T14 – Triumph Through Adversity

In taming counter-terrorism law, human rights can forge a soul

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T14 intro video – audio transcript

If the modern human rights movement was born at the end of the Cold War, then it came of age on 11 September 2001.

Happy Childhood

Looking back, the 1990s were really rather too easy, the calm before the storm.

  • After 1989, with the end of history and all the rest of it, it looked as though western power was here to stay. And with it came western ethics – in particular a commitment to a code of universal human rights which (far from being truly universal) had been designed and built in Europe and the US, first for domestic consumption and then, in the 1990s, for world-wide export
  • There was even a house philosophy to underpin this new world order, a third way between capitalism and socialism that embraced globalisation while seeking to control its excesses.  (One of the seminal thinkers behind this idea, Tony Giddens, was an enthusiastic promoter of the idea of a centre for the study of human rights at LSE when he ran LSE: the centre was established in Autumn 2000.)
  • The International Criminal Court was agreed in July 1998, with no fewer than 120 states seeming to embrace a new world order in which state impunity for human rights violations would no longer be possible
  • Wars were fought for human rights – most famously over Kosovo by NATO in 1999 but also in Sierra Leone involving Britain and the UN in May 2000.  The arguments were over the wars that were not waged (Rwanda in 1994) rather than those that were

The promotion of human rights was an easy idea then.  It had all the idealism on its side and faced few tough questions.

Then came the attacks of 11 September 2001.

It is difficult for us now to remember how fiercely, how frighteningly fresh these actions were, how we were not sure whether they were the start of a war against the West or, at very least, the launch of a new kind of perpetual subversion against our liberal culture. And then there was the deed itself – being so visible, so visually intrusive on such a vast scale, it became transformative of the way in which we all saw the world.

Looking back on my own reaction, published in The Tablet in the immediate aftermath of the event, I see I wrote of it as

not just an exceptional piece of bad news; this story has no rhythm to it, no aftermath; we do not and will not get over it or, other than in a banal sense, move on. The attacks will always be there, a huge unmovable dark cloud in every Western sky. Conor Gearty

I also wrote this in the same piece:

‘The real fear is of an American reaction that is futile, inflammatory and provocative.’

Has there been such a reaction?

Futile?

I think we need to acknowledge that the  ‘war on terror’ initiated by President George Bush in the immediate aftermath of the attack has not necessarily been futile.

Afghanistan has been invaded, the Taleban administration which supported Al Qaida has been destroyed and the organisation itself has been forced to operate in a far more fragmented, inchoate fashion than before the 11 September attacks.  It is by definition difficult to establish the success of something on the basis of its prophylactic character, and of course there have been awful attacks such as those in BaliMadrid and London, but there can be little doubt that Al Qaida is not the force its leaders wanted it to be.  Nor is it what Osama Bin Laden might have made it he had been left untouched in Afghanistan to scheme, plan and preach his message of politicised religious hatred.

We can confidently conclude that:

  • Al Qaida is a weak, largely ineffectual body which can certainly do great damage from time to time but whose capacity to cause sustained harm is slight.
  • In Global North countries at least (and probably elsewhere as well) it lacks any firm territorial base within which to operate.
  • The organisation’s undisciplined, reckless violence has alienated the broader following it might otherwise have garnered among some elements within the worldwide Moslem faith communities.

If terrorism were a game of poker, I am not sure Osama Bin Laden ever came close to securing a winning hand, but what he is now for sure is a busted flush.

Maybe all this would have happened anyway, even if the US had not reacted as they did.  But it is clear that the ‘war on terror’ has played a part in the reduction of Al Qaida, in particular the invasion of Afghanistan. (Human rights defenders are not pacifists.)

‘Inflammatory And Provocative’?

The Bush administration’s response may not have been futile but it has certainly proved to be both of these – perhaps even to the point of also being counter-productive, damaging the US more than the violence which it has prevented would ever have done.

(Damage can be political, cultural and diplomatic as well as physical, remember.)

So embedded did this bad behaviour become between 2001 and 2008 that the Obama administration has found itself unable to disown much of its gloomy inheritance in this field.

This story is well-known to us all and I need spend little time with it here.

  • The Guantanamo Bay camp for suspects in the ‘War on Terror’, still open, has become a tangible symbol of America’s rejection of the constraints of international law and of international human rights law specifically
  • The awful facts about secret camps and torture in Afghanistan, and the allegations which continue to be made about activity at Bagram Air Base, have destroyed the US’s moral standing in the world, exposing its high ethical tone as a manoeuvre for position rather than a reflection of genuine moral purpose
  • The invasion of Iraq has elided into the ‘war on terror’ and made the latter seem exactly what the former appeared to be: an opportunistic effort at increased global power under the cover of tragedy, a seizing of a moment to try to transform the world to America’s advantage
  • The use of Christian language has been especially damaging.  Within a week of the attacks President Bush was describing his country’s response as a ‘crusade’ that was ‘going to take a while’ .  The US close alliance with Israel reminds those who know their history of a previous period of Crusader control in the Middle-East
  • In terms of domestic law, President Bush developed a theory of constitutional power which put him literally above the law – as  commander in chief in a time of war – able to set aside laws in the country’s interest and protect others from the effects of the criminal law, for example on the prohibition of torture.  Obama has certainly resiled from this despotic theory while seeking not dissimilar powers through legislation

What has all this got to do with human rights?

The attacks of 11 September led to two deep challenges to the whole human rights project.

Neither had been remotely contemplated in the heady 1990s.

The First Crisis Of Human Rights

This came immediately.

Were the 11 September attacks a breach of human rights?

At one level, of course they were.  Nothing could be more obviously a denial of the esteem of the person, a brutal instrumentalisation of the individual, than to spend innocent lives in the transformation of a commercial airliner into a weapon of mass destruction, designed to kill thousands of civilians in order to communicate a larger political message about the need to rise up against American power.

