State secrecy and human rights violations

Whilst it is undeniable that States have a legitimate need to protect their secrets especially in light of national security concerns, past and recent events have demonstrated how reliance on secrecy seems often to hardly comply with States’ obligations under international human rights law. Based on the specific circumstances of each single case, resort to State secrecy may indeed raise doubts as to its consistency with several human rights rules, including the right of access to State-held information, the right to a fair trial, the right to an effective remedy and the right to the truth concerning serious human rights violations. Reliance on State secrecy – at least when leading to the dismissal of proceedings for the impossibility to acquire evidence – can in fact grant in practice immunity in law from either criminal or civil consequences. In addition, even when dealing with ‘out of court’ issues, the existence of classified information might cover under a ‘black veil’ facts of historical relevance and the responsibilities of those involved. In the light of the foregoing, the present work aims at testing State secrecy against the international legal framework and, in particular, against international human rights law in order to ascertain whether and to what extent the resort to State secrecy is deemed compatible with the current status of international law. In particular, this work attempts to provide answers to the following questions: does the existing international legal regime set limits to States’ reliance on State secrecy? Where these limits are to be found? Where the balance between the legitimate interest of the State to protect national security and the obligation to secure human rights should be struck? Whilst the answers to these questions much depend on the specific human rights norm against whom the resort to State secrecy is tested, the exam undertaken allows drawing some tentative general conclusions. Whereas human rights treaties generally provide for national security as a ground justifying interferences to certain human rights, such a limitation clause cannot translate into an abusive discretionary reliance on State secrecy on the part of the State. To the contrary, it requires an inherent balancing exercise between the two colliding interests (i.e., national security and the protection of human rights), according to strict parameters set by the treaties themselves, as further interpreted by human rights monitoring bodies. In particular, the proportionality and necessity standards and the public interest test to which restrictions on national security grounds should abided by are hardly complied with any time classification and secrecy are resorted to in order to shield accountability and hide the truth concerning serious human rights violations. In this respect, human rights treaty-monitoring bodies’ ‘case law’ has indeed increasingly accommodate a sort of absolute presumption in the sense of a prevalence of the interest in the protection of human rights over national security concerns. This same ‘conclusion’ (de facto banning secrecy and classification any time they are relied on in a way to prevent accountability for serious human rights violations) may similarly been drawn from the progressive recognition of a right to know the truth concerning serious human rights violations, as well as – still depending on the specific circumstances of each single case – by the absolute (and non-derogable) character of certain human rights (and of the judicial guarantees essential to their effective protection).