Terrorism and Human Rights

by Conor Gearty

*Originally published in the journal,
“Government and Opposition”
Volume 42, No. 3 Summer 2007, p.340-362
(Download pdf)

THE PURPOSE OF THIS ESSAY IS TO CONSIDER THE IMPACT ON HUMAN
rights of the recent rise in the importance attached to, and the perceived
danger arising from, violent acts of terrorism. By ‘human rights’ is meant the
law, practice and scholarship that has grown up around a subject that has
enjoyed huge attention over the past 60 years, beginning with the new
international order that was put in place at the end of the Second World War
and exploded into public view even more dramatically with the end of the
Cold War in 1989. If the half-century that followed the signing of the
Universal Declaration of Human Rights by the vast majority of the nations of
the world in 1948 can without exaggeration be described as an ‘age of human
rights’ then it may well be the case that the next 50 years (and beyond) will in
due course with equal validity be capable of being described as an ‘age of
terrorism’ or – if one is sceptical of the empirical foundations of the claim – at
very least an ‘age of counter-terrorism’.

The first part of this article concerns the global challenge to human rights that
is posed by the plethora of anti-terrorism laws that are being put in place both
in international law and at the national level in many countries around the
world. To a certain extent these changes entail the emergence of new
exceptions to and derogations from the law of human rights, with the effect of
these being to undermine human rights protection, both in theory and in
practice. At another and deeper level, these developments are about the
harnessing of the human rights ideal itself to legitimize action that in any other
context would clearly be condemned as in violation of basic rights. The
resulting external and internal challenges to the integrity of the language of
human rights, and how to resist them, are the concern of the first section. The
focus of the article then shifts to the interaction of human rights and terrorism
in the United Kingdom, an application in a particular context of the foregoing
general discussion on terrorism and human rights. The administration of Tony
Blair famously enacted the Human Rights Act 1998 in its first term, as a
tangible and early indication of New Labour’s commitment to the post-1948
global human rights movement. Its ministers have also subsequently defended
the Human Rights Act1 and fairly rigorously implemented court judgments on
national security, even those with which they have heartily disagreed.2

The government story is not all one-way, however. Even before the events of
11 September 2001, the Labour administration had insisted on the need for
terrorism laws to an extent never before seen in Britain, refusing to regard a
cessation of mainstream IRA subversive activity as a reason to dispense with
the terrorism laws altogether3 and enacting the Terrorism Act 2000 as the
UK’s first, permanent antiterrorism legislation. The country was therefore
well placed to develop its armoury of terrorism legislation when the 11
September attacks were thought to make such further legislative intervention
essential. The Anti-Terrorism, Crime and Security Act 2001 has been
followed by the Prevention of Terrorism Act 2005 and (after the 7 July 2005
bombings in London) the Terrorism Act 2006. More initiatives in the same
vein are promised, with yet further proposals for new anti-terrorism laws
likely during the 2006/7 legislative session, these having been anticipated in
the week leading up to the November 2006 Queen’s Speech by very public
interventions about the need for action from the heads of the security service
and the metropolitan police.4 The second part of the article then assesses the
way in which those who believe in human rights can and should respond to
the challenges set out in this section, and in particular how best to maintain the
integrity of the subject in the face of what is, as we shall see, quite strong
pressure from those more committed to a robust anti-terrorism perspective.

GOVERNMENT AND OPPOSITION
A particular focus of what follows is with what might loosely (for want of a
better formulation) be called the ‘human rights community’.5 Where should
human rights lawyers, practitioners and most importantly of all for the
purposes of this article human rights scholars stand in the debate about human
rights and terrorism? This is a more difficult and important question than it
appears. It is important because the conclusions that are eventually produced
will go a long way towards defining the kind of society we are, the form that
liberalism takes in the post-socialist future that is likely to lie ahead (for some
decades at least). But it is also difficult because many of the pat answers so
frequently asserted by the protagonists of human rights, even those on the
scholarly end of the market, do not convince; in thereby failing to persuade
hey manage only to leave their subject vulnerable to further attack. It will be
argued that a series of new responses is required if the idea of human rights is
to continue its upwards trajectory. These responses will need to be less
dogmatic and more pragmatic than in the past, less arrogant and more humble
than has often seemed to be the case, less inclined to see human/national
security and human rights in inevitable collision – but despite showing
sensible flexibility they will also need to preserve absolutely and confidently
the essence of the subject’s commitment to human dignity. Having indicated
some of the preferred answers along the way, the article will end with some
thoughts on how best to map out the future of human rights in the age of
(counter-)terrorism that we may well have already entered.

THE INTERNATIONAL BACKGROUND
The subject of human rights can often appear to be above politics and
international relations, a kind of supreme moral code immune to the vagaries
of the moment, made up of a set of ethical commands to which all are required
to swear allegiance. Part of the fault for such a misleading projection lies in
language: the term ‘human rights’ seems to carry within itself a claim to a set
of universal truths that many find seductive.6 Of course this is partly true.
Pared down to its essence, the idea of human rights is about three essential
beliefs.7 The over-arching commitment is to equality of the person. The
believer in human rights is committed to the dignity of all, regardless of their
ethnic, gender, national or any other kind of background. This has a well-known
prohibitory dimension: the human rights advocate is determinedly
opposed to torture, to genocide, to all forms of ethnic cleansing, and (it
therefore follows) to terrorism, or at least to the kind of violent criminality
that turns ordinary persons into corpses through which to communicate a
message to a third party.

But human rights also has a positive side, one that emphasizes that a
promiscuous commitment to human dignity is about human flourishing, about
the growth and personal development of us all. This is the side to human
rights that is reflected in ambitious programmes such as those represented in
the range of rights set out in the International Convention on the Rights of the
Child8 and in the aspirations laid out for human kind in the Universal
Declaration on Human Rights.9 Because protagonists of equality and human
dignity judge that the best routes to their realisation lie via an independent
system of law (to prevent gross violations) and a representative system of
government (to secure the flourishing), such people also commit themselves to
democracy and legality. A commitment to dignity, democracy and legality
marks the human rights believer out as neither dogmatic nor domineering but
as universalist and absolutist on what he or she claims to be the fundamental
building blocks of an ethical society. This is the core to our subject and one to
which I shall return in the course of this article while seeking answers to the
problems thrown up by counter-terrorism law that I have already identified in
my introductory remarks. It is impossible to avoid the fact that there is another
reality to the human rights story, however – one that is as embedded in history
and the power relations of the past (and present) as any other term.10 This
solidly realistic dimension to the narrative explains the great success of the
term, why the idea of ‘human rights’ has made it when so many other phrases
have also been jostling for audience attention in the theatre of ethical dreams.

Interestingly for the purposes of this special issue, the relationship between
human rights and subversive violence is closer than many human rights
protagonists today like to admit: the first leg-up on the ladder of success was
provided by insurrectionists lucky enough to be successful. The natural rights
emphasized by one of the progenitors of the subject, John Locke, came to
provide the intellectual basis for the ‘glorious revolution’ of 1688.11A century
later, the development of a fresh perspective on the rights of man, fostered by
writers like Jean-Jacques Rousseau and Tom Paine, did a similar job for
French and American revolutionaries intent on overthrowing the established
order in their respective countries. Even the preamble to the Universal
Declaration on Human Rights speaks of the need for such rights so that ‘man
is not compelled to have recourse, as a last resort, to rebellion against tyranny
and oppression’. There are echoes of this subversive dimension to human
rights in the development as part of the human rights story of the notion of a
right to self-determination.12 The anti-terrorist specialists are less wrong than
the human rights people like to think when they condemn human rights as
giving succour to the politically violent: this is exactly the murky ethical
world from which the subject has so triumphantly emerged.

In the immediate aftermath of the Second World War, respect for human
dignity formed one of the three foundations (together with the other two
elements in our human rights triad, democracy and the rule of law) with which
a triumphant United States sought to create a new international human rights
culture, rebuilding the world for the better by entrenching anti-fascist and anti-
Stalinist constitutional structures in nation-states like Germany, Italy and
Japan while at the same time encouraging the development of universal codes
of human rights at the international (e.g. UNDHR) and regional (e.g. ECHR)
levels.13 Backed by strong financial investment in the form of the Marshall
Plan, and with the subsequent total failure of Stalinist democratic centralism
still vivid in our memories, these post-war policy initiatives by the USA are
now seen as a great success, at least in those states primarily exposed to them.
The polarizing effect of the Cold War, in which the subject of human rights at
the international level quickly became ensnared, led to a decades-long
bifurcation into two apparently separate and conflicting zones, the civil and
political (the US version) and the social and economic (the Soviet). It was the
success of the United States in seizing the language of human rights and
persuading the world that the subject was pretty well exclusively concerned
with the civil and political (Dr Sakharov; the freedom of movement of Soviet
Jews; Charter 77; etc) that in the late 1970s began to put intense moral as well
as political pressure on a communist system that was already feeling the
economic strain. The result was a set of Soviet initiatives that embraced the
US version of human rights (glasnost in order to achieve perestroika), but at
the price of the eventual destruction of the whole system and, not so long
after, the Soviet bloc and then the Soviet state itself.14

As indicated at the outset of this article, with the fall of the Berlin Wall the
idea of human rights has achieved a near-total dominance as the ethical idea of
the contemporary global age.15 The United States and its allies, particularly in
the ‘old Europe’ of the original members of the European Economic
Community, applaud themselves for having been on the right side of history,
issuing human rights reports like exam results and imposing ‘human rights’
conditions on their trade with other states.16 The countries of the old Soviet
bloc, including Russia, have formally embraced the language of human rights
through their membership of the Council of Europe, an organization separate
from the European Union whose primary raison d’être is the protection of
human rights, achieved mainly (but not exclusively) through the pan-
European judicial oversight of the European Court of Human Rights. For
those of the old Soviet nations who desire European Union membership,
various other human rights tests and practical exercises are required.17 But the
hegemony of human rights extends beyond the old Cold War antagonists.
Islamic countries have agreed not one but two human rights charters, 18 while
Turkey has gone so far as to accept the jurisdiction of the European Court of
Human Rights, a fact graphically underlined by the large number of
judgments hostile to its armed forces and police service that its political
leadership has had to endure in recent years. Of the leaders of the developing
nations, India has had a code of constitutional rights since its establishment in
1948 and even China now has the protection of human rights written into its
basic law.19 Africa has its charter and court,20 as do the various nations on the
continent of America.21

Inevitably, the breadth of such international success raises questions as to its
depth. Learning that Russia, China and Turkey are all committed to human
rights and that India – with its appalling poverty and caste system – has had
such rights for decades rightly puts the reader on guard. The United States
itself has been very coy about signing up to (and ratifying) international
human rights treaties even while it has at the same time been presenting itself
as the primary guardian of human rights around the world. The gap between
rich and poor in the USA, the absence of basic entitlements to social security,
health care and other economic and social rights, and the huge dominance of
money in the political arena, all reflect an ambiguity towards the practice of
human rights at the very heart of the country whose foreign policies are most
identified with their promotion.22 There is a kind of perverse integrity to the
US refusal even to pretend to commit to certain international agreements of
which its political class disapproves. Making a paper commitment to this or
that human rights convention or agreement is the easy part; forcing through
the realization of such ideals via determined political graft, involving tough
choices and unpopular decisions, is much harder – and it needs to be
acknowledged that political slog is not something for which the proponents of
human rights are renowned. It is not germane to this article to speculate why
this should be the case: perhaps too many of those committed to human rights
are either campaigners or lawyers, these being the two types of activists who
are most mistrustful of the pragmatism required of democratic consensusbuilding.
Whatever the reason, it is surely incontestable that there is in many
countries a structural gap in human rights protection between theory and
practice, between a state’s claim to guarantee human rights and what happens
on the ground.

