• deportation or forcible transfer of populations that would constitute a crime against humanity; and • engaging in propaganda for war or advocacy of “national, racial or religious hatred that would constitute incitement to discrimination, hostility or violence.” The Human Rights Committee went further and also pointed out that the requirement of an effective remedy under Article 2(3) constitutes a treaty obligation inherent in the Covenant as a whole. Therefore, while states may take measures strictly required by the exigencies of the situation, they must comply with this “fundamental obligation” by “providing a remedy that is effective.” At the same time, the Committee explained that it is inherent that the rights explicitly recognized as being non-derogable must be secured by procedural guarantees, including judicial guarantees. As such, the provisions of the Covenant relating to procedural safeguards may never be made subject to measures that would circumvent the protection of non-derogable rights. Therefore, Article 4 may not be resorted to in a way that would result in derogation from non-derogable rights. General Comment 29 concludes by pointing out: • safeguards related to derogation are based on the principles of legality and the rule of law inherent in the Covenant as a whole; • certain elements of the right to a fair trial are explicitly guaranteed under international humanitarian law during armed conflict; • there is no justification for derogation from these guarantees during other emergency situations; • principles of legality and the rule of law require that fundamental requirements of fair trial must be respected during a state of emergency; • only a court of law may try and convict a person for a criminal offence. • the presumption of innocence must be respected; and • in order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention (i.e., habeas corpus), must not be diminished by a state party’s decision to derogate from the Covenant. The OSCE has emphasized that any derogation from international human rights standards during a state of public emergency has to respect the standards of international human rights law.222 Similarly, the UN Working Group on Arbitrary Detention has said, With regard to derogations that are unlawful and inconsistent with States’ obligations under international law, the Working Group reaffirms that the fight against terrorism may undeniably require specific limits on certain guarantees, including those concerning detention and the right to a fair trial. It nevertheless points out that under any circumstances and whatever the threat, there are rights which cannot be derogated from, that in no event may an arrest based on emergency legislation last indefinitely, and it is particularly important that measures adopted in states of emergency should be strictly commensurate with the extent of the danger invoked. On all these points the Working Group refers to Human Rights Committee general 222 Op. cit., note 29, 1989 Vienna Document, Questions Relating to Security in Europe: Principles para. 21; op. cit., note 6, 1990 Copenhagen Document, paras 16.3 and 24-25.5; op. cit., note 5, 1991 Moscow Document, para. 28. 90 Countering Terrorism, Protecting Human Rights