Chapter 7: Protection of human rights during state of emergency, Armed conflict.

Chapter 7: Protection of human rights during state of emergency, Armed conflict.

A. Definition of state of emergency: 

• It is a situation in which the government performs actions which normally are not permitted.
• It's a declaration of alert to citizens to change their normal behavior and an aware government to take immediate actions.
• It offers special power to police or army to hold more power. 
• It is an extreme condition resulting from civil disorder, war, conflict, natural disaster, economic crisis and pandemic.
• It should be declared by the State according to law. 
• It is a situation where the state has suffered and needs aid.
• It enables authority to make resources immediately available to rescue, evacuate, shelter and to provide essential commodities.

Principles of state of emergency: 

1. Temporality: it must be imposed for a short period of time.
2. Exceptional threat: means state must have reasonable threat to declare it. 
3. Declaration: government must declare it publicly.
4. Communication: to other states, treaty monitoring bodies and the United nation. 
5. Proportional: it must be proportional to the gravity of the situation. 
6. Legality: declaration must have to be done according to law because it suspended the rights of citizens.
7. Intangibility: means non-derogable fundamental rights must be executed.

B. Procedural requirement for state of emergency: 

1. Government of state must declare it according to law.
2. The country's National legislation have provisions regarding announcement of it.
3. Moreover, international norms are also set to declare it.

Provisions to declare a state of emergency in the Nepalese constitution. (Part 30, article 273: Emergency power:

Article 273: Emergency power: (Important for human rights also)

1.    Declaration: The President of Nepal can declare a state of emergency for the entire country or specific parts if there are serious threats to sovereignty, territorial integrity, security, war, external aggression, armed rebellion, extreme economic disarray, natural calamity, or epidemic.

2.     State Government Request: If a state experiences a grave emergency due to a natural calamity or epidemic, the state government can request the federal government to declare a state of emergency for the entire state or specific parts.

3.     Parliamentary Approval: A declaration of emergency must be presented to both Houses of the Federal Parliament within one month for approval.

4.     Approval Duration: If two-thirds of the total members of both Houses approve the declaration, it remains in effect for three months from the date of issuance.

5.     Disapproval Consequence: If the declaration is not approved as stipulated, it becomes inoperative automatically.

6.     Extension Motion: Before the three-month period expires, a motion to extend the state of emergency for an additional three months can be submitted to the Federal Parliament.

7.     Extension Approval: If the extension motion is passed by a two-thirds majority of both Houses, the emergency continues for the period specified in the motion.

8.     National Assembly Role: If the House of Representatives is dissolved, the National Assembly exercises the powers of the Federal Parliament regarding emergency declarations and extensions. 

9.     Presidential Orders: During a state of emergency, the President can issue necessary orders, which have the force of law as long as the emergency is in effect.

10.  Suspension of Fundamental Rights: Fundamental rights may be suspended during an emergency, except for specific articles related to rights such as Article 16, parts of Article 17, Article 18, etc.

11.  Restriction on Legal Petitions: No petitions can be filed in any court to enforce suspended fundamental rights, nor can questions about them be raised in court.

12.  Compensation for Injury: If a person is injured by an official’s act in bad faith during the emergency, they can file for compensation within three months after the emergency ends. The court can order compensation and punishment for the perpetrator according to federal law.

13.  Emergency Withdrawal: The President can withdraw the state of emergency at any time.

C. Non derogable and derogable human rights and state obligation during state of emergency.

Article 273(10) of Constitution of Nepal provides the list of such rights, which are,

Article 4 of ICCPR; provide Conditions to Derogate Rights (except mentioned in Article 4(2)) enshrined in this covenant:

1. Existence of a Public Emergency:
   • The emergency must be officially proclaimed.
   • The situation must threaten the life of the nation.
2. Necessity and Proportionality:
   • Measures must be strictly required by the exigencies of the situation.
   • Actions taken should be proportional to the severity of the emergency.
3. Consistency with International Obligations:
   • Measures must not be inconsistent with the state's other obligations under international law.
4. Non-Discrimination:
   • Actions must not involve discrimination solely on the grounds of race, color, sex, language, religion, or social origin.

Article 4 (2) of ICCPR: No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision. 

• Article 6: inherent right to life. 
• Article 7: prohibition of torture.
• Article 8: freedom from slavery, slave trade and servitude.
• Article 11: prohibition of imprisonment because of inability to fulfill a obligations. (No imprisonment in civil liability) 
• Article 15: freedom from post facto legislation and other judicial guarantee. (No law, no crime.)
• Article 16: right to recognition before law. 
• Article 18: freedom of thought on science and religion.

State derogating such rights should communicate to other states through the UN secretary general regarding the derogation with reasonable explanation.

Human rights committee general comment number 29 on state of emergency (2001):

• Some rights of several humanitarian provision that must not be violated are:

1. Humane treatment to persons deprived of Liberty.
2. Prohibition on hostage taking. 
3. Protection of people of minorities. 
4. Prohibition of propaganda advocating war, conflict and religious or social hatred. 
5. Procedural guarantee in enhancing the integrity of judicial system.

Protection of human Rights vulnerable group in armed conflict: 

• Vulnerable groups in armed conflict include women, children, minority, refugee, alien and journalist.

   

Protection women and children: 

1. Article 12 of Geneva convention provides; women to be treated with all considerations. 
2. Common article 3 of GC: provides protection without any adverse distinction (sex discrimination).
3. Article 16 of Geneva convention IV; provide protection and respect to the mothers. 
4. Article 27 of Geneva convention IV women shall be protected against any attack on their honor, rape, assault or enforce prostitution.
5. Article 97 general convention IV; A woman shall not be searched except by women.
6. Article 89 of Geneva convention IV; children under 13 years of age shall be given additional food.
7. Article 77 of Geneva convention IV; protection of children. 

Protection of alien (foreigners): 

• Article 38 of Geneva convention IV: the following rights shall be granted to them:
• They shall be enabled to receive the individual or collective relief that may be sent to them.
• They shall, if their state of health so requires, receive medical attention and hospital treatment to the same extent as the    nationals of the State concerned.
• They shall be allowed to practice their religion and to receive spiritual assistance from ministers of their faith.
• If they reside in an area particularly exposed to the dangers of war, they shall be authorized to move from that area to the same extent as the nationals of the State concerned.

• Children under fifteen years, pregnant women and mothers of children under seven years shall benefit by any preferential treatment to the same extent as the nationals of the State concerned.

                                                                                                                                                                              Prepared and Edited by: Madhu Dahal and Manish Rajak.