This is the space that the discourse of counter-terrorism has managed to widen
greatly. It was there before 11 September 2001, of course, but the law and
practice of counter-terrorism has been gleefully seized upon by those forces
within any society that are not strong (or foolish?) enough to dispense with the
language of human rights altogether, but who are capable of working
effectively to undermine its practical effect. What might spring immediately to
mind is the way in which Russia and Turkey defend their actions against the
Chechnya rebels and the Kurds respectively as necessary counter-terrorist
operations. Also sadly predicable is the Zimbabwe government’s condemning
as ‘terrorist’ all those who oppose its incompetent rule. But the problem goes
beyond the obvious targets. The International Commission of Jurists produces
a valuable ‘E-Bulletin on Counter-Terrorism and Human Rights’.23 Its survey
for June 2006 reports on new anti-terrorism proposals or laws in Kenya,
Bahrain, the Maldives, Turkey, the Netherlands and Denmark. The survey it
released two months earlier had noted Egypt’s renewal of emergency
legislation, the extension of anti-terrorism legislation in the Philippines, and
new wiretap laws in Australia.

The scale and breadth of laws such as these is beyond the scope of this article,
as is a detailed assessment of what each involves: the necessary, descriptive
treatises are gradually coming on stream as academic lawyers and other
scholars catch up with all the changes that are being pushed through under the
anti-terrorism agenda.24 Such laws do, however, characteristically involve a
great increase in the power of the state vis-à-vis the individual, a
commensurate movement away from legal and ethnic or religious groups –
some of whose members are involved in terrorist political accountability for
the exercise of that power, and a drift in the direction of the partisan exercise
of discretion against members of particular or other subversive activity. The
challenge for many of the writers tracking these new laws will be the
relatively straightforward one of textual exegesis. Some with more liberal
instincts might criticize this or that provision without questioning the central
thrust of the law they are scrutinizing. Yet this last task is surely an obligation
for the human rights scholar. He or she must be prepared to assess critically
the impact on his or her subject of the anti-terrorism law that he or she is
scrutinizing, the way in which it departs from principles of legality or of equal
treatment or the manner in which it flouts the requirements of legal or
democratic accountability. The human rights scholar is necessarily not neutral
on whether or not his or her subject should exist, and exist not merely as an
ethical camouflage for the safe promotion of other state interests but as a true
set of guarantees, delivering a better life for all and protecting individuals and
minorities from horrific assaults on their dignity. Judgement, a feel for the
context of a law, sense of right and wrong, a capacity to get stuck in, to praise
this court opinion while condemning that parliamentary decree: these are the
marks of the human rights lawyer and scholar as much as the human rights
campaigner or NGO spokesperson. These are unfashionable notions for an
academy frequently tempted by the intelligence of its members into levels of
detachment that make them watchers rather than forgers of the world in which
they live. But if human rights scholarship is not activist in this sense, it is in
truth a branch of something else (law or international relations or political
science) and not a separate academic engagement worthy of the name.25

Understood in this sense, human rights scholarship is not easy. As indicated in
the opening remarks in this article, it faces pressures from within as well as
from without. As far as the first of these is concerned, human rights
practitioners (academic and activist) need to be alive to the risk of their
subject being captured and irredeemably tarnished by the anti-terrorism
agenda. It is both inevitable and right that all legally enforceable human rights
instruments in a democracy should allow for exceptions and derogations in the
interests of national survival: the values that give rise to such legal human
rights may be absolute but their expression in legal form cannot be held to be
such without descending into incoherence. It does not follow from this,
though, that undemocratic regimes or governments with the flimsiest of
democratic facades can renege on their human rights obligations under cover
of an asserted state of emergency for which they are neither legally nor
politically accountable. Nor ought even a democratically legitimate executive
be able to claim ‘national security’ as a trump with which to defeat without
further discussion all other interests. It is the job of human rights scholars and
others in the human rights community to say all this, even when the various
branches of the state are looking the other way. A ‘human-rights respecting’
government may declare that everything is now all right in China, or Algeria
or wherever it might be. It might enact its own anti-terrorism laws, declaring
them to be justified by rather than subversive of relevant human rights
instruments, and then be supported in this view by both the legislative and
judicial branches of the state. In neither of these cases, the international or the
national, ought human rights practitioners simply to accept the version of
events that they are being offered. To the scholar of human rights falls the
responsibility of analysing such changes not only for consistency with the
relevant human rights charter but also for compatibility with the trio of core
values – respect for human dignity, legality and democratic accountability –
which are at the centre of truly universal human rights.

