Law in Times of Crisis Part 7 pps

model application: accommodation 281 and willingness to enquire fully into the reasons for the government’s legal response, and thus probe the primary question of emergency justification. Brannigan and McBride, which followed Brogan, confirmed the trend that democratic states resorting to the use of emergency powers in the European system experenced an ‘‘easier ride” than their newer or less ostensibly liberal counterparts. It also verified the unwillingness of the court to look behind the stated rationale for formal accommodation by states whether in legislative or executive form. A critical analysis of the case reveals that the court failed to examine the possibility that the United Kingdom’s derogation was simply a response to an adverse court decision. 112 The facts of Brannigan and McBride were substantially similar to those of Brogan. This time, however, the British government conceded that article 5(3)’s promptness requirement had not been met. However, the government invoked as a defense the derogation notice it had submit- ted in December 1988, claiming that the article 5(3) violation was jus- tified under article 15. The issue, then, was whether the derogation was a valid one under article 15, namely the very question that the court did not have to deal with in Brogan. 113 The applicants in this case contended specifically that the derogation entered by the state was merely a mechanical response to the finding in Brogan. Amicus briefs stressed to the court that there existed empirical evidence to dispute the claim that a truly exceptional situation existed justifying a con- tinued state of emergency. 114 Yet both the court and the commission maintained that while the judgment in Brogan ‘‘triggered off” 115 the derogation, there was no reason to conclude that the derogation of 1988 was anything other than a ‘‘genuine response” to a persistent emergency situation. 116 The unwillingness of the court to examine whether the state was ac- tually experiencing such a level of violence and threat that necessitated a resort to emergency powers is a clear manifestation of an unwarranted non-interference principle. It points to the dangers we have illustrated in chapter 1 that accommodation models do not necessarily encourage the judicial branch to act as a meaningful guardian of individual rights and liberties. It demonstrates timidity on the part of the court, which parallels the general responses of domestic courts to review of crisis 112 Brannigan and McBride, at 37. 113 Brogan, para. 48, at 28. 114 Brannigan and McBride, at 36. 115 Ibid., para. 51 at 34. 116 Ibid. 282 international human rights and emergencies powers by the state. 117 It shows that while accommodation models keep the state’s regulation of emergency within the frame of law, this may not actually be synonymous with meaningful legal oversight of crisis powers. Moreover, the court’s statement that there was no indication that the derogation was other than a genuine response seems to mean that the applicants had to demonstrate that the derogation was not gen- uine. This illustrates the danger of the burden of proof shifting silently in favor of the state in a way that circumvents the rationale behind the accommodation model’s legal foundations and creates the danger that it functions only as an edifice for accountability. The Brannigan and McBride decision also serves to illustrate another theme we have highlighted in respect of international judicial oversight, namely, the particularly difficult problem that international courts en- counter when they seek to confront permanent emergencies. As noted above, one of the ‘‘four basic elements” of an emergency is its provi- sional and temporary character. 118 We have argued elsewhere that, all other things being equal, the longer an emergency persists the narrower, not wider, the margin of appreciation to the state should be. 119 Yet, in Brannigan and McBride, the court adopted an extremely broad conception of the margin of appreciation, stating that: By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities. 120 More generally, in the Northern Ireland cases and in a series of cases emanating from the conflict in Turkey, the European Court and Commis- sion have consistently sidestepped the issue of permanent emergencies by regarding each derogation case as a singular exception. By doing so the court ignores the fact that the same respondent government may be appearing frequently before it with respect to the same situation of exigency. By refusing to regard the history or frequency of previous derogations as relevant to the arbitration of the particular issue before 117 Alejandro M. Garro and Henry Dahl, ‘‘Legal Accountability for Human Rights Violations in Argentina: One Step Forward and Two Steps Backward” (1987) 8 Human Rights Law Journal 284. 118 Chowdhury, Rule of Law in a State of Emergency, pp. 24 29. 119 Gross and N ´ ıAol ´ ain, ‘‘From Discretion to Scrutiny.” 