40
Report of the Eminent Jurists Panel on terrorism, counter-terrorism and human rights
rather than any single measure which causes problems. An international human
rights lawyer testifying to the Panel in Northern Ireland to this effect:
“The idea of prolonged detention without access to a lawyer was a recipe
for abuse of detainees, and gave an incentive to the security forces to try to
obtain confessions through coercion, rather than rely on forensic evidence or
testimonial evidence. The admissibility of confessions was much easier in the
emergency law framework than it was in the ordinary criminal justice framework.
The use of a single judge, rather than a jury, contributed to an overwhelmingly
high conviction rate based on confessions only. Then none of the remedies were
adequate – whether it was inquests, tort remedies, or effective oversight of the
police […] the institutional incentives to cut corners were overwhelming…”.58
The same trend was noted repeatedly to the Panel. Counter-terrorism laws reduce
safeguards; the lack of safeguards facilitates a range of human rights violations; and
that limitations on remedies, most particularly judicial remedies, creates impunity
for human rights violators. This impunity, particularly over time, can give cover for
extra-legal practices, such as disappearances, secret detention and torture. A culture
of lawlessness can take hold, and feeds and fuels the very conflict, and terrorism,
that the legislation was intended to end.
5. The “permanence” of “emergency” laws and departure from
ordinary procedures
In 1983, the International Commission of Jurists (ICJ) conducted a major study on
states of emergency around the world. Many of these states of emergency were triggered by, or coincided with, terrorist violence.59 The study documented the corrosive
effect of long-term emergencies on the rule of law in various regions. Twenty-five
years later, the Panel is able to confirm the continuing accuracy of the ICJ’s findings.
The Hearings in the Middle East, Latin America, South Asia and Northern Ireland all
underlined the long-term negative effect of prolonged emergencies. A prolonged
emergency is characterised by the assumption of greater executive powers, legal
frameworks that create an environment prone to human rights violations (including
torture and ill-treatment), limitations on accountability mechanisms, and eventually
a detrimental effect on the wider criminal justice system.
International law respects the fact that emergency powers may be legitimate and
necessary when States have to protect their populations and respond to extraordinary threats (see Chapter One). International law regulates in some detail when
and how such emergency powers may be called in aid. However, it is equally clear
in practice that such powers, once introduced, have often been abused, and have
58
Evidence given at the Northern Ireland Hearing by Martin Flaherty, Chair of the Committee on International
Human Rights of the Association of the Bar of the City of New York, USA.
59
ICJ, States of Emergency: Their Impact on Human Rights, op. cit.
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