Human Rights in Times of Conflict and TerrorismPDF电子书下载

INTRODUCTION 1

PART Ⅰ OVERARCHING ELEMENTS 5

1 APPLICATION OF HUMAN RIGHTS LAW 5

1.1 At all times:during both peace and armed conflict 5

1.1.1 Treaty provisions and their interpretation 5

1.1.2 Practice of States and UN Charter bodies 6

1.2 Scope of application:jurisdiction 9

1.2.1 Treaty provisions 9

1.2.2 Interpretation of the reference to 'territory' in the ICCPR provision 10

1.2.3 Application where there is no jurisdiction clause 11

1.2.4 Meaning of'jurisdiction' 12

1.2.5 Where the State has lost control of parts of its national territory 13

1.2.6 Control of another State's territory as a result of military action 14

1.2.7 Responsibility for transfers to other States 18

1.2.8 Control or decisive effect over persons outside own territory 18

1.2.9 Activities affecting persons outside the States bound by a regional treaty 21

1.3 International peacekeeping operations:jurisdiction and imputability 22

1.4 Relationship between 'jurisdiction' and 'imputability' 25

1.5 Relationship between 'jurisdiction' and 'occupation' 28

2 ENSURING RIGHTS 30

2.1 Treaty provisions and general principles 30

2.2 The obligation to 'ensure' or 'secure' rights 32

2.2.1 Immediate and full implementation 32

2.2.2 Ensuring the separation of powers and basic principles of democracy 33

2.2.3 The requirement of reality in the justice system 34

2.2.4 Steps necessary to prevent violations of specific rights 35

2.2.5 Obligation of 'due diligence' with regard to the actions of private persons or entities 37

2.2.6 Punishment to be of a nature to deter future violations 38

2.2.7 Situations in which it is impossible to ensure respect 39

2.2.8 Clash of international obligations 41

2.3 Realization of economic,social,and cultural rights 42

2.3.1 Interpretation developed by the UN Committee on Economic,Social and Cultural Rights 42

2.3.2 Interpretation of ESCR bythe African Commission 46

2.3.3 Hybrid obligations 46

2.4 The requirement of non-discrimination 49

2.4.1 Treaty provisions 49

2.4.2 Meaning of 'discrimination' 52

2.4.3 Distinctions based on nationality 54

2.4.4 Profiling in counter-terrorism measures 55

2.5 Right to a remedy 57

2.5.1 Treaty provisions 57

2.5.2 Requirement for remedy where a violation of a treaty right is concerned 58

2.5.3 Meaning of'effective remedy' 60

2.5.4 Relationship between right to a remedy and other rights 64

2.5.5 International counter-terrorism measures and right to a remedy 66

2.5.6 Right to a remedy during states of emergency 67

3 THE REGIME OF LIMITATIONS AND DEROGATIONS 68

3.1 General principles 68

3.1.1 Some absolute rights 68

3.1.2 Freedoms with inherent limitations 68

3.1.3 Measures during an emergency 69

3.1.4 Non-discrimination 70

3.1.5 ECHR and the margin of appreciation 70

3.1.6 Derogations and limitations to economic,social,and cultural rights 70

3.2 System of limitations 71

3.2.1 General overview of treaty provisions 71

3.2.2 Provided by 'law' 72

3.2.3 Purpose 75

3.2.4 Necessity 76

3.2.5 Abuse of rights 78

3.3 System of derogations 79

3.3.1 General overview of the treaty provisions 79

3.3.2 Interpretation of 'emergency' by the treaty bodies 82

3.3.3 Derogations prohibited because they would violate other rules of international law 89

3.3.4 The overarching need to maintain the rule of law 90

3.3.5 Interpretation of 'to the extent strictly required by the exigencies of the situation' 99

3.3.6 Conclusion 104

