(I)

For almost half a century – since the end of World War II – the world lived in the fear of a devastating nuclear war. After this threat had receded with the end of the Cold War, brought about by the collapse of the Soviet Union, mankind got only a short reprieve of roughly a decade before our minds were again consumed by an all-pervasive fear – in that case of a large invisible enemy by the name of “terrorism.”

Since the fateful events of the year 2001 in the United States, a “global war on terror” has been proclaimed by that country’s administration, with the “international community” – in actual fact the group of states aligned, in one way or the other, with the U.S. – following suit, albeit reluctantly and with much hesitation. While it is obvious that the term “war” is used in this phrase in a metaphorical sense,_[1] this development has reintroduced into international affairs an essentially Manichaean worldview according to which mankind is divided into good and evil – with no intermediate ground. This dichotomy does not only apply to states, but to peoples, civilizations, and religions alike.

The decisive events of this “war,” so far, namely the armed interventions in Afghanistan and Iraq, have made obvious the extreme fragility of the international rule of law in the face of what is presented as an almost metaphysical danger: “international terrorism.”_[2] These all-out military confrontations will also have made us aware, by now, that a mythical, vaguely defined global “war on terror” – as an effort at eradicating forces that are perceived or determined as evil – may never end;_[3] on the contrary, it will itself become part of a global cycle of violence. It is against this background that the new U.S. administration has begun to cautiously distance itself from the doctrine as well as the term, suggesting that it be replaced by the more neutral and less ambitious phrase “Global Contingency Operation.”_[4] However, no unified stand has been taken on the issue so far, and the term continues to be used by officials of the U.S. administration, especially the military establishment._[5]

Because of the vagueness of its goals, the lack of precision of the very notion of “terrorism,” and the discretionary dilemma inherent in any preventive use of force, this war will eventually become a self-defeating undertaking – unless it is made part of a comprehensive and truly universal (i.e. global) political effort, comprising a large majority of United Nations member states and not only the allies of the hegemonic power of the moment. Such a strategy will have to be aimed at eradicating the root causes of terrorist violence such as poverty, exploitation, and other forms of economic and social injustice, foreign occupation, denial of self-determination, etc.

If considerations of justice are excluded, the “global war on terror” will become a campaign of global revenge, a development that will ultimately bring about a multiplication of the terrorist threat in virtually all corners of the globe.

Only if terrorism is also understood as a form of reactive violence, and if one is prepared to undertake the intellectual effort at analyzing its specific causes, will one understand that further reactive violence – in the form of a global war on terror – can merely deal with the symptoms of the underlying conflict(s) and, in many circumstances, may even aggravate the situation. The course of events in Afghanistan is a drastic example of this dilemma: Seven and a half years into the conflict, the foreign armies are still fighting a largely invisible enemy and are losing control over ever larger parts of the territory – with first a British commander, then the President of the United States admitting that this may be a war that cannot be won militarily and, thus, hinting at the urgent need for a political approach._[6]

(II)

This dilemma between an exclusively military and a more comprehensive political approach directly brings in the human rights dimension not only of terrorist violence, but also of counter-terrorism (in the form of the “global war on terror”) – and in different respects and at different levels:

1. In the first place, terrorist violence is often (though not always) a kind of reactive violence, namely a reaction to perceived violations of basic human rights (such as foreign occupation, oppression of civil liberties, denial of self-determination, etc.). It is to be stated that acknowledging this causal relationship does in no way mean condoning specific acts of terrorism. Politically motivated acts of violence against civilians – which is a kind of operative definition of terrorism accepted by international consensus_[7] – cannot be justified under any circumstances. Nonetheless, refusing to acknowledge the specific motives behind terrorist acts will make us incapable to respond rationally and to develop a comprehensive, effective and sustainable counter-terrorist strategy. Such a “rejectionist” attitude would also make us victims of a desire for blind revenge and would make of the supposedly reactive use of force which many describe as “global war” a battle against windmills – since this war would only target symptoms, not the causes of terrorist violence (about which the strategy is ignorant in such a scenario).

