University of Minnesota




DAVID WEISSBRODT, JOAN FITZPATRICK, AND FRANK NEWMAN,
INTERNATIONAL HUMAN RIGHTS — LAW, POLICY, AND PROCESS (3d ed. 2001).

Supplement to the Preface: Further Developments in International Human Rights (May 2003)


Why a supplement to the preface?

Since the publication of the third edition, the political and conceptual landscape in which the human rights regime operates has undergone an enormous transformation.  The attacks of September 11th may yet prove pivotal in creating a permanent shift in the balance between human rights and national security. Joan Fitzpatrick’s following article discusses the range of issues that these recent developments raise:

Joan Fitzpatrick, Speaking Law to Power: The War Against Terrorism and Human Rights, 14 European J. Int'l L. 2413 (2003)
(
summary edited by the author; most footnotes omitted):

A. INTRODUCTION

The human rights movement uses legal language and institutions to limit the harm the powerful inflict on the vulnerable. The ‘war against terrorism’ tests the limits of the legalist approach, leaving human rights advocates marginalized.  Some governments, ostensible champions of the rule of law, have, at least temporarily, constructed ‘rights-free zones.’ [27]  Bedrock principles have been displaced by legally meaningless terms, leaving activists to wrestle with legal phantoms. [28]  
Acts of terrorism are obviously antithetical to human rights values, but the international human rights regime has itself produced relatively little to confront the destructive force of groups such as Al Qaeda. Rhetorically and politically, this places human rights institutions at a disadvantage. The human rights framework is not inflexible in the face of extraordinary dangers, and a complex jurisprudence has developed to balance rights against the imperative needs of security. However, with the exception of the definition of ‘crimes against humanity’ and concepts of universal jurisdiction, human rights law offers relatively few legal rules for the conduct of transnational criminal networks. Human rights norms constrain state responses to terrorism more clearly and directly. 

The notion that the September 11 attackers represented an entirely new type and degree of threat led to a “war” that fits no accepted legal paradigm  and leaders of the antiterrorism coalition resist providing a stable definition of the “enemy.”  For purposes of this essay, I will assume the target of the “war against terrorism” to be all international terrorists of “global reach,” and the objective to be their eradication or incapacitation.

This essay separately addresses the substantive and institutional implications of the “war against terrorism” on human rights.  The crisis illustrates the centrality of the rule of law to the protection of human rights, and its fragility even in liberal democracies.  Legal rules governing permissible state responses to terrorism must be located in the murky space between five distinct bodies of international law: human rights, refugee law, humanitarian law, norms concerning the use of force in international relations, and international criminal law. 

B.  SUBSTANTIVE IMPLICATIONS 

U.S. policy makers, who dominate the agenda of the “war against terrorism,” manifest an absolute conviction of the rightness of their goals and their methods. Error is impossible and they exploit the ambiguities of humanitarian law and the rules on the use of force, refusing to recognize human rights law as being of any relevance. At the same time, the human rights community has reacted to the “war against terrorism” with its own strong sense of moral outrage.  Human rights actors ranging from the High Commissioner to NGOs, have reiterated fundamental principles, stressed that their preservation is vital in time of crisis, and asserted that their erosion would hand the terrorists a victory over tolerance, the rule of law, and basic human dignity. 

Thus, a clash of moral absolutes displaces genuine dialogue between those prosecuting the “war against terrorism” and those who position themselves as guardians of the human rights regime. No space has yet appeared for negotiation of defined norms possibly better adapted to the new world in which we find ourselves. Nevertheless, it is possible to sketch several substantive areas in which norm clarification may occur if counter-terrorism pursues its move from a crime-control to an armed conflict paradigm.

1.  Pre-Emptive Self-Defense

Alterations in norms governing the use of force in international relations may indirectly affect human rights standards by increasing the perceived legitimacy of pre-emptive defensive action. The doctrine of pre-emptive self-defense articulated by the U.S. Executive dispenses with the Charter’s structural and substantive limits on the use of force.  Massive military force may be used at will, against any state.  No limits of proportionality are relevant, because the future terrorist activity to be prevented can always be hypothesized in apocalyptic terms.

