (Northern Ireland), 4 7 - 4 8 Ex parte Milligan (1867) (United States), 27 Gandhi v. Union of India (1978) (India), 34 H o m e Bldg. 8c Loan Ass'n v. Blaisdell (1934) (United States), 27 Leon v. Gubernik (1948) (Israel), 6 Liversidge v. Anderson (1941) (United Kingdom), 44 Prize Cases (1862) (United States), 27 R. v. H o m e Secretary, Ex parte Greene (1941) (United Kingdom), 44 Ziv v. Tel Aviv District Commissioner (1948) (Israel), 6

251

Index

A b o Akademi University Institute f o r Human Rights, 71 Ad hoc investigations, 108, 115, 116, 119, 122, 124, 126-51, 186,211

Argentina, 31, 33, 34, 35, 37, 80, 85, 114, 116, 122, 123, 124-25, 149, 152, 154-55, 156, 157, 163, 176, 181, 182, 184, 186, 188,215

Ad hoc legal regimes, 11-14

Aristide, Jean-Bertrand, 14, 147-48, 189

Administrative detention, 17, 21, 27, 29,

Armenia, 161

34, 36, 38-49, 69, 79, 80, 86, 102, 164-66, 174, 176, 196, 197,224. See also Arbitrary detention

Association o f International Consultants on H u m a n Rights, 7 8 - 7 9 , 216 Asylum, 39, 204. See also R e f u g e e s

Advisory opinions, 4 3 - 4 4 , 190-93

A u n g San Suu Kyi, 166

Advisory services, 8 0 - 8 1 , 115, 132-35,

Australia, 34

138, 147-48 Afghanistan, 12, 14, 87, 91, 104, 122, 126, 127, 138, 142-44, 161, 177

Austria, 133, 149 Avril, General Prosper, 14, 147-48, 180 Azerbaijan, 90, 173

Albania, 120, 122 Alexander, George, 34

Bahrain, 35

Algeria, 25, 90

Bangladesh, 17,33

Allende, Hortensia, 215

Benin, 120

Alston, Philip, 175, 176

Bhutto, Benazir, 29

American Convention on H u m a n Rights,

Body o f Principles f o r the Protection o f

8, 4 2 - 4 4 , 50, 5 4 - 6 6 , 68, 69, 70,

All Persons under A n y Form o f

73, 74, 76, 136, 178-93. See also

Detention or Imprisonment, 45,

Organization o f American States American Declaration on the Rights and Duties o f Man, 185, 187

162, 165 Bolivia, 127, 136-38, 158, 179 Bosnia-Herzegovina, 160, 166-68, 172

Americas Watch, 210, 222

Boutros-Ghali, Boutros, 177

Amnesty International, 4, 7, 12, 15, 16,

Braunschweig, A n d r e , 147

74, 113-14, 130, 135, 152, 175,

Brazil, 22, 42, 65, 137, 187

177, 1 7 9 , 2 1 6 , 2 1 7 , 2 2 0 - 2 2

Brookfield, F. M „ 16

Amparo, 89, 162, 174, 190-93

Brunei, 16

Angola, 7

Buergenthal, T h o m a s , 208

A q u i n o , Corazon, 150

Bulgaria, 81, 137, 143, 206

Arbitrary detention, 38, 42, 46, 64, 65,

Burkina Faso, 160

94, 102, 154, 164-66, 224. See also Administrative detention; United Nations Commission on H u m a n Rights, Working G r o u p on Arbitrary Detention

Cambodia, 149-50, 170 United Nations Transitional Authority in Cambodia ( U N T A C ) , 150, 177 Cameroon, 86, 113