The external pressure on human rights presents an even greater challenge to
the human rights academic and practitioner. Here no effort is made to fit the
violations of human rights within their own frame of reference, to justify them
by reference to this narrow exception or that technical derogation. Rather
human rights is said to stand for something different, a set of values that
transcend the particular case and reflect the strength of a civilization rather
than a way of treating human kind. In Israel recently, the high court upheld a
law, presented as a measure to prevent terrorist attacks, the effect of which is
to forbid Israeli citizens and their spouses from the occupied territories from
living together in Israel.26 The parliament of the same country (the Knesset)
has also just approved a law allowing security forces to detain persons
suspected of ‘security’ offences for up to 96 hours before being brought
before a judge and for up to 21 days without access to a lawyer.27 These are
just two randomly chosen recent examples among many. The counterterrorism
operations in southern Lebanon, which involved the mass use of
cluster bombs in the final days of the conflict, would be another. The point of
mentioning Israel here – and not this or that regime uncontroversially
perceived as authoritarian or despotic in the West – is the way the country
both sees itself and is seen. Despite these judicial, legislative and military
actions, Israel is still regarded by its government and the many who defend its
actions at home and abroad as a place where human rights values make it
different from (better/more Western than?) the countries contiguous to it.28

In a similar vein, the way in which the USA administration of George W.
Bush has promulgated its declared ‘war on terror’ has involved what are
described by many as obvious violations of basic human rights principle: the
rejection or unilateral redefinition of international human rights law; the
refusal to abide by international humanitarian law; the extension of the powers
of the president in a way that explicitly involves supremacy over both the
legislative and judicial branches; the detention of ‘unlawful combatants’ at
Guantanamo and elsewhere, and of course, notoriously, the prisoner abuse at
Abu Ghraib and elsewhere, and the rendition of suspected terrorists to friendly
countries where torture as a means of interrogation is routine. The point is not
to go into any detail on these well-known actions by either the USA or Israel,
nor to obscure the fact that when the worst excesses of the military are
uncovered in either country they are condemned by the authorities (albeit
invariably as mistakes or as one-off departures from otherwise good standards
of behaviour, with punishment perhaps following, perhaps not). Our interest
lies rather in observing that, these extremes apart, in neither country do the
persons engaged in such actions perceive themselves to be violators of human
rights standards. Rather they see themselves as the true defenders of human
rights. This is even when they are engaged in breaches of national and/or
international human rights law. How can this be so and what are the
implications for our subject?

The answer is supplied not from within human rights law as such but from
within a more general discourse of human rights, one that emphasizes a
morality of the lesser evil.29 In its clearest and most coherent form, this
approach asserts that the danger facing our democracies and our culture of
human rights is so great, so evil that we are entitled, indeed morally obliged,
to fight back. In defending ourselves in this way it may well be that we
ourselves have to commit evil acts, to commit harms that run counter to our
fundamental principles, but that these actions are nevertheless justified, both
as necessary (to save ourselves) and as less evil than what our opponents do
(both because we try to ensure our actions are less bad and because we still
believe in accountability and legality while our opponents do not). This goes
for Israel as much as it does for the United States: the West together with its
honorary member Israel must hold together or it will lose all that is precious
about its civilization. The evil we all confront is of course the terrorism
against which this new but necessary war is being waged. To the extent that
some Western nations do not see that terrorism is this serious, and are as a
result less inclined to be enthusiastic about the war on terror – and about the
need to do some necessary evil – then they are effectively culpable for
the destructive violence that is made possible by their laxity.30

There are many things worryingly wrong about this perspective when viewed
through the kind of human rights lens that this article has constructed. It is the
job of human rights scholars not only to observe but also to fight back, to
rescue their discourse from the virus of justified wrongdoing. First, the
concept of ‘necessary evil’ reintroduces into international affairs the language
of evil, when one of the primary achievements of the international legal order
has been to remove such tendentious and highly inflammatory absolutist talk
from the conduct of nation-states.31 We do not need to live in postmodernist
times to know that ‘evil’ is in the eye of the beholder, and that unleashing
‘necessary’ evils on the world is a recipe for moral anarchy. Secondly, the
notion subverts the core of the human rights message, since it effectively
reintroduces the principle of national utility in place of that of individual
dignity. True, the argument requires that the evils not be gloried in but rather
done reluctantly for the greater good, but how real is this distinction? Is a
sadistic act really less bad if prefaced by the remark, ‘this is going to hurt me
more than it is you’? The point is hardly an important one, however, because,
thirdly, as a matter of practice on the ground, necessary (limited) evils quickly
give way to greater ones; roughing up becomes torture, beatings become
killings, deliberate humiliation becomes sadistic perversion. We now know
enough sociology to understand that the road to egregious human rights
abuses invariably starts with a few limited and purportedly efficacious darts
into qualified barbarity, that an Abu Ghraib is bound to follow once you talk
about the evil of your opponents and suspend international law in your
dealings with them, from whatever motive and for however laudable a
shortterm goal.32 The efficacy of a ‘necessary evil’ relies on the notion of a
‘clash of civilizations’33 to give it strength, and this in turn positively invites
an approach to the world that is selective as to the merit it accords particular
people(s). The effect of an approach to human rights rooted in Western values
is to deny the subject the universality on which it depends.

THE BRITISH EXPERIENCE
Turning now to the United Kingdom, the first and important point to make is
that the political and academic community in this country has not developed a
legal or moral argument rooted in the apocalyptic language of a war between
good and evil. While there can be little doubt from the speeches of the prime
minister that he shares this perspective on world affairs,34 it has not worked its
way through into the mainstream of law and practice. The United Kingdom
authorities on the whole still eschew the notion of a ‘war on terror’ and baulk
at explicit violations of international human rights law rooted in vague talk of
necessity.35 On the other hand, the changes outlined at the start of this essay
that have been brought about via the parliamentary process, and the pressures
being put on the judiciary by the executive to make them (and other antiterrorist
initiatives) work, do speak of a hardening of attitudes on the part of
the authorities. This amounts to a shift in sensibility from anxiety about the
repressive nature of such proposals to proud justification of them, an assertive
transformation that has been laced with contempt for those who in the words
of Home Secretary Dr John Reid just ‘don’t get’ how little the old rules matter
anymore.36 One of the groups the present home secretary has explicitly
castigated as out of touch in this way are the defenders of human rights law;
there are challenges here for human rights practitioners that are of the utmost
seriousness.37

