Will terrorism ever go away?

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With new anti-terror laws, Switzerland is becoming a role model for authoritarian regimes. The online magazine "Republik" spoke to the woman who formulated this sharp criticism: the UN special envoy for human rights, Fionnuala Ní Aoláin. We reproduce the interview External Link with kind permission.

This content was published on September 24, 2020 - 4:30 pm
Daniel Ryser, Republik.ch

Fionnuala Ní Aoláin, we're having this conversation on September 11th. Almost twenty years ago the then US President George W. Bush declared a state of emergency because of the attacks in the USA - which continues to this day. Twenty years of a state of emergency - what does that mean for a constitutional state?

Fionnuala Ní Aoláin: We have seen the normalization of the state of emergency for twenty years. Not just at the national level in the US. The attacks of September 11th led to counter-terrorism structures on a global level that neglect human rights and the rule of law. Even at the UN itself.

The UN hardly takes human rights and the rule of law into account in certain areas? What do you mean?

In the aftermath of 9/11, a body was created, a subsidiary body of the UN Security Council and actually a copy of it, with the same fifteen members: the Counter-Terrorism Committee (CTC). After 9/11, the members undertook to improve their efforts to combat terrorism under the rule of law and to submit reports on them to the CTC.

But while the reports in the UN Human Rights Council are often submitted too late and incompletely by states, but still show which states deal with human rights and how, the reports of this body are secret. Nobody has any insight. The committee sifts through the reports and then they disappear.

We do not know whether a state was ever convicted here for abusing counter-terrorism measures against the civilian population, against the media and against members of the opposition. What we do know, and that is an interesting fact: that in contrast to the dysfunctional UN Security Council, the members of the CTC always agree.

And what does that mean?

I'm talking about "human rightslight ". States and bodies, sometimes even UN bodies, sometimes have the idea that one only has to use the term human rights and then they are given in a magical way. While in reality there is no mandatory mechanism to ensure that human rights are respected. "Human rightslight " means that human rights play a role because they are talked about, but not because transparency or concrete mechanisms are used to ensure that compliance with them is really guaranteed.

The UN is part of a serious problem?

Not the UN. But their member states: they have created a body through the Security Council - and thus the only UN body that regularly reviews anti-terrorist measures - which is, however, secret. The problem goes deep. Two years ago we published a report that focused on this normalization of the state of emergency as a result of 9/11.

There are countless examples of this: the state of emergency that President Erdoğan declared in Turkey after the failed coup was finally converted into a legally normal state. To this end, however, a fundamental state practice is also changing: Emergency laws become regular laws.

Erdoğan still spoke of a state of emergency, and France also passed emergency laws after the terrorist attacks in Paris, the title of which warns that it is an extraordinary measure that rights will be curtailed because the state is confronted with an acute crisis. But such laws are passed today as normal laws, without being highlighted as exceptional laws that give states extreme power and are therefore temporary.

This harmful practice is a global problem. And with the pandemic, the problem has worsened again, because numerous countries are now using their security and anti-terrorism apparatus to get Covid-19 under control.

Can you do that?

There were states that had to enact special laws because of Covid-19 in order to get the crisis under control. Ireland, for example. Or France. It was necessary to enact these emergency laws in order to temporarily restrict people's freedom of movement so massively in view of the massive health crisis. Or freedom of expression, privacy, economic freedom.

In the face of this crisis, other states could simply fall back on existing laws that had been created to combat terrorism. In cooperation with two NGOs, we have activated a tracker that documents the respective restrictions in the individual countries. It can be observed that there are a number of countries that used Covid-19 to significantly limit the capacities of their own democracy over the long term.

AExample?

Hungary. With the beginning of the pandemic, Viktor Orbán created a structure of executive power. All decisions in the state must go through its office. The Council of Europe has clearly criticized that such a form is incompatible with the principles of democracy.

Only if you fight terrorism with the means of the rule of law will you end the violence.

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The UN strategy for combating terrorism consists of four central pillars. One of them: to ensure that the human rights of all are respected and that the rule of law forms the fundamental basis of these actions. Can or do democracies still want to afford human rights in the fight against terrorism? How do you answer people who say that we can't give a fair hearing to people who mow us down in the street café?

I grew up in Northern Ireland, where we faced armed conflict for decades. I speak as someone for whom everyday violence and fear were a reality and not an abstract threat. But I will tell you this clearly and unequivocally, and I will say this to everyone who claims that human rights stand in the way of an effective fight against terrorism: only if you fight terrorism with the means of the rule of law will you end violence.

If you break the law and disregard human rights in the fight against terrorism, you are embarking on an endless struggle that you cannot win. Countless studies and evaluations show how harmful state violations are in this dispute. They all show that the never-ending spiral of violence, the numerous, in some cases serious, conflicts with armed groups were not only prolonged, but actually fueled by the violations of the law by the states involved.

Does that mean that it is negligent, especially from a security perspective, to disregard human rights and the rule of law?

