By Dr. Gyan Basnet (PhD)
Security developments, domestic and international, have in the decade since the world changing events of 11 September 2001 had a huge impact on the traditional discourse concerning civil liberties and human rights. The pressure to counter terrorism has been the driving force behind resurgence in national security rhetoric and the introduction of questionable practices. The world’s political landscape has been transformed as policy changes have been implemented not only in the United States but also in many other countries in response to the terrorist threat. The call by the U.S. for a global campaign against terrorism provided the context for initiatives by other governments to tighten their security legislation and to curb civil liberties. Many countries adopted aspects of President Bush’s counter-terrorist policies, and today counter-terrorism politics are effectively a global phenomenon.
Professor A. Lewis argues that, as a result of 9/11, ‘our civil liberties are under challenge today, a profound challenge’: rights that have long been taken for granted appear now to be under threat. Civil liberties and human rights are often the first casualty of war, but to restrict fundamental freedoms in the name of security must inevitably damage democracy itself, both as it exists today and as it should expand and evolve in future. Since terrorism, division, and suspicion of others are the order of the day, it seems inevitable that, as Martha Minow has argued, post-9/11 we shall always be living ‘before the next attack’. The danger is that, in such an atmosphere of state-engendered fear, the general public may more easily be persuaded that sacrificing some of their liberties is worthwhile if it promises greater personal security. How to establish a proper balance between fundamental freedoms and the maintenance of security while countering terrorism remains, therefore, a huge unsolved problem.
Human Rights Consequences
Since 2001, Western democracies have declared global terrorism to be their most urgent security concern. Non-state terrorism is seen as threatening personal lives and values, freedom and democracy, even modern civilization itself. The threat is perceived as being greater than any that may result from invasion, accident, natural disaster or crime. Many countries have launched a series of responses and have used, according to Professor D. Dyzenhaus, ‘either legislation or executive order to create a variety of legal black holes’. These have been aimed at strengthening the anti-terrorism legal framework by formulating new crimes, banning certain organizations, and freezing assets. Such measures, aimed at terrorism in general, have largely curtailed the human right to freedom and civil liberties as they have expanded law enforcement powers in the name of protecting national security.
In the aftermath of 9/11, measures taken in the name of ‘national security’ and ‘public safety’ in both the U.S. and in other countries have, according to Professor D. Cole, followed a ‘disturbingly repressive historical pattern’. The crackdown on human rights in the U.S. post-9/11 was made possible by the climate of fear that permeated that country. Moreover, this failure by the U.S. to stand by its fundamental human rights standards has had a serious knock-on effect in many other countries. This is particularly noticeable where partner governments in the global ‘war on terror’ have felt justified by the circumstances to violate human rights. Moreover, governments that have had to contend with violent separatist or nationalist movements are apt to label the movements ‘terrorist’ and respond militarily. Today, the just cause of establishing human rights standards across the world, and the legitimacy of striving for their realization and protection, are constantly challenged and criticised by governments, both democratic and non-democratic.
Following 9/11, the alleged repressive nature of state responses perpetuated the political conflict and created conditions in which abuse of civil liberties and fundamental freedoms occurred, especially through the absence of a mechanism of accountability.
Anti-terrorist laws resulted in the serious abuse of fundamental rights and personal freedoms, but the problem of terrorism seems not to have been solved or the threat reduced. Therefore, the surrender of fundamental freedoms in the name of fighting terrorism is likely to be ineffective and at worst counter-productive.
First and foremost, rights, liberties and security need to be tackled together, and human rights should not yield easily to the demands of counter-terrorism. The state needs to establish how best to enact effective laws while protecting liberties and ensuring legitimacy. This is particularly important for democracies where, as Professor M. Ignatief points out, there needs to be a consensus that all lawful means have been employed and that ‘constitutional black holes’ have been avoided.