But on second thoughts – international human rights law is about the responsibility of states, not individuals – see the track a couple of weeks ago on business and human rights.  Osama Bin Laden in an individual. Al Qaida is merely an association of individuals.  Nothing to do with us therefore.  Now, President Bush’s response, the Patriot Act and so on – that human rights people can have a view on, strongly oppose, campaign against and so on.

This second position is right in law, but wrong politically, tactically and more to the point ethically.

Human rights are not just about law.

Law is an instrument for the protection and promotion of human rights, not their master.

But in the immediate aftermath of the 11 September attacks, human rights defenders could not help but give the impression that because their main focus was on state action, they therefore had no focus at all on the violence to human rights done by sub-state actors, or (as everybody calls them) the terrorists.

I am reminded of remarks made by an Irish Taoiseach (Prime Minister) when a member of his own party Senator Billy Fox was killed in a sectarian attack in 1974 – ‘what human rights did Senator Billy Fox get?’ he asked, defending his government against criticism that its response to terrorism had been draconian.

So how have human rights defenders responded to this point?

It has taken a while but broadly speaking it has been effectively resolved:

  • Clearly, subversive and other sub-state bodies do breach the human rights of their victims insofar as we are using this term in a philosophical, political and ethical rather than narrowly legal context. It’s just the same as with business: the obligation to respect human rights is there and killing people in this way manifestly breaches it

But

  • True this is not as such a legal obligation.  Of course you can sue a subversive group or individuals for wrongful death, or injury or damage to property or whatever you want (and it sometimes happens, as in relation to the Omagh bombing ) – but you cannot sue it or its members for a ‘breach of your human rights’ – this is a matter of the state’s obligation to you, a remedy available against the state (if its framework of law allows it) rather than anyone else within the state.

However, that is not the end of the matter

  • The state has an obligation to protect you from the breaches of your rights by third parties, especially your right to life.  It must have effective criminal laws and proper frameworks for the prevention and detection of crime.  For this reason, human rights defenders see the criminal law prohibitions on murder, manslaughter, offences against the person etc as part of rather than in opposition to human rights.

And (to complete the human rights picture)

  • Human rights require that such laws be formulated and then enforced in a way that respects the rights of those subject to them, their right to liberty and the right they have to fair procedures so as to ensure that their right to liberty is not wrongly taken from them.

In summary:

the criminal law is part of the human rights story, it is the way in which the state balances its obligation to protect the lives of us all with its parallel duty to ensure that it does the best it can to guarantee that those who are suspected of wrongdoing under that criminal law are treated fairly. Conor Gearty

Human rights defenders have an answer to Liam Cosgrave and those after him who have made the same point: they are enthusiasts for the criminal law and robust criminal procedures so long as these are respectful of human rights in their content and their operation.

The criminal law, buttressed by international co-operation between national forces where required, and further supported by the sharing of information between police forces, is sufficient to deal with most international criminality.  It is enough to cope with Al Qaida – especially when we remember what I have said above, about its relative weakness now, ten years on from 11 September.

Of course this is not a position that is held by everyone.

We have seen in the furore over control orders in the UK how determined some are to use the fear of terrorism to expand state power in directions that take us into a kind of administrative police state and far away from the ordinary criminal law.  Such trends must continue to be resisted by human rights defenders – who equally must not fall into the trap of seeming in attacking such developments to be opposed to all law.  In the United Kingdom this is a debate that crosses party lines, between those like Dominic Raab and Ken Clarke on the Conservative side who are sceptical and those who buckle before the security services – usually current, past and (perhaps also) prospective home secretaries

Where does the fervour and determination for the endless expansion of terrorism laws come from?

This is where the second great crisis of human rights after 11 September comes into play.

Dignity Is Not For Everyone After All

What was especially shocking about the years after the 11 September attacks – and particularly in relation to the justifications for the war on Iraq – was how the idea of human rights came to be understood by some in a way that flew in the face of its core meaning

  • In place of universality came regional specificity: human rights belonged to the West, they were part of ‘our’ value system and needed to be defended against outsiders, the many ‘others’ (epitomised by but going far beyond Al Qaida) who wanted to destroy them
  • In place of the concern for the individual that is at the core of human rights came a concern for human rights as a cultural idea.  Human rights were part of what made our civilisation in the West good and  so they  needed to be defended from the bad (non) civilisations that, given the chance, would destroy them
  • The ‘War on Terror’ not only was understandable, it was to be applauded  as a positive good since it was defending ‘human rights’ (as an idea) against the forces of evil that would destroy itand
  • Needless to say, this defence of human rights would not succeed unless the warriors fighting for the idea could engage in combat without one hand tied behind their back.  Human rights defence needed to be tough, needed to be done by (to use the phrase in one of the books by a protagonists of this position) ‘carnivores’, not meek, human-rights-respecting ‘herbivores’.

I have written a great deal about this perspective, this assumption that human rights defence needs strong action against terrorism and the threat of terrorism, and in doing so I have found I have had to be critical of some leading figures in the world of liberalism and human rights.

In my opinion this approach to human rights has done immense damage by seeking to transform the subject into a subset of western power.

Human rights are nothing if they are not part of an argument for universal esteem and respect for dignity that goes well beyond the interests of any particular culture or political bloc.

I think as with the argument over law, we are on the way to winning this one as well.

