INTRODUCTION
1. Terrorism is not only a global issue but also a trans-borders crime, individual countries and
international organizations should unite fight terrorism, enhance counter-terrorism legislations and state
organs engaged in fighting terror to curb the spreading out of acts of terrorism around the globe.
2. The United Nations General Assembly attempted to provide meaning of what is terrorism, in the
following way; “Criminal acts intended or calculated to provoke a state of terror in the general public, a
group of persons or particular persons for political purposes are in any circumstance unjustifiable,
whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any
other nature that may be invoked to justify them”1.
A. EFFECTIVE COUNTER-TERRORISM MEASURES AND THE PROTECTION OF
HUMAN RIGHTS ARE NOT CONFLICTING GOALS, BUT COMPLEMENTARY AND
MUTUALLY REINFORCING IN NATURE. EXPLAIN
3. Acts of terrorism aim at the destruction of human rights, fundamental freedoms and democracy,
undermine pluralistic civil society and adverse consequences on the economic and social development
of states2.
4. As terrorism involves the use of politically motivated, fear-generated violence to commit criminal
acts aimed at harming innocent individuals for the purpose of coercing governments of societies to take
or refrain from action, it clearly violates fundamental human rights3.
5. Thus, the setting up of effective measures to countering terrorism is one of the ways to ensure the
protection of human rights, as acts of terrorism deprive citizens of the enjoyment of their legal rights.
COUNTER-TERRORISM
6. Protecting civilians from being harmed by acts of terrorism is a duty to all states around the globe.
The states have an obligation to promote and Protect Human Rights and fundamental freedoms while
countering terrorism4.
7. Counter terrorism measures may affect in particular: the presumption of innocence; the right to a
fair trial; freedom from torture, Freedom of thought, Privacy rights; freedom of expression and Peaceful
assembly; and the right to seek asylum. Counter-terrorism measures addressing specific ethnic or
religious groups would also be contrary to human rights law5. According to the council of Europe, All
1
A/RES/49/60 Adopted by the UN General Assembly on 17 Feb 1995, in its point 3.
2
UNODC, Human Rights and Criminal Justice Responses to Terrorism, Counter-terrorism Legal Training Curriculum,
Module 4, Vienna, 2014, p. 5.
3
A/HRC/AC/24/CRP.1, Human Rights Council, Advisory Committee, Negative effects of terrorism on the enjoyment of
th
human rights, Study of the Human Rights Council Advisory Committee, 24 Session of 17-21 Feb 20, p. 8.
4
General Assembly Resolution 59/191 of 10 March 2005, on the Protection of human rights and fundamental freedoms
while countering terrorism, point 11.
5
S. Von Schorlemer, Human Rights: Substantive and Institutional implications of the War Against Terrorism, European
Journal of International Law, 2003, p. 274, accessed at http://www.ejil.org/pdfs/14/2/414.pdf, on 22 Mar 23.
1
measure taken by the states to fight terrorism must respect human rights and the principle of the rule of
law6.
8. The principles and guidelines of the African Commission on Human and people‟s rights, stipulate
that states shall cooperate among themselves in preventing and combating terrorism and
counterterrorism-related human rights violations7.
EFFECTIVE COUNTER TERRORISM MEASURES
9. The link between the guarantee of human rights and the protection from terrorism cannot be
emphasized. Combating and ultimately overcoming terrorism will not succeed if the means to secure
that society are not consistent with human rights standards8.
10. The UN Global counter-terrorism strategy adopted by UN General Assembly Resolution
(A/RES/60/288) of 20 Sept 2006, suggest a good number of strategies and measures to counter
terrorism, including but not limited to;
a. Putting in place measures to address conditions conducive to the spread of terrorism through
social development, social inclusion and poverty reduction, etc.
b. Role of education and public awareness programmes in fostering tolerance for diversity and
breaking stereotypes.
c. Ensuring respect for human rights and the rule of law, including good governance, to address
conditions conducive to the spread of terrorism.
d. Strengthening Coordination and cooperation in combating crimes, and improve border and
customs controls.
e. Strengthening capacity of government institution in preventing and combating terrorism.
B. EXPLAIN THE DIFFERENCE BETWEEN LIMITING FREEDOM OF MOVEMENT
UNDER PARAGRAPH 3 OF ARTICLE 12 OF ICCPR AND DEROGATING FROM ARTICLE 12
OF ICCPR?