Terrorism seriously breaches human rights and fundamental freedoms, but these can equally be damaged by an over-hasty response. The U.N. Secretary General’s report identified five pillars on which a comprehensive strategy should be based: a. dissuading people from resorting to terrorism or supporting it; b. denying terrorists access to funds and materials; c. deterring states from sponsoring terrorism; d. developing state capacity to defeat terrorism; and e. defending human rights. Professor R. Kumar argues that a state should recognize that its human rights norms and its domestic constitutional law are crucial in ensuring that counter-terrorism does not violate civil liberties. Transparency is especially important: as Professor Ignatief argues:
‘Openness in any process where human liberty is at stake is simply definitional of what a democracy is.’ The international community must aim to reduce significantly the daily threat of terrorism in people’s lives, but it must do so within a framework of respect for human rights. For J. Mertus, the notions of individual dignity and moral equality, which are central to the human rights ideology, should be positively promoted. Not only should that promotion help to reduce support for terrorism in the shorter term, but greater respect for human rights worldwide should also lessen its long-term appeal. Professor Freeman argues that without that, the terrorists will ultimately win, and we shall ultimately lose, for they will have been allowed to destroy the very foundation of our modern human civilization.
The international community must be aware that the challenge that it still faces is not just one of law enforcement. Terrorism’s roots lie in long-standing historical and political issues that are systematically manipulated by persons with vested interests. Those issues may spring from poverty, unemployment and lack of opportunity in a world that today constitutes a ‘huge pyramid characterized by inhuman disparity and oppression.’ As Professor Y. Sakomoto observes: ‘Terrorism is the product of oppressive political and social structures, of which poverty is a component, and the corresponding political and social consciousness of being oppressed.’ These oppressive structures in today’s world have three dimensions. First, the power-countries dominate the world politically, militarily and, through global capital markets, financially: this causes disparity and oppression among smaller countries. Secondly, developing countries (and others) have to contend with national or international structures that equally cause disparity and oppression. Thirdly, large numbers of people who move from poorer to richer countries are faced with ‘trans-national’ structures of inequity and discrimination. We need to force ourselves to re-think and re-define what encourages a person to commit an act of terrorism: what makes an individual a terrorist? We are all members of the human race, and we owe it to the future of humanity to seek out insights that will permit a comprehensive approach to the whole terrorism problem.
The Way Ahead
Terrorism cannot be defeated overnight. It is too complex to be overcome by simple prohibition backed by legal or military enforcement. Whatever its cause, it is a phenomenon created by the many social and political problems that persist within our current society. The struggle against it may continue for many years, but ‘the rules of the game’ need to be changed. An eventual solution will be found not by bombing but by making society as a whole more inclusive and free of poverty, unemployment, injustice, domination and exploitation. That is why the principles of due process, judicial checks and balances, and government accountability – together with the protection of fundamental rights and civil liberties – are so crucial at this time. We need to build a worldwide respect for democracy and the rule of law. We must be seen to be better than the terrorists because our fight must be for a better system of government, for social justice, for equality, and for respect for all cultures and belief systems. Our fight should not merely be for a country’s physical security but also for the preservation of the values and principles of democracy. To achieve lasting realistic peace, we must aim to create a world in which the despair that gives rise to terrorism is replaced by the hope offered by cultural integration, universal education, democracy, and improved economic opportunities. As Professor J. Edward argues, we need to ‘transform a generation of potential enemies into a generation of friends’. This is the urgent requirement of the day – a sort of ‘Jihad’ in reverse – in order to achieve a stable world peace for the century ahead.
Over-reaction in a period of fear has been a mistake made many times in the past, and the history of such repression cannot be undone. In the aftermath of 9/11 we are all conscious that ‘freedom is not free’, but the most dangerous aspect of the current ‘war on terror’ is its global scale and its potential to be permanent. We still face a grave situation where citizens may be right to fear further loss of privacy, liberty and even the right to life itself. We need now to address the root causes of terrorism that lie within today’s global political, social and economic structures – the disparities between developed and under-developed nations and the lack of integration between different cultures and religions. Most importantly, so long as the slogan ‘us versus them’ can be said to apply, so-called terrorism is unlikely ever to be defeated.
Dr Gyan Basnet, who holds a Ph.D. and an LL.M degree in International Human Rights Law at Lancaster University, U.K, is a Prominent Columnist, Researcher in International Human Rights Law and a Human Rights and Constitutional Law Lawyer in the Supreme Court and Subordinate Court of Nepal. Email: [email protected]