4 THE ROLE OF INTERNATIONAL HUMANITARIAN LAW IN HUMAN RIGHTS LAW 106

4.1 Introduction 106

4.2 The International Court of Justice 106

4.3 United Nations Human Rights Council 108

4.4 Human rights treaty bodies 108

4.4.1 Treaty requirements to consider international humanitarian law 108

4.4.2 The African Commission on Human and Peoples' Rights 109

4.4.3 Inter-American Commission and Court of Human Rights 111

4.4.4 The European Court of Human Rights 115

4.5 Non-State actors 117

4.5.1 Introduction 117

4.5.2 Different approach in IHL and human rights treaties 117

4.5.3 Human rights responsibilities of non-State actors and individuals 118

4.6 Utility of using international humanitarian law in a human rights assessment 122

4.6.1 Where the two bodies of law provide the same rules 122

4.6.2 IHL rules that can be impliedly included in ESCR rules 123

4.6.3 Express reference to IHL in human rights treaties 124

4.6.4 IHL rules that do not exist in human rights treaties 124

5 INTERNATIONAL MEASURES TO PREVENT TERRORISM AND HUMAN RIGHTS PROTECTION 127

5.1 Introduction 127

5.2 Counter-terrorism treaties 128

5.2.1 Universal treaties 128

5.2.2 Regional treaties 130

5.3 Measures taken by the UN Security Council 137

5.3.1 Requirement to criminalize terrorist acts and provide mutual assistance 137

5.3.2 Sanctions regime—freezing of assets and travel restrictions 142

5.3.3 Security Council requirements for counter-terrorism measures to respect human rights 145

5.4 Measures taken by the UN Human Rights Commission and Human Rights Council 147

5.4.1 Before 2001 147

5.4.2 Resolutions on counter-terrorism and human rights after 2001 147

5.4.3 Special rapporteurs on counter-terrorism and human rights 148

5.5 Measures taken by the UN General Assembly and UN Secretary-General 149

5.5.1 Counter-terrorism treaties 149

5.5.2 Resolutions on counter-terrorism and human rights 150

5.5.3 Global Counter-Terrorism Strategy 150

5.6 International case-law relating to binding UN Security Council measures and human rights 153

PART Ⅱ ABSOLUTE PROHIBITIONS 161

6 PROHIBITION OF ARBITRARY DEPRIVATION OF LIFE 161

6.1 Treaty provisions and basic principles 161

6.2 Law enforcement operations 163

6.2.1 Basic principles 163

6.2.2 The need for an adequate legislative framework,training,and advance planning 165

6.2.3 Arrest and lack of necessity for the use of lethal force 167

6.2.4 Demonstrations and riots 169

6.2.5 Use of technologies labelled 'non-lethal' 171

6.3 Use of force during armed hostilities 172

6.3.1 Evaluation of necessity to use armed force and adequate planning 172

6.3.2 Need for proper identification of suspected rebels 176

6.3.3 Protecting the lives of injured persons 177

6.4 Death or disappearance of persons in the power of government agents 178

6.4.1 Deaths in custody 178

6.4.2 Where person was last seen with government agents 178

6.5 Responsibility of the State to protect life when killings are committed by non-State actors 180

6.6 Requirement to investigate possible violations of the right to life 184

6.6.1 When an investigation is required 186

6.7 Armed conflict and 'arbitrary deprivation of life' 188

6.7.1 Meaning of the term 'war' in human rights treaties 192

7 PROHIBITION OF TORTURE,INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT 194

7.1 Absolute nature of the prohibition 194

7.2 Definitions 196

7.2.1 Inhuman treatment or punishment 196

7.2.2 Degrading treatment or punishment 198

7.2.3 Torture 199