11. This question warrants us to differentiate or in other words explain what is meant by limiting and
derogation of human rights/free movement in periods of state emergency, the articles cited below are of
reference.
Article 4 (1). And Articles 12 (3) of the International Covenant on Civil and Political Right.
12. The difference between derogation (art. 12 (3) and limitations (art. 4 (1) as stated in the above
articles by states is very glaring. As concern limitations, a state may way want to limits his citizens let
say by using of freedom of speech and expression in other to curb the rapid spread of terrorism let say
incitement to terrorism, by prohibiting incitement to terrorism, citizens may be stop to express
6 th
Council of Europe, Committee of Ministers, Guidelines of on Human Rights and the fight against terrorism adopt 804
meeting of 11 July 2002, Strasbourg, p. 4.
7
African Union, Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa, p. 30,
accessed at http://caert.org.dz/official-documents/human_rights.pdf, on 22 Mar 23.
8
Organisation for Security and Cooperation in Europe, Countering Terrorism, Protecting Human Rights, Warsaw, 2007, p.
20.
2
themselves as they wish. And it is important to mention that before a state takes such measures, the
state must have in its status books (law) which warrant her do so.
13. They must be aware that restricting free speech not to incite terrorism is a strategy use for the
protection of national security or public order, which are both set out as legitimate grounds which is the
law for the limitation of freedom of expression in case it happens. These limitations are also stated in
article 19 (3) of the International Covenant on Civil and Political Rights9.
14. In addition, however, there will be a need to limit the enjoyment of certain human rights for the
purpose of protecting life of citizens, physical integrity and fundamental freedoms of citizens.
15. Prohibiting incitement to terrorism must therefore be limited to what is actually required to protect
public order. The provision, and the way in which it is applied, must be proportionate to the
circumstance.
16. According to the case BRANNIGAN AND McBRIDE V. THE UNITED KINGDOM who “were
detained in early January 1989 very shortly after the Government‟s derogation of 23 December 1988
under Article 15 (art. 15) of the Convention. Their detention lasted for periods of six days, fourteen
hours and thirty minutes, and four days, six hours and twenty-five minutes respectively. They
complained of violations of Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) of the Convention.
17. For the Government, it was open to question whether an official proclamation was necessary for
the purposes of Article 4 of the Covenant, since the emergency existed prior to the ratification of the
Covenant by the United Kingdom and has continued to the present day. According to the ICCPR, in its
article 4:
"In time of public emergency which threatens the life of the nation and the existence of which is
officially proclaimed ..."
18. As per the limitations of rights above which have to be stated in the national law, the derogated
nation also has to fulfill some requirement before resorting to a state emergency which are; like the
Existence of public of public emergency laws as stated in question C in the case of Rwanda, Article
136 and 137 respectively, principle of conformity with international obligation, principle of non-
discrimination etc.
19. Finally, there exist a similarity between limitation and derogation, at the level of the principle of
proportionality requires that every limitation or derogation stands in a reasonable ground to the aim
pursue by a limitation, or to the gravity of the emergency threatening the life of the nation respectively.
C. WHAT DOES THE RWANDAN CONSTITUTION SAY ABOUT DEROGATION OF SOME
HUMAN RIGHTS AND IN WHAT SITUATIONS IT APPLIES? ARE ANY RIGHTS
ESTABLISHED AS ABSOLUTE? ARE ANY RIGHTS ESTABLISHED AS NON-DEROGABLE?
20. Respect for human rights and fundamental freedoms is the rule; derogations are an exception to the
rule. Some rights, for example the right to life, freedom of thought, conscience and religion, and
freedom from torture or cruel, inhuman or degrading treatment, and the principles of the precision and
non-retroactivity of criminal law, may not be derogated from at all10.
9
Office of the High Commission for Human Rights, Human Rights, Terrorism and Counter-terrorism, Fact Sheet No. 32
10
Idem, Human Rights: Substantive and Institutional implications of the War Against Terrorism, p. 278.
3
21. The Rwandan Constitution of 2003 revised in 2015, provided different situations whereby rights
can be derogated, however some other rights are considered as absolute and cannot be derogated from
at all.
