Human Rights vs Security: Democracies' difficult fork in a road
Updated: Jan 20, 2020
Written by: Marzia Marastoni
There are some exceptional situations where states can restrict or, in time of “public emergency”, suspend certain rights. For instance, Art. 15 of the European Convention on Human Rights provides that governments of the States Members have the possibility of derogating from certain rights and freedoms. This States’ right can be invoked only in certain circumstances, which, as outlined by the European Convention on Human Rights in article 15, includes: “in time of war and other public emergency threatening the life of the nation.”
Significantly, thanks to the doctrine of the margin of appreciation, national governments decide autonomously whether there is a state of emergency. Whereas, following the ECHR, the European Court of Human Rights would only have the final assessment to check the compatibility between States’ individual determination and the Convention’s standards.
With this in mind, we can see that the suspension of rights and liberties in the state of emergencies represents a difficult fork in a road. Is it the only way that States have to protect their own citizens, or it is fundamentally undemocratic?
As far as I am concerned, States have a negative duty [i.e. an obligation that prohibits us from doing something morally bad] to respect the moral equality of citizens/non-citizens. Consequently, I believe that treating others with special types of exclusion is an instance of morally unequal treatment. In light of this view, several important questions arise, i.e. does profiling of certain groups, e.g. young men of North Africa, violate their moral rights? Is this violation an offence to equality? Is it a violation of human rights? Is it necessarily stigmatising even if it is statistically significant that those committing terrorist acts overwhelmingly belong to this social category? Let me illustrate this point with an example.
Following the terrorist attacks of November 13, 2015, François Holland declared: “France is at war.” Interestingly, this alleged war seems to be between the values, the cultures and the people of France –the so-called birthplace of human rights– and the terrorists, who, in Holland’s words, are nothing more than “cowards who fired on an unarmed crowd.” Therefore, after the terrorist attacks of November 2015, the President of France declared a state of emergency, placing under house arrest more than 104 people. In addition, Holland declared his decision to extend the state of emergency to three months. This resolution, according to Holland, seemed fundamental not only to combat terrorism, but also to eradicate it. Yet, according to the Human Rights Watch, the government of France –as of February 2, 2016– ordered 3,289 searches, of which only five investigations into terrorism-related offences were being conducted by the Paris prosecutor’s office. Furthermore, it has been reported that the government ordered between 350 and 400 house arrests. Moreover, Human Rights Watch reported that those targeted by the police felt like “second-class citizens.” Rushing into houses, or mosques, or restaurants; terrifying children; breaking personal belongings: all acts justified by the state of emergency law.
Did France commit a moral wrong in treating others as morally unequal, or were these actions justified in the name of a greater good: the fight against terrorism?