Is it really necessary to sacrifice fair trial standards
to prosecute terrorism?


PAUL HOFFMAN

Civil rights lawyer and former Chair of AI's International Executive Committee

Did the events of September 11, 2001, change the world forever? Are the risks of terrorist attacks so imminent and grave that the entire structure of international law must bend to the imperative of doing whatever is necessary to meet this threat regardless of the human rights consequences? Can we afford universal human rights norms in the face of such threats?

Five years after September 11th we have abundant evidence that giving in to the impulse to abandon human rights norms in times of fear and crisis is short-sighted and self-defeating. The dramatic photographs of abuses at Abu Ghraib should be a constant reminder of what happens when the rule of law is abandoned in the fight against those who wish to do us harm. We have created a lawless zone in Guantanamo and in the many secret places of detention around the glove where the victims of extraordinary rendition are taken without access to any judicial oversight and kept in arbitrary detention. These actions seem as likely to create a new generation seeking revenge against the United States and its allies as it will prevent future attacks.

At the same time civil liberties at home have been sacrificed in the name of the "War on Terror." Invasions of privacy that generated public outcries in the 1970s and 1980s are now routinely justified by a war with no geographic or temporal boundaries. Hundreds of immigrants have been detained for months or even years without charge because they are from the Middle East. The "war" metaphor has been used to justify restrictions on human rights which would have been widely and properly rejected before September 11th.

The threats posed by groups who are willing to kill large numbers of civilians to achieve their goals are real. However, the human rights vision of the Universal Declaration of Human Rights, and the body of human rights norms it spawned, is even more relevant and important today than it was on September 10, 2001.

The human rights framework should not inhibit legitimate and effective efforts to respond to terrorist attacks. The limits that international human rights law places on certain forms of executive power (e.g. the prohibition against torture) embody profound agreements about the values the international community in all of its diversity accepts as fundamental. Moreover, human rights norms allow governments ample latitude, under judicial supervision and the rule of law, to take the steps necessary to protect the public from harm. Without such checks and balances it is inevitable that the unrestrained exercise of executive power will lead to human rights violations and needless suffering by the targets of such actions.

There is some reason to hope that as the years have passed the balance may be changing again. The U.S. Supreme Court's decision in the Hamdan case preventing the Bush Administration from using military tribunals and abandoning the Geneva Conventions was a significant affirmation of the rule of law in the face of arbitrary executive power. We need to build on such victories to change public opinion and start to repair the damage the "War on Terror" has done to international human rights law and basic civil liberties.

Professor Paul Hoffman is a civil rights lawyer from Los Angeles, California. He is the immediate past Chair of the International Executive Committee of Amnesty International and is widely published in the field of human rights litigation.

 

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