The way in which the “war on terrorism” has been waged threatens to undermine the international human rights framework so painstakingly built since World War II. This essay argues that abandoning human rights in times of crisis is short-sighted and self-defeating. A “war on terrorism” waged without respect for the rule of law undermines the very values that it presumes to protect. A balance between liberty and security must therefore be restored by reasserting the human rights framework, which provides for legitimate and effective efforts to respond to terrorist attacks.
The United States–led “war on terrorism” is premised on the notion that the events of September 11 should be seen as a wake-up call that the world has changed. The international community necessitates new tools and strategies, perhaps a new normative structure, to deal with these dire threats to the world’s security. In the absence of international agreement about the new tools, strategies, and norms, the “war on terrorism” is being waged on its own imperatives regardless of existing norms. The way in which this “war” was waged is itself a threat to human security. Since the September 11 attacks, the United States, with the support of many governments, has waged a “war on terrorism.”This “war” places the human rights gains of the last several decades and the international human rights framework at risk. Some methods used in detaining and interrogating suspects violate international human rights and humanitarian norms in the name of security.Throughout the world, governments have used the post–September 11 antiterrorism campaign to crack down on dissidents and to suppress human rights.
Efforts to define terrorism are fraught with political consequence and disagreement. The controversy is often captured in the phrase “one person’s terrorist is another person’s
freedom fighter.” The Special Rapporteur notes that it is difficult to distinguish between
internal armed conflict and terrorism. Should state-sponsored terrorism be included in this discussionHow about sub-state terrorismIs there a difference between the terrorism of the past and the new threat of non-state-actor super-terrorism with the potential for catastrophic use of weapons of mass destruction?
There is already some agreement about prohibiting certain acts the international community condemns as terrorist acts.The definition adopted in this essay is that attacks on the World Trade Centre, in London and Madrid constitute crimes against humanity in that they are, especially taken with other attacks by the same actors, part of a widespread or systematic attack on civilian populations. This view was expressed by the UN High Commissioner for Human Rights Mary Robinson in the immediate aftermath of the September 11 attacks.
Another aspect of the problem of definition is that in many of the antiterrorism measures taken since September 11, 2001, governments have used vague and overbroad definitions of terrorism. Such definitions run the risk of sweeping peaceful, expressive activity into the definition of terrorism and can be the basis for repressive regimes attacking political opponents or other pre-textual uses of antiterrorism campaigns. Such antiterrorist laws violate the principle of legality and provide a basis for governments to label political opponents or human rights defenders as “terrorists.”In addition, it can subject them to
exceptional security measures that would not be tolerated in other contexts. Below we look at how human rights has been a casualty on the war on terrorism.
At the heart of the challenge to the human rights framework is the question of whether the “war on terrorism” is a “war,” and if so, what sort of a war it is. To date, one of the characteristics of the “war on terrorism” is a refusal to accept that any body of law applies to the way this “war” is waged. Central to the human rights framework is the idea that there are no “human rights free zones” in the world, and that human beings possess fundamental
human rights by virtue of their humanity alone. In addition, there is no gap between human
rights law and humanitarian law in which a “war on terrorism” may be waged, free from the constraints of international law. The essence of the rule of law requires that executive action be constrained by law. The refusal to accept that the rule of law governs the conduct of the
“war on terrorism” has created tremendous uncertainty and has also led to the erosion of individual rights. For example, in April 2003 the United States took the position, in response to questions posed by the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions about the November 2002 killing of six men in Yemen by a missile shot from an
unmanned drone, that this attack was against enemy combatants in a military operation and, thus, was beyond the competence of the Special Rapporteur and the UN Human Rights Commission.
By defining the “war on terrorism” as a “war,” the United States and cooperating governments conveniently eliminate all of the protections of human rights law, even in circumstances in which international humanitarian law does apply. It is not clear why this
precedent would not be applicable to any government seeking to target dissidents, national liberation movements, or anyone opposed to a regime as being a “terrorist” and an appropriate military threat in this global “war.” The concept of “terrorism” put forward is any act perceived as a threat by those waging the war against it. The battlefield is the entire planet, regardless of borders and sovereignty. The “war on terrorism” might continue in perpetuity, and it is unclear who is authorised to declare it over. Human rights protections simply do not exist when they conflict with the imperatives of the “war on terrorism.” One such case is that of Guantanamo.
The continuing detention of more than 600 alleged “terrorists” at a military base in Guantanamo has become the most visible symbol of the threat to the human rights framework posed by the “war on terrorism.”The Guantanamo detainees essentially have been transported to a “human rights free zone” or “legal black hole,” where only visits by the International Committee of the Red Cross (ICRC) stands between them and the arbitrary,
unreviewable exercise of executive power. The detainees are beyond the reach of any body of law and receive the treatment that their captors deem reasonable in the circumstances. The US states the detainees are to be treated consistent with the laws of war. Yet, they are denied hearings required by Article 5 of the Third Geneva Convention before a “competent tribunal” to determine whether they are prisoners of war, as the ICRC presumptively believes them to be. In the eyes of their captors, they are conclusively determined to be “enemy combatants” or “enemy aliens,” who may be tried before military commissions and
detained indefinitely regardless of whether they are convicted by those commissions.
The Military Order authorizes the detention and trial of “terrorists” and uses a broad definition of “individuals subject to this order.”Thus, US authorities may take any person in the world they believe fits this broad definition and transport them to the “human rights free zone” in Guantanamo. There the US is not subject to judicial oversight by domestic or international authorities, and the detainees can be treated in any manner until they are tried, released, or held in these conditions indefinitely.
The Military Order applies only to noncitizens, leading to a stark double standard between the treatment of US citizens accused of being involved in terrorist activity and noncitizens, who are not entitled to the panoply of rights accused US “terrorists” will receive.
The idea that noncitizens are not entitled to international fair trial standards because they are
unworthy “terrorists” is at odds with international antidiscrimination and fair trial norms as well as the presumption of innocence. Trials before the military commissions, established pursuant to the November 2001 order, will not comply with essential international fair trial
safeguards or guarantees of an independent judiciary. Indeed, the proceedings appear to be no different from military tribunals the international community has criticized in many other settings as a violation of international human rights standards.
The availability of the death penalty in these military commissions undermines the human rights goal of eventual abolition of the death penalty; especially in light of the important strides the international community has made toward abolition of the death penalty in the Rome Statute and elsewhere, for even the most egregious crimes. These commissions
also inhibit international cooperation to combat terrorism given the strong views of many states that abolition of the death penalty is a fundamental human rights issue.
There is more to say about the conditions of confinement in Guantanamo Bay (cramped cells, lack of exercise, torture), especially after recent revelations about the widespread abuse of prisoners in Iraq and elsewhere. The central challenge it presents to the human rights framework is that the detainees are left without the protection of law or judicial or international oversight. Although the ICRC is allowed to visit the detainees, the United States does not agree that the detainees are prisoners of war or even entitled to the full protections of international humanitarian or human rights law. The United States has labeled the detainees as “enemy combatants,” but this label cannot avoid the requirement of a determination of every detainee’s status by a “competent tribunal.” Humanitarian law requires that such determinations be made by tribunals and under procedures that guarantee fair treatment, protect vulnerable detainees, and restrain the detaining power. Instead, the detainees, like the six men killed in Yemen, are subject only to the discretion of an unrestrained executive authority. Fundamental human rights norms require that detentions be subject to judicial oversight. As the UN Working Group on Arbitrary Detention
stated in December 2002, if prisoner of war status is not recognized by a competent tribunal,[T]he situation of detainees would be governed by the relevant provisions of the [International Covenant on Civil and Political Rights] and in particular by articles 9 and 14 thereof, the first of which guarantees that the lawfulness of a detention shall be reviewed by a competent court, and the second of which guarantees the right to a fair trial.
The United States has rejected the UN’s position and every other form of international oversight of these detentions. As a result, the identity of the detainees are secret, and there is no international or domestic oversight of the detentions. There is no way of ascertaining whether there is any basis for the continued detention of particular detainees, which includes children as young as thirteen. Over time, a number of detainees have been released, and so far the released detainees have not been charged with any criminal offense. Thus, raising substantial questions about the grounds for their detention in the first place and even more concern about the length of the detentions. Despite assurances by United States officials, there are examples of mistakes coming to light. One such discrepancy concerns refugee law and discrimination.
Almost all of the detainees have been held on minor immigration law violations, which ordinarily would not warrant detention or deportation. One commentator reports that only three of the estimated 5,000 noncitizens detained by these efforts have been charged with any offense remotely related to terrorism, indicating the ineffectiveness of such strategies.
These transgressions on immigrant communities are just a part of the “collateral damage” of the “war on terrorism.” International norms clearly prohibit discrimination on the basis of ethnicity, nationality, or religion. There is a growing recognition of the harms caused by discrimination in the social fabric of our communities. By targeting immigrant communities, the government fosters the discrimination and exclusion that human rights law has struggled so hard to eradicate, making it all the more difficult to engender understanding and cooperation between communities in the fight against terrorism. Below we evaluate the significance of a human rights framework response to terrorism.
For the most part, the international community has responded to the events of September 11 and their aftermath with an insistence that the response to terrorism must unfold within basic standards of human rights and international law. For example, the United Nations Security Council in Resolution 1456 (2003) insisted that any measure taken to combat terrorism must comply with international law obligations, “in particular international
human rights law, refugee, and humanitarian law.” The question remains whether these norms will actually govern the conduct of states and what the international community will do if they do not. The detainees in Guantanamo are in a “human rights free zone” with the active cooperation of many governments and the absence of an adequate response by the international community as a whole.
Even if one contends that the detainees are not covered by international humanitarian law, the international human rights framework still requires they be tried for a recognizable criminal offense and be granted the internationally recognized guarantees of a fair trial. The United States had no difficulty complying with these requirements in response to the first
World Trade Center bombing, showing it is possible for governments to create special procedures for handling classified or sensitive evidence in such trials in accordance with their legal systems. Many countries have experience trying alleged terrorists in ordinary courts under procedures that comply, or at least arguably comply, with international standards. There can be increased cooperation at every level of government within a human rights framework. Many human rights standards, beginning with Article 29 of the Universal Declaration of Human Rights, explicitly recognize limitations based on the requirements of public order or security. There is a substantial body of international, regional, and domestic jurisprudence in balancing liberty and security in a wide variety of specific contexts. These standards should be respected and enforced, not ignored. International human rights law also explicitly recognizes that there may be emergencies that justify suspension of some international human rights. If deemed prisoners of war then there is a well-defined regime of humanitarian law under which the detainees must be treated.
In conclusion this essay addressed one aspect of the ongoing debate about terrorism and
human rights. While urging adherence to existing human rights and humanitarian standards in the fight against terrorism and raising the alarm about how the “war on terrorism” is being waged, one should not ignore the challenges posed by transnational networks of persons willing to engage in acts of mass destruction. There are opportunities for cooperative, multilateral approaches to this challenge: Expanding the jurisdiction of the International Criminal Court to cover a broader range of attacks on civilians would be a positive development and one fully consistent with the rule of law.
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