Chapter 5: The United States and International Human Rights Protection

INTRODUCTION

The attacks of September 11 and the U.S. response have had a dramatic impact on the promotion and implementation of international legal standards – spanning international humanitarian law (the laws of war) and the fundamental instruments of human rights and refugee law.[199] These standards are both long established and continually evolving.

This report has examined the ways in which U.S. leaders have responded to the attacks and the sense of ongoing danger by passing legislation or promulgating regulations that have often limited or set aside fundamental constitutional rights. In doing so, the United States has contravened international human rights treaties to which it has long been a party. This has created a climate in which other countries have felt emboldened to follow the U.S. lead, further undermining global respect for human rights and fundamental freedoms.

FOLLOWING THE U.S. LEAD: A NEW CONCEPT OF DEMOCRACY AND HUMAN RIGHTS?

INTRODUCTION

The curtailment of rights in the aftermath of September 11 has led to foreign governments mirroring the rhetoric and expanding on the substance of the United States’ domestic counter terrorism effort. A chorus of voices from governments around the world has already confirmed perceptions that the old commitments to human rights principles may have begun to fade away as a result of U.S. policies. Many of these governments have spoken out to applaud measures taken by the United States to combat terrorism at home, which they now see as an endorsement of their own practices. Others, in contrast, have decried the U.S. policy changes, declaring that they seriously undermine fundamental human rights principles and appear to give a green light to lowered standards around the world. In particular, traditional allies have spoken up for the importance of high standards—and expressed concern that a loss of moral authority by the United States will have an impact far beyond its borders.

European and Latin American governments in particular have expressed dismay that in compromising its own standards in the name of national security, the United States has severely undercut progress everywhere toward a rights-respecting global order. The U.S. commitment to the rule of law and to inalienable constitutional rights at home had, before September 11, been the mainstay of the nation’s moral standing. This commitment was respected abroad even among critics of the nation’s foreign and economic policies. Despite growing controversies on such issues as the environment and global warming, treaties to ban landmines, international safeguards against biological weapons, and the International Criminal Court, the United States has been greatly admired by other countries for its application of the constitutional principles on which the country was founded.[200] Despite the variable perceptions of its foreign policies, the global community by and large saw a commitment to the promotion of human rights and fundamental freedoms as an essential value of the United States—a powerful source of its moral authority.

CO-OPTING THE WAR ON TERRORISM

In the immediate aftermath of the September attacks, the international pledges of support for the United States took several forms with direct consequences for human rights. In too many cases, opportunistic governments expressed support for the fight against terrorism, while presenting their own domestic insurgencies as conflicts perpetrated by terrorist groups analogous to al Qaeda. Some claimed that their own domestic adversaries were linked to the September 11 attackers. These governments clearly expected reciprocal support for battles against domestic dissidents and insurgents as they proclaimed that they and the United States were embedded in a similar conflict, facing a common enemy. Other governments introduced new legislation in the year after the attacks that defined terrorism in broad terms, extended police powers, limited human rights guarantees, and imposed harsh new penalties.

The declarations of common cause came from some unexpected quarters. They came from Liberia, for example, where President Charles Taylor heads an abusive government now confronting an armed insurgency. Taylor told the Liberian legislature that the challenge to his own grip on power was simply an extension of the global threat: “September 11th ushered in a new threat to our national security. That threat is terrorism, and it is manifested in many forms, including political, social and military.”[201] Taylor went so far as to apply the term “unlawful combatant” to a journalist who had been critical of his policies. On June 24, 2002, Liberian security agents detained Hassan Bility, editor of the Monrovia newspaper Analyst, and two other “dissidents.” A civilian judge refused to challenge their incommunicado detention. The judge reportedly said that “since President Charles Taylor had declared the three ‘illegal combatants’ the matter was above him and his earlier order that the government produce the three in a civilian court could not be effected anymore.”[202]

In Zimbabwe, meanwhile, aides of President Robert Mugabe have equated members of lawful opposition parties with “terrorists.” These aides have also defended the jailing of journalists critical of the president as necessary to combat terrorism.[203]

