Speaking Law to Power: The War Against Terrorism and Human Rights

The human rights regime adopts a legalist approach to limit the harm the powerful may inflict on the vulnerable The attacks of September 11, 2001 and the ensuing ‘war against terrorism’ test the limits of the legalist approach. Human rights constrain state responses to terrorism more directly than they govern the conduct of terrorists. As a result, the international human rights regime is disadvantaged rhetorically and politically. While substantive human rights standards have not changed since September 11, six possible norm developments may occur: (1) alterations in norms governing the use of force may increase the perceived legitimacy of pre‐emptive defensive action, for example with regard to targeted assassinations; (2) reconceptualization of counter‐terrorism as a new species of international armed conflict may displace human rights law and international criminal law, and substitute new rules that are less detailed than those that apply to conventional armed conflicts; (3) derogation principles may be refined, especially in relation to the temporal element and the non‐derogability of the prohibition on arbitrary detention and of fair trial rights; (4) an increase in the commission of extraterritorial human rights violations may spur the clarification of the scope of human rights treaties ratione loci; (5) the targeting of non‐citizens, Muslims and Arabs may clarify non‐discrimination norms; and (6) exclusion from refugee protection may expand. In institutional terms, the ‘war against terrorism’ has not yet had significant effects, but the following issues are notable: (1) integrating human rights into UN counter‐terrorism initiatives; (2) the aggressive campaign by the United States Government against the International Criminal Court; (3) the tendency toward American exceptionalism; (4) leadership by Europe to preserve human rights principles in counter‐terrorism; (5) increased polarization of UN human rights bodies around the Israeli–Palestinian crisis; (6) silencing of criticism of gross violators in exchange for counter‐terrorist cooperation; and (7) marginalization of human rights treaty bodies as effective monitors of counter‐terrorist policies.