With its new anti-terror legislation, Switzerland could well provide a model for authoritarian regimes who want to clamp down on opposition figures. Fionnuala Ní Aoláin, the United Nations special rapporteur for counter-terrorism and human rights, voices her concerns.This content was published on October 4, 2020 - 11:00
Almost 20 years ago, President George W. Bush declared a state of emergency following the terrorist attacks against the United States. It is still in force. What does that mean for the rule of law in a democracy?
For the last twenty years, we have seen the state of emergency becoming the new normal. Not only in the US. The September 11 attacks led to structures to combat terrorism worldwide which take little account of human rights or the rule of law. Even at the level of the UN.
Is the UN not paying attention to human rights or the rule of law in some respects?
In the aftermath of 9/11, a committee was created, a sub-group of the UN Security Council, actually a clone of it, with the same 15 members: the Counter-Terrorism Committee (CTC). The member states committed to improve their counter-measures against terrorism based on the rule of law following 9/11, and to submit reports to the CTC on this. Yet whereas reports to the UN Human Rights Council are often submitted late or incomplete by the states concerned, but still show what states are actually doing with regard to human rights, the reports of the CTC are kept secret. Nobody can see them. The committee reviews these reports, then they just disappear. We do not know if a state has ever been censured because it misused measures to combat terrorism against its own civilian population, or against media or opposition figures. What we do know is an interesting fact: in contrast with the dysfunctional impression given by the Security Council, the members of the CTC are always in agreement.
So what does that mean?
I talk about human rights “light”. States and committees, even UN committees, sometimes seem to think that you only have to mention “human rights” and suddenly they exist as if by magic. Whereas in reality there is no obligatory mechanism to ensure that human rights are upheld. Human rights “light” means that human rights play a role just because they are referred to, but not because there is any attempt, with transparency or concrete mechanisms, to ensure that they are being upheld.
So is the UN part of the problem?
Not the UN itself, but the member states. Through the Security Council they have created a committee – the only UN committee that looks at anti-terror actions on a regular basis – which is still secret. This is in fact a deep-seated problem. We published a report two years ago which focussed on this normalisation of emergency by states following 9/11. There are any number of examples, like the state of emergency which [Turkish] President Erdoğan declared after the failed putsch against him and which ended up becoming the everyday legal norm. This is a change in the basic practice of states: emergency legislation becomes normal legislation. Erdoğan still talked in terms of a state of emergency; and after the terror attacks in Paris, France brought in emergency legislation, the name of which indicates that this is an extraordinary measure, that rights are abolished because the state is dealing with an acute crisis. However, these laws are now being voted in as if they were normal laws, without being flagged as laws of exception which give the state extreme powers and are therefore timebound. This harmful practice is now a problem worldwide. With the pandemic, the problem has worsened again, because many states are now using their emergency powers and anti-terror apparatus to deal with Covid-19.
Can you be more explicit about this?
There were states that had to devise special new legislation because of Covid-19, to get the crisis under control. Ireland was one example; France was another. These emergency pieces of legislation were needed to be able to clamp down temporarily on people’s freedom of movement during the worst of the health crisis, or freedom of expression, or privacy, or economic freedom. Other states were able to deal with the crisis just by invoking existing legislation which had been brought in to combat terrorism. We have been working with two NGOs to set up a “civic freedom tracker” so as to document the restrictions invoked in the different countries. One can see quite clearly that there are a number of countries using Covid-19 as an excuse to curb the power of their own democracies considerably over time.
Can you give an example?
Hungary. At the outset of the pandemic, [Prime Minister] Viktor Orbán created a new structure of executive power. All decisions in the state have to go through his office. The Council of Europe has made it clear that this kind of thing is incompatible with the foundations of a democracy.
The UN’s strategy to combat terrorism has four main strands to it. One of them is to ensure that, at the same time, the human rights of all are respected, and that the rule of law is the fundamental basis for this kind of action.
Can democracies fighting against terrorism still afford human rights, or have they the will to do so? What answer do you have to those who say that we can’t give legal rights to people who are trying to massacre us as we sit in the local café?
I grew up in Northern Ireland, where we lived through an armed conflict that went on for decades. I speak here as someone for whom violence and fear were an everyday reality and not just an abstract threat. But I have to tell you very clearly, and I say it to everyone who may want to claim that human rights stand in the way of effective countering of terrorism: only when you fight terrorism with the powers of the rule of law will you be able to end the violence. If in the fight against terrorism you break the law and trample human rights underfoot, then you’re getting into an endless war you can never win. Innumerable studies and evaluations have shown how harmful state abuses in this kind of situation are. They all show that the never-ending spiral of violence, the numerous conflicts with armed groups which can get very destructive, are not just prolonged by the above-the-law actions of the states involved, but are actually intensified.
Does that mean that, even from a security point of view, it’s a bad idea to disregard human rights and the rule of law?