DEROGATION OF SOME HUMAN RIGHTS
22. The Rwandan Constitution of 2003 revised in 2015, provides the derogations as follows:
a. In its article 41: Limitation of rights and freedoms, “In exercising rights and freedoms, everyone
is subject only to limitations provided for by the law aimed at ensuring recognition and respect of
other people‟s rights and freedoms, as well as public morals, public order and social welfare which
generally characterise a democratic society.”
b. In its article 136: State of Siege and state of Emergency, para. 2 saying “A declaration of a state
of siege or a state of emergency must be clearly justified, specify the part of national territory to
which it applies and its consequences, indicate the rights, freedoms and guarantees provided by law
that are suspended and the duration of the state of siege or state of emergency which may not exceed
a period of fifteen (15) days.”
ABSOLUTE RIGHTS
23. The Rwandan Constitution of 2003 revised in 2015, provide:
a. In its article 12: Right to life, “Everyone has the right to life. No one shall be arbitrarily
deprived of life. (Right to Life);
b. In its article 14: Right to physical and mental integrity, “Everyone has the right to physical and
mental integrity. No one shall be subject to torture of physical abuse, or cruel, inhuman or degrading
treatment. (Freedom from Torture);
c. In its article 24: Right to liberty and security of person, para. 2; “No one shall be subjected to
prosecution, arrest, detention or punishment unless provided for by laws in force at the time the
offence was committed.” (Non-retroactivity of criminal law);
d. In its article 37: Freedom of conscience and religion, “Freedom of thought, conscience,
religion, worship and public manifestation thereof is guaranteed by the state in accordance with the
law.” (Freedom of thought, conscience and religion).
RIGHTS ESTABLISHED BY THE CONSITUTION AS NON-DEROGABLE RIGHTS
24. The Rwandan Constitution of 2003 revised in 2015, establishes the non-derogable rights as follow:
a. Rights to life and physical integrity of the person;
b. Rights accorded to people by law in relation to their status, capacity and nationality;
c. The principle of non-retroactivity of criminal law;
d. The right to defence and freedom of conscience and religion.
25. Pursuant to the Rwanda Constitution, in its article 136, para. 6: “A declaration of a state of siege or
state of emergency cannot under any circumstances violate the right to life and physical integrity of the
person, the rights accorded to people by law in relation to their status, capacity and nationality; the
4
principle of non-retroactivity of criminal law, the right to defence and freedom of conscience and
religion.”
26. Furthermore, the constitution also in a state of siege or state of emergency made the powers vested
on the President of the Republic, the Prime Minister, the Parliament or the Supreme Court nor can it
modify the principles relating to the responsibility of the State and public officials provided for in this
Constitution absolute/non-derogable. We realized that the sited article made mention of a state of siege
and a state of Emergency, we deem it necessary to bring out the difference between the two.
27. A state of siege is most of the time declared when there is an external aggression, that is an external
power aggression in another state or Rwanda in this case, Rwanda can declare a state of siege. As
concerns a state of Emergency this is when there is a disaster that have occurred let say in Rwanda and
the Rwandan Government will call for a state of Emergency.
28. The difference between this two rights is that, generally, non-derogable rights cannot be suspended,
but exceptionally some of these non-derogable rights can still be derogated for instance Article 6 of the
ICCPR11, which protects the right to life, is a good exemple, non-derogable right. This right, however,
is expressed in the ICCPR as freedom from „‟arbitrary‟‟ deprivation of life. The use of the word
'arbitrary' indicates that circumstances may justify the taking of life, where necessary, reasonable and
proportionate e.g the death penalty in the US and other states. Whilst some of the most fundamental
human rights are “absolute”.
29. The absoluteness of these rights means that it is not permitted to restrict these rights by quitting
their enjoyment against the pursuit of a legitimate aim. Per article 2 of the United Nations Convention
against Torture, “no exceptional circumstances whatsoever, is provided whether a state of war or a
threat of war, internal political instability or any other public emergency, may be invoked as a
justification of torture”12. Article 3 of the European Convention on Human Rights13 is also important as
concerns absolute rights.
11
Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16
December 1966, entry into force 23 March 1976, in accordance with Article 49. International Covenant on Civil and
political Rights.
12
United Nation on drugs and crime, Human Rights and Criminal Justice Responses to Terrorism, New York 2014,
Publishing and Library Section, United Nations Office at Vienna.
13
Natasa Mavronicola, Whatisan„absoluteright‟? DecipheringAbsolutenessin theContextofArticle3ofthe
EuropeanConventionon HumanRights, 30 November 2012, Published by Oxford University Press.
