Has the ECHR Struck a Balance in Dealing with International Terrorism - Research Paper Example

Human Rights v. Security: Has the ECHR Struck a Balance in Dealing with International Terrorism? The world has changed significantly since 1950, when the European Court of Human Rights (ECHR) was first established. September 11, 2000 the terrorist attack on the United States brought into focus a problem which before that sat simmering in the shadows of political discontent. Since the attacks, the repercussions are still being felt throughout the world and are likely to have lasting implications. This is particularly true with regard to human rights-- one of the most serious casualties of the post-September 11 political and judicial environment. The advent of international terrorism as an ever expanding and increasing threat has caused nations to review their policies on how to deal with threats, in many instances questioning policies of human rights heretofore unchallenged. The question of how countries contain the spread and threat of terrorism whilst protecting individual human rights is a complex matter. As a body held responsible for final decisions regarding such matters, the ECHR is often placed in the unenviable position of balancing human rights with realistic and urgent security concerns. How well the body has succeeded is a matter of interpretation. EUHR Decisions: Far Reaching Affects One recent example involving a decision by the court upheld France’s right to disallow the wearing of overt religious symbols. In this case two Muslim female students challenged the law, saying that the prohibition against wearing headscarves in school offended their human right to religious freedom and expressions thereof. The court sided with France, finding “...Banning Muslim headscarves in state schools does not violate the freedom of religion and is a valid way to counter Islamic fundamentalism (thought to be at the root of terrorism activities)...” (Reilhac para. 1). The Court further found that “Bans issued [by France] in the name of the separation of church and state could therefore be considered ‘necessary in a democratic society,’" (Reilhac para. 6). Several reasons were given for France’s enforcement of its law on the basis of its longstanding policy of laiciti (separation of church and state), including the fear that Muslim girls might be singled out for criticism and discrimination based on headscarves, which runs counter to France’s policy of protecting the rights of the individual. However, acknowledgments had been made surreptitiously that the main reason for the decision on the part of France was a fear of the growing influence of Islamic fundamentalism and its extremist demands on its followers within France’s borders generally seen as being at the root of terrorism. One might say then that while the Court’s (2004) decision appears to be based on considerations of French Constitutional law, and can be justified from that basis, the question of whether such decision may have been tainted by the Court’s own recognition of the growing threat of terrorism as it relates to Islam remains in question. Not only did the decision affect the wearing of overt religious symbols in French schools [outsized crosses and yarmulkes are also forbidden], but other countries, including Turkey, saw the ruling as an affirmation of their own restrictive laws designed to dilute the affect of radical Islam while in the process limiting human rights. Turkey, which is currently trying to become part of the European Union, was particularly happy with the ruling since it supported its “...rigidly secular system [in place ]since the 1920s...” (Reilhac para 7), prompting Lhaj Thami Breze, president of the The Union of French Islamic Organizations (UOIF) to remark “The courts are starting to follow the politicians” (Reilhac para. 9). And the affect of the decision is even more far-reaching. Emboldened by the Court decision, lower courts in Germany in 2008 upheld a decision that forbids Muslim teachers from wearing headscarves in schools, despite arguments that Catholic nuns wear habits and are not subject to similar rules. In 2004, once the EUHR had made its ruling, the school board in Stuttgart, a region of Germany, “ordered her[ a teacher with tenure] to stop covering her head in the classroom on the grounds that it could influence impressionable children...” (IOL para. 1-13). The IOL article goes on to say that despite a legal challenge the court found against the teacher on the same basis as the EUHR judgment based on the validity of French law. “So far eight out of the 16 states have ordered teachers not to wear the headscarf at schools, though Muslim pupils [differing from France] are generally allowed to do so” (IOL para. 12). Derogation and Balance In legislation, derogation is the repealing or limiting the scope of common law or prior statutes. “In evaluating states’ responses during times of emergency under article 15 of the ECHR, the European Court of Human Rights has often granted states significant discretion, known as the margin of appreciation, in determining whether a state of emergency exists” (IHF 30) as would be the case with the severe threat of terrorism. In Brannigan and McBride vs. the United Kingdon, the court noted that “[I]t falls to each Contracting State, with its responsibility for ‘the life of [its] nation’ to determine whether that life is threatened by a ‘public emergency’ and, if so, how far it is necessary to go in attempting to overcome the emergency (ECHR Judgment, para. 43 cited from IHF Report 30). The report continues to explain and in quoting the Court effectively highlights a major concern regarding EUHR court decisions in cases where human rights must be balanced with national security. It is not the Court’s role to substitute its view as to what measures were most appropriate or expedient at the relevant time in dealing with an emergency situation