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Human Rights Law in Today's Worl > 5 - Civil and Political Rights > Flashcards

5 - Civil and Political Rights Flashcards

1
Q

What are the civil and political rights studied in this course? (4)

A

1/ right to liberty and security of person

2/ right to be free from torture and other forms of ill-treatment

3/ right to freedom of expression

4/ right to freedom of thought, conscience and religion

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2
Q

Basic premise regarding civil and political rights? (2)

A

1/ they are intersectional

2/ realization of one right can have effects on realization of other rights

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3
Q

Provisions codifying right to liberty and security of person? (4)

A

1/ Art. 9 ICCPR

2/ Art. 5 ECHR

3/ Art. 7 ACHR

4/ Art. 6 ACHPR

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4
Q

Key issues related to the right to liberty and security of person? (7)

A

1/ detention regimes

2/ protection against arbitrary deprivations of liberty

3/ importance of due process guarantees & judicial control

4/ strict limits on detention without charge (48 hours)

5/ habeas corpus => examination of factual and legal grounds for detention

6/ preventive detention

7/ immigration detention

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5
Q

Which General Comment addresses the right to liberty and security of person?

A

GC 35

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6
Q

What does liberty of person entail?

A

Freedom from confinement of the body

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7
Q

What does security of person entail?

A

Freedom from injury to the body and mind, or bodily and mental integrity

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8
Q

What does deprivation of liberty require?

A

The absence of free consent

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9
Q

What are the 2 dimensions of the right to liberty and security of person?

A

1/ substantive

2/ procedural

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10
Q

What is the scope of application of the right to security of person?

A

Applies whether the victim is detained or non-detained

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11
Q

Is the right to liberty and security of person absolute? (2)

A

1/ no, there are limitations

2/ sometimes, deprivation of liberty is justified

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12
Q

What are limits to the justification of deprivation of liberty? (3)

A

1/ must not be arbitrary

2/ must be carried out with respect for the rule of law

3/ GC 35

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13
Q

What does the right to liberty and security of person prohibit? (4)

A

1/ arbitrary detention

2/ unlawful detention

3/ both of these prohibitions can overlap

4/ GC 35

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14
Q

What must notion of “arbitrariness” not be equated with? (2)

A

1/ “against the law”

2/ requires more broad interpretation

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15
Q

When may preventive detention be permitted? (6)

A

1/ exceptional circumstances

2/ this requires present, direct and imperative threat

3/ States carry burden of proof to show

4/ no alternative measures to mitigate threat

5/ burden increases with duration of detention

6/ GC 35

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16
Q

When is arrest or detention arbitrary per se? (2)

A

1/ when used as punishment for legitimate exercise of protected HR

2/ in cases of enforced disappearance (aggravated form)

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17
Q

When is immigration detention permitted? (3)

A

1/ not per se arbitrary

2/ detention must be reasonable, necessary and proportionate

3/ also requires reassessment if extended in time

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18
Q

How to address the right to liberty and security of person in the context of the “war on terror”? (2)

A

1/ central pillar of US policy

2/ whether detention is lawful depends on applicable legal framework (IHL / IHRL)

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19
Q

What was purported legal basis for detention in context of “war on terror”?

A

Memorandum of 13 Nov. 2001 : “Detention, treatment and trial of certain non-citizens in the war against terrorism”

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20
Q

Characteristics of 2001 Military Order? (3)

A

1/ detention considered necessary for protection of US and its citizens

2/ inherently discriminatory scope (targeting non-citizens)

3/ express denial of procedural rights (Part VII)

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21
Q

What must be kept in mind regarding the regulation of detention under IHL? (2)

A

1/ it is clear for IACs but not so clear for NIACs

2/ but arbitrary detention is prohibited in either context

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22
Q

How is arbitrary detention prohibited both in IACs and NIACs? (2)

A

1/ clear specification of the permissible grounds for detention

2/ clear specification of the procedural framework that must be in place

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23
Q

General rule regarding detention under IHL? (2)

A

1/ anyone taking direct part in hostilities can be detained (whether IAC or NIAC)

2/ where ind. are detained is irrelevant

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24
Q

Detention in IAC context? (5)

A

1/ the 4 GCs address issues of permissible detention

2/ GCs 1 and 2 : medical and religious personnel

3/ GC 3 : POWs

4/ GC 4 : civilians

5/ also various provisions on procedural safeguards

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25
Q

What do the various GC provisions on procedural safeguards constitute? (3)

A

1/ minimum legal standards

2/ apply to all situations of violence, incl. NIACs

3/ if failure to conform with standards => “unlawful confinement”

