Introduction to Human Rights Week 6: the limits of Human Rights Derogation: Interview with Frédéric Bernard. The first practical case concerns the detention of foreigners suspected of terrorism. This has therefore to do with the fight against terrorism. I have the great pleasure to be with someone who has done much research on the fight against terrorism. Frédéric Bernard, you are a lawyer, you are Doctor of Law and you are teaching at the University of Geneva. You dedicated, among other things, your PhD thesis to the fight against terrorism in the light of Human Rights. More specifically, the title of your PhD thesis is "The Rule of Law faced with terrorism". I am very happy that you have accepted to come and to help us resolve this first practical case. In this first practical case, the government says that Human Rights do not apply in times of crisis. Is the government right? No, I really do not think so. Historically, it is true that governments used to think that they were allowed not to respect Human Rights anymore if the circumstances became exceptional. We often talked, and are still talking, about the state of emergency or about the state of necessity. However, today's concept of Human Rights, as it is in the international Human Rights instruments, aims at protecting Human Rights anytime. This means not only when it is sunny but also when the weather turns stormy. If I understand you correctly, Human Rights also apply in times of war. In this course, we have seen that this domain is governed by humanitarian law. Absolutely. As I told you, Human Rights are meant to apply at all times. However, Human Rights allow the State to adapt a little bit the level of protection of Human Rights in response to an exceptional situation or a crisis. It is precisely the instrument of derogation that we will find in the practical case that we are going to resolve together. The idea behind derogation is that the State can, in certain circumstances, modify the level of protection of Human Rights. What is important is that the State respects a number of conditions. Among these conditions, there is a formal obligation to notify. Within the scope of the European Convention on Human Rights, to the Secretary General of the Council of Europe: to notify the derogation. In the practical case in question, the government considers to be unable to respect Human Rights. This is not enough. It did not respect this obligation to notify. For this reason, the derogation would already be invalid. Ok. It is not automatic. The State must take measures in order to derogate from Human Rights. Could you tell us what is the effect of a derogation? Compared with a restriction, the effect of a derogation is quite radical. If it is successful - so if it meets the conditions - it results in suspending the right in question. This means that the right does not apply anymore. It can therefore not be violated by the State anymore. Indeed, it is considered as not existing during the time of the derogation. Ok. It shows that it is a radical mean. As you already told us, there are some formal conditions: the derogation needs to be notified. Now, if the State respects this formal condition, can it suspend the application of rights such as the right to life or the prohibition of torture? Can the State resort to measures such as summary executions in order to fight against terrorism? Well, no. International Human Rights instruments, especially the European Convention on Human Rights, provides in Article 15 - which allows derogation - a list of rights from which the State can never depart. These rights are non-derogable. They can be found in Article 15, paragraph 2 and in the UN Covent on Civil and Political Rights. They also appear in Article 4, paragraph 2 which deals with the derogation. We must be careful: non-derogable rights are different depending on the instruments. So, we must always check from which instrument the State is departing in order to know which rights are non-derogable according to this instrument. Concerning the examples you gave: summary execution and torture are both non-derogable according to the European Convention and the UN Covenant. Article 2 of the European Convention on Human Rights is non-derogable except for lawful acts of war. Obviously, summary executions are not part of this exception. Article 3 is completely non-derogable. We cannot torture or perpetrate inhuman or degrading treatment, even in case of derogation. It is a kind of limit. Some rights are outside the possible scope of derogation for a State. It is a kind of core. It is a kind of core in the field of derogation, exactly. So, some rights are non-derogable. Does the State have to respect other conditions? Yes. As already mentioned, there is the formal condition of official notification and there is a list of non-derogable rights. Moreover, the State has to prove three substantive conditions. First of all, it must prove that there is a real threat to the life of the nation. Secondly, it must also prove that the measures taken to face the danger were strictly required by the circumstances. This is the proportionality requirement. Finally, it must also prove that these measures are not only proportional but that they are also consistent with other obligations under international law. Human Rights supervise the recourse to derogations quite strictly Now, if we take the conditions that you listed and we apply them to our practical case, can we say that the fight against terrorism is a threat to the life of the nation? Well, if we focus on the European Court of Human Rights, it defines the danger threatening the life of the nation in quite a strict manner, by saying that it must be an imminent danger which has to concern the whole population. But then, once it applies this definition, the Court grants some margin of appreciation to national States. The Court considers that national governments are best placed to evaluate the importance of the danger. In the judgment A. and others v. UK of 2009, the Court accepted the UK's argument which consisted in saying that the threat of international terrorism was a public danger for the existence of my nation. The Court said: "yes, you are best placed to evaluate this danger, so I accept the qualification of the situation as amounting to a danger threatening the life of the nation." How about the other conditions that you mentioned? Well, the British system was a bit special because the government had a system targeting foreigners suspected of terrorism who were imprisoned for an indefinite period of time. This system did not apply to British nationals. So, the Court said: "this measure is not strictly required in these circumstances. Since you are able to take care of your own suspected terrorists, without departing from the Convention, you should be able to do the