The European Convention on Human Rights, the Fight Against Terrorism and the Ticking Bomb Situation

THE EUROPEAN CONVENTION ON HUMAN RIGHTS, THE FIGHT AGAINST TERRORISM AND THE TICKING BOMB SITUATION

Egbert Myjer*

Against the call for so-called ‘tough measures’, few political leaders can ﬁnd the strength and wisdom or indeed the support to ﬁght terrorism while pre- serving the established human rights standards protective system. Repressive sirens will always call for ‘new’ harsh measures to meet these ‘new’ challenges from terrorism and few leaders have the toughness to ‘hold the fort’ in such circumstances. – John Hedigan1

1INTRODUCTION

Lucius Caﬂisch is not fond of vacuous human rights chit-chat. That much has become clear to me in many months of deliberations in the European Court of Human Rights. And although he is never anything less than a gen- tleman in his reactions, his body language does sometimes betray him. His laughter becomes a little more forced, a little more tired; his arms rise a little higher than is his wont. In addition, he has a particular liking for

* Judge at the European Court of Human Rights. Parts of this article have previously been pub- lished in my General Report of a Council of Europe high level seminar on Protecting Human Rights While Fighting Terrorism, Strasbourg, 13-14 June 2005. I wish to express my gratitude to Peter Kempees, senior lawyer (Refrendar) in the Registry of the ECHR, who made valuable comments on the draft version of this article and undertook to correct the original ‘English’ version. Any remaining irregularities concerning the English language are entirely my responsibility. The research for this article was concluded on 1 October 2005. 1 J. Hedigan, “The European Convention on Human Rights and counter-terrorism”, Fordham Int’l LJ, 2005, 392.

Marcelo G. Kohen (ed.), Promoting Justice, Human Rights and Conflict Resolution through International Law / La promotion de la justice, des droits de l’homme et du règlement des conflits par le droit international, Liber Amicorum Lucius Caflisch, pp. 379-397. © 2007 Koninklijke Brill NV, Leiden. Printed in The Netherlands. 380 EGBERT MYJER elegant and limpid phrasing in impeccable French or English. I have there- fore chosen to dedicate to him an essay on a subject that is not altogether too silly to merit his attention, and which I will discuss with reference to a doctrinally unsound example which he may well find irritating. And of course, it is entirely open to him to correct my English as he sees fit.

A. The unsound example

In recent years millions of people all over the world have been watching the American TV-series 24. The series just finished its fourth season. The show description of the fourth season gives a good impression of what 24 is about: “Counter-terrorism agent Jack Bauer fights the bad guys of the world, one day at the time. With episodes unfolding in real time, ‘24’ unfolds one day in the life of Bauer per season. After foiling a political assassination, stopping a nuclear attack and fighting bio-terrorism, season four finds Jack working for the Secretary of Defense (while dating his daughter) as a terrorist sleeper cell in Los Angeles activates a plan it hopes ‘will change the world’.” I must confess that I have only seen season two, in which Agent Bauer had to stop a nuclear attack. Because of the sheer length of the series it took me three days to watch all 24 episodes on DVD. I fear that I have been left with a rather peculiar impression of what might be going on in the United States in a given 24-hour period. In season two, the appealing black president of the United States, David Palmer, feels obliged to have his Chief of Staff tortured in order to get vital information about a ticking nuclear bomb situation. When one of the real bad guys is arrested and refuses to say when the nuclear attack will take place, a mock execution of one of his children is staged in his home country. In order to save the lives of the other two children, the terrorist finally gives in. At some point in the series, a terrorist is warned that if he has not told the whole truth, they will find out in Guantanamo. As far as other interrogations are concerned in these series, it is clear that nobody ever bothers with the privilege against self-incrimination or the notorious “Miranda warnings”. In order to combat terrorists and prevent a ticking nuclear bomb from going off, anything goes. The real good guys are the ever-ethical president, David Palmer, and the tough guy with a golden heart, Jack Bauer.

B. The European Convention of Human Rights and the ﬁght against terrorism (general remarks)

A European version of the same season of 24, properly taking into account the case-law of the European Court of Human Rights (ECrtHR), would