I introduction



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B Conflicting Rights and the Right to Life


It has been argued that security does not constitute an individual right held by legal subjects, and that it therefore cannot be ‘balanced’ against individual civil liberties. A popular move by supporters of repressive anti-terrorism laws is to additionally invoke the ‘right to life’, which is robbed from the victims of terrorist violence. This right to life, so the argument runs, is so fundamental that is reigns supreme over any other rights claim, including claims to liberty. At first, such reasoning may appear plausible, since it is compatible with the non­consequentialist idea that rights may be balanced against each other, but not against social utility. Nevertheless, upon closer examination this line of argument is problematic for several reasons, two of which will be dealt with briefly here.

Firstly, it is important to realise that different rights are violated in different ways. The right to life of the victims of a terrorist attack is infringed upon by terrorist action, whereas violations of other civil liberties and human rights through anti-terrorism legislation find their origin in the actions of government. A government may only be indirectly responsible for the violation of the right to life of victims of a terrorist attack (through inaction, for example). As a consequence, the question that needs to be asked is: is a government’s inaction – refraining from introducing legislation or measures that might prevent terrorists from infringing upon the right to life of their victims – qualitatively equal to its direct action of introducing repressive laws? It is only when government inaction is qualitatively equal to direct government action that one can justifiably invoke the right to life as a ‘balancing right’.

Secondly, while the right to life is undoubtedly one of the most fundamental human rights, it is highly questionable whether it automatically trumps all other human rights. A concept that seems to enjoy broad acceptance, however, is that of the indivisibility, interdependence and universality of all human rights. This concept, officially recognised by the UDHR, further refined by the UN Human Rights Conference in Vienna in 1993, and cited by many UN documents since, provides that human rights are based on respect for the dignity and worth of all human beings. While the right to life encompasses the right to live itself, it also includes the notion that such a life ought to be enjoyed with dignity. It is in this respect that the right to life is not easily ‘detachable’ from other important rights such as the right to liberty and security of person. The protection of the right to life thus cannot go so far as to constitute a supreme justification for the curtailment of all other rights. Such a justification renders all other human rights ineffective, since they would be infinitely vulnerable in the name of the right to life.

IV STRATEGIC OBJECTIONS – PROBLEMATIC LONG-TERM CONSEQUENCES


The image of balancing civil liberties and human rights against security is also misleading for strategic reasons. It is in this context that it is crucial to examine the potential effects of counter–terrorism measures more closely. While it is conceivable that certain repressive anti-terrorism measures may actually achieve some short-term security gains, they may simultaneously increase the threat of terrorism and diminish security in the long–term. The assumption that increasing security inevitably requires a curtailment of liberty is, in this way, unfounded. This argument has both a domestic and an international dimension; at its heart lie the question of what motivates terrorists to engage in violence.

Much of the terrorism literature focuses on the psychological and sociological aspects leading to individual engagement of terrorists.62 While terrorist behaviour is perhaps always determined by a combination of innate factors, two themes appear to dominate the debate among scholars: the role of personal grievances and the lack of alternative routes of expression and for bringing about change. Harvard scholar Jessica Stern concluded, for instance, that both alienation and humiliation play major roles in an individual’s decision to engage in terrorism or political violence.63 Similarly, other scholars have observed that social pressures, as well as personal and cultural humiliation, constitute major factors in the emergence of terrorism.64

These observations have also been confirmed by Abdul Aziz Rantisi, the late political leader of Hamas. Addressing the motivation of Palestinian suicide bombers, Rantisi stated that ‘to die in this way is better than to die daily in frustration and humiliation’.65 Likewise, hopelessly entrenched political impasses and blocked societies have been blamed for the rise of Islamic extremism in Egypt, Saudi Arabia and Algeria.66 During the 1990s, Islamic radicals in these countries grew increasingly frustrated by their failure to change the status quo at home. As a consequence they began to turn their attention abroad. It was (and is) felt among Islamist extremists that striking at the Western sponsors of Arab regimes – the United States in particular – would be the best means to improve local conditions.

