Human Rights in Times of Conflict and Terrorism2025|PDF|Epub|mobi|kindle电子书版本百度云盘下载

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INTRODUCTION1

PART Ⅰ OVERARCHING ELEMENTS5

1 APPLICATION OF HUMAN RIGHTS LAW5

1.1 At all times:during both peace and armed conflict5

1.1.1 Treaty provisions and their interpretation5

1.1.2 Practice of States and UN Charter bodies6

1.2 Scope of application:jurisdiction9

1.2.1 Treaty provisions9

1.2.2 Interpretation of the reference to 'territory' in the ICCPR provision10

1.2.3 Application where there is no jurisdiction clause11

1.2.4 Meaning of'jurisdiction'12

1.2.5 Where the State has lost control of parts of its national territory13

1.2.6 Control of another State's territory as a result of military action14

1.2.7 Responsibility for transfers to other States18

1.2.8 Control or decisive effect over persons outside own territory18

1.2.9 Activities affecting persons outside the States bound by a regional treaty21

1.3 International peacekeeping operations:jurisdiction and imputability22

1.4 Relationship between 'jurisdiction' and 'imputability'25

1.5 Relationship between 'jurisdiction' and 'occupation'28

2 ENSURING RIGHTS30

2.1 Treaty provisions and general principles30

2.2 The obligation to 'ensure' or 'secure' rights32

2.2.1 Immediate and full implementation32

2.2.2 Ensuring the separation of powers and basic principles of democracy33

2.2.3 The requirement of reality in the justice system34

2.2.4 Steps necessary to prevent violations of specific rights35

2.2.5 Obligation of 'due diligence' with regard to the actions of private persons or entities37

2.2.6 Punishment to be of a nature to deter future violations38

2.2.7 Situations in which it is impossible to ensure respect39

2.2.8 Clash of international obligations41

2.3 Realization of economic,social,and cultural rights42

2.3.1 Interpretation developed by the UN Committee on Economic,Social and Cultural Rights42

2.3.2 Interpretation of ESCR bythe African Commission46

2.3.3 Hybrid obligations46

2.4 The requirement of non-discrimination49

2.4.1 Treaty provisions49

2.4.2 Meaning of 'discrimination'52

2.4.3 Distinctions based on nationality54

2.4.4 Profiling in counter-terrorism measures55

2.5 Right to a remedy57

2.5.1 Treaty provisions57

2.5.2 Requirement for remedy where a violation of a treaty right is concerned58

2.5.3 Meaning of'effective remedy'60

2.5.4 Relationship between right to a remedy and other rights64

2.5.5 International counter-terrorism measures and right to a remedy66

2.5.6 Right to a remedy during states of emergency67

3 THE REGIME OF LIMITATIONS AND DEROGATIONS68

3.1 General principles68

3.1.1 Some absolute rights68

3.1.2 Freedoms with inherent limitations68

3.1.3 Measures during an emergency69

3.1.4 Non-discrimination70

3.1.5 ECHR and the margin of appreciation70

3.1.6 Derogations and limitations to economic,social,and cultural rights70

3.2 System of limitations71

3.2.1 General overview of treaty provisions71

3.2.2 Provided by 'law'72

3.2.3 Purpose75

3.2.4 Necessity76

3.2.5 Abuse of rights78

3.3 System of derogations79

3.3.1 General overview of the treaty provisions79

3.3.2 Interpretation of 'emergency' by the treaty bodies82

3.3.3 Derogations prohibited because they would violate other rules of international law89

3.3.4 The overarching need to maintain the rule of law90

3.3.5 Interpretation of 'to the extent strictly required by the exigencies of the situation'99