26
Q

What does unlawful confinement amount to? (2)

A

1/ a grave breach of the GCs

2/ which can hence lead to prosecution

27
Q

Characteristics of the permissible grounds for detention in NIACs? (4)

A

1/ entirely unclear

2/ ICRC : prohibition of arbitrary deprivation of liberty established by State practice and IHRL

3/ must be consistent with IAC standards

4/ but contested legal framework and uncertainty regarding applicable procedural safeguards

28
Q

Characteristics of the end of detention under IHL? (4)

A

1/ when armed conflict comes to an end, so does the lawful basis for detention under IHL

2/ detention must thus end or another legal basis must be provided (Duffy)

3/ see ICRC Customary Rule 128 for practical sides of end of detention

4/ in any case, IHRL fills any void

29
Q

What did the Final Report of the Guantanamo Task Force bring to light? (2)

A

1/ overview of 240 Guantanamo detainees

2/ placed in 5 categories (see lecture notes for detail)

30
Q

How could IHRL be utilized with respect to liberty and security in the context of the “war on terror” ? (5)

A

1/ HR bodies offer States a certain margin of appreciation with respect to the detention of persons suspected of terrorist offences

2/ detention pending trial should however remain the exception

3/ this exception must be strictly construed (necessary and unavailability of less onerous alternatives) (Duffy)

4/ all derogations from right to liberty must be necessary & proportionate to situation of emergency

5/ hence, preventive or security detention is highly controversial

31
Q

Landmark ECHR case regarding right to liberty and security in context of war on terror? (3)

A

1/ Abu Zubaydah v Poland (2014)

2/ recognized prohibition of arbitrary detention in spite of interests of counter-terrorism

3/ there must be effective control by domestic courts and ECHR’s supervisory institutions

32
Q

Characteristics of prohibition of torture and other forms of ill treatment? (3)

A

1/ absolute prohibition (no ambiguity!)

2/ no exceptions allowed (non-derogable)

3/ jus cogens norms

33
Q

Provisions related to the prohibition of torture and other forms of ill treatment? (4)

A

1/ Art. 7 ICCPR

2/ Art. 3 ECHR

3/ Art. 5 ACHPR

4/ Art. 1 CAT

34
Q

What are the 3 central elements of torture as defined by Art. 1 CAT?

A

1/ intentional infliction of severe physical or mental suffering

2/ for a prohibited purpose

3/ with some official involvement

35
Q

If committed, what may torture amount to? (3)

A

1/ HR violation

2/ war crime (IAC&NIAC)

3/ crime against humanity

(but prove requisite contextual elements)

36
Q

What are some of the threshold questions regarding the prohibition of torture and other forms of ill treatment? (4)

A

1/ cruel, inhumane or degrading treatment is not defined as such

2/ ^ must be assessed on a case-by-case basis (circumstances & context)

3/ Opuz v Turkey (2009) : ill treatment must attain a minimum level of severity, which depends on circumstances

4/ cruel, inhumane or degrading treatment differ from torture which requires a higher level of severity & purposive component (UN Committee against TCIDT GC 2)

37
Q

Procedural safeguards regarding prohibition of torture and other forms of ill treatment? (7)

A

1/ States have positive obligations

2/ ensure safeguards to prevent TCIDT

3/ ensure framework to effectively investigate and punish TCIDT

4/ ensure reparation for TCIDT

5/ detainees must not be held incommunicado

6/ non-refoulement can apply when reasonable grounds to believe ind. will be subject to TCIDT (Art 3 CAT)

7/ non-admission of evidence obtained by TCIDT (Art 15 CAT)

38
Q

Elements related to torture and the “war on terror”? (3)

A

1/ Torture Memos (2002)

2/ enhanced interrogation techniques allegedly not amounting to torture

3/ fallacious justificatory arguments (neglect relevance of IL)

39
Q

Provisions related to right to freedom of expression? (4)

A

1/ Art. 19 ICCPR

2/ Art. 10 ECHR

3/ Art. 13 ACHR

4/ Art. 9 ACHPR

40
Q

Some issues related to right to freedom of expression? (5)

A

1/ access to information

2/ conflict with other rights

3/ permissible limitations

4/ restrictions over-stepping the mark

5/ prohibition of propaganda for war

41
Q

Characteristics of right to freedom of expression? (4)

A

1/ interrelated and essential to realization of other rights

2/ other articles contain guarantees for freedom of opinion/expression

3/ right to hold opinions without interference allows for no exceptions of restriction (HRC GC 34)

4/ all forms of opinion are protected (opinion may not lead to impairment of other rights) (HRC GC 34)

