䉷 EJIL 2003

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Speaking Law to Power: The

War Against Terrorism and
Human Rights
Joan Fitzpatrick*

Abstract
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.

* Brotman Professor of Law, University of Washington.

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EJIL (2003), Vol. 14 No. 2, 241–264
242 EJIL 14 (2003), 241–264

1 Introduction
The human rights movement employs the language and the institutions of law to limit
the harm that the powerful inflict on the vulnerable The attacks of September 11 and
the ensuing ‘war against terrorism’ test the limits of the legalist approach, leaving
human rights advocates baffled and marginalized. Governments that style themselves
as champions of the rule of law against the absolutism or nihilism of terrorists have, at
least temporarily, constructed ‘rights-free zones’.1 Bedrock principles have been
displaced by legally meaningless terms, and energies are diverted to wrestling with
legal phantoms.
Fundamentally, human rights standards have not changed since September 11.2
But the political atmosphere has palpably altered. The human rights regime is
menaced by potentially dramatic alterations in the rules on the use of force in
international relations and in norms of humanitarian law. Human rights institutions
have largely conducted business as usual in the aftermath of September 11, albeit
with a sense of dread, defensiveness, and political polarization. For many years
sceptical, stand-offish, and self-righteous, the United States now exercises its
hegemony more corrosively than ever on the international human rights regime,
with the increasingly bold campaign against the International Criminal Court (ICC)
serving as the most vivid example of American exceptionalism. Not surprisingly,
repressive governments have been emboldened to pursue their own business as usual,
with less fear of critical scrutiny by United Nations (UN) Charter-based bodies. Little
has been achieved to address the root causes of terrorism, although the pivotal
importance of resolving the crisis in the Middle East has become incontrovertible.
Despite all these negatives, human rights advocates express cautious optimism that
the internal contradictions and excesses of the ‘war against terrorism’ will enable the
human rights regime to recover its balance as time passes and the current control
techniques prove unsustainable.
No paucity of law exists to punish and deter international terrorism. September 11
prompted a massive shift of law enforcement resources toward combating terrorism,
sparked renewed interest in the dozen UN anti-terrorism treaties (also reviving debate
on the problematic comprehensive convention on international terrorism),3 launched

1
Harold Koh used this phrase to describe the US Naval base at Guantánamo Bay, when Haitian and Cuban
asylum-seekers were held there and denied access to US courts to assert their rights under international
refugee law and US law. Koh, ‘America’s Offshore Refugee Camps’, 29 Richmond L. Rev. (1994) 139, at
140–141.
2
Departing United Nations High Commissioner for Human Rights Mary Robinson described her
experience of the preceding year: ‘[W]hen she questioned other governments on repressive measures,
they responded by pointing to the United States and saying, in her words, “For goodness sakes, standards
have changed.”’ Preston, ‘Departing Rights Commissioner Faults U.S.’, NY Times, 12 Sept. 2002, at B22.
3
A Sixth Committee working group met from 15 to 26 October 2001 and an Ad Hoc Committee met from
28 January to 1 February 2002, ‘but, despite some signs of further progress, the outstanding divergent
views of delegations could not be finally reconciled.’ ‘Terrorism and Human Rights’, Second progress
report prepared by Ms Kalliopi K. Koufa, Special Rapporteur, UN Doc. E/CN.4/Sub.2/2002/35 para. 23
[hereinafter Koufa Report].
 Speaking Law to Power: The War Against Terrorism and Human Rights 243

an ‘anti-terrorist legislative wildfire’ at the national level,4 and produced SC Res. 1373
of 28 September 2001and a Counter-Terrorism Committee to review the adequacy of
national anti-terrorism policies. These measures tread familiar ground, if at a faster
pace and with a greater sense of urgency, and many arouse serious human rights
concerns.
Acts of terrorism such as the attacks of September 11 are obviously antithetical to
human rights values, not least the right to life and the inherent dignity of the human
person not to be used as the instrument of another’s ideology. But the international
human rights regime has itself produced relatively little to confront the destructive
force of groups such as Al Qaeda. Rhetorically and politically, this places human
rights institutions at a disadvantage. As noted in a recent analysis:
The two qualities that human rights organizations distinctively bring to advocacy are
knowledge of the law and a precise grasp of institutional procedures. . . . [However, h]uman
rights organizations cannot afford to stand on the edge of events, or be seen to be compulsively
parsing law. . . .5

The human rights framework is not inflexible in the face of extraordinary dangers,
and a complex derogation jurisprudence has developed to balance rights against the
imperative needs of security. However, with the exception of the definition of ‘crimes
against humanity’6 and concepts of universal jurisdiction, human rights law offers
relatively few legal rules for the conduct of transnational criminal networks. Human
rights norms constrain state responses to terrorism more clearly and directly than
they govern the conduct of terrorists.7
The former UN High Commissioner for Human Rights offered human rights as a
‘uniting framework’ for grappling both with terrorist threats and also with control
measures, but her vision has not yet resonated in capitals nor with publics.8 The
unprecedented policies adopted by liberal democracies in the aftermath of September
11, with the offshore indefinite detention camp at Guantánamo serving as the most
extreme example, pose a serious challenge to the human rights regime, illuminating
substantive ambiguities and institutional deficiencies.
The September 11 attacks were both novel and familiar. Suicide hijacking, without

4
Zelman, ‘Recent Developments in International Law: Anti-Terrorism Legislation — Part One: An
Overview’, 11 J. Transnat’l. L. & Pol’y (2001) 183, at 184.
5
International Council for Human Rights Policy, Human Rights after September 11 (2002) 48.
6
It now seems to be commonly accepted that the attacks of September 11, even if not attributable to any
state, fit the definition of crimes against humanity in Article 7 of the Rome Statute of the International
Criminal Court, UN Doc. A/CONF.183/9, adopted 17 July 1998. The fact that terrorism generally was
not included in the scope of the ICC’s jurisdiction is of no significance.
7
Even prior to September 11, human rights organizations realized the importance, and the difficulty, of
devising appropriate strategies to confront those terrorist entities that are armed political groups. See
International Council for Human Rights Policy, Ends & Means: Human Rights Approaches to Armed Groups
(2000). See also, Amnesty International, Without Distinction: Attacks on Civilians by Palestinian Armed
Groups, AI Index: MDE/02/003/2002 (July 2002).
8
Report of the United Nations High Commissioner for Human Rights and Follow-Up to the World
Conference on Human Rights, Report of the High Commissioner submitted pursuant to General
Assembly Resolution 48/141, ‘Human Rights: A Uniting Framework’, UN Doc. E/CN.4/2002/18
(2002).
244 EJIL 14 (2003), 241–264

communicated demands, captured on surreal videotape; the breathtaking cold-

bloodedness that leveraged box cutters into heavily fuelled projectiles filled with
terrified passengers; the astounding devastation wreaked by the skyscrapers’ collapse;
the terrorists’ success in taking over 3,000 lives in the space of hours on US soil —
these were horrifyingly new. Even informed observers of international terrorism did
not escape the profound emotional and psychological impact of September 11.
Yet, much about September 11 was familiar. Al Qaeda’s enmity toward the United
States was no surprise, nor was its eagerness and capacity to launch attacks on US
governmental, military and civilian targets inside and outside the United States.
Federal criminal prosecutions against Al Qaeda operatives were ongoing in New York
on the day of the attacks.9 Indeed, suspects allegedly linked to Al Qaeda continue to be
indicted in US courts.
Domestic law enforcement and mutual criminal assistance remain the primary
tools for states to combat terrorism. For most of Europe, the counter-terrorism picture
after September 11 differs not in kind but in degree from that which prevailed before
the attacks. Increased use of administrative detention, without criminal charge or
trial, has occurred in states that have traditionally used this tool against domestic
subversives or suspected terrorists.10 Other states have broadened the definition of
terrorist-related crimes and established or revised special security courts.11
Military force has been used in the past by states such as the United States to
confront terrorist threats,12 and military strategies have dominated the Israeli policy
response to the Palestinians.13 Military involvement in law enforcement regarding
transnational crimes is not an innovation, and has been common with respect to the
drug trade and migrant smuggling, as well as terrorism.
The military action launched in Afghanistan in October 2001, to eradicate or
detain the remnants of Al Qaeda and the Taliban, involving US and allied troops, does
mark a significant shift in counter-terrorist strategy. The Afghan intervention raises
interesting and difficult issues regarding state complicity in transboundary harm
caused by non-state entities operating within the state’s territory, and the use of force
in response to such harm. But what is truly unprecedented in the response to the
September 11 attacks is its conceptualization as an open-ended ‘war against
terrorism’.
The notion that the September 11 attackers represented an entirely new type and
degree of threat led to ‘“close-to-panic” reactions’ by states,14 and a rush to jettison

9
The prosecutions concerned the 1998 bombings of US embassies in Kenya and Tanzania. United States v.
Usama Bin Laden, et al., Case no. S(7)98 Cr. 1023 (LBS), S.D.N.Y.
10
Such states include Singapore (using its existing Internal Security Act), UN Doc. E/CN.4/2002/157
(2002); and the United Kingdom (under the Anti-terrorism, Crime and Security Act 2001).
11
Examples include India’s Prevention of Terrorism Bill 2001 and China’s December 2001 amendments to
its criminal law.
12
‘Military Responses to Terrorism’, 81 ASIL Proceedings (1987) 287.
13
Israel’s public criminal trial in a non-military court of Palestinian leader Marwan Barghouti on
terrorism-related charges has been widely remarked upon as an anomaly in Israeli practice. See Morris,
‘Trying the Intifada’, Financial Times, 7 Sept. 2002, available in LEXIS, News Library. Majpap File.
14
Koufa Report, supra note 3, at para. 59.
 Speaking Law to Power: The War Against Terrorism and Human Rights 245

familiar legal frameworks. Policy-makers operate as if ‘anomia threatens’.15 The ‘war

against terrorism’ fits no accepted legal paradigm.16 Leaders of the anti-terrorism
coalition resist providing a stable definition of the ‘enemy’.17 For purposes of this essay,
I assume the target of the ‘war against terrorism’ to be all international terrorists of
‘global reach’, and the objective to be their eradication or incapacitation.
This essay separately addresses the substantive and institutional implications of the
‘war against terrorism’ on human rights. The crisis illustrates the centrality of the rule
of law to the protection of human rights, and its fragility even in liberal democracies.
Legal rules governing permissible state responses to terrorism must be located in the
distressingly murky interstices among five distinct bodies of international law (human
rights, refugee law, humanitarian law, norms concerning the use of force in
international relations, and international criminal law).
US policy-makers, who dominate the agenda of the ‘war against terrorism’,
manifest an absolute conviction of their own rectitude. Any legal or institutional
constraints upon their discretion, whether domestic or international, appear
dangerous to them. Error, either conceptual or operational, is impossible.18 American
officials exploit the ambiguities of humanitarian law and the rules on the use of force,
and refuse to recognize human rights law as being of any relevance, much less a set of
‘red and green lights to guide their action’.19
At the same time, the human rights community has reacted with its own strong
sense of moral outrage. Human rights actors ranging from the High Commissioner, to
the special rapporteurs of the UN Commission on Human Rights, to the treaty bodies,
to non-governmental organizations (NGOs), have reiterated fundamental principles,
stressed that their preservation is vital in a time of crisis, and asserted that their
erosion would hand the terrorists a victory over tolerance, the rule of law, and basic
human dignity. They rest their faith in the historical experience that authorities in

15
Mégret, ‘“War”? Legal Semantics and the Move to Violence’, 13 EJIL (2002) 361, at 399.
16
Koufa asserts that ‘The novel question of whether a State can be at war with a terrorist group or
multinational criminal organization was never raised prior to 11 September 2001.’ Koufa Report, supra
note 3, at para. 63. Art. 1(4) of Additional Protocol I of 1977, which recognizes as international armed
conflicts wars of national liberation and against colonial domination, is regarded as controversial by
some influential non-ratifying states, including the United States, which rejected the concept of
international armed conflict between states and non-state entities.
17
In September 2002, the US Government provided this extremely broad definition:
The struggle against global terrorism is different from any other war in our history. It will be fought on
many fronts against a particularly elusive enemy over an extended period of time. . . .
. . . Afghanistan has been liberated. . . . But it is not only this battlefield on which we will engage
terrorists. Thousands of trained terrorists remain at large with cells in North America, South America,
Europe, Africa, the Middle East, and across Asia.
The National Security Strategy of the United States of America, available at
http://www.whitehouse.gov/nsc/nss.pdf (September 2002) 5.
18
For example, the President’s claim that a US citizen arrested in the United States is an ‘enemy combatant’
is argued to be a conclusive basis for indefinite incommunicado military detention.
19
Supra note 8, at para. 1.
246 EJIL 14 (2003), 241–264

democratic countries that strip civil liberties in times of crisis afterwards often
experience shame and remorse.20
Thus, a clash of moral absolutes displaces genuine dialogue between those
prosecuting the ‘war against terrorism’ and those who position themselves as
guardians of the human rights regime. No space has yet appeared for negotiation of
defined norms possibly better adapted to a world in which transnational terrorist
networks wield enormous destructive power and have the capacity to set the agenda
in international affairs.
Nevertheless, it is possible to sketch in Section 2 several substantive areas in which
norm clarification may occur, if counter-terrorism pursues its rhetorical and
conceptual move from a crime-control to an armed-conflict paradigm. First,
alterations in norms governing the use of force in international relations may
indirectly affect human rights standards by increasing the perceived legitimacy of
pre-emptive defensive action. Second, should there be general acceptance of the
concept of international armed conflict between a state and transnational terrorist
networks, humanitarian law would presumably displace human rights norms as the
primary legal constraint on counter-terrorist tactics.
Third, derogation principles are likely to be refined by human rights treaty bodies,
especially the threshold of severity for derogation, the temporal element of emerg-
encies, the non-derogability of judicial guarantees against arbitrary detention and fair
trial rights, the proportionality principle, consistency with humanitarian law norms,
and the non-discrimination principle. Fourth, an increase in the commission of
extraterritorial human rights violations may prompt clarification of the scope of
human rights treaties ratione loci and, more fundamentally, the concept of universal
rights.
Fifth, the targeting of non-citizens and Muslims in the ‘war against terrorism’ may
accelerate the clarification of discrimination on the basis of nationality in human
rights law, as well as raise a debate about racial profiling and guilt by association at
the international level. Sixth, the exclusion clauses of the 1951 Refugee Convention
may take a rights-restrictive turn.
Institutionally, the ‘war against terrorism’ has produced few measurable effects on
the human rights regime, aside from an enormous diversion of energies from other
compelling issues and needs. In Section 3 this essay identifies seven trends that either
highlight existing deficiencies or suggest potential adverse consequences: (1)
difficulties in integrating human rights concerns into UN counter-terrorism initia-
tives; (2) fissures over international criminal tribunals; (3) aggravation of US
exceptionalism from human rights constraints; (4) European leadership to entrench
human rights values; (5) increased polarization of UN political bodies concerned with
human rights, especially around the Israeli–Palestinian struggle; (6) silencing of

20
Thus, for example, the reparations paid to US citizens of Japanese descent as apology for their internment
during the Second World War are frequently mentioned in the press and NGO documents. The belated
reckoning with the consequences of the absolutist doctrine of ‘national security’ during the ‘dirty wars’ of
the 1970s and 1980s in Latin America is a similar case in point.
 Speaking Law to Power: The War Against Terrorism and Human Rights 247

criticism of gross violators in exchange for cooperation in counter-terrorist strategies;

and (7) the apparent marginalization of human rights treaty bodies, at least in the
initial phase.

2 Substantive Implications
A Pre-emptive Self-defence
The impact of the ‘war against terrorism’ on international rules relating to the use of
force is addressed here only in relation to the potential incidental effects on
international human rights. The doctrine of pre-emptive self-defence articulated by
the US Executive dispenses with the Charter’s structural and substantive limits on the
use of force. Massive military force may be used against any state. No authorization of
the Security Council is necessary, no ‘armed attack’ attributable to another state is
required to precede the intervention, and no limits of proportionality are relevant,
because the future terrorist activity prevented by the military action can always be
hypothesized in apocalyptic terms.21
The implications for human rights fall into two categories. First, control measures
against individuals suspected of terrorist involvement are shifting from a retrospective
to a prospective approach (pre-emptive self-defence writ small). Second, intervening
states will more frequently commit human rights violations against terrorist suspects
and collaterally affected civilians on the territory of third states, with or without the
latter’s formal consent.
The primary objective of the anti-terrorist coalition is the prevention of further
terrorist attacks through the disruption and dismantling of terrorist networks. The
strategy includes increased reliance on military means to incapacitate terrorist
suspects and persons believed to assist them. Techniques of prevention include
military action in Afghanistan, seizure of terrorist suspects in third states without the
formalities of extradition, and detention without charge or trial. The assassination
policy of the Israeli Government can also be conceptualized as preventive self-
defence.22 The United States has begun to undertake similar assassinations.23 Possible
future steps include an invasion of Iraq to prevent the transfer of weapons of mass
destruction to terrorist groups.
The criminal law paradigm that previously characterized international cooperation

21
For an academic view that international law no longer constrains the use of force in international
relations, see Glennon, ‘The Fog of War: Self-Defense, Inherence, and Incoherence in Article 51 of the
United Nations Charter’, 25 Harv. J. L. & Pub. Pol. (2002) 539, at 556–558.
22
Gross, ‘Thwarting Terrorist Acts by Attacking the Perpetrators or Their Commanders as an Act of
Self-Defense: Human Rights Versus the State’s Duty to Protect Its Citizens’, 15 Temple Int’l & Comp. L.J.
(2001) 195. Such a policy straddles the line between deaths in combat (subject to rules of humanitarian
law) and the prohibition on extrajudicial execution in human rights law.
23
Six persons, including a US citizen, were killed by a rocket attack launched from an unmanned Central
Intelligence Agency drone in Yemen in November 2002. Risen and Santora, ‘Man Believed Slain in
Yemen Tied by U.S. to Buffalo Cell’, NY Times, 10 Nov. 2002, available in LEXIS, News Library, NYT File.
248 EJIL 14 (2003), 241–264

against terrorism combines incapacitation, deterrence and retribution. The focus in a

criminal prosecution is on individual responsibility for proven past criminal acts, even
where prevention of additional and possibly greater harm is also sought. In the United
States, ordinary criminal prosecutions continue to be brought against terrorist
suspects. The Administration also contemplates implementing a shadow criminal
justice system through the ‘military commissions’ authorized by President Bush’s 13
November 2001, Military Order.24
Administrative detention is not an unusual or innovative anti-terrorist technique,
although it has long been associated with serious deprivations of human rights. The
move to ‘war’ rhetoric adds a new wrinkle to an old debate about the derogability of
arbitrary detention and fair trial norms, a debate that had advanced markedly in the
direction of strict human rights protection in recent years.25
Derogation standards incorporate by reference norms of humanitarian law.
Human rights bodies have drawn upon the fair trial guarantees of the Geneva
Conventions (which apply in the most extreme of emergencies) to reach the
conclusion that many aspects of fair trial are functionally non-derogable. Moreover,
human rights bodies recognize that the right to challenge the lawfulness of detention
before an independent judicial body must never be suspended.
The move to ‘war’-time internment may be motivated by a belief that preventive
measures are effective in neutralizing potential terrorist threats, without the risk and
cost entailed in individual prosecutions, and without the human rights constraints
that apply to administrative detention during emergencies. Whether humanitarian
law displaces human rights law in relation to those detained in the ‘war against
terrorism’ is considered in the following section.

B A War without Rules?

Which war? The ‘war against terrorism’ eludes definition, largely because those
prosecuting the campaign find ambiguity advantageous to avoid legal constraints and
to shift policy objectives with minimal accountability. Scholars and commentators

24
‘Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism’, 66 Fed. Reg.
(2001) 57833.
25
See Human Rights Committee, General Comment No. 29: ‘States of Emergency’, UN Doc. CCPR/C/21/
Rev.1/Add.11 (2001); Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) of the American
Convention on Human Rights), I–A Ct. H.R. (1987) Advisory Opinion OC-8/87; Judicial Guarantees in States
of Emergency (Arts. 27(2), 25 and 8 of the American Convention on Human Rights), I–A Ct. H.R. (1987)
Advisory Opinion OC-9/87; Castillo Petruzzi v. Peru, I–A Ct. H.R. (1999) Series C, No. 52; Brannigan and
McBride v. United Kingdom, ECHR (1993) Series A, No. 258.
 Speaking Law to Power: The War Against Terrorism and Human Rights 249

have been surprisingly tolerant of this approach, although critical voices are
multiplying.26
Neither ‘war’ nor ‘terrorism’ has a fixed meaning in contemporary international
law. Post-September 11 events suggest the following possible identities for the ‘war
against terrorism’:
● An undeclared international armed conflict by the United States and allied states
against Afghanistan
● An undeclared international armed conflict by the United States and allied states
against the former Taliban regime in Afghanistan
● An internal armed conflict in Afghanistan between the Taliban and its domestic
rivals, internationalized by the intervention in October 2001 by the United States
and allied states
● An undeclared international armed conflict by the United States and allied states
against the non-state entity Al Qaeda
● An undeclared international armed conflict by the United States and allied states
against a range of non-state entities and individuals alleged from time to time to
be international terrorists
● A continuation of crime control activities against international terrorists, with a
metaphorical use of ‘war’ rhetoric
In a turn toward conventionality, the United States threatens an international
armed conflict against Iraq, which would bear a complicated relationship to the
existing ‘war against terrorism.’
Assuming the enemy is the full range of international terrorists, one must navigate
the boundaries between humanitarian law and international criminal law to locate
the legal rules for this campaign. This is not an international armed conflict
cognizable under Common Article 2 of the Geneva Conventions of 1949, nor even
under the expanded definition of Article 1(4) of Additional Protocol I of 1977. In
essence, the United States has made a claim of ‘instant custom’, enabling it to exercise
extraordinary powers related to international armed conflict, but without any defined
protections for its non-state enemies. While other states have cooperated militarily
and diplomatically in the ‘war against terrorism’, no evidence exists that these states
accept the extraordinary legal claims by the US Government as new norms of
customary law. My intention here is to identify how this semantic move may affect the
capacity of the human rights regime to preserve essential aspects of the rule of law
during the present crisis.
The Guantánamo captives and the ‘enemy combatants’ being held in Afghanistan

26
See ICHRP, supra note 5, at 17:
Human rights organisations are particularly concerned about the legal ambiguity of a campaign that
has been described as a war, is undertaken in self-defence, has the approval of the Security Council, but
has no defined geographical scope or limit, has failed to define its enemy in a clear manner, and has
refused to position the conflict in terms of human rights law or humanitarian law.
(italics in original). See also, Sontag, ‘Real Battles and Empty Metaphors’, NY Times, 10 Sept. 2002,
available in LEXIS, News Library, Majpap file.
250 EJIL 14 (2003), 241–264

and in the United States are indefinitely detained without charge or trial, and without
access to counsel or family. Those held in the United States are US citizens. Terrorist
suspects are being seized far from the battle zone in Afghanistan (for example, Bosnia,
Zambia, Chicago, and other international airports) and transported to these detention
sites.27 The policy of the US Government is that the captives are not prisoners of war
(POWs) whose internment is regulated by the Third Geneva Convention,28 and they
are denied the mandatory hearings before a ‘competent tribunal’.29 Their standards of
treatment are determined by discretionary executive policy, not by legal norms. None
of them has been charged or tried for any violations of humanitarian law that would
establish their status as unprivileged combatants. Neither are the captives treated as
interned civilians whose treatment is governed by the Fourth Geneva Convention.
None of them is an ‘enemy alien’ subject to internment under traditional rules of
international law and the Fourth Geneva Convention.30 The selection of internees is
determined by a pure exercise of administrative discretion, without announced
criteria or process, and without judicial oversight.
What is the relevance of the prohibition on arbitrary detention to these practices?
The Working Group on Arbitrary Detention of the UN Commission on Human Rights
‘will not deal with situations of international armed conflict in so far as they are
covered by the Geneva Conventions of 12 August 1949 and their Additional
Protocols, particularly when the International Committee of the Red Cross (ICRC) has
competence.’31 While this is a self-imposed limit on the Working Group’s mandate, it
suggests the potential that a semantic move to ‘war’ may create gaps in human rights
protection that are not adequately filled by established protections of humanitarian
law.
The Guantánamo policy is being assessed with regard to regional human rights
norms, interpreted in the light of humanitarian law standards, by the Inter-American
Commission on Human Rights (IACHR).32 The less militarized administrative
detention policy enacted in the United Kingdom is under review by domestic courts
under the Human Rights Act, as violative of provisions of the European Convention
on Human Rights, and may eventually be challenged before the European Court of
Human Rights.33
Humanitarian law recognizes the permissibility of incapacitating combatants and
civilians who pose a significant danger to a detaining power during active hostilities.

