The Right to a Fair Trial in Emergency Situations

Author(s): Stephanos Stavros

Source: The International and Comparative Law Quarterly , Apr., 1992, Vol. 41, No. 2
(Apr., 1992), pp. 343-365
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law

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THE RIGHT TO A FAIR TRIAL IN EMERGENCY SITUATIONS

STEPHANOS STAVROS*

I. INTRODUCTION

A derogation clause' has been included in most2 intern

rights instruments to safeguard the right of national gover
effectively with national emergencies:3 Article 15 of the
vention for the Protection of Human Rights and Fundamen
Article 4 of the International Covenant on Civil and Poli
Article 27 of the American Convention on Human Right
are allowed thereunder to take measures which would otherwise violate
certain4 obligations that they have assumed under the treaty. The inclu-
sion of the right to a fair trial5 in the list of "derogable" rights has been
questioned over the years by many. International experts and non-
governmental organisations alike have stressed on various occasions the
importance of guaranteeing some procedural protection for accused per-
sons, even in times of national emergency.6

* Attorney at Law (Bar of Athens).

1. Generally on the issue, see Higgins, "Derogations under Human Rights Treaties"
(1976-1977) 48 B.Y.I.L. 281, Green, "Derogation of Human Rights in Emergency Situa-
tions" (1978) 16 Can. Y.B.I.L. 92 and Hartman, "Derogation from Human Rights Trea-
ties" (1981) 22 Harv. I.L.J. 11.
2. A derogation clause does not, however, appear in the African Charter on Human and
People's Rights.
3. The three derogation clauses differ in their description of national emergency: "war
or other public emergency threatening the life of the nation" under the European Conven-
tion, "public emergency which threatens the life of the nation" under the Covenant and
"war, public danger, or other emergency that threatens the independence or security of a
State Party" under the American Convention. For an analysis of the importance of these
differences, see Tremblay, "Les Situations d'Urgence qui Permettent en Droit Inter-
national de Suspendre les Droits de l'Homme" (1977) 18 Cahiers de Droit 3.
4. All three instruments recognise the "non-derogability" of certain rights, the number
of which varies from instrument to instrument. There exists, however, a hard core of four
"non-derogable" rights common in all derogation clauses: the rights to life, to freedom from
torture, inhuman and degrading treatment or punishment, to freedom from slavery and to
freedom from ex post facto criminal laws.
5. The right to a fair-trial is guaranteed under Art.6 of the European Convention,
Art. 14 of the Covenant and Art.8 of the American Convention.
6. See Study on States of Siege or Emergency, prepared by N. Questiaux, Special
Rapporteur for the Sub-Commission on Prevention of Discrimination and Protection of
Minorities, E/CN.4/Sub.2/1982/5; Syracuse Principles on the Limitation and Derogation
Provisions in the International Covenant on Civil and Political Rights, elaborated by an
international group of experts in a Symposium held in Syracuse in 1984; Study on the States
of Emergency and their Impact on Human Rights, prepared by the International Commis-
sion of Jurists, Geneva, 1983; and Minimum Standards of Human Rights Norms in a State of
Exception, drafted during the International Law Association's Paris Conference in 1984.

343

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344 International and Comparative Law Quarterly [VOL. 41
Resolution 1989/27 of the UN Sub-Commission on Prevention of Dis-
crimination and Protection of Minorities has raised the issue again. With
that resolution the Sub-Commission requested two of its members, Mr
Chernichenko and Mr Treat, to "prepare a brief report on existing
international standards pertaining to the right to a fair trial" and to
"recommend which provisions guaranteeing the right to a fair trial should
be made non-derogable". In their initial reply, the two members
appeared to consider the possibility of recommending the adoption of an
additional protocol which would make non-derogable the full strength of
the guarantees of Article 14.'
The aim of this article is threefold. First, it will be demonstrated, on the
basis of the pronouncements of the supervisory organs of the three
international instruments under examination, that a minimum floor of
due process which States parties must respect in every emergency situa-
tion already exists in international human rights law.
Second, it will be shown that this obligation has not been inflicted
arbitrarily on the States parties by the international human rights organs
in an exercise of blatant quasi-judicial activism. On the contrary, it has
been voluntarily accepted by these States through their accession to a
series of other international treaties. According to the terms of all three
derogation clauses, derogation measures are invalidated if they are not
"strictly required by the exigencies of the emergency situation", or if they
are "inconsistent with the State Party's other international obligations".
Third, an attempt will be made to define the content of this minimum
floor of due process on the basis of the provisions of the "other inter-
national treaties" mentioned above, and on indications which emerge
from the case law of the international supervisory human rights organs.
The main thesis here will be that de lege ferenda it might be right to
advocate a very exacting standard of due process for emergency situa-
tions. However, the threshold will have to be significantly lowered in
order to ensure the agreement of the States parties which will be called
upon to ratify the new protocol. Although the minimum requirements of
the rule of law should be preserved at all times, the inescapable realities
of most emergency situations cannot be overlooked.

II. A MINIMUM FLOOR OF DUE PROCESS FOR EMERGENCY SITUATIONS?

A. The Human Rights Organs' Case Law

It should be remembered at this stage that the international hum

organs have traditionally allowed the States considerable leewa

7. E/CN.4/Sub.2/1990/34, para.150; see also Preliminary Report submitted by

members during the 43rd session of the Sub-Commission, E/CN.4/Sub.2/1991/

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APRIL 1992] Fair Trial in Emergency Situations 345

ing with emergency-related offences. Claiming that "the normal pr

dures of investigation and criminal prosecution have become
inadequate" and that "the ordinary courts can no longer be relied on
the sole process for restoring peace and order",8 States parties hav
introduced changes in their criminal laws that go beyond the proced
by which the guilt of the accused is established. Special emergency
military tribunals with competence over offences committed by civilian
have been established. Resort has also been made to administrative
detention, i.e. detention on the orders of the executive to which t
normal legal safeguards do not apply.
The international human rights organs have been careful not to outlaw
any of these possibilities. Thus, the Human Rights Committee has h
that, although the establishment of such tribunals should be very excep-
tional, they do not infringe per se the right to a fair trial.9 The same sta
albeit with more qualifications, has been taken by the Inter-Americ
Commission,'o while the European Convention organs have so f
avoided the issue."
Administrative detention, although in principle a violation of the right
to liberty, has been also considered by the European Court as justifiable

8. See e.g. arguments of the respondent governments in Lawless v. Ireland E.C.H.R.,

Ser.A, No.3, para.36, and in Ireland v. UK, Ser.A, No.25, para.36.
9. See General Comment on Art. 14, Official Records of the General Assembly, 39th
session, Suppl. No.40, A/39/40, 1984, and Com.46/79 Borda v. Colombia, Selected De-
cisions under the Optional Protocol, CCPR/C/OP/1, p.139. During the examination,
however, of States parties' periodic reports, Committee members often enquire into the
reasons for removing jurisdiction from the ordinary courts and into the scope of the
competence of military or special courts; see examinations of the reports of Venezuela
A/36/40, Jordan A/37/40, Morocco A/37/40 and Zaire A/42/40. At one time there appeared
to exist a consensus among Committee members against the use of military courts for
civilians in Chile, see A/34/40, A/39/40 and A/40/40.
10. The Inter-American Commission (I-AC) has never pronounced that trials before
military or special tribunals involve per se a violation of Art.8 of the American Convention.
However, in its 1972 Annual Report it deplored the removal of civilians from the normal
jurisdiction of the courts. In its 1981 Report on Colombia it recommended that military
trials of civilians should either be eliminated or, if this was not possible, limited to crimes
that truly affect State security. In its 1985 Report on Chile it deplored the clear and sustained
tendency to expand the jurisdiction of military tribunals in that country and considered that
trial by military courts could be justified only by the truly exceptional nature of the
situations in which these courts must act.
11. See App. No.8299/78, European Commission of Human Rights, Decisions and
Reports, Vol.22, p.62, and the Greek case, Yearbook of the European Convention on
Human Rights, Vol.12. In Lawless v. Ireland E.C.H.R., Ser.B, No.l, however, Sorensen,
Eustathiades, Faber and Susterhenn, all members of the Commission at the time, expressed
obiter serious concern in respect of the establishment of courts of this nature.
In this connection the human rights organs appear to differ from the Basic Principles on
the Independence of the Judiciary adopted by the UNGA; see Res.40/146, principle 5:
"Everyone shall have the right to be tried by ordinary courts or tribunals using established
legal procedures. Tribunals that do not use the duly established procedures of the legal
process shall not be created to displace the jurisdiction belonging to the ordinary courts or
judicial tribunals."