3.3.6 Conclusion104

4 THE ROLE OF INTERNATIONAL HUMANITARIAN LAW IN HUMAN RIGHTS LAW106

4.1 Introduction106

4.2 The International Court of Justice106

4.3 United Nations Human Rights Council108

4.4 Human rights treaty bodies108

4.4.1 Treaty requirements to consider international humanitarian law108

4.4.2 The African Commission on Human and Peoples' Rights109

4.4.3 Inter-American Commission and Court of Human Rights111

4.4.4 The European Court of Human Rights115

4.5 Non-State actors117

4.5.1 Introduction117

4.5.2 Different approach in IHL and human rights treaties117

4.5.3 Human rights responsibilities of non-State actors and individuals118

4.6 Utility of using international humanitarian law in a human rights assessment122

4.6.1 Where the two bodies of law provide the same rules122

4.6.2 IHL rules that can be impliedly included in ESCR rules123

4.6.3 Express reference to IHL in human rights treaties124

4.6.4 IHL rules that do not exist in human rights treaties124

5 INTERNATIONAL MEASURES TO PREVENT TERRORISM AND HUMAN RIGHTS PROTECTION127

5.1 Introduction127

5.2 Counter-terrorism treaties128

5.2.1 Universal treaties128

5.2.2 Regional treaties130

5.3 Measures taken by the UN Security Council137

5.3.1 Requirement to criminalize terrorist acts and provide mutual assistance137

5.3.2 Sanctions regime—freezing of assets and travel restrictions142

5.3.3 Security Council requirements for counter-terrorism measures to respect human rights145

5.4 Measures taken by the UN Human Rights Commission and Human Rights Council147

5.4.1 Before 2001147

5.4.2 Resolutions on counter-terrorism and human rights after 2001147

5.4.3 Special rapporteurs on counter-terrorism and human rights148

5.5 Measures taken by the UN General Assembly and UN Secretary-General149

5.5.1 Counter-terrorism treaties149

5.5.2 Resolutions on counter-terrorism and human rights150

5.5.3 Global Counter-Terrorism Strategy150

5.6 International case-law relating to binding UN Security Council measures and human rights153

PART Ⅱ ABSOLUTE PROHIBITIONS161

6 PROHIBITION OF ARBITRARY DEPRIVATION OF LIFE161

6.1 Treaty provisions and basic principles161

6.2 Law enforcement operations163

6.2.1 Basic principles163

6.2.2 The need for an adequate legislative framework,training,and advance planning165

6.2.3 Arrest and lack of necessity for the use of lethal force167

6.2.4 Demonstrations and riots169

6.2.5 Use of technologies labelled 'non-lethal'171

6.3 Use of force during armed hostilities172

6.3.1 Evaluation of necessity to use armed force and adequate planning172

6.3.2 Need for proper identification of suspected rebels176

6.3.3 Protecting the lives of injured persons177

6.4 Death or disappearance of persons in the power of government agents178

6.4.1 Deaths in custody178

6.4.2 Where person was last seen with government agents178

6.5 Responsibility of the State to protect life when killings are committed by non-State actors180

6.6 Requirement to investigate possible violations of the right to life184

6.6.1 When an investigation is required186

6.7 Armed conflict and 'arbitrary deprivation of life'188

6.7.1 Meaning of the term 'war' in human rights treaties192

7 PROHIBITION OF TORTURE,INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT194

7.1 Absolute nature of the prohibition194

7.2 Definitions196

7.2.1 Inhuman treatment or punishment196

