Under international and national laws, the state may restrict most human rights if those rights are subject to limitations already or they are deemed “derogable" rights. When rights are subject to limitations, they may be only restricted further if the following conditions are met:

1. Legality,

2. Legitimacy,

3. Proportionality, and

4. Necessity.

The principle of legality is met if the restriction is set out in clear and accessible law. The other conditions are met if the restriction serves a legitimate aim, is no more than necessary to meet that aim, and the measures are proportionate to that aim. For example, freedom of expression is guaranteed in the European Union and the United Kingdom under article 10 of the European Convention on Human Rights (ECHR). However, speech may be restricted if it threatens national security, such as incitement to terrorism. It is argued that this is a legitimate restriction because terrorism is never acceptable: it is reproduced through speech via its underpinning ideology. A danger arises when speech is restricted arbitrarily without set criteria, resulting effectively in the criminalisation of speech and encroachment of other rights.

PROPORTIONALITY

A state that issues a state of emergency to combat terrorism and thereby limits human rights may be doing so because it is strictly necessary to combat the threat but it also needs to be proportionate to the threat. The proportionality of the measure must be gauged consistently with the magnitude of the emergency, in this case the threat to national security. In countries like Iraq, which experienced one fifth of all terrorist attacks in the world in 2017, it may be proportionate for it to take more restrictive measures on speech if that will help target terrorism. On the other hand, the restriction of speech and criminalisation of such speech would not be proportionate if the risk on national security in an area are minimal. In relative terms, the United Kingdom faced 8% of total terrorist attacks in 2017. Secondly, a state may derogate from its obligations entirely during a state of emergency, but this decision may not be made unilaterally but rests on the international bodies that supervise the implementation of human rights by states.

NECESSITY

A state’s derogation from its human rights obligations must meet a high threshold of necessity due to a state of emergency. The European Court of Human Rights (ECtHR) has held that the life of the nation must be threatened. This cannot be based on the predictions of a future attack. The challenge with derogation of one right is that there must still be consistency with other human rights obligations and the derogation cannot affect other treaty or customary international law obligations. This was tested in two ECtHR cases, Ireland v UK (1980) and Brogan v UK (1998). The factual background in Ireland was that the Irish Republican Army (“IRA”) attacks in 1975 caused thousands of deaths and destruction of property. As a response, the Northern Ireland government started detaining suspected terrorists extrajudicially and using cruel and inhumane interrogation techniques. Some of the detainees were held incommunicado for several days without arrest and the ECtHR found that this did not breach Art. 5 because an emergency allowed for such derogation. Further, in Brogan v UK, the four applicants were also detained due to suspicion of terrorism and were held incommunicado for up to six days without being arrested or being brought to a court. The ECtHR found again that this was carried out under a police investigation in good faith and, therefore, there was no breach of article 5 rights. The threshold seems to be lowered as 18 years pass from Ireland v UK to Brogan v UK.

Overall, there needs to be a very high threshold for derogation in the first place for states to limit their appeal to states of emergency, and once there is a derogation for there to be close supervision by the treaty bodies on that state’s application of derogation. 

NON-DEROGABLE RIGHTS

States have tried to justify torture, ill treatment, and extra-judicial killings to combat the national security threat. For example, US Department of Justice (“DOJ”) justifying torture through what was termed “enhanced interrogation techniques,” whose fallacious reasoning can be found in the now published Torture Documents. The justification given by the Assistant Attorney General Jay Bybee in his Memorandum for Alberto R. Gonzales on 1 August 2002. His definition of torture justified the enhanced interrogation methods by setting an impossibly high threshold to meet, as he stated it would involve "pain that is difficult to endure… such as organ failure, impairment of bodily function or even death” and therefore prohibits only “extreme acts”. Further, he argued that necessity or self-defence may justify interrogation methods that violate the US Constitution.

Susan Sontag in her article titled Regarding the Torture of Others views the doctrine made by the Bush administration as an invitation to accept the torture on anyone considered to be a terrorist. Sontag is mostly concerned with the inhumane torture that occurred in the American-run Iraqi prison Abu Ghraib and the abuse photos that were leaked to the public showing the torture that prisoners were facing. Donald Rumsfeld’s response to the photos was that “technically [terrorists] do not have any rights under the Geneva Convention,” which would grant an authorisation for the inexcusable torture that ensued. 

Yet, the freedom from torture and ill-treatment and right to life are both non-derogable rights. It is a challenge to ensure that these are not departed from, which has been done through the US’ extraordinary rendition programme (ERP) and targeted killings by the US more recently. These tactics have been claimed by the US as justified by the "war on terror” and the quasi-permanent state of emergency that it creates. This goes beyond the extent that a state can claim a state of emergency and derogate from all these human rights obligations. This can and has been addressed by targeting the transnational partners of the US when carrying the ERP.

In Abu Zubaydah v Poland (2014), the ECtHR found that assistance to the human rights violations can be directly addressed because:

Removal of an applicant from the territory of a respondent State may engage the responsibility of that State under the Convention if this action has as a direct consequence the exposure of an individual to a foreseeable violation of his Convention rights in the country of his destination.

In other words, the treaty bodies can hear cases that compromise the state committing the human rights violations and place pressure on those that are facilitating such violations. Moreover, there may be quasi-judicial accountability measures from within the state, like in the Senate Select Committee on Intelligence on the CIA’s Detention and Interrogation Program. These processes continue to put pressure on the executive to stop misusing state of emergency declarations as a pretext for human rights violations and limitation of non-derogable rights.

Karen is a recent graduate in Politics, Philosophy and Law (LLB) from King's College London. Before this, she has lived in six countries and speaks five languages (English, Portuguese, Spanish, French and Dutch). She is currently based in Amsterdam and hopes to become a barrister. Karen loves to run outside, sail in the summers, and eat her way through every city she goes to.