120 Brannigan and McBride, para. 43, at 49 (emphases added); see also ibid., para. 59, at 54. model application: accommodation 283 the court, the issue is never addressed. This makes evident in the in- ternational context the problems of separation between normalcy and emergency that arise in the regulation of emergencies, as outlined in chapter 4. This also serves to illustrate a wider point, explored further below, that the conceptualization of emergencies in international legal thinking is limited. Accommodation models match the ‘‘ideal” form of derogation, where the state derogates for a finite period of time and then following the emergency’s end returns to the status quo ante. How- ever, in practice accommodation models are ill-tested in coming to terms with the ‘‘aberrational emergency,” i.e., that emergency which is perma- nent, undisclosed, or complex in nature. The point becomes particularly apparent when one examines the Turkish cases concerning article 15 which have come to the court. A common thread of these cases is the allegations of ongoing human rights abuses in the struggle against the Kurdistan Workers Party (PKK). Turkey has invoked article 15 derogations for much of the time since 1970. Domestically, most of the provinces of south-eastern Turkey have been continuously subjected to an emergency regime. The Turkish cases highlight a number of the general themes we have identified in earlier cases. First, concerning the variance in the court’s approach to the primary justification question contrasted with the sec- ondary question regarding the proportionality of emergency measures, the Turkish cases provide some interesting interpretive nuances. We sug- gest that these cases prove that the court can be fairly robust when it comes to measuring the necessity and proportionality of particular measures taken by a derogating state. Second, the court demonstrates a markedly more activist jurisprudence when faced with a recalcitrant state whose democratic credentials are suspect. Third, the cases reveal a structural inability to deal credibly with permanent emergencies. Fi- nally, due process rights remain consistently and flagrantly violated by states resorting to emergency powers and practices, whether they are derogating formally from their treaty obligations or not. In Aksoy v. Turkey, the commission and the court examined the validity of the Turkish derogation from article 15 in the context of the appli- cant’s detention and alleged ill-treatment in custody for approximately fourteen days in November 1992. 121 The derogation in place was limited 121 Aksoy v. Turkey, 23 Eur. HR Rep. 553 (Dec. 18, 1996). There was dispute as to the length of detention time. The commission, based on its fact-finding mission to the region, concluded that the applicant was held for at least fourteen days. Ibid., at para. 23. 284 international human rights and emergencies to article 5 protections only. Both commission and court demonstrated again their reluctance to examine substantively the emergency justifi- cation question. Thus, the commission briefly disposed of the question, concluding that: ‘‘There is no serious dispute between the parties as to the existence of a public emergency in South-East Turkey threatening the life of the nation. In view of the grave threat posed by terrorism in this region, the Commission can only conclude that there is indeed a state of emergency in South-East Turkey which threatens the life of the nation.’’ 122 For its part, the court examined the issue only perfunc- torily, ruling that ‘‘in the light of all the material before it . . .the par- ticular extent and impact of PKK terrorist activity in South-East Turkey has undoubtedly created, in the region concerned, a ‘public emergency threatening the life of the nation.’” 123 The court repeated its consistent assertion that states had a ‘‘wide margin of appreciation” in deciding whether they were facing a public emergency. 124 It did not second guess the state’s call that an emergency was in play, nor seek to tease out the role of the state versus the role of non-state actors (if any) in the circum- stances which created the emergency. This approach is striking when contrasted with three other elements of the court’s decision. First, the court asserted that in exercising its supervision over states’ actions, it ‘‘must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation and the circumstances leading to, and the duration of, the emergency situation.’’ 125 Second, discussing the Turkish government’s compliance with the notification requirements of article 15(3), the court pointed out that it was competent to examine this issue of its own motion, although none of those appearing before it had contested that Turkey’s notice of derogation complied with the formal requirements of article 15(3). 126 Finally, as regards the secondary question of proportionality of measures the court was markedly more in- terventionist. Reiterating its view that seven-day detention accompanied by derogation (the Brannigan situation) was within the bounds permissi- ble under the European Convention, it went on to state that fourteen-day detention was outside that perimeter. 127 Thus, an article 5 violation was upheld notwithstanding the state’s derogation. Regarding the difference of approach toward democratic states and those with more suspect credentials, the Sakik and Others v. Turkey case is 122 Ibid., at 572 (Commission report). 123 Ibid., at 587. 124 Ibid., at 571, 586 87. 125 Ibid., at 587 (emphasis added). 126 Ibid., at 590. 