2S4

Indn

Canada, 34, 206, 209 Charter of Paris for a New Europe, 208 Chile, 22, 29, 31, 42, 54, 58, 65, 8 7 - 8 8 , 91, 110-11, 112, 113, 125, 1 2 7 32, 157, 158, 180, 181, 184, 185, 188,215 Ad hoc Working G r o u p on the Situation of H u m a n Rights in Chile, 88, 125, 1 2 7 - 3 0 Chicago Commission on Inquiry into the Status of H u m a n Rights in Chile, 130 Expert on the Question of the Fate of Missing and Disappeared Persons, 128 National Commission on T r u t h and Reconciliation, 157, 158 Special R a p p o r t e u r on the Impact of Foreign Economic Aid and Assistance on Respect for H u m a n Rights in Chile, 1 2 7 - 2 8 Special R a p p o r t e u r on the Situation of H u m a n Rights in Chile, 88, 1 2 8 32, 137 United Nations Trust Fund, 128 Chilean H u m a n Rights Commission, 130 China, 15, 35, 113, 150, 151 Chowdhury, Subrata Roy, 3, 25, 33, 34, 72, 75 Collective rights, 37, 150 Colombia, 101, 102, 113, 126, 157, 158, 161, 163, 180, 181-82, 184 Colville of Culross, Viscount, 1 3 4 - 3 5 Committee Against Torture, 112-14, 129, 163, 164. See also Convention Against T o r t u r e and O t h e r Cruel, I n h u m a n or Degrading T r e a t m e n t or Punishment Comoros, 164 Conference on Security and Cooperation in Europe, 2 0 6 - 9 Committee of Senior Officials, 2 0 8 - 9 C o p e n h a g e n Document, 2 0 6 - 9 Moscow Document, 2 0 6 - 9 Consistency, principle of, 55, 5 9 - 6 0 , 224 Convention Against T o r t u r e and O t h e r Cruel, I n h u m a n or Degrading T r e a t m e n t or Punishment, 1 1 2 14, 163. See also Committee Against T o r t u r e Convention on the Rights of the Child, 76

Costa Rica, 30, 128, 190 Council of Europe, 40, 52, 53, 98, 193, 198, 200, 203, 204, 205, 209. See also E u r o p e a n Convention for the Protection of H u m a n Rights and Fundamental Freedoms Committee of Ministers, 52, 53, 194. 198, 199, 200, 2 0 3 - 4 European Commission of H u m a n Rights, 1,6, 10, 43, 48, 58, 68, 149, 179, 186, 193-201, 2 0 2 - 5 . 210 European Court of H u m a n Rights, 7, 4 3 , 4 7 , 5 8 , 6 2 , 6 8 , 196, 197,200, 2 0 1 - 3 , 206, 209, 210 Parliamentary Assembly, 204—5 Secretary-General, 40, 52, 59, 169, 198 Croatia, 160, 167, 172 Cuba, 127, 141, 151, 185 Curfew, 89, 172 Customary international law, 52, 59, 6 6 68, 73, 81, 145, 185, 222, 224 Cyprus, 12, 149, 157, 158, 195, 196, 199, 203, 204 Czechoslovakia, 142, 205 Daes, Erica-Irene, 173-74 Dahomey, 25 De facto emergencies, 1, 9, 11-22, 45, 116, 120, 126, 132, 135, 159, 166, 169, 170-73, 206, 207, 213 De jure emergencies, 8—11, 13, 120, 132, 166, 206 Death penalty, 7 3 - 7 5 , 190 Declaration on the Elimination of All Forms of Intolerance and of Dis^ crimination Based on Religion and Belief, 164 Declaration on the Protection of All Persons from Enforced and Involuntary Disappearances, 116, 153, 216 Decolonization, 16 Deportation, 5, 64, 183, 188 Derogation notices, 196 Despouy, Leandro, 12, 37, 80, 216 Dhanabalan, Suppiah, 16 Dieye, Abdoulaye, 128 Diplock Commission, 32 Disappearances, 36, 116-17, 128, 15258, 186, 187, 191, 196 Dominican Republic, 96, 187 Draft Guidelines for the Development of

