5 - Civil and Political Rights Flashcards
What are the civil and political rights studied in this course? (4)
1/ right to liberty and security of person
2/ right to be free from torture and other forms of ill-treatment
3/ right to freedom of expression
4/ right to freedom of thought, conscience and religion
Basic premise regarding civil and political rights? (2)
1/ they are intersectional
2/ realization of one right can have effects on realization of other rights
Provisions codifying right to liberty and security of person? (4)
1/ Art. 9 ICCPR
2/ Art. 5 ECHR
3/ Art. 7 ACHR
4/ Art. 6 ACHPR
Key issues related to the right to liberty and security of person? (7)
1/ detention regimes
2/ protection against arbitrary deprivations of liberty
3/ importance of due process guarantees & judicial control
4/ strict limits on detention without charge (48 hours)
5/ habeas corpus => examination of factual and legal grounds for detention
6/ preventive detention
7/ immigration detention
Which General Comment addresses the right to liberty and security of person?
GC 35
What does liberty of person entail?
Freedom from confinement of the body
What does security of person entail?
Freedom from injury to the body and mind, or bodily and mental integrity
What does deprivation of liberty require?
The absence of free consent
What are the 2 dimensions of the right to liberty and security of person?
1/ substantive
2/ procedural
What is the scope of application of the right to security of person?
Applies whether the victim is detained or non-detained
Is the right to liberty and security of person absolute? (2)
1/ no, there are limitations
2/ sometimes, deprivation of liberty is justified
What are limits to the justification of deprivation of liberty? (3)
1/ must not be arbitrary
2/ must be carried out with respect for the rule of law
3/ GC 35
What does the right to liberty and security of person prohibit? (4)
1/ arbitrary detention
2/ unlawful detention
3/ both of these prohibitions can overlap
4/ GC 35
What must notion of “arbitrariness” not be equated with? (2)
1/ “against the law”
2/ requires more broad interpretation
When may preventive detention be permitted? (6)
1/ exceptional circumstances
2/ this requires present, direct and imperative threat
3/ States carry burden of proof to show
4/ no alternative measures to mitigate threat
5/ burden increases with duration of detention
6/ GC 35
When is arrest or detention arbitrary per se? (2)
1/ when used as punishment for legitimate exercise of protected HR
2/ in cases of enforced disappearance (aggravated form)
When is immigration detention permitted? (3)
1/ not per se arbitrary
2/ detention must be reasonable, necessary and proportionate
3/ also requires reassessment if extended in time
How to address the right to liberty and security of person in the context of the “war on terror”? (2)
1/ central pillar of US policy
2/ whether detention is lawful depends on applicable legal framework (IHL / IHRL)
What was purported legal basis for detention in context of “war on terror”?
Memorandum of 13 Nov. 2001 : “Detention, treatment and trial of certain non-citizens in the war against terrorism”
Characteristics of 2001 Military Order? (3)
1/ detention considered necessary for protection of US and its citizens
2/ inherently discriminatory scope (targeting non-citizens)
3/ express denial of procedural rights (Part VII)
What must be kept in mind regarding the regulation of detention under IHL? (2)
1/ it is clear for IACs but not so clear for NIACs
2/ but arbitrary detention is prohibited in either context
How is arbitrary detention prohibited both in IACs and NIACs? (2)
1/ clear specification of the permissible grounds for detention
2/ clear specification of the procedural framework that must be in place
General rule regarding detention under IHL? (2)
1/ anyone taking direct part in hostilities can be detained (whether IAC or NIAC)
2/ where ind. are detained is irrelevant
Detention in IAC context? (5)
1/ the 4 GCs address issues of permissible detention
2/ GCs 1 and 2 : medical and religious personnel
3/ GC 3 : POWs
4/ GC 4 : civilians
5/ also various provisions on procedural safeguards
What do the various GC provisions on procedural safeguards constitute? (3)
1/ minimum legal standards
2/ apply to all situations of violence, incl. NIACs
3/ if failure to conform with standards => “unlawful confinement”
What does unlawful confinement amount to? (2)
1/ a grave breach of the GCs
2/ which can hence lead to prosecution
Characteristics of the permissible grounds for detention in NIACs? (4)
1/ entirely unclear
2/ ICRC : prohibition of arbitrary deprivation of liberty established by State practice and IHRL
3/ must be consistent with IAC standards
4/ but contested legal framework and uncertainty regarding applicable procedural safeguards
Characteristics of the end of detention under IHL? (4)