Control measures against individuals suspected of terrorist involvement are shifting from a retrospective to a prospective approach (pre-emptive self-defense writ small).  Techniques of prevention include military attacks, seizure of terrorist suspects in third states without the formalities of extradition, detention without charge or trial, and trial by ad hoc military tribunals. 

The criminal law paradigm that previously characterized international cooperation against terrorism focuses on individual responsibility for proven past criminal acts, even where prevention of additional and possibly greater harm is also sought. In the United States, the “war against terrorism” continues to include ordinary criminal prosecutions, as well as the potential implementation of a shadow criminal justice system through the “military commissions” authorized by President Bush’s November 13, 2001, Military Order. [29]  

Administrative detention is not an unusual or innovative antiterrorist technique.  But the move to “war” rhetoric adds a new wrinkle to the old debate about the derogability of arbitrary detention norms and fair trial rights.  Derogation standards incorporate by reference norms of humanitarian law.  Human rights bodies have drawn upon the fair trial guarantees of the Geneva Conventions (which apply in the most extreme of emergencies) to reach the conclusion that many aspects of fair trial are functionally non-derogable.  Moreover, the right to challenge the lawfulness of detention before an independent judicial body must never be suspended. 

The current emphasis upon internment of terrorist suspects raises the overarching question whether the attacks of September 11 have resulted in a fundamental shift in the balance between security and liberty.  A move to “war”-time internment may be motivated by a belief that preventive measures are more effective in neutralizing potential terrorist threats, without the risk and cost entailed in individual prosecutions.  Whether humanitarian law displaces human rights law in relation to such detention is considered in the following section.

2.  A War Without Rules?

The “war against terrorism” eludes definition, largely because those prosecuting the campaign find ambiguity advantageous to avoid legal constraints and to shift policy objectives with minimal accountability. As many have noted, neither “war” nor “terrorism” has a fixed meaning in contemporary international law.  Assuming the “war against terrorism” is being conducted by the United States and allied states against all international terrorists of “global reach,” then one must navigate the boundaries between humanitarian law and international criminal law, with differing implications for human rights. This “war” is not an international armed conflict cognizable under Common Article 2 of the Geneva Conventions of 1949, nor even under the expanded definition of Article 1(4) of Protocol Additional I of 1977. This semantic move may affect the capacity of the human rights regime to preserve essential aspects of the rule of law during the present crisis.

For example, the Guantánamo captives and the “enemy combatants” being held in Afghanistan and in the United States are indefinitely detained without charge or trial, and without access to counsel or family.  Terrorist suspects are being seized far from the battle zone in Afghanistan and transported to these detention sites.  The policy of the U.S. Government is that the captives are not prisoners of war (POWs) whose internment is regulated by the Third Geneva Convention, and they are denied the mandatory hearings before a “competent tribunal” to determine if they are combatants eligible for POW status.  Neither are the captives civilians interned in occupied territory whose treatment is governed by the Fourth Geneva Convention, nor are they “enemy aliens” subject to internment under traditional rules of international law and the Fourth Geneva Convention. [30]   The selection of internees is determined by a pure exercise of administrative discretion, without announced criteria or process, and without judicial oversight.

What is the relevance of the prohibition on arbitrary detention to these practices? A semantic move to “war” may create gaps in human rights protection that are not adequately filled by established protections of humanitarian law. Humanitarian law recognizes the permissibility of incapacitating combatants and civilians who pose a significant danger to a detaining power during active hostilities. At least where combatants are granted POW status, judicial supervision is not integral to such internment regimes. In contrast, derogation jurisprudence under human rights treaties stresses the indispensability of judicial supervision of the lawfulness of detention. Thus, the fate of those on Guantánamo may hinge upon whether the semantic move to a “war against terrorism” substitutes an internment regime for “unlawful combatants” (without the protections of either the Third or Fourth Geneva Conventions) for the prohibition on arbitrary detention in human rights law. Conceptualizing the campaign against global terrorism as an international armed conflict risks undermining the integrity of international humanitarian law. 

