“HUMAN RIGHTS AND SECURITY: AN INHERENT TENSION?”

Mr. Jean-Paul Costa

President of the Fondation René Cassin,

Former President of the ECHR

Main points of the Introduction

•              Acknowledgments and thanks

•              Importance and relatively new character of the matter :

Since the late nineties and the years 2.0.,the growing importance of terrorism in the whole world.  September Eleven in New-York, terrorist attempts in Madrid, London, France, Germany, Tunisia, the Middle East ( Syria, Iraq, Turkey...), and other countries and regions.

•              Other factors affecting Security, such as violence, crime (especially organized crime), trafficking of all kinds, urban guerilla, etc., international and internal wars and conflicts.

•              Human rights have been conceived from the very beginning as inseparable from peace and the rule of law. Obvious in the Universal Declaration (1948), and in regional instruments such as the European Convention on human rights (ECHR) (1950).

•              Are therefore Human rights and Security strictly opposed? not necessarily , for various reasons : 

•              (i) right to Security itself is a human right. See Art. 5 of the ECHR: Everyone has the right to liberty and security of the person. Both rights are guaranteed by the same Article. No liberty without security, no security without liberty.

•               (ii) Terrorism is a very serious violation of the most fundamental human rights, such as the right to life, the prohibition of torture and of inhuman and degrading treatments, the prohibition of slavery, the respect of dignity, the equality between man and woman, the rights of the child, etc.

•              (iii) On the other hand, several human rights, notably the civil and political rights, are nor unlimited or absolute; they can be licitly infringed, but under a triple, cumulative condition: if the restriction to the relevant freedom is foreseen by law, if it pursues a legitimate aim, finally if is proportionate to the aim (necessary in a democratic society). Among the legitimate aims, national security and public safety – or protection of public order- are frequently invoked by the States, and they are explicitly mentioned, for instance in Articles 8 to 11 of the ECHR.

•              Nevertheless the desirable balance between Human rights and Security may well be distorted in favor of Security, either under special legal regimes like emergency state, or derogations to the ECHR (Article 15), or even under the normal legal order. This is more and more dangerous for liberty and democracy.

•              Hence, it is crucial to remind the States of the necessary reconciliation between the two elements.

•              A good example is the Security Council policy. Since a resolution (1373-2001) passed just a few days after the “9/11” attempts, the Security Council has established a counter-terrorism Council (CTC), in order to recommend to fight against terrorism, and possibly to prevent it, without endangering the rights and freedoms. Conclusions for policy guidance were adopted (see Resolution 1624(2005), and the UN High Commissioner for Human rights supervises the measures taken by the States to check whether they are respectful of those directives. But the risk exists that all those safeguards are more theoretical than real.

•              Judicially, there is also a possible ( and wishable) review of some policies that are  in favor of Security, but clearly contrary the rule of law and human rights.

•              A good example is provided by the case-law of the Strasbourg Court related to he secret CIA prisons and affecting several defending States ( Poland, Italy, FYROM...), and condemning them for having contributed to serious violations committed by the USA. Of course, that State is not directly responsible, since it is out of the jurisdiction of the European Court of Human rights. On the other hand, the members of the Council of Europe, which are party to the ECHR, are responsible under it.

•              Some statements of the newly elected President of the USA are raising concern in this respect

•              finally, the tension between human rights and Security is undeniable. Once Terrorism and the most dangerous crimes will be eradicated ( if they are), the situation will be much better.

•              The interest of the Round table is to reflect about that tension, and the potential reconciliation between the Securitian policies and the defense and protection of human rights.