  • The partisanship of the other side, their intent on supporting one culture over others at whatever the cost, has lost them allies, not only outside the West (of course!) but within it as well, ‘no more .. Mr Nice Guy’ as Laurie Taylor said about Michael Ignatieff at the height of the controversy.
  • The dreadful extent of human rights abuses perpetrated by the Bush administration and its armed forces went far beyond the ‘necessary evil’ and the carefully calibrated, judicially authorised ill-treatment for which others like Professor Alan Dershowitz had argued  – this exposed the impossibility of bringing the discipline of the first class liberal mind to the battlefield.  Once this genie was out of the human rights bottle there was no way it could be pushed back in by scholars suddenly stricken by second thoughts.
  • Judges in the US, Europe and the UK reasserted the primacy of a rule of law based on universal principles rather than the culturally specific perspective for which the human rights partisans had argued.
  • The UN, after a slow start, gradually sought to rein in the momentum of the counter-terrorism bandwagon, first re-introducing the idea of respect for human rights into the exercise of such powers and then ensuring that the term ‘human rights’ was in this context to be given its traditional, individual-based and universal meaning.  The UN  Special Rapporteur on the promotion and protection of human rights while countering terrorism (Professor Martin Scheinin) has done important work in this regard.

The Outlook

It would be foolhardy to be complacent.  And of course much depends on events

  • Will there be a revival in subversive political violence?
  • Might Al-Qaida somehow revive itself or secure a new national alliance that will enable it to perform more effectively (ie bloodily)?
  • Will democratic authoritarianism which is legitimised by a supposed fear of terrorism become the order of the day? (See my Track Six on colliding futures.)

Human rights defenders need to be perpetually vigilant.  Their idea’s idyllic childhood is over. Adolescence has been survived, false friends seen off.  Adulthood beckons – and with it the responsibility of arguing and rearguing the human rights case, in each and every arena where the point about the value of this ethic can be effectively made.

For Discussion

  • Am I being too optimistic about human rights?
  • Do I understate the threat from terrorism?
  • Am I too ready to see the criminal law as the answer to the challenge of terrorism when in fact new kinds of laws are required?
  • Perhaps human rights really are part of a particular culture and it’s stupid of me to keep on trying to universalise them?
  • If human rights really are universal, might our adherence to them in fact make our culture so weak that it is brought down by its enemies – so no one will have human rights anywhere at all?

These are just some of the objections to which my position gives rise.

Are they legitimate?

Do you have others?

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22 Responses to T14 – Triumph Through Adversity

  1. Damien Shortt says:

    Like anything, human rights can be seen as a structure (following Saussure and Levi-Strauss, etc.).

    It works as a regulatory moral system only if everyone agrees to be bound by its rules: the English language can function only because all English speakers tacitly agree to being bound by its rules of grammar, and the rules of the road function only because all drivers observe (are coerced into observing) its tenets. So too can an international human rights body of law function only if all states agree to being bound by it.

    However, the problem is that, as you point out, not all people are bound by what national states agree to – many individuals live in the physical and metaphysical interstices between nation-statehood.

    As Captain MacMorris says in Henry V:
    “Of my nation! What ish my nation? Ish a villain, and a bastard, and a knave, and a rascal. What ish my nation? Who talks of my nation?”

    So, Conor, perhaps you are guilty of being overly optimistic not about Human Rights, but about the ability of nations and statehood to encompass the entirety of humanity or to even reflect in its ideologies the diversity of moral allegiances evident in the human spectrum.

    Are Human Rights dependent upon an Inter-National (in its literal sense) world order? If so, what hope for Rights in a Post-National milieu?

    • Christina says:

      Human rights is not a structure! It is one of the core definitions of what makes a human being in its natural state, philosophy, religion, a theory, not a structure. You have to believe that human kind is naturally good,tending toward empathy and altruism. Angels on the head of a pin? Well at least as dificult to believe in as a benevolent or otherwise deity of any kind.

      As to post National milieu. we survived the disolution of the British, Roman, Greek, Byzantian empires…..
      Two thoughts: the United Nations. theElders.org
      http://www.theElders.org
      The later was brain child of Peter Gabriel and Richard Branson.
      So the ethical Oscars not such a pipe dream?

  2. Colin Harvey says:

    Just two points to add to this typically thought-provoking lecture by Conor.

    First, I wonder if in the creation of our ‘totally administered world’ of human rights law (within which we lean especially heavily on the legality of international standards – for good sense reasons) we do not end up tying ourselves in legalistic knots and forgetting the often unacknowledged historical pillars of a culture of rights that tries to be universalistically inspired in the modern era. Human rights must find nourishment somewhere in the idea of the dignity of each human person (however complicated notions of personhood are today). That debate has a long history to which philosophy, theology, political science, law has contributed over centuries. If human rights is reduced only to a narrow positivist notion of law (‘the law is the law is the law’) is there a risk of a process of forgetting the history of rights, of an abandonment and retreat from traditions that do not start and end with the law. In whatever form it might take, do we need to take seriously attempts to rescue some form of (even minimalist) natural law for our times? In other words, human rights activists should be able to say clearly that what happened on 9/11, as well as 3/11, and 7/7 was an unequivocal abuse of human rights. Full stop.

    Second, do we need to consistently question the language of radical ruptures, new beginnings and changes in the rules of the game. In odd ways, this existentialist discourse (that can reduce major decisions of policy to the agonised reflections of ‘the leader’) maps eerily on to the awful and appalling ‘aesthetic’ of the terrorist attack. Both are, of course, fundamentally different (words, deeds and practical violent acts), but both in varying ways contain the seeds of a profoundly anti-democratic world view, that has given up on the hard slog of democratic conversation, dialogue and persuasion in favour of a decisionist ethic of practical action and often violent response.

    The human rights response? Active resistance to processes of forgetting, consistently keeping alive historical memory of human rights abuses from wherever they come, not letting narrow legalisms stand in the way of correct ethical responses to human rights challenges, not allowing forgetting to set in on any side (linking back to earlier posts on religion, Johann Metz, for example, has usefully talked of a notion of the ‘dangerous memory’ and insisted that this – rather than communicative reason – is where the real challenge to corrupted and distorted modernity rests). It seems that modern culture is driven by a logic of constant novelty, constant change, and experimentation – which promotes and assists a decisionist politics that undercuts rights and democracy every time. ‘Terrorism’ is not new. ‘Counter-terrorism’ is not new. What have we learned, what should we not forget? Remembrance as a constant form of rights-based challenge? Why do we have human rights in the first place?

  3. Favio Farinella says:

    Domestic criminal law may be an effective response to deal with human rights breaches performed by private individuals and organizations. But as regards the rest of massive violence performed by states against individuals domestic criminal law is not the answer but the effective instrumentation of international criminal law -the international criminal responsibility of superior and intermediate leaders-. And at this stage, why not to accept that in order to face the same massive violence (widespread and systematic and directed against civilians) perpetrated by criminal political organizations not affiliated to the state -which include though are not limited to terrorist organizations- may we make use of the Rome Statute and the ICC?.

    In a way bin Laden’s fundamentalism was repealed by another fundamentalism, that of president Bush administration. Both of them contributed to damage the idea of human rights. The former by directly violating the most fundamental rights and generating that never-ending feeling of insecurity which facilitated the enlargement of western state police administrations. The latter by placing home (US) security above international law and human rights. In this last sense ‘western human rights’ were attached to the idea of the ‘most sacred duty of civilization’ embedded in the covenant of the League of Nations, forgetting or ignoring that every culture deserves respect and shall be tolerated.

    The work is not finished: terrorism should be combated as much as impunity of state leaders for the violation of human rights (which also deserves to be fought). Blacklists are still a shameful consequence of combating terrorism above the law, and still hurt the idea of universal tolerance. For getting this, tolerant human rights defenders should be well aware of fundamentalists -on both sides (terrorists as well as western conservatives!)-.

  4. Craig Valters says:

    This has a great deal to do with who monopolises modern understandings of particular powerful concepts.

    The main barrier to preventing or repealing draconian terrorism laws is held within the word ‘terrorism’ itself. As I believe you have argued elsewhere Conor, within contemporary discourse, to call something ‘terrorism’ is the same as calling it morally wrong. Furthermore, if what a state does is both violent and designed to spread terror, we no longer call that terrorism. This change has not occurred in a vacuum – the domination of powerful concepts such as terrorism are crucial to states maintaining legitimacy and dismissing threats as illogical, or more importantly, the causes of those threats as beyond explanation.

    The majority of people see terrorism as a deeply ‘inhuman’ act, which in turn has dehumanised any posed ‘terrorist’. But we would be right to question who gets to determine who is a terrorist and who is not. The fluidity and power of the term ‘terrorism’ has grown as powerful states seek to redefine their enemies in simplistic ‘evil’ terminology, deliberately creating an ‘us’ and ‘them’ mentality. Defining enemies in this way has paradoxical benefits for states: in one sense, the enemy is clearly defined as a directly opposing force, an intrinsic evil, which can make it easier to mobilise popular support for draconian laws. Part of challenging this (from a human rights perspective) is to go back to the message of common humanity that underpins the modern human rights movement, as you mention.

    Yet in another sense, the broad notions of ‘them’, ‘evil’ and ‘terrorist’ sanction a blurred definition of the enemy, allowing for the any given new enemy to be defined as such within the existing framework. In explaining violence, David Keen has shown how certain words, such as ‘evil’, ‘chaos’ and ‘mindless violence’ have come to be meaningless – their use tends to be a confession that we are unable to explain a phenomenon. We are at the point where ‘terrorism’ surely is not far away from this list – at least, its explanatory power lies in the transparency of its use by powerful nations over weak political groups. That is not to say that ‘terrorism’ is not a ‘real’ problem. Of course it is. But in attempting to promote our idea of a common humanity, we should bear in mind that the word ‘terrorism’ itself tends to promote a caricature of the ‘evil’, ‘them’ and the ‘other’ that is not useful in understanding or tackling its causes.

    The most important challenge for those who challenge draconian anti-terror laws is to question the dehumanisation that lurks beneath them. The stark nature of the possibilities for dehumanisation were brutally summarised by Ariel Sharon (again stolen from you Conor), just 5 days after 9/11, ‘The war against terror has to be an international war. A war of the free world coalition against the forces of terror…It is a war between the humans and the blood thirsty’

    On a slightly separate point Conor: you ask, ‘Do I understate the threat from terrorism?’ and ‘Will there be a revival in subversive political violence?’

    It’s worth noting that (although I’m not 100% on this) that Iraq had not had a single suicide bombing for many, many years before the invasion in 2003. The ‘War On Terror’ has may have been successful in limiting Al Qaida to beyond Western shores but that may well be at the cost of containing the growth of radical ideologies within other states.

    The War on Terror was premised on the strange notion that (drawing on David Keen’s arguments again), that the threat of terrorism can be nullified by the elimination of key ‘evil’ individuals – this will somehow miraculously solve complex social and political problems. Keen argues that the logic of the War on Terror does not take seriously the causal process in which terrorists are made and replaced. In Iraq, this has fed into a poor understanding of complex issues such as post-conflict reconstruction, which play a major role in its instability (and the possibilities for creating ‘terrorists’ now. If we assume that the goal of the ‘War on Terror’ is to win, to eliminate all ‘evil’ terrorists, it’s certainly worth pointing out that the responses to 9/11 and particularly the war in Iraq have actually been a powerful force in the creation of terrorists.

    Interestingly, the hypothesis of blaming a evil individuals (or ‘bad apples’) was inverted in attempts to explain the torture at Abu Gharib – when of course in reality such events are the result of the dehumanisation of terrorists that the US-led coalition played a major role in.

  5. Christina says:

    Conor,love the questions.
    A great way to focus attention and draw threads.
    1. If a lawyer of your standing and integrity is unable to be optimistic, what hope for the rest of us?
    Both Binyan Mohammed and Albie Sachs after years of torture, solitary confinment, and in Sachs case a car bomb. still believe in human rights.
    2. I believe there is a statue to a former terrorist in parlt square and outside the festival hall. ” Terrorism” is the bogey man threat, to keep the children quiet. In Australia it was the communists. In fact more threats to life and safety are posted by govts’ complicity in cost cutting to increase profit. BP in several places, Toyota, Rolls Royce engines in international jets, and my favourite the age and decrepit state of the Northern line.