127 Ibid., at para. 84. model application: accommodation 285 instructive. 128 The case concerned the arrest and detention of six former members of the Turkish National Assembly who were prosecuted in a national security court. At issue was extended detention (fourteen days) and all the detainees had been charged with terrorist offenses. The court showed a markedly less deferential stance to the state’s views than was evident in the Northern Ireland cases. The applicable derogation had been submitted in August 1990. The notice was highly specific both in its geographical scope of application and the rights affected (article 5). The judgment is particularly illuminating as the court made some substantial inroads on meaningfully assessing the primary question of emergency justification. The court reviewed whether the derogation in force at the time of the alleged violation was in fact applicable to the facts of the case. It found that the derogation applied only to the region where a state of emergency had been proclaimed, and did not include the city of Ankara (where the applicants were arrested, detained, and subjected to trial). Thus, the court forcefully held that it would be work- ing against the purpose of article 15 if the territorial scope of the provi- sion were to be extended judicially to a part of the state not explicitly named in the notice of derogation. The court here was working through and applying spatial distinctions to the exercise of emergency powers, and on some level seeking to make legally meaningful the political and legal characteristics held by the state itself, which maintained that two legal regimes could be contemporaneously applied within the territory controlled by the state. In this case the court held that article 15 did not apply to the facts of the case. The procedural point marks a neat but substantial barrier created by the court to state use of the derogation mechanism. Instead of accepting the government’s position that the terrorist threat was not confined to any particular part of the state and that an expansive reading was required to ensure a return to normality in the jurisdiction, the court required the state to live with the consequences of its own political assessment of the threat as expressed in the notice of derogation. While setting a strong procedural precedent, the approach holds some dangers in that the state might simply respond by reformulating the derogation to have wider territorial scope. Yet, this is a court setting limits on the boundaries of interpretive accommodation. The court’s language and tone are entirely different from that of its Brogan and Brannigan and 128 Sakik and Others v. Turkey [1997] ECHR 95 (Nov. 26, 1997), 58 Reports of Judgments and Decisions 2609, 2628, Holding PP 2, 5, 7 (1997-VII). 286 international human rights and emergencies McBride jurisprudence where the court demonstrated little willingness to second guess the bona fides of the state in its choice of executive response to an adverse derogation decision. Obviously, the democratic credentials of the state under scrutiny may affect this assessment. This again highlights the difference of judicial analysis with respect to the lesser established democracies, one that is not always positive for the overall standards set in derogation review. The Sakik judgment also has a number of contributions to make con- cerning the violation of due process rights. The court’s views have strong contemporary resonance in light of the procedures put in place by the United States with respect to persons detained in Afghanistan and Iraq. 129 These views are particularly important given our contention that the case law demonstrates that the first port of call for states when faced with a crisis is to modify or limit the application of due process rights. The Turkish government argued that the scale and nature of the terror- ist threat had made it particularly difficult to obtain evidence, thereby making it difficult to proceed with trials in a speedy fashion. While acknowledging that terrorist offenses presented meaningful difficulties for the state, the court trenchantly held that ‘‘This does not mean, how- ever, that the investigating authorities have carte blanche under Article 5 to arrest suspects for questioning, free from effective control by the domestic courts and ultimately, by the Convention supervisory institu- tions, whenever they choose to assert that terrorism is involved.” 130 The court went on to state that the time the applicants were held in police custody (twelve and fourteen days respectively) fell outside the strict con- straints of article 5(3). Most compelling was the court’s statement that even ‘‘supposing that the activities . . . were linked to a terrorist threat,” the court could not accept that it was necessary to detain the appli- cants for the time periods in question without judicial intervention. 131 One can again speculate as to whether the democratic credentials of the state have some bearing on the robustness of the judicial analysis. These themes of heightened scrutiny in respect of suspect democra- cies allied with the frailty of due process rights in times of emergency are also evident in Demir and Others v. Turkey. 132 The decision in this case 129 See, for example, Executive Order of Nov. 