7.3 Evaluation of certain practices 202

7.3.1 The death penalty 202

7.3.2 Indefinite detention 205

7.3.3 Isolation 206

7.3.4 Rape and other forms of sexual violence 209

7.3.5 Use of physical force and methods of restraint 209

7.3.6 Corporal punishment 211

7.3.7 Discrimination 212

7.3.8 Lackofmedical care 212

7.3.9 Poor physical conditions of detention 213

7.4 Non-refoulement 214

7.4.1 General principle 214

7.4.2 Method of evaluating that the risk is real 214

7.4.3 Rule and evaluation method the same for all persons 215

7.4.4 Diplomatic assurances 217

7.4.5 Extraordinary renditions 218

7.5 Preventive and deterrence measures 218

7.5.1 Interrogation methods 219

7.5.2 Statements made as a result of torture may not be used as evidence 220

7.5.3 Accessto alawyer 220

7.5.4 Transparency of detention 221

7.5.5 Examination by a doctor 223

7.5.6 Detainee to be informed of his or her rights 223

7.5.7 Duty to investigate a complaint 223

7.5.8 Supervision by an independent body and complaint procedure 224

7.6 Right to humane treatment 225

7.6.1 Treaty provisions 225

7.6.2 Resolutions and other documents 226

8 PROHIBITION OF ENFORCED DISAPPEARANCES 228

8.1 Definition of 'enforced disappearance' 228

8.2 Enforced disappearance as a violation of human rights 229

8.2.1 Enforced disappearance as a serious multiple human rights violation 229

8.2.2 The right to life 230

8.2.3 The prohibition of torture,or inhuman or degrading treatment 235

8.2.4 The right to liberty and security of person 240

8.2.5 Right to a remedy 243

8.3 Specific instruments relating to enforced disappearance 246

8.3.1 United Nations Declaration on the Protection of All Persons from Enforced Disappearance,1992 246

8.3.2 Inter-American Convention on Forced Disappearance of Persons,1994 247

8.3.3 International Convention for the Protection of All Persons from Enforced Disappearance,2006 247

PART Ⅲ FUNDAMENTAL REQUIREMENTS OF DUE PROCESS 253

9 PROHIBITION OF ARBITRARY DETENTION 253

9.1 Basic principles 253

9.2 Meaning of 'detention' 254

9.2.1 Treaty provisions applicable to all forms of detention 254

9.2.2 Disciplinary measures and military service 254

9.2.3 House arrest and control orders 255

9.3 Deprivation of liberty to be in accordance with the law 255

9.4 Grounds for detention and procedure adopted must not be arbitrary 257

9.4.1 The ECHR 257

9.4.2 The other general human rights treaties 260

9.5 Administrative detention on security grounds 263

9.5.1 The ECHR 263

9.5.2 The other general human rights treaties 263

9.6 Information on reasons for detention 264

9.6.1 Treaty provisions 264

9.6.2 Meaning of 'arrest' not limited to criminal cases 265

9.6.3 Content and timing of the information 265

9.7 Access to persons outside the detention centre 266

9.7.1 Access to a lawyer 267

9.7.2 Access to a diplomatic or consular official 268

9.8 Right to supervision of the lawfulness of detention(habeas corpus) 269

9.8.1 Treaty provisions 269

9.8.2 Application to anyone in detention on request 270

9.8.3 Time within which the remedy must be available 270

9.8.4 Repetition of review 271

9.8.5 Must be heard by a court or a court-like body 271

9.8.6 Nature of evaluation and procedural guarantees 272

9.8.7 Application during armed conflict and emergency 276

10 PRE-TRIAL DETENTION 280

10.1 Introduction 280

10.2 Requirement for a lawful arrest 280

10.2.1 Arrest warrant 280

10.2.2 Arrest overseas:abduction or lawful arrest and transfer? 281