    3. Criminal law is the most effective answer, when properly applied and not self serving.

    4. Human rights are a part of a particulr culture. Of each and every one. Only by examining their application and recognition in our own culture can we point to others and hold them to account. As an existentialist, my every action represents all of humanity, what it is capable of in its best (and worst (Bagram).
    How funny if there were only one culture where they applied! Lilliput or the people of Brobdingnag?
    5. Weaken our culture? surely the culture is weakened by the corruption which weakens states, at the expense of profit, eg BR and the Delta in Nigeria, or Columbia. More states are driven by and controlled by drug cartells than is generally recognised.
    One might look at Carla del Ponti fighting for rights in Italia, Rwanda and Yugoslavia or the politician assassinated in Pakistan this week. Their belief in human rights, shows us the way. NO we are made stronger. Just as extremist of any kind are strengthened by the draconian laws and survellience we currently see.
    Conor you are being disingenuious, with these.

    However, we will cross swords soon, as I don’t seem to believe trees are human, and aboriginals see their burning, as good land managment, in their respect for the land which is part of who they are.

  6. Richard Buck says:

    There is no way of avoiding the fact that human rights cannot exist without civil order. Likewise a lawless international scene will not be conducive to human rights. Conor, I agree that terrorism should be dealt with as a crime, domestically and internationally. On the domestic scene there should be no exceptions. In this case, the ends (protecting the human right to life of most of your citizens) do not justify the means (violation of the human rights of some of your citizens and outsiders). Internationally, international law should be the first tool in neutralizing terrorism; but this will not be sufficient. Since there are gaps in international law—such as some states not being parties to the relevant treaties, and the inability to deal with states harbouring terrorists, extra-legal processes will be necessary. This is a slippery slope indeed. Military incursions into safe-harbour states can be justified under just war doctrine, and the just conduct of war would require that the innocent be protected. However, an invading army is going to violate human rights, even beyond the so-called collateral damage, guaranteed. The Iraq and Afghanistan wars are proof of that. The Stanford prison experiment demonstrated that giving anyone absolute power over another will lead to abuse. If military action is used to curb human rights abuse, the war objectives should be clearly identified and the military action should be of short duration. Long-term occupation should be avoided.
    I agree that in making decisions about combating terrorism leaders should take the universalist position—the rationale for action should be the protection of human rights, not protection of the rights of my citizens. Politicians should be statesmen. Is this too much to ask of national leaders? The rhetoric of western leaders, I am afraid, has been pretty much In the particularist camp so far. President Bush set the tone in this regard, and it has not been turned around even to this day. We need leaders who will take a moral stance, rather than worry about the next election.

    Fighting terrorism in a way that preserves human rights takes courage. There has to be a willingness to go only so far in the interests of safety. We should not protect ourselves through wholesale violation of the human rights of others. A police state is too high a price for safety.

    The golden path to reducing terrorism in the world is one that seeks to eliminate its causes. And isn’t abuse of human rights a big cause of terrorism? Of course there are people in the world that engage in terrorism so that they can replace existing suppressors with themselves, and there are groups of people fighting over a piece of land—and who is to say who really ought to own it. All that being said, I feel comfortable in asserting that if everyone acted on the premise that the dignity of all people should be honored, there would not be much terrorism. No leader can ignore the immediate safety of her people, but this should be tempered by the long-term goal of eliminating the causes of terrorism—probably at the expense of some of that safety.

  7. Paul Bernal says:

    Another crucial topic – and some excellent responses already. I’d just like to raise one small aspect of the subject, one related to my particular field of interest: privacy and the internet. One of the many ‘side-effects’ of the counter-terrorism movement has been the expansion of surveillance of our online activities, and the increase in the ways that personal data and other information is gathered and used online. The most direct example of this is the concept of data retention – by which all our communications, our browsing data and so forth is required to be held and made available to the authorities. The key here is that the Data Retention Directive was passed a few short weeks after the London bombings in 2007, and the bombings themselves were mentioned in the preamble to the directive, though the directive itself allows much broader uses of the data retained.

    The point I want to make here is that this kind of legislation – indeed, this kind of approach – is something that we need to consider from a human rights perspective, and if human rights is to regain its ‘soul’ it needs to fight for freedom online (and for dignity, for equality and so forth) as well as offline. Our online activities are now an intrinsic part of our lives – and if we allow the kinds of surveillance, the kinds of monitoring, the kinds of control that are currently being developed and implemented both technologically and legally, then we’re allowing far more than just our online activities to be monitored and manipulated. If we want a society with freedom and equality, we need to ensure that we develop and online environment that supports that freedom and equality.

    That’s why things like the current Wikileaks saga are crucial – if we allow freedom of expression to be crushed by the combined forces of government and big business in the way that the ‘establishment’ are trying to crush wikileaks, we stand to lose far more than the functions of an ethically slightly dubious organisation.

    • Richard Buck says:

      Paul, a scary example of the ease with which rights can be infringed by a democratic governments was the easy passage of the Patriot Act in the United States. There was little protest, except by a few groups, like the ACLU. When the Bush administration decided that Americans could be imprisoned indefinitely without trial if they were declared as enemy combatants, there was nary a protest march. This should have incensed Americans. When it comes to the internet surveillance we in western democracies seem to be even more docile. It does not seem to bother us that people can be prosecuted because of what they view on the internet. Incredible! I think that surveillance of internet activity should be allowed only by court order based on probable cause. Back to basics.

      • Paul Bernal says:

        One of the really sad things about laws like the PATRIOT Act, and indeed the Data Retention Directive (and of course a whole raft of other counter-terrorism laws) is that they’ve now become part of the ‘fabric’ of our legal systems, somehow seemingly accepted by politicians of almost every flavour as somehow ‘necessary’. There’s no protest, little sign of anyone suggesting repeal or reconsideration – which is something that all of us should be ashamed of.

