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Human Rights

Privacy
- Presumption that individuals should have an area of personal autonomous devt, interaction and liberty free from State intervention and unsolicited intrusion by other uninvited individuals.

INTELLIGENCE AGENCIES V. LAW ENFORCEMENT OFFICIALS


● Intelligence Agencies
- Focused on gathering information aimed at preventing terrorist attacks from occurring
- Not directly involved in any subsequent criminal justice process
● Law Enforcement Officers
- Responsible for the maintenance of public order through investigation of crime
- Concerned with procedural requirements of due process to obtain evidence that would be admissible in court
-
I. INTERNATIONAL LEGAL FRAMEWORK
Interpretation of Art. 17 of ICCPR by the HR Committee -- Interference when lawful:
1. Prescribed by law
a. Detailed circumstances for gov’t interference
b. Categories of persons covered
c. Procedure for gathering data
d. Limitations on duration
e. Public health or morals
f. Rights and freedoms of others

2. Legitimate aim
● General Comment 27 : legitimate aims include protection of national security, public order, public health or morals, and rights and freedoms of others
● Prevention, suppression & investigation of acts of terrorism for purposes of Art. 17
3. Reasonable
● Not arbitrary
● Necessary & proportionate measure
4. Necessary
● To protect legitimate aim
5. Proportionality bet. aim and interference
● General Comment 27: Least intrusive measure available
6. Not incompatible with the provisions of the ICCPR
a. Should not hamper the ability to protect other rights

II. REGIONAL LEGAL FRAMEWORK


A. ECHR & American Convention on HR
- The right to privacy is a derogable right

Criteria:

- Clear provisions explaining the interference


B. African Charter on Human & People’s Rights
- no provision directly referring to right to privacy
- Protects right to privacy indirectly

Europe
- Stricter
- Must be prescribed by law but law must describe the circumstance of taking

✓ Special Investigation Techniques


✓ Surveillance & Interception of communications
○ Metadata - “mosaic theory”
○ Mass surveillance programs

III. NATIONAL APPROACHES


✓ GPS Surveillance
○ Uzun Case

IV. PRIVACY, INTELLIGENCE GATHERING & ARMED CONFLICT


● Principle of Distinction: Rule of Target Verification
● Principle of Proportionality
● Int. Law gives little attention to the issue of protection of privacy during armed conflict
○ Interest of protecting privacy is subordinated to other interests
○ Ex. use of drones & their psychological impact to citizens