What is a state of emergency? What is a state of emergency? A state of emergency derives from a governmental What are the key components of declaration made in response to an extraordinary situation a state of emergency? posing a fundamental threat to the country. Why is this issue important? The declaration may suspend certain normal functions of government, may alert citizens to alter their normal What essential principles must be behaviour, or may authorise government agencies to implement emergency preparedness plans as well as to limit respected during emergency rule? or suspend civil liberties and human rights. Which human rights cannot be The need to declare a state of emergency may arise from limited even in the event of a situations as diverse as an armed action against the state by internal or external elements, a natural disaster, civil unrest, state of emergency? an epidemic, a financial or economic crisis or a general strike. What special powers can be States of emergency are not uncommon occurrences, proclaimed in a state or particularly in dictatorial regimes where the state of emergency? emergency may endure as long as the regime lasts. In some situations, martial law is also declared, allowing the military What mechanisms and greater authority to act. approaches can help guard Other terms for referring to emergency situations are state against the abuse of emergency of exception, state of alarm and state of siege. powers? Which branch of government can What are the key components of a declare a state of emergency? state of emergency? States of emergency have two components: Related Issues • a legal framework consisting of the constitutional and legislative bases for the state of emergency, and Further Information • an operational framework involving the organisational structure and strategic plans for dealing with the state of emergency. While separate, these components must be compatible; in other words, the legal framework must take into account operational requirements, and the operational requirements The DCAF Backgrounder series provides must respect the legal framework, including international practitioners with concise introductions to a law. variety of issues in the field of security sector governance and reform. Focusing on the legal framework, this backgrounder will deal with democratic accountability, human rights and the rule of law during states of emergency.

Why is this issue important? DCAF The implementation of emergency law invariably leads to restrictions on normal economic, civil or political activity and rights in order to address the extraordinary circumstances that have given rise to the emergency situation. Certain restrictions may be fully justified. At the same time, there is a danger that a government will take advantage of a state of emergency to introduce unwarranted restrictions on human rights and counter the crisis must be proportional to civil liberties, to neutralise political opponents, the gravity of the emergency situation; this to postpone elections, or for other self-serving applies to the area of application, their purposes that would be more difficult to pursue material content and their duration. under normal circumstances. • legality: human rights and fundamental In some countries, there has been a tendency to freedoms during a state of emergency must maintain states of emergency for years or even respect the limits provided for by the decades, long after the original reason for its relevant instruments of international and proclamation has disappeared. The danger that national law; furthermore, a state of emer- a “constitutional dictatorship” can arise out of gency does not imply a temporary suspension a state of emergency should not be under- of the rule of law, nor does it authorise those stated. in power to act in disregard of the principle of legality, by which they are bound at all What essential principles must be times. respected during emergency rule? • intangibility: this concerns the fundamental rights from which there can be no deroga- A country’s constitution or legislation normally tion, even during times of emergency. describes the circumstances that can give rise to a state of emergency, identifies the proce- dures to be followed, and specifies limits on the Which human rights cannot be emergency powers that may be invoked or the limited even in the event of a rights that can be suspended. While each coun- state of emergency? try will want to define its own practices, inter- national norms have developed that can pro- Certain human rights are non-derogable under vide useful guidance. For example, important any circumstances. The ECHR and the ICCPR international treaties such as the European identify these rights as follows: Convention of Human Rights and Fundamental • the right to life Freedoms (ECHR) and the International Cov- • prohibition of torture enant on Civil and Political Rights (ICCPR) stipu- late that states are to observe the following • freedom from slavery principles. • freedom from post facto legislation and • temporality: this refers to the exceptional other judicial guarantees nature of the declaration of a state of emer- • the right to recognition before the law gency • freedom of thought, conscience and religion. • exceptional threat: the crisis must present The UN Human Rights Committee has recog- a real, current or at least an imminent nised that, in addition to the non-derogable danger to the community rights listed above, there are several other • declaration: the state of emergency must be humanitarian provisions that must remain announced publicly; this informs citizens of inviolable. the legal situation and reduces the possibil- • the humane treatment of all persons ity of a de facto state of emergency, that is, deprived of their liberty a situation whereby the state restricts human rights without officially proclaiming a • prohibitions against hostage-taking and state of emergency unacknowledged incarceration • communication: notification of the mea- • protection of the rights of persons belonging sures taken must be made to other states to minorities and relevant treaty-monitoring bodies; for • the prohibition of propaganda advocating example, if a state is to derogate from its war or national, racial, or religious hatred obligations under the ECHR or ICCPR then it • procedural guarantees and safeguards must inform the Secretary General of respec- designed to ensure the integrity of the judi- tively the Council of Europe or the UN of its cial system. derogation, the measures it has taken and the reasons therefore, as well as the termi- nation of the derogation. • proportionality: the measures taken to 2 What special powers can be supremacy over the security sector may be at proclaimed in a state or emergency? risk. Special emergency powers are granted to the Whatever the emergency situation, the post hoc government by virtue of the constitution or accountability powers of parliament, i.e. the statutory laws. Examples of emergency mea- right to conduct inquiries and investigations on sures or powers range widely, for example: the execution of emergency powers ought to be guaranteed by law. This is important for both • the restriction of press freedom and the pro- assessing government behaviour and identifying hibition of public meetings lessons learned with a view to future emergen- • domestic deployment of the armed forces cies. • evacuation of people from their homes and The role of the judicial system places of work The judicial system must continue to ensure the • searches of homes and other private places right to fair trial. It also must provide individuals without a warrant; arrests without charges with an effective means of recourse in the event • confiscation of private property (with or that government officials violate their human without compensation) and/or its destruc- rights. tion In order to guard against infringement of non- • regulation of the operations of private enter- derogable rights, the right to take proceedings prise; interference with financial transac- before a court on questions relating to the law- tions and export regulations fulness of emergency measures must be safe- • special legislation to punish non-compliance guarded through independence of the judiciary. with emergency regulations. The courts can play a major role in decisions In some countries (e.g., the UK), special judi- concerning the legality of a declaration of a cial bodies may be set up during the emergency state of emergency as well as in reviewing the situation, whereas in other countries (e.g., legality of specific emergency measures. Germany), extraordinary judicial bodies are The role of civil society forbidden. An emergency situation exerts enormous pres- In a state of emergency, responsibility for gov- sure on state and society. To deal with it effec- ernment must remain with civilian authorities tively, governments need the cooperation of on the national and local level. Security forces their citizens. Any abuse or unwarranted limita- assist the civilian authorities in a subsidiary tion of human rights in such a situation will role. undermine that cooperation and make it more difficult to surmount the emergency situation. A What mechanisms and approaches can state has a vital interest in dealing with a state help guard against the abuse of emer- of emergency in an accountable and responsible manner. gency powers? The role for neighbouring states and the The role of parliament international community Most legal systems ensure that the executive Emergency situations may also affect the rela- does not have sole authority to declare a state tions of a state with its neighbours and have of emergency and provide for parliamentary implications for the international community. All ratification of the decision of the executive – states should have an interest in ensuring that often, with a qualified vote. As a general rule, the declaration and implementation of states of governments, checked by parliament, must emergency are subject to certain limitations and provide a well-considered justification for both proceed in accordance with international norms. their decision to declare a state of emergency and the specific measures to address the situa- The international community needs to be tion. actively engaged in ensuring that governments observe these norms. In particular, it must work Most parliaments also have the power to review with concerned governments to secure a swift the state of emergency at regular intervals and return to normalcy and the restoration of the to suspend it as necessary. This parliamentary constitutional order in which rights can again role is especially important in long-lasting states be fully ensured. of exception, where the principle of civilian

