Freedoms in Danger
By Patrick Baudouin
Friday 23 December 2005
Against terrorism, the force of the law must win out over lawless force.
The terrorist phenomenon is not new. But everyone observes that the terrorist threat is spreading and growing around the world. By their scope and symbolic weight, the September 11, 2001, attacks on American territory marked a decisive turning point in the history of terrorism and in anti-terrorist measures and practices. They constituted the point of departure for an unprecedented series of dispositions presented as stemming from a "war against terrorism," even a "Crusade of Good against Evil." The bellicose language thus employed by the President of the United States, in line with the expression "terrorize the terrorists" used in his time by Charles Pasqua, betrays a first mistake with loss of control followed by many other departures from normalcy.
The adoption of exceptional anti-terrorist legislation has spread like a trail of powder: The United States' adoption of the Patriot Act on October 26, 2001, and Great Britain's of the Anti-Terrorism Act on December 14, 2001, allowed - for example - these countries' authorities to detain non-citizens for long, indeterminate periods without any specific charges on the mere suspicion of their participation in terrorist activities or links with terrorist organizations. Numerous other countries from every continent followed their lead, from Canada to Australia, by way of diverse European countries, Morocco, Tunisia, and even Indonesia and the Philippines.... Every new attack incites a riposte of one-upsmanship in the adoption of anti-terrorist texts. The caricature of the process was provided by Great Britain after the Summer 2005 London attacks, when we even saw - in a manner strictly unimaginable in the country of habeas corpus - a British prime minister plead for a period of detention without charges for up to three months. France, which has unfortunately played the role of a precursor by adopting exceptional legislation in 1986 that has been broadly exported, does not stand pat, given the "hardening of the arsenal" its populist interior minister has carried out, which pell-mell provides for facilitated access to files, oversight of people's movements, development of video surveillance, and an increase in prison terms.
Even more serious than these measures, the anti-terrorist struggle has served as a pretext for scandalous practices. In contempt of all human rights principles and international conventions, the American authorities, invoking the unheard of concept of "enemy combatant" or "illegal combatant," have authorized themselves to hold hundreds of prisoners in the sadly famous camp at Guantanamo for periods of unlimited detention. Torture was practiced at Abu Ghraib, and recourse to abusive treatment has become expressly recommended. Planes chartered by the CIA use European airports to transport terrorism suspects to secret detention centers implanted in various countries, where, globalization obliging, the most brutal methods of interrogation and incarceration are practiced. And even in Great Britain, an innocent man whose behavior appeared vaguely suspicious was shot down on a London subway platform, without the incident arousing particular emotion or even a very serious apology.
All these avatars of the sweeping war against terrorism raise numerous questions, as much with regard to effectiveness as to legitimacy. Certainly, the terrorism that blindly aims at civilian populations and displays itself almost daily on our television screens can only arouse revulsion and condemnation. Certainly, security and life constitute the citizen's essential rights, and states have the right and the duty to take appropriate measures to assure citizens protection against terrorism. But one must be truly blind not to see that the increase in anti-terrorist practices and measures over the last five years has in no way arrested terrorism, which, on the contrary, never stops developing.
This totally unsurprising observation was, moreover, perfectly predictable. Terrorism is not deterred by the strengthening of repression: It's not because he risks twenty years of prison instead of ten that a terrorist will renounce the performance of his act. As for the serious human rights violations committed at Guantanamo, Abu Ghraib, and elsewhere, they only succeed in intensifying hatred of the United States and the countries that support it and in producing new suicide bombers' vocations. In this sense, it may be said that George Bush is bin Laden's best ally. Other perverse effects of the "Global War against Terrorism" are manifold in trivializing abuses of power from Chechnya to Palestine, but one may especially evoke the revival made by many authoritarian states, which, under cover of contributing to the anti-terrorist fight, have adopted repressive legislation, used in fact to muzzle opponents and human rights defenders. When regimes despised by their own people a re involved, the only way out becomes extremism, which itself generates terrorism.
The principal victims of these security departures are likely to be - not the terrorists - but citizens and democracies. Not only does terrorism remain an expanding threat, but each of our individual freedoms becomes more and more abused. The measures, which in a first period are said to apply only to terrorism, later extend to other domains: So it is, for example, with the extension of detention periods without charges, or the conditions under which searches may be made. Attacks on privacy are on the rise: from file keeping to video surveillance, monitoring of every kind for the interception of telephone and Internet communications. Administrative arbitrariness grows at the expense of judicial power. A climate of suspicion establishes itself - principally targeting foreigners, who undergo police checks and expulsions - and progressively contributes to deterioration in social cohesion, itself a source of new tensions.
Liberating oneself from respect for the essential rules of freedom and human rights in fact amounts to giving victory to the terrorists. Terrorism aims to destabilize democracies by discrediting their universal values of freedom and humanity. Derogating from these values to fight those who seek to destroy them amounts to falling into the trap that was set, and to undermining the foundations of democratic societies. It is past time to mobilize and break up an infernal mechanism that leads after each resounding terrorist act to the adoption, in an irrational and demagogic manner, under the influence of intense emotion, even panic, of dispositions as counter-productive as they are illegitimate, in contradiction to international human rights legislation.
A reasoned analysis, on the contrary, demands that we impose an anti-terrorist struggle respectful of fundamental laws - the only way acceptable from the points of view of both principle and effectiveness. To satisfy the security imperative, democratic states most often already have adequate police-related and judicial means in the framework of the fight against crime, so that it's not necessary to establish additional repressive measures. In the case of absolute necessity, in specific situations, dispositions for the protection of international human rights make provision for temporary limitation of certain rights, while excluding those described as "absolute," such as the right to life and physical integrity. That prohibits, for example, any derogation for recourse to cruel punishment, or cruel, inhumane, or degrading treatment. It is essential to demand strict conformity of countries' anti-terrorist laws and practices with their international human rights obligations. As United Nations Secretary General Kofi Annan wrote, "Every one of us should be fully aware that human rights protections must not cede before the effectiveness of anti-terrorist action. On the contrary, if one takes a long term view, one sees that human rights, democracy, and social justice form one of the best remedies against terrorism."
Rather than confining ourselves to "warrior" language and measures, it would be better to try - avoiding simplifications and confused amalgams - to determine the causes of terrorism and to attack the roots of this scourge, which are misery and inequalities, discriminations of all kinds, and conflict situations. We must not forget that state-terror takes a higher daily toll on victims globally than terrorism. Now more than ever, in the face of terrorism, the force of the law must overcome lawless force. To this end, recourse to the legal system must be used whenever that is possible, as the first legal successes obtained demonstrate. Thus we must salute the restraints imposed by the United States Supreme Court's decision on June 28, 2004, agreeing to the possibility of judicial recourse for the Guantanamo prisoners, and by the British House of Lords, which, after condemning the principle of unlimited detention on December 16, 2004, decided on December 8, 2005 - unlike the Lon don High Appeals Court - that all information obtained abroad through the use of torture is inadmissible in terrorism trials under English jurisdictions.
The absence of significant reaction - the deafening silence even - in the face of the attacks on freedoms constitutes a dangerous and alarming phenomenon. Citizens, get a hold of yourselves; stop being passive through indifference or ignorance! These are your rights and liberties that are at issue. Don't wait until you yourselves are the direct victims of their loss to experience the regret of a too-late awakening.
Patrick Baudouin is a lawyer and the honorary president of the Fédération internationale des ligues des droits de l'homme (FIDH) [International Federation of Human Rights Leagues].
Translation: t r u t h o u t French language correspondent Leslie Thatcher.