  8. Favio Farinella says:

    Terrorism constitutes a twofold threat posed to human rights. On one side, there is the public opinion approach that thinks of it as a menace for western civil liberties. On the other side -most relevant-, terrorism is forcing human rights to come to its own furthest limits. When the terrorist menace is not striking, it seems it has faded away. But it may be latent. Or not.
    This uncertainty about the evolution of the terrorist menace is the main challenge human rights will have to cope with, because it is directly referred to setting limits to the right and to the left on their basic assumptions of human rights.

    To the right because even important, civil liberties are not absolute and they may be limited for the benefit of the whole society. Which is the breaking point in which we are willing to accept restrictions to basic rights based on the justification of their survival? Are we ready to accept a smaller room for our privacy? Or perhaps are we in favour of letting our emails or surfing on the net being surveyed? Irrespective of our opinions, these facts happened. Democratic states grew stronger and then, started to invoke those instruments designed for the previous war -on terrorism- to other different battles governments want to fight, such as unwanted immigration, demonstrators and the like, as Conor explained it in common track 7.

    To the left because new methods and proceedings are maybe needed in order to cope with the global terrorist menace. Guarantees of the due process of law shall be respected, even tough they are -also- not absolute. For instance, do we have any doubt that if any of the main leaders of Al-Qaeda is got and subject to a judicial process, he will be condemned? This assumption about the culpability of -at least- the superior leaders, does it mean that we are being partisan? Or on the contrary if we pretend to be absolutely non partisan would we be appearing as naïve? .

    In the end, civil liberties are menaced again. On one -old- side by terrorists, on the other -new- side, by some big powers and their much less controlled democratic governments. Complicity of some European states in the American extraordinary renditions and the UN Security Council and European Union black lists are examples of the security overdose. However, human rights activists answered back and so did international and regional institutions denouncing, disapproving and censuring that ‘legal abuses’ which because of the oxymoron, had turned illegal.

    If there is a war to fight, it is not between ‘a free world and the evil’ as in a low budget movie, but within all those who contribute to making up the idea of human rights. Or better, if not a war, a polite discussion between tolerant human rights supporters and other radical believers who prefer to convert everyone to an universal creed without particularism. Learning to be tolerant within a basic scheme in which core rights are respected is difficult since it constrains us to coexist with as many cultures as mankind still is blessed with.

  9. I think one of the really interesting things you say here, Conor is: “What was especially shocking about the years after the 11 September attacks … was how the idea of human rights came to be understood by some in a way that flew in the face of its core meaning”.

    This is interesting on a number of different levels. One – which I know a number of people will not agree with me on – is the question of what the core meaning of human rights are supposed to be. I think there is a lot more controversy about the core meaning of human rights than what is usually allowed, particularly by those who accept the rhetoric of the human rights movement at face value, which it is not always wise to do. But leaving that deeper discussion aside for the moment…. I think the general drift from this and previous posts (and your heading immediately above the quote) is that the core meaning of human rights is the dignity of the human person. And the interesting political conundrum is how it could be that a doctrine which has this core belief was then used to justify the unspeakable things which have been done under the auspices of American (but not just American) foreign policy since September 11.

    Part of the reason that I find this interesting is because I am reading Samuel Moyn’s The Last Utopia at the moment (on your recommendation!), and part of what is brought out very well by Moyn in his opening chapter or two is the way in which the actual history of the rights which are now articulated as human rights is so closely linked to the development of the modern nation state and the sovereignty of that state. The rights that are articulated within a given political community, housed within a state – many of them now expressed as human rights and thus made universal – have their more gut level identification with “we the people” where that is also associated with “our way of life”, “our interests”, the “sovereignty of our state” and so on.

    So, while human rights have more recently become explicitly identified with a universal or cosmopolitan political project, and while quite often the justification for them as rights even as they were originally developed might have had universalist ethical justification/motivation/content, nonetheless their political achievement and instantiation, their particularity and their association with a specific “we” is deeply embedded in their DNA. (All of us who actually have our rights respected, do so because our state and its institutions guarantee them, not because of some more global dispensation). And thus, when that “we” feels existentially threatened, it is not surprising to see the “deeper” identifications of human rights with “our” survival become linked to actions and activities which go against the professed meaning of the doctrine.

    Perhaps it was ever thus. Institutional religion (to pick up from last week) is notorious for defending its interests, its way of life and its turf through means which are abhorrent to those of simple devotional piety. Examples could be proliferated to illustrate the point.

    The response, I think, is not to be critical of human rights per se, but to accept that like any other political doctrine, if there are not transparent and accountable political institutions in play, then those who are capable of dominating the field will do so, and will use whatever rhetorical cover they can grab hold of to justify (or camouflage) their intentions.

    This is one of the reasons why many people, for example, are justifiably skeptical about the good that is done by some NGOs and IGOs who claim to be interested in the human rights of vulnerable populations, and who having got money from people who have charitable inclinations then think they are justified – or even ethically required – to go and distribute this money as they see fit. Transparency and accountability are missing here; sometimes there is not even an acknowledgement that such behaviour is a politics which should be critically evaluated and which (here we go…) in the very name of human rights themselves can be deemed inappropriate, possibly harmful and at the limit abusive. So it is not just in “our” response to terrorism such as that represented by September 11, but also in “our” response to the terror of routine global poverty that human rights can come to mean the opposite of what we think they do.