The threat to human rights is to each of its defining parts. As far as respect for
human dignity is concerned, the main battleground has been over the
implications of the universality of human rights. The government has entirely
accepted the domestic duties that flow from the Human Rights Act, namely
that there should be no torture or inhuman or degrading treatment or
punishment meted out to those who happen to be within the jurisdiction and
that there should be no wrongful taking of life. What the executive resolutely
refuses to accept, however, is that these obligations should have any
international dimension. In feeling compelled by law to insist that this is
indeed the case, members of the judicial branch have been the subject of
withering critiques from senior government ministers; some of the comments
have been unprecedented in their fierceness in the British political context.38
The tension has arisen on three fronts in particular. First there is the running
sore of the Chahal judgment,39 a decision of the European Court of Human
Rights in 1994 that confirmed earlier case law40 to the effect that a person
could not be deported from Britain if the only country willing to receive him
or her was a place where he or she was likely to be tortured or killed. This was
irrespective of why the UK was seeking to expel the person: he or she might
have been considered a security risk, or committed serious crimes, or be an
illegal entrant, or even have committed serious terrorist crimes in order to get
here. None of this trumped their overriding entitlement to remain if such a
person could persuade a judge that expulsion meant a gross breach of their
basic rights. At a time of great global uncertainty, when there are regrettably
many places where a credible argument about the torturing-tendencies of the
authorities can be made, the government – and many members of the general
public – have come to view this safeguard as a backdoor route to permanent
residence in the UK. The Chahal case is under review in the European Court
of Human Rights with judgment expected in 2007.41 If the ruling is upheld,
human rights practitioners must gird themselves robustly to defend it in the
face of the possibility of a hostile UK reaction.42

Secondly, there have been the successful efforts of human rights lawyers to
extend the jurisdiction of the Human Rights Act to the actions of the executive
with regard to the invasion and occupation of Iraq. Most remarkable of all, but
still at a very early and uncertain stage in the litigation process, is R(Gentile) v
Prime Minister,43 in which the Court of Appeal has accepted the possibility of
a human-rights-law-mandated inquiry into the legality of the invasion of that
country. More routine but even more controversial from a military point of
view have been those cases in which the armed forces in Iraq (and by
extension elsewhere) have been required to adhere to basic human rights law
when interacting with those who have for whatever reason come under their
control. While not going the whole way to impose the Human Rights Act on
military personnel, the courts have insisted that it applies where Iraqis are
effectively under British control, being subject to arrest or held in detention,
for example.44 Allied to the incendiary nature of the substantive abuse that is
usually being alleged (murder, torture, inhuman and degrading treatment),
these cases have had a very negative effect on public perception of the
legitimacy of British operations in the whole region. They have also opened
up a debate within government and the military about the inadvisability of
subjecting the state’s forces to this jurisdiction that closely resembles what
occurred when the United Kingdom was first considering subjecting itself to
the then nascent European Convention on Human Rights in the early 1950s:
the Colonial Office was very strongly opposed for reasons that will be more
apparent now than in the less militarily active 1970s and 1980s.45

The third area in which extra-jurisdictional breaches of human dignity have
been to the fore has been in relation to a matter fundamental to human rights:
the absolute prohibition of relying on ‘evidence’ generated by the use of
torture and inhuman and degrading treatment. In an important recent case, the
appellate committee of the House of Lords, sitting as a court of seven rather
than the usual five, was unequivocal in its condemnation of the practice and
clear that the supposed information procured by such means should never be
taken into account by a judicial body or administrative tribunal in the United
Kingdom.46 Where the court was less clear was on the nature of the burden
that rested on those alleging torture to establish that such maltreatment might
have occurred. The dissents of Lords Bingham and Nicholls from the standard
adopted by the majority were couched in sufficiently strong terms to raise the
suspicion that the overall effect of the decision might have been to condemn
all torture unequivocally whilst making proof of its occurrence (or possible
occurrence) impossible as a matter of practice. Only time will tell if the
judgment is in fact a mere camouflage for reliance on the brutality of other
states: clearly this is something on which the academic human rights
community cannot afford to be neutral.

We turn now from human dignity to the second of the key areas of human
rights. This is respect for democratic rights, in particular for civil and political
rights. These have been traditionally described in the British constitutional
context as our civil liberties. The breadth of the definition of terrorism has an
important effect here, rendering vulnerable political perspectives that in the
absence of terrorism laws might be considered at best justifiable, at worst
tolerable in any society committed to the free exchange of views that marks
out a democratic society.47 Thus the Terrorism Act 2000 criminalizes the
incitement of terrorist acts overseas.48 Uncontroversial so far as violent
subversive action in democracies is concerned, such provisions become more
suffocating when aimed at speech and/or action designed to destroy tyrannical
regimes. It is regrettable that the Terrorism Act makes no distinction of this
nature: seeking to topple the Burmese/Myanmar junta is on an (immoral) par
with opposing the Swedish government by force. So far as political speech
aimed at domestic consumption in concerned, one of the most important
changes that has occurred in recent years has been the marked growth in the
acceptance of banning organizations and associations.49 Not so long ago this
was thought to be such a draconian and repressive action that the IRA were
permitted to remain a lawful association in Britain until as late as 1974,
notwithstanding the campaign of systematic violence against soft targets in
London and other British cities that the organization had been enthusiastically
promulgating to bloody effect for over two years. Even after the Birmingham
and Guildford pub bombings of late 1974, the ban was a subject of much
anxious consideration.50

