Explore the issues - when can rights be limited?
There are four situations described below where a government is placing restrictions on particular human rights, or denying individual’s the right to exercise or enjoy those rights.
Read each of the situations carefully, and then choose whether you think the restriction is justified, not justified, or you need more information to decide.
SCENARIO 1
A democratically-elected government is almost overthrown in a coup attempt. Sections of the military working closely with a network of civil servants who owe loyalty to a religious charity attack the Parliament, seize television stations, key bridges and airports, attempt to kill the president, and shoot hundreds of protestors who rush onto the streets to protest. The government survives and the coup leaders and thousands of those who are alleged to have supported them are arrested. The country’s laws don’t include the death penalty, but the public is so enraged by this assault on democracy, they demand it be reinstated. The President agrees and promises to amend the criminal law to bring back the death penalty so that it might be imposed on the coup plotters.
What do you think?
- Justified
- Not justified
- Need more information
Answer: Almost certainly not justified, but why? The death penalty clearly impacts on the right to life, which under international law – as you’ll see in this module – is an absolute right that states cannot limit. But (and it’s a big but), as defined in Article 6 of the International Covenant on Civil and Political Rights (ICCPR), the right to life allows for states that have the death penalty in their criminal law to use it – but only for very serious crimes. A violent coup attempt is clearly such a crime. Why then can’t the government use it on the coup plotters?
Because while it permits the death penalty, the ICCPR prohibits absolutely the retroactive application of criminal law – you can’t be charged with a crime for an act that wasn’t a crime when you committed it; likewise, you can’t be punished with a sentence that wasn’t allowed for the crime when you committed it. The reason is simple. Experience shows that allowing governments to amend laws to look backwards permits misuse and arbitrariness.
This situation is based on what happened in Turkey in July 2016 – read the stories at these links.
SCENARIO 2
A Christian pastor believes homosexuality is a sin. He prepares a pamphlet setting out his views, and a website too. The information makes explicitly hateful statements about homosexuals, including that they “will burn in Hell”, “seek to destroy the Christian family”, and that “they have seized control of our schools and government and must be stopped”, including criminalizing homosexuality and denying them permission to teach in public schools. He distributes the pamphlet in front of schools, and in other public places. A complaint is lodged with the police who warn the pastor to stop. He refuses to do so, and is charged under the country’s criminal code with inciting hatred, a crime punishable with fines and/or up to 2 years in prison.
What do you think?
- Justified
- Not justified
- Need more information
Answer: Most likely justified. The criminal charge clearly infringes on him expressing his views and the right to free expression is protected in Article 19 of the ICCPR. But freedom of expression is a right that can be limited – you can’t slander or libel people, and there may be other reasons to restrict expression. Article 19 lists several [hyperlink to Article 19(2) and (3)]. Among them, it clearly prohibits hate speech – public expressions intended to incite discrimination, hate and/or violence against any group. In this situation, the pastor’s speech probably crosses the boundary, as he publicly advocating for discriminatory laws against homosexuals, and encouraged hateful views towards them (which in turn may lead to violence).
This situation is based loosely on a real case in Saskatchewan in 2011.
SCENARIO 3
A country faces threats from a global terrorist network, that carries out acts of terror against its nationals both at home and abroad, killing many people. In response, the threatened country permits its security services to use “aggressive interrogation methods” against terrorist suspects in its custody. Such methods include sleep deprivation, forcing prisoners into stressful positions, simulated drowning, simulated executions, and “rough handling”. The security services claim the use of these methods is producing actionable intelligence that has allowed them to disrupt and prevent other terror attacks.
What do you think?
- Justified
- Not justified
- Need more information
Answer: Not justified. The acts described clearly fall within the definition of torture (that you’ll study in this module) and under Article 7 of the ICCPR there is an absolute prohibition on the use of torture. Moreover, there is a specific treaty outlawing torture, the UN Convention against Torture, and it states explicitly that nothing can justify torture and makes it an international crime. Even in wartime, torture is prohibited.
This situation obviously is loosely based on the response of some states to Islamist terror, including the United States.
SCENARIO 4
An unpopular government faces growing discontent, and trade unions, civil society groups and opposition political groups are organizing public protests. These start small but grow, especially after 3 demonstrators are killed by the police in disputed circumstances at one of the protests. Though for the most part peaceful, there are photographs of some of the demonstrators throwing rocks at the police, and vandalising government-owned property. One opposition group has issued a call for people to “be prepared to defend themselves” at the next protest – planned to be huge. The demonstrators also say the next protest will include halting public transport, and they demand only the government’s resignation. The Minister for Public Order bans any further large demonstrations for 3 months, and instructs the police to arrest anyone who defies the order.
- Justified
- Not justified
- Need more information
Answer: Probably not justified, but we might need more information. The right to peaceful assembly is guaranteed in Article 21 of the ICCPR, but, like freedom of expression, it is not absolute. Large protest rallies usually require permits, if only to allow the police to manage traffic and other concerns. You can’t demand a right to protest in the middle of a motorway, or on someone’s private land. Further, maintaining “public order”, and “public safety” are both stated as legitimate reasons in the ICCPR for restricting the right of peaceful assembly. On the other hand, usually these concerns can be met by agreeing terms for the holding of rallies – an outright ban seems to be too sweeping a response to what might be the government’s legitimate concerns. However, is the threat of violence serious? Has the government tried and failed to get the protest organisers to agree on some conditions regarding their rallies?