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism, 66 Fed. Reg. 57, 833 (Nov. 13, 2001), para. 4. 130 Sakik and Others v. Turkey, at para. 44. 131 Ibid., at para. 45. 132 Demir and Others v. Turkey (21380/93) (1998) ECHR 88 (Sept. 23, 1998). model application: accommodation 287 also confirms the court’s activism regarding the proportionality aspects of derogation. The three applicants were politically active, holding po- sitions in the People’s Social Democratic Party. All three were arrested in 1993, and were held for between sixteen and twenty-three days. 133 They were subsequently charged and convicted of offenses under the Criminal Code and Terrorism Act. At the time of the arrests the Turkish derogation was expressly limited to article 5. The court briskly held, with reference to Brogan v. United Kingdom, that the periods of detention in Demir failed to satisfy the requirement of ‘‘promptness” laid down in article 5(3). 134 This was notwithstanding the government’s insistence that the measures were taken to protect the community from terrorism. Without elaboration the court noted that, where necessary, the authorities facing terrorist threats could ‘‘develop forms of judicial control which are adapted to the circumstances but compatible with the Convention.” 135 It then examined the government’s contention that the derogation absolved it of any convention violation. The court affirmed that states enjoyed a ‘‘wide” margin of appreciation in deciding the presence of an emergency and the nature and scope of the derogation necessary to deal with it, confirming its generally def- erential approach to the emergency justification question. In deciding whether the state had overstepped the bounds of derogation, the court weighed such factors as the nature of the rights affected by the deroga- tion as well as the circumstances leading to, and the duration of, the emergency. 136 Once again, the court accepted that a public emergency ‘‘threatening the life of the nation” existed in south-east Turkey. The court was more stringent in its requirements when reviewing the specific measures that Turkey had invoked. It seemed particularly struck by the state’s failure to show why ‘‘the fight against terrorism in south- east Turkey rendered any judicial intervention impracticable.” 137 It noted that the mere fact that a detention is in conformity with domestic law does not fireproof it from an article 15 review. 138 Nor was the court prepared to agree with the government’s position that article 5(3) could not be applied when investigations were ongoing. Instead it asserted that this was precisely when article 5(3) was enforceable. 139 It further held that subsequent conviction for terrorist offenses had no bearing on the question of whether there was a ‘‘situation which necessitated 133 The exact length of detention was disputed by the parties. Ibid., at 13. 134 Ibid., at paras. 39 41. 135 Ibid., at para. 41. 136 Ibid., at para. 43. 137 Ibid., at para. 51. 138 Ibid., at para. 52. 139 Ibid. 288 international human rights and emergencies the detention of suspects incommunicado for such lengthy periods.’’ 140 In short, the applicants’ subsequent terrorism-related convictions did not retroactively justify lengthy periods of prior detention. The court was also concerned about the lack of safeguards during the detention, especially lack of access to counsel and the insufficiency of medical oversight. In conclusion the court held that the length of detention was not strictly required by the crisis. The Demir case arguably demonstrates how a lack of scrutiny on the primary question does an emergency exist that could justify a deroga- tion? was traded off against the narrower question of the necessity and proportionality of the specific emergency measures taken by the respon- dent state. This reflects the regional political balancing of the court: a necessary degree of deference to the contracting states, while leav- ing enough space to mount a credible defense of convention-protected rights around it. It also reflects a central tension of accommodation models and more specifically of their oversight, namely, that while one can tinker within the models to measure the breadth and scope of legal conformity within the assigned legal space, this rarely extends to allow for the core regulatory aspects of the models themselves to come under scrutiny. That is to say, it generally operates on the assumption of the general necessity for a legally regulated crisis response, but has a lim- ited legal and political vocabulary to challenge the reality of the crisis assertion in the first place. This approach has continued in the court’s case law since the events of September 11, 2001. For example, in Ocalan v. Turkey the court found that while the investigation of terrorist offenses undoubtedly presented the authorities with special problems, ‘‘this does not mean that the investi- gating authorities have carte blanche under Article 5 to arrest suspects for questioning, free from effective controls by the domestic courts.’’ 141 In Al- Nashif v. Bulgaria, a case concerning deportation and detention, the court determined that national authorities could not ‘‘do away with” effective control of the lawfulness of detention by choosing to assert that na- tional security and terrorism were involved. 