3.  The Permanent Emergency

The “war against terrorism” is the quintessential “normless and exceptionless exception.” No territory is contested; no peace talks are conceivable; progress is measured by the absence of attacks, and success in applying control measures (arrests, intercepted communications, interrogations, and asset seizures). The war will end when the coalition decides, on the basis of unknown criteria.

Derogation norms apply in all emergencies threatening the life of the nation, regardless of the source of the threat, both in war and peacetime.  However, the derogation jurisprudence of the UN and regional human rights bodies was primarily developed in the context of internal armed conflict and repression, and has rarely addressed the peculiarities of international armed conflict. The current crisis may require the human rights treaty bodies to re-examine their generally deferential approach to states’ claims of emergency, to consider the length of emergencies, to determine the circumstances under which terrorist suspects may be tried by military courts or interned as “enemy combatants” without judicial supervision, to refine the element of proportionality (“strictly required by the exigencies of the situation”) with respect to deprivations of liberty in the context of potential risks of plots involving  weapons of mass destruction, to assess whether certain interrogation techniques or prolonged incommunicado detention for purposes of interrogation contravene non-derogable rights, and to determine whether the limitation of antiterrorist derogation measures to non-citizens violates nondiscrimination norms.       

4.  Territorial Scope of Human Rights Protection

Human rights are universal.  But how effective is the international human rights regime in constraining extraterritorial state conduct?  How relevant is it in prescribing the behavior of non-state entities that do not exercise or aspire to territorial control?

The territorial scope of human rights treaties is not clear from the texts. Extraterritorial conduct of a military or law enforcement nature against suspected terrorists, with or without the consent of the territorial state, may give rise to claims that human rights treaties or customary norms have been violated. Cooperation among Latin American dictatorships during the “dirty wars” resulted in cross-boundary kidnapping, torture, and disappearance of suspected leftists. The Human Rights Committee has held in López Burgos v. Uruguay: [31]

 [I]t would be unconscionable so to interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.

The Inter-American Commission on Human Rights has indicated in state reports and in individual communications that coming within a state’s “jurisdiction” are “individuals interdicted on the high seas, shot down in international airspace, injured in invasions by the respondent state, or attacked by agents of the respondent state in another country.” [32]

The Turkish invasion and occupation of Northern Cyprus similarly resulted in judgments by the European Court of Human Rights that the conduct of the Turkish military could be challenged as a violation of the European Convention. [33]   Insufficient jurisprudence yet exists among the human rights bodies to set the boundaries for when extraterritorial conduct by military and law enforcement agents implicates the jurisdiction of the state party, and when human rights obligations do not attach or apply only in a diluted form.  The clearest case, however, would appear to be the Guantánamo situation, in which a state creates offshore detention facilities to which it forcibly transports persons seized in various countries, detains them indefinitely without charge or access to counsel, and exercises complete dominion over their treatment and fate. 

Additional issues implicating the territorial scope of human rights obligations raised by the tactics of the “war against terrorism” include state complicity for human rights violations resulting from the forced return of individuals to states in which they will suffer deprivations of fundamental rights. Finally, the due diligence standard for human rights complicity in the acts of non-state actors requires more careful delineation in relation to the acts of international terrorist groups operating on national territory.

5.  Nondiscrimination and Guilt by Association

The nondiscrimination norm is central to human rights, but its applicability to noncitizens has never been adequately clarified in international human rights law. [34] Many enforcement measures adopted in the aftermath of the September 11 attacks have targeted noncitizens, despite the fact that nationality is a poor predictor of involvement in terrorist groups. [35]  Ethnicity and religion, conjoined with alienage, have exposed particular groups of noncitizens to differential application of harsh enforcement measures, some involving unusual secrecy. [36]  Nevertheless, the September 11 hijackers fit a certain nationality, ethnic, and religious profile, and law enforcement officials can hardly be expected to ignore that reality. Terrorism is not a problem of migration, and deportation is a remarkably shortsighted response to international terrorism [37] but it is evident that Al Qaeda and other transnational terrorist networks exploit the tools of a globalizing world (international travel, e-mail, wire transfers) to plot mass destruction. Migration control and other enforcement targeted at noncitizens will undoubtedly remain an integral aspect of the “war against terrorism.” I will sketch here a human rights framework for counterterrorist strategies that incorporate nationality, ethnicity, or religious distinctions, or that rely heavily on migration control elements. [38]