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346 International and Comparative Law Quarterly [VOL. 41

under Article 15 in certain exceptional circumstances.'2 A largely similar

line appears to have been followed under the Covenant13 and the
American Convention.'4
According to the logic of these organs, the exigencies of each particular
situation will determine whether derogation from the ordinary process of
law will be considered necessary ("strictly required"). They will also
determine the extent to which administrative detention or trials of
"limited fairness" will prove an effective and acceptable alternative (in
the sense of being the least prejudicial for the rights of the accused).15 Th
national government is generally assumed to be better equipped to deter-
mine these issues. It is consequently accorded a broad margin of appre-
ciation,'6 provided of course that the State acts in good faith.17

12. See Lawless, supra n.8, paras.12-15 and 31-38 and Ireland v. UK, supra n.8, a
paras.194-201 and 212-221.
13. See Human Rights Committee, Com.66/80 Campora Schweizer v. Uruguay A/38/40
p.117: administrative detention under "prompt security measures" would be permissibl
only where "the person concerned constitutes a clear and serious threat to society which
cannot be contained in any other manner". Also General Comment on Art.9, whic
guarantees the right to liberty and security of persons: "preventive detention was acceptabl
when necessary for reasons of ... security and while surrounded by certain safeguards".
14. See I-AC's 1978 Report on Uruguay and I-A Court's advisory opinion on Habea
Corpus in Emergency Situations OC-8/87 Ser.A, No.8.
15. See I-A Court, idem, para.22: "Since Article 27(1) envisages different situations an
since, moreover, the measures that may be taken in any of these emergencies must be
tailored to the exigencies of the situation, it is clear that what might be permissible in one
type of emergency would not be lawful in another. The lawfulness of the measures taken t
deal with each of the special situations referred to in Article 27(1) will depend, moreover,
upon the character, intensity, pervasiveness and particular context of the emergency and
upon the corresponding proportionality and reasonableness of the measures."
16. See Sorensen's opinion in Lawless, supra n.ll, at para.107: "the Government in
question will generally be in the best position to decide what measures are necessary to cop
with an emergency situation, and a margin of appreciation must therefore be left to the
government." The position was endorsed by the Court implicitly in Lawless, supra n.8
para.28 and explicitly in Ireland v. UK, supra n.8, at para.207.
17. See Greek case, supra n.11, where no margin of appreciation was accorded to th
Greek military government by the European Commission. The purely retrospective exam-
ination of the emergency measures which was adopted in that case must be contrasted with
that in Ireland v. UK, where a similar approach was expressly repudiated; see Hartman, op
cit. supra n. 1, at p.29: "it was probably the Commission's distrust of the motivations of th
Greek military Government and revulsion against its anti-democratic character that
explained the difference in the majority opinions in the Greek and Lawless cases." A simila
practice has been established by the Human Rights Committee, which has often rejecte
claims by certain governments that the situation in their countries allowed for a derogation
under Art.4 "in the light of the scarcity of the information available, the generality of th
allegations of the respondent Governments and their uncooperative attitude" and regis
tered a violation of the right to a fair trial; see Com.8/77 Weismann and Perdomo v. Uruguay
CCPR/C/OP/1, p.45, Com.4/77 Ramirez v. Uruguay, idem, p.49, Com.6/77 Sequeira v.
Uruguay, idem, p.52, Com.11/77 Motta v. Uruguay, idem, p.54, Com.28/78 Weinberger v.
Uruguay, idem, p.57, Com.32/78 Turon v. Uruguay, idem, p.61, Com.33/78 Carballal v.
Uruguay, idem, p.63, Com.44/79 Pietraroia v. Uruguay, idem, p.76, Com.52/79 Lopez
Burgos v. Uruguay, idem, p.88 and Com.64/79 De Montejo v. Colombia, idem, p.127. Th
I-AC has also disregarded similar pleas and has quite often engaged in a more or less direc
examination of compliance of emergency measures with Art.8 of the American Conven

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APRIL 1992] Fair Trial in Emergency Situations 347

This, however, has not impeded the European Commission from

observing in Ireland v. United Kingdom that the "derogation from th
normal guarantees could become excessive ... if no other guarantees
were put in their place"18 and the European Court from finding in Klass v
Germany that the States parties may not adopt any measures whatsoever
that they deem appropriate in the fight against, inter alia, terrorism.'9 The
Inter-American Court has also pronounced that "a temporary suspension
of guarantees under Article 27 [of the American Convention] does not
imply a temporary suspension of the rule of law".20 Finally, and mos
importantly, the Inter-American Commission has repeatedly affirmed
the non-derogable character of the right of "due process of law".21 Th
affirmation of the minimum floor of due process could not have been
clearer.

B. The Travaux Pr6paratoires

How do these pronouncements compare, however, with the expressly
stated wish of the States parties to be able to derogate from the rights to a
fair trial and to freedom from detention? Should they be seen as imper-
missible judicial activism and as an encroachment upon the States parties'
fundamental right to defend the life of the nation in situations of grave
emergency?
Proposals to include the right to a fair trial in the list of non-derogable
guarantees were indeed defeated in the drafting process of all three
human rights instruments. As it emerges, however, from the discussions,
the vote of the delegates was largely due to an instinctive negative
reaction to the non-derogable character of certain aspects of the fair trial
clauses, such as the right to a public hearing.22 Quite significantly, in the

tion, see 1981 Report on Nicaragua and response of the Nicaraguan government denying
the Commission's competence to apply the exacting standards of Art.8, as the country was
in a situation of national emergency, OAS Doc. OAE/Ser.P, AG/Doc.1369/81, 27 Oct.
1981. In the words of the Commission, the "state of siege", originally conceived as a special
measure for dangerous or emergency situations, is established into a normal state of affairs
and often abused; see e.g. 1978 Report on Paraguay, Chap.V, p.66 and 1987 Report on
Paraguay, p.44.
18. Ser.B, p.124.
19. Ser.A, No.28, para.49. Although this was neither an Art.6 nor an Art.15 case, the
statement was cast in sufficiently general terms to permit the deduction of a general
principle applicable to the issue under examination.
20. I-A Court, op. cit. supra n.14, at para.24.
21. See 1968 Resolution on the Protection of Human Rights in Connection with the
Suspension of Constitutional Guarantees or "State of Siege", 1978 Report on Uruguay and
1980 Report on Argentina.
22. See E/CN.4/SR.126, pp.4 and 5. Faced with French and US proposals to include the
right to "a fair and public trial" in the list of non-derogable rights under the Covenant, the
UK delegate observed that respect for the right to a public trial might be impossible during
wartime.

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348 International and Comparative Law Quarterly [VOL. 41

case of the European Convention and the Covenant,23 the vote was taken
on the basis of a summary description of the fair trial guarantee, where
emphasis was placed on the right to a "fair and public trial",24 the right "in
full equality to a fair and public hearing by an independent and impartial
tribunal" and the right "to be presumed innocent until proved guilty
according to law in a public trial".25 Thus, it might be clear from the
travaux preparatoires that States parties were not prepared to accept an
obligation to afford a fully judicial procedure before a court of law sitting
in public. However, a common understanding does not emerge there-
from that there exist emergency situations where any obligation to afford
due process would be an unsustainable encumbrance.
This view is supported to a certain extent by the recent inclusion of one
fair trial guarantee, the non bis in idem principle, in the list of non-
derogable rights at the European level.26 The right is guaranteed under
Article 14 of the Covenant, a derogable provision which has been ratified
by a great number of European States.
These indications are, however, speculative. If it were not for the
corroborating evidence provided by a different but connected branch of
international law, humanitarian law, it could well be argued that a mini-
mum floor of due process acceptable to all States parties does not exist.

