reflected in the legal framework, measures that affect human rights must be justified
by reference to permissible grounds, as set out in relevant human rights standards,
and they must conform with the strict requirements provided for in international law,
including the following:
• No circumstances can justify interference with absolute rights. Measures that impinge
on absolute rights are not permissible under any circumstances. Such rights include
that no-one shall be held guilty for a criminal offence on account of an act or omission
not constituting a criminal offence at the time when it was committed (no punishment
without law), the presumption of innocence and other core aspects of the right to a fair
trial, as well as core aspects of the right to liberty, the right to have or adopt a religion
or belief and the right to hold opinions without interference, the right to equality and
non-discrimination and the prohibition of torture and other ill-treatment.
• Emergency measures must be exceptional, time-limited in their operation and effect, and
justified by the stringent test laid down in international human rights law. States can only
derogate from their obligations under international human rights standards where
there is an “emergency threatening the life of the nation”.100 The impact of FTFs in
Syria, for example, is to be distinguished from their impact on European states, where
the high threshold for a situation to be classified as an “emergency threatening the
life of the nation” is unlikely to be met. The measures adopted pursuant to an emergency must be strictly limited to what is necessary pursuant to the exigencies of the
particular situation, and can never be discriminatory in their application.101 Moreover, while the duration of emergencies may vary, they are, by definition, temporary
and exceptional. The exceptional measures invoked pursuant to them must also be
temporary and subject to review. Therefore, they should not be used as a premise to
100 A broad range of factors are relevant to the assessment but it is clear that the threshold is high, affecting
“organised life of the community” (Lawless v. Ireland (No. 3), ECtHR, Judgment of 1 July 1961) but not necessarily imperiling the existence of the institutions of states as such (A and Others v. The United Kingdom, ECtHR,
Judgment of 19 February 2009 (hereafter, A and Others v. The United Kingdom, ECtHR)). See also: UN Special
Rapporteur on counter-terrorism, Report to the UN Human Rights Council (Report on the human rights challenge
of states of emergency in the context of countering terrorism), UN Doc. A/HRC/37/52, 27 February 2018; and the
UN special procedures statement on the state of emergency in Turkey: “UN human rights experts urge Turkey
not to extend state of emergency”, 17 January 2018, <www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.
aspx?NewsID=22592&LangID=E>.
101 Emergency powers and derogations by the United Kingdom post 9/11 and in France, for example, have
been criticized for their allegedly discriminatory and therefore unlawful impact. See, for example, Concluding
observations: United Kingdom, UN Committee on the Elimination of Racial Discrimination (CERD), UN Doc.
CERD/C/GBR/CO/21-23, 3 October 2016, paras. 15, 18-19; A and Others v. The United Kingdom, ECtHR, op. cit.,
note 100; Concluding observations: France, CCPR, UN Doc. CCPR/C/FRA/CO/5, 17 August 2015, paras. 9-10. See
also: C. Paulussen, “Repressing the Foreign Fighters Phenomenon and Terrorism in Western Europe: Towards
an Effective Response Based on Human Rights”, International Centre for Counter Terrorism, November 2016,
<icct.nl/wp-content/uploads/2016/11/ICCT-Paulussen-Rule-of-Law-Nov2016-1.pdf>, on discrimination in relation to the French emergency regime. For questions related to fair trial rights and the independence of the judiciary see: “Fair Trial Rights during States of Conflict and Emergency”, OSCE/ODIHR, May 2017, <www.osce.org/
odihr/317766>.
32
Guidelines for Addressing the Threats and Challenges of “Foreign Terrorist Fighters”
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents