The Right to a Fair Trial in Situations of Emergency and the Question of Emergency Courts

by

Andreas Zimmermann⁽¹⁾

I. Introduction

Emergency situations must be considered the litmus test for human rights protection in general and the right to a fair trial in particular.⁽²⁾

This is due to the fact that in practice, it is during such states of emergency -- whether formally declared or not⁽³⁾

-- that the most serious violations of human rights occur.⁽⁴⁾

Therefore it is particularly important in such situations to strike a balance between the raison d'état on the one hand and individual rights on the other⁽⁵⁾

by guaranteeing a minimum of due process rights. However, when analyzing different national legal systems as to what extent they allow derogations as to the right to a fair trial in situations of internal or external emergencies,⁽⁶⁾

significant differences can be found.⁽⁷⁾

II. National Provisions as to the Right of Fair Trail in Situations of Emergency and the Problem of Emergency Courts

1. Right of Fair Trial

The different national constitutions have reached very different solutions when dealing with the question whether the right to a fair trial, as normally guaranteed, can be curtailed in cases of internal or external emergencies.⁽⁸⁾

Some recently enacted constitutions, e.g. some new constitutions of Eastern European states, contain quite far-reaching fair trial guarantees even in situations of emergency. This is true, for example, in the case of Slovenia, where art. 16 of the Slovenian constitution stipulates that neither art. 27 (which refers to the right to be presumed innocent), nor art. 28 (which prohibits ex post facto laws) nor art. 29 (which contains detailed defense rights) may be limited due to a situation of emergency.⁽⁹⁾

However the majority of national constitutions only protect specific fair trial rights including in the vast majority of cases the prohibition of ex post facto laws.⁽¹⁰⁾

A relatively high number of states now also provide for the possibility of amparo or habeas corpus procedures at any time or at least the possibility to have the legality of a detention reviewed periodically.⁽¹¹⁾

However, some national legal orders provide that a decision to release a prisoner is either not binding upon the executive branch⁽¹²⁾

or that the President may by special order exclude the court's power to order the release of a prisoner from detention.⁽¹³⁾

In some jurisdictions, while the courts may nowadays act upon a request for release in an amparo procedure, they may not question the factual basis for putting the country in a state of siege.⁽¹⁴⁾

Where the right of habeas corpus may be excluded in time of emergency,⁽¹⁵⁾

sometimes alternative provisions do exist, which are modeled to avoid the possibility of persons being kept in custody without knowledge by third persons. Thus the executive is in some countries obliged to publish the names of detainees in the public gazette within a given period of time.⁽¹⁶⁾

Most constitutions further provide for a right of the individual to be informed about the charges brought against him but the right to have contact with a defense counsel is only rarely protected against derogation.⁽¹⁷⁾

Finally, a rather special solution is provided for in art. 93 of the Colombian constitution under which priority over national law is given to those treaties that prohibit the derogation of fundamental rights in situations of emergency.⁽¹⁸⁾

It is also sometimes specifically stated that after the end of the emergency, all detentions that had been taking place in accordance with specific emergency regulations must be lifted.⁽¹⁹⁾

2. The Question of Emergency Courts

The issue of emergency courts is only rarely addressed by national constitutions and only some constitutions formally prohibit special courts, such as for example art. 61 of the Danish Constitution,⁽²⁰⁾

art. 119 para. 3 of the Bulgarian Constitution or art. 101 para. 1 of the German Constitution.

However, where emergency courts exist, be it either for the country-in-large or be it for certain regions, there is the further problem that those special tribunals frequently do not guarantee the same procedural protection as regular courts.⁽²¹⁾

Notwithstanding the problem of emergency courts, there is the additional problem that the personnel of regular courts might be removed immediately after the state of emergency has been declared and that the members of the bench are then replaced by new judges more "in line" with the wishes of the government.⁽²²⁾

III. International Instruments Providing for the Right to a Fair Trial in Situations of Emergency

1. Universal Instruments

It is not only the United Nations Covenant on Civil and Political Rights itself that protects certain aspects of the right to a fair trial in cases of emergency but also some other universal instruments provide for certain fair trial rights not to be curtailed in situations of emergencies, be it either for specific groups of persons or be it in specific situations.

a. Convention on the Rights of the Child

Under art. 37 lit. d of the Convention on the Rights of the Child, state parties must ensure that "every child deprived of his or her liberty shall have the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority and to a prompt decision on any such action" without providing for any kind of derogation in case of emergency. On the other hand the right of the child who is kept in custody to maintain contacts with his or her family⁽²³⁾

may be excluded "in exceptional circumstances" which in accordance with the ordinary meaning of the term would also include emergency situations.⁽²⁴⁾

b. United Nations Convention against Torture

The United Nations Convention against Torture, which does not embody a derogation clause, contains -- apart from the fundamental guarantee to be free from torture, which is, however, only indirectly linked to the right to a fair trial -- several due process rights. Inter alia, evidence obtained as a result of torture cannot be introduced into a trial⁽²⁵⁾

and persons accused of torture are guaranteed fair treatment during the criminal proceedings to be commenced against them.⁽²⁶⁾

c. Rules of Humanitarian Law

The different conventions that regulate the behavior of parties to an armed conflict all contain some references to the right to a fair trial. Most importantly, under the common article 3 of all four Geneva Conventions, each party to an armed conflict is under an obligation not to pass any sentences against non-combatants unless a judgment is previously pronounced by a regularly constituted court affording all the judicial guarantees that are recognized as indispensable by civilized peoples.⁽²⁷⁾

Furthermore, art. 75 of the First Additional Protocol of 1977 and art. 4 of the Second Additional Protocol both prohibit collective punishments thus also enshrining one basic aspect of a fair trial.

Article 99 of the Third Geneva Convention, relative to the treatment of prisoners of war, prohibits ex post facto laws, obliges the detaining power to grant a prisoner of war the possibility to present his defense with the assistance of a qualified counsel and guarantees the right to a trial as soon as circumstances permit.⁽²⁸⁾

The Fourth Geneva Convention regulating the legal status of civilians in occupied territories contain similar guarantees, which include, inter alia, the prohibition of retroactive criminal laws,⁽²⁹⁾

the right to have a regular, speedy trial and to be informed about the pending charges,⁽³⁰⁾

and finally the right to call defense witnesses, to be advised by appropriate counsel and to be provided with an interpretation of the proceedings.⁽³¹⁾

Since all the provisions just mentioned were specifically drafted for situations of armed conflicts, it is beyond doubt that they cannot be derogated from, even if at the same time the conditions for declaring a state of emergency exist.⁽³²⁾

It has been therefore asserted that given the fact that these standards are applicable in times of war -- which normally constitute the gravest situations -- they should a fortiori be generally considered non-derogable⁽³³⁾

or at least should serve as indicators of the standards applicable in all kinds of emergencies.⁽³⁴⁾

It has to be noted however, that the Third and Fourth Geneva Convention only protect specific groups of persons who are particularly vulnerable and that they only provide for -- in the intent of the drafters -- relatively short periods of time. Furthermore, the nationals of the occupying power, even if present in the war zone, are not protected by the provisions of the Fourth Geneva Convention. Thus it could be well argued that these rules of humanitarian warfare should be considered lex specialis, i.e. that their scope of application is limited to regulating armed conflicts⁽³⁵⁾

and that accordingly they cannot serve as a basis for an analogous application in different situations such as terrorist insurrections which do not fulfill the criteria of an armed conflict.

2. Regional Instruments

a. American Convention on Human Rights⁽³⁶⁾

The American Convention on Human Rights has given rise to the most interesting practice regarding the protection of due process rights in cases of emergency. This is due to the fact that the Convention not only contains a relatively elaborated list of entrenched rights, which includes inter alia the right to life, the right to humane treatment and the freedom from ex post fact laws, but even more important that the Convention under all circumstances also protects, according to its art. 27 para. 2, "the judicial guarantees essential for the protection of such rights". Thus, it might be concluded that certain aspects of the right to a fair trial are protected against derogation notwithstanding the fact that the due process guarantees contained in art. 8 of the American Convention as such are not protected from derogation. It is however somewhat unclear, what are the exact limits of the judicial guarantees referred to in art. 27.⁽³⁷⁾

The Inter-American Court of Human Rights several times the occasion to elaborate on this issue. It stated in an advisory opinion of January 1987⁽³⁸⁾

that the writs of amparo and habeas corpus as contained in the Convention are among those entrenched rights and are therefore protected against derogation.⁽³⁹⁾

The Court in particular based its opinion on the fact that the right to life and human treatment, which are themselves declared to be non-derogable by virtue of art. 27 para. 2, would be pure empty shells if the right of habeas corpus as an essential guarantee against violations of these rights might be curtailed.⁽⁴⁰⁾

In a second advisory opinion of October 1987, the Court linked the judicial guarantees not to be derogated from with the respective substantive rights. That means that whenever a person claims to be the victim of a violation of a right that is itself not subject to derogation, he or she must automatically also have the respective parallel procedural right to have this claim be decided by a competent court.⁽⁴¹⁾

Furthermore, where only some rights have been validly suspended by way of a declaration of emergency, the judicial guarantees for all other rights remain fully applicable.⁽⁴²⁾

Besides the practice of the Inter-American Court of Human Rights, the practice of the Inter-American Commission on Human Rights should be also taken into account. It was already in 1968 that the Commission resolved that "the suspension of constitutional guarantees in emergency situations is compatible with the system of representative democratic government . . . only if the right to due process of law is protected."⁽⁴³⁾

Similarly, the Commission in 1978 stated rather broadly that even in situations of emergency, detainees may under no circumstances be held in custody without being brought to a trial where they may exercise the right to a fair trial and their right to due process of law.⁽⁴⁴⁾

In its 1980 report on Argentina, the Commission further pointed out that "certain fundamental rights can never be suspended . . . [such as] the right to due process . . . in other words, under no circumstances may governments employ . . . the denial of certain minimum conditions of justice as the means to restore public order."⁽⁴⁵⁾

Since Argentina was not a member to the American Convention at the time, this statement could have been based solely on either general or regional customary international law. In the case of Guatemala, the Commission found that the creation of special courts, where rights for the defendant were absent,⁽⁴⁶⁾

was inadmissible since these courts violated "judicial guarantees indispensable to due process included in the American Convention on Human Rights, which should not be suspended even in emergency situations."⁽⁴⁷⁾

As to emergency courts, the Inter-American Commission has frequently held that courts that are subordinated to the national Minister of Defense violate the rights under art. 8.⁽⁴⁸⁾

Since the Court in its above-mentioned advisory opinion on the right to judicial guarantees stated, that even in a situation of emergency, the individual has a right to an effective recourse to a competent court or tribunal in cases dealing with the violation of human rights,⁽⁴⁹⁾

this must include the right to have recourse to an independent tribunal since otherwise the recourse would not be effective. This holding does not, however, exclude automatically the creation of special courts as long as they fulfill the requirements of art. 8 of the Convention.

Notwithstanding these holdings, it is still somewhat unclear what exactly are the required judicial guarantees protected within the American system even in situations of emergency,⁽⁵⁰⁾

in particular whether all guarantees contained in art. 8 are protected against derogation.

b. African Charter on Human and People's Rights and Freedoms

The African Charter on Human Rights is exceptional insofar as it does not contain a general provision allowing states to derogate from their obligations in situations of public emergency. This is even more surprising since neither art. 7 of the Convention, which includes the relevant due process rights, nor art. 26 which guarantees the independence of the judiciary, contain a general limitation provision. In view of this ambiguous situation, there has been some discussion whether no derogation whatsoever is possible in times of emergency or whether to the contrary this could mean that all rights can be derogated from in times of emergency.⁽⁵¹⁾

The idea that a derogation might be possible is supported by the fact that some contracting parties have indeed taken such derogating measures, such as Zimbabwe, which in 1987 derogated from the right to a fair trial without undue delay, as enshrined in art. 7 lit. d of the Charter, without encountering protests from other states parties.

The most convincing solution should be, however, an intermediate one. I would argue that states, by entering into that treaty, did not give up their rights under general international law to suspend their obligations in case of a fundamental change of circumstances in the sense of art. 62 of the Vienna Convention on the Law of Treaties has occurred⁽⁵²⁾

and that accordingly a state might, under such circumstances, suspend some or all of its obligations under the treaty.

c. European Convention for the Protection of Human Rights

During the drafting history of the European Convention for the Protection of Human Rights, it was the United Kingdom which -- against the original resistance of Italy and France -- proposed to introduce a derogation clause which later became art. 15 of the Convention. It contains a short list of four non-derogable rights, including as far as the subject-matter of this conference is concerned, the protection against ex post facto laws. In the meantime this protection has been extended by art. 3 of the 6^th Additional Protocol and art. 4 of the 7^th Additional Protocol. Thus, at this point, the prohibition of imposing the death penalty in public emergencies short of war and the principle of ne bis in idem cannot be derogated from.

The argument brought forward by several authors that other fair-trial related rights, beyond those just mentioned, are also implicitly entrenched under the Convention including eventually certain elements of art. 5 and 6 of the Convention,⁽⁵³⁾

has not been confirmed by the practice of either the European Commission or the European Court of Human Rights. To the contrary, the Court has stated that since "article 5 does not appear amongst the entrenched provisions listed in para. 2 of article 15 . . . [it] is subject to the right of derogation."⁽⁵⁴⁾

It is interesting to note that the Turkish declaration of derogation of August 1990 also referred to a derogation from the obligations contained in art. 13 without encountering any critical observations by other member states.

Finally, it was the Court which -- unlike the Inter-American Court of Human Rights -- emphasized that "articles 3 and 5 embody quite separate obligations"⁽⁵⁵⁾

and that accordingly a possible violation of article 3 -- from which no derogation is possible -- would not automatically hinder a state to make a derogation as far as art. 5 of the Convention is concerned. Accordingly it seems that the Court is, in this regard, following the cautious approach already embedded in the text of the Convention.

As to emergency courts, the Commission in the Greek case held that the maintenance of extraordinary court martials was not strictly required by the circumstances and for that reason found a violation of art. 6 of the Convention.⁽⁵⁶⁾

It thereby implied that in more serious situations, the creation of special courts might indeed be admissible, if the other conditions of art. 15 of the Convention are fulfilled.

It is also interesting to consider the different dissenting opinions of the minority within the commission in the Lawless case. They considered, that instead of detaining Mr. Lawless without trial, it would have been a less serious encroachment upon his rights and admissible under art. 15 of the Convention to instead have him tried by a special criminal court.⁽⁵⁷⁾

III. The Current Situation under the Covenant⁽⁵⁸⁾

Similar to the European Convention on Human Rights, art. 4 of the Covenant prohibits the enactment of ex post facto laws as contained in art. 15 of the Covenant, but does not explicitly entrench further aspects of the right to a fair trial. Furthermore and more recently, the Second Additional Protocol to the Covenant provides that those States that have abolished the death penalty may not derogate from this obligation under art. 4 of the Covenant, unless they have made a specific reservation provided for in art. 2 of the protocol under which they may still apply capital punishment in times of war for serious military offenses.

During the drafting, neither proposals brought forward by France and the United States to make certain minimum guarantees of the rule of law non-derogable, nor an Israeli proposal to entrench the right to a fair trial by an independent and impartial tribunal could find a majority.⁽⁵⁹⁾

The Human Rights Committee acting under the First Optional Protocol has not yet had an opportunity to give its unequivocal opinion on the question whether certain fundamental guarantees of the right to a fair trial are indeed protected against derogation. In its general comment on art. 4,⁽⁶⁰⁾

the Committee has however implicitly indicated that it does not consider further substantive rights except those mentioned in art. 4 and the obligation not to take certain discriminatory measures to be ipso facto entrenched. Furthermore several parties to the Covenant including Nicaragua, Trinidad and Tobago and the United Kingdom have made declarations under art. 4 in which they specifically declared their intent to derogate from all or at least some guarantees of art. 14.⁽⁶¹⁾

The practice of the Committee also seems to imply that derogations from at least some of the rights contained in art. 14 are legally possible in a state of emergency. Thus, in a comment concerning a communication from Uruguay, the Committee found a violation of art. 14 since Uruguay had not submitted any evidence to justify the derogation.⁽⁶²⁾

However, if a derogation from art. 14 had been illegal because the guarantees of fair trial were implicitly entrenched, it would have been by far more logical to just state that fact.

The committee chose a similar approach in proceedings concerning another communication originating in Colombia, where the government had pleaded a derogation of art. 14 para. 5. In this case, the committee solely referred to the fact that the Colombian government had not mentioned art. 14 in its notice of derogation -- which implied that it could have done so -- and had not given details why such a derogation had been necessary under the circumstances of the situation.⁽⁶³⁾

The committee did not, however, consider the idea that art. 14 as such could have been entrenched.

There are, however, also some indications which lean towards a non-derogability of due process rights. Reference might be made for example, to a review of a Syrian report which referred to the right to a defense counsel, to adequate time and facilities to prepare the defense and to have the conviction reviewed by a higher tribunal and then stated that "it [is] difficult to see what could justify derogations from the safeguards just mentioned."⁽⁶⁴⁾

In 1984 the committee further stated that "article 4 permits measures derogating from some of the provisions of article 14"⁽⁶⁵⁾

thus implying that there are certain due process rights which might not be derogated from, even apart from the prohibition of ex post facto laws contained in art. 15 of the Covenant.