142 Yet, a thorough review of whether invoking an emergency is per se justified remained consistently 140 Ibid., at para. 53. 141 Ocalan v. Turkey (46221/99) (2003) ECHR 125 (Mar. 12, 2003), para. 106; Filiz and Kalkan v. Turkey (34481/97) (2002) ECHR 504 (June 20, 2002), paras. 25 26. 142 Al-Nashif v. Bulgaria (50963/99) (2002) ECHR 497 (June 20, 2002), paras. 94, 123 24. A more thorough examination of the court’s review of terrorism-related cases is contained in chapter 7. model application: accommodation 289 off limits. This means that states can rest assured, to some degree, that their overall sovereign rights to resort to exceptional measures in times of crisis are not affected, nor will their political reactions and measure- ments be undercut. However, at the point of exercising these limitations states also know that the court will operate as if it is applying the twin tests of proportionality and necessity to their assessment of state behav- ior. This is classic accommodation being practiced by an international court. This supervision is not meaningless, and certainly not without effect. However, it generally fails to deal with the wider problems that accompany emergencies, namely, the tendency for emergencies to be prolonged and to become permanent; the capacity of emergency powers to be subsumed into the ordinary law; and the capacity of emergency powers to distort the normal functions of executive, legislative, and judi- cial power within states. These problematic characteristics will be dealt with below. Judicial accommodation at the Inter-American Court The Inter-American human rights enforcement system tracks the twin accommodation structures along similar lines to the European Conven- tion. The American Convention itself acts as a form of international legislative authority for contracting states to derogate, and the case law of the Inter-American Court provides an interpretive accommodation mechanism for states in times of crisis. However, while many of the issues that we have highlighted in respect of the European Court of Human Rights are duplicated by its Inter-American counterpart, there are some notable differences. The jurisprudence of the Inter-American Court of Human Rights is markedly sparser than that of the European Court. This is in part ex- plained by the fact that the role of the Inter-American Commission on Human Rights is different from that fulfilled in the past by the Eu- ropean Commission. The IACHR plays a prominent part in regulating the recourse to emergency powers in the region. As we trace below, the court has been extremely activist in its emergency-related jurispru- dence, a product of the hemisphere’s long and tragic experiences with dictatorships, authoritarian regimes, and the profound abuse of emer- gency powers. We also suggest that the suspect quality of many of the region’s democracies, particularly in the early years of the court’s exis- tence, confirms the pattern of more stringent review with problematic democracies. The court’s jurisprudence also affirms the pressure that due process rights experience in times of crisis. Finally, there is also 290 international human rights and emergencies strong evidence of structural and jurisprudential limitations when con- fronting permanent states of emergency. Many of these themes are highlighted in the first and most significant case before the Inter-American Court, namely the advisory opinion in Judicial Guarantees in a State of Emergency. 143 As we noted above, limitations on due process rights are often the first port of call for states limiting rights protections in times of crisis. The European Convention, the American Convention, and the ICCPR all allow for derogation of due process rights. A significant test for the en- forcement and monitoring bodies that operate under these treaties is the extent to which they are prepared to defend robustly limitations on such crucial rights. The Judicial Guarantees decision demonstrates the strengths of the Inter-American Court in this respect. In finding an expansive scope for the non-derogable character of judicial guarantees the court recognized that the exercise of emergency powers was poten- tially fraught with abuse and could lead to subversion of the democratic order. 144 The court was clearly setting limits on its willingness to accom- modate, essentially limiting the expansion of state powers in times of crisis. The court took a far-reaching view on interlinking rights in emer- gency contexts rather than narrowing its focus on non-derogable rights per se. It examined the extent to which judicial guarantees and reme- dies could be minimized in a period of emergency in accordance with article 27 of the American Convention. 145 Here the court concluded that some fundamental guarantees may never be excluded and that ‘‘judicial guarantees essential for the protection of such rights” are immune from limitation. 