Human rights law does not forbid all distinctions between nationals and noncitizens. [39]   In general, differential treatment is permissible where the distinction is made pursuant to a legitimate aim, the distinction has an objective justification, and reasonable proportionality exists between the means employed and the aim sought to be realized.   The derogation norms are constructed on the traditional understanding of international armed conflict, in which “enemy aliens” may be subjected to special control measures.  The liberal democracies had interned enemy aliens during World War II and did not intend to outlaw the practice in human rights treaties, if the detentions satisfied the criteria of legality, proportionality, and consistency with other international obligations (most relevantly, humanitarian norms on civilian internment in the Fourth Geneva Convention). [40]   Nationality is deliberately not included in the list of status grounds in the nondiscrimination provisions of the derogation clauses. 

But how does this derogation framework operate in the “war against terrorism”? Al Qaeda has no citizens; indeed, it is strikingly multinational both in membership and in operations.  Some distinctions should be drawn between law enforcement measures (criminal prosecution or administrative detention) and migration control measures (deportation and denial of admission).  Selective denial of fair trial rights to noncitizens violates the derogation clauses, both because certain fair trial rights are functionally non-derogable and because the strict proportionality requirement cannot be satisfied.  Derogation norms require judicial supervision of all detentions, and limiting administrative detention to noncitizens is vulnerable to challenge on grounds of non-derogability, proportionality, and discrimination.

The picture with respect to migration control measures is less clear.  Distinctions in this legal context between citizens and noncitizens are inherent.  Distinctions among persons of different nationalities are also common.  One troubling set of counterterrorist policies is the selective arrest, deportation, and prosecution of persons fitting a certain ethnic or religious profile, on grounds unrelated to terrorism.  In the United States, immigration policy since September 11 has strikingly been characterized by the discriminatory application of broadly defined “inherent” authority to detain, deport, exclude and prosecute, rather than the application of specific antiterrorism measures that have been crafted to balance security and fairness. [41]  

6.  Asylum

Refugee protection is profoundly affected by the trend toward “securitizing international migration.” [42]   The “war against terrorism” threatens refugee protection in three distinct ways: (1) the exclusion clauses of Article 1F of the 1951 Refugee Convention may be given an overbroad interpretation; (2) non-refoulement claims by persons suspected of terrorist involvement may be rejected without fair process; and (3) cessation of refugee protection may be precipitously imposed on the basis of shallow victories, such as the tenuous transition in Afghanistan. 

Security Council Resolution 1373 stresses the necessity to prevent terrorists from receiving asylum.  The 1951 Refugee Convention was never intended to provide safe haven to persons who had committed crimes against humanity, serious non-political crimes, nor acts contrary to the purposes or principles of the United Nations; its Article 1F codifies these three exclusion categories. Terrorist acts, under certain circumstances, might fit any of these categories.[43] However, overbroad interpretations or truncated status determination processes create a serious risk that persons might be excluded without reliable proof of their personal involvement in genuinely exclusionary conduct.[44] The Human Rights Committee and the Committee Against Torture have repeatedly warned states parties that measures they adopt to comply with Resolution 1373 must be consistent with their obligations under the ICCPR and CAT, specifically in relation to refoulement to torture, summary execution, or other grave human rights violations.[45] 

C.  INSTITUTIONAL IMPACTS

Human rights crises have sometimes wrought significant institutional changes in the international human rights regime.  For example, grave violations associated with the states of siege in Chile and Argentina prompted the establishment of country and thematic working groups and rapporteurs, transforming the UN Charter-based bodies to active monitors as well as standard setters.