42
Q

Elements covered by the right to access of information? (3)

A

1/ such access is central

2/ incl. access to information held by public bodies

3/ States must provide reasons when denying access to information

43
Q

To what extent can right to freedom of expression conflict with other rights? (3)

A

1/ there is intersection and possible conflict

2/ there is conflicting guidance, which depends on instrument (see examples of ECHR judgments related to ban on wearing headscarves)

3/ there must hence be a balance of rights

44
Q

What are the permissible limitations to right to freedom of expression? (3)

A

1/ see each provision

2/ restrictions must always be provided by law, imposed on a permissible ground, necessary and proportionate

3/ but no assessment by reference to a margin of appreciation? (ECtHR >< HRCtee)

45
Q

Examples where restrictions to right to freedom of expression have over-stepped the mark? (3)

A

1/ religious insult? (only if specific circumstances)

2/ glorification of terrorism?

3/ denial of historical events? (HRC: only if falls within scope of exception allowed by relevant provision) (Cf. ECtHR)

46
Q

Which provisions codify prohibition of propaganda for war? (2)

A

1/ Art. 20 ICCPR

2/ Art. 13(2) ACHR

47
Q

Which provisions codify right to freedom of thought, conscience and religion? (2)

A

1/ Art. 18 ICCPR

2/ Art. 12 ACHR

48
Q

Characteristics of right to freedom of thought, conscience and religion? (5)

A

1/ broad application (HRCtee GC 22)

2/ incl. theistic, non-theistic and atheistic beliefs & right not to profess any religion or belief

3/ also incl. right to choose one’s beliefs and to change religion or beliefs

4/ prohibition of coercion

5/ but permissible limitations (prescribed by law and necessary)

49
Q

What is controversial regarding right to freedom of thought, conscience and religion?

A

religious education clauses

50
Q

When may civilians be detained under IHL? (2)

A

1/ Generally: only where security of State make it absolutely necessary (GC IV Art 42)

2/ in occupation: detention must be for ‘imperative reasons of security’ (GC IV Art 76)

51
Q

What procedural safeguards apply under IHL to detention regimes? (4)

A

1/ right to have detention reviewed regularly (Art 43 GC IV)

2/ detention under occupation must be procedurally regulated and subject to appeal and review (Art 78 GC IV)

3/ detainees must be promptly informed of reasons for arrest/detention (Art 75 API)

–> Violation = war crime

52
Q

What circumstances may according to the ECtHR be taken into account to assess whether treatment amounts to CIDT? (5)

A

1/ Opuz v Turkey

2/ Nature and context of treatment

3/ duration of treatment

4/ physical and mental effects

5/ sex, age and state of health of victim

53
Q

What instances of treatment has ECtHR found falling short of torture (but amounting to CIDT)? (6)

A

1/ Ireland v UK

2/ prolonged wall standing

3/ hooding

4/ subjection to noise

5/ restricted diet

6/ sleep deprivation

54
Q

Is there a Margin of Appreciation when it comes to the freedom of expression? (2)

A

1/ ECtHR: YES (Sahin v Turkey; S.A.S. v France)

2/ HRC: NO (Hudoyberganova v Uzbekistan)

55
Q

What did ECtHR find in Sahin v Turkey? (4)

A

1/ ban on headscarves in uni did not violate Art 9 ECHR

2/ protecting secular order of the State and the rights of others was a legitimate ground

3/ the ban was proportionate

4/ accepted that veil negate gender equality as expresses Islamic fundamentalism

56
Q

What is a criticism of Sahin v Turkey? (1)

A

1/ ECtHR did not consider applicants right to privacy (Art 8 ECHR) permitting personal autonomy (to wear scarf)

57
Q

What did the ECtHR find in S.A.S. v France? (2)

A

1/ accepted ‘life in society’ and ‘living together’ as linked to legitimate aim of ‘protecting rights and freedoms of others’

2/ found the blanket ban on veils proportionate due to broad Margin of Appreciation

58
Q

Criticisms of S.A.S. v France (2)

A

1/ Nussberger and Jäderblom’s dissent: focus on pluralism and tolerance

2/ HRCtee reject right to interact with people without veil (Yaker v France)

59
Q

What did the HRCtee find in Hudoyberganova v Uzbekistan? (1)

A

1/ banning of religious symbols on uni campus violated Art 18 ICCPR

60
Q

May States derogate from the right to freedom of expression?

A

1/ ECtHR: YES (Art 15 ECHR)

2/ HRCtee: NO (HRCtee GC 29)

Human Rights Law in Today's Worl (8 decks)

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