27
The most recently reported instance is the capture of Abd al-Rahim al-Nashiri at ‘an airport in a foreign
country’ and his transport to ‘an American-run interrogation center elsewhere overseas’. Shenon, ‘A
Major Suspect in Qaeda Attacks Is in U.S. Custody’, NY Times, 22 Nov. 2002, at A1.
28
White House Fact Sheet: Status of Detainees at Guantanamo (7 Feb. 2002), at
http://www.whitehouse.gov/news/releases/2002/02/.
29
Third Geneva Convention, Art. 5.
30
See infra note 56.
31
Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/1993/24 Annex IV: Revised
Methods of Work, para. 16 (1993). The ICRC has been granted access to the Guantánamo captives.
32
Inter-American Commission on Human Rights, Decision on Request for Precautionary Measures
(Detainees at Guantanamo Bay, Cuba), 41 ILM 532 (2002).
33
A, X and Y and Others v. Secretary of State for the Home Department, [2002] EWCA Civ 1502.
 Speaking Law to Power: The War Against Terrorism and Human Rights 251

At least where combatants are granted POW status and privileges, judicial
supervision is not integral to such internment. Under Article 43 of the Fourth Geneva
Convention, interned civilians are entitled to periodic hearings regarding the
continued necessity for their detention.
Derogation jurisprudence under human rights treaties stresses the indispensability
of judicial supervision of the lawfulness of detention. Thus, the fate of the captives of
the ‘war against terrorism’ hinges upon whether war-like semantics can substitute an
internment regime for ‘enemy combatants’ (without the protections of the Geneva
Conventions) for the prohibition on arbitrary detention in human rights law.
In broader terms, conceptualizing the campaign against global terrorism as an
international armed conflict risks undermining the integrity of international humani-
tarian law. Even prior to September 11, the move to ‘limited and ambiguous
conflicts’,34 the reliance on high-tech weapons requiring substantial battlefield
civilian support and minimizing combatant casualties, and asymmetries of power
undermining reciprocity as a rationale for compliance, had created a risk that US
commitment to humanitarian law might erode. President Bush’s November 2001
Military Order and February 2002 decision on POW status raise serious doubts about
the attachment of US political leaders to contemporary rules of warfare. Since human
rights law and humanitarian law combine to set a floor for fundamental standards of
humanity, even during the gravest of crises, this apparent indifference to humani-
tarian law on the part of a hegemonic power is of legitimate concern to the human
rights regime.

C The Permanent Emergency

The ‘war against terrorism’ is the quintessential ‘normless and exceptionless
exception’.35 No territory is contested; no peace talks are conceivable; progress is
measured by the absence of attacks, and success in applying control measures
(arrests, intercepted communications, interrogations, and asset seizures). The
duration of ‘hostilities’ is measured by the persistence of fear that the enemy retains
the capacity to strike.36 Long periods without incident do not signify safety, because
the enemy is known to operate ‘sleeper cells’. The enemy may be of any nationality,

34
Walker, ‘The Demise of the Nation-State, the Dawn of New Paradigm Warfare, and a Future for the
Profession of Arms’, 51 Air Force L. Rev. (2001) 323, 339.
35
Gross, ‘Exception and Emergency Powers: The Normless and Exceptionless Exception: Carl Schmitt’s
Theory of Emergency Powers and the “Norm-Exception” Dichotomy’, 21 Cardozo L. Rev. (2000) 1825.
36
The UK Government describes what must be that nation’s permanent condition in its derogation order:
There exists a terrorist threat to the United Kingdom from persons suspected of involvement in
international terrorism. In particular, there are foreign nationals present in the United Kingdom who
are suspected of being concerned in the commission, preparation or instigation of acts of international
terrorism, of being members of organizations or groups which are so concerned or of having links with
members of such organizations or groups, and who are a threat to the national security of the United
Kingdom.
Human Rights Act 1998 (Designated Derogation) Order 2001, No. 3644, in force 13 November 2001,
quoted in Amnesty International, Memorandum to the UK Government on Part 4 of the Anti-terrorism,
Crime and Security Act 2001, AI Index: EUR 45/017/2002 (2002) 2–3.
252 EJIL 14 (2003), 241–264

occupation or residence, and is perceived as all the more dangerous for his seeming
ordinariness. The war will end when the coalition decides, on the basis of unknown
criteria.
Derogation norms apply in all emergencies threatening the life of the nation,
regardless of the source of the threat, both in war and peacetime. However, the
derogation jurisprudence of the UN and regional human rights bodies was primarily
developed in the context of internal armed conflict and strife, as well as political
repression, and has rarely addressed the peculiarities of international armed conflict,
real or imagined.
The current crisis may require a searching re-examination of derogation standards
by human rights treaty bodies. These bodies may reconsider their generally
deferential approach to states’ claims of the existence of an emergency. The temporal
element of emergencies should be clarified. The circumstances under which terrorist
suspects may be tried by military courts37 or interned as ‘enemy combatants’ without
judicial supervision must be addressed in greater detail. The treaty bodies must assess
the element of proportionality (‘strictly required by the exigencies of the situation’)
with respect to deprivations of liberty in the context of potential risks of plots involving
weapons of mass destruction. Certain interrogation techniques and prolonged
incommunicado detention of terrorist suspects for purposes of interrogation may
contravene non-derogable rights. Finally, restriction of certain anti-terrorist dero-
gation measures to non-citizens must be examined in light of non-discrimination
norms.

D Territorial Scope of Human Rights Protection

Human rights are universal. But how effective is the international human rights
regime in constraining extraterritorial state conduct? How relevant is it in prescribing
the behaviour of non-state entities that do not exercise or aspire to territorial control?
The scope ratione loci of human rights treaties is not delineated with optimal clarity
in the texts.38 Extraterritorial conduct of a military or law enforcement nature against
suspected terrorists, with or without the consent of the territorial state, may give rise

37
Trial of civilians by military courts, a practice frequently associated with states of emergency and
counter-terrorism, has come under increasingly critical scrutiny by human rights bodies. See ‘Issue of the
Administration of Justice through Military Tribunals’, Report submitted by Mr Louis Joinet pursuant to
Sub-Commission decision 2001/103, UN Doc. E/CN.4/Sub.2/2002/4 (2002).
38
International Covenant on Civil and Political Rights (ICCPR), Arts. 2(1), 50; Convention against Torture
and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT), Art. 2(1); International
Convention on the Elimination of All Forms of Racial Discrimination (CERD), Arts. 3, 6; American
Convention on Human Rights (ACHR), Arts. 1(1), 28; European Convention for the Protection of Human
Rights and Fundamental Freedoms (ECHR), Arts. 1, 56(1); African Charter on Human and Peoples’
Rights, Art. 1.
 Speaking Law to Power: The War Against Terrorism and Human Rights 253

to claims that human rights treaties or customary norms have been violated.39
Cooperation among Latin American dictatorships during the ‘dirty wars’ resulted in
cross-boundary kidnapping, torture and disappearance of suspected leftists. The
Human Rights Committee held in López Burgos v. Uruguay:40
Article 2(1) of the Covenant places an obligation upon a State party to respect and to ensure
rights ‘to all individuals within its territory and subject to its jurisdiction’, but it does not imply
that the State Party concerned cannot be held accountable for violations of rights under the
Covenant which its agents commit upon the territory of another State, whether with the
acquiescence of the Government of that State or in opposition to it. . . . [I]t would be
unconscionable so to interpret the responsibility under article 2 of the Covenant as to permit a
State party to perpetrate violations of the Covenant on the territory of another State, which
violations it could not perpetrate on its own territory.