In marked contrast to those times, the power of proscription, now embedded
in an expanded form in the UK’s permanent anti-terrorism laws, is used with
great regularity and without (or so it seems) the kind of ministerial
conscience-wracking that marked its deployment in the past. At the last count
54 groups were banned, 40 connected to ‘international terrorism’, the rest
related to Northern Ireland. The effect of these orders is to curb organizations
as such without the need to bring substantive charges of any sort against their
members or against the body that is being banned. This used to be regarded as
a serious infringement of the right to freedom of association, now enshrined in
Article 11 of the European Convention on Human Rights. In deference to that
provision, and to avoid falling foul of it, the Terrorism Act, procedure does
provide for an appellate body to which banned organizations can appeal.51
Despite this, it is surely still right for human rights scholars to be strongly
opposed to such banning orders. Even where correctly targeted, their effect is
to drive underground (thereby making harder to penetrate) a membership that
is committed to a programme that involves criminal acts. Where wrongly
applied, the orders choke off political discussion that should be allowed in a
liberal democracy as a matter of principle. It needs to be remembered as well
that such bans often reach well beyond the bodies subject to them, being both
over-broadly interpreted by the authorities and misconstrued by the general
public as prohibitions on whole categories of speech. This was the lesson of
attempts to control political speech in Northern Ireland, not only via
proscription but also through the notorious UK-wide ‘media ban’ on Sinn Féin
and others introduced by the Thatcher government in 1988.52 The latter
initiative in particular had a large chilling effect on discussion of Irish affairs
in Britain. It may well be that the combined effect of the current proscription
laws with the new offence of glorifying terrorism introduced in the Terrorism
Act 200653 will have the same effect on the expression of Islamic-based
political opinion in Britain today.

The third threat to human rights thinking posed by the discourse of antiterrorism
lies in its potential impact on liberty and the rule of law. We saw
earlier that a commitment to legality is one of the key indicators of human
rights: requiring that all state actions be justified by law and that the
punishment of individuals for wrongs done should only follow an independent
process of adjudication are two of the benchmarks of a human-rightsrespecting
society. The two, and particularly the second, are now under
challenge. The legislative response to the attacks of 11 September 2001
included a power of executive detention for ‘suspected international
terrorists’, a category of foreign persons who, while not vulnerable to criminal
prosecution, were sufficiently suspicious to warrant removal from the country
yet whose expulsion could not take place because the only places willing to
receive them were states with a record of serious ill-treatment of just such
persons. The new regime put in place by the Anti-Terrorism, Crime and
Security Act 200154 contained many legal and political safeguards, making the
constant comparison made by critics with the legal ‘black hole’ of
Guantanamo inappropriate, but it was enormously controversial throughout its
short life, attracting the opprobrium of various parliamentary and other
committees before being effectively destroyed by the near-unanimous ruling
of the House of Lords that it infringed the European Convention’s liberty and
non-discrimination rights and that no public emergency justified these
particular actions.55

What did for the detention powers in the 2001 Act was the irrational
distinction between foreigners and others, with its apparent assumption that
only the former could be terrorist: foolish even at the time, it was conclusively
exposed as such with the attacks by four British men on the London transport
system on 7 July 2005. By then and in response to the lords’ ruling, a new
system of anti-terrorism control orders had been put in place.56 Operating
outside the criminal law and with much less judicial involvement than that
process would require, such orders can be made against all persons within the
jurisdiction and can impose restrictions on movement, on social interaction,
on contact with family members, on business dealings and much else besides.
At their extreme, where departure from the right to liberty in Article 5 of the
European Convention is required, such orders can involve the imposition of
what is effectively house arrest. It is early days and the new system has yet to
bed down. Challenges to their substance and to their procedural form are
currently going through the courts, and it remains to be seen whether they will
emerge unscathed from this judicial scrutiny.57 The probability surely is that
they will, with the senior judiciary being likely to be reluctant to pick a fight
over legislation that was explicitly designed to meet their objections to the
earlier, foreigners-only regime. The further probability is that, as with the
government’s anti-social behaviour orders (ASBOs), the procedure will take
awhile to get off the ground but will come over time to be used against not
just suspected terrorists in the popular meaning of the term but against others,
involved in forms of civil libertarian protest, who are at the margins of but
within the broad legal definition of the term.58 The spectre this raises for the
health of political freedom in the United Kingdom is not an attractive one,
especially when allied to the growing power of money in traditional politics
with the consequent reduction of opportunities for political change within the
traditional democratic sector.

CONCLUSION
It is time now to review the challenges the anti-terrorism narrative poses for
human rights. The first of these is perhaps the most important as well as the
most difficult: what are the foundations of the subject? Where do human
rights come from? What is their basis? Why believe in human rights? Even
after the growth of postmodern scepticism should have subverted it, the
subject of human rights was able to maintain its coherency by pointing not to
its religious or rational justifications but rather to the fact of its existence in
international law; the declarations and conventions and treaties and so on were
what gave it an essence. This was always a doubtful manoeuvre: things are not
true merely because they have once been agreed and written down. But the
surge of anti-terrorist anxiety across the world has led to a fundamental
questioning of this basic law: why are we against torture? What is wrong with
killing terrorists? Is not internment of suspects justified in these high-risk
times? The human rights community needs to do more than revert to the
international human rights standards or to the learned speeches of this or that
acclaimed human rights guru. The argument needs to be at the level of first
principles, but stressing the pragmatic as well as ethical value of a community
organized on the representative principle, governed by law and dedicated to
the flourishing of all its individual members. The ideal is to produce a
universalist explanation for why human rights exist, but the scholarprotagonists
of such rights should also carry some instrumentalist arrows in
their quiver.59
All this requires confidence in the rightness of the cause, a committed kind of
scholarship, but also a willingness to listen and to hear other points of view. If
the ethical power of the term ‘human rights’ has sometimes led their
protagonists to believe that the discussion of first principles argued for above
does not need to be made, then the structure of the subject has mislead others
into believing that it is only about state actors and never about the conduct of
individuals, no matter how grotesque or shocking. The individual-versus-state
divide is in the very grain of human rights; it grows out of the liberal tradition
and has been nurtured by the United States’ traditional sympathy for the
individual and antipathy to government, but it is now doing real damage to the
subject. The point was brought home graphically in the immediate aftermath
of 11 September: were the attacks that then took place not violations of
fundamental human rights merely because a state had not done them? But if
this was the case, it seemed hopelessly lop-sided to devote all one’s human
rights energy to opposing the Patriot Act while being silent on Osama bin
Laden. Exactly the same dilemma faced the human rights community in the
UK after the London attacks on 7 July 2005: were these a breach of human
rights or was the term to be reserved only for what the government did by way
of response?