for that of the Government which has direct responsibility for establishing the balance between the taking of effective measures to combat terrorism on the one hand, and respecting individual rights on the other … ((ECHR Judgment, para. 59 cited from IHF Report 31). While committing to striking this balance and excusing decisions that while protecting national security infringe on human rights, [an example of the Courts position is presented later], the Court is careful to warn states that their rights and powers are not “unlimited...in this respect” (ECHR Judgment cited from IHF Report 31). In Brannigan v. UK, the court also emphasized that “in exercising its supervision the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of, the emergency situation” It would therefore appear that the more severe the derogation the less likely the court is to grant a wide margin of appreciation and will instead subject the emergency measures to greater scrutiny (ECHR Judgment cited from IHF Report 31). As might be imagined the position has come under scrutiny by legal scholars and those interested in the protection of human rights. As has been the severe criticism in the United States of the policies of George W. Bush, such allowances under law have led to a variety of abuses in the U.S. now under secondary scrutiny by the Obama administration’s Justice Department. Under the Bush administration wiretapping of private citizens, illegal incarcerations and other right abuses were justified under the nation’s now disputed Patriot Act. Yet, many citizens there insist these abuses of human and civil rights were necessary in the face of the 911 attack to prevent further attacks. Arguments abound that giving governments such powers weakens deference to these rights and legal authority to hear cases from defendants who have been affected. Regarding the ECHR and its role in protecting human rights in these situations, critics say the exceptions “inject[s] a strong subjective element into the interpretation of the European Convention, weakening the Court’s authoritative position vis-à-vis national governments” (IHF report 31 citing Gross and Ní Aoláin, “From Discretion to Scrutiny… 628-29). Others say derogation has actually heightened the Court’s sensitivity to security at the expensive of human rights. Britain, Northern Ireland and Beyond While our tendency is to think of terrorism versus human rights as a current problem mainly associated with Islamic fundamentalism and its association with terrorist actions, earlier instances for the Court relate to the Irish Republican Army and the problems in Northern Ireland. In December 1977, in the case of Ireland v United Kingdom [5310/71], the Court ruled that the government of the UK was guilty of "inhuman and degrading treatment" (ECHR database), of men interned without trial, following a case brought by the Republic of Ireland [5310/71]. Case information indicates the Court’s finding that while their internment was an interference of Convention rights, it was justifiable under the extenuating circumstance of national security and terrorist threats. However, it further ruled that the practice of the five techniques--wall-standing, hooding, subjection to noise, deprivation of sleep, and deprivation of food and drink-- and the practice of beating prisoners constituted inhumane and degrading punishment in violation of the convention, although not torture. (ECHR database) It would later reconsider the position in (Ireland v. United Kingdom, 1976 Y.B. European. Convention on Human Rights (512, 748, 788-94), concluding that the five techniques are indeed torture and inappropriate despite the acknowledgment that much of the violence in Northern Ireland was terrorism defined by “organised violence for political ends” (Case of Ireland v. United Kingdom 5310/71). In their report on anti terrorism law and human rights, Breau et al layout the backdrop for several cases brought before the court. The decisions show an effort to adhere to the tenets of anti-terrorism laws while carefully guarding human rights, particularly those governing potential physical harm. Though British law, prior to the introduction of the Human Rights Act 1998, provided only limited means of challenging the consistency of anti-terrorist measures with human rights standards, people [most accused Irish Republican sympathizers or detainees] were able to make use of the United Kingdom’s membership of the European Convention on Human Rights to raise issues before the ECHR in Strasbourg (Breau et al 1). While the court found Britain had been in some instances in violation of human rights in several areas--right to liberty, fair trial and protection against torture—the reports found the country “won more cases than it lost in relation to its anti-terrorist law” (Breau et al 1)...and in good faith, and given the extent of terrorist violence had “exercised its right to derogate from aspects of the Convention [European Convention on Human Rights] on the grounds that their existed a ‘situation of public emergency threatening the life of the nation” (Breau et al 2). Human Rights Watch (2008) documents the actions of the Court in a string of cases related to the return of persons determined threats to security to their home countries. “European Court of Human Rights reaffirmed the absolute ban on sending persons-no matter what their status or suspected crimes to places where they are at risk of torture or cruel, inhuman and degrading treatment, despite diplomatic assurances against such abuse from their home governments” (Human Rights Watch [HRW} para. 2). Two of the more prominent cases, Saadi v. Italy and Chahal vs. UK are examined. The logic of the absolute prohibition on returns to risk of torture was first articulated by the court in the latter case. “The court ruled that the UK could not return Karamjit Singh Chahal, an alleged Sikh militant, to India in reliance on diplomatic assurances