Legitimate restrictions on freedom
The absolute rights discussed so far do not allow for limitations, exceptions, qualifications, or balancing against other rights. Genocide, crimes against humanity, slavery, and torture are simply international crimes, which are prohibited and can be individually punished by any state wherever the acts were committed. The rights we consider in this texts, by contrast, be limited through legal restrictions designed to protect a defined legitimate objective. So, for example, liberty can be restricted in the context of the detention of someone following a lawful conviction in a court of law. Freedom of speech is not absolute. As we all know, shouting 'fire' in a crowded theatre can be punished. Although we all should have freedom to receive and impart information, there are obviously legitimate restrictions on passing on commercial or military secrets. Photographs of celebrities maybe of interest to a wide readership but their publication may be restricted in order to protect an individual's privacy.
Is it meaningful then to talk about 'rights' in such contexts? You have the right not be detained - until the authorities justify your detention. You have the right to publish - but not if it upsets others. We seem to be merely giving with one hand and taking away with the other. However, the human rights framework applies and is useful. The human rights approach starts from a presumption that we all have rights to liberty, freedom of expression, belief, assembly, association, property, and fair trial. Any restriction on these rights has to be justified as proportionate to the aims pursued by the restriction according to a three-stage schema developed in human rights law (we examine this schema later). The restriction on our freedoms need not be sinister or nefarious. Few contest the need for certain convicted criminals to be deprived of their liberty; introducing human rights in this context enables us to see how we have to start from the presumption that the individual is entitled to liberty unless a fair procedure demonstrates the necessity of incarceration.
Let us start with the right to life and return to freedom from incarceration at the end of these texts. The right to life would seem at first glance to be absolute, but on closer inspection, it is clear that some deliberate acts which result in the loss of life are not necessarily human rights violations. A police officer, confronted by an armed assailant, may have to shoot in self-defence to save his or her own life or the lives of others. The cases become harder when the danger becomes less imminent. What if a state engages in the targeted assassination of suspected terrorists? Human rights courts have been faced with dozens of complaints that the security forces have used excessive force which was unnecessary in the circumstances. As a general rule, the force used has to be 'proportionate' to the danger to be averted. The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials states that: Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.
This simple rule is under threat as governments seek to shift the discussion from the context of principles appropriate for a hostage situation, to the realm of anticipatory self-defence to prevent attacks on the nation. It may be helpful here to separate out three proportionality rules which tend to get confused. The first two rules do not authorize limitations on individual freedom - rather they restrict what states may do when they resort to military force.
The first rule concerns how much force can be used by a state in self-defence in response to an armed attack. The answer is that force can be used that is proportionate to repelling the attack if such force is necessary as the only way of averting the attack. This is what is meant by the international law rule that self-defence has to be proportionate and necessary.
The second rule concerns what is increasingly known as 'collateral damage'. It is part of the framework designed to protect the right to life. The law of armed conflict prohibits indiscriminate attacks on civilians. In particular, there is a prohibition on launching an attack which may be expected to cause incidental loss of civilian life which would be excessive in relation to the concrete and direct military advantage anticipated. In other words, the rule demands that the civilian damage has to be proportionate to the military advantage. At a certain point, the collateral damage becomes disproportionate to the military advantage and hence illegal. Those who violate this rule may be tried as war criminals. Examples of prosecutions for violations of this rule are hard to find; we can, however, highlight that the shelling of Sarajevo was successfully prosecuted at the International Criminal Tribunal for the former Yugoslavia. Prosecutor Louise Arbour charged General Galic with a count of attacks against civilians, and he was eventually convicted in 2003 of the war crime of spreading terror among the civilian population as well as crimes against humanity. He was sentenced to 20 years' imprisonment. The third proportionality rule relates to those human rights that contain built-in limitations on freedom and is dealt with in some detail in the next section. Before looking at these details, it is worth stressing that in thinking about proportionate limitations on human rights, we have to consider what weight we wish to give to the fundamental values that we are seeking to promote through the right in question. The weight we give the right then determines whether or not the restrictions are acceptable. Here we can mention the special role that is often accorded to freedom of speech. The importance that is given to protecting even offensive words is explained by our sense that human progress comes when ideas can be challenged and authority can be questioned. We admit restrictions on speech that incites religious or racial hatred; the problem comes when this principle starts to stifle debate and critical inquiry. The value attached to this freedom can vary in different contexts, with many privileging this right due to its instrumental value for democracy and debate in all spheres of life. The explanation of the special value placed on freedom of expression was captured by the late Najib Mahfous, the Egyptian novelist and Nobel laureate. Writing in 1989 in the context of the threat to kill fellow novelist Salman Rushdie, he stated: 'As regards freedom of expression, I have said that it must be considered sacred and that thought can only be corrected by counter-thought.'
Proportionate limitations on human rights The concept of proportionality is common to determining the limitations on any human rights that can be restricted. These rights can be restricted to the extent that the limit placed on them is proportionate to the aim pursued. A decision maker is obliged to adopt a three-stage process to determine whether the interference with a human right represents a legitimate limitation on the right concerned.
This can be summarized as follows:
Is there a legitimate aim to the interference?
Is the interference prescribed by a clear and accessible law?
Is the interference proportionate to the identified legitimate aim and necessary in a democratic society?
So, for example, in a complaint by a Romanian man about secret files kept on him by the government, it was clear that keeping such files for national security purposes was an interference with his right to privacy and, due to the absence of any national law with judicial supervision setting limits to this interference, there had been a violation of the right to respect for private life. If there had been legal safeguards and appropriate judicial supervision of such activity, the interference might have been found to be necessary and proportionate to the aim of protecting national security, and there would have been no violation of human rights. The human rights approach provides us with more than a slogan. It demands that a government justify its actions in areas that affect the well-being of the individual, and that the justification be in accordance with the rule of law in a democratic society.
Rotaru v Romania
57. The Court notes in this connection that section 8 of Law no. 14/1992 provides that information affecting national security maybe gathered, recorded and archived in secret files. No provision of domestic law, however, lays down any limits on the exercise of those powers. Thus, for instance, domestic law does not define the kind of information that maybe recorded, the categories of people against whom surveillance measures such as gathering and keeping information may be taken, the circumstances in which such measures may be taken or the procedure to be followed. Similarly, the Law does not lay down limits on the age of information held or the length of time for which it may be kept.
Section 45 empowers the RIS to take over for storage and use the archives that belonged to the former intelligence services operating on Romanian territory and allows inspection of RIS documents with the Director's consent. The Court notes that this section contains no explicit, detailed provision concerning the persons authorised to consult the files, the nature of the files, the procedure to be followed or the use that may be made of the information thus obtained.
58. It also notes that although section 2 of the Law empowers the relevant authorities to permit interferences necessary to prevent and counteract threats to national security, the ground allowing such interferences is not laid down with sufficient precision.
59- The Court must also be satisfied that there exist adequate and effective safeguards against abuse, since a system of secret surveillance designed to protect national security entails the risk of undermining or even destroying democracy on the ground of defending it.... In order for systems of secret surveillance to be compatible with Article 8 of the Convention, they must contain safeguards established by law which apply to the supervision of the relevant services' activities. Supervision procedures must follow the values of a democratic society as faithfully as possible, in particular the rule of law, which is expressly referred to in the Preamble to the Convention. The rule of law implies, inter alia, that interference by the executive authorities with an individual's rights should be subject to effective supervision, which should normally be carried out by the judiciary, at least in the last resort, since judicial control affords the best guarantees of independence, impartiality and a proper procedure....