Syria, too, has joined the chorus. Minister of Information Adnan Omran declared that Syria was “ahead [of the United States] in fighting terrorism” and that “[t]he kind of terrorism that we faced was the same kind and probably the same persons now fighting the United States.” In January 2002, Syrian President Bashar Asad invited the United States to “take advantage of Syria's successful experiences.”[204]

In Macedonia, where discrimination against ethnic Albanians had fueled a brief insurgency, Macedonian Prime Minister Ljubco Georgievski on September 18, 2001 “said that he hopes that the attacks on the U.S. will lead NATO to change its policy towards ‘terrorism’ in Macedonia.” This prompted a rebuke from James Pardew, the U.S. Special Envoy in Macedonia, for seeking political gain from the tragedy.[205]

China has linked the broader war against terrorism to its own campaign against separatist Muslim groups in the province of Xinjiang, a vast region with a mostly Muslim population. In the past, the United States has criticized China for human rights abuses against Muslims in Xinjiang.[206] Now, China is eager to draw a parallel between its crackdown on separatist groups in Xianjiang and the U.S. battle against al Qaeda. In a recent visit to Washington, D.C., for example, Chinese Vice Foreign Minister Li Zhaoxing remarked, “China too is a victim of terrorism and greatly understands and sympathizes with the disaster that Americans have suffered.”[207] Although the Bush administration was initially reluctant to link the Xinjiang issue to its war on terrorism, in August 2002, the State Department listed as a terrorist organization an obscure group of Xinjiang rebels that China claims has ties to al Qaeda.[208]

Russian President Vladimir Putin, meanwhile, has claimed that Russia’s war against rebels in the Chechen republic is also part of the global war against terrorism. Observers in Moscow have said that the new rhetoric is expressly intended to diffuse U.S. criticism of atrocities committed by Russian forces in the war: “They have depicted the Chechen people as bloodthirsty terrorists who would impose Islamic law on other Caucasian republics. Today even educated Muscovites commonly say there is nothing wrong with killing Chechen noncombatants, even babies.”[209]

In a press conference following an October summit meeting with the Russian president, President Bush said that he had emphasized to Putin “that the war on terror is not, and cannot be, a war on minorities,” and that “[i]t's important to distinguish between those who pursue legitimate political aspirations and terrorists.”[210] Indeed, although muted, U.S. criticism of human rights abuses in the war in Chechnya has not stopped in the wake of September 11. In their responses to the State Department’s annual human rights report in early 2002, however, Russian officials appeared bemused that the United States was still criticizing Russia for its actions in Chechnya. One Russian Foreign Ministry official observed:

One gets the impression that its writers simply used old drafts, as if nothing had happened in either Russia or the United States in recent years, as if the events of September 11, 2001 had not occurred and the international community had not closed ranks in the battle against terrorism.[211]

A subtext of the global response was that many of the governments speaking out were engaged in brutal measures against mostly internal opposition groups and were convinced that the new order would relieve them of international pressure on human rights. The United States’ criticism of human rights abuses was expected to fade away as it confronted the challenges at home.

In some cases, the message was explicit. Egypt’s Prime Minister Atef Abeid responded to criticism of his country’s resort to torture and military trials by rejecting past criticism of Egypt’s rights record and linking this to the United States’ own challenges:

The U.S. and U.K., including human rights groups, have, in the past, been calling on us to give these terrorists their “human rights.” You can give them all the human rights they deserve until they kill you. After these horrible crimes committed in New York and Virginia, maybe Western countries should begin to think of Egypt's own fight and terror as their new model.[212]

On December 16, 2001, Egypt’s President Hosni Mubarak further developed this theme, claiming that the events of September 11 had altered the very meaning of concepts such as democracy and human rights. He declared, “There is no doubt that the events of September 11 created a new concept of democracy that differs from the concept that Western states defended before these events, especially in regard to the freedom of the individual.”[213] He claimed that the new U.S. policies “prove that we were right from the beginning in using all means, including military tribunals” to combat terrorism.[214] The State Department’s previous annual human rights report had said Egypt’s military tribunals infringe on a defendant’s right to a fair trial before an independent judiciary.[215]

