Both history and contemporary experience have shown that whenever States are selective with regard to which rules of international law they observe, using subjective criteria such as effectiveness and opportunity, they open the door to more serious abuses that serve to erode the very foundations of the Rule of Law.
Laws and measures that were implemented to combat terrorism and preserve national security have had very serious repercussions for rights relating to physical integrity. This has led to an increase in the occurrence of torture, political imprisonment without due process, enforced disappearances and extrajudicial killings. In particular, the integrity of many detainees has been threatened, along with their right to be tried by an independent and impartial court of law.
States not only deviate from the Rule of Law during periods of armed conflict and states of emergency, but also in many other situations.
Counter-terrorism measures have also been found to have a negative impact upon the enjoyment of a number of other rights, including freedom of opinion and expression, the right of assembly and association and the right to privacy. Broad groups of people – especially immigrants, refugees, asylum-seekers, political opponents and minorities – have been affected by these measures.
The consequence has been a weakening of the principle of legality that, in turn, poses a significant challenge to the Rule of Law. Over recent years, the ICJ has observed the transformation of:
- Basic criminal law, affecting the qualification of persons, the nature of offences and the scale of punishments;
- Procedures affecting access to legal remedies and guarantees of a fair trial;
- Standards of jurisdictional competence, with recourse to military tribunals, emergency courts or even non-judicial proceedings.
The ICJ Approach
The Global Security and Rule of Law Programme opposes the erosion of the Rule of Law and the international framework that protects human rights. It does this by:
- Supporting the development of counter-terrorism laws, policies and practices that respect international human rights and humanitarian law;
- Seeking to persuade governments to incorporate international human rights standards into their decision-making when shaping counter-terrorism policies and responding to other national security measures and states of emergency;
- Engaging in advocacy and submitting legal interventions to prevent, minimise and reverse the negative impact that arbitrary national security laws and policies have on the Rule of Law and human rights;
- Monitoring developments relating to counter-terrorism and human rights and disseminating this information in monthly ICJ e-bulletins;
- Monitoring and strategically intervening against violations of integrity rights around the world, especially rights associated with the right to life, torture, enforced disappearances, the death penalty, extrajudicial executions and the deprivation of liberty.