Index Legislation on States of Emergency, 56, 75, 78, 172 Due process, 36, 41, 6b, 81. 102-3, 184, 188, 192 Dunant, Henri, 218 East Timor, 120, 160, 163, 170 Ecuador, 42, 65 Egypt, 4, 35, 91 El Salvador, 14-15, 42, 58, 65, 91, 126, 127, 138—40, 144, 180, 181, 188, 189, 221 Special Representative of the UN Commission on H u m a n Rights, 138-40 United Nations Observer Mission in El Salvador (ONUSAL), 138-39, 177 Equatorial Guinea, 122, 123, 127, 13233 Ermacora, Felix, 12, 14, 142-44, 149, 195, 197 Ethiopia, 122, 123, 172, 219 European Committee for the Prevention of Torture and I n h u m a n or Degrading Treatment or Punishment, 163, 164, 199, 200 European Community, 168, 206, 209 European Convention for the Prevention of Torture and I n h u m a n or Degrading Treatment or Punishment, 163, 200 European Convention for the Protection of H u m a n Rights and Fundamental Freedoms, 6, 7, 10, 35, 4 0 - 4 1 , 43, 4 7 - 4 9 , 50, 5 2 - 5 4 , 5 5 - 6 6 , 68, 74, 193-206. See also Council of Europe Evans, Sir Vincent, 91 Ex post facto laws, 43, 54, 65, 68, 86, 101 Executive authority (in emergencies), 5, 16, 2 4 - 2 7 , 2 9 - 3 5 , 3 8 - 3 9 , 43, 78, 7 9 - 8 0 , 85, 86, 172, 201 Exile, 111 Fair trial, 33, 39, 40, 41, 42, 44, 46, 47, 51, 54, 64, 69, 7 6 - 7 7 , 80, 102-5, 112, 145, 159, 165, 166, 174, 184, 224 Falklands, 157 Farer, Tom J., 184 Fiji, 16 Finland, 167

2S5

Foli, Jonas K. D., 122 Force majeure, 108, 110, 112 France, 3, 2 3 - 2 7 , 31, 39, 41, 53, 54, 62, 64 Freedom of association, 37, 53, 64, 65, 80, 91, 106-12, 165, 175 Freedom of Association and Right to Organize Convention (No. 87), 107, 109-10 Freedom of expression, 36, 37, 42, 53, 64, 75, 8 1 , 9 1 , 103, 110, 145, 165, 174, 175, 184, 204 Freedom of thought, conscience and religion, 20, 36, 42, 53, 54, 64, 65, 80, 145, 165, 175 Fretilin, 160 Fujimori, Alberto, 172 Gabon, 123, 133, 171 Gasser, Hans-Peter, 67, 70, 72, 73, 74, 221 - 2 2 ; Code of Conduct, 71 - 7 7 Gemalmaz, Mehmet Semih, 4 - 5 Geneva Conventions of 1949, 50—52, 57, 60, 67, 68, 74, 75, 159, 218; Additional Protocol 1 of 1977, 76; Additional Protocol II of 1977, 5 1 52, 57, 7 3 - 7 4 , 75, 76, 77, 218 Germany, 3, 24, 135, 205 Ghana, 34 Good faith, 55, 59 Good offices, 138, 143, 175, 199 Greece, 10, 33, 106-7, 108, 109-10, 118, 195, 196,200, 2 0 3 - 4 , 221 Gros Espiell, Hector, 135, 137 Grossman, Claudio, 210 Guatemala, 81, 108, 126, 127, 133-36, 158, 181, 186, 187, 190 Guest, Iain, 33, 37, 116, 121, 122, 12425, 134, 135, 149, 152, 177, 215 Guinea, 91 Habeas corpus, 27, 34, 4 3 - 4 6 , 79, 105, 116, 158, 162, 171, 174, 190-93 Hadden, Tom, 23 Haiti, 14, 79, 80, 108, 118, 120, 122, 127, 147-48, 180, 183, 184, 188, 189 Hate speech, 75 Haysom, Nicholas, 19 Higgins, Rosalyn, 86, 89, 9 3 - 9 4 , 96 Hitler, Adolf, 2 Honduras, 156, 193