The Inter-American Commission on Human Rights has indicated in state reports

and in individual communications that coming within a state’s jurisdiction are
‘individuals interdicted on the high seas, shot down in international airspace, injured
in invasions by the respondent state, or attacked by agents of the respondent state in
another country’.41
The Turkish invasion and occupation of Northern Cyprus similarly resulted in
judgments by the European Court of Human Rights that the conduct of the Turkish
military could be challenged as a violation of the European Convention.42
Theodor Meron examined this question in the context of the US humanitarian
intervention in Haiti:43
In view of the purposes and objects of human rights treaties, there is no a priori reason to limit a
state’s obligation to respect human rights to its national territory. Where agents of the state,
whether military or civilian, exercise power and authority (jurisdiction, or de facto jurisdiction)
over persons outside national territory, the presumption should be that the state’s obligation to
respect the pertinent human rights continues. That presumption could be rebutted only when
the nature and the content of a particular right or treaty language suggest otherwise.

Meron’s point is an important one, and insufficient jurisprudence yet exists among
the human rights bodies to set the boundaries for when extraterritorial conduct by

39
For example, an application under the ECHR by Abdullah Öcalan, regarding his abduction in Kenya and
transfer to Turkey by Turkish authorities has been declared admissible by the European Court of Human
Rights and is pending. Öcalan v. Turkey, ECHR App. No. 46221/99, Decision on Admissibility of 14
December 2000. The European Commission on Human Rights declared inadmissible as manifestly
unfounded an application by ‘Carlos the Jackal’, claiming that his rendition from Sudan to France
violated ECHR Art. 5(1), although the Commission recognized that the conduct of French agents in
Sudan was covered by the ECHR. Sánchez Ramirez v. France (1996) DR 86-A, 155.
40
López Burgos v. Uruguay, Comm. No. 52/1979, 36 UN GAOR Supp. No. 40, at 182 para. 12.3, UN Doc.
A/36/40 (1981).
41
Lyons and Rottman, ‘The Inter-American Mechanisms’, in J. Fitzpatrick (ed.), Human Rights Protection for
Refugees, Asylum-Seekers, and Internally Displaced Persons: A Guide to International Mechanisms and
Procedures (2002) 439, at 453 (footnotes omitted).
42
Loizidou v. Turkey, ECHR (1995) Series A, No. 310; Cyprus v. Turkey, ECHR (Judgment of 10 May 2001),
at http://www.echr.coe.int/Eng/Judgments.htm.
43
Meron, ‘Extraterritoriality of Human Rights Treaties’, 89 AJIL (1995) 78, at 80–81 (footnotes omitted).
254 EJIL 14 (2003), 241–264

military and law enforcement agents implicates the jurisdiction of the state party, and
when human rights obligations do not attach or apply only in a diluted form. The
clearest case, however, would appear to be the Guantánamo situation, in which a
state creates offshore detention facilities to which it forcibly transports persons seized
in various countries, detains them indefinitely without charge or access to counsel,
and exercises complete dominion over their treatment and fate.
The Bankovic admissibility decision of the European Court of Human Rights,
however, signals that the extraterritorial use of military force by Western govern-
ments may be addressed rather reluctantly by human rights bodies.44 It remains to be
seen whether the impact of Bankovic will be limited to aerial bombings, and whether it
expresses a peculiarly limited regional vision. Where ECHR states engage in
extraterritorial detention or other law enforcement conduct, the European Court of
Human Rights finds jurisdiction to exist.
President Bush has suggested that the United States will not respect the exclusive
law enforcement authority of states that do not take adequate steps to control
terrorists.45 Unconsented abductions and assassinations, in the territory of other
states, appear to be an integral strategy of the ‘war against terrorism’. The
Inter-American Commission on Human Rights may clarify regional norms concern-
ing the territorial scope of the prohibition on arbitrary detention (although not under
the American Convention on Human Rights (ACHR)). Clarification of the Inter-
national Covenant on Civil and Political Rights’ (ICCPR) reach is hindered by the
failure of the United States to recognize the right of individual petition under the First
Optional Protocol.
Additional issues implicating the territorial scope of human rights obligations
raised by recent counter-terrorism tactics include state complicity for human rights
violations resulting from the forced return of individuals to states in which they will
suffer deprivations of fundamental rights, such as summary execution and torture.
Some reconceptualization of consular access and diplomatic protection as human
rights may also occur, as counter-terrorism policies emphasize detention of
non-citizens.46
Finally, the due diligence standard for human rights complicity in the acts of
non-state actors — a subject of much debate in relation to gender-based violence,
death squads, and multinational corporations — requires more careful delineation in
relation to the acts of international terrorist groups operating on national territory.

44
Bankovic v. Belgium, App. No. 52207/99, ECHR Decision on Admissibility, 12 Dec. 2001, 41 ILM (2002)
517.
45
George W. Bush, Address before a Joint Session of the Congress on the State of the Union (29 Jan. 2002),
38 Weekly Comp. Pres. Doc. (2002) 133.
46
For example, the family of Guantánamo captive Feroz Abbasi unsuccessfully sought a judicial direction to
the UK Government to make representations to the US Government seeking his release. The Court of
Appeal held that it lacked jurisdiction to grant the requested relief, but characterized the detention as ‘in
apparent contravention of fundamental principles recognised by both jurisdictions and by international
law. . . .’ Queen on the Application of Abbasi & Anor v. Secretary of State for Foreign and Commonwealth Affairs
& Secretary of State for the Home Department, [2002] EWCA Civ. 1598 para. 64.
 Speaking Law to Power: The War Against Terrorism and Human Rights 255

The September 11 attacks apparently were planned not only by Al Qaeda leaders in
Afghanistan, but also by operatives in European states, including Germany. Exactly
what level of toleration of the presence of suspected international terrorists will give
rise to state responsibility for ensuing attacks is far from clear under existing
standards. The International Law Commission suggests a high standard of direction,
cession of governmental authority, or acknowledgement and adoption of harmful
conduct.47 The US Government, at least selectively, appears to demand that other
states eradicate terrorist cells present in their territory, under threat of forcible action
in preventive self-defence.

E Non-discrimination and Guilt by Association

The non-discrimination norm is central to human rights, but its applicability to
non-citizens has never been adequately clarified in international human rights law.48
Many enforcement measures adopted in the aftermath of the September 11 attacks
have targeted non-citizens, despite the fact that nationality is a poor predictor of
involvement in terrorist groups. Ethnicity and religion, conjoined with alienage, have
exposed particular groups of non-citizens to differential application of harsh
enforcement measures, which have involved arrest, irregular rendition, pretextual or
opportunistic criminal charges, administrative detention, asset seizure, and selective
admission and deportation policies, some involving unusual secrecy. Nevertheless,
the September 11 hijackers fit a certain nationality, ethnic and religious profile, and
law enforcement officials can hardly be expected to ignore that reality. Association
with terrorists, for example at worship services or in other expressive activities, may
legitimately arouse suspicion, even if it is truly innocent and protected by human
rights norms.
Many societies have confused strangers with enemies. The link between racism and
xenophobia, and its consequences for the human rights of migrants, were noted at the
2001 World Conference against Racism, Racial Discrimination, Xenophobia and
Related Intolerance, which took place shortly prior to the September 11 attacks.49 The
polarized atmosphere at that Conference, and the fault lines over the Middle East
divide, were a grim precursor to the charged human rights atmosphere following
September 11. The Committee on the Elimination of Racial Discrimination (CERD) has
since repeatedly reminded states parties of their obligations not to discriminate on the

