National security
Training workshop on media and
freedom of expression law
Derogation from rights
Article 4 of the ICCPR (and Art. 15 of ECHR and
Art. 27 of ACHR) allows derogation from some
rights “in time of public emergency which
threatens the life of the nation.”
Freedom of expression is one such right.
Derogation is only permitted in the most extreme
circumstances:
• During a crisis that “threatens the life of the nation”
• Emergency declared by law
In addition, there are strict procedural guarantees:
• Derogations must be notified to other States Parties of the
ICCPR
• Proportionate restrictions
• Non-discriminatory
Proportionality suggests that no right may be totally
inapplicable
National security is one of the grounds for
limiting freedom of expression in Article 19(3) of
the ICCPR.
But what is “national security” (and how is this
concept misused)? Discuss.
“… to protect a country's existence or its
territorial integrity against the use or threat of
force, or its capacity to respond to the use or
threat of force, whether from an external
source, such as a military threat, or an internal
source, such as incitement to violent overthrow
of the government.”
(Johannesburg Principles)
Not:
“to protect a government from embarrassment
or exposure of wrongdoing, or to conceal
information about the functioning of its public
institutions, or to entrench a particular ideology,
or to suppress industrial unrest.”
So:
There is such a thing as a genuine national
security interest, but it is narrowly defined.
There must be an actual threat of harm to a
national security interest before the freedom of
expression can be restricted.
Point for discussion
How might media reporting help in
strengthening national security?
Can you think of examples?
“Paramount among the responsibilities of a free press is
the duty to prevent any part of the government from
deceiving the people and sending them off to distant
lands to die of foreign fevers and foreign shot and shell. …
Far from deserving condemnation for their courageous
reporting, the New York Times, the Washington Post, and
other newspapers should be commended [for] revealing
the workings of government that led to the Vietnam war.”
(US Supreme Court in the Pentagon Papers case)
Terrorism
Terrorism is regarded as one of the most
common threats to national security in the 21st
century.
One problem is the absence of a clear, agreed
definition of “terrorism” in international law.
(National definitions are often over-restrictive.)
The UN Special Rapporteur on protecting human
rights while combatting terrorism has proposed
the definition on the next slide.
What do you think?
Terrorism means an action or attempted action where:
1. The action:
(a) Constituted the intentional taking of hostages; or
(b) Is intended to cause death or serious bodily injury to one or more
members of the general population or segments of it; or
(c) Involved lethal or serious physical violence against one or more members of the general population
or segments of it; and
2. The action is done or attempted with the intention of:
(a) Provoking a state of terror in the general public or a segment of it; or
(b) Compelling a Government or international organization to do or abstain from doing something; and
3. The action corresponds to:
(a) The definition of a serious offence in national law, enacted for the purpose of complying with
international conventions and protocols relating to terrorism or with resolutions of the Security Council
relating to terrorism; or
(b) All elements of a serious crime defined by national law.
Another problem with anti-terrorism as a
grounds for limiting freedom of expression, is
that the UN Security Council has called on states
to:
Prohibit by law incitement to commit a terrorist act
or acts (Resolution 1624).
However, three qualifications should be borne in
mind:
• Resolution 1624 is non-binding.
• “Glorification” of terrorism should only apply
when it has the effect of inciting terrorist acts.
• The preamble to Resolution 1624 explicitly
states that this should be understood
consistently with the right to freedom of
expression.
“Prescribed by law”
National security restrictions are often imprecise
– and so do not meet the “prescribed by law”
standard.
“False news” provisions are typically vague and
restrictive (see what the Zimbabwe Supreme
Court had to say in the case of Chavunduka and
Choto).
Necessity
Most national security cases tend to be decided
on the “necessity” leg of the three-part test.
Very often the restriction is disproportionate to
the national security interest involved (see the
various Turkish cases before the ECtHR).
Hypothetical case for
discussion
Your client is a magazine that has published an article about
the standard issue infantry rifle of your country’s army. Using
first-hand (anonymous) testimony from serving soldiers, as
well as interviews with experts, the article demonstrates that
the rifle has serious shortcomings. It easily becomes
overheated and jams, placing the lives of its users in danger in
situations of combat.
The editor of the magazine and the author of the article are
charged under the country’s secrets law and accused of
endangering national security. What lines of argument would
you use in their defence?