French soldiers patrolling a street of Saint Denis, France, during an anti-terrorist raid on November 18, 2015. France has been under a government-declared state of emergency since 2015.
As the recently appointed United Nations Special Rapporteur on the Promotion and Protection of Human Rights while Countering Terrorism I have set out my mandate priorities and share them here with Just Security readers. For the next three years, I plan to focus on four substantive areas which will drive the mandate. These are 1) the proliferation of permanent states of emergency and the normalization of exceptional national security powers within ordinary legal systems; 2) the need for greater clarity in respect to the legal relationships between national security regimes and international legal regimes (human rights, international humanitarian law, and international criminal law) as well as the relationship of human rights to the emergence of standalone international security regimes regulating terrorism and counter-terrorism; 3) the advancement of greater normative attention to the gendered dimensions of terrorism and counter-terrorism; and 4) advancing the rights and protection of civil society in the fight against terrorism.
One of the most pressing of these four priority areas is the normalization of exceptional powers evidenced by the passage of permanent anti-terrorism legislation into French law this week. This practice is expanding and I will pay particular attention to the relationship between the use of exceptional national security and emergency powers, and their subsequent permanent absorption into national law and administrative practice. Specifically, I will give close attention to situations of de facto emergency, complex emergency, and permanent emergency which are premised on the use of national security and counter-terrorism legislation and administrative process under the domestic law of states.
I am particularly concerned at the absorption of normally exceptional national security powers and counter-terrorism measures in the ordinary law of many states. In this context, the dividing line between exercise of exceptional national security powers and the ordinary criminal and civil processes of some states becomes hard to distinguish, and the protection of rights becomes increasingly fraught and difficult to deliver in practice. Challenges include temporal expansions of national security legislation and counter-terrorism measures beyond the timeframe that was used to legally justify their initial invocation and application. In such circumstances, we see the emergence of permanent states of emergency where ordinary legal regulation recedes and may be sidelined by the deployment of expansive executive powers, extensions of the criminal law to new categories of crime, the primacy of military and intelligence institutions over police power within states, and sustained limitations on a broad range of rights from assembly to association. All of these institutional practices pose significant challenges to the effective protection of human rights. Moreover, extended use of national security powers can have particularly negatively affect the enjoyment of rights for vulnerable and minority groups.
International human rights law and practice has long recognized inter alia that in exceptional situations of war or emergency, states may limit the exercise of certain rights through the process of derogation. Human rights treaties also recognize the legitimate exercise of limitations on rights, including to advance public safety. However, derogations on rights are intended to be the exception, not the norm, as indicated by decades of human rights jurisprudence as well as by the views of states expressed on the function and requirements of derogation.
Limitations on rights are not open-ended and not absolute; they must always be legitimate, proportionate and necessary and must never impair the essence of the right. Human rights treaties require the states to remain cognizant of their legal obligation to return to regular legal order within a legally defined period of time. In general, and consistent with position of the United Nations Human Rights Committee as articulated in General Comment 29, I take the view that if the same end can be achieved by regular legislation or administrative procedure, as opposed to exceptional legal norms, states should not resort to exceptional national security powers, derogating unnecessarily on the protections of rights and freedoms and instead defer to the capacity of the ordinary legal system to address the challenges at hand.
Temporary arrangements have a peculiar tendency to become entrenched over time and thus normalized and made routine. Time-bound emergency legislation is often the subject of future extensions and renewals. I am particularly concerned at the practices whereby legislative or administrative acts that had originally been enacted as temporary emergency or counter-terrorism measures, have subsequently transformed into permanent legislation. I note that the longer national security legislation – broadly understood – remains on the statute books, the greater the likelihood that extraordinary powers made available to government under this legislation will become part of the ordinary, normal legal system. The corresponding effect on the enjoyment of human rights is considerable and weakens the capacity of states to maintain effective human rights compliant anti-terrorism initiatives. The dangers of such pitfalls have been identified by the Global Counter-Terrorism Strategy which clearly places human rights at the centre of the fight against terrorism and emphasizes that measures taken to counter terrorism must comply with international human rights law
We are all aware that governmental conduct during a crisis creates a precedent for future exigencies as well as for “normalcy.” There is a grave danger that where national security powers are piled up, essentially in a constant state of ratcheting powers upwards, government will take as its starting point the experience of extraordinary powers and authority granted and exercised during previous emergencies rather than judging the needs of new challenges in light of a sober assessment of the capacity of ordinary legal process to cope. Much like the need to gradually increase the dosage of a heavily used medication in order to experience the same level of relief, so too it goes with respect to national security powers: The perception may be that new, more radical powers are needed every time to fight impending crises. In turn, new extraordinary counter-terrorism measures confer an added degree of ex-post legitimacy and respectability, as well as a sense of normality, to previously used, less drastic emergency measures. What were deemed exceptional emergency actions in the past may now come to be regarded as normal, routine, and ordinary, in light of more recent and more dramatic counter-terrorism powers. In this context, it also proves highly challenging to adhere in practice to the insights of the Global Counter-Terrorism Strategy namely that, respect for all human rights for all and the rule of law is the basis of the fight against terrorism and essential to all components of the strategy.
I also intend to pay particular attention to the use of emergency and counter-terrorism legislation for purposes other than those for which it was originally promulgated. The “getting used to” phenomenon for long-term counter-terrorism measures may also have a tranquilizing effect on the public’s critical approach toward emergency regimes. There are prescient challenges to maintaining a healthy and critical discourse in any society around the need for and use of counter-terrorism measures, and corresponding skepticism directed at those who raise concerns about the normalization of exceptional powers with marked effects on the vitality and capacity of civil society.
While recognizing the real and undulating pressures faced by states as a result of terrorist acts and by terrorist organizations, as Special Rapporteur I affirm the primacy of respecting human rights norms in fighting terrorism and in addressing the conditions conducive to terrorism. The protection of human rights is essential to any sustained global strategy to prevent, protect and manage terrorism. The pressures on states to provide security are real, but long-term and sustained security will only follow when human rights have a central role in all aspects of the global fight against terrorism.