C. The States Parties' "Other Obligations" under Humanitarian Law

As already noted, the States parties to all three human rights instruments
under examination have pledged in the derogation clauses themselves not
to disregard during national emergency situations their obligations under
other international instruments which do not envisage derogations. The
same holds true for their obligations under customary international law.
Derogation measures are invalidated if they are "inconsistent with the
State's other obligations under international law". It is in this manner that
a non-derogable right to procedural fairness is guaranteed under both the
European and American Conventions and the International Covenant.
As a matter of fact, the vast majority27 of the States parties to these
instruments have ratified the four Geneva Conventions of 12 August 1949

23. The position is different under the American Convention where a proposal by the US
to include Art.8, as it now stands, in the list of non-derogable rights was defeated; see T.
Buergenthal and R. Norris, Human Rights, The Inter-American System, Oceana 1982-, Part
II, Chap.I, p.137.
24. See French and US alternative proposals under the Covenant, UN Doc.E/CN.4/324
(1949) and 325 (1949).
25. Art.8(2) of Alternative B of the European Convention; see Council of Europe,
Collected Edition of the Travaux Preparatoires, Vol.2, pp.458, 459.
26. See Seventh Protocol Additional to the European Convention on Human Rights,
Art.4.
27. At 31 Dec. 1991 167 States had ratified the four Geneva Conventions.

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APRIL 1992] Fair Trial in Emergency Situations 349

on humanitarian law.28 Common Article 3 of the Geneva Conventio

which governs armed conflicts not of an international character,29 proh
bits "at any time and in any place whatsoever sentences and execut
without a proper trial affording all the guarantees recognised as in
pensable to civilised people". The field of application of this provisi
appears admittedly to be restricted to the most serious cases of a pu
emergency not of an international character.30 However, it will be v
difficult, if not impossible, for States parties to prove that derogat
from this minimum floor was necessary in a less grave emergency situa
tion.31 According to the highly authoritative ICRC Commentary, t
would not be possible even if the emergency involved "civil disturbance
which could be described as mere acts of banditry".32
Admittedly a similar a fortiori argument does not arise from commo
Article 3 to affirm a non-derogable minimum floor of due process
public emergencies which do assume the character of an internatio
armed conflict. However, the International Court in Nicaragua v.
ruled that the obligation to respect the Article 3 rules accrues to ev
State by virtue of customary international law; these customary int
national law rules constitute a minimum yardstick against which to mea
sure the behaviour of States in the event of an international armed
conflict.33

28. 1949 Geneva Convention I for the Amelioration of the Condition of Wounded and
Sick in Armed Forces in the Field, 1949 Geneva Convention II for the Amelioration of the
Condition of Wounded and Sick and Shipwrecked Members of Armed Forces at Sea, 1949
Geneva Convention III Relating to the Treatment of Prisoners of War, 1949 Geneva
Convention IV Relating to the Protection of Civilian Persons in Times of War.
29. The remaining provisions of the Conventions apply to conflicts of an international
character. For a definition of the terms, see Art.2 of the four Geneva Conventions. See also
Schindler, "The Different Kinds of Armed Conflicts According to the Geneva Conventions
and Protocols" (1979) II Hag. Rec. 117-164.
30. The scope of applicability of common Art.3 was discussed extensively in the Diplo-
matic Conference which drafted the Conventions and continues to be a most contentious
issue, with States parties trying to restrict its operation as far as possible. Practice on the
matter is still very scant, Art.3 not having been recognised as functional in many non-
international armed conflicts which have occurred after the adoption of the Geneva Con-
ventions; see Bond, "Internal Conflicts and Article 3 of the Geneva Conventions" (1971) 48
Denver L.J. 263.
31. A similar argument is drawn by Jimenez de Arechaga, the former President of the
Inter-American Commission of Human Rights, from Art.75 of the 1977 Geneva Protocol I,
which guarantees fair trial rights in international conflicts; see I.C.J. study, supra n.6
However, the customary international law value of this instrument is not clear; see infra
n.40.
32. See Commentary on Geneva Convention IV (1952), p.36: "What Government would
dare to claim before the world, in a case of civil disturbances which could be described as
mere acts of banditry, that Article 3 not being applicable, it was entitled to leave the
wounded uncared for, to torture and mutilate prisoners and take hostages?"
33. Military and Paramilitary Activities in and against Nicaragua (Merits Judgment) I.C.J.
Rep. 1986, para.219.

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350 International and Comparative Law Quarterly [VOL. 41

It must be immediately observed that this passage of the judgment has

been greeted with many reservations, especially in so far as the Court's
first affirmation was concerned.34 It is not our intention here to reopen
the acrimonious debate as to the process of creation of customary inter-
national law norms in the field of human rights, or to reassess the
relationship between opinio juris and State practice. It is, however, true
that common Article 3 belongs to a system of treaties which largely
exclude from their scope of protection the State's own nationals in the
case of international conflicts.35 In this light the affirmation of non-
derogable customary international law due process rights to be enjoyed
by everybody within a State's jurisdiction during an international conflict
on the basis of the general acceptance of common Article 3 appears a
rather bold logical step.36
However, the protection afforded by the Geneva Conventions has
been recently supplemented by the entry into force of the 1977 Geneva
Protocol I Additional to the Geneva Conventions of 12 August 1949 and
Relating to the Protection of Victims of International Armed Conflicts.37
Article 75 of this Protocol provides an impressive array of fair trial rights
which States parties must afford to "everybody affected by the conflict",
including their own citizens. It must be noted that before the guarantees
of Article 75 may be declared applicable, a link must be established
between the activity for which the accused is prosecuted and the con-
flict.38 However, the importance of this caveat should not be exaggerated.
In most situations the attempted derogation from the right to a fair trial
under human rights law will target groups of persons who, through their

34. See Meron, "The Geneva Conventions as Customary Law" (1987) 81 A.J.I.L. 348.
35. The exceptions are very few; see Part II of Geneva IV, Art.70 of Geneva IV and
Art.12 of Geneva I and II.
36. In any event it must be observed that the pronouncements of the Court in Nicaragua
v. US were made in respect of a factual situation which differed significantly from a situation
where a State involved in an international conflict decides to limit the due process rights of
its nationals. The Court convicted the US of a violation of humanitarian law in that it
disseminated a manual which induced the Contra fighters to violate the, fair trial rights of
fellow Nicaraguans; see idem, paras.255-256. The Court found that the relationship be-
tween the US and the Contras was such that the violations of humanitarian law committed
by the Contras in Nicaragua could not be attributed to the US; paras.l15-116 and 216. The
US at the most could be impugned for inducing the Contras to violate an obligation
incumbent on them by virtue of the rules applicable in non-international conflicts, i.e.
Art.3: para.220. However, even if we were to accept that the Contra forces acted on behalf
of the OS, the denial of due process rights to the Nicaraguans could be seen only as a
violation of the provisions of Geneva IV guaranteeing the right to a fair trial to protected
persons in occupied territories.
37. The Protocol applies in the situations referred to in Art.20 of the four Geneva
Conventions which, according to the Protocol, include "armed conflicts in which peoples
are fighting against colonial domination and alien occupation and against racist regimes in
the exercise of their right to self-determination"; see Art.1(3) and (4) of Protocol I.
38. Bothe, Partch and Solf, New Rules for Victims ofArmed Conflict (1982), pp.458-460.

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APRIL 1992] Fair Trial in Emergency Situations 351

association with the emergency, will be also "affected" by the inter-

national conflict.39
Of course, the state of ratification of the Protocol40 does not yet
warrant any claims that there exists on this basis alone a customary
international law obligation to respect the right to a fair trial during a
public emergency which assumes the character of an international armed
conflict; such an obligation would have been entrenched under the dero-
gation clause of the human rights instruments via "the other international
obligations" caveat. Article 75 does reveal, however, the international
community's awareness of the need to afford some due process in such
circumstances. This must be taken seriously into account when consider-
ing States parties' claims that a derogation from the fair trial provisions of
a human rights instrument was "strictly required".
In the light of all the above, it may be affirmed that a minimum floor of
procedural protection acceptable to all States parties to the human rights
instruments does exist, at least for those emergency situations which do
not assume the character of an international armed conflict. A "soft law"
obligation to respect a similar floor in international armed conflicts is also
beginning to emerge. The revelation of their existence is owed to human-
itarian law.

III. THE CONTENT OF THE MINIMUM FLOOR OF DUE PROCESS

A. The Fair Trial Guarantees of Humanitarian Law as Gu

Principles

What is, however, the content of this minimum floor of due process for
emergency situations? Common Article 3, on the basis of which the
existence of this minimum floor was inferred, is rather vague. It speaks of
the judicial guarantees which are recognised as "indispensable by civil-
ised people".
A rather more detailed non-derogable right to a fair trial is, on the
other hand, guaranteed by the Geneva Conventions for prisoners of
war,41 for certain aliens in the territory of a party to the conflict, and for

39. See Meron, "On the Inadequate Reach of Humanitarian and Human Rights Law and
the Need for a New Instrument" (1983) 77 A.J.I.L. 589, who argues that "the object of the
Diplomatic Conference that drew up Protocol I was not to revise the entire range of human
rights that would otherwise apply between a government and its people". The guarantee of
Art.75, according to its legislative history, applies "to certain categories of persons espe-
cially affected by the conflict such as collaborators, deserters and all the nationals of State A
who serve in the forces of adverse State B". Is not, however, the association of these persons
with the "enemy" analogous with the association with the IRA of the persons whose due
process rights were limited in Ireland v. UK?
40. At 31 Dec. 1991, 107 States had ratified Protocol I.
41. Geneva Convention III, Arts.86, 87, 99 and 103-107.

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352 International and Comparative Law Quarterly [VOL. 41

protected persons42 in occupied territories.43 However, these provisions

apply only in a situation of war or international armed conflict. The
temporal and territorial scope of their application is, therefore, by no
means coextensive with that of Article 15 of the European Convention,
Article 4 of the Covenant and Article 27 of the American Convention.
Moreover, the persons whose rights these provisions regulate represent
only a fraction of the persons covered by the protection of the inter-
national human rights instruments.
It could be argued, of course, that the aforementioned provisions of the
Geneva Conventions do provide some indications as to what the States
had in mind when proclaiming the more general right under common
Article 3. However, it cannot be excluded that the particular guarantees
respond to needs specific to the circumstances of these persons." Some of
these are persons belonging to the enemy who are susceptible to abuses
and whom States have a reciprocal interest to protect. Others are citizens
of neutral or cobelligerent States which do not have normal diplomatic
representations in the State in whose hands these persons are. As a result,
the normal rules of State responsibility for the treatment of aliens might
be difficult to enforce.
On the other hand, the jurisprudential underpinnings of Article 75 of
the First Additional Protocol, which extends its protection to "everyone
affected", are closer to those of the human rights instruments. Moreover,
the majority of its guarantees are included in Article 6 of 1977 Geneva
Protocol II Additional to the Geneva Conventions of 12 August 1949,
which protects persons prosecuted for offences related to a non-inter-
national armed conflict.45 The state of ratification of the Protocols,

42. "Protected persons" is a term of art. It denotes individuals "who, at a given moment
and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the
hands of a Party to the conflict or Occupying Power of which they are not nationals"; see
Art.4 of Geneva IV.
43. See Arts.71-74 of Geneva IV, applying in the case of protected persons in occupied
territories, and Art.126 of Geneva IV, rendering these provisions applicable to aliens
interned in the national territory of the party to the conflict.
The case law of the Israeli courts is rich in examples where international standards have
been used to measure the adequacy of the protection afforded by national law to accuse
persons tried in the occupied territories. Although the Israelis claim that Geneva IV doe
not apply in these territories, they accord the Palestinians all the minimum rights set therein.
See e.g. HC 87/85 Arjov et al. v. Commander of IDF Forces in the Judaea and Samaria
Region et al. (1988) 18 Is. Y.H.R. 255, where an Israeli court found that the right of appeal
on judgments of military courts in occupied territories was guaranteed neither under
international human rights law nor under humanitarian law. It is noteworthy that the cour
referred to Lawless to draw a fortiori an argument in favour of the application of the
derogation clause in the situation applying in the occupied territories.
44. See Meron, op. cit. supra n.39, at p.592.
45. The Protocol applies in armed conflicts which are not governed by Art. 1 of Protocol I
and which "take place in the territory of a High Contracting Party between its armed force
and dissident armed forces or other organised armed groups which, under responsibl
command, exercise such control over a part of its territory as to enable them to carry ou

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APRIL 1992] Fair Trial in Emergency Situations 353
admittedly, undermines the value of the two provisions as embodying a
common understanding of the international community as to the mini-
mum procedural rights to be afforded in an emergency situation.
However, the list of safeguards, common to both provisions, can provide
a useful starting point in our search for the minimum floor of due process.
It is therefore proposed to examine the operation of these guarantees
in two distinct situations: first, where criminal proceedings for emer-
gency-related offences are instituted before ordinary courts of law or
military and special criminal tribunals and, second, where States resort to
administrative detention.

B. The Functionality of the Guiding Principles before Emergency

Courts

The first right which appears in both lists of safeguards is the right to a
hearing before an independent and impartial tribunal.46 According to
many of the non-governmental organisations and experts who support
the non-derogability of certain fair trial guarantees, the right is seriously
imperilled by the displacement of ordinary courts by special emergency
or military tribunals with competence over offences committed by
civilians.47 The view appears to be shared by both the Human Rights
Committee and the Inter-American Commission. As already noted,
these organs have been careful never to pronounce a blanket prohibition
on such proceedings. However, they have not failed to recognise the
potential for abuses involved in their establishment.
The Human Rights Committee has observed that "quite often the
reason for the establishment of such courts is to enable exceptional

sustained and concerted military operations and to implement Protocol II". However, it
does not "apply to situations of internal disturbances and tensions, such as riots, isolated
and sporadic acts of violence and other acts of a similar nature, as not being armed
conflicts"; see Art. 1 Protocol II. Although its field of application appears more restrictive
than that of common Art.3, this does not undermine the relevance of Art.6 of the Protocol
for all emergency situations. The a fortiori argument raised supra n.31, applies here as well.
At 31 Dec. 1991 Protocol II had been ratified by 97 States.
46. "Impartial and regularly constituted court" under Art.75 and "a court offering the
essential guarantees of independence and impartiality" under Art.6.
47. See I.C.J., op. cit. supra n.6, at Recom.7: "the trial of civilians in military courts is
never strictly required so long as civilian courts remain functioning. The reasons invoked for
transferring jurisdiction are never of sufficient gravity to preclude less onerous alternatives;
military trials are always accompanied by the infringement of a host of defence rights";
Syracuse Principles, supra n.6, at 70(f): "civilians shall normally be tried before the ordinary
courts; where it is found strictly necessary to establish military or special courts to try
civilians their competence, independence and impartiality shall be ensured and the need for
them reviewed periodically by the competent authority"; also Questiaux, op. cit. supra n.6,
at para. 192: "proceedings dominated in their entirety by the military might render the right
to a fair trial non-existent".