The “war against terrorism” has not yielded such demonstrable institutional impacts. The changes are largely atmospheric rather than concrete. Six developments deserve brief mention:

1. Difficulties in integrating human rights concerns into UN counter-terrorism initiatives

The Security Council’s Counter-Terrorism Committee represents a post-September 11 institutional innovation but with troubling human rights implications.  Security Council Resolutions 1267 and 1373 obligate all UN member states to freeze assets of individuals and organizations listed by any other member state on the basis of alleged ties to terrorist groups. As it became clear that persons and organizations were suffering severe consequences from listing, without notice, hearing, or appeal, the Counter-Terrorism Committee adopted a de-listing policy in August 2002.  This policy follows a diplomatic protection model – the state of origin must be induced to petition the listing state for de-listing, with the Security Council as final arbiter. While some states have championed their citizens the process remains deeply flawed.  The inaccessibility and opaqueness of the listing and de-listing processes open troubling avenues for governments to repress dissidents, and to compel other UN member states to follow suit. 

2. Fissures over international criminal tribunals 

Liberal internationalists hoped that shared revulsion after September 11 would open an important space for principled multilateralism, offering a chance to prove the unique value of international criminal tribunals to try “crimes against humanity.” [46]   No such possibility emerged.  The Statute of the International Criminal Court entered into force in July 2002, only to trigger aggressive U.S. efforts to exempt U.S. politicians and soldiers from the ICC’s jurisdiction.

3. Aggravated U.S. exceptionalism

Another negative trend associated with the “war against terrorism” is the aggravation of U.S. tendencies toward corrosive unilateralism and exceptionalism.  The attacks of September 11 appeared at first to have convinced the Bush administration of the need for international solidarity against the terrorist threat.  But military success in Afghanistan caused a reversion to more deeply held values  – realist dismissal of international law, unilateralism, and American exceptionalism to human rights constraints. 

4. European efforts to adopt common policies with entrenched human rights values

U.S. excesses open space for European leadership, and differing views on human rights have created strains in transatlantic relationships. The Council of Europe Committee of Ministers in July 2002 disseminated guidelines for states to preserve human rights values while fighting terrorism. [47]  European states act in awareness that the European Court of Human Rights will ultimately decide whether counter-terrorism measures comply with the ECHR. 

5. Unholy alliances between the antiterrorist coalition and repressive states

Hypocrisy and unholy alliances to shield violators from deserved criticism are nothing new in the UN political human rights bodies.  September 11 has resulted in a significant deterioration in these tendencies that may have a lasting effect on the human rights regime.  The thematic mechanisms of the UN Commission on Human Rights clearly feel beleaguered, and violator governments appear emboldened.  Liberal democracies sacrifice their leverage over repressive governments by adopting policies antithetical to the rule of law and by crassly agreeing to tone down or silence criticism in exchange for cooperation in counterterrorist strategies.

The UN Commission on Human Rights has come increasingly under the sway of repressive governments, including some with sorry records of complicity in international terrorism. [48]   In this poisoned atmosphere, it is difficult to imagine the successful and balanced negotiation of paradigm-shifting human rights norms directly governing the conduct of transnational terrorist networks.  Moreover, it appears unlikely that the human rights bodies will fundamentally reorient themselves away from a state-centered approach to prescribing obligations and monitoring compliance.

6. Tests of the relevance and capacities of human rights treaty bodies

In the past year, the human rights treaty bodies have not exerted a strong influence on state behavior, and the “war against terrorism” instructively illuminates constraints on their resources and mandates.  The Human Rights Committee and other bodies have urged states whose reports have come under review in the past year to conform their counterterrorist policies to their human rights obligations, but the submission of reports and scheduling of reviews are unrelated to the severity of human rights crises.  No effective procedural mechanisms have been established to deal systematically with derogations.  The IACHR faces the risk that even its most sophisticated evaluation of the Guantánamo detention policy will simply be ignored by the United States. [49]   The United States has failed to file a derogation notice under the ICCPR, and in the absence of a highly unlikely interstate complaint against the United States under Article 41, a forum to contest Guantánamo as a “rights-free zone” appears unavailable under the ICCPR.

The different result in the United Kingdom under the ECHR illustrates the vital necessity to incorporate human rights standards into domestic law. The remoteness and slowness of the human rights treaty bodies, and the uncertain import of their decisions, underline the importance of cultivating a sense of responsibility in domestic courts to enforce international human rights obligations directly. 