2. By definition, acts of terrorism are always a negation of the most basic human rights. Using violence against non-military targets to instill fear upon people is not only intrinsically evil in general moral terms; it is tantamount to violating the very rights that are derived from the inalienable dignity of the human being. Those rights are enshrined in the respective international covenants_[8] and in domestic constitutions; they include, first and foremost, the right to life; the right to live free from fear and intimidation; the right to form one’s political opinion free from manipulation and in an open public discourse – and not as a result of “blackmail” in the form of politically motivated violence; etc. It is to be emphasized, in this context, that no double standards must be allowed in the use of the term “terrorism” insofar as the negation of fundamental human rights is concerned: Acts of terrorism are a negation of the dignity of the human person and a denial of human rights independently of their motives and irrespective of whether they are committed by individuals, loosely organized groups, large and well-disciplined organizations, or regular armed forces; furthermore, the human rights aspect also relates to all acts of state terrorism.

3. Since the global war on terror was effectively proclaimed towards the end of the year 2001,_[9] the international public has increasingly become aware of a third human rights aspect related to terrorism and to the spiral of violence in which the perpetrators of this war may get entangled: The measures against terrorism, whether undertaken as part of a “global war” or within a domestic political and legal framework, must not themselves violate human rights. International humanitarian law applies in all such situations. To counter acts that negate human rights – namely acts of terrorism – by means of further violations of human rights is not only a self-contradictory undertaking, but will completely undermine the credibility of the anti-terrorist effort and may stir up even more terrorist violence – because such lawless counter-terrorist measures will create a sense of desperation and humiliation among those brutally treated. Since the fourth quarter of the year 2001, the examples of systematic human rights violations, committed as part of a global anti-terrorist campaign abound. Torture as a standard element of interrogation techniques;_[10] detention without trial; so-called “secret renditions” of terror suspects; their detention in secret prisons all around the globe; the denial of an accused person’s right to a defense of his own choosing in a court of law, etc.: all these practices constitute serious violations of human rights – that have already been widely and controversially discussed in connection with the ongoing global discourse on the war on terror_[11] – and may eventually turn a proclaimed and all-encompassing anti-terrorist effort into a “terrorism-generating” campaign. What is portrayed as necessary and unavoidable measures to fight terrorism may itself become a self-defeating strategy, bearing the hallmarks of (state) terrorism._[12]

The risks and pitfalls of such tactics, not to speak of their immoral and technically illegal nature, have become more than evident in the anti-Western hatred triggered by the appalling human rights violations in the Abu Ghraib prison in Iraq. Furthermore, a Swiss member of the Parliamentary Assembly of the Council of Europe has documented many of the human rights violations committed not only by the United States, but also by European Union member states as the former’s accomplices, as part of the “global war on terror,” especially as regards the secret “renditions” of terror suspects._[13]

It is to be hoped that the incumbent President of the United States will make good on his electoral promises and not only revise, but reverse, the doctrine and policies that have been behind those measures, and that he will, without any further delay, close the detention center at Guantanamo Bay on the island of Cuba and annul his predecessor’s order by which so-called “military commissions” have been established to try terror suspects._[14] The procedures laid out in this order are in clear and open violation of the Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention of 1949)._[15]

 It cannot be emphasized often enough: the moral high ground will inevitably be lost – and with devastating consequences for a country’s international reputation – if a war against terror is conducted through measures that include systematic human rights violations. Such a war will not be perceived as an exercise of legitimate self-defense, but will more resemble a campaign of outright revenge,_[16] fuelling a never-ending cycle of terrorist violence. The proclamations about a “terrorist threat” and the need to counter it by preventive measures may thus become a self-fulfilling prophecy. As aptly stated by a young American officer in an analysis of the United States’ anti-terrorist campaign: “mortgaging the principles established by the nation’s founders in the pursuit of short term gains will result in a series of successful battles, followed by a lost war.”_[17]

