of how the law limits their rights; and (b) the law must be formulated with
sufficient precision so that individuals can regulate their conduct.35
Moreover, any criminal law proscription must also comply with the
principle of non-retroactivity. Article 15 of the International Covenant on
Civil and Political Rights requires, in this regard, that any provision defining
a crime must not criminalize conduct that occurred prior to its entry into
force as applicable law. Likewise, any penalties are to be limited to those
applicable at the time that any offence was committed and, if the law has
subsequently provided for the imposition of a lighter penalty, the offender
must be given the benefit of the lighter penalty.36
(b) In the pursuance of a legitimate purpose
The permissible legitimate purposes for the interference vary depending
on the rights subject to the possible limitations as well as on the human
rights treaty in question. They are national security, public safety, public
order, health, morals, and the human rights and freedoms of others.37
The important objective of countering terrorism is often used as a pretext
to broaden State powers in other areas.38 Offences which are not acts of
terrorism, regardless of how serious they are, should not be the subject
of counter-terrorist legislation. Nor should conduct that does not bear the
quality of terrorism be the subject of other counter-terrorism measures,
even if undertaken by a person also suspected of terrorist crimes. Again,
this requirement is reflected within various international and regional
documents on the promotion and protection of human rights while
countering terrorism.39
(c) Necessity and proportionality
What is often referred to as “necessary in a democratic society” is an
additional safeguard which requires States to demonstrate that the
limitations do not impair the democratic functioning of society. In practice,
this means that they must meet the test of necessity and the requirement
of proportionality. So any limitation on the free enjoyment of rights and
freedoms must be necessary in the pursuit of a pressing objective, and its
impact on rights and freedoms strictly proportional to the nature of that
objective.
As a general matter, given the impact of terrorism on human rights, security
and the functioning of various aspects of international and domestic
societies, there is no doubt that the countering of international terrorism
24
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents