My aim here is to describe the legal instruments under international laws and conventions, to see how far they do secure protection of individuals’ rights, and to compare them with corresponding Islamic notions which have been around for 14 centuries. I will focus mainly on the rights and protection available in Europe. Finally, I will compare the different perspectives of an Islamic approach and of modern international law on protecting individuals’ rights from abuse’ by police authorities and agencies. Some of the legal instruments mentioned are non-binding in character -they are nonetheless relevant in establishing the perspective of modern international law.
The Declaration on the Police affirms the necessity of rules of conduct for the police (Preamble para. 2) and condemns any police officers who have violated human rights as unfit to be police officers (Preamble para. 3). The commentary accompanying Article 2 of The Code of Conduct for Law Enforcement Officials (adopted by the United Nations General Assembly in 1979) clarifies the phrase ‘human rights’ as meaning those rights protected by national and international law. Article 3 provides that: ‘Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.’ Article 5 prohibits the use of torture or other cruel, inhuman or degrading treatment. Another instrument, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (adopted by the 7th Congress on the Prevention of Crime and the Treatment of Offenders) recognizes that ‘law enforcement officials’ must include all officials, whether appointed or elected, who exercise police powers (specially powers of arrest and detention), and regardless of whether a country is under civil or military rule. It is obvious from all of these declarations that effective limitations must be placed on arbitrary, lawless behaviour by the police, and that appropriate rules and training procedures be adopted to ensure that police behave professionally and protect individual rights and liberties. They are more likely to do so if the police are themselves well-versed in those basic rights and liberties.
The European Convention on Human Rights (ECHR) seeks to balance individual rights and the public interest. In their case law, the Commission and the Court have sought to define the public interest and indicate the limits which authorities such as the police should not transgress even when obliged to restrict the individual’s rights and liberties. ECHR Article 2 addresses the question of what circumstances justify the use of force, and how much, by law enforcement officials.
In the Stewart case, the Commission stated that the principle that ‘everyone’s right to life shall be protected by law’ obliges governments not merely to refrain from taking life intentionally but also to safeguard life. The Commission further stated that ‘the use of force must be shown to have been absolutely necessary’ and to be ‘reasonable’ in the circumstances. But what is ‘reasonable’? The Commission, though avoiding any statement on the meaning of ‘reasonable’ force in the Stewart case, made it clear that the standard is to be rigorous: an assessment must be made as to whether the interference with the right is proportionate to the legitimate aim pursued.
The Camargo and De Guerrero case is a clear cut instance of disproportionate force. The case was decided under the International Covenant on Civil and Political Rights (ICCPR) by the Human Rights Committee. The Committee found no evidence that the action of the police was necessary in their own defence or that of others, nor that it was necessary in order to effect the arrest or prevent the escape of the persons concerned.
The doctrine of necessity (which can be likened to the concept of the ‘public interest’ in Islamic Law) is of central importance. It sees the restriction of individuals liberties as exceptional, as only justifiable in the wider interest: ‘If the necessity of uncovering the truth and of doing justice requires limiting some or all of these rights, an exception will be recognized to the principle but only if it does not go beyond the dictates of necessity’ (Bassiouni, 1982, p.100). Restriction of individual liberties is checked by restrictions on the authority of those investigating a particular case. Islamic Law does not set out a specific list of rights that may be restricted if necessary nor how far and under what conditions. It delegates the decision to those in government who may decide according to their perception of the public interest (Bassiouni, 1982, p.100).
The United Nations Convention against Torture and Other Cruel, inhuman or Degrading Treatment or Punishment of 1984 is binding on the signatories to it. The Convention provides that the signatories shall outlaw torture in their internal laws and explicitly prohibits using ‘higher orders’ or ‘exceptional circumstances’ as excuses for acts of torture (Article 2(2) and 2(3)). The Convention has two new elements. Firstly, it provides for extradition of alleged torturers for trial in any of the signatory states. Secondly, it provides for an international investigation in the state concerned of reports of alleged torture by a Committee against Torture to be established under the Convention. However, the fact that the signatories may withdraw from this latter provision is a weakness.
The Convention requires prohibition of torture to be part of the training of all personnel involved in law enforcement, detention, interrogation or general handling of prisoners or detainees (Article 10(1)). It also provides that the signatories shall ensure legal measures for protection and compensation of torture victims. Individuals are further protected against other forms of cruel, inhuman or degrading treatment, as defined under the Convention.
The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment is, by contrast, an instrument of a more preventive nature. It supplements the protection already given by Article 3 of the ECHR, by providing a non-judicial mechanism to investigate the treatment of persons deprived of their liberty in order to secure or reinforce the proper protection of their rights. A committee is established under the Convention for this purpose (Article 1).
Articles 3 and 5 of the ECHR impose particularly rigorous restrictions. Article 3 puts an absolute prohibition on torture, inhuman or degrading treatment or punishment by the police forces, terms defined in the judgement in the Ireland v UK case. Also, the conduct of the victim is not accepted as a justification for derogating from Article 3, however heinous it may be alleged to be.
Islamic Law explicitly outlaws torture, beating, and other cruel and inhumane treatment. The Prophet, upon him be peace, said: ‘God shall torture on the Day of Recompense those who inflict torture on people in this life’. The prohibition can be deduced also from practice of the early Caliphs and other Muslim rulers. Most jurists agree that no prisoner should be insulted, humiliated, beaten, tortured or chained, regardless of the offence. Islamic Law affirms that any confession obtained by coercion, torture or unlawful detention cannot be used to sustain a conviction. The Prophet set a practical example for treating the accused humanely and so enabling him to speak freely, when he addressed a defendant in these gentle words: ‘I do not think you stole. Did you?’
Article 5 of the ECHR, designed to protect individuals against arbitrary treatment, has generated a substantial body of case law. Anyone apprehending or arresting another person must respect due process of law. Not only compliance with national law, but also compliance with the principles of the Convention, as defined in the case law of the Commission and the Court, must be observed. Under Article 5(l), Suspicion must be reasonable to permit an arrest (Article 5(1)); the arrested persons must be told why they have been arrested (5(2)); detention should be of strictly fixed duration (5(3)) and, the detainee brought before a judge or other officer promptly and without having to ask. These provisions obviously have to do with police powers exercised under legal authority. In the Bozana case, the Court concluded that the expulsion of Bozana had turned into a ‘disguised extradition’ measure, designed to circumvent an appeal, and was therefore unlawful within the meaning of Article 5(1).
In the Brogan case, the Commission took the view that the struggle against terrorism may require some sacrifice of individual liberty for collective security ad so justify a flexible approach to the period of detention. The Court did not agree with this line of reasoning. It allowed that bringing to trial ‘promptly’ might be flexibly construed but insisted that there is a maximum period of detention compatible with the Convention. Tanca commented: ‘admitting longer police custody for those suspected of terrorist offences would alter the balance in favour of the police authorities, conferring on them more sweeping powers and the authority to decide when to use them’. The Convention also clearly requires that any officials with power to hold someone in remand must have judicial authority to do so. This position was further clarified in the Schiesser case in which the Court held that those officials must be independent of government and political parties.
Under Islamic Law, preventive detention is considered a serious restrictionof personal liberty and an exception to the general rule that no-one shall be deprived of their liberty except for the enforcement of a lawful sentence. Some Islamic jurists including Abu Yusuf opposed preventive detention on the grounds that neither the Prophet nor his immediate successors maintained a prison. One school of Islamic jurists, however, is of the opinion that it is permissible, under the proper conditions and with safeguards to balance the interests of the defendants and law enforcement authorities. (These jurists base their position on the teaching of the Prophet who detained a man accused of a crime.) But in any case, Islamic jurists were very cautious in its application and laid down very strict conditions as to duration, those authorized to impose detention and in what circumstances (Al-Saleh, 1982, pp.74-5).
Another police activity which infringes fundamental human rights is the search of private premises. Article 8 of the Convention guarantees the right to privacy of family life, of home and of correspondence. Any interference with this right must be ‘in accordance with the law’ and ‘necessary in a democratic society’. In an emergency, additional measures derogating from Article 8 may be taken, provided these are strictly required and respect the other procedural and substantive requirements of Article 15.
An individual’s home and private life are regarded as inviolable in Islamic Law, in accordance with the Qur’an (24.27-8) and the instruction of the Prophet, upon him be peace, in his ‘Farewell Sermon’. But that right is conditional on the absence of reasons requiring its restriction or suspension. It is significant that Islamic Law prohibits the search of person or home, and the invasion of privacy for the purpose of verifying the occurrence of a crime unless there is independent corroboration thereof. Any restriction of the right to privacy may not exceed the limits as determined by the purpose for which the exception is being permitted, namely to uncover the truth.
The Islamic perspective
The Qur’anic verse O mankind, worship your Lord who created you from a single soul ... (4.1) is the ground rule which determines the Islamic perspective on this issue. It gives ‘Muslims a consciousness of their belonging to a broader, larger and all-encompassing universe, rather than to consider themselves a parochial subdivision of a greater part with which no intercourse is invited’. However, the development of international law remained totally alien to the Islamic Law of nations which preserved the ethical basis and moral source of its norms and statutes. In Europe, as a result of religious wars and distrust of the clergy, religion and morality were replaced by more pragmatic powers and necessities of state, though Christian concepts remained influential. The Treaty of Westphalia of 1648 was based on the concept of cuius regio, eius religio, which sealed the separation further. The Western view is that mechanical conformity to the pattern of conduct, prescribed by the law of the state or by international law, is sufficient to secure public order and universal peace. Western law aims ‘to proceed to influence from outside the inner condition of man and somehow it believes that institutions, social, economic, political etc., have a way of influencing the individual character... Islam, on the other hand, begins by inviting man to accept the paramountcy of the power of the Lord, his own servitude and bondage to the will of his Master who is the Sovereign Ruler of the universe; in the last resort it redeems him by prescribing upon him norms of behaviour by which he is to regulate his life’. The only real sanction for the moral law is, in the last resort, the authority of religion. Morality cannot be effective without religion. Morality tells us what is right and proper to do, while the law enforces those moral principles as have a direct bearing on the regulation of the individual vis A vis his fellow human beings. If the law is secular the enforcement of it can only be on the secular plane, whereas, if the law is religious, its enforcement takes note of deleterious consequences of criminal acts not only in this life but also in the life to come. International law may have come a considerable way towards urging the protection of individual human rights against abuse general. But the reality is that these instruments and mechanisms have not been successful on their own. Therefore, we tend to argue that any attempt or any solution on the protection of the individual against such abuses will only be successful, if there is a religious dimension to it. That is the function of the morality.
AL-SALEH, Osman Abd-eI-Malek (1982) ‘The rights of the individual to personal security in Islam’. in Bassioni. M. C. The Islamic Criminal Justice System. Edited by Bassioni, M. C. London: Ocean. Publication, London.
AWAD, A. M. (1982) ‘The rights of the accused under Islamic criminal procedure’, in The Islamic Criminal Justice System.
BASSIOUNI, M. C. (1982) ’The rights of the accused under Islamic criminal procedure’, in The Islamic Criminal Justice System. Edited by Bassioni, M.C. London: Ocean. Publication, London.
BASSIOUNI, M. C. (1982) ‘The Sources of Islamic Law and the Protection of Human Rights’ in The Islamic Criminal Justice System.
BROHI, A. K. (1982) ‘The Nature of Islamic Law and the concept human rights’, in Human Rights in Islam, International Commission of Justice, Geneva, pp. 55-56.
ICJ (1982) Human Rights in Islam, International Commission of Justice, Geneva.
TANCA, A. (1990) “Human rights, terrorism and police custody: the Brogan case”, European Journal of International Law, 1, pp.269-77