same with foreign suspects." So, the government was not really credible. No, indeed. In practice, the result is not really satisfying as the government decided to extend the system to the entire population. Now, there is a last condition, right? The measure must be in accordance with the other obligations; with international law. Is it a possible for a measure of derogation to violate the obligations of international law? Yes. We talked earlier about the non-derogable rights and I told you that the list of these rights vary depending on the instruments. The list is more extensive In the Covenant on Civil and Political Rights than the one which appears in Article 15 of the European Convention on Human Rights. The UN Covenant provides that an emergency measure - between quotation marks - cannot be discriminatory. From the perspective of the Convention, this is not a non-derogable rights. This element is crucial. The Human Rights Committee, which has to control the application of the Covenant, adopted a general comment - number 29 - on the question of derogations, in 2001. The Committee has extended the list appearing in the ICCPR. The result is that we have way more non-derogable rights in the Covenant than in the European Convention on Human Rights. A State that would be a member of the two Conventions would also be subject to the non-derogable rights of the ICCPR, within the scope of Article 15 of the ECHR. This is interesting. If we return to our practical case, we saw that the derogation is not valid, right? What is the consequence of the invalidity of the derogation? The consequence is that while the State thought it had justifiably derogated from the relevant right - and that it took measures inconsistent with the Convention - the derogation was actually not valid. So, the State actually violated the Convention during the whole time it thought that it succeeded in reducing the scope of application of the Convention. So, in the practical case, while the State thought it had derogated from the right, it actually violated Article 5 of the Convention by imprisoning individuals. We can ask ourselves whether the right continues to apply because the State has not validly departed from it, could it be restricted? This is another issue. We will talk about it in this course. You described the mechanism of derogation very well. Now, I am interested in the practice of States. Is it common for States to derogate from Human Rights? Have they often done it in the context of the fight against terrorism, after 9.11? Historically, a number of cases are linked to precise situations. There are, for example, a number of derogations linked to the South-East of Turkey and the Kurdish issue. There is also a whole derogation issue linked to the UK and Northern Ireland. Historically, these types of situations led to derogations. It is true that the UK derogated from the European Convention on Human Rights after 9.11. More precisely, it derogated from Article 5, paragraph 1. It is the only State in the world to have done it. The only State in Europe and the only State in the world. Other derogations exist since 2001. They essentially come from Latin American countries but they are not linked to international terrorism. They actually have to do with national and local issues. The USA did not derogate from Human Rights? As you know, the USA have ratified the ICCPR about ten years ago. They have of course not ratified the European Convention since they are out of Europe. And they did not believe it was useful to derogate from the ICCPR, even in the height of the fight against terrorism. All right. We have also seen that States resort to another strategy to be exempted from the application of Human Rights. This strategy is to detain individuals outside their territory. The argument was to say that Human Rights do not apply outside the territory. It does not concern derogations but it would be interesting to know your opinion on this question. Legally speaking, it is true that we will deal with this question differently but the aim is a bit similar. As you said, the aim is to be less linked to Human Rights because we believe that we are in a crisis. We talked a lot about Guantanamo Bay. You know that Guantanamo is an American military prison located on the island of Cuba. By creating a prison there, the idea was to say "we are outside the United States, so fundamental rights applicable in the United States are not going to apply to the prisoners of Guantanamo." By applying the American Constitution, the Supreme Court judged that this reasoning did not make any sense. If we had been in the same situation in Europe, the Court would have said the same thing. It is true that we are moving away from the theme of derogation but the Court has an extremely rich case law as far as the extraterritorial scope of application of the Convention is concerned. The Court considers that if a State has effective control over a territory or over people detained outside its national borders, it is its responsibility to respect Human Rights on this territory. If Guantanamo was run by a European State, the Court would have judged that the Convention applied to Guantanamo and it would then probably have found several violations of the Convention. So, we see that it is not that simple to escape Human Rights, isn't it? It is a great progress. In comparison to the classic thinking that I mentioned at the very beginning of the interview, the great progress of Human Rights is that there is no gap anymore. Adaptations are possible but there are no gaps in the protection anymore. Thank you very much! Thank you! Let us sum up: for this first case, we have seen that the government is wrong. Human Rights also apply in times of crisis but States have the possibility to derogate from Human Rights. It means that they can suspend the application of Human Rights for a definite period of time. If the derogation had been valid, in our practical case, there would not have been any violation of Human Rights because Human Rights would not have applied. But, in our case, we have seen that the conditions of derogation have not been met. Human Rights thus continue to apply. For this reason, we are not done with the analysis of this practical case. We have not talked about the two other practical cases yet. In these cases, governments have not even invoked a derogation because they knew that the conditions would not have been met. First, we are not in times of crisis: there is no situation of war and no terrorist threat. Secondly, the third case concerns a non-derogable right. We have learnt that the prohibition of torture is part of the core of Human Rights. We also have to continue our analysis for these two practical cases. In the following video, we will see if the limit of abuse of rights can help us to solve these cases.