The committee has on several occasions stressed that the pure fact that civilians are tried by military courts when specific offenses are involved cannot be considered per se a violation of art. 14 of the Covenant, if the substantive guarantees as to the impartiality and independence of the judges involved are upheld.⁽⁶⁶⁾

A fortirori such a measure must be considered to be legal under the Covenant in a declared state of emergency provided however that the other conditions of art. 4 of the Covenant are met, in particular that those derogations do not exceed the limitations strictly required by the emergency.⁽⁶⁷⁾

In its comments on the El Salvadorian report, the Human Rights Committee in 1984 stated that while military tribunal were not considered to run ipso facto counter to the relevant provisions of the Covenant, they "may not carry investigative procedures [which] violate basic human rights."⁽⁶⁸⁾

IV. Proposals de lege ferenda

As we have seen, there is only a rather limited common minimum standard which all relevant normative systems do apply and which is considered to be entrenched even in times of emergency. This is further confirmed by the fact that even the legally non binding document adopted in October 1991 within the framework of the CSCE at Moscow only refers to an "endeavor to ensure that the legal guarantees necessary to uphold the rule of law will remain in force.⁽⁶⁹⁾

The hard core of due process rights seem to encompass however at least the prohibition of ex post facto laws which is entrenched in all relevant instruments and in almost all national constitutions and can therefore be considered to form an essential part of a necessary minimum of protection.

As far as the right of habeas corpus or amparo is concerned, one has to take into consideration that this procedure serves different functions.⁽⁷⁰⁾

First and foremost, it guarantees that the detainee is alive⁽⁷¹⁾

and not exposed to torture. Secondly, it allows a review on the legality of the imprisonment and permits a court to order the release of the individual. The first objective seems to be the most important one, since it guarantees a more fundamental right, such as the right to life or the freedom from inhuman treatment or punishment, -- both of which cannot be derogated even in emergency situations -- is indeed fully implemented. On the other hand, granting courts the power to order the release of a prisoner might be limited to situations where the illegality of the imprisonment is obvious. In the alternative, the control by the judiciary might be limited by for example prohibiting the judiciary from questioning the legality of the proclamation of the emergency.⁽⁷²⁾

Furthermore, in order to avoid that the individual is made a pure object of the proceedings, he or she should be immediately informed about the pending charges. Finally, while it might be understandable that states are not willing to grant suspects unlimited contacts with the defense counsel of their choice for fear of collaboration, governments should at least consider acknowledging the obligation that an independent counsel chosen from among the local bar should be provided.

Finally it is also important that -- once the state of emergency has ended -- the government is under an obligation to lift all measures connected with the state of emergency.⁽⁷³⁾

If taken seriously, this obligation would include granting detainees either a release from imprisonment or in case a final judgment had been rendered while a proclamation of a state of emergency was still in force, granting the individual the right to a revision procedure where he or she could claim a rehearing with a complete observation of the regular fair trial rights.

In conclusion, the Optional Protocol to the Covenant as envisaged should -- in my view -- as far as emergency situations are concerned, focus on a short list of those fair trail rights which are of a fundamental character and where the danger is the highest that their violation has the further consequence to violate other substantive rights such as the right to life or the right to be free from torture. Such a limited list, which should include -- apart from the prohibition of ex post facto laws -- the right to be informed about pending charges and the possibility of a court to control that the detainee is alive and not subjected to inhumane treatment, would strengthen the concept of non-derogability of essential and basic fair trial rights and would have more chances not only to be formally accepted by states but also be put into practice than a rather elaborated list including all fair trial rights protected under the Covenant in normal times.

1. ¹Dr. jur., LL.M. (Harvard), Research Fellow Max-Planck-Institute for Comparative Public and Public International Law Heidelberg.

2. ²As to the protection of human rights in times of emergency generally and the right to a fair trial in particular see inter alia S. Chowdhurry, Rule of Law in a State of Emergency,1989, p. 203 et seq.; J. Fitzpatrick, Human Rights in Crisis -- The International System for Protecting Rights During States of Emergency, 1994, passim, J. Oraá, Human Rights in States of Emergency in International Law, 1992, p. 114 et seq., see also C. Klein, Protection des droits de l'homme et circonstances exceptionelles, Collected Course of the Academy of European Law 1992 II/2, p. 91 et seq. and finally the excellent study prepared by N. Questiaux, Study of the implications for human rights of recent developments concerning situations known as the states of siege or emergency, UN Doc. E/CN.4/Sub.2/1982/15, 1982 all with detailed further references.

3. ³The necessity of a formal proclamation of a state of emergency, in order for a state to be able to derogate from certain guarantees, is embedded in all human rights treaties containing a derogation clause, see e.g. art. 15 para. 3 of the European Convention on Human Rights, art. 27 para. 3 of the American Convention on Human Rights and art. 4 para. 3 of the International Covenant on Civil and Political Rights.

