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Misplaced priorities: human rights and the campaign against terrorism

by Kenneth Roth

The US government's overriding goal since September 11 has been to defeat terrorism. Determined as this campaign has been, it remains to be seen whether it is merely a fight against a particularly ruthless set of criminals or an effort to defeat the motivations of terrorism. Is the war on terrorism a struggle against Osama bin Laden, his Al Qaeda network, and a few like-minded groups, or is it also an effort to undermine the paradigm that anything goes in the name of a cause and the idea that even the slaughter of civilians is an acceptable political act?

The answer to these questions will, in the long run, determine the success of the campaign. If conceived broadly, as it should be, the fight against terrorism must be understood as a campaign for human rights because the Geneva Conventions and international human rights law, with their limits on permissible conduct in war, establish that terrorism is not a legitimate act of war or politics. These rules codify the principle that civilians should never deliberately be killed or abused, regardless of the cause.

Yet the urgency of the effort to defeat particular terrorists has tempted governments to compromise human rights. Many of the governments joining the fight against terrorism have yet to decide whether this battle provides an opportunity to reaffirm the principles of human rights or a new reason to ignore them, whether this is a moment to embrace values governing means over ends or an excuse to subordinate means to ends. Unless the global anti-terror coalition firmly rejects this amorality, and until the rules of international human rights and humanitarian law clearly govern all anti-terror actions, the battle against particular terrorists risks reaffirming the warped instrumentalism of terrorism.

The fight against terrorism is only partly a mater of security; it is also a matter of values. While police, intelligence units, and even armies all have a role to play in meeting particular terrorist threats, terrorism also emanates from the realm of public morality. The pathology that led a group of men to attack thousands of civilians on September 11 may never be understood, but it is essential to understand the mores that would countenance such mass murder as a legitimate political tool. Sympathy for such crimes is the breeding ground for terrorism, and sympathizers are potential recruits. Building a stronger human rights culture--one in which any disregard for civilian life is condemned rather than condoned--is essential for defeating terrorism in the long run.

Middle East Misery

A human rights culture as an antidote to terrorism is especially needed in the Middle East and North Africa, where Al Qaeda attracts many of its adherents. Unfortunately, the willingness of most Western governments to tolerate abuses in the region has undermined human rights. This neglect has incited intense regional anger as the death toll mounts in the Israeli-Palestinian conflict and as Iraqi sanctions drag on with no indication that Iraqi President Saddam Hussein will acquiesce to UN demands. The United States has proposed invading Iraq and toppling Hussein, but the Arab world in particular has greeted this proposal coolly, in part because of Washington's weak response to Israeli abuses. The Bush administration has repeatedly called for an end to the "violence," but its reluctance to insist more specifically on a cessation of abuses has made it easier for Israel to respond to suicide bombers with its own disproportionate attacks.

The West's commitment to human rights in places such as Saudi Arabia and Egypt has also been feeble. In Saudi Arabia, the native land of Osama bin Laden and 15 of the 19 September 11 hijackers, the government strictly limits civil society, severely discriminates against women, and systematically suppresses dissent. But the West has contented itself with purchasing Saudi oil and soliciting Saudi contracts while maintaining its silence toward Saudi abuses. Egypt, the native land of the alleged September 11 ringleader and other Al Qaeda leaders, features a narrowly circumscribed political realm and a government that does all it can to suffocate peaceful opposition. Yet, as a "partner" for Middle East peace, the Egyptian government has secured massive US aid and tacit Western acceptance of its human rights violations.

In societies where basic freedoms flourish, citizens can press their governments to respond to grievances, but in Egypt, Saudi Arabia, and many other countries where Osama bin Laden strikes a chord of sympathy, governments restrict debate about how to address society's ills. As the option of peaceful political change is closed off, radical opposition frequently upstages the voices of non-violent dissent. In a cycle of self-fulfilling prophecy the West has quietly accepted this pattern of repression because it fears the instability of the democratic alternative. Regional governments have played on this fear brilliantly. By silencing mainstream political opponents, they have created an environment in which they can credibly portray themselves as the only bulwark against extremism. They can claim, credibly if not paradoxically, that human rights must be suppressed to be protected, that democratization would lead to its own demise. The stark choice, they posit, has been reduced to either blocking political libera lization, as the Algerian military did in 1992 to head off an Islamist victory at the polls, or repeating the Iranian experience of 1979, in which the West's withdrawal of support from the authoritarian Shah led to a repressive theocratic state.

The challenge for the campaign against terrorism is to recognize the role that governmental repression plays in creating this dilemma. An immediate democratic transition may not be possible in such a warped political environment, but steps can and should be taken to begin providing a meaningful array of electoral choices. In a democracy no particular political result is guaranteed, but if authoritarian governments are pressured to allow a spectrum of political options, the likelihood that democracy will lead to governments that respect human rights increases.

A number of Middle Eastern and North African governments have begun liberalizing without empowering extremists. In recent years, Morocco and Jordan have become more open societies, Qatar and Bahrain have begun to loosen political restraints and have promised to hold elections, and Kuwait has allowed an elected parliament (albeit with limited powers and no voting rights for women and many other native-born residents). Even in Iran, a gradual and partial political opening has corresponded with the emergence of a movement demanding greater respect for civil liberties.

Although the correlation is not always exact, these experiences suggest that the appeal of violent, intolerant movements diminishes as people are given the chance to participate meaningfully in politics and to choose from a range of political parties and perspectives. Promoting this range of options should thus be a central part of any anti-terrorism strategy for the region, but if the West continues to accept repression as the best defense against radicalism, it will undermine the human rights culture that is ultimately needed to defeat terrorism.

The Coalition'S Missteps

In the days following September 11, various governments tried to take advantage of the tragedy by touting their own internal struggles as battles against terrorism. Most prominently, Russian President Vladimir Putin embraced this rhetoric to defend his government's brutal campaign in Chechnya, while Chinese Foreign Minister Tang Jiaxuan did the same to justify his government's response to political agitation in Xinjiang province.

Russia's experience shows that this duplicitous strategy can work. Shortly after September 11, German Chancellor Gerhard Schroeder and Italian Prime Minister Silvio Berlusconi said that Russia's actions in Chechnya had to be re-assessed. The US government, which just six months earlier had supported a UN Human Rights Commission resolution condemning Russian atrocities in Chechnya, began to play down its concerns over human rights and play up alleged links between the Chechen rebels and the Al Qaeda network. For the first time in three years, Russia escaped criticism by the UN Human Rights Commission, even though it has done little in that time to improve its conduct in Chechnya.

Human rights will be put to the test as the international community works to construct a post-Taliban Afghanistan. The Taliban had an abysmal human rights record, most notably in its systematic discrimination against women, ready use of violence against those who failed to abide by its harsh vision of Islam, and periodic massacres of those perceived to sympathize with its military adversaries. The US-led overthrow of this regime has created an opportunity for positive change in Afghanistan, but many of the forces vying to replace the Taliban, including elements of the Northern Alliance, have their own records of abuse, ranging from ethnic massacres to the destruction of sections of Kabul. Violent attacks on ethnic Pashtuns in northern Afghanistan since the fall of the Taliban suggest that this ugly record is not a thing of the past.

The test of the anti-terror coalition's commitment to human rights will come in the pressure it exerts on the Afghan parties to end these atrocities. Unfortunately, the Bush administration has rejected pleas by UN officials and the Afghan interim government to deploy international peacekeeping troops outside of Kabul. Washington says it prefers to train Afghans to take care of their own security--a fair long-term goal but one that holds no prospect of stopping ethnic violence in the near future.

The international community has also resisted steps to establish the rule of law in Afghanistan. UN High Commissioner for Human Rights Mary Robinson has begun collecting evidence of abuses, which later may be delivered to an international tribunal or a reconstituted Afghan court. But she has received no endorsement of this activity from the UN Security Council or even from UN administrators in Afghanistan. A formal or de facto amnesty would risk condemning Afghanistan to the substitution of one set of persecutors for another--hardly a recipe for undermining terrorism.

US Double Standard

Another impediment to building a global human rights culture is Washington's resistance to enforceable human rights standards. That is not to say that the US government ignores human rights, but Washington has never been willing to subject itself to binding international human rights scrutiny. Even after September 11, when the Bush administration suddenly needed global cooperation to fight terrorism, its resistance to international human rights law remained strong.