    I was going to make a brief response to each of your discussion questions, Conor, but I now see that if I do that I will be writing all night! Let me say something about your reference to universalism though. I think human rights are a particular political doctrine (or several doctrines), which has universal intent. I don’t think they are universal in the sense that they can be found everywhere and that everyone already agrees with them – I think this is simply mistaken thinking, however well meaning. But human rights (or the liberalism or social democracy which is used to justify them) do make universal normative claims, and I think these are defensible in rationally compelling ways – although, again, I don’t think there is one knock down argument which answers all questions. If there was, there would be no need for your project! I think the key universal claims of human rights need to be made and defended (such as human dignity), but I think it also has to be recognised that at the end of the day the intellectual argument is only going to be won with those who share a sufficient number of basic premises with us that they can be persuaded.

    Some people, unfortunately, won’t – such as those who are happy to sacrifice innocent lives for their political goals; these people exist on all sides of human conflicts. One of the key forms of defense here for cultures and political communities that believe in a human rights culture is to make sure their political behaviour is consistent with their stated beliefs. The attempt to promote democracy and human rights in Iraq by engaging in antidemocratic and human rights abusive behaviour… – this is what makes “us” weak, it is “our” own behaviour. Our real vulnerability is not from terrorists such as those who perpetrated September 11. They are few and far between and, however horrendous the consequences of their behaviour (something which should never be trivialized), it cannot be considered a genuine threat to our survival – even to our flourishing. Our real vulnerability is from within our political system, not from our adversaries (real or imagined) outside it. I think this is clearly evident when one looks at the politics of the USA over the last decade.

    • Christina says:

      Absolutely agree, what makes us weak is what is within us. ” think human rights are a particular political doctrine (or several doctrines), which has universal intent.”
      I think this is my belief also, and the sense of core human rights, seems to be an interesting one. Because a few seem to be absolute in a way that no-one could disagree, which then leads me to the thorny question of whether there is a hieraracy of rights, and how they should be apportioned.
      right to life? right to education? right to water? Although there are those in Queensland at the moment who might think you can have too much of a good thing. ;( A flood on this biblical scale surely dwarfs any fear of terrorists, and yet we shall see human nature at work in the aftermath, as Australians accept as part of life on this continent, fire, flood and drought.

  10. Lily Megaw says:

    On the ‘Dignity is Not for Everyone After All’ sub-section:

    Human rights were not always thought of as universal before 9/11. I don’t dispute the idea that human rights are conceptualised as part of our (Western) value system, to be protected from the outsiders who are intent on destroying them, as mentioned in this track. But surely this view is not an effect of 9/11 and has existed at least since the establishment of human rights with the UN in the mid-20C? While there has always been formal recognition that the individual is at the core of human rights, the notion of a ‘bad’ anti-human rights culture from which we must be protected has also existed from the very beginning. Postcolonialism (Makau Mutua, Gayatri Spivak, etc) lends insight here, identifying how human rights were used to conceptualise the colonies as Europe’s ‘other’. It seems that as with most concepts, human rights can only be defined in relation to their alternative, and this alternative must first be recognised.

    However, this conception of human rights is unhelpful in tackling an issue such as terrorism, which requires recognition of universal human rights since it has the potential to grossly violate every human being’s rights. Furthermore, the notion of regional specificity – that ‘we’ live in a culture that respects human rights, and our task is not only to spread the idea of these rights but protect them from the ‘outsider’ – totally disregards the fact that terrorism is not an external force but can be (and many times is) home grown. The 7/7 bombers were all Britons. As Richard Buck recognises above, the causes of terrorism can include grievances from land inequality or abuse of human rights – it is not always bad culture that gives way to terrorism, thus we cannot address it as such. As Craig mentions in reference to David Keen, complex social and political problems (which give rise to terrorism) cannot be solved through the elimination of ‘bad’ individuals along with their supposed anti-human rights culture.

    This comment seems to be have turned into a bid for universality, in agreement with this track – with a transcultural movement such as terrorism, which threatens not only the lives of one nation’s individuals but potentially every human being, an international counter-terror approach must go hand-in-hand with a universal conception of human rights. A narrow, regionally specific conception of human rights victimises certain ‘outsider’ individuals and groups, and only serves to undermine the concept beyond validity.

    • Christina says:

      Of course terrorism can be home grown, and later terrorists of a former time are now acceptable at Buck house, Mandela as the most obvious. It seems that universality is becoming an agreed theme, and I cannot concieve of a culture which would not recognise them.

  11. Colin harvey says:

    Conor’s point about the co-option of the discourse of rights is a vital one. It reflects a realith of contestation now happening within the discourse itself, raising intriguing questions around how such fierce interpretive disagreements get resolved (communities of interpretation weighing in?). But it does make me wonder sometimes if we should ration rights discourse along the lines of ‘do not talk the talk’ if you are not, and never really were, ‘walking the walk’. Should we human rights activists insist that those who verifiably are not intent on realising rights ( and all that this means in terms of confronting human suffering and privileging the needs of those who objectively need rights most – the vulnerable and marginalised). Sometimes I do want to say ‘just stop saying it if you do not mean it’, plus stop twisting the language to make words mean almost anything you want them to mean. It reminds me of some politicians who insist on describing things as progressive when they are demonstrably not. Although, maybe if they keep saying it, at least we can continue to make this point!

  12. Colin harvey says:

    Conor’s point about the co-option of the discourse of rights is a vital one. It reflects a reality of contestation now happening within the discourse itself, raising intriguing questions around how such fierce interpretive disagreements get resolved (communities of interpretation weighing in?). But it does make me wonder sometimes if we should ration rights discourse along the lines of ‘do not talk the talk’ if you are not, and never really were, ‘walking the walk’. Should we human rights activists insist that those who verifiably are not intent on realising rights (and all that this means in terms of confronting human suffering and privileging the needs of those who objectively need rights most – the
    vulnerable and marginalised) should just stop using the language. This does of course mean we also must defend a substantive and normatively defensible concept of what human rights are for. Sometimes I do want to say: ‘just stop saying it if you do not mean it’, plus stop twisting the language to make words mean almost anything you want them to mean. It reminds me of some politicians who insist on describing things as progressive
    when they are demonstrably not. Although, maybe if they keep saying it, at least we can continue to make this point! The point is really Conor’s one of how we curb powerful actors from colonising and distorting human rights, in a world where battles over interpretation reflect real struggles and where the outcomes of those interpretive conflicts have real practical effect.