4. ⁴Oraá (note 2), p.1.

5. ⁵See in this regard M. Delmas-Marty, Encadrer ou légitimer la raison d'Etat, in: M. Delmas-Marty, Raisonner la raison d'Etat: vers une Europe des droits de l'homme, 1989, p.17 et seq.

6. ⁶Under the respective national legal orders, emergency situations are commonly referred to as state of siège, public emergencies or a state of war.

7. ⁷For an overview of measures and practices that have served to weaken the safeguards of independence of the judiciary and the legal profession in times of emergency in Israel, Syria, the United Kingdom and Turkey see the report prepared by L. Joinet, The Independence and Impartiality of the Judiciary, Jurors and Assesors and the Independence of Lawyers, UN Doc E/CN.4/Sub.2/1992/25 of 15 June 1992.

8. ⁸As to the situation in Canada under the Emergencies Act of 1985 see the report by Roach/ Friedland, p. 37 - 38.

9. ⁹See similarly art. 25 para. 3. of the Namibian Constitution under which all due process rights as contained in art. 12 of the Constitution may not be derogated even in a state of emergency.

10. ¹⁰See e.g. art. 17 of the Croatian Constitution, art. 54 of the Constitution of the Former Yugoslav Republic of Macedonia or sect. 43 read in conjunction with sect. 35 para. 7 of the Nigerian Constitution of 1992.

11. ¹¹See e.g. sect. 16 para. 2 lit. c of the Constitution of Botswana, sect. 32 of the 1992 Constitution of Ghana, art. 24 para. 2 lit. c of the Constitution of Namibia.

12. ¹²See e.g. sect. 11 of the Constitution of Trinidad and Tobago.

13. ¹³See e.g. sect. 141 c of the Constitution of Bangladesh and sect. 233 of the Pakistani Constitution.

14. ¹⁴This is for example the case in Chile; previously Chilean courts had no right whatsoever in that regard.

15. ¹⁵See for example art. I. sec. 9 (2) of the Constitution of the United States.; as to the legal regime of the state of emergency in the United States see K. Doehring, Die Bewältigung des Staatsnotstandes durch die Staatsorgane der Vereinigten Staaten von Amerika, ROW 1983, p. 41 et seq.

16. ¹⁶See e.g. sect. 16 para. 2 lit. b) of the Constitution of Botswana, Sect. 32 of the Constitution of Ghana or art. 24 para. 2 lit. b of the Namibian Constitution.

17. ¹⁷Reference might be made to Germany, where the contact of a person held in custody for having committed terroristic acts to his or her defense counsel might be limited if a hostage has been taken by another member of the terrorist group and if there is the well-founded suspicion that the lawyer might use his contacts with the detainee to forward information to the other members of the group. For details see sect. 31 et seq. of the Einführungsgesetz zum Gerichtsgeverfassungsgesetz and HR Committee, UN Doc A/33/40 (1978), p. 59, para. 360.

18. ¹⁸For details as to the American Convention on Human Rights to which this provision makes obvious reference see below III.2.a.

19. ¹⁹See e.g. sect. 32 para. 5 of the Constitution of Ghana.

20. ²⁰For details see the report by Garde, p. 45.

21. ²¹See e.g. the so-called Karamoja courts provided for in the Administration of Justice (Karamoja) Act of Uganda, National Report on Uganda, p. 48.

22. ²²See the examples referred to by Fitzpatrick, p. 33 - 34.

23. ²³Art. 37 lit. c) Convention on the Right of the Child.

24. ²⁴The drafting history of the Convention is however silent on this point, for a survey as to the travaux préparatoires of the Convention see S. Detrick (ed.), The United Nations Convention on the Rights of the

Child: a guide to the travaux préparatoires, 1992.

25. ²⁵See art. 15 of the Convention; for details see H. Burgers/ H. Danelius, The United Nations Convention against Torture -- A Handbook on the Convention against Torture and Other Cruel, Inhuman or degrading treatment or Punishment, 1988, p. 69-70 (drafting history) and p. 147-148.

26. ²⁶See art. 7 of the Convention.

27. ²⁷See also the Judgment of the International Court of Justice in Nicaragua v. USA (Merits), ICJ Rep. 1986, p. 113 -114, where the court considered the common art. 3 to be a "minimum yardstick" to be

applied in any kind of armed conflict.