The Bush administration follows a long tradition of US hostility to international human rights treaties. Often Washington simply refuses to ratify major treaties, such as those on women's rights, children's rights, and economic, social, and cultural rights. The US government also has not ratified the First Additional Protocol of 1977 to the Geneva Conventions of 1949, the leading standards on air power, Washington's primary tool of warfare.

Moreover, when the US government does ratify a human rights treaty; it always does so in a way designed to ensure that there will be no right of enforcement and no one can base a legal claim on the treaty in a court of law. The result is that ratification imposes no practical constraint on US action. It becomes an act for purely external consumption, an empty declaration that the United States is part of the international human rights system, but not a good-faith effort to grant or even solidify rights in the United States.

The Bush administration has gone a step further in its hostility toward international human rights law, as illustrated in its response to the international Criminal Court (ICC). The ICC is a potential forum for prosecuting future cases of genocide, war crimes, and crimes against humanity committed anywhere in the world. Faster than anyone had expected, over 60 governments have ratified the court's treaty, allowing it to come into force on July 1, 2002. US President Bill Clinton had signed the treaty but expressed reservations about the court's possible scrutiny of US armed forces. Just two weeks before the bombing began in Afghanistan in October 2001, the Bush administration took the added step of endorsing proposed congressional legislation that would permit sanctions against governments that ratify the ICC treaty and would even authorize invasion of The Hague, where the court will be based, to liberate any US citizen who might find himself in the dock. in May 2002 the administration announced that it was "u nsigning" the ICC treaty--an unprecedented act. In June it threatened to close down UN peacekeeping missions in Bosnia and elsewhere unless US peacekeepers were granted immunity from prosecution. The administration is thus in the uncomfortable position of seeking global law enforcement cooperation to protect its own citizens from terrorism while trying to undermine a global law enforcement institution that many governments rightfully see as essential for protecting others from comparably severe crimes.

This resistance to accountability, replicated over the last year in international negotiations on climate change, nuclear weapons, biological weapons, small arms, and racism, contributes to global unease about Washington's use of force. The US government seems to assume that if its declared policy is to respect international humanitarian law, its military conduct should be beyond reproach. Few elsewhere share that view. Moreover, Washington's refusal to submit to any independent enforcement mechanism handicaps efforts to encourage others to respect international human rights and humanitarian law, including those who might be drawn to terrorism.

Taking Liberties

In the West, the magnitude of the September 11 attacks has led many to accept a scaling back of certain rights in the name of enhancing security. If everyone faced heightened scrutiny, the odds are that an appropriate balance would be stuck between freedom and safety. But because anti-terrorism efforts have focused largely on a minority--young men from the Middle East and North Africa--rights are in far greater jeopardy. Most members of the public perceive that the balance is not between their own security and freedom but between their own security and other peoples' freedom. Governments have been quick to take advantage of the resultant greater public willingness to countenance rights restrictions.

For example, emergency legislation rushed through the US Congress in October 2001, the so-called USA Patriot Act, permits the indefinite detention of certain non-deportable non-citizens once the attorney general certifies that he has "reasonable grounds to believe" that the individual endangers national security or is engaged in terrorist activities. These activities are defined expansively to include activities that are remotely, if at all, connected to actual violence.

Similarly, the US government detained over 1,000 suspects following the September 11 attacks but threw a shroud of secrecy over the cases, making it impossible to determine whether detention powers were being used appropriately. As best as can be determined, only one suspect has been charged in connection with the September 11 attacks--Zacarias Moussaoui, the alleged "20th hijacker" who was already in custody on September 11. Most of the detainees are charged with minor crimes or immigration offenses yet are denied the usual bail and held in maximum security jails for little reason other than that they are young males of a certain religion and national origin.

Perhaps most egregious has been Bush's refusal to apply the Geneva Conventions to the detainees held at the US naval base in Guantanamo, Cuba. After intensive criticism, the Bush administration announced with great fanfare in February 2002 that it would apply the conventions to Taliban but not Al Qaeda detainees in Guantanamo. The decision appeared to reverse earlier administration statements that the detainees did not merit protection under the laws of war. But by refusing to recognize at least the Taliban detainees as prisoners of war (POWs), the administration continues to breach the conventions.