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354 International and Comparative Law Quarterly [VOL. 41

procedures to be applied which do not comply with normal standards of

justice",48 and the Inter-American Commission has stated that:49
replacing the normal jurisdiction of the courts with military justice-both
because military judges are subject to political power and because they are
less well trained in law-generally meant seriously undermining the gua-
rantees to which all accused persons are entitled.

In the light of the aforementioned remarks, the non-derogability of the

right to a trial before an independent and impartial tribunal would have to
be affirmed.50 Emergency tribunals cannot be allowed by any means to
degenerate into bodies appointed ad hoc to impose punishments pre-
scribed by the executive. As observed by the Inter-American Court, "the
declaration of an emergency situation does not suspend the rule of law".
Some degree of personal independence51 must therefore be preserved
for military judges as well as for the ordinary members of the judiciary in
emergency situations.52 However, this is not sufficient. The principal
threat to independence arises in such situations from executive interfe-
rence with the competence and composition of emergency courts. The
review, consequently, of the international human rights organs must
focus on freedom from instructions in practice, on the extent to which the
jurisdiction of emergency tribunals is clearly defined, on the extent to
which government authorities are allowed to order the transfer or suspen-
sion of trials and to interfere with the empanelment of the bench, and
finally on the finality of the awards of emergency tribunals.53
Having established the minimum guarantees concerning the character
of the adjudicating organ, we must now turn to the procedure to be
followed before emergency tribunals or ordinary courts sitting in judg-
ment on emergency-related offences. It must first be noted that the right
to a public hearing is absent from the list of non-derogable due process
rights in both Protocols I and II. This could appear to be quite natural.

48. General Comment, para.4. In the everyday practice of the Committee the operation
of such courts is subjected to the closest scrutiny; see examination of the periodic reports of
Chile A/34/40, A/39/40 and A/40/40, El Salvador A/39/40, Madagascar A/33/44, Syria
A/34/40, Surinam A/35/40, Nicaragua A/38/40, Egypt A/39/40, Senegal A/35/40 and
A/42/40 and Zaire A/42/40.
49. See 1973 Annual Report.
50. See also I.C.J., I.L.A. and Syracuse Principles, all supra n.6.
51. A distinction is usually drawn between functional and personal independence. The
first refers to actual freedom in the exercise of judicial duties, while the latter refers to the
guarantees surrounding the professional security of a judge protecting him from external
influences; see Singvi, Study on the Independence of the Judiciary, commissioned by the UN
Sub-Commission on the Prevention of Discrimination and the Protection of Minorities,
E/CN4/Sub.2/1985/18.
52. See also I.C.J., op. cit. supra n.6, at Recom.8: "the use of emergency powers to
remove judges, alter the structure of the judicial branch, or otherwise restrict the indepen-
dence of the judiciary should be expressly prohibited in the Constitution".
53. The need for such guarantees is highlighted by the pattern of abuses recorded by ibid.

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APRIL 1992] Fair Trial in Emergency Situations 355

Demands for proceedings in camera are usually intensified during an

emergency. Admittedly, the letter of the international instruments allows
for exceptions to the publicity of court hearings on the basis, inter alia, of
national security or public order. States parties might argue, however, for
broader exceptions at a time when freedom of expression can be legiti-
mately restrained in order to maintain, inter alia, public morale. If,
however, States parties are to be allowed discretion to hold political trials
in camera, the need for effective international supervision becomes all
the more pressing. Publicity for the operative parts of the judgment,54 and
attendance of trials by neutral trustworthy observers ensures a minimum
standard of supervision.55 The Inter-American Commission has set a
most valuable precedent by sending its own delegates to observe such
proceedings.56
Another right which does not figure expressly in the two lists is the right
to legal assistance.5' Both Protocols speak, however, of an obligation to
"afford the accused before and during his trial all necessary rights and
means of defence". It can be stated with confidence that in many cases the
defence of the accused cannot be properly prepared and presented with-
out professional assistance. In the words of the European Commission,
the purpose of legal assistance is to ensure that "both sides of the case are
actually heard".58 However, the role of the accused's lawyer is not limited
to that. He is also, again in the words of the European Commission, "the
watchdog of procedural regularity"59 responsible for ensuring respect for
the accused's other procedural rights. The Human Rights Committee has
found a violation of the accused's right to effective legal assistance in a
long list of cases where, in proceedings before military courts, the accused
was denied legal assistance or where military officers acted as defence
counsel.60 In the light of the above, the right to "all necessary rights and
means of defence" must be interpreted in most cases of emergency
proceedings as guaranteeing for the accused the right to counsel of his

54. The right to "have the judgment pronounced publicly" is guaranteed under Art.75(4)
(j) of Protocol I.
55. Cf. Questiaux, op. cit. supra n.6, who considers the attendance of trials by relatives
and representatives of NGOs as one of the three minimum safeguards to be guaranteed in all
emergency situations.
56. See 1974 Report on Chile and 1981 Report on Colombia, p.143.
57. See, however, all op. cit. supra n.6, where this right is guaranteed.
58. App. Nos.7572/76, 7586/76 and 7587/76 Ensslin Baader and Raspe v. FRG 14 D. & R.
64.
59. Ibid. The need for professional assistance is particularly acute when the accused is
detained on remand; see Commission's opinion in Can v. Austria, Ser.A, No.96.
60. See Weismann and Perdomo, supra n.17, Com.110/81 Acosta v. Uruguay A/39/40,
p.154, Lopez, supra n.17, Com.73/80 Izquierdo v. Uruguay CCPR/C/OP/1, p.132,
Com.56/79 Celiberti de Caseriejo, idem, p.92, Com.63/79 Setelich v. Uruguay, idem, p.101,
Com.74/80 Estrella v. Uruguay A/38/40, p.150. See also I-AC's 1980 Report on Argentina,
p.223 and 1983 Report on Cuba.

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356 International and Comparative Law Quarterly [VOL. 41

own choice or to legal aid counsel appointed by an independent body

other than the military or special tribunal.
There can be no doubt, on the other hand, regarding the non-derog-
able character of the rights of the accused to be tried in his presence, to be
informed without delay of the particulars of the offences and to be
presumed innocent until proved guilty according to law, which are
included in both Protocols.
Can the same be said, however, regarding the right to a fair evidence-
taking process? A most important right protected by both Protocols in
this connection is the right of the accused not to be forced to testify
against himself.61 It has been also recognised as non-derogable by the
Inter-American Commission.62 This approach is fully in line with the
proclamation of freedom from torture and inhuman and degrading treat-
ment as a non-derogable right in all human rights instruments. The law of
evidence must not create initiatives for the infliction of such treatment-
upon the detainees, at a time when abuses are known to occur.63
Both Protocols also provide, as already discussed, for an obligation to
"afford the accused before and during his trial all necessary rights and
means of defence". The corresponding guarantee obviously includes the
right to obtain the attendance of witnesses on his behalf. Does, however,
the protection extend to rights of full cross-examination of all "witnesses
against him"? According to the jurisprudence of the European Court,
this is an autonomous notion covering all persons, present in or absent
from the court hearing, whose statements are used to implicate the
accused.64
Protocol II is significantly silent on this point.65 Large-scale intimida-
tion of potential witnesses in times of national turmoil might result, as a
matter of fact, in the lack of direct, cross-examinable evidence, to be cited
in corroboration of genuine suspicions held by the prosecuting authori-
ties. The sensitive character of other evidence might not permit its full
rehearsal at a hearing attended by the accused and counsel. An argument

61. See examination of the periodic report of the UK under the Covenant, A/40/40,
where the UK government maintained that the Diplock courts complied with Art.14(3)(g)
of the Covenant, which guarantees this freedom. For a different view see Korff, The
Diplock Courts in Northern Ireland, a Fair Trial?, study commissioned by Amnesty Inter-
national, S.I.M. Special No.3.
62. 1983 Report on Guatemala.
63. For the same line see GA Res.43/173, Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment, Principle 21, and UN Convention
against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment,
Art. 15.
64. See Unterpertinger v. Austria Ser.A, No.110, Bricmont v. Belgium Ser.A, No.158,
and Delta v. France Ser.A, No.191.
65. Protocol I, on the other hand, provides in Art.75(4)(g) for the right of the accused "to
examine, or have examined, the witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as witnesses against him".