Today we know without a doubt that one of the great problems in the fight against terrorism is the breach of law by the states involved in this fight. Thus, from a security perspective, it is indeed extremely short-sighted to accept human rights violations or to participate in them. The only thing these states are doing is adding more fuel to the fire.

To person

Fionnuala Ní Aoláin is a lawyer and law professor specializing in human rights. She currently teaches in Minneapolis (USA) and Ulster, Northern Ireland. She has published several books, including The Politics of Force, in which she investigated the killings of state agents in the Northern Ireland conflict.

In 2003, the UN Secretary General appointed Ní Aoláin, who grew up in Northern Ireland, as a special expert on the issue of gender equality in conflicts and peace processes.

She later served as an advisor to the United Nations on Equality and Women's Empowerment and the Office of the United Nations High Commissioner for Human Rights on the study on reparations for conflict-related sexual violence.

In 2017, the UN Human Rights Council appointed Ní Aoláin as Special Rapporteur on the protection of human rights and fundamental freedoms in the fight against terrorism.

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They say that if we want to break the spiral of violence, then the state must comply with the law. You say that while at the same time a woman is CIA director Gina Haspel, who we know today that she ran a secret prison in Thailand where people were tortured,and which has no moral problem to this dayexternal link. What does it mean when we know that torture does not bring you to prison, but on the contrary: that it can even serve your career in the most powerful country in the world?

As an academic, I have emphasized very clearly and repeatedly that it is incompatible with the rule of law to appoint a person to such an office who has been responsible for torture programs. And that the message to governments around the world is only one: "It's hunting season. Torture is allowed. There are no consequences."

At the same time, I am in dialogue with many countries. Quite a few are appalled at promoting people who tortured instead of holding them accountable for their crimes. It is our job to constantly remind people that Gina Haspel was responsible for torture. And it is our job to be aware that law and order have a long breath. In Guatemala or Argentina, for example, it took twenty and thirty years to bring torturers to justice. But then it happened.

And that brings me back to the fundamental core: Nobody is above the law. In no case will I rule out the possibility that the law will at some point in the USA hold people accountable, right up to the highest positions of responsibility.

And in the meantime?

In the meantime, we continue to work with those states who believe in and promote these values ​​and who believe that their societies are safer and more protected when human rights are respected. As part of my UN mandate, I work a lot with the secret services, the police, the military and the security sector. Many of them understand the counterproductive nature of political decisions to disregard human rights.

And many do not see security and human rights as two things that have nothing to do with each other. People often agree that security and respect for human rights are inextricably linked and interdependent.

We don't want one hundred percent security. Because we could only get this total security if we gave up all of our rights.

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Nevertheless: almost every tightening of the law in this area seems to be approved by the parliaments.Also in Switzerland.As if in the societiesinternalized the feeling that the rule of law cannot defeat terrorism.

And this feeling isn't new either, which doesn't make it any more correct. Aharon Barak, former Israeli attorney general and then the country's highest judge, called it the great challenge of democracies to have to fight with one hand behind the back.

Democracies committed to the rule of law feel that they are at a disadvantage compared to those who do not obey the rules. That, said Barak, is ultimately the crux of the matter: You don't fight with the same means. There is a difference. And it's important to emphasize this distinction as societies that want freedom of expression, gatherings, and privacy: we don't want one hundred percent security. Because we could only get this total security if we gave up all of our rights.

What does that mean for the time currently marked by Corona?

One of the central challenges in this Corona moment, with which our societies are struggling, is: finding the balance between the restrictions and the right of citizens to lead a fulfilling, decent life. International law expressly provides for this: States should and must be allowed to curtail citizens' rights for a short period of time in the face of an extremely exceptional situation. The point is: it has to end again at some point.

The law changes the definition of terrorism. That is extremely central and serious.

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In May, the UN sharply criticized the planned tightening of the law in relation to the fight against terrorism in Switzerland for the first time. Now, on the day on which we are conducting this interview, you and the UN have again warned the Swiss parliamentarians against approving the planned anti-terrorist measures. The criticism is sharp and unequivocal: "The draft for the Swiss anti-terror law breaks international human rights standards by expanding the definition of terrorism and could set a dangerous precedent for the suppression of political opposition worldwide." Why does the UN Special Representative on Human Rights and Counter Terrorism see this law as so problematic?

The law changes the definition of terrorism. With a view to human rights, the rule of law and, last but not least, the world situation, this is extremely central and serious. There are other points that are extremely worrying, such as that this law is intended to affect children as well. But the key point is the new definition of the term terrorism, which deviates from the consensus in international law and is far from the usual, unequivocal model. This definition of terrorism is used by authoritarian states to suppress the opposition.

What exactly is different?

In Switzerland, terrorism should no longer be linked to a serious crime. There is new talk of threats, of potential terrorists. The language of the text alone says it all: It is no longer a terrorist act, but a potential danger. Danger is a vague term. Legally, this is very problematic because it opens the door to abuse. All the more so because Swiss law also provides that this potential risk should not be assessed by a court, but by the federal police.