2S4

Indu

H u m a n Rights Committee, 1, 6, 8, 12, 31, 37, 43, 46, 57, 58. 64, 68, 70, 8 2 - 1 0 5 , 113, 124, 130, 142, 143, 1 5 4 - 5 5 , 179, 186, 187, 188, 195, 205, 211. See also International Covenant on Civil and Political Rights H u m a n Rights Information and Documentation System, 2 1 7 - 1 8 H u m a n Rights Internet, 217 Humanitarian intervention, 124, 176-77 Humanitarian law, 5 1 - 5 2 , 57, 5 9 - 6 0 , 67, 68, 72, 74, 76, 135-36, 140, 143, 159, 167, 183, 196, 2 1 8 - 2 2 . See also Geneva Conventions of 1949 Humphrey, J o h n , 117 Hungary, 205, 220 Incommunicado detention, 36, 39, 103, 159, 162, 191 India, 34, 161 Indonesia, 120, 163 International Commission of Jurists, 5, 17,30, 3 2 , 3 4 , 3 7 , 3 8 , 4 6 , 7 1 , 7 5 , 7 7 , 7 8 , 130, 1 7 6 , 2 1 4 - 1 7 , 2 2 1 International Committee of the Red Cross, 51, 71, 72, 129, 140, 157, 199,218-22 International Convention against the Recruitment, Use, Financing and Training of Mercenaries, 164 International Court of Justice, 67, 68 International Covenant on Civil and Political Rights, 6, 8, 35, 36, 39, 4 0 43, 47, 5 2 - 6 4 , 68, 6 9 - 7 0 , 72, 74, 75, 8 2 - 1 0 5 , 116, 128, 133, 1 3 5 36, 141, 143-44, 145, 148, 1 5 4 55, 159, 169, 172, 191, 207 (See also H u m a n Rights Committee); Optional Protocol, 83, 9 8 - 1 0 5 , 124, 1 5 4 - 5 5 International Covenant on Economic, Social a n d Cultural Rights, 54, 111, 145 International Labour Organisation, 1 0 6 12, 130, 205 Committee of Experts on the Application of Conventions and Recommendations, 107-10, 112 Committee on Freedom of Association, 106-8, 112

Constitution, 107, 108 Fact-Finding and Conciliation Commission, 106-8, 111, 112, 130 International Labour Conference, 106-8 International Law Association, 2 - 3 , 71, 73,217 Committee on the Enforcement of H u man Rights Law, 2 - 2 1 , 24, 223, 224 Paris Minimum Standards of H u m a n Rights N o r m s in a State of Emergency, 3, 7 1 - 7 7 , 78 Queensland Guidelines for Bodies Monitoring Respect for H u m a n Rights During States of Emergency, 3, 224, 2 2 7 - 3 1 International League for H u m a n Rights, 216 Internment, 6 Investigatory detention, 6 Iran, 12,86, 8 7 , 9 1 , 9 2 , 108, 127, 138, 145-46, 156, 157, 160 Iraq, 12, 21, 87, 94, 124, 127, 150-51, 157, 176 Ireland, 40, 61, 195, 197 Israel, 5 - 6 , 13, 14, 16, 62, 131, 170 Italy, 53 J a m m u and Kashmir, 17, 161 Japan,123 Joinet, Louis, 3 8 - 3 9 , 165, 166, 174 J o r d a n , 5, 13, 35, 9 1 - 9 2 Judiciary (role in emergencies), 7, 2 7 - 2 8 , 3 1 - 3 4 , 3 8 - 4 9 , 51, 56, 79, 85, 135, 174, 177, 190-93, 196, 197-98, 207 Jus cogens, 60, 6 7 - 6 8 , 145 Kenya, 17 K h m e r Rouge, 149 King, Rodney, 172 Kooijmans, Peter, 125, 162-64 Korea, 171 Kurds, 150, 157, 176 Kuwait, 3 0 , 3 2 , 150-51, 171 Lallah, Rajsoomer, 128 Latin American Federation of Associations of Relatives of Disappeared Detainees (FEDEFAM), 216