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APRIL 1992] Fair Trial in Emergency Situations 357

is made in this light in favour of a relaxation of the laws of evidence during

national emergencies.66
To what extent, however, can human rights law tolerate convictions
which are based on evidence of a possibly unreliable character,67 espe-
cially where the effects of the penalties imposed outlast the emergency?6
The Inter-American Commission has expressly stated that the punish-
ments emergency courts may impose must be of a length consistent with
the exceptional nature of an emergency situation.69 It has often called
upon governments to review convictions imposed by military or special
courts under emergency rule.70
A similar approach may be adopted by the European Convention
organs and the Human Rights Committee. The post-emergency deten-
tion of persons convicted under legislation introduced to meet the exi-
gencies of the situation could arguably infringe Article 17 of the
European Convention and Article 5 of the Covenant taken together with
Articles 15 and 4 of these instruments.71 The death penalty is not,
however, outlawed under the Convention72 and the Covenant. The rele-
vant provisions, Articles 2 and 6 respectively, are silent on the procedural
guarantees to be afforded prior to its imposition.
Moreover, a strong stance against appearing to use the process of
justice to give legitimacy to abuses by the executive was made in Lawless
v. Ireland by Sir Humphrey Waldock, the then President of the European

66. See Report of the Commission to Consider Legal Procedures to Deal with Terrorist
Activities in Northern Ireland (Diplock Report), Dec. 1972, Cmnd.5185; for comment see
Twining, "Emergency Powers and Criminal Process: The Diplock Report" (1973)
Crim.L.R. 406.
67. Direct cross-examination of persons whose statements are used to convict th
accused is necessary to enable the defence to demonstrate prejudice, hostility or unreliabi
ity; see European Court of Human Rights in Bricmont, supra n.64, at para.81 and Kostovs
v. Netherlands Ser.A, No.166, paras.42-43.
68. See Sorensen's opinion, Commission's report on Lawless, supra n.ll.
69. See 1981 Report on Colombia, conclusion 3.
70. See 1983 Report on Guatemala, Recom.2, p.133, 1974 Report on Chile, Recom.2b
and 1981 Report on Nicaragua, Recom.5.
For a similar position see Protocol II, Art.6(5): "At the end of hostilities, the authorities
in power shall endeavour to grant the broadest possible amnesty to persons who have
participated in the armed conflict, or those deprived of their liberty for reasons related t
the armed conflict, whether they are interned or detained."
71. Arts.17 of the Convention and 5 of the Covenant provide in similar terms that
"Nothing in [the two instruments] may be interpreted as implying for any State ... any right
to engage in any activity or perform any act aimed at the destruction of any of the rights an
freedoms set forth [therein] or at their limitation to a greater extent than is provided for in
[the two instruments]."
72. Protocol No.6 Additional to the European Convention, which aims to outlaw the
death penalty, does not apply in times of war. Some limitations, however, on the use b
States of the death penalty have been imposed by the European Court in Soering v. UK
Ser.A, No.161. The Court found that the imposition of the death penalty under certain
circumstances could amount to inhuman or degrading treatment or punishment prohibite
under Art.3.

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358 International and Comparative Law Quarterly [VOL. 41
Commission.73 The courts must be seen as the natural protectors of
human rights. Public confidence in the judicial system must be main-
tained to enable the courts to discharge their independent supervisory
role in times of national emergency.74 Sir Humphrey's arguments are
compelling. The benefits to be drawn from insulating the judicial process
from political controversey are manifold. They should be taken seriously
into account before States parties are allowed to derogate from the right
of the accused to be given a full opportunity to exculpate himself by
testing effectively the case of the prosecution.
Moreover, the right to proceedings of a reasonable length is not
included in the two lists and its derogable character is not usually
questioned." The prosecuting authorities could certainly use the leeway
they are allowed thereunder to compile a watertight case against the
accused. The benefits of speedier trials in emergency situations are
effectively outweighed by the dangers involved in unsafe verdicts.

C. The Functionality of the Guiding Principles in Cases of Extra-

Judicial Deprivation of Liberty
Reservations about the fair trial implications of administrative detention
have been expressed by the European Convention organs which focus
their examination on Article 5 of the Convention, which guarantees the
right to liberty.76 Article 6 was found inapplicable by the Court in at least
one instance.77
However, the matter is far from settled. Both the Human Rights
Committee and the Inter-American Commission have applied Article 14
of the Covenant7' and Article 8 of the American Convention79 in cases of

73. XIX Yearbook 512.

74. On this point, see Garro, "The Role of the Argentine Judiciary in Control
Governmental Action under a State of Siege" (1983) 4 H.R.L.J. 311; for the opposite vie
see Alexander, "The Illusory Protection of Human Rights by National Courts du
Periods of Emergency" (1984) 5 H.R.L.J. 1.
75. See Questiaux, I.L.A. and I.C.J., all op. cit. supra n.6.
76. See, however, App. No.493/59 Lawless v. Ireland 7 Coll. 85 where the Commiss
pronounced the admissibility of the applicant's complaints under Art.6 and Commissio
report on the same case, supra n. 11, where Eustathiades, Sustrehenn, Erim and Ermac
in their dissenting opinions found a violation thereof. See also Commission's report
Ireland v. UK, Ser.B, No.23 where the Commission found that at a certain stage of
emergency the administrative authority which reviewed detention orders was required
national law to make findings on the merits of what was in substance a "criminal charge"; t
commissioner had to satisfy himself that the detainee had been concerned in the commi
or attempted commission of an act of terrorism. However, the Commission found tha
"determination" was involved in the procedure. The purpose of the administrat
authority's decision was not to convict or bring to trial the respondent, but to decide whet
he should be further detained.
77. Lawless, supra n.8, para.12.
78. See Ramirez, Sequeira and Caraballal, all supra n.17, and Com.124/82 Muteba v.
Zaire A/39/40, p.182.
79. See infra nn.100 and 101.

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APRIL 1992] Fair Trial in Emergency Situations 359

persons detained on the orders of the executive for presumed connection

with subversive activities. Moreover, the European Commission in Ire-
land v. United Kingdom found that administrative detention, could not
be justified under Article 5(1)(c) of the European Convention, which
allows for detention on remand. However, Article 5(3), which guaran-
tees the right to a trial, was taken into consideration when the Commis-
sion examined the need to derogate from the procedural safeguards of the
Convention. The provision gave "expression to a general principle
applicable where persons have been arrested because of acts they have
committed or are suspected of having committed"."8
The thrust of these findings is clear. Persons detained on administrative
orders during an emergency situation in connection with reprehensible
acts or attitudes imputed to them81 must be seen as "accused" persons
who remain in principle entitled to a judicial determination of the charges
against them.82
Naturally, a certain delay in the institution of criminal proceedings
against these persons may be permitted in view of the exigencies of each
particular emergency. The right to a speedy trial is a derogable right. The
recognition, however, of the derogability of the right to proceedings of a
reasonable length cannot mitigate the need for an independent review at
the national level over emergency detention to eliminate the risk of
abuses. This was first recognised by the European Court, which, in its
judgments in Lawless v. Ireland and Ireland v. United Kingdom,83
stressed the importance of habeas corpus proceedings before the ordinary
courts, even if the scope of their review is not wide enough to ensure
compliance with Article 5(4).