We know today beyond the shadow of a doubt that one of the biggest problems in countering terrorism are actions above the law by the states involved in these conflicts. So yes, even from a security perspective, it is very shortsighted to overlook human rights violations or take part in them. All these states are doing is just fanning the flames.
Fionnuala Ní Aoláin
Fionnuala Ní Aoláin is a lawyer and legal academic specialising in human rights. She teaches in Minneapolis (US) and at the University of Ulster in Northern Ireland. She is the author of several books, including “The Politics of Force”, in which she investigated murders committed by state actors in the Northern Ireland conflict. In 2003 the UN’s secretary-general appointed Ní Aoláin, who herself grew up in Northern Ireland, as a special expert on issues of equality of the sexes in the resolving of conflicts and peace processes. Later she was a UN adviser for women’s equality and empowerment, and a consultant to the UN High Commission on Human Rights study on reparations for conflict-related sexual violence. In 2017 the UN Human Rights Council appointed Ní Aoláin special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.End of insertion
You say that if we want to break out of the spiral of violence, the state must obey the law. You say that, when the head of the CIA is Gina Haspel and we know that she ran a secret prison in Thailand where people were tortured, and she still has no problem with that. What does it mean when we know that torture doesn’t get you put in jail but the opposite: that in the most powerful country in the world it can actually be good for your career?
As an academic I have repeatedly emphasised that it is incompatible with a democratic state to appoint someone to an office like that who has been responsible for implementing torture. The message of this to governments around the world can only be: “It is open season. Torture is allowed. There are no consequences.” At the same time, I am involved in dialogue with many different states. Quite a few are horrified at the idea that people involved in torture are promoted instead of being held accountable for their crimes. Our duty is always to be reminding people that Gina Haspel has been responsible for torture. And it is our duty to be aware that the rule of law takes its time. In Guatemala or Argentina, for example, it took twenty or thirty years to bring torturers to justice. But it did happen. That brings me back to the core of the issue: nobody is above the law. I am not prepared to exclude the possibility that at some time in the future in the US, the law will hold certain people to account, even holders of high office.
And in the meantime?
In the meantime we go on working with the states who believe in these values and who promote them and are convinced that their societies are safer and better protected when human rights are respected. As part of my UN mandate, I work a great deal with secret services, police and military forces – the security sector. Many of them understand that it is counterproductive to decide to ignore human rights. Many do not regard security and human rights as two things that are unrelated. Frequently people agree that security and respect for human rights are inseparable, and indeed depend on one another.
Nonetheless, almost any toughening of laws in this area seems to get voted through by national parliaments. In this country too. It’s as if society had got used to the idea that the rule of law on its own is powerless to defeat terrorism.
This tendency is not new, which doesn’t of course make it right. Aharon Barak, who was at first the Israeli attorney general and then the chief supreme court judge in his country, said it was the great challenge for democracies to have to fight with one hand tied behind their backs. Democracies that followed the rule of law tended to think that they were at a disadvantage compared to states that did not play by the rules. This, Barak said, turns out to be the crucial point: they are not fighting with the same weapons. There is a difference. And it is important to emphasise this difference as societies that want freedom of speech, freedom of assembly and individual privacy: we don’t want 100% security, because we could only have such total security if we gave up all our rights.
What does that mean for the present time of coronavirus?
One of the main challenges of this “corona moment”, which our societies are having to deal with, is to find a balance between restrictions and the right of citizens to live a full and free life. International law expressly provides for this. States have to have the right to suspend the citizens’ rights in a major emergency for a brief period. The point is: at some time it has to stop.
In May, the UN warned Switzerland over the draft of its anti-terrorism legislation. You and the UN again recently warned Swiss parliamentarians against voting through the anti-terror bill. [On September 23, both chambers of Swiss parliament approved the reforms to the anti-terrorism law]. Your recent criticism was quite blunt: “Switzerland’s draft anti-terrorism legislation violates international human rights standards by expanding the definition of terrorism, and would set a dangerous precedent for the suppression of political dissent worldwide.” Why do you have such a problem with this legislation?
This legislation alters the definition of terrorism. As regards human rights, the rule of law and indeed the current situation in the world, that is central and of crucial importance. There are other points, which are a cause for great concern, such as, that children could also be penalised under this law. But the crucial sticking point is the new definition of terrorism, which differs from the consensus of international law and indeed belongs to an existing model about which there can be no illusions. This definition of terrorism is used by authoritarian states to suppress dissent.
What exactly is different here?
Terrorism in Switzerland will no longer have to involve serious crime. There is new mention of people who are considered a danger as “potential terrorists”. The language of the bill makes it clear: this is no longer about terrorist acts, but the potential danger of them – which is a vague notion. In legal terms it is highly questionable, for it opens the door to abuse. All the more so because this Swiss legislation also provides for “potential danger” to be decided on not by a court of law, but by the federal police. Just imagine what that would mean in an authoritarian state. This is all linked to administrative provisions which could even affect children. There are measures that could massively restrict their freedom of movement although they have committed no crime. That to my mind is a violation of article 5 of the European Human Rights Convention. And that is just part of the problem.