7.2.2 Degrading treatment or punishment198

7.2.3 Torture199

7.3 Evaluation of certain practices202

7.3.1 The death penalty202

7.3.2 Indefinite detention205

7.3.3 Isolation206

7.3.4 Rape and other forms of sexual violence209

7.3.5 Use of physical force and methods of restraint209

7.3.6 Corporal punishment211

7.3.7 Discrimination212

7.3.8 Lackofmedical care212

7.3.9 Poor physical conditions of detention213

7.4 Non-refoulement214

7.4.1 General principle214

7.4.2 Method of evaluating that the risk is real214

7.4.3 Rule and evaluation method the same for all persons215

7.4.4 Diplomatic assurances217

7.4.5 Extraordinary renditions218

7.5 Preventive and deterrence measures218

7.5.1 Interrogation methods219

7.5.2 Statements made as a result of torture may not be used as evidence220

7.5.3 Accessto alawyer220

7.5.4 Transparency of detention221

7.5.5 Examination by a doctor223

7.5.6 Detainee to be informed of his or her rights223

7.5.7 Duty to investigate a complaint223

7.5.8 Supervision by an independent body and complaint procedure224

7.6 Right to humane treatment225

7.6.1 Treaty provisions225

7.6.2 Resolutions and other documents226

8 PROHIBITION OF ENFORCED DISAPPEARANCES228

8.1 Definition of 'enforced disappearance'228

8.2 Enforced disappearance as a violation of human rights229

8.2.1 Enforced disappearance as a serious multiple human rights violation229

8.2.2 The right to life230

8.2.3 The prohibition of torture,or inhuman or degrading treatment235

8.2.4 The right to liberty and security of person240

8.2.5 Right to a remedy243

8.3 Specific instruments relating to enforced disappearance246

8.3.1 United Nations Declaration on the Protection of All Persons from Enforced Disappearance,1992246

8.3.2 Inter-American Convention on Forced Disappearance of Persons,1994247

8.3.3 International Convention for the Protection of All Persons from Enforced Disappearance,2006247

PART Ⅲ FUNDAMENTAL REQUIREMENTS OF DUE PROCESS253

9 PROHIBITION OF ARBITRARY DETENTION253

9.1 Basic principles253

9.2 Meaning of 'detention'254

9.2.1 Treaty provisions applicable to all forms of detention254

9.2.2 Disciplinary measures and military service254

9.2.3 House arrest and control orders255

9.3 Deprivation of liberty to be in accordance with the law255

9.4 Grounds for detention and procedure adopted must not be arbitrary257

9.4.1 The ECHR257

9.4.2 The other general human rights treaties260

9.5 Administrative detention on security grounds263

9.5.1 The ECHR263

9.5.2 The other general human rights treaties263

9.6 Information on reasons for detention264

9.6.1 Treaty provisions264

9.6.2 Meaning of 'arrest' not limited to criminal cases265

9.6.3 Content and timing of the information265

9.7 Access to persons outside the detention centre266

9.7.1 Access to a lawyer267

9.7.2 Access to a diplomatic or consular official268

9.8 Right to supervision of the lawfulness of detention(habeas corpus)269

9.8.1 Treaty provisions269

9.8.2 Application to anyone in detention on request270

9.8.3 Time within which the remedy must be available270

9.8.4 Repetition of review271

9.8.5 Must be heard by a court or a court-like body271

9.8.6 Nature of evaluation and procedural guarantees272

9.8.7 Application during armed conflict and emergency276

10 PRE-TRIAL DETENTION280

10.1 Introduction280

10.2 Requirement for a lawful arrest280

10.2.1 Arrest warrant280

10.2.2 Arrest overseas:abduction or lawful arrest and transfer?281