Index Lebanon, 1 3 - 1 4 , 8 7 , 9 1 , 156, 157, 170 Legislature (role in emergencies), 2 5 - 2 8 , 2 9 - 3 1 , 4 4 , 5 6 , 7 8 - 8 0 , 85, 172,207 Lex lata, 67 Liberia, 21, 159, 171 Libya, 92, 160 Lieber Code, 27 Lillich, Richard, 3 Lincoln, Abraham, 2, 27 Lobel, Jules, 27 Madagascar, 86 Malawi, 123 Malaysia, 4, 17-18, 123 Maldives, 164 Mali, 171 Margin of appreciation, 61, 195, 197, 198, 202 Martial law, 4, 13, 15, 26, 27, 3 1 - 3 2 , 33, 44, 89, 107, 108, 112, 136, 141, 160, 170, 199, 204. See also Military courts Martins, Daniel Hugo, 5 4 - 5 6 , 6 4 - 6 5 , 70, 78, 80, 1 7 8 - 7 9 Matarollo, Rodolfo, 215 Mauritania, 21, 171, 172 Mauritius, 128 Mazowiecki, Tadeusz, 167 McCarthy, James, 212, 214 McGoldrick, Dominick, 84, 86, 90, 93 Mendez, J u a n , 210 Merino, Eduardo, 71 Meron, T h e o d o r , 55, 60, 67, 68, 72, 74 Mexico, 42, 154, 158, 181 Military courts, 5 , 2 5 , 3 1 - 3 2 , 47, 69, 79, 97, 102-3, 131, 158, 160, 184, 197. See also Martial law Minorities, 40, 61, 75, 81, 94, 141, 164, 207 Miskito, 182 Model emergency laws, 50, 77—81, 172, 216 Morocco, 25, 123 Mozambique, 123, 221 Myanmar, 35, 120, 123, 126, 127, 161, 170 Nagorno-Karabakh, 90, 161 Najibullah, M o h a m m e d , 144 Namibia, 7 9 - 8 0 , 171 Namphy, General Henri, 180

2S7

Natural disaster, 8, 10, 21, 5 6 - 5 8 , 80 Ndiaye, Bacre Waly, 159 Nepal, 161 Netherlands, 86, 125, 133 New Zealand, 34 Newman, Frank, 118 Nicaragua, 3 2 - 3 3 , 7 9 - 8 0 , 81, 89, 112, 154, 164, 180-84, 188, 189 Non-derogable rights, 11,21, 3 5 - 3 6 , 38, 3 9 - 4 3 , 51, 5 3 - 5 5 , 6 0 - 6 2 , 6 3 - 6 6 , 6 8 - 7 0 , 7 1 - 7 7 , 78, 80, 86, 90, 92, 94, 95, 96, 101, 113, 116, 136, 151, 152, 170, 171, 172, 174, 185, 188, 190-93, 200, 214, 222, 224 Non-discrimination, 53, 55, 61—63, 75, 80, 97, 171, 207 Non-governmental organizations, 30, 39, 6 8 - 6 9 , 71, 7 8 - 7 9 , 80, 87, 9 5 - 9 6 , 118, 121, 124, 126, 129, 133, 135, 143, 146, 150, 152, 153-55, 166, 169, 171-73, 179, 1 8 7 , 2 0 7 , 2 1 0 22 North Korea, 20 Northern Ireland, 6 - 7 , 30, 32. 40, 4 7 49, 61, 195-98, 2 0 1 - 3 , 217 Notification and proclamation, 1, 6 - 9 , 49, 55, 5 8 - 5 9 , 87, 9 1 - 9 3 , 95, 9 6 97, 99, 102, 143, 145, 196, 197, 198, 202 Occupied territories, 5 - 6 , 16, 127, 161, 170,214 Opsahl, Torkel, 9 2 - 9 3 Orentlicher, Diane, 2 1 1 , 2 1 3 , 2 1 4 - 1 5 Organization of American States, 5 4 - 5 5 , 57, 78, 148, 163, 178, 181, 189. See also American Convention on H u m a n Rights Charter, 1 7 8 - 8 0 General Assembly, 182, 189 Inter-American Commission on Human Rights, 1,5, 10, 14, 15,29, 31, 33, 35, 4 2 - 4 4 , 5 4 - 5 5 , 56, 58, 6 4 - 6 6 , 68, 70, 78, 105, 122, 130, 133, 164, 178-89, 191, 193, 195, 196,210,211 Inter-American Council of Jurists, 54, 58 Inter-American Court of H u m a n Rights, 4 3 - 4 4 , 68, 154, 179, 1 9 0 93,210