3 Which branch of government can declare Related Issues a state of emergency? • civil emergency planning Most states have legal mechanisms governing • parliamentary oversight of the security the declaration of a state of emergency and the sector implementation of derogations. As concerns the • human rights and the security sector prerogative to declare a state of emergency, the three most common approaches are the • cooperation, coordination and communica- following: tion within the security sector • The executive declares the state of emer- gency and is obliged to inform parliament Further Information within a specified period of time (e.g. US) ‘The Emergency Constitution’ • The executive declares the state of emer- www.yalelawjournal.org/pdf/113-5/ gency but must have this ratified by parlia- Ackerman%20FINAL.pdf ment before it can proceed with emergency Parliamentary Oversight of the Security Sector: measures (e.g. Germany) Principles, Mechanisms and Practices • Parliament itself declares the state of emer- http://www.dcaf.ch/oversight/ gency (e.g. Hungary) Convention against Torture and Other Cruel, Typically, a state of emergency empowers the Inhuman or Degrading Treatment or Punishment executive to name coordinating officials to deal www. unhchr.ch/html/menu3/b/h_cat39.htm with the emergency and to override normal European Convention on Human Rights administrative processes regarding the passage www.hri.org/docs/ECHR50.html of administrative rules. International Covenant on Civil and Political Rights (ICCPR), particularly Article 4

This DCAF Backgrounder was prepared by the Centre’s Security Sector Reform Working Group, in conjunction with Hans Born, Ingrid Beutler, and Thorsten Wetzling. The document was edited by David Law and Jason Powers. Other Backgrounders are available at www.dcaf.ch/publications/backgrounders

The Geneva Centre for the Democratic Control of Armed Forces (DCAF) works with governments and civil society to foster and strengthen the democratic and civilian control of security sector organisations such as police, intelli- gence agencies, border security services, paramilitary forces, and armed forces.

The Centre conducts research to identify the central challenges in democratic governance of the security sector, and to collect those practices best suited to meet these challenges. DCAF provides advisory programmes and prac- tical work assistance to all interested parties, most commonly to governments, parliaments, military authorities, and international organisations.

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