10.2.3 Arrest on reasonable suspicion of having committed an offence 282

10.2.4 Prompt information of charges against arrested person 284

10.3 Requirement to be brought promptly before a judicial officer 285

10.3.1 Treaty provisions 285

10.3.2 Purpose of this procedure 286

10.3.3 Meaning of 'promptly' 287

10.3.4 Required nature of the judicial authority 288

10.4 Right to trial within a reasonable time or to release 289

10.4.1 Treaty provisions 289

10.4.2 Basic principle 290

10.4.3 Elements that are to be taken into account 290

10.5 Derogation during states of emergency 294

10.5.1 Introduction 294

10.5.2 Requirement for a lawful arrest 295

10.5.3 Requirement to be brought promptly before a judicial officer 296

11 CRIMES AND THE PRINCIPLE OF LEGALITY 300

11.1 Legal basis required for conviction and punishment:basic principles 300

11.1.1 Treaty provisions 300

11.1.2 Non-derogability 301

11.1.3 Definition of'crime' 301

11.2 Clarity of definition of crimes 302

11.2.1 Drafting and interpretation of legal provision 302

11.2.2 Penalties 303

11.2.3 Problem of'terrorism' definition 304

11.3 Prosecution of an offence after practice of tolerance 304

11.3.1 Previous practice of not prosecuting certain persons in specific contexts 304

11.3.2 Previous non-prosecution based on amnesty legislation 306

11.4 International crimes and offences under general principles of law 306

11.4.1 International crimes 306

11.4.2 General principles of law recognized by the community of nations 315

11.5 Individual criminal responsibility and prohibition of collective punishment 316

11.5.1 Treaty provisions 316

11.5.2 Treaty-body practice 317

12 RIGHT TO BE HEARD BY A COMPETENT,INDEPENDENT,AND IMPARTIAL TRIBUNAL 318

12.1 Treaty provisions 318

12.2 Right of access to a court 319

12.2.1 Basic principle 319

12.2.2 Access limited to procedures covered by fair trial treaty provisions 320

12.2.3 Procedures relating to the expulsion of non-nationals 321

12.2.4 Lack of access because of practical restraints 323

12.2.5 Immunities 324

12.2.6 Amnesties 329

12.2.7 International organizations' counter-terrorism measures 330

12.3 Definition of competent,independent,and impartial tribunal 331

12.3.1 Meaning of'tribunal' 331

12.3.2 Meaning of'competent','established by law' 332

12.3.3 Meaning of 'independent' 335

12.3.4 Meaning of 'impartial' 336

12.3.5 Military tribunals 337

12.3.6 Special courts 342

13 ELEMENTS OF FAIR TRIAL 345

13.1 Basic concept 345

13.2 Presumption of innocence 346

13.2.1 Basic principle 346

13.2.2 Statements by the executive 346

13.2.3 Military and anti-terrorism trials 346

13.2.4 Lengthy pre-trial detention 347

13.2.5 Placing persons on a 'terrorism' list 347

13.3 Equality of arms 348

13.3.1 Basic principle 348

13.3.2 Equality and adversarial procedure 348

13.3.3 Use of confidential or anonymous evidence 349

13.4 Public hearing 353

13.4.1 Treaty provisions and basic principles 353

13.4.2 Modalities 354

13.4.3 Exclusion of the public for security reasons 355

13.5 Means of defence 356

13.5.1 Adequate services of a lawyer 356

13.5.2 Right not to be compelled to testify against oneself or to confess guilt 363

13.5.3 Information on the nature and cause of a charge 364

13.5.4 Right to call and examine witnesses 365

13.5.5 Right of an accused to be present at the trial 365

13.5.6 Right to free assistance of an interpreter if the accused cannot understand or speak the language used in court 366