against torture from New Delhi, no matter what crimes he was suspected of or his status in the UK” (HRW para. 3). A major part of the decision was founded on the fact that the British government had already publically branded him a terrorist which made it unlikely that the Indian government, or more properly the Indian forces in the Punjab, would hold to its promises that he would not be tortured. The decision speaks to the asylum issue and the Court’s tendency to over rule any request for deportation if the possibility of ill treatment exists. In Saadi, [Saadi had been convicted in absentia of terrorism-related offenses in Tunisia, and had been sentenced to 20 years' imprisonment] (HRW para. 5), the defendant claimed that he would be tortured in Tunisia, “where the mistreatment of suspected terrorists is routine and well documented.” HRW further reports, “the court fashioned an approach that rightly questions the reliability of promises of humane treatment from governments that routinely torture and ill-treat detainees or members of specific minority, ethnic, or political groups” (HRW para. 5). The Court writes: The argument based on the balancing of the risk of harm if the person is sent back against the dangerousness he or she represents to the community if not sent back is misconceived. The concepts of "risk" and "dangerousness" in this context do not lend themselves to a balancing test because they are notions that can only be assessed independently of each other. Either the evidence adduced before the Court reveals that there is a substantial risk if the person is sent back or it does not (HRW qtg. Saadi v. Italy  para. 139). In hearing these two cases, the Court adhered to a legal approach that surprisingly, given accusations of political pandering, was not reluctant to cast public doubt on Tunisia’s promise that Saachi would not be tortured if he returned. The Russian Implication Many cases coming before the court have been documented as those concerning human rights violations Chechnya. In Russia. As reported by Human Rights Watch: As of March 2009, Russia has been held responsible in 60 cases involving forced disappearances, 22 cases involving extra-judicial executions, four cases involving indiscriminate attacks, and four cases of torture, and one case each of death due to negligence and property destruction (some cases involve more than one violation). The court also found in many cases that victims' family members had suffered inhuman treatment as a result of the government's actions or inaction in the face of violations. In every case, the European Court found that Russia had failed to conduct an effective investigation.  The cases described below were adjudicated after the publication of Justice for Chechnya.  Most pertain to the types of violations-torture, enforced disappearance, and extrajudicial execution-that persist in Russia's counterinsurgency campaigns in the North Caucasus today (HRW, Case Summaries para. 12). The insurgency taking place in Chechnya and continues to do so represents for Russia a charge that the insurgents [terrorists] are behaving illegally and so the justification for infractions are somehow justified. The Court, however, in all cases has disagreed, insisting that Russia address and provide investigative information on cases particularly involving torture, disappearance and killings. Two of the most recent cases and their details from HRW follow: Khadisov and Tsechoyev v. Russia (21519/02) Judgment issued February 5, 2009 In September 2001, Salambek Khadisov and Islam Tsechoyev were arrested by Russian authorities. During their detention, they were beaten, suffocated with plastic bags, strangled with belts, burned by cigarettes, and threatened with execution.  Upon their release, Khadisov and Tsechoyev could hardly walk, and their faces and bodies were bloated and covered with hematomas. For years after their release they suffered severe medical problems. The European Court found that Khadisov and Tsechoyev were "indisputably kept in a permanent state of physical pain and anxiety" to compel them to confess. The court held Russia responsible for the illegal detention and torture (HRW para. 13).      Sambiyev and Pokayeva v. Russia (38693/04), and Arzu Akhmadova and Others v. Russia (13670/03) Judgments issued January 22, 2009 and January 8, 2009 In March 2002, servicemen arrested and later killed Amir Pokayev and nine other villagers during a security operation in the village of Starye Atagi, Chechnya.  Following Amir's murder, his brother, Anzor Sambiyev, fled Chechnya.  When Anzor Sambiyev returned in 2004, military servicemen, who had been regularly enquiring about his whereabouts, detained him.  The following day, Anzor Sambiyev's body was discovered with bullet wounds. The European Court held the Russian authorities responsible for the deaths of the two brothers (HRW para. 14). Conclusion In reviewing cases and after considering facts concerning the operation and philosophy of the Court regarding human rights versus anti-terrorism laws and procedure, one might say that the Court, as a body, follows the general procedures of nations to the degree that the laws and procedures of any nation are valid and coincide with general accepted practices concerning protection of society and the guarantee of rights. Corell writes: Correspondingly, members of an international court must realize that for the court to be accepted it must have credibility within the States that have accepted its jurisdiction. The fact that the European Court is now permanent demonstrates that its members have established that credibility, developing it into something of a constitutional court lot the Member States of the Council of Europe, greatly contributing to the raising of human rights standards throughout Europe in later years (Corell 1). In the case of France, for instance, and the challenge by the two Muslim school girls to its law forbidding