It is further to be hoped that, in the not too distant future, the International Criminal Court (ICC) will be in a position to exercise jurisdiction over all cases of war crimes and crimes against humanity – whether those are committed as part of terrorist or counter-terrorist campaigns. At present, the hands of the Court are tied because many of the countries whose citizens were – or still are – involved in or are suspects of the commission of such crimes have not become parties to the Rome Statute of the ICC, first and foremost among them the United States._[18] For the Court to wait for “political” referrals of situations by the Security Council – as in the case of Sudan – cannot be an option._[19] Many of the human rights violations that are being committed in the course of the global war on terror constitute war crimes and crimes against humanity as defined in the Rome Statute or in other international legal instruments such as the Geneva Conventions of 1949. Those governments that pursue the “global war on terror” – in whichever strategic or tactical framework_[20] – should not further try to prevent the International Criminal Court from executing its universal mandate._[21] If they continue to do so they document, by such obstruction, that they do not take seriously international human rights standards and the rule of law – and they will finally defeat their own anti-terrorist campaign because they will de-legitimize it in the eyes of the international public._[22] As the new global discourse on secret renditions, detention in secret prisons, systematic use of torture as part of routine interrogation techniques, etc., has amply demonstrated, the citizens of the world will simply not tolerate such illegal methods any longer.

(III)

Not only for tactical, but for essentially ethical reasons, it is of utmost importance that the war against terror be conducted in a manner that respects the inalienable human rights not only of the population (the citizens to be protected), but also of terror suspects. The principles and values of a democratic polity do, under no circumstances, allow the erection of an effectively totalitarian system under the disguise of emergency measures supposedly necessitated by the fight against terror.

In order to minimize the need for measures due to which those rights might be violated, the human rights policy governing a state’s reaction to a terrorist threat must be complemented by a proactive human rights strategy – domestically and at the international level. If human rights are indeed taken seriously, a kind of reverse strategy has to be adopted in the definition of the scope of the “global war on terror.” The development of such a strategy will be an element of preventive self-defense in the genuine sense – unlike the forms of preemption that have been defined as the rationale of the ongoing war on terror in ever more theaters of operation._[23]

A “battle” – if we may use the term in a metaphorical sense – will have to be waged for the safeguarding, or restoration, of human rights in a comprehensive and all-encompassing sense, including civil and political, social, economic and cultural rights, on all continents. However, such an effort will not succeed as a unilateral undertaking; it will have to be part of a long-term global development policy in a multilateral framework such as that of the United Nations_[24] or regional organizations like the European Union or ASEAN. Only this kind of strategy will produce sustainable results – through the eradication of the root causes of terrorism (which we have identified under category 1 above in the analysis of the human rights dimension of terrorist violence)._[25] The ongoing global economic crisis and its impact on the developing countries should serve as a stark reminder of what is at stake._[26]

A global “war” – if we may again use the term in a metaphorical sense – against poverty and all forms of injustice will ultimately make a hot “global war on terror” obsolete. In any way, short-term military measures against violence can never replace a comprehensive long-term strategy.

If the “global war on terror” is only fought in the form of a reactive use of force that ignores the human rights implications in the three different dimensions we have outlined above, and if it exclusively remains in the military domain, such tactics may well lead to a perpetual confrontation that will condemn mankind to live in a state of constant fear – and that will ultimately undermine the very foundations of human rights on which a legitimate global order, the “international rule of law,” is to be built._[27] David Miliband, Foreign Secretary of the United Kingdom, has aptly expressed the fundamental challenge: countries must respond to terrorism by “championing the rule of law, not subordinating it.”_[28]

As explained more than two centuries ago by Immanuel Kant, there can be no lasting peace without respect for human rights and the rule of law,_[29] and there will be no end to the terrorist threat, indeed to the cycle of violence triggered by the sequence of terrorist and counter-terrorist operations, unless the global war on terror is superseded by a genuine global and multidimensional effort for the enforcement of human rights.

This – and not the mere technicalities of the use of military force – is the historical challenge which the human race is faced with at a junction of history where it is not yet clear whether the absence of a balance of power_[30] will lead to a state of global anarchy – with the never-ending fear of terror as basic ingredient – or to the gradual emergence of a multipolar order that is founded on the principle of sovereign equality of states and peoples alike and, by implication, on the universal respect of human rights.

Those states and leaders who are seriously concerned about the threat of terrorism – and whose agenda goes beyond the realm of propaganda, short-term domestic political considerations, and a desperate defense of doomed imperial rule – will certainly take into consideration the second option; they shall engage in a proactive human rights policy that will make the first possibility (namely a state of global anarchy) a little less likely.

***** 

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