258

htdn

Inter-American Juridical Committee, 185 P e r m a n e n t C o u n c i l , 42, 54, 179, 180, 183 S e c r e t a r y - G e n e r a l , 59, 169 O s l o S t a t e m e n t o n N o r m s a n d Proc e d u r e s in T i m e s of Public E m e r g e n c y o r I n t e r n a l Violence, 71, 78 Pakistan, 17, 2 9 , 3 1 - 3 2 , 35, 120, 123, 125, 143, 151, 161 P a n a m a , 8 7 , 181 P a r a g u a y , 4, 5, 19, 22, 120, 122, 1 2 5 - 2 6 , 168, 178, 185 Pascal-Trouillot, E r t h a , 180 Perez d e C u e l l a r , Javier, 122 P e r u , 3 3 , 3 5 , 5 7 , 84, 9 0 , 92, 9 4 - 9 5 , 126, 157, 158, 172, 186, 187, 193 P h i l i p p i n e s , 6 4 , 79, 120, 150, 157, 158, 161, 163 P i n o c h e t , A u g u s t o , 130, 158 P o l a n d , 8 8 , 8 9 , 93, 1 0 6 - 7 , 1 1 0 - 1 1 , 127, 1 4 0 - 4 2 , 167, 2 0 6 P r a d o Vallejo, J u l i o , 91, 94 P r i s o n e r s of conscience, 166 P r i s o n e r s of war, 51, 143, 159 P r o p o r t i o n a l i t y , p r i n c i p l e of, 37, 43, 55, 6 0 - 6 1 , 6 9 , 96, 1 0 1 - 3 , 171, 212, 224 Punjab, 16-17 Q u e e n ' s University, Belfast, 4, 96, 173, 217 Q u e s t i a u x , Nicole, 3, 2 1 - 2 3 , 24, 25, 3 0 31, 35, 3 8 , 7 0 - 7 2 , 74, 75, 77, 78, 168, 173 R a b u k a , C o l o n e l Sitiveni, 16 R e f u g e e s , 39, 143, 144, 165 R e p r e s s i o n , 9, 2 0 - 2 1 , 2 4 , 50 Right of family, 4 2 , 61, 65, 76, 159 Right to d e v e l o p m e n t , 3 7 Right to life, 3 5 , 37, 42, 43, 51, 54, 64, 65, 6 8 , 7 3 - 7 5 , 80, 94, 101, 145, 153, 159, 184, 187 Right to O r g a n i z e a n d Collective Barg a i n i n g C o n v e n t i o n (No. 98), 107, 109-11 R o m a n i a , 127, 141 Roosevelt, E l e a n o r , 6 0

Rossiter, C l i n t o n , 2, 13, 22, 28 R u l e of law, 44, 134, 135, 183, 1 9 1 - 9 2 , 207 Russia, 30, 173 S e l f - d e t e r m i n a t i o n , 37, 122, 144 S e n d e r o L u m i n o s o , 157 S e n e g a l , 128, 151 S e p a r a t i o n of powers, 2 9 - 3 5 , 1 9 2 - 9 3 Servicio Paz y Justicia (SERPAJ), 2 1 3 - 1 4 Severity, p r i n c i p l e of, 8, 1 1, 5 5 - 5 8 , 60, 92, 96, 9 9 - 1 0 1 , 2 1 2 , 2 2 4 Singapore, 15-18 Siracusa Principles on t h e Limitation a n d D e r o g a t i o n Provisions of t h e Intern a t i o n a l C o v e n a n t o n Civil a n d Political Rights, 6 8 - 7 0 , 72 Slavery, 4 3 , 54, 63, 68, 8 0 Somalia, 120, 151 Somoza, Anastasio, 183 S o u t h Africa, 16, 19, 34, 35, 81, 85, 127, 131, 161, 1 7 0 - 7 1 , 220, 221 Soviet U n i o n , 90, 119, 125, 127, 137, 143, 152, 161, 173, 206, 2 2 0 Special R a p p o r t e u r o n States of Emergency, 12, 16, 2 0 - 2 1 , 4 5 - 4 6 , 7 8 79, 80, 85, 115, 1 6 8 - 7 3 , 2 1 1 , 2 1 2 . See also U n i t e d N a t i o n s C o m m i s sion o n H u m a n Rights, S u b C o m m i s s i o n o n P r e v e n t i o n of Discrimination a n d P r o t e c t i o n of Minorities Sri Lanka, 35, 91, 123, 1 5 7 - 5 8 State of siege, 1, 3, 10, 13, 15, 2 3 - 2 6 , 28, 29, 31, 35, 55, 80, 85, 87, 100, 114, 122, 125, 130, 140 Stroessner, Alfredo, 5 S u d a n , 92, 120 S u m m a r y a n d a r b i t r a r y e x e c u t i o n , 35, 154, 157, 1 5 9 - 6 1 , 163, 167, 184 S u r i n a m e , 91, 1 0 3 - 4 , 179, 184, 188 Switzerland, 219, 2 2 0 Syria, 35, 91 T a i w a n , 15, 19 T a n z a n i a , 119 T a r n o p o l s k y , Walter, 9 3 T e r m i n a t i o n of e m e r g e n c i e s , 173, 208, 223 Territoriality, 56

