Human rights in states of emergency

International and national human rights law apply both to times of peace and times of war. Human rights are inalienable and inherent to every individual and thus apply at all times, anywhere.

And yet, the respect or violation of each and every one of our human rights is wholly dependent on state authorities: on their willingness to apply democratic and just principles, as well as on their ability to maintain a functioning and efficient infrastructure of state offices and officials.

The protection and respect of human rights is expected from states at both the national level, in most cases, and at the international level in all cases. Legal consequences are in place in the event that those expectations are not fulfilled.

In normal circumstances, that is, when states are able to ensure that their institutions and agencies are in place and can function in line with laws and regulations, excuses and justifications for the violations of entrenched human rights will not be acceptable.

Legal accountability and responsibility may and can be implemented. However, when force majeur strikes, such as natural disasters or wars, may citizens as well as the international community expect that human rights are respected from the state in question as they would be expected to be in normal and peaceful circumstances?

The answer is a categorical no in that extraordinary circumstances always bring about and require exceptional measures. May the current government of the Central African Republic, for example, be expected to keep running its judicial systems as it normally does and not to suppress freedom of movement and association of its citizens when it is facing an attempted coup d'état?

Similarly was the United States on September 11, 2001, expected not to suspend all normal judicial functioning and freedom of movements, association, etc., when it was under a devastating terrorist attack? Once again, the answer is an unequivocal negative.

The situation necessitates that certain human rights are suppressed and limited - at least until circumstances resume their status ante.

Simultaneously, however, when a state is facing an attempted coup d'état or a terrorist attack, for example, it may not authorise its officials to go about executing innocent civilians, torturing people or keeping persons under incommunicado arrest.

The rule under international law is that there are certain rights that may never be derogated or suspended, even in the most difficult of extreme situations. Their violation may never be justified.

This is why the protection of human rights in times of war brought about the adoption of the Geneva and The Hague Conventions regulating wars. There was a clear necessity for laws to be in place to ensure that situations of war will not be a carte blanche for states and armed factions to take the law in their hands and carry out arbitrary acts, as happened many times and still does, in violation of the most inherent of rights.

The difference is that before The Hague and Geneva Conventions, arbitrary executions in times of war, inter alia, had no legal consequences. Now they do.

International law as well as the international community closely monitor the suspension of derogable rights. International law established a compromise between the rights of states to defend their sovereignty and to therefore defend their constitutional and democratic order, on the one hand, and the prevention of misuse of emergencies for political reasons, on the other hand.

International human rights conventions therefore contain derogation clauses that enable states to 'temporarily' derogate from their obligations, subject to international supervision.

However, even when a state of emergency dictates the suspension of normality, there are certain restrictions and procedures to be followed in the limitation of human rights:

¤ an explicit procedure must be followed by states for them to be allowed to legally suspend the protection of human rights;

¤ there is a clear exhaustive list of rights which may or may not be suspended; and

¤ states must take particular precautions and set limitations on the restriction of the derogable rights in question.

Article 15 of the European Convention on Human Rights (ECHR) provides that in times of war or other public emergency threatening the life of the nation, the right to life, freedom from torture, or inhuman or degrading treatment or punishment, freedom from slavery, servitude or forced or compulsory labour as well as freedom from retroactive criminal offences and punishment, may never be suspended.

The United Nations International Covenant on Civil and Political Rights (ICCPR) provides for a longer list of non-derogable rights. Over and above what is provided for under the ECHR, the ICCPR also provides protection against the use of medical experiments, imprisonment for debts, recognition of legal personality and restriction of freedom of religion.

Under the ECHR, the non-derogability of the right to life and freedom from retroactive criminal offences is subject to some limitations. The right to life will not be violated if the death is a result of lawful acts of war.

However, such death must have been "absolutely necessary" in defence of any person from unlawful violence, in order to effect a lawful arrest/prevent the escape of a lawfully detained person, or in action lawfully taken to quell a riot or insurrection.

The prohibition of retroactive criminal penalties does not include acts or omissions which, at the time when the act was committed, was criminal according to the general principles of law recognised by civilised nations. The additional protocols to both the ECHR and the ICCPR provide exceptions in times of war with regard to the prohibition of the death penalty.

The ICCPR only refers to a public emergency. This does not mean that derogation is not permitted in times of war. International conflicts constitute the prototype of public emergency that threatens the life of the nation.

Civil wars are the most common reasons for derogation and declaring states of emergency. The ICCPR also talks about a danger. That danger must however be actual and directly threatening the life of the nation to an exceptional extent.

States are bound to inform the international community of any decision to suspend their protection of derogable human rights, of the measures taken and the reasons thereof. They must also declare when such circumstances cease to exist.

In the case of the Council of Europe and the United Nations, all other member states will be informed of the declarations made and actions taken by the state in question. Such public declarations are a precondition for derogation unless the State can explain and strongly justify why the proclamation came after the derogation.

The international community will not take a state's declaration of public emergency at face value. Strict monitoring of the necessity and proportionality of the suspension of rights and their implementation is strictly monitored.

On the one hand, the European Court of Human Rights (ECtHR) has held that a public emergency shall not be restricted only to external threats against a state but also to cover other incidents of serious violence.

States are allowed to derogate, based on low-intensity, irregular violence and civil wars and insurrections. Nevertheless, the public emergency must further threaten the life of the nation.

On the other hand, the emergency must be actual or imminent, its effects must involve the whole nation (even if the ECtHR has also held that the whole population is considered to be affected even if the disturbances are only taking part in one part of the territory) and the emergency must threaten the continuance of organised life in the community.

The crisis or danger must in all cases be exceptional so that the normal limitations provided by the ECHR and the ICCPR are seen not to be enough.

Moreover, any derogation of suspendible rights will only be justified to the extent that they are strictly required by the exigencies of the situation and provided that such measures are not inconsistent with a state's obligations under international law, such as those emanating from the Geneva Conventions and customary international law, for example. In all cases, all actions of derogability must closely respect the principles of proportionality and necessity. Every case will be judged according to its relevant circumstances.

The suspension of derogable rights is also restricted and closely monitored. "If we condemn our citizens to the possibility of 10 years' imprisonment on the basis of reasonable suspicion... we are in serious danger of giving terrorism a victory that it would not otherwise achieve" - a statement by Lord Williams of Mostyn (The Guardian, March 14, 2000).

Lord Williams seems to have predicted the United States' reaction to its September 11 terrorist attacks vis-à-vis human rights protection. The same may not be said about Italy where no-one predicted that Silvio Berlusconi would have had to declare a state of emergency after last week's earthquake.

Finally, our Constitution directly refers to public emergency in a similar way to the ECHR in the Interpretation section of Chapter IV, Article 47 (2). For such a state to come into play, either Malta must be in a state of war, the President of the Republic must have proclaimed such a state or there must be a resolution of Parliament supported by a two-thirds majority to that effect.