What’s the other part of the problem?
Switzerland is a democracy. And not just any democracy. You may forget that Switzerland was historically among the most important states when it came to holding other states to account if they misused their powers under the cover of countering terrorism. The signal Switzerland is now sending is the opposite. Switzerland is signalling to other states – and don’t underestimate the fact that this signal is coming from Switzerland – that broad, vague, imprecise definitions of terrorism that you can interpret as you please are all fine and allowable. And that’s very dangerous. For history shows that this means preparing the ground for authoritarianism. It happens again and again that states misuse anti-terror legislation. And we are very concerned that Switzerland – historically in first place when it came to defending precise, narrow, legally adequate definitions of terrorism – is sending a dangerous signal out into the world.
Into what kind of world?
Think of Hong Kong. China is now calling anyone who criticises the government in Hong Kong a terrorist, or pursues them with anti-terror measures. Here we are saying clearly: such a vague interpretation of the concept of terrorism is not admissible. In Saudi Arabia, anti-terror legislation was used to imprison women who were agitating for the right to drive. In Turkey, lawyers, professors, journalists and human rights activists are being imprisoned after being accused of terrorism. That can happen because the concept of terrorism is no longer defined in terms of acts of violence, but can mean almost anything. Switzerland is now giving the green light for this kind of abuse, indirectly, when it interprets terrorism in the same vague manner. In Egypt two weeks ago, the human rights lawyer Bahey el-Din Hassan was sentenced to fifteen years in jail by an anti-terrorism court, because he had criticised the government.
What did he actually say?
He accused the government of misusing vague anti-terror laws to muzzle the opposition.
Swiss anti-terror legislation
The reform of the anti-terrorism law includes police measures to combat terrorism emphasises preventative action against “potential terrorists”, people who are alleged to constitute a danger, but have not yet committed a crime. The new law empowers police to impose contact and travel bans on these people and even keep them under house arrest. These measures can be taken against children: 15-year-olds can be put under house arrest, and all other measures can be invoked against 12-year-olds.End of insertion
Since 9/11, action to combat terrorism has developed exponentially in the Western world, with laws being toughened and wars being waged against terrorism. Is the world now a safer place, twenty years later?
It’s a good question: have all the actions that have been taken since 9/11 made us freer or safer? From the point of view of my mandate, I cannot just say “yes”. We have seen the rise of powerful, violent non-state actors, which have committed huge human rights violations: Islamic State. We have seen other massive, systematic violations of human rights: Guantanamo Bay. Systematic illegal renditions, disappearances, systematic torture, waterboarding. Guantanamo is still in operation. In 2017, I was there as legal counsel. I saw with my own two eyes how people are held there without any legal basis and are exposed to torture and degrading treatment. At the same time, our security apparatus seems to have exploded. Civil rights are being abolished. In that sense: no. It is no longer clear to me whether we intend the goal to be to combat terrorism, and prevent violence and radicalisation. I am not even sure any more if that is really the goal.
Jelani Cobb, professor of journalism at Columbia University, who writes for the New Yorker magazine, tweeted on the anniversary of the terror attacks on New York: “There’s a good book to be written about the ways in which the events of September 11, 2001 have led us directly to the chaos of the current moment.”
9/11 cast a long shadow. 9/11 led to the UN constructing a whole new anti-terror architecture, which has had consequences for the integrity and balance of the whole organisation. The inflated role that the fight against terrorism has since occupied at the UN, together with the lack of integration of the role of human rights in the organisation in this regard, is a global legacy of 9/11. Another legacy, at the national level, is the massive increase in action taken to combat terrorism, including in the democratic states. Even the Swiss legislation we have been talking about is a legacy of 9/11. It is the result of a huge increased pressure on national parliaments to pass new legislation on countering terrorism, often in a shortsighted and ineffective manner.
What kind of emotions did 9/11 stir up among the general public?
9/11, but also the bomb attacks in London, the attacks in Madrid, the horror in Paris, the horror in Brussels, filled people with a profound fear. As a result of this fear many people have lost faith that the rule of law is able to protect them. That may be the biggest challenge we are facing today. We are dealing with a public opinion that has become convinced, after all the horrors we have been through, that our fear justifies any means. We have to reconvince this public opinion that the cry for more draconian laws, the militarisation of society, is not going to make us any freer or safer.
What’s the alternative?
The only way for a security that can last is in the old-fashioned rule of law, in the maintaining of human rights. We need to find out the reasons for the violence which is affecting us. In Northern Ireland we learned that lesson. Had to learn it. It was a long road. But in the end it was not military or legislative escalation that freed us from violence, but a peace agreement, achieved after a long-drawn-out process. The communities most affected by massive violence were involved in that. Step by step we found out and documented what was the cause of violence, and then that was dealt with – in a way that was clearly effective, after thirty years of terror.
This piece originally appeared in Republik Magazine.
Translated from German by Terence Macnamee