Friday, March 17, 2006

Rights and Power

This week’s decision of the European Court of Human Rights (Fourth Section) concerning Application no. 23276/04 by Saddam Hussein draws our attention to some characteristics of rights and jurisdiction.

Ideally, human rights should be enjoyed by everyone, no matter where they happen to be. Rights, however, mean nothing unless they can be enforced. Enforcement involves an assertion and exercise of jurisdiction by an authority with power. Rights ultimately depend on power.

It was argued for the Applicant that he had rights under the European Convention on Human Rights, because he was arrested in an area where jurisdiction was exercised by countries, as part of a coalition, that included countries that are bound by the Convention:

"He maintained that he fell within the jurisdiction of all the respondent States because they were the occupying powers in Iraq, because he was under their direct authority and control or because they were responsible for the acts of their agents abroad. He further argued that he remained within their jurisdiction following the transfer of authority, and his transfer, to the Iraqi authorities in June 2004 because the respondent States remained in de facto control in Iraq."

The Court rejected these submissions because they were not substantiated by evidence of the kind of power and control necessary to establish jurisdiction.

The sort of argument advanced in this case calls to mind the current international expansion of criminal jurisdiction without there being a need for territorial control. There are now numerous examples. One in New Zealand law is s 12C of the Misuse of Drugs Act 1975, which provides that every person commits an offence against this Act who, outside New Zealand, does or omits to do any act that would, if done or omitted in New Zealand, constitute an offence against s 6 (dealing with controlled drugs), s 9 (cultivation of prohibited plants), s 12A (manufacturing, producing, supplying equipment or precursor substances for use in manufacturing or cultivating), s 12AB (knowingly importing or exporting precursor substances for unlawful use), or s 12B (laundering proceeds of drug offences). Consequently, courts in New Zealand have jurisdiction over the proscribed behaviour no matter where in the world it occurs. The offender need not be a New Zealander, and the offence need have nothing to do with New Zealand. Once the offender is in New Zealand territory he can be charged. See also s 7A of the Crimes Act 1961 for other examples of this sort of extension of jurisdiction.

Jurisdiction to punish does not, as these examples show, depend on the exercise of territorial control. Are rights limited by territorial control?

If an Iraqi committed in Iraq what we in New Zealand call a drug dealing offence, and then came to New Zealand, it is likely that he would enjoy the protection of our Bill of Rights, and of the International Covenant on Civil and Political Rights, to which New Zealand is a signatory. So, if evidence had been obtained against him in Iraq by methods that would have contravened his rights if he were in New Zealand, a court in New Zealand would apply New Zealand law to determine the admissibility of that evidence on a charge for the offending against s 12C.

For an analogous illustration, see the rejection by English courts of evidence obtained by torture, including torture in a foreign country, discussed in these blogs on 11 August 2004.

In this sense, then, rights do extend beyond the limits of territorial control of the State in which they may be recognised. Was the European Court wrong to require a demonstration of power and control by the respondent States?

The difficulty faced by the Applicant is that the power to try him is asserted by the Iraqi Government, the existence of which is endorsed by the UN Security Council, and that Government is not a party to the ECHR which establishes an obligation to enforce the rights on which he sought to rely. To enforce those rights, the Applicant would have to be tried by a court in one of the respondent States.

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