80. Supra n.76, paras.111-112.

81. This is usually the case with most detainees in emergency situations. The situation in
Ireland v. UK is characteristic. Under Reg. 11(1), enacted under the Special Powers Act,
individuals could be arrested only on suspicion of acting, having acted, or being about to act
in a manner prejudicial to the preservation of the peace, the maintenance of order, or of
having committed an offence under the Regs. Under Reg. 12(1) an individual could be made
the subject of an internment order only if he was suspected of acting, having acted, or being
about to act in a manner prejudicial to peace and order and only if the Minister was satisfied
that this was expedient for securing the preservation of the peace and the maintenance of
order. It was only Reg. 10 that provided for the detention of persons independently of such a
suspicion. The regulation allowed for persons to be held for 48 hours in order to be
questioned, inter alia, about the activities of others. Lawless was also detained under s.4
Offences against the State Act on suspicion of being a member of the IRA. S.21 of the Act
made it an offence to be a member of an "unlawful organisation".
82. The issue of the procedural fairness to be afforded to persons subjected to "preven-
tive detention" has been often examined by the courts of various Commonwealth countries,
especially of India; see e.g. Singh Vijay Narian v. State of Bihar A.I.R. 1984 Sup. Ct. 1334
and Frances Coralie Mullin v. WC Khamboura A.I.R. 1980 Sup. Ct. 849. These courts
however, consider the question rather narrowly by reference to their own Constitutions
rather than to international standards.
83. See paras.37 and 219 respectively.

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360 International and Comparative Law Quarterly [VOL. 41

Building on this jurisprudence, the Inter-American Court pronounced

in its most important advisory opinion on Habeas Corpus in Emergency
Situations that a judicial, albeit limited, review of detention orders in
emergency situations is a non-derogable right. The right to a judicial
direct review of the merits of the detention does not appear to be
guaranteed in all circumstances. According to the Court, however, the
courts must always retain the power to review"
if the measures taken infringed the legal regime of the state of emergency, if
they lasted longer than the time limit specified, if they were manifestly
irrational, unnecessary or disproportionate, or if in adopting them there
was a misuse or abuse of power.

They must also retain the power to order the presence of the detainee
before them. Thus, in addition to providing a powerful disincentive
against abusive detentions, the non-derogable right to habeas corpus
proceedings could prove instrumental in ensuring effective respect for the
detainee's non-derogable rights to life and personal integrity.
The same aim appears to be served by the recognition of a right to legal
assistance for all detainees. The Inter-American Commission has made
significant steps towards the recognition of the non-derogable character
of this right. In its 1978 Report on Paraguay it affirmed the competence of
the court to enquire into whether a detainee had the benefit of legal
advice as part of his non-derogable right to habeas corpus. In its 1979
Report on Chile it called for access to counsel for all persons detained
during the emergency. The Human Rights Committee has also registered
violations in respect of incommunicado detention under specialemer-
gency measures.85
However, it can be assumed that governments, which regard secrecy as
indispensable for the success of some preliminary investigations, will
resist the recognition of a right of access to counsel upon arrest.86 Thi

84. Habeas Corpus in Emergency Situations, supra n.14, para.35. For an identical line
taken by the I-AC, see 1978 Report on Paraguay, p.68 and 1985-1986 Annual Report in
connection with the derogation of Nicaragua.
The I-A Court appears to take a stauncher stance than the Principles for the Protection of
All Detainees, supra n.63, which provide for the right to challenge the lawfulness of one's
detention "before a judicial or other authority"; see Principle 32(1). See also (all op. cit.
supra n.6) Questiaux, p.45, I.C.J., Recom.22 and I.L.A., Art.5(3).
85. See Ramirez, Sequeira and Carballal, all supra n.17, where the applicants had been
detained under "Prompt Security Measures" without charges. The fact, however, that the
Committee rejected the respondent government's defence of the existence of an emergency
situation could have coloured these findings.
Such a right is also guaranteed under the Principles for the Protection of All Detainees,
supra n.63, see Principles 17 and 18, and under Standard Minimum Rules for the Treatment
of Prisoners, ECOSOC Res.663(XXIV), see r.93. The two resolutions make no distinction
between normal and emergency situations.
86. See, however, I.C.J., op. cit. supra n.6, at Recom.23, and I.L.A., op. cit. supra n.6,
at Art.5(2)(b), where the recognition of such a right is advocated.

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APRIL 1992] Fair Trial in Emergency Situations 361

view has already been echoed in the jurisprudence of the European

Commission,87 which has expressly failed to endorse the Inter-American
Commission's view that the presence of counsel during the interrogations
is the only guarantee which can effectively protect the non-derogable
right of the accused not to be forced to incriminate himself.88
Pursuing a more realistic line, the European Commission has recog-
nised the possibility of a limitation of the right of the detained accused to
access to counsel to eliminate security risks and the danger of collusion.89
This case law must be accepted. However, if the review of the human
rights organs is to retain some of its substance, any government attempt-
ing to limit the accused's rights must be made subject to a strict necessity
and proportionality test. It should be required to demonstrate by adduc-
ing specific evidence that counsel of the accused's own choice was likely
to collude with the accused and that his replacement by legal aid counsel
could not eliminate the security risks involved. The second prong of the
test can be satisfied only in the most extreme situations." In such situa-
tions real and effective guarantees against abuses must be recognised to
safeguard the well-being of the detainee, such as using proper recording
procedures and providing for the medical examination of the detainee
before and after the interrogation.91
The salutary effects of the rights to a limited judicial review and
effective legal assistance should not, however, be overestimated. A "cor-
rect" application of emergency measures on a large scale quite often
results in the detention of persons who do not pose a real threat to
security.92 The European Court appears to have recognised this in Law-
less v. Ireland and in Ireland v. United Kingdom. In both these cases, it
stressed the importance of a review of the actual need for the detention,

87. See App. No.9370/81 v. UK 35 D. & R. 75.

88. 1983 Guatemala Report.
89. See App. No.7854/77 Bonzi v. Switzerland 12 D. & R. 188, Commission's Report on
Can v. Austria, supra n.59, and App. No.8463/78 Krocher and Moller v. Switzerland 26 D. &
R. 24.
The Principles for the Protection of Detainees, supra n.63, also provide for the possibility
of such limitations, albeit "not for more than a matter of days", see Principle 15. See also
Questiaux, op. cit. supra n.6, who argues for "incommunicado" detentions which do not
exceed a short period prescribed by the emergency law itself and Syracuse Principles, op. cit.
supra n.6, which limit such detention to three to seven days.
90. Members of a terrorist group could theoretically exact by force information from
such counsel.
91. See Principles for the Protection of All Detainees, supra n.63, under Principles 12
and 23-26, also Amnesty International, Torture in the Eighties (1984), Programme of
Twelve Points for the Prevention of Torture.
92. See Ireland v. UK, supra n.8, paras.39 and 81: "It is generally accepted that because
of the scale and speed of the operation some persons were arrested and even detained on the
basis of inadequate or inaccurate information." The Court refers to the operation Deme-
trius, which started on 9 Aug. 1971 and during which 350 persons were arrested; 104 of them
were released within 48 hours.

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362 International and Comparative Law Quarterly [VOL. 41

within a reasonable time of the arrest, which would be comprised of an

investigation to determine whether the suspicion against the detainee is
well-founded.93 The principal reason, however, national governments
opt for administrative detention is the sensitive character of the informa-
tion on which the suspicions against the detainee are based, which does
not permit fully adversarial proceedings before a court of law. As evi-
denced by both Lawless v. Ireland and Ireland v. United Kingdom, the
shift to quasi-judicial proceedings before administrative committees
might be considered inevitable by some States parties acting in good
faith.94
The nature of some of the evidence to be admitted and relied on in
substantiation of the case for preventive detention, will also determine
the degree of due process to be afforded in quasi-judicial review. Public
proceedings cannot be expected and the right of the detainee to a full
disclosure of the case against him might have to be limited. The review
body might be required to receive and examine information in the
absence of the detainee and his counsel.95
The rights of the detainee are undeniably extremely limited. To com-
pensate for this shortcoming, the international human rights organs must
place great emphasis on the independence and impartiality of the admi-
nistrative committee. If the review is to retain some of its substance, a
certain degree of independence from the authorities which order and
execute the detention must be guaranteed for the members of the com-
mittees. This, together with freedom from orders in the exercise of their
quasi-judicial duties, appear to be the minimum requirements for all
adjudicators under the European Convention.96 As for the rest, the
presence of members of the judiciary among the membership of the

93. Paras.37 and 219 respectively.

See also Principles for the Protection of All Detainees, supra n.63, under Principle 11.
Also I.C.J. and I.L.A., both supra n.6, which both provide for such a review by an
independent and impartial judicial or quasi-judicial body within 30 days of the person's
arrest.

