LAWS30711 Counter-terrorism

and human rights

European human rights law
International, regional and national frameworks
Protecting human rights in Europe
Human rights and counter-terrorism
 Learning outcomes
On completion of this lecture and the seminar in Week 3 you
should be able to:

• Discuss the interface between international human rights

law and counter-terrorism.

• Apply international human rights law standards to counter-

terrorism law, policy and practice.

• Measure the compatibility of counter-terrorism law, policy

and practice with international human rights law standards.
 International treaties
Universal Declaration on Human Rights
(1948)

European Convention on Human Rights

(1950)

International Covenant on Civil and Political

Rights (1966)

American Convention on Human Rights

(1967)

African Charter on Human and Peoples’ Rights

(1981)
 Key features
Human Rights
Incorporated ECHR in UK Act 1998
law
Requires public bodies to
act compatibly with the
ECHR
Requires legislation to be
read and given effect
compatibly with the ECHR
Provides remedies
European Convention on
Human Rights

Strasbourg institutions
European Convention on Human Rights
Common ECHR principles
Express restrictions
State obligations
 Strasbourg institutions
Council of Europe

Committee of Ministers

European Court of Human Rights (ECtHR)

Department for the Execution of Judgments

Committee for the Prevention of Torture (CPT)

Commissioner for Human Rights

Directorate General Human Rights and the Rule of Law

European Convention on Human Rights
Art. 1 Rights secured for all
Art. 2 Right to life
Art. 3 Prohibition of torture
Art. 4 Prohibition of slavery
Art. 5 Right to liberty
Art. 6 Right to a fair trial
Art. 7 No punishment without
law
Art. 8 Right to privacy
Art. 9 Freedom of thought
Art. 10 Freedom of
expression
Art. 11 Freedom of assembly
Art. 12 Right to marry
Art. 13 Right to an effective
remedy
Art. 14 Prohibition of
discrimination
Art. 15 Derogation in
emergency
 Article 2: Right to life
1. Everyone’s right to life shall be protected by law. No one shall be
deprived of his life intentionally save in the execution of a sentence of a
court following his conviction of a crime for which this penalty is provided by
law.
2. Deprivation of life shall not be regarded as inflicted in contravention of
this Article when it results from the use of force which is no more than
absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person
lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or
insurrection.
McCann v UK (1995); Andronicou v Cyprus (1997)
Lecture 8: shoot to kill
 Article 3: Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading
treatment or punishment.
Ireland v UK (1978) definitions
Torture: deliberate inhuman treatment causing very serious and cruel
suffering
Inhuman treatment/punishment: causing intense physical and mental
suffering
Degrading treatment/punishment: causing feeling of fear, anguish,
humiliation

UN Convention against Torture (1984)

Selmouni v France (1999)
Lecture 9: Torture
Article 5: Right to liberty and security
1. Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure
prescribed by law:
(c) the lawful arrest or detention of a person effected
for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having
committed an offence or when it is reasonably
considered necessary to prevent his committing an
offence or fleeing after having done so;

A & Others v UK (2009); Gillan & Quinton v UK (2010)

 Article 6: Right to a fair trial
1. In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair
and public hearing within a reasonable time by an independent
and impartial tribunal established by law. Judgment shall be
pronounced publicly but the press and public may be excluded
from all or part of the trial in the interests of morals, public
order or national security in a democratic society, where the
interests of juveniles or the protection of the private life of the
parties so require, or to the extent strictly necessary in the
opinion of the court in special circumstances where publicity
would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law
 Common ECHR principles
Legality Proportionality
Relevant and sufficient reasons
Rule of Law Availability of less restrictive
alternatives
Rule of accessibility Procedurally fair decision
Availability of safeguards
Rule of certainty against abuse
Interference with ‘very
essence’
 Express restrictions to
Arts 8-11
In accordance with/prescribed by law

In pursuit of a legitimate aim

Necessary in a democratic society

 Article 8: Right to privacy
Article 8 of the ECHR
1. Everyone has the right to respect for his
private and family life, his home and his
correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except
such as is in accordance with the law and is
necessary in a democratic society in the interests
of national security, public safety or the
economic well-being of the country, for the
prevention of disorder or crime, for the
protection of health or morals, or for the
protection of the rights and freedoms of others.
Gillan v UK (2010)
 State obligations
Negative Positive

Obligation of state not to Obligation of state to

violate an ECHR right respect an ECHR right

Acts of state agents and not Acts/omissions of state

private citizens/non-state agents whether alleged
actors negative violation by state
or non-state actor
 Rationale for positive obligations

Art. 1 requires states secure rights

Protections have to be practical and effective, not

theoretical or rhetorical – Soering v UK (1989) 11
EHRR 439 at para. 87

Art. 13 requires effective remedies available

 Examples of positive obligations
Prevention of foreseeable violations
Osman v the UK (1998) 29 EHRR 245

Criminalisation of torture
Cestaro v Italy [2015] ECHR 352

Effective investigation of alleged violation

Jordan v the UK (2003) 37 E.H.R.R. 2

Prosecution of offenders
X & Y v Netherlands (1985) 8 EHRR 235
Human rights and
counter-terrorism

ECHR and UK measures

Seminar reading
Links
 ECHR engaged by UK CT measures
Art 2 Use of lethal force; protecting life; Operation Kratos
3 Interrogation techniques; extradition; rendition
5 Preventive detention; control orders; TPIMs; s.44 stop & search
6 Control orders; surveillance
8 Surveillance; control orders; TPIMs; s.44 stop & search
10 Control orders; proscription; Prevent strategy
11 Proscription; control orders
13 Lack of effective investigation; non-compensation
14 Preventive detention; control orders; Prevent strategy
 ECHR principles governing
CT measures
Legality: 3 elements/accordance with/prescribed by law

Necessity: absolutely/in a democratic society

Proportionality: 5 elements/legitimate aim

Accountability: effective remedy for breach/+ve obs

Required Seminar 2 reading
One of:
◼ Bantekas & Oette: Human rights and
counter-terrorism.
◼ Bianchi: Counterterrorism and international
law.
◼ Duffy: International human rights law and
terrorism: an overview.

Blackbourn: The European Court of Human

Rights and Counter-Terrorism Initiatives
More useful links