10.2.3 Arrest on reasonable suspicion of having committed an offence282

10.2.4 Prompt information of charges against arrested person284

10.3 Requirement to be brought promptly before a judicial officer285

10.3.1 Treaty provisions285

10.3.2 Purpose of this procedure286

10.3.3 Meaning of 'promptly'287

10.3.4 Required nature of the judicial authority288

10.4 Right to trial within a reasonable time or to release289

10.4.1 Treaty provisions289

10.4.2 Basic principle290

10.4.3 Elements that are to be taken into account290

10.5 Derogation during states of emergency294

10.5.1 Introduction294

10.5.2 Requirement for a lawful arrest295

10.5.3 Requirement to be brought promptly before a judicial officer296

11 CRIMES AND THE PRINCIPLE OF LEGALITY300

11.1 Legal basis required for conviction and punishment:basic principles300

11.1.1 Treaty provisions300

11.1.2 Non-derogability301

11.1.3 Definition of'crime'301

11.2 Clarity of definition of crimes302

11.2.1 Drafting and interpretation of legal provision302

11.2.2 Penalties303

11.2.3 Problem of'terrorism' definition304

11.3 Prosecution of an offence after practice of tolerance304

11.3.1 Previous practice of not prosecuting certain persons in specific contexts304

11.3.2 Previous non-prosecution based on amnesty legislation306

11.4 International crimes and offences under general principles of law306

11.4.1 International crimes306

11.4.2 General principles of law recognized by the community of nations315

11.5 Individual criminal responsibility and prohibition of collective punishment316

11.5.1 Treaty provisions316

11.5.2 Treaty-body practice317

12 RIGHT TO BE HEARD BY A COMPETENT,INDEPENDENT,AND IMPARTIAL TRIBUNAL318

12.1 Treaty provisions318

12.2 Right of access to a court319

12.2.1 Basic principle319

12.2.2 Access limited to procedures covered by fair trial treaty provisions320

12.2.3 Procedures relating to the expulsion of non-nationals321

12.2.4 Lack of access because of practical restraints323

12.2.5 Immunities324

12.2.6 Amnesties329

12.2.7 International organizations' counter-terrorism measures330

12.3 Definition of competent,independent,and impartial tribunal331

12.3.1 Meaning of'tribunal'331

12.3.2 Meaning of'competent','established by law'332

12.3.3 Meaning of 'independent'335

12.3.4 Meaning of 'impartial'336

12.3.5 Military tribunals337

12.3.6 Special courts342

13 ELEMENTS OF FAIR TRIAL345

13.1 Basic concept345

13.2 Presumption of innocence346

13.2.1 Basic principle346

13.2.2 Statements by the executive346

13.2.3 Military and anti-terrorism trials346

13.2.4 Lengthy pre-trial detention347

13.2.5 Placing persons on a 'terrorism' list347

13.3 Equality of arms348

13.3.1 Basic principle348

13.3.2 Equality and adversarial procedure348

13.3.3 Use of confidential or anonymous evidence349

13.4 Public hearing353

13.4.1 Treaty provisions and basic principles353

13.4.2 Modalities354

13.4.3 Exclusion of the public for security reasons355

13.5 Means of defence356

13.5.1 Adequate services of a lawyer356

13.5.2 Right not to be compelled to testify against oneself or to confess guilt363

13.5.3 Information on the nature and cause of a charge364

13.5.4 Right to call and examine witnesses365

13.5.5 Right of an accused to be present at the trial365

13.5.6 Right to free assistance of an interpreter if the accused cannot understand or speak the language used in court366