94. Para.36 in both judgments.

95. To that effect see also I.L.A., op. cit. supra n.6, at Art.5(2)(a).
96. Piersack v. Belgium Ser.A, No.153, Sramek v. Austria Ser.A No.84 and Ettl v.
Austria Ser.A, No.117.
Such was not the case with the advisory committee which reviewed the detention at the
early stages of the emergency in Ireland v. UK. In addition to the absence of real guarantees
for the detainee, the committee could recommend detention in the first place. The Court
considered that the incorporation right from the start of more satisfactory judicial, or
quasi-judicial, guarantees would certainly have been desired. However, this did not auto-
matically entail a violation of Art.5. "When a State is struggling against a public emergency
threatening the life of the nation, it would be rendered defenceless if it were required to
accomplish everything at once, to furnish from the outset each of its chosen means of action
with each of the safeguards reconcilable with the priority requirements for the proper
functioning of the authorities and for restoring peace within the community. The interpreta-
tion of Article 15 must allow room for progressive adaptations"; see idem, para.220.

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APRIL 1992] Fair Trial in Emergency Situations 363

reviewing body, which should not be dominated by civil servants, can be

seen as practical guarantees.97

D. Administrative Detention or Trials of Limited Fairness? The

Dilemma Facing the Human Rights Organs
It could be argued, of course, that the relatively high standard of due
process to be afforded before ordinary and emergency tribunals, coupled
with the relatively low standard applicable in administrative detention,98
might provide a powerful incentive for States parties to resort to the latter
course of action to the apparent detriment of the rights of the accused.
These anxieties are fully warranted. It must be recognised, however,
that the principal aim of administrative detention is not to insulate courts
from controversy and effectively replace trial and punishment in accor-
dance with the law. As already observed, the derogability of the right to a
speedy trial has been recognised in order to allow sufficient leeway for the
investigating and prosecuting authorities to assemble a case against the
accused. Administrative detention is designed as a stop-gap measure to
ensure an effective response to the immediate threat created by the
emergency. Under no circumstances can it be allowed to assume a pun-
itive nature.
As the Inter-American Commission observed,9
to maintain that the executive may prolong detention indefinitely, without
bringing the person to trial, would mean converting the executive into a
part of the judiciary ... destroying the separation of power structures
characteristic of a democratic system.

Moreover, "detention for prolonged periods without due process is in

violation of human rights, because it involves the imposition of a penalty
without the prior benefit of trial, violating the right to liberty, a fair trial
and due process".1??
In other words there exists a point in time beyond which the admi-
nistrative deprivation of liberty sheds the character of a preventive mea-
sure and is transformed into a sanction imposed without due process.

97. The European Court does not appear to consider the presence of judges as a
necessary prerequisite of the independence of a quasi-judicial body; see H. v. Belgium
Ser.A, No.127. However, it has never pronounced the independence of a body composed in
its entirety of civil servants, see Sramek and Ettl, ibid.
98. For a similar line see ICRC Commentary, op. cit. supra n.32, at p.39: "All civilised
nations surround the administration of justice with safeguards aimed at eliminating the
possibility of judicial errors. The Convention rightly proclaimed that it is essential to do this
even in time of war." However, "it is only summary justice which it is intended to prohibit,
there is nothing in [common Art.3] to prevent a person presumed to be guilty from being
arrested and so placed in a position where he can do no further harm".
99. See 1980 Report on Argentina.
100. 1981 Report on Nicaragua; see also 1976 Annual Report.

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364 International and Comparative Law Quarterly [VOL. 41

In this light the exigencies of the situation would appear to be exceeded

when persons continue to be detained notwithstanding the fact that the
prosecuting authorities have assembled against them adequate evidence
which can withstand effective cross-examination before a court of law.
They would also be exceeded when the same authorities effectively
neglect their obligation to institute such proceedings.'0' Consequently a
review at reasonable intervals of the actual need for the detention in
judicial or quasi-judicial proceedings appears necessary.'02 This will allow
for the progressive release of the less dangerous detainees and will
prevent the detention from degenerating into punishment without trial.
The procedural rights which will enable the detainee to test the basis of
the suspicion against him in habeas corpus or quasi-judicial proceedings
should increase progressively to ensure a meaningful review.103
In a nutshell, adequate safeguards for administrative detention
together with the need to preserve the integrity of the courts are the twin
parameters for determining the degree of acceptability of the various
limitations governments may impose on the right to a fair trial in order to
meet the exigencies of an emergency situation.
IV. CONCLUSIONS

To recapitulate, a minimum floor of fair trial does appe

emergency situations. Adjudication by an independent b
dent legal assistance, freedom from coerced self-incrimin
closure of the case of the prosecution to be effectively
accused before the court and a full opportunity to disprov
coupled with the possibility of international supervision i
always be guaranteed when recourse is had to judicial

101. For findings of violation in respect of persons detained under emer

for an exorbitant time, see Com.5/77 Valentini de Bazzano v. Uruguay CC
Setelich, supra n.60, Com.56/79 Celliberti v. Uruguay, idem, p.92, Com
Barbato v. Uruguay A/38/40, p.124, Com.156/83 Solorzano v. Venezuela
Com. 139/83 Conteris v. Uruguay A/40/40, p.196, Com.66/80 Schweizer v. U
p.117, Com.83/81 Machado v. Uruguay A/39/40, p.148, Com.103/81 Sca
A/39/40, p.154, Acosta, supra n.60, Com.80/80 Vasiliskis v. Uruguay A
Com.43/79 Caldas v. Uruguay A/38/40, p.192, Com.42/81 Nieto v. Uruguay
and Com. 123/82 Lluberas v. Uruguay A/39/40, p.175 under the Covenant
1748, 1755 v. Guatemala, Buergenthal and Norris, op. cit. supra n.23, Part
1944 v. Haiti, idem, Part 111/20, p.7, 2006 v. Paraguay, idem, p.10, 1992 v.
1909 v. Uruguay, idem, p.19 and Res.14/80 on Case 2127 v. Argentina 1
Report p.75, Res.43/81 on Case 3956 v. Cuba 1980-1981 Report p.92, R
2488 v. Argentina 1980-1981 Report p.19, Res.16/81 on Case 3482 v. Argen
Res.37/82-46/82 on Cases 2401, 2646, 2647, 2648, 2650, 2652, 2653, 2973, 3
1982-1983 Report pp.63, 67, 70, 73, 77, 80, 82, 85, 87, 89, Res.48/82 v.
Res.3/86 on Case 9170 v. Nicaragua 1985-1986 Report p.105, Res.41/83
Haiti 1983-1984 Report p.49, Res.42/83 on Case 7861 v. Haiti, idem, p.49
Case 9040 v. Haiti, idem, p.52 adopted by the I-AC.
102. See Syracuse Principle 70(b) and I.L.A. Art.5(2)(e), both supra n
103. See supra n.95.

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APRIL 1992] Fair Trial in Emergency Situations 365

whether before ordinary courts of law or before special tribunals set up to

meet the exigencies of the emergency. Administrative detention appears,
on the other hand, inevitable when a relatively high standard of fairness is
to be respected in judicial proceedings. However, there must exist effec-
tive safeguards which will help to prevent the ill-treatment of detainees,
guarantee freedom from unlawful or abusive detentions, and ensure that
the duration of an originally "lawful" detention does not alter its charac-
ter, transforming it into a punitive measure.

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