Any measure taken under this principle must be strictly proportionate to the threat to the
rights of others.181 This issue is most relevant to freedom of expression and is addressed in
detail in that section of this manual.
Impunity and amnesty
The Human Rights Committee has consistently condemned statutes or Acts of Parliament
that provide for impunity or amnesties for state officials who commit human rights violations. Particularly where the right to life or protection from torture have been violated, there
is a duty to investigate and punish offenders.
In their Concluding Observations on a number of states parties, the HRC and the CAT Committee have been critical of states with a culture of impunity.182 The CPT Committee adopted
in 2004 general standards on combating impunity.183 In recent Concluding Observations, the
HRC was particularly critical of the availability of the defence of necessity to persons charged
with using improper techniques for interrogating suspected terrorists. It stated that
The State party should review its recourse to the necessity defence […] It should ensure that
alleged instances of ill-treatment and torture are vigorously investigated by a genuinely independent mechanism, and that those that are responsible for such actions are prosecuted.184
Additional concepts
In addition to the ideas described above, there are several other concepts relevant to limiting
rights in connection with counter-terrorism. These include:
• Absolute necessity: This is the test to justify the use of lethal force under the right to life. It
is the strictest test and requires the highest degree of supervision by the courts and justification on the part of those who exercise lethal force.
• Strict necessity: This is the test used to limit the right to a fair trial and the right to liberty
where the articles of human rights treaties protecting those rights permit limits to them.
• Reasonable in the public interest: This test, often applied to property rights, requires
states to show that any action limiting rights is both reasonable and in the public interest.
This concept generally requires less judicial supervision than absolute necessity or strict
necessity.
Economic, social and cultural rights185
Civil and political rights are most often affected by counter-terrorism measures. However,
the guarantee of economic, social and cultural rights is also of direct relevance. For example,
181 ECtHR, Lehideux and Isorni v. France, Case no. 55/1997/839/1045, 23 September 1998, para. 55.
182 CAT, Concluding Observations: Colombia, doc. CAT/C/CR/31/1, 4 February 2004, paras. 9-10. In its Concluding
Observations regarding Spain in 1996, the HRC was concerned over the lenient sentences given to police officers
convicted of human rights abuses. The Committee pointed out: “when members of the security forces are found
guilty of [ill-treatment and even torture] and sentenced to deprivation of liberty, they are often pardoned or released
early, or simply do not serve their sentences. Moreover, those who perpetrate such deeds are seldom suspended from
their functions for any length of time”, doc. CCPR/C/79/Add. 61, 3 April 1996, para. 10. See also HRC, Concluding
observations: Italy, doc. CCPR/C/79/Add.94, 18 August 1998, paras. 12-15.
183 Available at http://www.cpt.coe.int/en/docsstandards.htm.
184 Op. cit., note 131, Concluding observations of the Human Rights Committee: Israel, para. 18.
185 For further information, see A. Eide, C. Krause, A. Rosas (Eds.), Economic, social and cultural rights. A textbook, (2nd
ed.) (Dordrecht-Boston-London, 2001).
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Countering Terrorism, Protecting Human Rights
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