Imagine what that means in an authoritarian state. And all of this is then also linked to administrative measures that children can take themselves. Measures that can massively restrict their freedom of movement even though they have not committed a crime. I am convinced that this is a violation of Article 5 of the European Convention on Human Rights. And that would only be part of the problem.

And the other part of the problem?

Switzerland is a democracy. And not just any democracy. As a Swiss, you might forget that sometimes. Historically, Switzerland has been one of the most important states when it comes to holding other states accountable if they have abused their power under the guise of combating terrorism. The signal that Switzerland is now sending runs counter to this. Switzerland is signaling to other countries - and you must by no means underestimate the fact that this signal comes from Switzerland - that broad, vague, imprecise and interpretable definitions of terrorism are permissible and permissible.

And that is extremely dangerous. Because history shows that this lays the groundwork for authoritarianism. It happens again and again that states abuse anti-terrorism laws. And we are deeply concerned that Switzerland - historically first and foremost when it came to defending precise, narrow, legally adequate definitions of terrorism - is sending a fatal signal to the world.

Switzerland indirectly gives the green light to abuses if it interprets terrorism in such a vague manner.

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In which world?

Think Hong Kong. China now calls anyone who criticizes the Hong Kong government a terrorist or is persecuting them with anti-terrorist measures. Here we say clearly: such a vague interpretation of the concept of terrorism is not permissible. In Saudi Arabia, anti-terror laws have been used to imprison women who have campaigned for the right to drive. In Turkey, lawyers, professors, journalists and human rights activists are being locked away on charges of terrorism.

All of this works because the term terrorism is no longer linked to serious acts of violence and can mean almost anything. Switzerland indirectly gives the green light for such abuses, even if it interprets terrorism in such a vague way.Two weeks ago in Egypt, human rights lawyer Bahey el-Din Hassan was sentenced to fifteen years in prison by an anti-terrorist tribunal for criticizing the government.

What did he say

He has accused the government of abusing vague anti-terrorism laws to shut down the opposition.

On the planned anti-terror law

The Federal Act on Police Measures to Combat Terrorism (PMT) focuses on preventive measures against “terrorist threats”: people who pose an alleged danger but who have not yet made themselves liable to prosecution. With the new law, the police will be able to impose contact and exit bans against these people or even order house arrest. The measures can also be used against children: House arrest can already be imposed on 15-year-olds, all other measures on 12-year-olds.

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Since 9/11, counter-terrorism measures in the western world have been expanded almost immeasurably, laws have been massively tightened, and entire wars against terrorism have been waged. Is the world a safe place twenty years later?

That's a big question: Have all the measures that have been taken since 9/11 made us freer, safer? From the perspective of my mandate, I cannot answer this question with a clear yes. We have seen the rise of powerful, violent non-state actors who have committed massive human rights violations: IS. We have seen other massive, systematic human rights violations: Guantanamo Bay. Systematic illegal extraditions, abductions, systematic torture, waterboarding.

Guantanamo still exists, I was there as a lawyer in 2017. I have seen with my own eyes how people are illegally detained there and subjected to torture and humiliating treatment. At the same time, our security apparatus has exploded. Civil rights were curtailed. In the sense: no. It is not clear to me whether we are even aware that the aim of counter-terrorism is to prevent violence and radicalization in the first place. I'm not even sure that that's the goal anymore.

Jelani Cobb, professor of journalism at Columbia University and employee of the magazine "New Yorker", tweeted on the anniversary of the terrorist attacks on New York: "The story of how the incidents on September 11, 2001 led us directly into the current chaos would make a good book. "

9/11 has cast a long shadow over us. 9/11 has resulted in the UN creating a new anti-terror architecture that has serious consequences for the integrity and balance of the entire agency. The oversized role that the fight against terrorism has played in the UN since then, combined with the lack of integration of the role of human rights within the agency in this area, is a global legacy of 9/11.

Another legacy, at the national level, is the massive increase in the use of counter-terrorism measures, including in democratic states. And also the Swiss law we talked about is a legacy of 9/11. It is the result of massive increases in pressure on national parliaments to enact new counter-terrorism laws, often short-sighted and ineffective.

What did 9/11 trigger in the people?

9/11, but also the bombings in London, the attacks in Madrid, the horror in Paris, the horror in Brussels, filled people with deep fear. Because of this fear, many people have lost the belief that the rule of law has the ability to actually protect them.

And that is possibly the greatest challenge of today: that we are confronted with a public that has come to believe, through all the horror we have experienced, that the fear we feel justifies all means. And that we have to convince this public again that the cry for ever stricter laws, the militarization of society, does not make us freer and safer.

What's the alternative?

The only way to achieve sustainable security lies in the very old-fashioned rule of law, in respect of human rights. We need to find out what causes the violence that plagues us. We learned that lesson in Northern Ireland. You need to learn. It was a long way. But in the end it was not more armament, military, legal, that freed us from violence, but a peace agreement that was based on a lengthy process.

The communities most affected by the massive violence have been heavily involved. So, step by step, you recorded and recognized what was behind the violence, and then you addressed it - in a way that finally, after thirty years of terror, had an effect.