Tensions between human rights and the limitation on those rights during the conflict and war

Tensions between human rights and the limitation on those rights imposed by very specific situations such as conflict and war

 

(This presentation was based on Article 29(2) of the UDHR)

 

Presentation made by Sudarshana Gunawardana, representing Sri Lankan civil society organization “Rights Now” at the 13^th Annual meeting of the Asia Pacific Forum held in Kuala Lumpur on 31^st July, 2008

 

 

Let us imagine a country in which the rule of law of prevails, in which the people have sovereignty and they elect, from time to time, their representatives to government.

 

This country is a member of the United Nations. It has ratified all major Human Rights Treaties including the optional protocol to the ICCPR and submits periodic reports to the Treaty Committees. Respecting international obligations, the successive governments of the country has introduced or amended legislation in order to make sure that it is consistent with the international human rights norms and standards. Violation of fundamental rights as set out in the Constitution by a state action can be questioned by petitioning the superior courts.

 

The country faces a civil war. Special National Security Laws and Emergency Laws have been enacted to deal with issues of terrorism and counter-insurgency. These regulations can supersede any existing law other than the provisions of the constitution.

 

In such a country, a journalist who reports on the conflict may be arrested by Counter Terrorism authorities and held in incommunicado detention.

His wife could file a petition on his behalf, alleging violations of several rights guaranteed to him as a citizen. Among them would be the freedom of Thought and Conscience, Freedom of Expression, Freedom from Arbitrary Arrest and Detention, Freedom from Torture and Inhuman or Degrading Treatment. During the inquiry, the Public Prosecutor could argue that the arrest and detention is legal as it was made under the emergency regulations. The journalist’s prolonged detention could thus be legally justified despite the protections of national and international law.

 

What we are considering today is exactly this question about the tensions between human rights and the limitation on those rights imposed by very specific situations such as conflict and war. The global impetus of the War against Terror and counter-terrorism measures adopted by many of our countries poses a major challenge to our work in this regard. Arbitrary arrest and detention, prolonged and incommunicado detention, restrictions on media freedom and on the freedom of assembly and association are all common features under the laws that are being promulgated in the name of national security and public order. Whether it is the detention of so-called terrorist suspects in Guantanamo, in small holding cells in Sri Lanka or in Mongolia, or whether it is the brutal suppression of dissent, as human rights defenders we continually challenge the form and nature of these limitations, while accepting the principle that sometimes limitations are necessary for the greater good.

 

In addition, since many of us come from societies and countries where growing trends of religious and other forms of fundamentalism and extremism are leading to serious social tensions and identity-based conflicts, the imposition of limitations on rights can also be politically motivated to enhance the power and position of one community against another. Here again, the principles of equality and non-discrimination in the imposition of limitations must be taken very seriously by us. 

 

Our discussions on the universality and inter-dependence of rights has always taken into consideration the fact that in order to achieve stability and harmony in society, certain rights and individual freedoms must be balanced with the rights and freedoms of other individuals and of society as a whole. In Article 29 (2), the Universal Declaration of Human Rights sets out admissible limitations ‘as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.’

 

The issue of limitations have also been further explored through the work of the Human Rights Committee and by the Siracusa Principles on the Limitation and Derogation provisions of the Covenant on Civil and Political Rights. More recently, deliberations of the European Court of Human Rights have also elaborated on this aspect of human rights.

 

The interpretative principles of the Siracusa Principles, among other matters, call for limitations not to be arbitrary or unreasonable, and say that limitations should be clear and accessible to everyone. In particular, the Siracusa Principles affirm the need for provisions to ensure protection against illegal or abusive imposition or application of these limitations.

 

The Siracusa Principles also take into consideration that the basis for imposing limitations such as ‘Meeting the just requirements of morality’, creating an environment for the maintenance of ‘public order’ and ‘general welfare’ are open to subjective interpretations. Thus, the Principles clearly cite the variance of notions of what constitutes morality over time and from culture to culture and calls for the limitations to remain true to the maintenance of respect for the fundamental values of the community.

 

At this meeting of the Asia Pacific Forum on National Human Rights Institutions, we as human rights defenders from the Asia Pacific region would call on all national human rights institutions to play a leading role in providing guidance and direction to states in the area of limitations to rights.

 

NHRIs must insist that the state guarantees the rights of all persons, including under special laws and emergency regulations promulgated in the interests of national security and public order. The responsibility of ensuring that the extent of any limitation is strictly proportionate to the need or higher interest protected by the limitation lies with the NHRI. In addition, NHRIs can ensure guarantees of the legality of these special laws and regulations, and also of the rule of law that will protect us against the arbitrary use of state power. The role to be played by NHRIs in ensuring respect for the dignity of the individual, for the principles of equality and non-discrimination and for the non-retroactive nature of the law is equally critical, as is the role they can play in ensuring that all those who are detained under these special laws should be guaranteed a fair and public hearing.

 

In order to do this, NHRIs must be pro-active and exercise their independent authority to ensure the promotion and protection of human rights of all those who live within their state borders. By maintaining regular vigilance over detainees and places of detention, by engaging in consistent dialogue with the security forces, law enforcement agencies and detaining authorities to ensure the welfare and security of detainees, NHRIs can work together with human rights defenders to ensure respect for human rights in their countries. Such a role can also strengthen the position of the state in which the NHRI operates at the level of the international human rights community and bring credit to its commitments to the protection and promotion of all human rights for all.