"Once More unto the Breach": The Systemic Failure of Applying the European Convention on Human Rights to Entrenched Emergencies

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Gross, Oren

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http://hdl.handle.net/20.500.13051/6386
Abstract
This Article critically examines the traditional discourse concerning emergency regimes that is based on assumptions concerning the temporariness of emergencies and the exceptional nature of the threat that emergencies pose to any given society. The Article challenges the idea that states of emergency constitute the exception to an otherwise general rule of normalcy by discussing the derogation regime developed under three major human rights conventions. The Article further demonstrates how the jurisprudence of the European Court of Human Rights and the European Commission of Human Rights has consistently failed to acknowledge the fallacy of the "normalcy-rule, emergency-exception" paradigm and the consequences that this fallacy has had on the development of the Court's and Commission's jurisprudence. The Article develops these arguments by focusing on two types of cases. The first are cases involving the entrenched state of emergency existing in Northern Ireland. The second are cases concerning allegations of the systematic violation of individual rights by Turkey. These cases amply demonstrate the pernicious effects resulting from the failure of judicial organs to examine carefully the true nature of the relationship between normalcy and emergency.
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