146 It held that the due process guarantees of article 8 which protect the right to fair trial, and which include the right to a hearing by a competent, independent tribunal; the right to be presumed innocent; the right to notification of pending criminal charges; the right to coun- sel of choice; the right to examine witnesses; and the right of appeal to a higher court could not be suspended in times of emergency in so far as they are prerequisites for the necessary functioning of judicial safeguards. Unique about this judgment is the court’s multi-layered approach, recognizing rights as knitted into one another, interdependent and in- separable. Thus, to speak of rights protection in situations of emergency is to weave together the rights that guarantee protection rather than 143 Judicial Guarantees in States of Emergency, at 24. 144 Ibid., at 98. 145 Ibid., at 24. 146 Ibid. [...]... required to be independent and impartial Because the armed forces in Peru were simultaneously involved in counterinsurgency and prosecuting those charged with actions resulting from alleged insurgency, there was a clear absence of judicial impartiality.169 Most significant was the court’s insistence that the demands of fair trial in a situation of emergency required ‘‘the active involvement of an independent... be limited.151 Even in times of crisis the state operates within the rule of law and cannot operate outside the law to protect the legal and political order.152 The court says that the right to derogate ‘‘does not mean that the suspension of guarantees implies a temporary suspension of the rule of law, nor does it authorize those in power to act in disregard of the principle of legality by which... proceedings in their faceless and secret form constituted a violation of article 8(5) which guarantees the right to public proceedings. 171 Concluding our overview of the case law of the Inter-American system we note the strength of review and accountability of governmental response to crisis in the region is not solely dependent on the strength of the court’s jurisprudence One of the unique features of. .. timely opportunity for assessment of the internal conflict in, and the responses of, the state. 173 The breadth of access and issues identified is striking Even more striking is the 168 170 171 172 173 169 Ibid., at para 129 Ibid., at para 128 Ibid., at para 131, citing Habeas Corpus in Emergency Situations, at para 30 Also of note is the finding by the court that the guarantees of article 25 (Right to a Remedy)... emergencies, particularly situations of permanent emergency Third, there is a preponderance of cases concerning individual violations of due process rights in times of emergency coming before the committee in the derogation context Finally, the committee has demonstrated, within the limitations noted above, some willingness to confront state overreaction to perceived internal threats, allegedly undermining... Fitzpatrick, Human Rights in Crisis: The International System for Protecting Rights during States of Emergency (Philadelphia: University of Pennsylvania Press, 1994) 302 international human rights and emergencies The HRC has traditionally failed to assess the existence of emergency in certain states and has frequently declined to endorse the principle of proportionality in its examination of state practice.192... during which rights are suspended without proclamation or notification, or suspension of rights is continued after termination of a formal emergency; (3) the permanent emergency arising out of continual and decreasingly valid formal extensions of the emergency; (4) the complex emergency involving overlapping and confusing legal regimes through partial suspension of constitutional norms and issuance of. .. Paris Minimum Standards of Human Rights Norms in a State of Emergency They reflect eight years of study by the International Law Association (ILA) from 1 976 to 1984, setting out a consensus on a set of minimum standards to govern the declaration and administration of states of the gap between theory and practice 311 emergency that threaten the life of a nation.232 In this comprehensive study of the... which would in any way adversely affect the enjoyment of human rights.’’201 It is also worth noting that, seeking to augment its oversight capacity while recognizing its own remedial limitations, the HRC decided in 1 979 that it could take into account, when examining emergency and derogation, information from other United Nations organs including 196 1 97 198 199 200 201 ‘‘Concluding Observations of the... : a c c o m m o da t i o n 2 97 willingness of the commission to acknowledge and apply not only the standards of international human rights law but also norms that flow from international humanitarian law This interlinking is critical in those situations where the emergency flows directly from some form of armed conflict taking place within the state, and where bifurcation of legal norms can actually serve . ongoing human rights abuses in the struggle against the Kurdistan Workers Party (PKK). Turkey has invoked article 15 derogations for much of the time since 1 970 . Domestically, most of the provinces. form of international legislative authority for contracting states to derogate, and the case law of the Inter-American Court provides an interpretive accommodation mechanism for states in times of. suspension of guarantees implies a temporary suspension of the rule of law, nor does it authorize those in power to act in disregard of the principle of legality by which they are bound at all times. ’’ 153 As