This phenomenon is not limited to Islamic extremism. The lack of political and societal reforms also played a significant role in the emergence of left-wing extremism and terrorism in Europe in the 1970s and 80s.67 In response to these movements, several governments introduced a wide array of repressive counter-measures, including special security laws that curtailed civil liberties and human rights to a significant extent. Rather than leading to a decline of violence and civil unrest, however, the measures taken often undermined safety as the sense of personal injustice increased and channels for expressing discontent and altering political, legal and social structures were closed.68 A comparable development may also occur as a consequence of the domestic counter-measures introduced in the aftermath of the 9/11 attacks. Perceived as repressive and discriminatory, anti-terrorism laws may lead to an inflamed sense of grievance and injustice, especially among the Muslim community. This, in turn, could further alienate and isolate Muslims – even the so-called moderates – and foster sympathy and support for religious fanatics. It is for this reason that the cooperation of Muslims is required in order to effectively manage the threat of Islamist extremism.

While research in this area is still in its infancy, the possibility of such developments has been confirmed by studies undertaken in both the United Kingdom and Australia. The first of these studies was commissioned by the Islamic Human Rights Commission (UK).69 The study, published in late 2004, found that the Muslim experience of discrimination ranged from hostile behaviour to abuse, harassment, assault and alienation. About 80 percent of respondents reported that they had experienced discrimination because they were Muslim, a figure that had dramatically increased since 2001.

A second study was conducted by the Institute of Race Relations (UK) and specifically focused on Britain’s anti-terrorism laws.70 Examining 287 out of the 609 arrests made in the aftermath of 9/11 (up until mid-2004), the study revealed that there was a considerable gap between the number of arrests made and the number of convictions achieved. Indeed, the low conviction rate among those arrested – only fifteen convictions had been secured at the time – would point to an excessive use of arrest powers against Muslim communities. This finding was further supported by the difference between the religious background of those arrested and those convicted. While the overwhelming majority of those arrested were Muslims, the majority of those convicted appeared to be non-Muslims.

Studies in Australia have reached similar conclusions. In 2003, the Human Rights and Equal Opportunity Commission conducted a major study interviewing a total of 1,423 people in 69 consultations in all states and territories around Australia. In addition, 1,475 self-complete questionnaires were distributed in New South Wales and Victoria between August and November 2003.71 A common theme among the (mostly Muslim) respondents was that the Muslim community in Australia felt that it had been unfairly targeted in investigations by Australian Security Intelligence Organisation (‘ASIO’) officers and Australian Federal Police officers. Consultation participants in Perth were particularly concerned about the treatment of Muslims during counter-terrorism investigations in the aftermath of the Bali bombings in 2002. Many also felt they were under surveillance by neighbours and colleagues following the federal government’s national security campaign launched early in 2003.72

Another study was conducted by the University of Technology Sydney (UTS) and published in the Shopfront Monograph Series in 2005. Although the project did not directly analyse the impact of newly enacted anti-terrorism legislation, its key findings are similar to those of the British studies.73 The UTS project focussed on data gathered through a telephone hotline that was set up by the Community Relations Commission for a Multicultural NSW (CRC) in late 2001 to receive calls relating to racially motivated attacks. After only two months of operation, the CRC hotline had already received 248 reports, predominantly from Arab, Muslim and Sikh Australians. Reported incidents included physical assaults, sexual assault, verbal assaults, racial discrimination and harassment, threats, damage to property and media vilification.

Repressive anti-terrorism legislation introduced by Western democracies may not only create security problems at the domestic level; it may also indirectly lead to the destabilisation of conflict-ridden States abroad, which may in turn generate additional security and foreign policy problems. This is particularly so in cases where anti-terrorism legislation and its corresponding political rhetoric are adopted uncritically by States lacking traditional liberal democratic checks and balances. In Uganda, for instance, President Yoweri Museveni shut down the leading independent newspaper, the Monitor, for a week on the grounds that it was ‘promoting terrorism’. Likewise, employing US counter-terrorism rhetoric, President Charles Taylor of Liberia declared three of his critics ‘illegal combatants’ who would be tried for terrorism in military court.74

Apart from general international security considerations, the domestic anti-terrorism legislation of Western liberal democracies may also have direct impact on international security issues of major importance for the respective government, especially where nations push for the introduction of special anti-terrorism laws in Islamic countries and offer their legislation as blue print. Repressive measures taken by countries such as Indonesia may be perceived as being initiated by ‘the West’, which in turn may fuel hostility and lead to increased popular support for extremist groups. Besides, the introduction of repressive laws by liberal democracies also leads to a corrosion of their credibility in the field of international human rights policy. How can we demand respect for international human rights standards and treaties if we do not strictly adhere to these instruments in the first place?


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