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 21 st 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?