Part VI: defining and responding to terrorism - International Justice, War Crimes, and Terrorism: The U.S. Record

Social Research, Winter, 2002 by Michael Ignatieff

Human Rights, the Laws of War, and Terrorism

I

THE two terms--human rights and terror--look like a simple antithesis: human rights good, terror bad. My thesis is that the antithesis is not so simple. Of course, human rights and terror stand opposed to each other. Terrorist acts violate the right to life, along with many other rights. But equally, human rights--notably the right to self-determination--have constituted a major justification for the resort to political violence, including acts of terror, in the twentieth century. In this article I will consider the relation between these concepts from two sides: from the limitations that human rights impose on counterterrorism, and from the justifications that human rights accord terror. My purpose is to put pressure on human rights as a moral system, and to show its strengths and its weaknesses.

Let us begin with human rights as the chief set of principles that limit the types of ethically permissible action in a war on terror. Human rights both define what we are supposed to stand for and tie our hands when we seek to defend ourselves. Tying our hands behind our own backs is neither popular nor easy; but fundamental to the idea of all rights doctrines is the idea of precommitment. To believe in rights is to say we will not do certain things to fellow citizens or fellow human beings, no matter what.

Human rights are the rights we have as human beings, and therefore are the ones we cannot lose. They are not connected to political or civil status, moral worth or conduct. Even if you are a very bad human being you still have human rights. If this is so, it has to be true that terrorists have human rights. Why not? Once rights are distinguished from deserving and moral worth, they are the entitlement of even those who despise the very idea of rights.

Like Ulysses tying himself to the mast so that he will not be tempted by the Sirens' song, democratic states pre-commit themselves to respect rights even when they are sorely tempted to abridge, even abolish them. (1) Terrorism is one of the biggest tests of a society's willingness to abide by these precommitments. To the degree that terrorists exploit the freedoms of a free society to circulate, to evade detection and to plan attacks, they tempt societies to jettison these freedoms. This temptation is not new. Indeed, it is as old as law itself. The Romans had an adage, salus populi primus lex--the safety of the people is the ultimate law--that justified emergency measures for emergency circumstances. In these circumstances, law itself should be no barrier to the ultimate safety of the people. In the name of that principle, modern societies faced with terrorist threats--Italy, Spain, Great Britain, for example--have curtailed rights to political participation. Groups that do not dissociate themselves from terrorist activity are not allowed to compete for votes or hold office. People suspected of association with terrorist organizations may be interned or held without trial. These abridgements of rights may appear justified by salus populi primus lex, but they conflict with the idea that rights are either unconditional or they are worthless.

Terrorist states of emergency illuminate a neglected aspect of the supposed universality of human rights. Most discussions of universality focus on the issue of whether rights are universal across cultures. But there is an equally important sense in which human rights should be universal as between persons and as between normal times and times of emergency. Terrorist emergencies put these universalist commitments under strain. The reason is not just that terror causes fear and fearful majorities have it in their power to oppress minorities; it is also that they can do so with little direct cost to their own liberties and rights. As Ronald Dworkin has pointed out, there is no general tradeoff between our liberty and our security in times of terrorist threat, but between our supposed security and the liberty of small suspect groups, like adult male Arabs and particularly the subset of these groups that are in violation of immigration regulations (Dworkin, 2002). These abridgements of the rights of a few are easy to justify politically when the threat of terrorism appears to endanger the majority. Rights exist, however, precisely to set limits to what fearful majorities can do.

The idea of rights as precommitments presupposes the idea that when we face the choice between our security and their liberty, we start from a predisposition against the amendment of principle. We do so principally because of the value to the majority of rights remaining as invariant and universal as possible. Rights will not have much value to us if they are easily taken away from others. So we all have an interest in making as few exceptions as possible.

Some civil libertarians believe that the rule of law implies that there should be no exceptions at all, no emergencies and no derogations. In fact, most constitutions and most international human rights covenants accept that temporary suspensions of rights can become necessary to the preservation of the constitutional fabric itself. So exceptions, emergencies, and derogations are necessary to constitutional survival. What the rule of law requires, as John Finn and other scholars have argued, is not invariance, but public justification (Finn, 1991: 32). International human rights law is not committed to absolute nonderogation of rights, but rather to limitation of derogation through an obligation to provide justification to accountable public bodies, especially the judiciary and elected legislatures.