Real and imagined terrorist threats are driving governments to scrap basic freedoms in a fight against a virtual enemy, say Conor Gearty and Gerd Oberleitner
How fragile is our commitment to what we call basic human rights and fundamental freedoms? Do these ideals reflect a deep loyalty to the values of human dignity and equal respect, or are they merely luxury items in our ethical shopping basket to be jettisoned when they seem to be adding too much to our final bill? Nearly 15 months after the events of September 11 2001, and with December 10 designated International Human Rights Day, it is time to take stock.
Indonesia's reaction to the recent atrocity in Bali is revealing. There was a terrible inevitability about the draconian legislation that was rushed through in the immediate aftermath of that attack. Few queried whether this legislation would have prevented the bombing, whether it was objectively necessary, and whether it would do anything to tackle the subculture of hate that had made possible such an action against innocent party-goers. Instead, there was the increasingly common assumption that the subversive attack was in itself a reason for savagely truncating the civil liberties and human rights of citizens. The country's tentative moves in the direction of freedom have been thrown back, perhaps irrevocably.
The same trend has been evident in the US: political leaders have used the post-September 11 atmosphere to mount assaults on liberty that would hitherto have been unthinkable. A presidential ordinance has instituted US military commissions with the power to arrest, try, convict and execute any foreign national designated a suspected terrorist without even a fair trial. Suspected subversives are being held for months without charge or any prospect of one. All this now seems almost routine.
At least the Indonesians and Americans are responding to actual attacks. The most depressing aspect of the past 15 months has been the way in which other governments have climbed aboard the bandwagon of repression without asking serious questions about whether their circumstances justify it. Leading the way in a shameful fashion has been one of the most stable and secure nations in the world, the UK.
Home secretary David Blunkett argues that the Anti-crime, Terrorism and Security Act passed last year was necessitated by what might happen in Britain, and that this fear of an undefined future horror justifies the detention of foreigners, increased state surveillance and the rest, just as it underpins even more draconian proposals that have recently emerged from his office, as detailed in last month's Queen's speech. But permitting a case for the dismantling of civil liberties and human rights to be made solely on a series of dismal hypotheses about the future is a sure route to authoritarianism.
Britain has made itself a convenient comparator for all those attracted by the chance for some opportunist repression. In Malaysia, the Internal Security Act passed immediately after the attack on the World Trade Center allowed for the arrest and indefinite detention without trial of anyone a police officer had reason to believe had acted or was likely to act in any manner prejudicial to national security. The Indian government has introduced a prevention of terrorism ordinance that facilitates the arbitrary detention of political opponents. Jordan has amended its penal code and press law to allow it to shut media outlets that undermine national unity. Caught up in the wild destruction of his own country, Robert Mugabe lost no time in branding his opponents terrorists who have to be destroyed. Not even Canada is immune: its government has produced a set of anti-terrorism proposals of ferocious breadth.
It has taken the September 11 attacks to alert the supporters and defenders of human rights to the precariousness of their hold on even democratic societies, much less the world community. The relatively relaxed political atmosphere in the West during the period between the fall of the Berlin wall and September 11 can now be seen as a short interlude between two "cold wars", the first against a virtual ideology, the second against a virtual (almost invisible but supposedly pervasive) enemy. The human rights community may have succumbed to the temptation to believe that these 11 years were the way things would be for ever. Human rights treaties had been signed, and pressure was growing for more enforcement. The assumption that lay behind such treaties - of the moral superiority of a world committed to pluralism, social justice and basic human rights - was unquestioned.
Now, after September 11, US academics who still describe themselves as liberals argue for torture (under a judicial warrant), and some UK politicians do not judge it morally eccentric to call for the expulsion of asylum seekers even if they face torture at the end of their journey. The gloves of liberal democracy are off. Suddenly the language of human rights looks old-fashioned - squeamish even. State survival is all.
This is a challenge that defenders of human rights must rise to. The concept of human rights does not stand for a society without government or for a community in which selfish individuals clatter about in a state of feverish antagonism towards each other. It represents a model of government in which some individuals exercise state power on behalf of the community while the humanity of all is accorded equal respect. The worth of such a political arrangement is not proved by allowing its enemies to destroy it. To paraphrase Lord Woolf, the lord chief justice, the idea of human rights "is not a suicide pact".
The communities that have been made victims of subversive attack need more human rights and civil liberties protection at this time, not less. The attacks on September 11 last year were first and foremost attacks on people and only secondarily attacks on property or national soil. The multinational, multi-ethnic, multi-religious range of victims, all working together in an intersecting set of communities, made the assaults an attack on the fundamental principles of human rights: respect for pluralism, difference and human dignity.
National security is a vital part of the human rights discourse as long as it is remembered that the state is an amalgam of persons, not a living thing itself. The documents that establish the concept of human rights in international law all recognise the right of a nation's people to defend themselves against unwarranted attack. These treaties allow derogations from normal human rights standards in public emergencies. But such clauses are not chinks in the moral armour of human rights through which the coach and horses of repressive government can barge their way. Even when they are in place, particularly horrific conduct such as torturing suspects must remain beyond limits. All derogations must be limited by time and ended at the very earliest opportunity.
Mary Robinson, the former UN high commissioner for human rights, together with the Council of Europe and the Organisation for Security and Cooperation in Europe's Office for Democratic Institutions and Human Rights, have called for a fair balance between national security and human rights; not because they oppose counter-terrorism action of any sort, rather they fear that the exception is about to become the rule. States must live up to their dual obligation to provide security and guarantee human rights. There is no dichotomy between these two concepts.
The challenge facing proponents of human rights after September 11 is to show how the language of rights provides an escape route from the dismal logic of perpetual war; that it is not only morally satisfying but also effective. If non-state actors commit crimes against humanity, they should be tried in the International Criminal Court, as should the leaders of states who order such acts. The inextricable connection between human rights and the principles of democracy and the rule of law should be recovered and firmly restated. Above all, the connection between poverty and human rights violations should be forcibly and continually made: hunger makes savages of us all.
This is an idealistic agenda, but it is rooted not in some isolated claim about the nature of the person, but in a profound belief in the sort of society to which all humanity should aspire to belong: a society that allows all its people to claim freedom and justice for themselves and in which the value of each person is equal to that of the next, no matter their attributes and place in life.
At a time when the only global vision on offer seems irredeemably gloomy and hate-filled, the human rights alternative is more important than ever.
Conor Gearty is professor of human rights law and director of the Centre for the Study of Human Rights, London School of Economics. Gerd Oberleitner is lecturer in human rights at the centre, which is co-hosting a lecture on "Protecting human rights in an anti-terrorist world" on December 10 (www.lsc.ac.uk/ Depts/human-rights).