the wearing of headscarves, we see both this adherence to French laws of laiciti demanding secularization of the public and the private, and the constitutional provision against church interference in state policy. After careful scrutiny, the Court agreed that France has a reasonable right to enforce this law, given especially the suggestion that Muslim girls may be intimidated in wearing the scarves, and that, says the Court, constitutes an infringement on rights in itself. In this case the Court is balancing these rights with that of a larger religious community that does not want the government to infringe upon its right, as it sees it, to prevent the rights of others. French law then supersedes Islamic law—as the Court sees it and, it might be argued, should as a secular body. That the decision has similarly affected other nations, such as Germany, which has chosen to apply restrictions on the wearing of headscarves by teachers does not diminish the validity of the Court’s decision. If anything, the situation confirms the Court’s respect for the each nation to enforce what it sees as rules benefiting its population. That Germany decided not to apply the restriction to young girls has more to do with parental rights and the fact that a teacher, as an iconic figure, may unduly influence young people. Considering the threat of terrorism associated with Islamic fundamentalism, the wearing of traditional garb by Muslim teachers may have undue influence if the teacher has radical views. Germany has had a considerable number of arrests of Islamic terrorist suspects since 911. A nation, says the Court, has a right and responsibility in “emergency” situations to apply certain rules and law not generally applied to protect its population. This is undoubtedly considered one of those situations. For torture, its own form of terror, the Court has no empathy and rules against it in all cases. Studying the cases in Russia, it is difficult to make a comparison with cases in France, Germany and the UK because Russia, unlike these nations, denies that events happened and will not discuss the instances under consideration by the Court which has only defendants’ testimony and general knowledge to go by. It can not refer to Russia’s laws because there are none [that are applied at least] governing the behavior. The Court’s decision then is clearly based on the generally accepted laws of human decency and behavior—a balanced view that can not be considered any other way under the circumstances. In conclusion then one must consider the work of the Court thus far as being balanced in terms of human rights versus national and international security. Speaking positively on its behalf, but issuing a caution for the future, Buyse writes: From a timid beginning the Court has grown into a full-time institution successfully dealing with thousands of cases each year. Its case law is generally perceived to be among the most developed and extensive of all international human rights institutions and most of its judgments are routinely implemented by the state parties to the European Convention on Human Rights (ECHR). However, for over a decade dark clouds have been gathering over Strasbourg. The number of applications has been rising so sharply – partly due to the accession of a large number of new state parties to the ECHR – that the very work and survival of the Court seems to be at risk (Buyse para. 1). How this will affect the Court’s ability and tendency to give careful attention to each case in future remains to be seen. Works Cited Breau, Susan, Stephen Livingston and Rory O’Connell. Anti-Terrorism Law and Human Rights in the United Kingdom. Post September 11 (no year). Belfast: Human Rights Centre, Queens University. Retrieved (8 January, 2010) from http://www.britishcouncil.org/china-society-publications-911.pdf Buyse, Antoine. The Pilot Judgment Procedure at the European Court of Human Rights: Possibilities and Challenges. Netherlands Institute of Human Rights (SIM), University of Utrecht, Faculty of Law. Nomiko Vima (The Greek Law Journal) November 2009. Retrieved (4 January, 2009) from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1514441 Corell, Hans. “Judicial Redress: Can the European Court of Human Rights Set an Example?” UN Chronicle, 35:4 (1998) 45. Volume: 35. Questia Media. Retrieved (9 January, 2010) from www.questia.com ECHR Database. Web Sites: 1. http://www.echr.coe.int/ECHR/EN/Header/Case- Law/HUDOC/HUDOC+database/ 2.http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695383& portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C 1166DEA398649 European Court of Human Rights, Brannigan and McBride v. United Kingdom, Judgment of 26 May 1993, series A, no. 258 as cited in “Anti-terrorism Measures, Security and Human Rights Developments in Europe, Central Asia and North America in the Aftermath of September 11” (April 2003); Report by the International Helsinki Federation for Human Rights (IHF). Retrieved from http://www.ihf- hr.org/viewbinary/viewdocument.php?doc_id=6426. German Upholds Headscarf Ban. March 18, 2008. Web Site: IOL. Retrieved (9 January, 2010) from http://www.iol.co.za/index.php?set_id=1&click_id=24&art_id=nw200803181430 47571C439905 Human Rights Watch. Not the Way Forward. (22 October, 2008). Retrieved (5 January, 2010) from http://www.hrw.org/en/node/75603/section/7 Human Rights Watch. Update on European Court Human Rights Judgments against Russia Regarding Cases from Chechnya. (20 March, 2009). Retrieved (4 January, 2009) from http://www.hrw.org/en/news/2009/03/20/update-european-court- human-rights-judgments-against-russia-regarding-cases-chechnya Reilhac, Gilbert. “Court Supports Ban on Muslim Headscarves European: Court Rules It Valid Way to Fight Extremism.” Reuters to Boston Globe 30 June, 2004. Retrieved (9 January, 2010) from http://www.boston.com/news/world/articles/2004/06/30/court_supports_ban_on_ muslim_headscarves/ Read More