13.6 Right to trial within a reasonable time366

13.7 Right to appeal to a higher tribunal368

13.8 Prohibition of trial more than once for the same offence(ne bis in idem)369

13.9 Extradition to an unfair trial371

PART Ⅳ LIMITATIONS TO FREEDOMS375

14 THE RIGHT TO HOME,PROPERTY,FREEDOM OF MOVEMENT,AND RESIDENCE375

14.1 Treaty provisions375

14.1.1 Right to respect for one's home375

14.1.2 Right to respect for one's property375

14.1.3 Right to freedom of movement and residence376

14.1.4 Procedures relating to the expulsion of non-nationals378

14.2 Meaning of terms379

14.2.1 Meaning of'home'379

14.2.2 Meaning of 'property'380

14.2.3 Meaning of 'freedom of movement and residence'384

14.3 Destruction of property,forcible evictions,and internal displacement as a result of military operations385

14.4 Restrictions on or loss of property,home,and movement during occupation389

14.4.1 Loss of access to home or property389

14.4.2 Destruction of property as a penalty394

14.4.3 Restrictions on movement395

14.4.4 Taking of occupied territory's natural resources397

14.5 Counter-terrorism measures398

14.5.1 Non-access to assets or other funds398

14.5.2 Travel and residence restrictions400

15 PARTICIPATION IN PUBLIC LIFE:FREEDOM OF EXPRESSION,ASSOCIATION,AND CONSCIENCE401

15.1 Treaty provisions401

15.1.1 Freedom of opinion and expression401

15.1.2 Freedom of association and assembly403

15.1.3 Right to conscience and religion404

15.2 Meaning of terms405

15.2.1 Meaning of'expression'405

15.2.2 Meaning of 'association' and 'assembly'410

15.2.3 Meaning of 'conscience' and 'religion'412

15.3 Interpretation of limitations to freedom of expression414

15.3.1 Meaning of certain terms in the limitation clauses414

15.3.2 Expression perceived as supporting illegal organizations,enemy nations,or terrorism415

15.3.3 Hate speech and war propaganda419

15.3.4 Limitations on the press421

15.4 Interpretation of limitations to freedom of association and assembly424

15.5 Interpretation of limitations to manifestation of belief426

15.6 Protection of the military and secret service428

15.6.1 Protection of military or security information428

15.6.2 The maintenance of military discipline431

15.6.3 Conscientious objection to military service433

15.7 Restrictions during military occupation435

15.8 Restrictions on political parties436

15.9 Restrictions on demonstrations and public protests440

16 PROTECTION OF THE PERSONAL SPHERE:RIGHT TO PRIVATE AND FAMILY LIFE444

16.1 Treaty provisions444

16.2 Meaning of terms445

16.2.1 Meaning of 'private life'445

16.2.2 Meaning of 'family life'445

16.3 Restrictions on prisoners446

16.3.1 Correspondence446

16.3.2 Contact with the family448

16.4 Surveillance,interception,and searches449

16.4.1 Secret surveillance449

16.4.2 Search of premises452

16.4.3 Search of a person and personal belongings453

16.5 Databases454

16.6 Placement on terrorism lists457

16.7 Expulsions and displacement457

16.7.1 Expulsions458

16.7.2 Displacement as a result of conflict462

16.8 Restrictions imposed during military occupation463

PART Ⅴ PROTECTION OF VULNERABLE AND DISADVANTAGED POPULATIONS467

17 ECONOMIC,SOCIAL,AND CULTURAL RIGHTS IN SITUATIONS OF VIOLENCE467

17.1 Elements relevant to application in such situations467

17.1.1 Possible derogations or limitations467

17.1.2 Economic sanctions470

17.1.3 Role of international humanitarian law472

17.2 Interpretation of economic,social,and cultural rights in armed conflict situations476

17.2.1 Case-law476

17.2.2 General Comments of the CESCR480

17.2.3 Concluding Observations of the CESCR482

17.2.4 Fact-finding reports486

17.2.5 Conclusion490

17.3 Protection of ESCR through civil and political rights' individual petition systems492

17.3.1 Rights included in both types of human rights treaties492

17.3.2 Interpretation of civil rights covering also economic and social rights492

17.4 Counter-terrorism measures and ESCR494

17.4.1 Effect of restrictions to civil and political rights on ESCR494

17.4.2 Effect of certain national counter-terrorism measures494

17.4.3 Effect of being on the UN Security Council sanctions list495

17.4.4 Conditions conducive to the spread of terrorism496

17.4.5 Consideration of ESCR for emergency measures497

17.4.6 Consideration of ESCR for peace agreements498

18 VULNERABLE GROUPS DURING ARMED CONFLICT AND OTHER VIOLENCE499

18.1 Recognition of vulnerable groups499

18.2 Gender discrimination500

18.2.1 Definition and impact on poverty and violence500

18.2.2 Legal regulation of gender discrimination501

18.2.3 Recognition of gender discrimination in situations of armed conflict502

18.2.4 Militarization of boys507

18.2.5 Legal requirements to counter gender discrimination in conflict situations507

18.3 Violence against women508

18.3.1 Phenomenon during conflict based on pre-existing attitudes508

18.3.2 Legal prohibition of violence against women511

18.3.3 Required preventive and reparation measures515

18.4 Respecting human rights of people under 18 years of age517

18.4.1 Specific problems faced by young children and adolescents in situations of violence517

18.4.2 Requirement in human rights treaties to respect IHL rules that protect children during armed conflict519

18.4.3 Human rights rules applicable to children521

18.4.4 International practice on the application of children's rights in armed conflict523

18.4.5 Classification of the most serious abuses by the UN Security Council525

18.5 Law relating to the use of persons under 18 in the army and armed groups526

18.5.1 Law relating to recruitment and use of such persons526

18.5.2 Law relating to demobilization and reintegration531

Select Bibliography535

Index541