Law, Language, and Principle in the "War on Terror"

Vol. 33 No. 1

By

Mary Robinson is chair and executive director of the Ethical Globalization Initiative and chancellor of the University of Dublin.

Editor’s Note: A former UN High Commissioner for Human Rights (1997–2002) and former President of Ireland (1990–97), Mary Robinson was one of ten constitutional law and human rights experts who participated in a roundtable discussion on “The Global War on Terror: Conflict or Compatibility with the U.S. Bill of Rights and International Rule of Law?” at the ABA’s 2005 Annual Meeting. ( See “Essential Choices” on the inside front cover.) In that program, sponsored by the Section of Individual Rights and Responsibilities’ Bill of Rights Project, panelists explored the nature of the U.S. “war on terrorism” and its implications for the future of Bill of Rights principles at home and the rule of law generally around the world. This article comprises excerpts of Ms. Robinson’s remarks from a transcript of the informal roundtable discussion.

The last time that I addressed a session of the American Bar Association was in San Francisco in 2003.We were brought together by Arthur Helton, who moderated a panel on a somewhat similar theme and was, as always, very witty and skilled as a moderator. That night, I sat beside him at dinner and he said, “Oh, by the way, I’m going to be in Iraq in about eight days’ time. I’m going to be meeting with Sergio Vieira de Mello to talk about the refugee problem.” So, needless to say, Arthur was very much in my mind this morning. We can be very proud, and the ABA can be very proud, of the way in which Arthur paid the ultimate price for the principles that he held so dear.

It has been a pleasure to listen to this panel. As I listened, I was thinking, Why isn’t this discussion on all of your television channels? Because this is the debate that the American people need to hear, and the sad thing is that, by and large, they do not seem to be hearing it enough. I am now based in New York, and I get depressed at the lack of precisely this debate.

The Language of War

I would like to take up the point that Cherif Bassiouni has made, be­cause I, too, feel—and have felt from the beginning—that this terminology of a “war on terror” is a mistake. It is interesting that some of the panelists have different ways of putting it, though I think there is broad agreement among us. Guy Mansfield said that it is not a war in a conventional sense, and Suzanne Spaulding made it very clear that, for the Bush administration, it is not a rhetorical war. Yet—and I believe this is something we should really think about—the “global war on terror” is terminology shared by the Bush administration and some very undemocratic governments—but not by many democratic governments, including the British government, most European governments, and the Irish government. European leaders believe that the language of war inflates those who are in fact terrible criminals, through committing acts of terrorism that deliberately kill civilians, and that the context of being “at war” makes it more acceptable to erode standards of civil liberties and human rights.

My term as UN High Commissioner for Human Rights ended on the first anniversary of the September 11 attacks. (I went to Geneva on September 12, 1997.) When those terrible attacks took place in this country, I came to New York from Geneva and met some of those who were working at Ground Zero. I listened to some of the devastated families. From the government, I was hearing the response, “We have been attacked. We are at war.” And from the very beginning, I pleaded that the response of the Bush administration should be to act very firmly and rigorously against acts of terrorism, but that the approach should not be by the criminal route, if I can put it that way, which is the response we have seen to the recent London bombings. The response to the London attacks has been restrained, disciplined, and very effective. The police work that was done, the intelligence work, was actually stunningly effective, and I think we can learn something from that. Of course, it was legitimate to take military action by going into Afghanistan because the Taliban had refused to hand over the alleged perpetrators, Osama bin Laden and al-Qaeda.

Core Values Voiced in Berlin

I am glad that a copy of the Berlin Declaration is in your program book. The declaration arose from the biannual conference of the International Commission of Jurists, which took place in August 2004. One hundred sixty jurists from the United States and around the world addressed the issues we have been talking about and came up with the Berlin Declaration, which represents many of the values that have been discussed on this panel. To quote from the declaration’s preamble:

