International Criminal Law
46
the issue of terrorism for ‘social control’ purposes,
188
national judges are under an
obligation to disregard laws that violate these principles.
2.9
TERRORISM AND HUMAN RIGHTS
We have already examined a number of human rights issues related to terrorism;
now we shall briefly look at the problem of human rights and the role of non-State
actors (reference to which has already been made), as well as procedural guarantees
prescribed for those persons accused of terrorist offences. Article 14 of the 1966
International Covenant on Civil and Political Rights (ICCPR) guarantees the right
to a fair trial as well as other pre-trial protections to those accused or arrested in
relation to criminal offences.
189
Many countries suffering from sustained terrorist
attacks promulgate legislation that falls below the standard set by the ICCPR.
Beginning in 1973, the UK enacted sweeping emergency legislation in its effort to
counter violence arising from the Northern Ireland conflict.
190
This legislation
eliminated a number of pre-trial procedural safeguards typically available to criminal
defendants in the UK. It also established an alternative system of tribunals to try
those accused of ‘scheduled offences’, that is, certain politically motivated criminal
offences. These ‘Diplock courts’ employed abbreviated trial procedures, eliminating
trial by jury and significantly relaxing evidentiary standards. Such practice,
irrespective of the gravity of the alleged offence, violates fundamental pre-trial
procedural safeguards as these are formulated in international instruments. Likewise,
on the basis of derogation provisions contained in human rights treaties, States are
afforded a certain degree of discretion as to the suspension of certain rights in times
of public emergency.
191
The European Court of Human Rights’ jurisprudence evinces
the enjoyment of a margin of discretion which Member States may utilise in order to
determine a state of emergency. Such discretion is not unlimited but subject to control
by the court.
192
Anti-terrorist conventions contain minimum procedural safeguards entitling the
accused to fair treatment and ensuring communication with an appropriate person,
either a representative of his State or another.
193
The 1976 European Convention on
the Suppression of Terrorism included a provision whereby a requested State is not
188 N Chomsky, ‘Human Rights Priorities and Responsibilities for Citizens’, in D Barnheizer (ed),
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