47
Report of the International Law Commission, Fifty-third Session, 56 UN GAOR Supp. No. 10, UN Doc.
A/56/10 at 103–122 (2001) (commentary on Arts 8–11 of the Draft Articles on Responsibility of States
for Internationally Wrongful Acts).
48
See, generally, R. Lillich, The Human Rights of Aliens in Contemporary International Law (1984); C.
Tiburcio, The Human Rights of Aliens under International and Comparative Law (2001).
49
Durban Declaration against Racism, Racial Discrimination, Xenophobia and Related Intolerance, 8 Sept.
2001, paras 24–33.
256 EJIL 14 (2003), 241–264

basis of ethnicity, religion and race, and also to take affirmative steps to protect
minorities from private violence linked to terrorism stereotypes.50
Terrorism is not a problem of migration, and deportation is a remarkably
shortsighted response to international terrorism.51 However, Al Qaeda and other
transnational terrorist networks exploit the tools of a globalizing world (international
travel, false documents, student and business visas, e-mail, wire transfers) to plot mass
destruction. Migration control and other enforcement measures targeted at non-
citizens will undoubtedly remain an integral aspect of the ‘war against terrorism’. I
will sketch here a human rights framework for counter-terrorist strategies that
incorporate nationality, ethnicity or religious distinctions, or that rely heavily on
migration control elements.52
Human rights law does not forbid all distinctions between nationals and
non-citizens. In general, differential treatment is permissible where the distinction is
made pursuant to a legitimate aim, the distinction has an objective justification, and
reasonable proportionality exists between the means employed and the aim sought to
be realized. The provisions of the ICCPR, for example, can be divided into five
categories as they apply to non-citizens: (1) rights that must be provided on an equal
basis to citizens and non-citizens, either because the right is absolute or because
selective denial is never reasonable or proportionate; (2) provisions that prohibit
‘arbitrary’ state action, permitting narrow distinctions between citizens and non-
citizens, for example with respect to detention for purposes of immigration control;53
(3) distinctions that may be justified under limitations clauses permitting restriction
on grounds such as national security or public order — in this regard, the question
whether non-citizens may be expelled for having engaged in expressive activity that is
protected for citizens is unclear; (4) certain political rights are explicitly reserved to
citizens; and (5) some provisions specifically protect non-citizens (most significantly,
the right to give reasons against expulsion)54 or specifically protect classes of
non-citizens, such as settled immigrants (for example, internal freedom of movement
under ICCPR Art. 12(1)).
The derogation norms are constructed on the traditional understanding of
international armed conflict, in which ‘enemy aliens’ may be subjected to special

50
See, e.g., CERD, Concluding Observations on Canada, UN Doc. CERD/C/61/CO/3 (2002); Belgium, UN
Doc. CERD/C/60/CO/2 (2002); Denmark, UN Doc. CERD/C/60/CO/5 (2002); Switzerland, UN Doc.
CERD/C/60/CO/14 (2002).
51
Osama Bin Laden took up residence in Afghanistan in 1996 upon his expulsion from Sudan, under US
pressure; Saudi Arabia declined his rendition, preferring to expatriate him rather than to try him.
52
See Fitzpatrick, ‘The Human Rights of Migrants’, in T. A. Aleinikoff (ed.), International Legal Norms and
Migration (forthcoming).
53
Prolonged detention of migrants without a showing of necessity and periodic review may be
impermissibly arbitrary. A v. Australia, Comm. No. 560/1993, Human Rights Committee, UN Doc.
CCPR/C/59/D/560/1993 (1997).
54
See Art. 13 of the ICCPR. The European Court of Human Rights held that ‘[n]ational authorities cannot
do away with effective control of lawfulness of detention by the domestic courts whenever they choose to
assert that national security and terrorism are involved. . . .’ Al-Nashif v. Bulgaria, ECHR, Judgment of
20 June 2002, App. No. 50963/99.
 Speaking Law to Power: The War Against Terrorism and Human Rights 257

control measures.55 The liberal democracies had interned enemy aliens during the
Second World War and did not intend to outlaw the practice in human rights treaties,
if the detentions satisfied the criteria of legality, proportionality and consistency with
other international obligations (most relevantly, humanitarian norms on civilian
internment in the Fourth Geneva Convention). Nationality is deliberately not
included in the list of status grounds in the non-discrimination provisions of the
derogation clauses.
But how does this derogation framework operate in the ‘war against terrorism’? Al
Qaeda has no citizens; indeed, it is strikingly multinational both in membership and in
operations. Moreover, other heterogeneous groups are also encompassed in the broad
definition of the enemy.
Some distinctions should be drawn between law enforcement measures (criminal
prosecution or administrative detention) and migration control measures (deport-
ation and denial of admission). Selective denial of fair trial rights to non-citizens
violates the derogation clauses, both because certain fair trial rights are functionally
non-derogable and because the strict proportionality requirement cannot be satis-
fied.56 Selective exposure to trial by an ad hoc military commission on a ‘war’ theory is
likewise dubious, and the oft-cited Quirin case is not to the contrary — the ‘unlawful
combatants’ tried there included a US citizen.57 Derogation norms require judicial
supervision of all detentions, and limiting administrative detention to non-citizens is
vulnerable to challenge on grounds of non-derogability, proportionality and
discrimination.
The picture with respect to migration control measures is less clear. Distinctions in
this legal context between citizens and non-citizens are inherent. Distinctions among
persons of different nationalities are also common.58 One troubling set of counter-
terrorist policies is the selective arrest, deportation and prosecution of persons fitting a
certain ethnic or religious profile, on grounds unrelated to terrorism. In the United
States, immigration policy since September 11 has strikingly been characterized by
the discriminatory application of broadly defined inherent authority to detain, deport,
exclude and prosecute, rather than the application of specific anti-terrorism measures
that have been crafted to balance security and fairness.59 Many terrorist suspects have

55
See, e.g., 50 U.S.C. §21 (successor to a 1798 statute that codified international customary law that
defines alien enemies as citizens or subjects of a state or government with which the United States is
engaged in a ‘declared war’).
56
Castillo Petruzzi, supra note 25 (trial of Chilean terrorist suspects by ‘faceless’ military judges in Peru).
57
Ex parte Quirin, 317 U.S. 1 (1942). The selection of citizens and non-citizens for ordinary criminal trial,
detention without charge, or trial by an ad hoc military commission appears highly arbitrary.
58
The United States has recently implemented a controversial policy of heightened registration and
monitoring of citizens of certain Arab or Muslim states who enter the United States. U.S. Dept. of Justice,
Immigration and Naturalization Service, ‘Registration of Certain Nonimmigrant Aliens from Designated
Countries: Notice’, 67 Fed. Reg. (2002) 66765, 70525.
59
For example, the Attorney General has never exercised his authority to ‘certify’ non-citizens suspected of
terrorism under the USA PATRIOT Act, a power that is subject to habeas corpus review. Pub.L. No.
107–56, 115 Stat. 272 (2001), §412(a)(3) (amending 8 U.S.C. §1226A(a)(2001)).
258 EJIL 14 (2003), 241–264

been expelled or rendered irregularly across national boundaries.60 The particular

dangers such policies pose for refugees and asylum-seekers are addressed in the
following section.

F Asylum
Refugee protection is profoundly affected by the trend toward ‘securitizing inter-
national migration’.61 Matthew Gibney observes four developments that linked
asylum policy to security even prior to September 11:62 (1) negotiations linking
asylum and immigration matters with discussions of organized crime, illegal
migration and terrorism; (2) the shift in attention from superpower rivalry to
secondary security threats, including that allegedly posed by asylum-seekers; (3) the
Security Council’s use of Chapter VII powers to confront refugee-generating internal
crises as threats to international peace and security; and (4) fears voiced by electorates
that refugees and other migrants pose threats to national security or identity.
The ‘war against terrorism’ aggravates the tendency to perceive migration as a
security threat, symbolized by the transfer of the Immigration and Naturalization
Service from the U.S. Department of Justice to the newly created Department of
Homeland Security. Refugee protection may be affected in three ways: (1) the
exclusion clauses of Article 1F of the 1951 Convention relating to the Status of
Refugee may be given an overly broad interpretation; (2) non-refoulement claims by
persons suspected of terrorist involvement may be rejected without fair process; and
(3) cessation of refugee protection may be precipitously imposed on the basis of
shallow victories, such as the tenuous transition in Afghanistan.
None of the September 11 hijackers was a refugee or asylum-seeker. Amnesty
International reports that most, if not all, of the persons administratively detained
under the United Kingdom’s post-September 11 legislation are either refugees or
asylum-seekers.63 This disconnection between reality and policy response threatens
the integrity of refugee protection.
Security Council Resolution 1373 ‘twice makes explicit reference to the need to
safeguard the system of international refugee protection from abuse by terrorists.’64
The 1951 Refugee Convention was never intended to provide safe haven to persons
who had committed crimes against humanity, serious non-political crimes, or acts
contrary to the purposes or principles of the United Nations; its Article 1F codifies
these three exclusion categories. Terrorist acts, under certain restrictive circum-