Under Article Four of the Third Geneva Convention, the regular armed forces of a government, if captured by enemy forces, must be recognized without condition as POWs, whether or not the government is recognized. Taliban troops, as the regular armed forces of the deposed government of Afghanistan, thus merit automatic POW status. In the case of irregular troops--militia unattached to a government's regular armed forces--detainees qualify for POW status only if they meet a four-part test, including bearing arms openly, wearing distinctive uniforms, having a responsible chain of command, and generally respecting the laws of war. Al Qaeda troops probably fail one or more parts of this test.

However, the Bush administration has sought unilaterally to rewrite the Geneva Conventions by applying this four-part test to the Taliban detainees as well. They point to a Red Cross commentary saying that a government's regular armed forces are assumed to meet this test. But this assumption cannot override the plain language of the Conventions, which, in contrast to their treatment of irregular militia, do not impose this test on government troops.

Such flouting of the laws of war not only violates the detainees' rights but also endangers US and allied soldiers who might someday find themselves captured in combat. By manufacturing this new test for government troops, Bush hands enemy forces a ready excuse for denying POW status to captured US and allied troops. One can easily imagine Saddam Hussein, for example, using the Bush administration's argument to deny POW status to a captured pilot by asserting that his bombing violated the laws of war or to deny POW status to captured special forces who were operating undercover without distinctive insignia.

Contrary to the administration's claims, granting POW status to Taliban fighters would not disrupt legitimate US efforts to interrogate and prosecute terrorist suspects. The Geneva Conventions do preclude punishing POWs for refusing to reveal more than their name, rank, serial number, and date of birth. But they do not prohibit broader interrogation, including the use of incentives such as plea bargaining, to secure additional information.

Similarly, POW status prohibits prosecution only for lawful attacks on opposing military forces. It still permits prosecutions for war crimes or attacks on civilians, whether before or during the conflict. And if a POW is prosecuted for such offenses, the ordinary duty to repatriate POWs at the end of hostilities would take effect only after any sentence had been served.

So why is the Bush administration stubbornly refusing to apply the Geneva Conventions' straightforward rules? The conventions entitle POWs to the same trial procedures that the detaining power would give its own troops facing similar charges--that is, a court martial. But in refusing to recognize the Taliban detainees as POWs, the Bush administration can then try them before military tribunals. Even after the regulations issued in March 2002, which remedied many of the most serious defects in the president's November 2001 order establishing the military tribunals, the only "appeal" permitted from the tribunals is to Bush or US Secretary of Defense Donald Rumsfeld, which allows the executive branch to serve as both prosecutor and judge--hardly a model of due process.

The military tribunals are also troubling because of the breadth of their jurisdiction. Because they are authorized to try anyone accused of international terrorism, their scope could extend far beyond the traditional use of military tribunals to address offenses by combatants on the battlefield. Suspects arrested far from Afghanistan or any other battlefield who ordinarily would be entitled to the full protections of a civilian trial can instead be thrown before a substandard military tribunal on the order of the president or the secretary of defense.

Troubling Trends

Other governments have shown a similar willingness to subordinate human rights to the fight against terrorism. Australian Prime Minister John Howard, stoking post-September 11 xenophobia, built his candidacy for re-election in November 2001 around his summary expulsion, in blatant violation of international refugee law, of asylum seekers who had reached outlying Australian territory. A new British law permits the prolonged, arbitrary detention of foreigners suspected of terrorist activity. In the United Nations, Western governments have proposed an antiterrorism treaty that threatens to codify an overly broad definition of terrorism without adequate safeguards that the fight against terrorism would be circumscribed by human rights guarantees. Ironically, the major obstacle to adopting the treaty has not been states defending human rights but states arguing that terrorist means should be tolerated if used as part of a war for "national liberation."

These steps matter because it is profoundly more difficult to promote the values of human rights if some of the most visible and powerful proponents of human rights seek to exempt themselves from the same standards. Such exceptionalism has grown since September 11, as governments seek to justify extraordinary constraints on rights in the name of combating extraordinary threats. Yet in the long term, this trend will prove counterproductive. If the ends-justify-the-means logic of terrorism is ultimately to be defeated, governments must redouble their commitment to international standards, not indulge in a new round of excuses to ignore them.

KENNETH ROTH is Executive Director of Human Rights Watch.

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