International Human Rights Law: No Protection

Chapter 10
International Human Rights Law: No Protection

International law has proven no barrier to the imposition of totalitarian, draconian or human rights abuses, even torture, which is absolutely prohibited by global conventions.

In the first place, international law reserves to the national state the power to override most basic legal and democratic rights in alleged emergencies or dire challenges to the stability of the state. In the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR) and other related instruments – such as the European Convention on Human Rights and Fundamental Freedoms (‘European Convention’) and the UK Human Rights Act – the listed civil and legal rights are mostly subject to far-reaching exemptions or derogations, including for ‘national security’, ‘public safety’ and ‘public emergency’. This leaves considerable leeway for draconian measures, including seemingly permanent ones such as detention without trial and other provisions imposed in the name of fighting the endless ‘war on terrorism’. Thus, Article 4 of the ICCPR states:

1.   In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2.   No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.

These exceptions to derogation relate to killing, torture, slavery, trial by law and freedom of religion.

Under the European Convention, however, even the right to life is carefully circumscribed to permit killing by state forces in order to make arrests, prevent escapes from detention and quell riots and insurrections (Article 2). As with the ICCPR, governments can derogate from most obligations under the European Convention ‘in time of war or other public emergency threatening the life of the nation’ (Article 15). Particularly since the declaration of the ‘war on terrorism’ in 2001, courts have tended to give executive governments much leeway to use these provisions.

The Genocide Convention and the Convention Against Torture permit no exceptions or derogations. However, the latter has certainly not stopped governments, notably that of the United States, resorting to torture or secretly ‘rendering’ detainees to be tortured in other countries. No US official has been prosecuted or held to account, legally or politically, in any manner for the hideous programme of torture and abuse documented by the US Senate Intelligence Committee’s report on CIA torture. A heavily redacted summary of the report was finally released in late 2014, but the Obama administration and US courts blocked the release of the full report itself.

The subsequent political, media and judicial whitewash of the Senate CIA torture report – marked by the refusal of the Obama administration, the United Nations human rights agencies and the US courts to take or permit any action to place those responsible on trial – provides a damning case study of the reality of immunity from international law (see the case study below: ‘US torture and political and judicial coverup’).

Courts in other jurisdictions too have been complicit in the violation of international law. The UK Court of Appeal indicated that evidence obtained by torture might be admissible under certain circumstances (A v Secretary of State for the Home Department (No. 2) (2005) 1 WLR 414); and Canada’s Supreme Court pronounced that exceptional ‘national security’ grounds could justify a decision to deport a person to be tortured (Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3).

The reality is that international human rights law provides little or no protection against the abuse of emergency powers, regardless of any violation of basic legal and democratic rights. In any case, because the nation-state system still prevails globally, international law is not legally binding domestically unless it is incorporated into national legislation. Even where that happens, with some exceptions – such as the US Constitution’s Bill of Rights and the Canadian Charter of Rights and Freedoms – domestic human rights measures are not constitutionally entrenched, and can therefore be abridged, amended or repealed by legislatures.

Some domestic human rights provisions simply require courts to interpret all legislation, where possible, consistently with enumerated human rights, generally drawn from the ICCPR. If the legislation under consideration cannot be interpreted consistently with a human right, the court may only declare that an incompatibility exists, and report the issue to the legislature. Such a declaration does not affect the validity of the legislation in question.

Furthermore, under provisions like the UK Human Rights Act, the courts are instructed to permit limits to human rights if the limits are ‘demonstrably justified in a free and democratic society’. This proviso, which English judges have described as one of proportionality, leaves scope for governments to brush aside or whittle down democratic rights of minorities in the name of upholding the democratic rights of the majority.

An Exceptional Case?

One judicial ruling sometimes cited as demonstrating the capacity and readiness of courts to hold governments to account according to the standards of international law is that of the English House of Lords in 2004 in A v Secretary of State for the Home Department ([2004] UKHL 56). The case concerned ‘counter-terrorism’ legislation that overturned the principle of habeas corpus in order to allow a terrorist suspect to be held in police custody without charge for up to 28 days. This power was reminiscent of the measures used in Ireland, where internment without trial was reintroduced during the 1970s. A person arrested under section 41 of the Terrorism Act 2000 (on suspicion of terrorist-related activity) could be held by police for 48 hours, and courts could extend the detention for 28 days.

In order to justify these powers, the British government derogated from Article 5 of the European Convention, which provided the right to liberty, subject only to lawful arrest or detention. The government invoked Article 15 of the Convention, which permitted derogation ‘in time of war or other public emergency threatening the life of the nation’. In its ruling, the House of Lords accepted that indefinite detention without trial of foreign national terrorist suspects, unable to be prosecuted or deported, could be permissible under Article 15, in the context of the 9/11 attacks in the United States.

However, the majority ultimately declared the particular circumstances to be discriminatory and disproportionate to the exigencies of the public emergency. In a dissent on the threshold issue of whether the threat of terrorism constituted a ‘public emergency threatening the life of the nation’, Lord Hoffmann stated that the gravest threat to Britain arose not from potential terrorist attacks, but from legislation such as that resorted to by the government:

This is one of the most important cases which the House has had to decide in recent years. It calls into question the very existence of an ancient liberty of which this country has until now been very proud: freedom from arbitrary arrest and detention. The power which the Home Secretary seeks to uphold is a power to detain people indefinitely without charge or trial. Nothing could be more antithetical to the instincts and traditions of the people of the United Kingdom … Whether we should survive Hitler hung in the balance, but there is no doubt we shall survive Al Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of the nation. Their legendary pride would not allow it. Terrorist crime, serious as it is, does not threaten our institutions of government or our existence as a civil community … The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. ([2004] UKHL 56, [86–97])

Nonetheless, the 8–1 majority view was that the courts had to defer heavily to the executive government’s assessment of national security. In the words of Baroness Hale:

Assessing the strength of a general threat to the life of the nation is, or should be, within the expertise of the Government and its advisers … If a Government were to declare a public emergency where patently there was no such thing, it would be the duty of the court to say so. But here we are considering the immediate aftermath of the unforgettable events of 11 September 2001. The attacks launched on the United States on that date were clearly intended to threaten the life of the nation. ([2004] UKHL 56, [226])

In part, this solidarity with the government reflected the political and ideological impact of the 9/11 attacks (see below). Lord Nicholls, however, pointed to underlying deference to the executive, above and beyond the immediate circumstances of 9/11. He stated:

All courts are very much aware of the heavy burden, resting on the elected government and not the judiciary, to protect the security of this country and all who live here. All courts are acutely conscious that the government alone is able to evaluate and decide what counter-terrorism steps are needed and what steps will suffice. Courts are not equipped to make such decisions, nor are they charged with that responsibility. ([2004] UKHL 56, [79])

The ruling illustrated the consistent record of courts in giving executive governments great scope to take actions that are asserted to be essential to the ‘security’ or survival of the national state.

Broad Definitions of ‘Public Emergency’

One of the means by which international law facilitates emergency powers is by generously interpreting the ‘public emergency’ derogation tests in favour of governments. Hence, in Lawless v Ireland (1 Eur. Ct HR (ser. B) at 56 (1960–61), a nine-member majority in the European Commission of Human Rights defined the term for the purposes of Article 15 of the European Convention as ‘a situation of exceptional and imminent danger or crisis affecting the general public, as distinct from particular groups, and constituting a threat to the organised life of the community which composes the State in question (para. 90, at 82).

Some of the five dissenting members proposed narrower definitions. One indicated that the linkage between war and emergency in Article 5 – ‘in time of war or other public emergency’ – meant that the emergency must be interpreted as ‘tantamount to war’ (para. 93, at 95). Another member suggested that a public emergency only existed when the constitutional order of the state had broken down and the different branches of government could no longer function (para. 95, at 101). But the European Court of Human Rights affirmed the majority’s decision.

Despite the amorphousness of words such as ‘threat to the organised life of the community’ and their capacity to be used to suppress dissent, Gross and Ní Aoláin concluded, after considering several such definitions, that: ‘Notwithstanding differences in nuance and emphasis, they accentuate the capacity for definitional agreement and the possibility for meaningful and robust oversight and accountability over claims of “public emergency”’ (Gross and Ní Aoláin 2006: 251–3).

Applied in practice in British-ruled Northern Ireland, the European Commission’s approach legitimised abuses that amounted to torture. In 1971, the British government reintroduced internment, and at least five detainees were interrogated using ‘five techniques’ – hooding, standing against a wall, subjection to noise, deprivation of food and water, and deprivation of sleep (Gross and Ní Aoláin 2006: 276). In Ireland v United Kingdom (1976 YB Eur. Conv. On HR (Eur. Comm on HR)), the Commission decided that, although the five techniques amounted to torture, a ‘public emergency’ existed (at 584–6). Yet, the ruling referred to a ‘lasting crisis’ that had begun in 1966 – that is, a decade before the case came before the Commission. In effect, the Commission approved a semi-permanent derogation permitting torture – far from a temporary, exceptional deviation from human rights law.