60
Tension arose between the United States and Canada when a Canadian citizen was summarily deported
to Syria, while attempting to change airplanes at a US airport, and subsequently detained by the Syrian
Government. Wakin, ‘Tempers Flare after U.S. Sends a Canadian Citizen Back to Syria on Terrorism
Suspicions’, NY Times, 11 Nov. 2002, available in LEXIS, News Library, Majpap File.
61
Faist, ‘“Extension du domaine de la lutte”: International Migration and Security before and after
September 11, 2001’, 36 IMR (2002) 7.
62
Gibney, ‘Security and the Ethics of Asylum after 11 September’, 13 Forced Mig. Rev. (2002) 40.
63
Amnesty International, United Kingdom: Rights Denied: The UK’s Response to 11 September 2001, AI Index:
EUR 45/016/2002 (2002) 5.
64
Zard, ‘Exclusion, Terrorism and the Refugee Convention’, 7 Bender’s Immig. Bull. (2002) 933.
 Speaking Law to Power: The War Against Terrorism and Human Rights 259

stances, might fit any of these categories. However, over-broad interpretations of

exclusion grounds, or truncated status determination processes, create a risk that
persons might be excluded without reliable proof of their personal involvement in
genuinely exclusionary conduct.
Protection against refoulement for persons who are not refugees but who may face
grave human rights violations, such as torture, is also under strain following
September 11. This risk is especially severe for persons who are informally rendered
across borders without being granted an extradition or expulsion hearing. The
Human Rights Committee and the Committee against Torture (CAT) have repeatedly
warned states parties that measures they adopt to comply with Security Council
Resolution 1373 must be consistent with their obligations under the ICCPR and CAT,
specifically in relation to refoulement to torture, summary execution, or other grave
human rights violations.65
The fate of Afghan asylum-seekers in the aftermath of September 11 raises concern
about premature cessation of refugee protection. The conflict in Afghanistan is still
cited as proof of a continuing ‘war against terrorism’ justifying emergency measures
derogating from human rights. At the same time, states have simultaneously sought
to withdraw or deny refugee protection to Afghan asylum-seekers on the ground that
the routing of the Taliban and the installation of the Karzai Government provide a
fundamental, durable and effective change in conditions permitting return of refugees
in safety and dignity.66 Two million Afghans have repatriated, although international
relief has fallen short of necessary levels to permit their reintegration consistent with
basic economic and social rights, with concomitant risks to political stability.67 While
the Taliban and the regime of Saddam Hussein are priority targets of the ‘war against
terrorism’, asylum-seekers fleeing those regimes have met a hostile reception in states
such as Australia.68
The generally restrictionist atmosphere toward asylum-seekers since September 11
has, for example, drawn the United States and Canada toward a ‘safe third country’
agreement, which had previously been stalled.69 Perceived associations between

65
See, e.g., Human Rights Committee, Concluding Observations on New Zealand, UN Doc. CCPR/O/75/
NZL (2002); Yemen, UN Doc. CCPR/CO/75/YEM (2002); Sweden, UN Doc. CCPR/CO/74/SWE (2002);
Committee against Torture, Conclusions and Recommendations on Sweden, UN Doc. CAT/C/CR/28/6
(2002).
66
Some states suspended consideration of Afghan asylum claims. Faquiri, ‘Afghan Refugees in Europe’, 13
Forced Mig. Rev. (2002) 22.
67
Amnesty International, Afghanistan: Continuing Need for Protection and Standards for Return of Afghan
refugees, AI Index: ASA 11/014/2002 (July 2002).
68
Peyser, ‘“Pacific Solution”? The Sinking Right to Seek Asylum in Australia’, 11 Pac. Rim L. & Pol. J.
(2002) 431.
69
See http://www.ins.usdoj.gov/graphics/lawsregs/US Canada Draft.htm (visited 16 Sept. 2002).
260 EJIL 14 (2003), 241–264

terrorism and migration also fuel concerns over migrant smuggling and the presence
of undocumented immigrants, already at high levels.70

3 Institutional Impacts
Human rights crises have sometimes wrought significant institutional changes in the
international human rights regime. The Greek coup of the 1960s and South African
apartheid inspired ECOSOC Resolution 1235, which permits public debate in the UN
Commission on Human Rights of human rights problems in specific states, and
ECOSOC Resolution 1503, which creates a confidential procedure to examine
patterns of gross human rights violations. Grave violations associated with the states
of siege in Chile and Argentina prompted the establishment of country and thematic
working groups and rapporteurs, transforming the UN Charter-based bodies into
active monitors as well as standard setters. Humanitarian crises linked to ethnic
conflict brought new vigour to the UN collective security regime after the end of the
Cold War, resulting in the creation of ad hoc international criminal courts.
The ‘war against terrorism’ has not yet yielded such demonstrable institutional
impacts. The changes are largely atmospheric rather than concrete. However, seven
developments deserve brief mention: (1) difficulties in integrating human rights
concerns into UN counter-terrorism initiatives; (2) fissures over international
criminal tribunals; (3) aggravated US exceptionalism; (4) European efforts to adopt
common policies with entrenched human rights values; (5) polarization of UN
political bodies; (6) unholy alliances between the anti-terrorist coalition and
repressive states; and (7) tests of the relevance and capacities of human rights treaty
bodies.
The Security Council’s Counter-Terrorism Committee represents a post-September
11 institutional innovation, but with troubling human rights implications. Security
Council Resolution 1267 and Security Council Resolution 1373 obligate all UN
Member States to freeze assets of individuals and organizations listed by any other
Member State, on the basis of alleged ties to terrorist groups. The UN High
Commissioner for Human Rights publicly urged the inclusion of a human rights
perspective on the Counter-Terrorism Committee in February 2002, but she did not
receive an adequate response.71
As it became clear that persons and organizations (including financial networks
transmitting migrant and refugee remittances) were suffering severe consequences
from listing, without notice, hearing or appeal, the Counter-Terrorism Committee
adopted a de-listing policy in August 2002. This policy follows a diplomatic protection
model: the state of origin must be induced to petition the listing state for de-listing,

70
The U.S. Department of Justice cited the demands of the ‘war against terrorism’ as justification for
imposing expedited removal against irregular migrants arriving by boat, on grounds that these irregular
arrivals divert the attention of the Coast Guard. U.S. Dept. of Justice, Immigration and Naturalization
Service, ‘Notice Designating Aliens Subject to Expedited Removal Under Section 235(b)(1)(A)(iii) of the
Immigration and Nationality Act’, 67 Fed. Reg. (2002) 68924.
71
Supra note 8, Annex.
 Speaking Law to Power: The War Against Terrorism and Human Rights 261

with the Counter-Terrorism Committee as initial arbiter and the Security Council as
final arbiter in case of refusal.72 While it is heartening to observe certain individuals
and entities with aggressively championing governments removed from the list, the
process remains deeply flawed.73 The inaccessibility and opaqueness of the listing and
de-listing processes open troubling avenues for governments to repress dissidents, and
to compel other UN Member States to follow suit.
Liberal internationalists perceived a ray of hope in the devastation of September 11
— that shared revulsion at the atrocity would open an important space for
multilateralism, consistent with human rights principles, offering a chance to prove
the unique value of international criminal tribunals to try crimes against humanity.74
No such possibility emerged for the September 11 attacks, and suggestions for an ad
hoc tribunal have not been seriously taken up.
The Statute of the International Criminal Court (ICC) entered into force in July
2002, creating the possibility that future terrorist acts that meet the definition of
crimes against humanity could be tried before the ICC. However, the entry into force of
the ICC Statute also triggered increasingly aggressive US efforts to exempt American
politicians and soldiers from the ICC’s jurisdiction, first through manoeuvres in the
Security Council and later through the negotiation of bilateral agreements for
non-rendition.75
The perverse battle over the ICC highlights another negative trend associated with
the ‘war against terrorism’ — the aggravation of US tendencies toward corrosive
unilateralism and exceptionalism. The attacks of September 11 appeared at first to
have a chastising effect, convincing the Bush Administration of the need for
international solidarity against the terrorist threat. But military success in Afghan-
istan caused a reversion to more deeply held values — realist dismissal of
international law, unilateralism and American exceptionalism to human rights
constraints. The anti-ICC campaign stems from peculiar US political pathologies, but
it also more broadly reflects a troubling US hostility to judicial (domestic or
international) constraints upon military and political action since September 11 and
the long-standing US resistance to external scrutiny of its human rights compliance.
US excesses open space for European leadership, and differing views on human
rights (including the death penalty) have created strains in transatlantic relation-
ships. The Council of Europe Committee of Ministers in July 2002 disseminated
guidelines for states to preserve human rights values while fighting terrorism.76
European states act in awareness that the European Court of Human Rights will