D.  CONCLUSION

The human rights regime’s legalist approach provides limited leverage against either transnational terrorist networks or states seeking to eradicate them in the “war against terrorism.” Yet, the human rights regime cannot desist from reiterating fundamental principles and the pivotal importance of the rule of law. The semantic move to an armed conflict paradigm and away from an international crime control approach has undermined the effectiveness and clarity of human rights constraints on counterterrorist strategies, at least for the time being.

Further Reading:

Human Rights after September 11, International Council on Human Rights Policy, Switzerland, 2002. Available at <http://heiwww.unige.ch/~clapham/HRClass2002/NGO-Docs/ICHRP.pdf> (last visited June 10, 2003).



[27] Harold Koh used this phrase to describe the U.S. Naval base at Guantánamo Bay, when Haitian and Cuban asylum-seekers were held there and denied access to U.S. courts to assert their rights under international refugee law and U.S. law.  Koh, ‘America’s Offshore Refugee Camps’, 29 Richmond L. Rev. (1994) 139, 140-41.

[28] In the U.S. context, for example, the Government argues that the individual rights of selected terrorist suspects under the U.S. Constitution have been displaced by ‘laws and customs of war’ that bear little resemblance to contemporary humanitarian law.  See infra at notes 35, 44, 51-52.   

[29] Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57833 (Nov. 13, 2001).

[30] Interned civilians are also entitled to hearings to determine the necessity for restrictions on their liberty.  Fourth Geneva Convention, Art. 43.

[31] López Burgos v. Uruguay, Comm. No. 52/1979, 36 UN GAOR Supp. No. 40, at 182 para. 12.3, UN Doc. A/36/40 (1981).   See also Montero v. Uruguay, No. 106/1981, 38 UN GAOR Supp. No. 40, at 93 (1983) (confiscation of passport by Uruguayan consulate in Germany).

[32] Beth Lyons and Soren Rottman, The Inter-American Mechanisms, in Human Rights Protection for Refugees, Asylum-Seekers, and Internally Displaced Persons: A Guide to International Mechanisms and Procedures (Joan Fitzpatrick ed. 2002) 439, 453 (footnotes omitted).

[33] Cyprus v. Turkey, 4 E.H.R.R. 282 (“the authorized agents of the state, including diplomatic or consular agents and armed forces, not only remain under its jurisdiction when abroad but bring any other person or property within that jurisdiction… to the extent that they exercise authority over such persons or property.  Insofar as, by their acts or omissions, they affect such persons or property, the responsibility of the state is engaged”); Loizidou v. Turkey, judgment of 23 March 1995 (preliminary objections), Series A no. 310; Loizidou v. Turkey, judgment of 18 December 1996 (merits), 1996-VI Eur. Ct. H.R. 2216; Cyprus v. Turkey, Judgment of 10 May 2001, at <http://www.echr.coe.int/Eng/Judgments.htm>,

[34] See, generally, Richard Lillich, The Human Rights of Aliens in Contemporary International Law (1984); Carmen Tiburcio, The Human Rights of Aliens under International and Comparative Law (2001); Sub-Commission on Prevention of Discrimination and Protection of Minorities, International Provisions Protecting the Human Rights of Non-Citizens, Study prepared by the Baroness Elles, UN Doc. E/CN.4/Sub.2/392/Rev.1 (1980); Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live, GA Res. 40/144 of 13 December 1985; Sub-Commission on the Promotion and Protection of Human Rights, The rights of non-citizens, Working paper submitted by Mr. David Weissbrodt in accordance with Sub-Commission decision 198/103, UN Doc. E/CN.4/Sub.2/1999/7 (1999) and Progress report of the Special Rapporteur, Mr. David Weissbrodt, UN Doc. E/CN.4/Sub.2/2002/25 (2002); Commission on Human Rights, Migrant Workers, Report of the Special Rapporteur, Ms. Gabriela Rodríguez Pizarro, UN Doc. E/CN.4/2001/83 (2001).