Indù Terrorism, 6 - 7 , 32, 4 7 - 4 9 , 88, 134, 144, 146, 161, 176, 181, 182, 194, 196,

202 Texier, Philippe, 14, 147 Thailand, 30, 171 T i b e t , 151-52 T i m e r m a n , Jacobo, 3 4 - 3 5 T o g o , 86, 171 Tolley, Howard, 1 16-26 Tomuschat, Christian, 135, 204 rontons Macoutes, 122 Torture, 12, 20, 32, 35-37, 51, 63, 64, 6 8 , 8 0 , 9 4 , 101, 109, 112-14, 130, 131, 153, 157, 162-64, 184, 200, 202, 215 Treat, William, 174

259

Special Rapporteur on Mercenaries, 152, 164 Special Rapporteur on Religious Intolerance, 152, 164 Special Rapporteur on Torture, 113, 125, 152, 160, 162-64, 167 Working G r o u p on Arbitrary Detention, 38, 152, 160, 164-66 Working G r o u p on Enforced o r Involuntary Disappearances, 1 5 2 58, 163, 175, 187, 216 Economic and Social Council ( E C O S O C ) , 39, 74, 83, 115-22, 126, 152, 159-60, 166 Emergency Relief Coordinator, 150 General Assembly, 53, 62, 83, 88, 104,

Trinidad and T o b a g o , 86

116, 126, 129, 131, 134, 136, 137,

Tunisia, 25, 89

138, 139, 142, 146, 148, 149, 153,

Turk, Danilo, 166, 173, 174 Turkey, 4 - 5 , 12, 22, 35, 108, 110-12,

164 Secretary-General, 59, 92, 95, 119,

120, 149, 157, 195, 196, 198-200,

122, 133, 136, 138, 139, 141-43,

203, 204

145, 149, 151, 152, 176-77

Turku/Ábo Declaration o f Minimum Humanitarian Standards, 71, 73—77

Security Council, 142, 150, 167, 17677, 206, 224 Sub-Commission on Prevention o f Dis-

Uganda, 14, 123, 125 Unconsented medical experimentation, 64,68

crimination and Protection o f Minorities, 8, 18, 21, 23, 30, 35, 36, 3 8 - 3 9 , 46, 70, 78, 115, 117-26,

Underdevelopment, 21, 86

127, 131, 136-37, 142, 149, 150-

United K i n g d o m , 3, 4, 6, 7, 13, 16, 22,

51, 152, 153, 168-74, 180, 2 1 1 -

23, 2 6 - 2 7 , 28, 30, 32, 34, 36, 39,

13, 216. See also Special Rappor-

40, 41, 44, 4 7 - 4 9 , 53, 54, 6 2 - 6 4 ,

teur on States o f Emergency

92, 113-14, 166, 1 9 5 - 9 8 , 2 0 1 - 2 United Nations, 12, 37, 52, 56, 82, 83, 92, 115, 116, 121, 134, 135, 136, 138, 139, 170, 177, 178, 209,211 Centre for Human Rights, 22, 80, 81, 169, 173, 174,211 Charter, 62 Commission on Human Rights, 12—13, 14, 15, 45, 53, 56, 60, 6 2 - 6 3 , 64, 81, 113, 115-68, 170, 172, 180, 205, 211 Resolution 1503 procedure, 115,

United Nations Educational, Cultural and Scientific Organization ( U N E S C O ) , 175-76,211 United States, 22, 23, 2 6 - 2 8 , 30, 34, 39, 4 1 , 4 2 - 4 3 , 5 3 , 6 5 , 8 1 , 8 7 , 123, 136, 141, 166, 172, 187, 206, 209,