13.6 Right to trial within a reasonable time 366

13.7 Right to appeal to a higher tribunal 368

13.8 Prohibition of trial more than once for the same offence(ne bis in idem) 369

13.9 Extradition to an unfair trial 371

PART Ⅳ LIMITATIONS TO FREEDOMS 375

14 THE RIGHT TO HOME,PROPERTY,FREEDOM OF MOVEMENT,AND RESIDENCE 375

14.1 Treaty provisions 375

14.1.1 Right to respect for one's home 375

14.1.2 Right to respect for one's property 375

14.1.3 Right to freedom of movement and residence 376

14.1.4 Procedures relating to the expulsion of non-nationals 378

14.2 Meaning of terms 379

14.2.1 Meaning of'home' 379

14.2.2 Meaning of 'property' 380

14.2.3 Meaning of 'freedom of movement and residence' 384

14.3 Destruction of property,forcible evictions,and internal displacement as a result of military operations 385

14.4 Restrictions on or loss of property,home,and movement during occupation 389

14.4.1 Loss of access to home or property 389

14.4.2 Destruction of property as a penalty 394

14.4.3 Restrictions on movement 395

14.4.4 Taking of occupied territory's natural resources 397

14.5 Counter-terrorism measures 398

14.5.1 Non-access to assets or other funds 398

14.5.2 Travel and residence restrictions 400

15 PARTICIPATION IN PUBLIC LIFE:FREEDOM OF EXPRESSION,ASSOCIATION,AND CONSCIENCE 401

15.1 Treaty provisions 401

15.1.1 Freedom of opinion and expression 401

15.1.2 Freedom of association and assembly 403

15.1.3 Right to conscience and religion 404

15.2 Meaning of terms 405

15.2.1 Meaning of'expression' 405

15.2.2 Meaning of 'association' and 'assembly' 410

15.2.3 Meaning of 'conscience' and 'religion' 412

15.3 Interpretation of limitations to freedom of expression 414

15.3.1 Meaning of certain terms in the limitation clauses 414

15.3.2 Expression perceived as supporting illegal organizations,enemy nations,or terrorism 415

15.3.3 Hate speech and war propaganda 419

15.3.4 Limitations on the press 421

15.4 Interpretation of limitations to freedom of association and assembly 424

15.5 Interpretation of limitations to manifestation of belief 426

15.6 Protection of the military and secret service 428

15.6.1 Protection of military or security information 428

15.6.2 The maintenance of military discipline 431

15.6.3 Conscientious objection to military service 433

15.7 Restrictions during military occupation 435

15.8 Restrictions on political parties 436

15.9 Restrictions on demonstrations and public protests 440

16 PROTECTION OF THE PERSONAL SPHERE:RIGHT TO PRIVATE AND FAMILY LIFE 444

16.1 Treaty provisions 444

16.2 Meaning of terms 445

16.2.1 Meaning of 'private life' 445

16.2.2 Meaning of 'family life' 445

16.3 Restrictions on prisoners 446

16.3.1 Correspondence 446

16.3.2 Contact with the family 448

16.4 Surveillance,interception,and searches 449

16.4.1 Secret surveillance 449

16.4.2 Search of premises 452

16.4.3 Search of a person and personal belongings 453

16.5 Databases 454

16.6 Placement on terrorism lists 457

16.7 Expulsions and displacement 457

16.7.1 Expulsions 458

16.7.2 Displacement as a result of conflict 462

16.8 Restrictions imposed during military occupation 463

PART Ⅴ PROTECTION OF VULNERABLE AND DISADVANTAGED POPULATIONS 467

17 ECONOMIC,SOCIAL,AND CULTURAL RIGHTS IN SITUATIONS OF VIOLENCE 467

17.1 Elements relevant to application in such situations 467

17.1.1 Possible derogations or limitations 467

17.1.2 Economic sanctions 470

17.1.3 Role of international humanitarian law 472

17.2 Interpretation of economic,social,and cultural rights in armed conflict situations 476

17.2.1 Case-law 476

17.2.2 General Comments of the CESCR 480

17.2.3 Concluding Observations of the CESCR 482

17.2.4 Fact-finding reports 486

17.2.5 Conclusion 490

17.3 Protection of ESCR through civil and political rights' individual petition systems 492

17.3.1 Rights included in both types of human rights treaties 492

17.3.2 Interpretation of civil rights covering also economic and social rights 492

17.4 Counter-terrorism measures and ESCR 494

17.4.1 Effect of restrictions to civil and political rights on ESCR 494

17.4.2 Effect of certain national counter-terrorism measures 494

17.4.3 Effect of being on the UN Security Council sanctions list 495

17.4.4 Conditions conducive to the spread of terrorism 496

17.4.5 Consideration of ESCR for emergency measures 497

17.4.6 Consideration of ESCR for peace agreements 498

18 VULNERABLE GROUPS DURING ARMED CONFLICT AND OTHER VIOLENCE 499

18.1 Recognition of vulnerable groups 499

18.2 Gender discrimination 500

18.2.1 Definition and impact on poverty and violence 500

18.2.2 Legal regulation of gender discrimination 501

18.2.3 Recognition of gender discrimination in situations of armed conflict 502

18.2.4 Militarization of boys 507

18.2.5 Legal requirements to counter gender discrimination in conflict situations 507

18.3 Violence against women 508

18.3.1 Phenomenon during conflict based on pre-existing attitudes 508

18.3.2 Legal prohibition of violence against women 511

18.3.3 Required preventive and reparation measures 515

18.4 Respecting human rights of people under 18 years of age 517

18.4.1 Specific problems faced by young children and adolescents in situations of violence 517

18.4.2 Requirement in human rights treaties to respect IHL rules that protect children during armed conflict 519

18.4.3 Human rights rules applicable to children 521

18.4.4 International practice on the application of children's rights in armed conflict 523

18.4.5 Classification of the most serious abuses by the UN Security Council 525

18.5 Law relating to the use of persons under 18 in the army and armed groups 526

18.5.1 Law relating to recruitment and use of such persons 526

18.5.2 Law relating to demobilization and reintegration 531

Select Bibliography 535

Index 541