1/ when armed conflict comes to an end, so does the lawful basis for detention under IHL
2/ detention must thus end or another legal basis must be provided (Duffy)
3/ see ICRC Customary Rule 128 for practical sides of end of detention
4/ in any case, IHRL fills any void
What did the Final Report of the Guantanamo Task Force bring to light? (2)
1/ overview of 240 Guantanamo detainees
2/ placed in 5 categories (see lecture notes for detail)
How could IHRL be utilized with respect to liberty and security in the context of the “war on terror” ? (5)
1/ HR bodies offer States a certain margin of appreciation with respect to the detention of persons suspected of terrorist offences
2/ detention pending trial should however remain the exception
3/ this exception must be strictly construed (necessary and unavailability of less onerous alternatives) (Duffy)
4/ all derogations from right to liberty must be necessary & proportionate to situation of emergency
5/ hence, preventive or security detention is highly controversial
Landmark ECHR case regarding right to liberty and security in context of war on terror? (3)
1/ Abu Zubaydah v Poland (2014)
2/ recognized prohibition of arbitrary detention in spite of interests of counter-terrorism
3/ there must be effective control by domestic courts and ECHR’s supervisory institutions
Characteristics of prohibition of torture and other forms of ill treatment? (3)
1/ absolute prohibition (no ambiguity!)
2/ no exceptions allowed (non-derogable)
3/ jus cogens norms
Provisions related to the prohibition of torture and other forms of ill treatment? (4)
1/ Art. 7 ICCPR
2/ Art. 3 ECHR
3/ Art. 5 ACHPR
4/ Art. 1 CAT
What are the 3 central elements of torture as defined by Art. 1 CAT?
1/ intentional infliction of severe physical or mental suffering
2/ for a prohibited purpose
3/ with some official involvement
If committed, what may torture amount to? (3)
1/ HR violation
2/ war crime (IAC&NIAC)
3/ crime against humanity
(but prove requisite contextual elements)
What are some of the threshold questions regarding the prohibition of torture and other forms of ill treatment? (4)
1/ cruel, inhumane or degrading treatment is not defined as such
2/ ^ must be assessed on a case-by-case basis (circumstances & context)
3/ Opuz v Turkey (2009) : ill treatment must attain a minimum level of severity, which depends on circumstances
4/ cruel, inhumane or degrading treatment differ from torture which requires a higher level of severity & purposive component (UN Committee against TCIDT GC 2)
Procedural safeguards regarding prohibition of torture and other forms of ill treatment? (7)
1/ States have positive obligations
2/ ensure safeguards to prevent TCIDT
3/ ensure framework to effectively investigate and punish TCIDT
4/ ensure reparation for TCIDT
5/ detainees must not be held incommunicado
6/ non-refoulement can apply when reasonable grounds to believe ind. will be subject to TCIDT (Art 3 CAT)
7/ non-admission of evidence obtained by TCIDT (Art 15 CAT)
Elements related to torture and the “war on terror”? (3)
1/ Torture Memos (2002)
2/ enhanced interrogation techniques allegedly not amounting to torture
3/ fallacious justificatory arguments (neglect relevance of IL)
Provisions related to right to freedom of expression? (4)
1/ Art. 19 ICCPR
2/ Art. 10 ECHR
3/ Art. 13 ACHR
4/ Art. 9 ACHPR
Some issues related to right to freedom of expression? (5)
1/ access to information
2/ conflict with other rights
3/ permissible limitations
4/ restrictions over-stepping the mark
5/ prohibition of propaganda for war
Characteristics of right to freedom of expression? (4)
1/ interrelated and essential to realization of other rights
2/ other articles contain guarantees for freedom of opinion/expression
3/ right to hold opinions without interference allows for no exceptions of restriction (HRC GC 34)
4/ all forms of opinion are protected (opinion may not lead to impairment of other rights) (HRC GC 34)
Elements covered by the right to access of information? (3)
1/ such access is central
2/ incl. access to information held by public bodies
3/ States must provide reasons when denying access to information
To what extent can right to freedom of expression conflict with other rights? (3)
1/ there is intersection and possible conflict
2/ there is conflicting guidance, which depends on instrument (see examples of ECHR judgments related to ban on wearing headscarves)
3/ there must hence be a balance of rights
What are the permissible limitations to right to freedom of expression? (3)
1/ see each provision
2/ restrictions must always be provided by law, imposed on a permissible ground, necessary and proportionate
3/ but no assessment by reference to a margin of appreciation? (ECtHR >< HRCtee)
Examples where restrictions to right to freedom of expression have over-stepped the mark? (3)
1/ religious insult? (only if specific circumstances)
2/ glorification of terrorism?
