In the first report since her appointment in August 2017, Fionnuala Ní Aoláin, UN special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, details the relationship between states of emergency and sustained human rights violations. In the report (A/HRC/37/52, 27 February 2018), she encourages governments to adopt guidelines while countering terrorism to address the problems of permanent emergencies.
“Recalling that human rights law considers war as a justified legal basis for the declaration of emergency … the post-9/11 articulations of fighting a global war on terror may have muddied the legal and rhetorical waters on the legal basis for emergency powers,” the report states.
Aoláin clarifies that while international law recognizes “the permissibility of certain restrictions on certain rights and freedoms during emergencies”, these measures must be necessary, proportionate and consistent with international law obligations. If states must suspend their international human rights obligations, the limitations must be necessary; impinge only minimally on rights (least restrictive alternative); demonstrate proportionality between means and clearly stated objectives; and be consistent with other fundamental rights and non-discriminatory in purpose and practice.
In many contexts, random acts of terror do not reach the necessary threshold to activate emergency powers. International law requires states to use ordinary law if emergency measures are not strictly necessary. Aoláin asserts that overreaction by governments can exacerbate violence and inadvertently bolster conditions conducive to terrorism. “When emergency powers are misused, overused and misapplied, the consequences for the rule of law, accountability and transparency are devastating,” she notes.
Empirical data demonstrates the nexus between situations of extended emergency and sustained human rights violations, according to the report. Current reviews show that the UN counterterrorism architecture rewards states for producing more forceful counterterrorism legislation (in compliance with UN Security Council resolution 1373). “Security Council resolutions on counter-terrorism are not a carte blanche for the denial of human rights nor are they cover for nefarious political action unrelated to the specific content of the resolutions.” Essentially, the absorption of emergency statutes into a state’s ordinary legal framework normalizes human rights violations, the report explains.
The Special Rapporteur’s guidelines:
1. Emergency powers should be “tailor-made to a specific and defined crisis”. States should establish deadlines to end emergency powers and return to normal legal regulation.
2. Emergency powers are easier to distinguish and effectively end when they are not hidden in the ordinary law. When revising or drafting new counterterrorism legislation, states must ensure that the “thresholds of legality, legitimacy, necessity and proportionality” are met.
3. Emergency powers that are subject to robust domestic and international oversight are less likely to persist and become permanent. Judicial oversight is necessary to assess whether the restrictions on human rights are appropriate.