Do human rights stand a chance post - 9/11?

August 29, 2003

'Human rights are never achievedI' argues law professor and UN delegate Sir Nigel Rodley, but, he tells Sean Coughlan, the world is still moving in the right direction.

"The bigger the danger, the bigger the temptation to throw out the rulebook," says Sir Nigel Rodley, law professor at the University of Essex, and a member of the United Nations Human Rights Committee.

Since the September 11 attacks on the US and the ensuing "war on terror", governments around the world have sought to clamp down on threats and conspiracies from insurgents, whether real or imagined, prompting fears for rights and civil liberties.

Rodley, who is also on the staff at Essex's University's Human Rights Centre, was one of the first voices to warn about this risk. A few weeks after the September 11 attacks, he sent a memo to the home affairs select committee, warning that any emergency anti-terrorism legislation should not produce its own infringements of human rights.

"In times of conflict, governments are tempted to abandon the rule of law in the name of "necessity". Thus, they resort or turn a blind eye to unlawful practices that they perceive, however erroneously, will permit them to obtain important information or confessions. Torture is the most typical practice," he wrote.

So how have we fared since then?

According to Rodley, in the UK, it has not been as bad as might have been feared. In the wake of terrorist threats, attacks on western targets and the conflicts in Afghanistan and Iraq, he says that there will be a "tendency to throw the red meat of oppression to public opinion". But so far, he says, responses in this country have been relatively limited in their impact on civil liberties.

But he is more circumspect about whether the US has got the balance right between security and liberty.

As a member of a UN body that could theoretically have to consider the actions of the US, he is reluctant to make judgements. But, raising a diplomatic eyebrow, he says that he can see why so many hard questions are being asked about the legalities of how prisoners are being held in Guantanamo Bay. "Many people inside and outside the US had expectations about the country's system of justice which are being called into question," he says, citing ambiguities over the rights of the detained, and their status if they face trial.

He also suggests that a lack of information about what is going on at Guantanamo Bay and other detention sites could be part of a deliberate strategy. "The US says that it isn't torturing. But the lack of clarity about what is happening could in itself be a way of sending a message and a threat."

And when the global policeman is wanted for questioning, it raises questions about who will enforce international law.

"There is a tendency to pay respect to the views of others only if, in the nature of the relationship, it is demanded," Rodley says. "The less a subject of a law feels dependent on other subjects, the less they might feel the need for the law to apply to them."

This need for a strong international counterweight to the power of individual nations raises questions about the UN. And in the aftermath of the Iraq conflict this year and last week's attack on the UN headquarters in Baghdad, Rodley suggests that it will not be an easy path forwards.

For Rodley, the impact of the Baghdad atrocity last week, several of whose casualties he knew personally, will take time to absorb. He sees it as a "different order" of "full frontal assault" from previous killings of UN personnel. "At worst," he says, "it could herald a serious erosion of the moral and legal barriers against harming representatives of the international community whose aims are to tame conflict and alleviate suffering. Anyone who has been posted to or visited volatile situations will be shuddering that the cocoon that seemed to be insulating us is more fragile than we'd thought. That, in turn, could adversely affect the community's ability to do this sort of work."

He hopes, though, that worldwide revulsion at the bombing will act to inhibit further attacks and protect "the better side of organised human endeavour". Another concern is that the US decision to ignore the UN security council's vote on war against Iraq has severely weakened its legitimacy.

But perhaps, rather than the UN, it will be lawyers who become the global enforcers of the post-cold war era.

Rodley says that he is resolutely optimistic about the advance of human rights and international law, not least because it has already come so far in his own working life.

When his legal career began in the early 1960s, he says there was "no international law to talk about" and by the time he became the first legal officer of Amnesty International in 1973, it was still in its infancy.

Looking across the 30 years since then he says that the state of human rights has undoubtedly improved, pointing to the changes in South America and the former Soviet Union.

The internationalisation of law has also been much more extensive than would once have been anticipated. In the early days of his career, he says it would have been "pie in the sky" to predict the setting up of the International Criminal Court, which since last year has had authority to try accusations of genocide and crimes against humanity.

These years have seen a growing awareness that individuals and rulers can be held to account for their actions - and he says that it was significant that before they were toppled, Argentina's military dictators in the late 1970s and early 1980s talked of their fears of ending up in a Nuremberg-style trial.

Rodley lost members of his own family in Nazi Germany and, he says, it was the impression made by the Nuremberg trials that drew him to this area of law.

His belief in the power of international law was reinforced while he was serving as the UN's special rapporteur on torture between 1993 and 2001. He says he saw "heads of police sweating profusely" at the prospect of their actions being brought out into the daylight.

The creation of the rapporteur post itself represented a toughening of the sinews of international law, extending the mechanisms for investigating human-rights abuses.

It brought him into direct contact with people who carry out acts of state-approved torture. He says that rather than being a necessarily evil, they are often acting rationally within a system that rewards their behaviour.

"When you meet torturers you realise that they're not doing it because they enjoy it, they torture people because it's a way of getting promotion and pay rises. They want to get confessions and convictions because they see that as meeting the wishes of the institution.

"There is a process of culturisation, where torturers are made to stop seeing their victim as human. But if they didn't think they'd be rewarded, they wouldn't do it."

The challenge for international law is to introduce disincentives for anyone using torture, he says, so that the pragmatic and self-interested response for an individual would be not to torture. Rather than putting faith in the vagaries of human nature, he sees the law as a way of creating a system that is weighted against the torturer.

But he says that as international law advances, and media attention reaches further in exposing oppressive regimes, it is not always clear-cut what constitutes torture. There can be techniques of detention or interrogation that could be interpreted as a form of torture - known as "torture-lite" - without any physical violence being applied.

There have been lawyers in the US who have accused their own government of using torture-lite against terror suspects, with "stress and duress" tactics such as sleep deprivation, isolation and disorientation.

Interpreting and applying international law in the defence of human rights will be the task of future generations of lawyers, and the Human Rights Centre at Essex provides a stream of people with a specialist knowledge of the area. Rodley says that it is a particular pleasure to come across former students who are now working around the world in human rights organisations.

And there will be no shortage of work, he says, as the pursuit of human rights is a work in progress. "Human rights are never achieved, they're only ever worked for and defended."


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