220 Universal Declaration o f Human Rights, 40, 52, 111, 116, 145, 174 Uruguay, 22, 31, 4 6 - 4 7 , 54, 58, 92, 9 8 105, 120, 122, 123, 135, 137, 163, 186, 188, 1 9 2 , 2 1 3 - 1 4

116-26, 132, 137, 141, 142, 147, 153, 155, 168, 175, 176, 211, 213 Special Rapporteur on Extrajudicial, Summary and Arbitrary Execu-

Venezuela, 123 Vietnam, 87, 149-50, 221 Volio Jimenez, Fernando, 128-31

tions, 103-4, 120, 152, 159-61, 163, 165, 167

Wako, Amos, 159

2*0

Index

War, 8, 10, 12, 21, 22, 24, 25, 36, 39, 43,

World War I I , 25, 4 1 , 4 4

5 1 - 5 2 , 5 5 - 5 7 , 60, 63, 72, 73, 80, 8 7 , 9 4 , 112, 136, 142, 145, 157, 177, 183, 199, 206, 218, 220, 222 Weimar Germany, 2 3 - 2 4 Weissbrodt, David, 118, 120, 122, 126, 130, 133, 142, 146, 147, 151, 152,

Yeltsin, Boris, 30 Yemen, 86, 108 Yugoslavia, 84, 9 4 - 9 5 , 160, 166-68, 177, 206,209

165,212,214,215,223 Western Sahara, 170

Zaire, 32, 120

Whitaker, Benjamin, 123

Zambia, 85,91

World War I, 2 5 - 2 6

Zimbabwe, 16

Procedural Aspects of International Law Series Richard B. Lillich. Editor (1964-1977) Robert Kogod Goldman. Editor (1977-)

(Asterisks denote volumes published by the University of Pennsylvania Press.)

1. Richard B. Lillich. International Claims: Their Adjudication by National Commissions. 1962 2. Richard B. Lillich and Gordon A. Christenson. International Claims: Their Preparation and Presentation. 1962 3. Richard A. Falk. The Role of Domestic Courts in the International Legal Order. 1964 4. Gillian M. White. The Use of Experts by International Tribunals. 1965 5. Richard B. Lillich. The Protection of Foreign Investment: Six Procedural Studies. 1965 6. Richard B. Lillich. International Claims: Postwar British Practice. 1967 7. T h o m a s Buergenthal. Law-Making in the International Civil Aviation Organization. 1969 8. J o h n Carey. UN Protection of Civil and Political Rights. 1970 9. Burns H. Weston. International Claims: Postwar French Practice. 1971 10. Frank Griffith Dawson a n d Ivan L. Head. International Law, National Tribunals, and the Rights of Aliens. 1971 11. Ignaz Seidl-Hohenveldern. The Austrian-German Arbitral Tribunal. 1972 12. Richard B. Lillich and Burns H. Weston. International Claims: Their Settlement by Lump Sum Agreements. 1975 13. Durward V. Sandifer. Evidence Before International Tribunals (Revised Edition). 1975 14. Roger Fisher. Improving Compliance with International Law. 1981 15. Richard B. Lillich and Burns H. Weston, eds. International Claims: Contemporary European Practice. 1982 16. Frederic L. Kirgis.Jr. Prior Consultation in International Law: A Study of State Practice. 1983 17. David Harris. The European Social Charter. 1984 18. Richard A. Falk. Reviving the World Court. 1986 * 19. J o a n Fitzpatrick. Human Rights in Crisis: The International System for Protecting Rights During States of Emergency. 1994

This book was set in Baskerville and Eras typefaces. Baskerville was designed by J o h n Baskerville at his private press in Birmingham, England, in the eighteenth century. T h e first typeface to depart from oldstyle typeface design, Baskerville has more variation between thick and thin strokes. In an effort to insure that the thick and thin strokes of his typeface reproduced well on paper, J o h n Baskerville developed the first wove paper, the surface of which was much smoother than the laid paper of the time. T h e development of wove paper was partly responsible for the introduction of typefaces classified as modern, which have even more contrast between thick and thin strokes. Eras was designed in 1969 by Studio Hollenstein in Paris for the Wagner Typefoundry. A contemporary script-like version of a sans-serif typeface, the letters of Eras have a monotone stroke and are slightly inclined. Printed on acid-free paper.