In their analysis of numerous cases, Gross and Ní Aoláin concluded, among other things, to international courts and tribunals giving ‘greater leeway in derogation cases to democratic states than to non-democratic or illiberal states’. As discussed in Chapter 5, the categorisation of major capitalist powers as ‘democratic’ is most dubious. In practice, however, the courts and tribunals are applying double standards in their favour.

The record of the UN Human Rights Committee, the agency charged with scrutinising compliance with the ICCPR, is no better. Gross and Ní Aoláin stated that the committee had ‘traditionally failed to assess the existence of emergency in certain states and has frequently declined to endorse the principle of proportionality in its examination of state practice’, although ‘the committee has shown greater gumption in this area in the past few years’. In particular, ‘problem emergencies, and specifically permanent emergencies, have managed to escape the net of thorough examination’ (Gross and Ní Aoláin 2006: 302).

The UN and the ‘War on Terrorism’

The UN Security Council took unprecedented action following the September 11, 2001 terrorist attacks. Within 24 hours, Security Council Resolution 1368 had been adopted, unanimously condemning the attacks and sanctioning military responses. Two weeks later, Resolution 1373 obligated all member states to take far-reaching legislative and executive action in order to combat terrorism.

Far from demonstrating the effectiveness of the UN, however, the response to 9/11 demonstrated that it functioned as a conduit for the strategic and economic interests of the major powers, notably the United States. Indeed, the twin resolutions effectively paved the way for military unilateralism, starting with the US invasion of Afghanistan, and for equally self-interested domestic responses, with governments seizing upon the declared ‘war on terrorism’ – and the lack of any definition of terrorism by the UN – to introduce repressive measures that served their own political purposes.

Under the thinly veiled threat of potential retribution from Washington if they failed to cooperate – US President George W. Bush had declared in an address to a joint session of Congress on 20 September 2001 that ‘Either you are with us, or you are with the terrorists’ (White House 2001) – governments of all stripes around the world complied with the UN resolutions, while often utilising them to deal with their own political foes. Thus, for example, China cracked down on dissent, including by the banned Falun Gong spiritual movement and the Uighur people (Head 2005: 84–91); and Indonesia introduced authoritarian measures reminiscent of the Suharto dictatorship on the pretext of targeting Islamic fundamentalists (Head 2005: 77–84).

The response reflected the reality that the UN remains dominated by the five veto-wielding powers that emerged victorious from the last world war, and that it is constituted by nation-states, each of which has its own political, commercial and strategic interests to protect. Resolution 1368, passed the day after 9/11, recognised ‘the inherent right of individual or collective self-defence’ as a legitimate response to terrorism for the first time. By doing so, the Security Council effectively removed itself from further decision-making about the legitimacy of the use of military force by the US and its partners in Afghanistan under the banner of combating terrorism. Given Washington’s adoption of a pre-emptive intervention doctrine that asserted a sweeping right to act unilaterally, the US seemed to be handed a ‘carte blanche’ (Boulden and Weiss 2004: 11–12).

Resolution 1373, adopted two weeks later, appeared to offer a contrast. It detailed requirements that necessitated significant actions by member states, including legislative changes, making the Security Council arguably intrusive in domestic affairs. The resolution left open the definition of terrorism, however, allowing wide latitude for interpretation – in effect another carte blanche. Various states have used the international legitimacy conferred by Resolution 1373 and other UN provisions to de-legitimise political opponents and demonise them as terrorists. Thus, the terrorist label has been attached to Uighur separatists (China), Chechen rebels (Russia), Kashmir militants (India), Papuan separatists (Indonesia) and Palestinians (Israel). A Maldives opposition politician was sentenced to 10 years’ imprisonment on terrorism charges for peacefully protesting against rights violations by the government; and in Uzbekistan, 15 men were convicted of terrorism offences for organising public demonstrations (Saul 2006: 50–51).

On the one hand, member states were ordered to criminalise all terrorist-related acts, and were instructed to provide compliance reports within three months. Some 117 reports were submitted on time – ‘by all historical standards, a remarkable response’ – and by December 2002 this number had increased to 175 (Oudraat 2004: 162). Paragraph 8 of Resolution 1373 expressed the Council’s ‘determination to take all necessary steps in order to ensure the full implementation of this resolution’. The absence of any compliance procedure, however, opened the door to unilateral responses both internally and externally. The US was not alone in asserting its right to attack a supposedly non-compliant state. Russia threatened to intervene against Georgia for its ‘glaring violation’ of Resolution 1373 in failing to halt rebel raids into Chechnya (Oudraat 2004: 163–5).