A review of “The Council of Europe and Human Rights” by Martyn Bond (Council of Europe Publishing, 2010)
In 1988 a British army special forces unit acting on information from intelligence reports tracked a group of three known Irish Republican Army (IRA) terrorists to Gibraltar and kept them under surveillance until, convinced that they were about to explode a bomb which would have caused the deaths of innocent civilians the soldiers opened fire, killing all three. Questions were immediately asked about the legality of their deaths. No explosives or detonators were found on their bodies, nor in their car, so were the three men truly planning an act of terrorism? Or had the soldiers acted too hastily?
The incident involved United Kingdom forces acting under orders in a United Kingdom sovereign territory so it might be thought that the British courts alone could settle the matter but the victim’s families appealed to the European Court of Human Rights, claiming that the killings were in contravention of Article 2 of the European Convention on Human Rights which specifies that “No-one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction for which this penalty is provided by law.” As the three IRA men had, prior to the shooting, been neither tried nor sentenced by any court, their deaths could therefore be deemed unlawful.
This is one of several cases discussed by Martyn Bond in his short but fascinating book The Council of Europe and Human Rights, (Council of Europe Publishing, 2010:: €6) which describes in layman’s terms both the work of the Court and the origin and scope of the Convention itself. This book, unlike many on this subject, does not delve into the underlying philosophy of human rights but is strictly practical in its approach. After a brief introduction Martyn Bond plunges directly into an examination of twelve cases on which the Court has pronounced, each based on a different Convention article and which together demonstrate the on-going evolution of human rights law.
Whether a democracy requires such a Convention or Charter of Rights has often been contested. As early as 1788 Alexander Hamilton wrote in The Federalist Papers, No.84 that while the rights agreed in Magna Charta had to be forcibly “obtained by the barons, sword in hand, from King John” such desperate measures “have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants.” Yet only three years later the Americans themselves found it necessary to produce their own Bill of Rights whose ten articles were then incorporated into their constitution.
Experience has shown in fact that a clear statement of rights is a useful way of setting easily understood limits to state action and establishing standards against which both draft legislation and judicial decisions can be measured. One of the first acts of the United Nations Organisation, established in 1945, was therefore to draw up the Universal Declaration of Human Rights (UDHR) whose opening words assert that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”
In war-torn Europe at that date these words had a particular resonance. So many democracies had collapsed into barbaric dictatorships that the need for an enforcible supra-national statement of the principles on which a modern, civilised society should be based became increasingly recognised. Evidence of the Nazis’ despicable treatment of Jews, gypsies,and homosexuals, leading directly to mass murder and the extermination camps, was fresh in people’s minds. Against this background the 1948 European Congress in the Hague, chaired by Winston Churchill, agreed to establish a Council of Europe whose primary task would be the promotion of democracy and respect for human rights throughout our continent, at least in those countries not occupied by the Soviet Union.
This first deliberate step towards a sharing of sovereignty was strengthened by the Council’s decision to draw up the European Convention on Human Rights (ECHR), some of whose articles were based on the Universal Declaration, and also to establish the supranational European Court of Human Rights whose judges are drawn from the member states.
Martyn Bond usefully summarises the rights agreed by the member states as set out in the Convention and also examines twelve specific cases in which plaintifs have called on the Court to rule against verdicts of their own national courts. The judgments have upheld the right to a fair trial, privacy, liberty, security, freedom of assembly and other democratic principles. On more than one occasion these cases have resulted in new protocols being added to the ECHR or to changes in a member state’s domestic law and administrative practices, thus demonstrating how agreed international principles can work to the advantage of member states’ citizens.
In a chapter entitled The broader picture of European human rights the book outlines other important aspects of the Council of Europe’s diverse work in the promotion of a fairer and more democratic Europe, such as its varied commissions and specialist committees promoting action against racism, the use of torture, and other key issues. Much of this activity receives very little press publicity and Martyn Bond’s summary is therefore specially valuable. In effect, through the influence of the Human Rights Convention and the work of the Human Rights Court a new political morality is taking shape in Europe.
A final intriguing section of the book suggests that the EU itself should apply for membership of the Council of Europe, pointing out that this is now possible under the Lisbon Treaty. All the 27 EU member states are, separately, already Council of Europe members and in fact all new countries applying for EU membership must first join the Council of Europe. The end result, the book suggests, would be “a more comprehensive protection of human rights across Europe, strengthening the field of application of the ECHR and the role of the European Court of Human Rights”. The idea certainly deserves further examination.
Meanwhile, it is worth returning briefly to the Court’s decision in the case of the Gibraltar killings. It ruled that when the soldiers opened fire they honestly believed that the terrorists were about to explode a bomb. Their action was therefore justifiable and did not constitute a violation of Article 2 of the Convention. But in its ruling the Court also raised one critical question: namely, if the British authorities knew these men were so dangerous why were they not stopped long before they reached Gibraltar?
There are those who challenge the whole concept of human rights and prefer to speak of duties, thereby shifting the perspective. Others would insist that citizenship and rights go hand-in-hand. This book spells out how states working together can agree to uphold certain standards from which everyone can benefit. It is reminiscent of Immanuel Kant’s late 18th century statement that “it is not at all clear on what I can base my confidence in my own rights unless it be the free federation, the surrogate of the civil social order which reason necessarily associates with the concept of the law of nations.”
John Parry, November 2010
¤ ¤ ¤
To order a copy of the book, click here: http://book.coe.int/EN/ficheouvrage.php?PAGEID=36&lang=EN&produit_aliasid=2507