What Are Human Rights? (13): Not Absolute – The Case of the State of Emergency

Article 4 of the International Covenant on Civil and Political Rights, the main human rights treaty, creates the possibility for states to declare a so-called “state of emergency“, a temporary suspension of mechanisms for the protection of some human rights when this is required by a national crisis:

1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.

3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

Paragraph 2 states that the emergency can never warrant the violation of the right to life, the right not to be tortured or held in slavery, the right to due process, or the freedom of thought and religion.

This provision seems to be very reasonable. It is the case that human rights can be misused for the destruction of a human rights protecting community. And the democratic mechanisms can be misused for the abolition of democracy. (This is the famous theory of the suicide of democracy, the best example of which is the Nazi take-over in Weimar Germany). When this misuse develops to a certain scale, one can indeed speak of a regime crisis and a state of emergency suspending certain human rights protections may be the only alternative left to save the community.

For example, in times of war or civil war it is impossible to insist that all human rights and democratic principles be fully applied. The enemy should no be allowed to use human rights for the destruction of a democratic and human rights supporting community. Furthermore, a war, because of the urgency it creates, makes it very difficult to respect certain democratic habits, such as the consultation of large parts of the population, the thorough examination of all alternatives etc. A strong, individual leadership seems better adapted to the urgencies of war. On top of that, the war effort and the war industry require a unity of vision and a high level of cooperation without dissent. Dissent can harm the struggle for survival. It weakens the effectiveness of common actions and it can be exploited by the enemy. In a state of war, society and politics take over many of the undemocratic habits of the military, such as discipline, secrecy, strong leadership, the absence of criticism, uniformity instead of diversity and so on. The war industry as well can harm human rights, for example the rights concerning free choice of labor, good working conditions etc.

Perhaps there are also non-war situations, or warlike situations which do not resemble traditional warfare (such as the “war on terror” if there is such a thing), which may warrant temporary suspension of human rights protection. However, the goal of this post is not to disentangle this notoriously difficult question.