3/ denial of historical events? (HRC: only if falls within scope of exception allowed by relevant provision) (Cf. ECtHR)
Which provisions codify prohibition of propaganda for war? (2)
1/ Art. 20 ICCPR
2/ Art. 13(2) ACHR
Which provisions codify right to freedom of thought, conscience and religion? (2)
1/ Art. 18 ICCPR
2/ Art. 12 ACHR
Characteristics of right to freedom of thought, conscience and religion? (5)
1/ broad application (HRCtee GC 22)
2/ incl. theistic, non-theistic and atheistic beliefs & right not to profess any religion or belief
3/ also incl. right to choose one’s beliefs and to change religion or beliefs
4/ prohibition of coercion
5/ but permissible limitations (prescribed by law and necessary)
What is controversial regarding right to freedom of thought, conscience and religion?
religious education clauses
When may civilians be detained under IHL? (2)
1/ Generally: only where security of State make it absolutely necessary (GC IV Art 42)
2/ in occupation: detention must be for ‘imperative reasons of security’ (GC IV Art 76)
What procedural safeguards apply under IHL to detention regimes? (4)
1/ right to have detention reviewed regularly (Art 43 GC IV)
2/ detention under occupation must be procedurally regulated and subject to appeal and review (Art 78 GC IV)
3/ detainees must be promptly informed of reasons for arrest/detention (Art 75 API)
–> Violation = war crime
What circumstances may according to the ECtHR be taken into account to assess whether treatment amounts to CIDT? (5)
1/ Opuz v Turkey
2/ Nature and context of treatment
3/ duration of treatment
4/ physical and mental effects
5/ sex, age and state of health of victim
What instances of treatment has ECtHR found falling short of torture (but amounting to CIDT)? (6)
1/ Ireland v UK
2/ prolonged wall standing
3/ hooding
4/ subjection to noise
5/ restricted diet
6/ sleep deprivation
Is there a Margin of Appreciation when it comes to the freedom of expression? (2)
1/ ECtHR: YES (Sahin v Turkey; S.A.S. v France)
2/ HRC: NO (Hudoyberganova v Uzbekistan)
What did ECtHR find in Sahin v Turkey? (4)
1/ ban on headscarves in uni did not violate Art 9 ECHR
2/ protecting secular order of the State and the rights of others was a legitimate ground
3/ the ban was proportionate
4/ accepted that veil negate gender equality as expresses Islamic fundamentalism
What is a criticism of Sahin v Turkey? (1)
1/ ECtHR did not consider applicants right to privacy (Art 8 ECHR) permitting personal autonomy (to wear scarf)
What did the ECtHR find in S.A.S. v France? (2)
1/ accepted ‘life in society’ and ‘living together’ as linked to legitimate aim of ‘protecting rights and freedoms of others’
2/ found the blanket ban on veils proportionate due to broad Margin of Appreciation
Criticisms of S.A.S. v France (2)
1/ Nussberger and Jäderblom’s dissent: focus on pluralism and tolerance
2/ HRCtee reject right to interact with people without veil (Yaker v France)
What did the HRCtee find in Hudoyberganova v Uzbekistan? (1)
1/ banning of religious symbols on uni campus violated Art 18 ICCPR
May States derogate from the right to freedom of expression?
1/ ECtHR: YES (Art 15 ECHR)
2/ HRCtee: NO (HRCtee GC 29)
