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:
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):
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.’
 Bedrock principles have been displaced by legally
meaningless terms, leaving activists to wrestle with legal phantoms. 
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
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
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?
“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
For example, the Guantánamo captives
and the “enemy combatants” being held in
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.
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. 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. 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.
Human Rights after September
11, International Council on Human
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
 Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57833 (Nov. 13, 2001).
 Interned civilians are also entitled to hearings to determine the necessity for restrictions on their liberty. Fourth Geneva Convention, Art. 43.
López Burgos v.
 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).
 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>,
 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).
Osama Bin Laden took up residence in
 This framework is summarized from Joan Fitzpatrick, The Human Rights of Migrants, in International Legal Norms and Migration (T. Alexander Aleinikoff, ed., forthcoming).
 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.
See A.W.B. Simpson, In the Highest Degree Odious: Detention Without
Trial in Wartime
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
 Thomas Faist, ‘Extension du domaine de la lutte’: International Migration and Security before and after September 11, 2001, 36 IMR 7 (2002).
 Art. 1F should be restrictively interpreted because of the grave consequences – excluded persons may be refouled to situations where they face persecution.
 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).
 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).
 See, e.g., Mark Drumbl, Judging the September 11 Terrorist Attack, 24 Hum. Rts. Q. 323 (2002)..
 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.