  13. Richard Buck says:

    My vision for the west in dealing with terrorism while preserving human rights is to first set the example for honoring human rights, not only among our own citizens but everywhere in the world. This means that no one’s human dignity would be sacrificed to our own safety. Part of that good example would be to not use military might to combat terrorism, but to treat terrorists acts as crimes and to use international mechanisms for policing and justice. Another part is to eschew economic policies that insure continued poverty in many parts of the world. Discontinuing many of our agricultural subsidies would be an example.

    The second step is to go on the offensive against the injustice in the world that often is the cause of terrorism, not by military action but by diplomacy and good works. If the resources of the west that are devoted to foreign military adventures were diverted to alleviating poverty and injustice, real progress would be possible. I will cite the example of Haiti, one of the closest neighbors of the United States. If a small portion of the U.S. defense budget were redirected to building infrastructure in Haiti, I wager that Haiti could become reasonably prosperous and perhaps move toward a more just society.

    The third step is for western states to withdraw support from gross violators of human rights. This would mean that the U.S. would have to cease supporting both Egypt and Israel with arms and cash. If the first two steps are actualized, the west would be on the moral high ground in denying this support to human rights violators. I do not suggest economic sanctions that more often hurt the people we are trying to help.

    The fourth step is to examine laws that nurture a criminal element in our countries and countries outside the west. The one example I have here are drug laws. Our drug laws have encouraged the development of an international criminal culture that has devastated some third world countries; such as Afghanistan, Columbia and Mexico. It has filled our own prisons with people who need compassion and help, not incarceration. However righteous these laws are in some kind of alternate moral universe, the effect has been a disaster for human rights.

    These actions will not immediately make us safer from terrorism. They are long-term measures that look to a more just future world that will be safer for everyone.

  14. John O'Donnell says:

    Conor

    A thought-provoking piece. I am by nature optimistic, and wish I could share your optimism about the ability of law (criminal and otherwise) to meet terrorism now.The difficulty with the whole concept of terrorism since 9/11 is as Semus Heaney puts it, “Anything Can Happen”. If the perception now is that nothing is “off limits” for the terrorists, then isn’t it understandable that many view the outrages of Guantanamo Bay and the like as collateral damage; undesirable, distasteful yes but ultimately a necessary evil; to do a great right, do a little wrong, as TS Eliot says. Naturally this plays into the hands of the likes of Bush, and it is the kind of slack thinking that human rights “activists” abhor; but isn’t at the very least understandable? In such circumstances, no law can ever be draconian enough, no “security measures” tough enough. The people who need convincing of the appropriateness of a measured response aren’t the human rights lawyers. The people who require convincing are the families standing in the security queues. In the airport, for example ; the lady of almost 80 years of age taking off her shoes; the teenage girl who forfeits a bottle of perfume because it doesn’t fit in the 100ml plastic bag; the man who beeps again and again as he walks – innocently, but embarrassed – through the X ray machine. They aren’t thinking about human rights; or certainly not the rights of prisoners. As far as they are concerned, the “war” (whatever that is, or was) on terror is over; all of this security paraphernalia means – to them- that the good guys lost. I don’t believe this myself, but I do believe it is essential that we find some way of persuading people that the rule of law is – and should remain – worthy of respect in order to redress the sense of despondency that cannot but cloud the mindset of otherwise right-thinking people.

    Love the project; stimulating and thought-provoking. Keep talking.

  15. Christina says:

    Some excellent comments by Richard Buck, and something to consider from Paul Bernal. Not being American or English, I don’t get the loss of innocence about 9/11. Awesome (correct use of word), but so are the floods in Queensland, Haiti , and Hurrican Katrina. When is a natural disaster worse, than a terorist disaster? Measured by lives lost, (white American say) or property? I’m with Paul Bernal on the creeping intrusion, Whitehall now lined with fortress ballustrade. No more IRA rockets in the garden of Downing St. the city has a “ring of steel”, but we’re also beginning to live in a mental fortress where even our thoughts are owned and recorded. So haven’t the so-called terrorist won? prescribed our freedoms?

  16. Lee says:

    “Do I understate the threat from terrorism?”

    This question appears to have received the least response yet for me it is crucial to our understanding of responses to terrorism. My answer is: “I don’t know”, and I don’t think that you can know either Conor. A high level of secrecy is maintained by the intelligence services to protect methods and sources and I have some sympathy for that. I often wonder if I would support control orders if I knew what MI5 “know” about their targets, or about attacks prevented, or the jeopardy to intelligence gathering which would result from making that evidence admissible in court. Without this knowledge we analyse the legislative response to terrorism with only half of the picture.

    However, that we have only half of the picture is the government’s choice. My conception of democracy does not involve giving the government the benefit of the doubt. The mission creep in other anti-terrorist legislation – stop & search in London; protest restrictions; freezing of bank accounts (including Landsbanki and Kaupthing) etc – shows us that close scrutiny is required.

  17. Adam Brown says:

    Roughly two years ago, I volunteered with a local church group distributing food to the homeless along the Strand. A week or two before Christmas, a heavily armed branch of the British counterterrorist squad swooped in and held all volunteers up against the wall at gunpoint, believing that the Christian group was a terrorist cell. The incident was a mistake, misinformed intelligence or surveillance, but the affect was particularly traumatising to many of the volunteers.

    This incident, along with many others in society – extraordinary rendition, greater surveillance, secret interrogations, torture, random police stop-and-searches and political assurances that we remain in a perpetual war against terrorists, not only have a particularly Orwellian feel, but suggest to me that we are not convincingly winning the balance between human rights and the ‘war on terror’.