There is plenty of recent thinking on human rights, much of it fostered by the
feminist critique, which provides the answer, namely that the subject is about
the private actor as well as the state and that it covers the ground of individual
as well as government-inspired wrongs. This does not mean that our subject
should lose its state centred focus, which is the key to its attractive solidity.
Rather it suggests a wider focus, one that engages positive obligations in a
coherent and over-arching way. The human rights scholar should argue for the
criminal process as the right way of securing the protection of all in the face of
the threat of criminal aggression in general and terrorist violence in particular.
The offences of murder, manslaughter, criminal damage and the like are, we
can now see, parts of the human rights system: through prohibiting such
attacks on the person and then acting to punish those who flout these rules, the
state is discharging its positive duty to protect those under its protection from
violation of their rights by third parties. With its guarantee of a fair trial, and
its various evidential rules and burdens of proof and the like, the criminal trial
is the place where guilt is attributed in a way that respects the rights of the
suspect and thereby ensures (so far as any system can) that the punishment is
being meted out to the right person. Essential to this process is that it is
conducted independently of the branch of the state concerned with detection,
that it takes place in public, and that the general public are involved as far as
they can be. It becomes apparent from this that trial by jury is an essential
feature of human rights, a way of protecting the community without being
party to violations of individual rights in doing so. The language of terrorism,
with its vague definitions and overbroad discretionary powers, and its
dangerous invitation to depart from the rule of law, should have no role to
play in such a human-rights-based system.

The key way in which the human rights approach differs from one that
prioritizes the counter-terrorism perspective is that it is driven by human
rather than by homeland security. Where others see land (or political systems)
that must be defended, the human rights advocate sees a collection of
individuals, cultures and peoples that must be protected. To the proponent of
human rights, there is simply no ‘we’ that is separate from (better than?)
‘them’; the West, dedicated to democracy and human rights, is overflowing
with plenty of ‘them’ as well as ‘us’, so it makes no sense to divide the world
into blocks of good and evil as at least some of the counter-terrorism
enthusiasts implicitly do. The threat of indiscriminate killing of innocent
people to commit a political message is faced by all peoples the world over,
and it can come from governments as well as from subversives and insurgents.
The human rights advocate accepts that states are indeed entitled to do
something about it. But where the counter-terrorist talks of rooting out evil,
the human rights perspective insists on legality and proportionality, the dull
talk of rules continuing to do its invaluable historic work as a substitute for the
dangerously inflated language of good and bad, terrorists and counterterrorists.