72
UN Security Council Press Release SC/7487 (2002); SC/7490 (2002).
73
Sweden successfully challenged the US listing of persons involved in the Swedish branch of the
Al-Barakaat Somali remittance network. U.S. Treasury, Office of Foreign Assets Control, Recent OFAC
Actions, http://www.ustreas.gov/offices/enforcement/ofac/actions/20020827.html.
74
Drumbl, ‘Judging the September 11 Terrorist Attack’, 24 HRQ (2002) 323.
75
SC Res. 1422 of 12 July 2002; Human Rights Watch, United States Efforts to Undermine the International
Criminal Court: Article 98(2) Agreements (July 2002).
76
Guidelines of the Committee of Ministers of the Council of Europe on Human Rights and the Fight against
Terrorism (15 July 2002), http://press.coe.int/cp/2002/369a(2002).htm.
262 EJIL 14 (2003), 241–264

ultimately decide whether their counter-terrorism measures comply with the ECHR.
European publics appear more concerned with the human rights consequences of
counter-terrorist military action, reflecting Europe’s increasingly multilateral orien-
tation as well as resentment of US hegemony.
Political polarization, hypocrisy, and unholy alliances to shield violators from
deserved criticism are nothing new in the UN political human rights bodies. The
question is whether September 11 has resulted in a significant deterioration in these
tendencies that will have a lasting effect on the human rights regime. The departure of
High Commissioner Mary Robinson, widely linked to her candid criticism of abuses
connected to the ‘war against terrorism’, is noteworthy. The thematic mechanisms of
the UN Commission on Human Rights clearly feel beleaguered,77 and violator
governments appear emboldened both with respect to their policies and their ability to
avoid human rights scrutiny. Liberal democracies sacrifice their leverage over
repressive governments by adopting policies antithetical to the rule of law and by
crassly agreeing to tone down or silence criticism in exchange for cooperation in
counter-terrorist strategies.
The UN Commission on Human Rights has come increasingly under the sway of
repressive governments, including some with sorry records of complicity in inter-
national terrorism.78 In this poisoned atmosphere, it is difficult to imagine the
successful and balanced negotiation of paradigm-shifting human rights norms
directly governing the conduct of transnational terrorist networks. Moreover, it
appears unlikely that the human rights bodies will fundamentally reorient themselves
away from their traditional state-centred approach, and tackle the daunting issues
that would be involved in prescribing human rights obligations for terrorist non-state
entities and monitoring their conduct.
Polarization is also heightened by the new prominence of the crisis in the Middle
East. Always a looming presence in UN human rights fora, the Israeli–Palestinian
struggle dominated the World Conference on Racism and clearly must be a focal point
of any serious efforts to deal with the root causes of Islamist terrorism. Since
September 11, the peace process has been seriously damaged, and prospects for a
political settlement seem poor. What appears more likely than peace is that Israel will
successfully export its previously distinctive anti-terrorist tactics, such as assassin-
ation of terrorist suspects, with collateral civilian casualties.
In the past year, the human rights treaty bodies have not exerted a strong influence
on state behaviour, and the ‘war against terrorism’ instructively illuminates
constraints on their resources and mandates. Eventually, the European Court of
Human Rights may clarify the applicability of derogation norms, and the reconcili-
ation of human rights and humanitarian law norms in this new type of conflict,
through its mandatory jurisdiction over individual complaints. The UK counter-

77
Amnesty International, 2002 UN Commission on Human Rights: Rights at Risk, AI Index: IOR
41/025/2001 (2001) 2.
78
Human Rights Watch, New U.N. Human Rights Chief Urged to Speak Out, http://www.hrw.org/
press/2002/09/unhchr0912.htm (visited 12 Sept. 2002).
 Speaking Law to Power: The War Against Terrorism and Human Rights 263

terrorist legislation of 2001 may provide the vehicle for norm clarification, especially
in relation to prolonged administrative detention. But any judgment will come only
after an extended period of exhaustion of domestic remedies and deliberation by the
European Court.
The situation for the UN and other regional human rights bodies is even less
satisfactory. The Human Rights Committee and other bodies have urged states whose
reports have come under review in the past year to conform their counter-terrorist
policies to their human rights obligations, but the submission of reports and
scheduling of reviews are unrelated to the severity of human rights crises. The treaty
bodies proceed slowly and with inadequate resources, and no effective procedural
mechanisms have been established to deal systematically with derogations. The
IACHR faces the risk that even its most sophisticated evaluation of the Guantánamo
detention policy will simply be ignored by the United States. The United States has
failed to file a derogation notice under the ICCPR, despite the official proclamation of
an emergency and the imposition of a wide range of legislative and executive policies
derogating from rights protected by the Covenant. In the absence of a highly unlikely
interstate complaint against the United States under Article 41, an international
forum to contest Guantánamo as a ‘rights-free zone’ appears unavailable under the
ICCPR.
Under the principle of subsidiarity, the remoteness of the treaty bodies should not be
an obstacle to human rights protection, because vindication of treaty rights should be
available in domestic courts. However, the initial efforts of Guantánamo captives to
enforce their rights, under the ICCPR and customary international law, have been
unsuccessful because of peculiarly strained interpretations of habeas corpus jurisdic-
tion.79 The slowness of the human rights treaty bodies, and the uncertain import of
their decisions, make it all the more vital that domestic courts recognize their
responsibility to enforce international human rights obligations directly.80

4 Conclusion
The legalist approach of the human rights regime provides limited leverage against
either transnational terrorist networks or states seeking to eradicate them in the ‘war
against terrorism’. Yet, the human rights regime cannot desist from reiterating
fundamental principles and the pivotal importance of the rule of law. The semantic
move to an armed conflict paradigm, and away from an international crime control
approach, has undermined the effectiveness and clarity of human rights constraints
on counter-terrorist strategies, at least for the time being.
The substantive impacts of the ‘war against terrorism’ on human rights are varied,

79
Rasul et al. v. United States, 2002 U.S. Dist. LEXIS 14031 (D.D.C. 2002).
80
While the judgments of the European Court of Human Rights and the Inter-American Court of Human
Rights are legally binding on states parties accepting their jurisdiction, the UN treaty bodies and the
IACHR have great difficulty in securing state compliance with their observations, recommendations, and
decisions in individual communications.
264 EJIL 14 (2003), 241–264

and this essay has addressed six: (1) the consequences of pre-emptive control
strategies on liberty and fundamental fairness; (2) the lack of clarity in humanitarian
rules for internment of terrorist suspects and the possible erosion of protective
derogation norms; (3) the prospect of a permanent emergency and the impact on
principles of legality, non-derogability, proportionality, consistency with other
international obligations, and non-discrimination in derogation measures; (4) the
need to clarify the territorial aspects of human rights protection; (5) refinement of
concepts of non-discrimination on the basis of nationality and problems of guilt by
association; and (6) threats to the integrity of refugee protection and excessively broad
interpretations of the grounds for exclusion from refoulement.
In institutional terms, the impact of the ‘war against terrorism’ remains unclear.
However, seven trends deserve mention: (1) procedural unfairness in asset seizures
pursuant to Security Council Resolution 1267 and Security Council Resolution 1373;
(2) missed opportunities to enhance the role of international criminal courts; (3) the
aggravation of US exceptionalism to human rights constraints; (4) the opening for
European leadership to preserve human rights while combating terrorism; (5)
increased polarization of UN bodies, especially around the Middle East conflict; (6)
silencing of criticism to secure cooperation of repressive states in counter-terrorism;
and (7) marginalization of human rights treaty bodies.