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  This module is a resource for lecturers  

 

Examples of terrorism related states of emergency and derogations

 

The formal reporting of derogations, as is required by article 14(3) ICCPR to reduce the potential for their misuse, on the grounds of terrorism/counter-terrorism does not occur often, reflecting its exceptional nature. Sometimes, an emergency such as a terrorist attack may have been quickly dealt with before it was necessary or possible to declare a state of emergency, depending upon factors such as its scale and effect. This mechanism exists due to the potential for human rights violations to occur, as well as because of the risk that any suspension of normal rule of law systems and processes may result in longer term undermining of the rule of law within a State, including its ordinary due process guarantees and sanctions for suspected or convicted terrorists.

In terms of the form that restrictions resulting from a state of emergency and any related derogations may take, commonly these will give the executive special powers regarding arrest, searches, restrictions of liberty including longer periods of pre-charge and pre-trial detention, suspension or limitation of habeas corpus, reduced access to legal representation and advice, the utilization of military courts or commissions to try civilian suspects, restrictions on disclosure of and access to classified evidence, the lowering of evidentiary standards, limitation on appeal rights, the imposition of curfews, the prohibition of public meetings, the disbanding of associations/groups, limitations on the right to privacy, restrictions on media reporting and social media, border restrictions, the mobilization of the army, and so forth (see Modules 10, 11, 12 and 13 especially).

The tables below detail some examples of occasions on which States have made formal declarations of states of emergency on terrorism related grounds, resulting in derogations from the ICCPR and ECHR. The tables do not reveal the full context, such as whether or not the declaration was made by a democratic or authoritarian regime, or how the term "terrorism" was defined including for political purposes. Furthermore, sometimes de facto states of emergency can exist in the context of countering terrorism, whether for a few days or a few years, which are not formally declared. These tables are included here for the purpose of illustration and discussion only. The inclusion of these cases, or exclusion of others, does not represent or reflect any view of UNODC or carry with it any associated inference.

Terrorism-related derogations under article 4(3) of the International Covenant on Civil and Political Rights*

 

Azerbaijan

  • 20-hour state of emergency following an attack on 4 October 1994; later extended for a period of 60 days.
  • Derogation made from articles 9, 12, 19 and 22.
 

Chile

  • State of emergency declared following wave of terrorist aggression on 16 September 1986.
  • Derogation made from articles 9, 12, 13 and 19.
 

Colombia

  • Declared a state of emergency three times in response to terrorist activities by guerrilla organizations and organized crime syndicates on 16 July 1992, 10 November 1992 and 3 November 1995.
  • Derogations made from articles 12, 17, 21 and 22.
  • Further derogations made from articles 9 and 12 on 18 June 1996 "to control the activities of criminal and terrorist organizations in special public-order zones".
 

France

  • Declared a state of emergency on 23 November 2015 following terrorist attacks in Paris.
  • Derogations made from articles 9, 12 and 17.
  • Renewed periodically between 26 February 2016 and 14 July 2017. Formally ended on 1 November 2017 with the introduction of a new counter-terrorism law.
 

Israel

  • Declared on 3 October 1991 that the state of emergency proclaimed in May 1948 has remained in force ever since due to the "continuous threats and attacks on its very existence as well as on the life and property of its citizens".
  • Derogations made from article 9.
 

Nepal

  • Declared a state of emergency on 26 November 2001 in response to the "serious situation arising out of terrorist attacks perpetrated by the Maoists in various districts, killing several security and civilian personnel and attacking the government installations".
  • Suspended numerous rights under its own constitution, including the right to freedom of opinion and expression, freedom to assemble peacefully, right to press and publication, right against preventive detention, the rights to information, property, privacy and constitutional remedy; but declared that the rights contained in articles 6, 7, 8 (1) and (2), 11, 15, 16 of the Covenant remained in effect.
  • Further declared a state of emergency on 1 February 2005 in response to a threat to the nation's sovereignty and the "untold sufferings brought about by the rise in terrorist activities throughout the country".
  • Derogated from articles 2(3), 12(1) and (2), 17 and 19.
 

Russia

  • Declared a state of emergency on 22 June 1993, "in view of the deterioration of the situation and the increased frequency of terrorist acts and widespread disorder on national soil involving the use of firearms".
  • Derogated from articles 9, 12, 19, 21 and 22.
  • Declared state of emergency on 30 September 1993 in several districts due to "the increase in the number of acts of terrorism and violence".
  • Derogated from articles 12(1), 13, 19(2) and 22.
  • Declared a further state of emergency on 4 April 1994 due to continuing tensions and "unceasing acts of terrorism and violence, including violence against the civilian population".
  • Derogated from articles 12(1), 19(2), 21, 22(1) and 22(2).
 

Sri Lanka

  • Promulgated constitutional emergency regulations on 2 May 2010 to deal with the threat of terrorism posed by the Liberation Tigers of Tamil Eelam (LTTE).
  • Following elimination of the threats posed by the LTTE emphasised the need for vigilance to prevent potential future threats, but nonetheless enumerated the terminations of derogations from articles 9(2), 12, 14(3), 17(1), 19(2), 21 and 22(1).
 

United Kingdom

  • On 17 May 1976, no state of emergency was declared; but a declaration was made to extend powers in response to "campaigns of organized terrorism related to Northern Irish affairs".
  • On 18 December 2001, following the 9/11 attacks, recognized that there "exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism" and that "[a]s a result, a public emergency, within the meaning of article 4(1) of the Covenant exists".
  • Derogated from article 9.
* See: Treaty ratification status.
 

Terrorism related derogations under article 15 of the European Convention on Human Rights*

A small number of Contracting Parties to the European Convention on Human Rights have derogated from its provisions under article 15. To date, these have included Albania, Armenia, France, Georgia, Greece, Ireland, Turkey, Ukraine and the United Kingdom.

The most recent declarations of states of emergency which have or which may result in derogations are:

Ukraine

  • 5 June 2015 notification to the Council of Europe due to deteriorating security situation in the East of Ukraine (subsequently renewed on 4 November 2015, 30 June 2016, 2 February 2017; extant at the time of writing).
  • Derogated from articles 5, 6, 8 and 13.
 

France

  • 24 November 2015 notification to Council of Europe, following large scale terrorist attacks, initially in Paris (subsequently renewed on 25 February 2016, 25 May 2016, 22 July 2016, 21 December 2016 and 13 July 2017; ended on 1 November 2017).
  • Kept open option of derogation.
 

Turkey

  • 21 July 2016 notification to Council of Europe following attempted coup d'état (subsequently renewed on 17 October 2016, 5 January 2017, 19 July 2017, 19 October 2017 and 19 January 2018).
  • Kept open option of derogation.
* European Court of Human Rights (2018). Derogation in time of emergency: Factsheet . April.
** See: Council of Europe portal, Treaty Office 'Search on States and International Organisations' search tool.
 

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