18 Report of the Eminent Jurists Panel on terrorism, counter-terrorism and human rights 2. Can the human rights system accommodate emergencies? One of the arguments made by some States for having to sideline human rights in the face of the terrorist threat is that rights are a luxury that, unfortunately, must be dispensed with (normally only on a temporary basis) at times of extreme crisis. Yet this claim ignores why the modern framework of international human rights and humanitarian law came into being. The 1948 Universal Declaration of Human Rights, and the many mechanisms and treaties that flowed from it thereafter, had their genesis in cataclysmic war and genocide. States adopted a comprehensive human rights system and a new codification of international humanitarian law (the laws of war) in order to prevent a recurrence of the nightmare that saw millions die. Over the years, procedures and mechanisms have been established to ensure effective accountability for international crimes, violations of human rights and international humanitarian law, and for ensuring reparation for victims. Speaking of the laws of war, Jakob Kellenberger (President of the International Committee of the Red Cross) responded as follows to specific attempts to undermine the integrity of Common Article 3 of the Geneva Conventions of 1949: “It should be remembered that common Article 3, like the Geneva Conventions as a whole, was drafted by experts who had just come out of the darkest chapter of the twentieth century, and probably of all human history. It would be presumptuous to think that they lacked awareness of the potential for abuses that can be caused by war. The totality of the provisions of common Article 3 were crafted to prevent them.” 16 Human rights and humanitarian law were not drafted with peace and political stability in mind. Rather, the very raison d’être of this legal system is to provide States with the framework that allows them to respond effectively to even the most serious of crises. Accordingly, human rights are not, and can never be, a luxury to be cast aside at times of difficulty. International law is the bulwark that will help States respond effectively to whatever difficulties arise. Some argue, nevertheless, that the current threat posed by terrorism was not, and could not have been, envisaged before, and therefore that the current legal framework will not suffice. The claim is that the threat of terrorism is so unprecedented and exceptional that the world is facing a genuine emergency, and that in the face of such an emergency, the rules must change, and individuals must forego many of their liberties for the greater good. Leaving aside temporarily the question of the exceptional and unprecedented nature of the threat, it is certainly right to examine whether the current legal framework provides enough flexibility to respond to genuine emergencies. 16 ICRC, “Developments in US policy and legislation towards detainees: the ICRC position” interview with ICRC President Jakob Kellenberger, 19 October 2006, available at www.icrc.org.