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The Legal Legacy of 9/11: Reflections Five Years On

JURIST Special Guest Columnist Justice Arthur Chaskalson, President of the International Commission of Jurists and former Chief Justice of South Africa, says that although the threat of terrorism is real, five years after the September 11 attacks on the United States it's not at all clear that the legal response to that threat has been proportionate and sufficiently sensitive to the preservation of fundamental democratic rights...

It is almost five years since operatives of Al Qaeda hijacked four airplanes and used them as weapons to attack the World Trade Center and other targets in the United States. The events of that day shocked most of the world. They have acquired iconic status and are referred to in the United States and elsewhere as 9/11.

In the wake of 9/11 the Security Council of the United Nations passed various resolutions requiring all states to take measures to combat terrorism. In response countries around the world have adopted new or amended existing anti-terrorist legislation. In some countries this has led to an erosion of cherished rights; in others it has provided a welcome opportunity to governments to reinforce and strengthen repressive practices.

Looking back over the five years few could claim that the world is a safer place than it was before 9/11. There have been disastrous wars in Afghanistan and Iraq in the aftermath of which great numbers of lives are still being lost, injuries and widespread suffering is being caused and normal conditions of life are being disrupted. More recently the conflict between Israel, Hezbollah and Hamas has escalated and led to widespread loss of life in the region, greater proportionately than happened on 9/11, to damage on a much greater scale and to a humanitarian crisis in Lebanon. There have also been a significant number of bomb attacks on civilian targets in different regions, some said to have been committed or inspired by Al Qaeda. These attacks have been in countries with different social, economic, political and cultural norms. To mention but some, those targeted include Indonesia, Spain, Egypt, the United Kingdom, Kenya and Russia. Elsewhere there have been internal armed conflicts in various parts of the world including Colombia, Nepal, Sri Lanka, Chechnya, and Sudan, characterized by some as terrorism and by others as legitimate struggles.

On the fifth anniversary of 9/11 it is appropriate to reflect on what has happened during the past five years and on the impact of the counter-terrorism measures that have been taken.

In a statement issued on 30 June 2003, experts associated with the United Nations Commission on Human Rights expressed
their profound concern at the multiplication of policies, legislations, and practices increasingly being adopted by many countries in the name of the fight against terrorism, which affect negatively the enjoyment of virtually all human rights - civil, cultural, economic, political and social.
The International Commission of Jurists (ICJ) and other respected international human rights organizations have expressed similar concerns. The ICJ has a network of 60 Commissioners, 37 National Sections and 45 Affiliated Organizations. At a well attended meeting of this network held in Berlin to mark its 50th anniversary the ICJ adopted the Berlin Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism, affirming the importance of complying with human rights and humanitarian law, and stressing that
Contemporary human rights and humanitarian law allow states a reasonably wide margin of flexibility to combat terrorism without contravening human rights and humanitarian obligations.
Allegations have been made concerning excessive counter-terrorism measures adopted by some countries. They include torture of detainees to extract information; where torture is not practiced suspects may be transferred to countries where torture is likely; suspects are held in indefinite, sometimes secret, detention without charge or trial; detainees are held without access to habeas corpus and the protective reach of the courts is cut down in other ways. Fair trial guarantees and rights of appeal are curtailed; action is taken against suspects on the basis of evidence or intelligence that is withheld from them; freedom of expression is threatened; minority communities are targeted and discriminated against on ethnic or religious grounds; and because of vague definitions of terrorism political and social dissent is criminalized.

Hearing these allegations I was reminded of what happened in South Africa which is my home. For almost forty years from 1950 to 1990 a network of security legislation was enacted, and amended bit by bit over time to deal with perceived gaps in the laws, and the demands of the security establishment to strengthen its armory to enable it to deal with what was characterized as the fight against terrorism. This led to the development of a structure of draconian security laws including arbitrary powers of arrest vested in senior police officers to order the detention of suspects and to hold them incommunicado, without access to lawyers or persons other than the security establishment. Initially detention could be for up to 90 days; that was amended to 180 days and ultimately indefinite detention was sanctioned. Not surprisingly the isolation placed the detainees in a vulnerable position in which they could be and were, with impunity, subjected to methods of interrogation that caused mental and physical stress, degrading treatment and torture. In a number of cases the excesses led to deaths in detention. The armory of security laws made provision for the banning of organizations and the banning of publications, and for administrative measures involving the curtailment of freedom of speech, freedom of movement, freedom of association, and for house arrest under which suspects could be confined to their homes for all or part of a day during which they would be prohibited from receiving visitors or communicating directly or indirectly with persons listed as "communists" or supporters of an unlawful organisation.

These measures had a profound impact on our legal system and on life in our country. Terrorism was defined broadly and caught within its net activities which could be said to be no more than legitimate social or political protest. Well established principles of the common law such as habeas corpus, the presumption of innocence, the right to a fair trial, the right to be heard before being deprived of liberty, and much more were swept aside on the grounds that this was necessary to combat terrorism. This had a chilling effect on freedom of speech and freedom of association; what you said and who you associated with could be noted and recorded and there was always the risk that if you were seen in the "wrong" company you could be placed under surveillance yourself.

I do not suggest that conditions in apartheid South Africa are comparable to those in established democracies; nor do I suggest that the struggle against apartheid characterized by the apartheid state as terrorism can be compared to atrocities such as those committed on 9/11. There are, however, lessons to be learnt from the South African experience, and from the experience of other countries in which excessive security measures have been adopted in the interest of the security of the state. First, early encroachments into fundamental rights are dangerous because they open the way for subsequent encroachments and to a process that saps the will of the public to object. Secondly they seep into the law, the temporary becomes permanent, new norms are established and become acceptable for dealing with other problems that confront the state. Thirdly, the laws seldom achieve their purpose if the underlying causes of the threat remain unresolved and are often counter-productive, alienating communities whose support the state may need to counter the threat effectively.

This is not to say that legislation to combat terrorism is not necessary. The threat of terrorism is real and calls for response, including where terrorism has an international dimension, response at an international level. But to repeat what I said at the Berlin meeting of the ICJ "the response should be proportional to the danger involved and carefully tailored to address it, bearing in mind that the danger includes not only the harm done by terrorism, but also harm done to the fabric of society by disproportionate responses that undermine democracy itself".

The United States has a tradition of respect for human rights. It is important that it should be, and should be seen to be, meticulous in crafting anti-terrorism measures to ensure that they comply with human rights and humanitarian law. Five years after 9/11 it is appropriate to ask: has this been done?

Justice Arthur Chaskalson is the President of the International Commission of Jurists. He was formerly the Chief Justice of South Africa and the first President of South Africa's Constitutional Court.

Justice Chaskalson currently chairs the ICJ's Eminent Jurists' Panel, which has been holding a series of worldwide public hearings on terrorism, counter-terrorism and human rights. Its US hearing is scheduled for September 6-8 in Washington, DC. The other members of the panel attending the US hearing are Professor Georges Abi-Saab (Egypt), Professor Robert K Goldman (United States), Hina Jilani (Pakistan), Mary Robinson (Ireland) and Professor Vitit Muntarbhorn (Thailand).


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