‘War on terror’ damage condemned

Kanaga RAJA

****------

An independent panel of eminent jurists denounces the US’ ‘war on terror’ paradigm which they say is legally flawed and seriously violates international human rights and humanitarian law.

****----------

The so-called US ‘war on terror’ is ‘legally flawed’ and has done ‘immense damage’ in the last seven years to both international human rights and humanitarian law. The administration of US President Barack Obama should repeal all laws, policies and practices associated with it.

This is one of the key findings of an eight-member independent panel of eminent judges and lawyers established by the International Commission of Jurists (ICJ), a well-known non-Governmental organisation dealing with human rights issues.

The panel also said that other countries that have been complicit in human rights violations arising from the war on terror (initiated by President George W Bush following the September 11, 2001 terrorist attacks in the US) should similarly repudiate such behaviour and review legislation, policies and practices to prevent any such repetition in the future.

In what the ICJ described as one of the most extensive studies of counter-terrorism and human rights yet undertaken, the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights undertook sixteen hearings covering more than forty countries in all regions of the world.

The outcome is the report ‘Assessing Damage, Urging Action’, released on February 16. The report illustrates the consequences of notorious counter-terrorism practices such as torture, disappearances, arbitrary and secret detention, unfair trials and persistent impunity for gross human rights violations in many parts of the world.

The Eminent Jurists Panel warns of the danger that exceptional ‘temporary’ counter-terrorism measures are becoming permanent features of law and practice, including in democratic societies. It calls for the rejection of the ‘war on terror’ paradigm and for a full repudiation of the policies grounded in it, and emphasises that criminal justice systems, not secret intelligence, should be at the heart of the legal response to terrorism.

“In the course of this inquiry, we have been shocked by the extent of the damage done over the past seven years by excessive or abusive counter-terrorism measures in a wide range of countries around the world.

Many Governments, ignoring the lessons of history, have allowed themselves to be rushed into hasty responses to terrorism that have undermined cherished values and violated human rights. The result is a serious threat to the integrity of the international human rights legal framework,” said Justice Arthur Chaskalson, the Chair of the Panel, and former Chief Justice of South Africa and first President of the South African Constitutional Court.

“Seven years after 9/11, it is time to take stock and to repeal abusive laws and policies enacted in recent years. Human rights and international humanitarian law provide a strong and flexible framework to address terrorist threats,” said panel member Mary Robinson, former UN High Commissioner for Human Rights, and former President of Ireland and current President of the ICJ.

“It is now absolutely essential that all states restore their commitment to human rights and that the United Nations takes on a leadership role in this process. If we fail to act now, the damage to international law risks becoming permanent”, she added.

The other members of the Eminent Jurists Panel are Professor Georges Abi-Saab (Egypt), Emeritus Professor of International Law at the Graduate Institute of International and Development Studies, Geneva; Professor Robert K Goldman (US), Professor of Law at the American University in Washington DC; Ms Hina Jilani (Pakistan), lawyer of the Supreme Court of Pakistan; Professor Vitit Muntarbhorn (Thailand), Professor of Law at Chulalongkorn University, Bangkok; Professor Stefan Trechsel (Switzerland), judge ad litem at the International Criminal Tribunal for the former Yugoslavia; and Justice Raul Zaffaroni (Argentina), Judge of the Supreme Court of Argentina.

According to ICJ, though evidence of the deleterious effects of security measures has been well-documented in recent years, this is the first investigation to piece together a picture that draws on public and private hearings covering forty countries over a period of three years.

As panellists listened to testimonies from Government officials, victims of terrorism, rendition survivors and civil society groups in dozens of countries around the world, a consistent theme emerged: legal systems put in place after World War II were well-equipped to handle current terror threats.

The Panel called on policymakers to rely on civilian legal systems, utilise criminal courts and not resort to ad-hoc tribunals or military courts to try terror suspects. One chapter of the report was devoted to what the jurists called the war paradigm, which is the basis of the counter-terrorism policy of the United States, and the harm it has done not only to the country’s reputation, but to the international legal order as well.

The report said that in the past, States have used war analogies as a way of securing public support for dramatic measures - legal, financial or other. There have been wars on drugs, on organised crime and on poverty, but the terminology has served a largely rhetorical purpose.

The description of the current phase of counter-terrorism efforts as a ‘war on terror’, however, differs from the rhetorical flourishes of the past. The United States, in particular, has adopted a war paradigm in the expectation that this provides a legal justification for setting aside criminal law and human rights law safeguards, to be replaced by the extraordinary powers that are supposedly conferred under international humanitarian law (laws of war).

“In doing so, it has done immense damage in the last seven years to a previously shared international consensus on the legal framework underlying both human rights and humanitarian law, and has given a spurious justification to a range of serious human rights and humanitarian law violations,” said the Panel.

The Panel believed that this war paradigm, by conflating acts of terrorism with acts of war, “is legally flawed and sets a dangerous precedent.”

The war paradigm as applied by the United States has however had a detrimental impact around the globe, said the Panel’s report. In many Hearings, the Panel learnt that Governments elsewhere appear to relativise or justify their own wrong-doing by comparisons with the US. Some countries have sought opportunistically to re-define long-standing internal armed conflicts as part of the worldwide ‘war on terror’.

Elsewhere - particularly at its Hearings in Canada and the European Union - the Panel learnt of the alleged complicity of numerous States in practices such as extraordinary renditions.

In its report, the Panel concluded that the US stance has caused serious damage to the protections accorded by both international human rights and humanitarian law.

There should be independent and impartial investigations into the alleged human rights violations and breaches of humanitarian law and remedies should be provided, said the Panel.

The Panel recommended that the US administration reaffirm the US’s historic commitment to fully uphold and faithfully apply international humanitarian law (the laws of war) during situations of armed conflict and recognise that human rights law does not cease to apply in such situations.

Accordingly, it should seek the repeal of any law and repudiate any policies or practices associated with the ‘war on terror’ paradigm which are inconsistent with international humanitarian and human rights law. In particular, it should renounce the use of torture and secret and prolonged detention without charge or trial.

The Panel also said that the US should conduct a transparent and comprehensive investigation into serious human rights and/or humanitarian law violations committed in the course of the ‘war on terror’ and should take active steps to provide effective remedies to the victims of such abuses.

“The military detention centre at Guantanamo Bay should be closed in a human rights compliant manner and persons held there should be released or charged and tried in accordance with applicable international law standards.”

The Panel said that other countries that have been complicit in human rights violations arising from the war paradigm should similarly repudiate that behaviour and review legislation, policies and practices to prevent any such repetition in future.

- Third World Network Features