The End

1 Department of Constitutional Affairs, Review of the Implementation of the Human Rights Act,
London, Lord Chancellor’s Department, 2006.
2 Most famously A v Secretary of State for the Home Department [2004] UKHL 56, which led to
the Prevention of Terrorism Act 2005.
3 For the general background see C. A. Gearty and J. A. Kimbell, Terrorism and the Rule of Law,
London, Civil Liberties Research Unit, King’s College London, 1995.
4 Stella Rimington and Ian Blair respectively. The Treasurer Gordon Brown also engaged with the
subject at the same time: see ‘Brown Backs Call to Extend 28-Day Limit on Detention’,
Guardian, 13 November 2006, p. 1, where there are also reports on the other interventions.
5 For a general review of the law and practice in the area, see C. A. Gearty, ’11 September 2001,
Counter-Terrorism and the Human Rights Act’, Journal of Law and Society, 32 (2005), p. 18.
6 For two excellent studies of the tensions caused by this assumption see U. Baxi, The Future of
Human Rights, New Delhi, Oxford University Press, 2002, and C. Douzinas, The End of Human
Rights, Oxford, Hart Publishing, 2000.
7 See further C. A. Gearty, Can Human Rights Survive?, Cambridge, Cambridge University Press,
2006.
8 1577 UNTS 3 (1989).
9 UN Doc A/811 (10 December 1948).
10 See A. W. B. Simpson, Human Rights and the End of Empire. Britain and the Genesis of the
European Convention, Oxford, Oxford University Press, 2001, and K. Sellars, The Rise and Rise
of Human Rights, Stroud: Sutton Publishing, 2002.
11 J. Dunn, Locke: A Very Short Introduction, Oxford, Oxford University Press, 2003, is a good
summary.
12 See Article 1.1 of both the International Covenant on Economic, Social and Cultural Rights 993
UNTS 3 (1966) and the International Covenant on Civil and Political Rights 999 UNTS 171
(1966).
13 Fascinating on this is M. Mandel, ‘A Brief History of the New Constitutionalism, or “How We
Changed Everything so that Everything Would Remain the Same” ’. Israel Law Review, 32
(1998), p. 250.
14 Noting immediately that the collapse of the Soviet Union was due to many factors, this being
only one of them.
15 N. Bobbio, The Age of Rights, Cambridge, Polity Press, 1996.
16 For a good example of the genre, see Foreign and Commonwealth Office, Human Rights Report
2005 (Cm 6606), London, Stationery Office, 2005.
17 See A. Williams, EU Human Rights Policies: A Study in Irony, Oxford: Oxford University
Press, 2004.
18 Cairo Declaration on Human Rights in Islam, 1990; Arab Charter on Human Rights, 1994.
19 Since 1994, the Constitution states: ‘The State respects and protects human rights’.
20 The African Charter on Human and Peoples’ Rights 1981, and the African Court on Human and
Peoples’ Rights 1998, respectively.
21 Notably the American Convention on Human Rights 1969.
22 A point the Chinese make much of in their annual review of the human rights record of the
United States: see the report for 2004 published by the Information Office of the State Council of
the People’s Republic of China, 3 March 2005.
23 www.icj.org.
24 It is too early for a comprehensive comparative treatment. Two excellent books with a broader
range are R. A. Wilson (ed.), Human Rights in the ‘War on Terror’, Cambridge, Cambridge
University Press, 2005, and H. Duffy, The ‘War on Terror’ and the Framework of International
Law, Cambridge, Cambridge University Press, 2005.
25 An outstanding example of engaged scholarship with a human rights dimension, albeit also with
a broader remit, is J. Rehman, Islamic State Practices, International Law and the Threat from
Terrorism, Oxford, Hart Publishing, 2005.
26 The law restricting spouses is the Nationality and Entry into Israel Law (Temporary Order)
(Amendment) 2005. For the controversy over the detention legislation, see International
Commission of Jurists, ‘E-Bulletin on Terrorism and Human Rights’,
12 (June 2006), p. 3, available at www.icj.org.
27 See www.icj.org.
28 See for a general flavour of this kind of literature B. Netanyahu, Terrorism: How the West Can
Win, London, Weidenfeld and Nicolson, 1986. The point is dealt with at length in C. A. Gearty,
‘Human Rights in an Age of Counter-Terrorism’, Oxford Amnesty Lecture held on 23 February
2006, text available at www.lse.ac.uk/Depts/human-rights/ under index of documents.
29 See, for example, M. Ignatieff, The Lesser Evil. Political Ethics in an Age of Terror, Edinburgh,
Edinburgh University Press, 2004.
30 A. M. Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the
Challenge, New Haven, CT, Yale University Press, 2002.
31 G. Oberleitner, ‘A Just War Against Terror’, Peace Review, 16 (2004), p. 263.
32 C. A. Gearty, ‘With a Little Help from Our Friends’, Index on Censorship, 34 (2005), p. 36.
33 S. Huntington, ‘The Clash of Civilizations’, Foreign Affairs, 72 (1993), p. 22.
34 See T. Blair, ‘Not a Clash between Civilizations but a Clash about Civilization’, speech to the
Foreign Policy Centre and Reuters, 21 March 2006.
35 See the speech by the Lord Chancellor Lord Falconer of Thornton in Sydney on 13 September
2006, on ‘The Role of Judges in a Modern Democracy’ in which he condemned the detentions in
Guantanamo as a ‘shocking . . . affront to the principles of democracy’. available at
www.dca.gov.uk/speeches/2006/sp060913.htm.
36 See the speech by the Secretary of State for the Home Department Dr J. Reid at Demos in
September 2006, ‘Security, Freedom and the Protection of our Values’, available at
www.labour.org.uk.
37 Ibid.
38 For one among many examples see the comments reportedly made about the likelihood that
judicial proceedings would be ignored in relation to the deportation of persons to Iraq: Guardian,
5 September 2006, p. 1.
39 Chahal v United Kingdom (1996) 23 EHRR 413.
40 Soering v United Kingdom (1989) 11 EHRR 439.
41 Ramzy v Netherlands.
42 Now assisted by an excellent report, Human Rights Watch, Dangerous Ambivalence. UK Policy
on Torture since 9/11, London, Human Rights Watch, 2006.
43 [2006] EWCA Civ 1078.
44 R(Al-Skeini) v Secretary of State for Defence [2005] EWCA Civ 1609.
45 Apart from in Northern Ireland, of course, but the colonial analogy never worked there, the six
counties that made up the British section of the province of Ulster being part of the UK as a
matter of constitutional law.
46 A v Secretary of State for the Home Department (No 2) [2005] UKHL 71. Their lordships
considered that immediate administrative actions to divert catastrophe could be legitimately
undertaken, even where the source of the information that underpinned the action might have been
contaminated by suspicions of torture.
47 Terrorism Act 2000, section 1.
48 Sections 59–61.
49 Terrorism Act 2000, part 2.
50 See Gearty and Kimbell, Terrorism and the Rule of Law for a flavour of the discussion in the
1980s and early 1990s.
51 Terrorism Act 2000, secton 5, schedule 3.
52 K. D. Ewing and C. A. Gearty, Freedom under Thatcher. Civil Liberties in Modern Britain,
Oxford, Oxford University Press, 1990, pp. 241–50.
53 Section 1.
54 Part 4.
55 A v Secretary of State for the Home Department [2004] UKHL 56. For more details see C. A.
Gearty, ‘Human Rights in an Age of Counter-Terrorism: Injurious, Irrelevant or Indispensable?’,
Current Legal Problems, 58 (2005), p. 25.
56 Prevention of Terrorism Act 2005.
57 See Secretary of State for the Home Department v MB [2006] EWCA Civ 1140; Secretary of
State for the Home Department v JJ [2006] EWCA Civ 1141.
58Compare R (Singh) v Chief Constable of the West Midlands [2006] EWCA Civ 1118.
59 These points are further developed in Gearty, Can Human Rights Survive?.

This entry was posted in Human Rights, Terrorism, United Kingdom, United States. Bookmark the permalink. Post a comment or leave a trackback: Trackback URL.

Post a Comment

You must be logged in to post a comment.