In adopting measures aimed at suppressing acts of terrorism, states must adhere strictly to the rule of law, including the core principles of criminal and international law and the specific standards and obligations of international human rights law, refugee law and, where applicable, humanitarian law. These principles, standards, and obligations define the boundaries of permissible and legitimate state action against terrorism. The odious nature of terrorist acts cannot serve as a basis or pretext for states to disregard their international obligations, in particular in the protection of fundamental human rights.
A pervasive security-oriented discourse promotes the sacrifice of fundamental rights and freedoms in the name of eradicating terrorism. There is no conflict between the duty of states to protect the rights of persons threatened by terrorism and their responsibility to ensure that protecting security does not undermine other rights. On the contrary, safeguarding persons from terrorist acts and respecting human rights both form part of a seamless web of protection incumbent upon the state. Both contemporary human rights and humanitarian law allows states a reasonably wide margin of flexibility to combat terrorism without contravening human rights and humanitarian legal obligations.
International and national efforts aimed at the realization of civil, cultural, economic, political and social rights of all persons without discrimination, and addressing political, economic, and social exclusion, are themselves essential tools in preventing and eradicating terrorism.

The declaration goes on to urge fidelity to eleven specific principles in the fight against terrorism, including, among others, the duty to protect fundamental rights and freedoms, an independent judiciary, longstanding criminal law principles, nonderogable rights under international law such as the right to be free from torture, and fair trial standards. I commend the declaration to you for further study and thought about the importance of these principles in countering terrorism.

These Values Affirmed in Madrid

More recently, I participated in a summit that was organized by a club of former heads of democratic governments, called the Club of Madrid, which seeks to promote democracy and good governance around the world. The Club of Madrid decided to mark the first anniversary of the terrible bombing in Madrid—what they call 3/11—with an international conference, which was supported by the government of Spain. The conference was prepared by 400 experts, including a number of experts from the United States, who worked to address all of the issues—security, intelligence, money laundering, how to combat terrorism more effectively—and also issues of rule of law, human rights, and the role of civil society. Some of the deeper issues that we have been talking about here were analyzed.

The summit produced the Madrid Agenda, which is on the Web site of the Club of Madrid, www.clubmadrid.org. The agenda was the result of the work of those 400 experts who came together for three days in Madrid, joined by representatives of more than fifty democracies. U.S. Attorney General Alberto Gonzales was there. The Madrid Agenda calls for an agreed definition of terrorism, for a number of court measures that can be taken against terrorism, and for probing and understanding the deeper bases of terrorism. Under the heading “A Comprehensive Response,” the Madrid Agenda proclaims:

We owe it to the victims to bring the terrorists to justice. Law enforcement agencies need the powers required, yet they must never sacrifice the principles they are dedicated to defend. Measures to counter terrorism should fully respect international standards of human rights and the rule of law.
In the fight against terrorism, forceful measures are necessary. Military action, when needed, must always be coordinated with law enforcement and judicial measures as well as political, diplomatic, economic, and social responses.
We call upon every State to exercise its right and fulfill its duty to protect its citizens. Governments, individually and collectively, should prevent and combat terrorist acts. International institutions, governments, and civil society should also address the underlying risk factors that provide terrorists with support and recruits.

It was really very encouraging that this agenda could be adopted, for these are not easy times. We are all a little shaken by the attacks in London and by the fact that the perpetrators were British citizens who had benefited from living in a society where they were able to avail themselves of the opportunities it afforded. Why did they feel alienated? Why did they feel marginalized? These are big issues, not just for British society, but for all our democracies.

And so, the larger point I would like to leave with you is that there are costs to using war terminology in countering terrorism, and those costs can be severe—particularly to credibility and legitimacy in trying to foster democracy and freedom in the world. The International Commission of Jurists has set up a panel of eminent jurists on which I have agreed to participate. We will examine, in various countries—including the United States in September 2006—the practical effect of the so-called “global war on terror” and the erosion of international standards of civil liberties. What we really need to bring home is that we must combat acts of terrorism, we must prevent these acts of terrorism, and we must bring to justice the perpetrators of acts of terrorism, but it is not helpful to use the language of war.

And so I suppose I am challenging the ABA. You need to get these issues across. You have a responsibility to continue this discussion.

 

As published in Human Rights, Winter 2006, Volume 33, Number 1, p.18-19, 22.

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