[35] U.S. citizens John Walker Lindh, Jose Padilla, Yaser Hamdi, James Ujaama, and a group of men of Yemeni descent arrested near Buffalo have come under suspicion as Al Qaeda operatives.  Citizens of allied states such as the United Kingdom, France, and Australia are either being tried for Al Qaeda-related crimes or detained without charge by the United States.  The roughly 600 captives at Guantánamo possess the nationalities of 43 states.  SIAC invalidated the detention of eleven noncitizens under the UK Anti-terrorism, Crime and Security Act 2001 on the ground that noncitizens do not present a danger distinct from that posed by UK citizens involved in terrorism.  . . .

[36] Post-September 11 U.S. immigration policies are described in David Cole, Enemy Aliens, 54 Stan. L.Rev. 953 (2002); Margaret Stock, United States Immigration Law in a World of Terror, 7 Bender’s Immig. Bull. 559 (2002); and Human Rights Watch, Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees (August 2002).  Space does not permit all of the extraordinary immigration measures, law enforcement measures, and military policies targeted at noncitizens in the aftermath of September 11 to be summarized here.

[37] Osama Bin Laden took up residence in Afghanistan in 1996 upon his expulsion from Sudan, under U.S. pressure; Saudi Arabia declined his rendition, preferring to expatriate him rather than to try him.

[38] This framework is summarized from Joan Fitzpatrick, The Human Rights of Migrants, in International Legal Norms and Migration (T. Alexander Aleinikoff, ed., forthcoming).

[39] Three rather opaque provisions in major human rights treaties appear to authorize such distinctions: (1) Art. 1(2) of the International Convention on the Elimination of Racial Discrimination, which disclaims application to “distinctions, exclusions, restrictions or preferences … between citizens and non-citizens”; Art. 16 of the ECHR, which permits restrictions on the political activity of noncitizens; and Art. 2(3) of the International Covenant on Economic, Social and Cultural Rights, which permits developing states to limit the economic rights of noncitizens.  These provisions have generally been given a narrow interpretation by treaty bodies.

[40] See A.W.B. Simpson, In the Highest Degree Odious: Detention Without Trial in Wartime Britain (1992); John Christgau, “Enemies”: World War II Alien Internment (1985).

[41] For example, the Attorney General has never exercised his authority to “certify” noncitizens suspected of terrorism under the USA PATRIOT Act, a power that is subject to habeas corpus review.  Pub.L. No. 107-56, 115 Stat. 272 (2001), §412(a)(3) (amending 8 U.S.C. §1226A(a)(2001)).  Secret deportation hearings were ordered by administrative fiat for hundreds of noncitizens facing non-terrorist charges, a practice declared unconstitutional by a federal appeals court.  Detroit Free Press et al. v. Ashcroft, 2002 FED App. 0291P, 2002 U.S. App. LEXIS 17646 (6th Cir. 2002).  

[42] Thomas Faist, ‘Extension du domaine de la lutte’: International Migration and Security before and after September 11, 2001, 36 IMR 7 (2002).

[43] Art. 1F should be restrictively interpreted because of the grave consequences – excluded persons may be refouled to situations where they face persecution.

[44] See Geoff Gilbert, Current Issues in the Application of the Exclusion Clauses (paper prepared for UNHCR Global Consultations on International Protection, May 2001); Exclusion from Protection, 12 Int’l J. Refugee L. Special Supplementary Issue (2000).

[45] See, e.g., Human Rights Committee, Concluding observations on New Zealand, UN Doc. CCPR/O/75/NZL (2002); Yemen, UN Doc. CCPR/CO/75/YEM (2002); Sweden, UN Doc. CCPR/CO/74/SWE (2002); Committee Against Torture, Conclusions and recommendations on Sweden, UN Doc. CAT/C/CR/28/6 (2002).

[46] See, e.g., Mark Drumbl, Judging the September 11 Terrorist Attack, 24 Hum. Rts. Q. 323 (2002)..

[47] Guidelines of the Committee of Ministers of the Council of Europe on human rights and the fight against terrorism (15 July 2002), http://press.coe.int/cp/2002/369a(2002).htm.

[48] Id.

[49] On the other hand, the IACHR has taken advantage of its distinct flexibility to undertake a serious study of human rights and terrorism, not yet publicly released.



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