28. ²⁸See also the further guarantees in case the death penalty might be pronounced as contained in art. 100 of the Convention.

29. ²⁹See art. 65 of the Fourth Geneva Convention.

30. ³⁰See art. 71 of the Fourth Geneva Convention.

31. ³¹See art. 72 of the Fourth Geneva Convention.

32. ³²This is even true where -- as in the case of the two additional protocols of 1977 -- the absolute character of these obligations is not specifically underlined.

33. ³³Oraá (note 2), p. 107.

34. ³⁴Id., p. 108

35. ³⁵L. Hannikainen, Peremptory Norms (jus cogens) in International Law, p. 440; S. Kadelbach, Zwingendes Völkerrecht, 1992, p. 304.

36. ³⁶See also the report by Kokott, p. 8 et seq.

37. ³⁷See S. Chernichenko/W. Treat, The administration of justice and the human rights of detainees - The right to a fair trial: Current recognition and measures necessary for its strengthening, Commission on

Human Rights, UN Doc E/CN.4/Sub.2/1994/24, p. 39, where they state that "it is somewhat unclear what are the required 'judicial guarantees' protected by article 27."

38. ³⁸Advisory Opinion OC-8/87, Ser. A, No. 8 "Habeas corpus in Emergency Situations (arts. 27(2), 25 (1) and 7 (6) American Convention on Human Rights".

39. ³⁹This view was confirmed by the IACHR in its report concerning case 11.006 of February 7 1995, Annual Report of the IACHR 1994, p. 87.

40. ⁴⁰Advisory Opinion OC-8/87, Ser. A, No. 8, p.44.

41. ⁴¹Advisory Opinion OC-9/87, Ser. A, No.9 "Judicial Guarantees in States of Emergency (arts. 27(2), 25 and 8 American Convention on Human Rights)", p. 39.

42. ⁴²Id.

43. ⁴³Text to be found in Inter-American Yearbook on Human Rights 1968, p. 61.

44. ⁴⁴Inter-American Commission on Human Rights, Ten Years of Activities 1971-1981 (1982), p. 337 where a reference is made to its Report on the Situation of Human Rights in Uruguay (OEA/Ser. L/V/II.43 doc.19 corr.1, 1 January 1978), p. 45.

45. ⁴⁵IACHR, Report on Argentina, 1980, p. 26.

46. ⁴⁶For details see IACHR, Report on Guatemala, 1983, p. 88 et seq.

47. ⁴⁷Id. p. 18.

48. ⁴⁸See Annual Report 1994, p. 125 and the further references in the draft report by J. Kokott, Fair trial -- the Inter-American System for the Protection of Human Rights, p. 32, n. 142.

49. Advisory Opinion OC-9/87, Ser. A, No.9 "Judicial Guarantees in States of Emergency (arts. 27(2), 25 and 8 American Convention on Human Rights)".

50. ⁵⁰Chernichenko/Treat (note 37), p. 39; therefore it is somewhat unconvincing if -- after stating that ambiguity -- they nevertheless argue that all guarantees contained in art. 8 of the American Convention on Human Rights, including inter alia the right to appeal a judgment (art. 8 para. 2 (g)) and the right to be assisted by counsel provided by the State (!) (art. 8 para. 2 (e)), are protected against suspension in a state of emergency.

51. ⁵¹For a discussion as to this point see E. Bello, The African Charter on Human and People's Rights, Re RdC 1985 V, p. 9 et seq. (70-72) and Oraá (note 2), p. 209-210.

52. ⁵²F. Ouguergouz, L'absence de clause de dérogation dans certains traités relatifs aux droits de l'homme: les réponses du droit international général, RDGIP 19 (??), p. 289 et seq.(308 et seq.). The only provision in the Charter that deals with emergency situations is Art. 58 para. 3, which, however, only concerns the procedure to be followed by the African Commission on Human Rights in cases of emergency. See as to this question E. Ankumah, The "Emergency" Provision of the African Charter on Human and People's Rights, Rev. Afr. Comm. Hum. & People's Rights 1994, p. 47 et seq.

53. ⁵³See e.g. H. Huber, Der Hauptentscheid des Europäischen Gerichtshofes für Menschenrechte in der Sache Lawless, ZaöRV 1961, p. 649 et seq. (662-663) in relation to art. 5 para. 2 and Bischofsberger, Verfahrensgarantien der MRK, p. 231 as to art. 5 para. 4 of the Convention. See also P. Tavernier, art. 15, in: L-E. Pettiti et al., La Convention Européenne des Droits de l'Homme -- Commentaire article par article, p. 499, who considers art. 13, 14, 17 and 18 to be also protected against any possible derogation.

54. ⁵⁴Ireland v. UK, Ser. A, No. 25, p. 78. See also the decision in the Lawless case, Ser. A, No. 3, p. 55.

55. ⁵⁵Ireland v. UK (note 54), p. 83-84.

56. ⁵⁶Yearbook ECHR , vol. 12, p. 149.

57. ⁵⁷See the relevant opinions of the dissenting members of the commission in Ser. B., vol. 1, 1960-61, p. 137, 153 and 154 respectively.

58. ⁵⁸For a survey as to the practice under the Covenant see the report by de Zayas, p. 2 et seq.

59. ⁵⁹For details of the discussion see Oraá (note 2), p. 89-90.

60. ⁶⁰General comment 5/13 of 28 July 1981 [Public Emergency], Text to be found in M. Nowak, U.N. Covenant on Civil and Political Rights -- CCPR Commentary, 1993, p. 850 - 851.

61. ⁶¹See declarations of Nicaragua (art. 14 in toto) as of 4 June 1980 and subsequent declarations (text to be found in Nowak (note 60), p. 789 et seq.), Poland (declaration of 29 January 1982, art. 14 in toto; text to be found in id., p. 806); Trinidad and Tobago (declaration of 6 November 1990, art. 14 para. 3; text to

be found in id., p. 809) and the 1976 declaration of the United Kingdom (declaration of 17 May 1976;

art. 14 in toto; text to be found in id., p. 810). In this context it is particularly important to note that neither of these declarations has met with critical remarks by either the Human Rights Committee or other parties to the Covenant.

62. ⁶²See inter alia Weinberger v. Uruguay, Comm. Nr. 28/1978, Adopted Views 29 Oct. 1980.

63. ⁶³Salgar de Montejo v. Colombia, Comm. No. 64/1979, Adp. Views 24 March 1982, in: HR Committee, Selected Decisions, i, p. 127-130 and the reference made in Oraá (note 2), p. 120.

64. ⁶⁴Yearbook HR Committee (1979/80), p. 167. See also the further references in Oraá (note 2), p. 121 n.146.

65. ⁶⁵HR Committee, Annual Report 1984, A/39/40, p. 15.

66. ⁶⁶Fals Borda v. Colombia, Comm. 46/1979, Adoption of Views 27 July 1982, cited in Oraá (note 2), p. 119 n. 141. See also General Comment 13/21 of 12 April 1984 [Procedural Guarantees in Civil and Criminal Matters] under 4. See also the "Basic Principles on the Independence of the Judiciary" adopted in Milan in 1985 by the 7th UN Congress on Crime Prevention and reiterated by the UN General Assembly in Res. 40/146 and 41/149.

67. ⁶⁷See general comment 13/21 of 12 April 1984 [Procedural Guarantees in Civil and Criminal trials], part 4 (text to be found in Nowak (note 60)). See also the Committee's remark that "the right to an impartial and independent tribunal is an absolute one which cannot be derogated", Views on Comm. No. 263/1987 (Miguel Gonzaölez del Rio v. Peru), CCPR/C/46/D/263/1987 of 20 November 1992, p. 6.

68. ⁶⁸HR Committee, Annual Report 1984, p. 15.

69. ⁶⁹CSCE Document of the Moscow Meeting of the Conference on the Human Dimension of the CSCE, sect. 28.8., the English text of which can be found in International Legal Materials 1991, p. 1670

(Emphasis added). Compare with the formula contained in sect. 28.6., where the participating States "confirm that any derogation from obligations relating to human rights and fundamental freedoms during a state of public emergency must remain strictly within the limits provided for by international law, in particular the relevant international instruments by which they are bound, especially with respect to rights from which there can be no derogation.", Id., Sect. 28.6.

70. ⁷⁰For such a classification see Oraá (note 2), p. 111.

71. ⁷¹A similar function would be fulfilled by an obligation of the respective government to immediately publish the names of the detainees.

72. ⁷²The ILA proposes under its Paris standard that habeas corpus should be made available by states at least in order to verify the legality of the detention, the identity of the detainee and the guarantee of certain minimum rights of the person held in custody. ILA Paris Report, p. 76 No. 3.

73. ⁷³See e.g. art. 27 para. 1 of the American Convention on Human rights and as far as the European Convention on Human Rights is concerned the opinion of the European Commission of Human Rights in the De Becker case, Ser. B, Rep. Commission, p. 133.