And indeed, in the first weeks after September 11, U.S. Secretary of State Colin Powell spoke of his appreciation for Egypt’s commitment to the fight against terror in a joint press conference with Egypt’s Foreign Minister Ahmed Maher. He said that the United States would, in fact, look to model Egypt in some ways: “Egypt, as all of us know, is really ahead of us on this issue. They have had to deal with acts of terrorism in recent years in the course of their history. And we have much to learn from them and there is much we can do together.”[216]

By mid-2002, the administration began to show that there were limits to its passivity in the face of gross abuses despite its “special relationships” with other countries. Thus, for example, in July 2002, the United States withheld $130 million in supplemental aid to Egypt to protest the prosecution of prominent human rights defender Saad Ibrahim.[217] A dual national of Egypt and the United States, Ibrahim had been convicted under laws restricting the work of independent human rights groups and was sentenced to seven years hard labor. Protests from both the Department of State and the White House ensued, culminating in the unprecedented warning that $130 million would be withheld in large part because of Ibrahim’s continued detention.[218]

Officials of the Indonesian government also stressed their country’s importance as an ally in global antiterrorism efforts, raising expectations that U.S. complaints about abuses by the Indonesian army would quietly lapse. Measures taken by the U.S. administration to lift restrictions on military aid to Indonesia – notwithstanding conditions placed on aid renewal by Congress – encouraged the perception that the rules had changed. So too did a Department of State opinion given to a U.S. court considering a case brought against the energy giant Exxon-Mobile under the U.S. Alien Tort Claims Act and the 1992 Torture Victim Act.[219] The suit, brought by eleven villagers from Indonesia’s oil-rich Aceh province, alleges torture and murder by members of the Indonesian security forces who were employed by Exxon Mobil. The Department of State warned the court that the lawsuit against Exxon Mobil “would impact adversely on the interests of the United States,” economically and in the “war on terrorism.”[220]

The consequences for Indonesia’s vulnerable human rights defenders and pro-democracy advocates have been serious. Columnist Thomas Friedman reported on a conversation with a prominent Indonesian writer who remarked:

We sometimes fear that America's democratization agenda also got blown up with the World Trade Center… Since September 11 there have been so many free riders on this American antiterrorism campaign, countries that want to use it to suppress their media and press freedom and turn back the clock.[221]

Friedman also interviewed Jusuf Wanandi, the head of a strategic studies center in Indonesia, who provided an alarming insight into the views of the Indonesian military. Wanandi told Friedman that he had just spoken to some senior Indonesian military leaders who asked, “Why doesn't the government give up all this human rights stuff and leave [the problem] to us?” They also said that “the Americans should normalize relations again [with the Indonesian army] and we'll do the job for them.”[222]

NEW “ANTI-TERRORISM” LEGISLATION

In many countries, new legislation has been introduced since September 11, with express references by national leaders to the new international climate of no-holds-barred antiterrorism. In Cuba, for example, President Fidel Castro presided over a December 2001 session of the Cuban legislature that passed a law extending capital punishment to crimes defined as terrorism – including the crime of using the Internet to incite political violence.[223]

In Belarus, the parliament approved the “Law of the Republic of Belarus on Fighting Terrorism” in December 2001, adding new restrictions on freedom of expression and offering virtual immunity to state agents for crimes committed in the defense of national security.[224] The law defines terrorism broadly as perpetrating actions “which create the danger of the loss of human life, bodily harm, cause widespread damage or the onset of other serious consequences with the aim of causing public panic or exerting influence on decision-making by government bodies or hindering political or other public activity, and also threatening to carry out such activity with the same aims.”[225]

In India, harsh government measures against separatist movements and insurgencies have long presented a grim backdrop to the world’s largest democracy. On October 24, 2001, the Indian president introduced a Prevention of Terrorism Ordinance (POTO) while parliament was out of session. POTO entered into force immediately, introducing emergency powers.[226] India’s Home Minister L.K. Advani explicitly tied POTO to the September attacks and a move by democracies the world over to enact more stringent laws.[227]

An act endorsing the ordinance as permanent legislation, transforming the ordinance to the Prevention of Terrorism Act (POTA), was passed in a special joint session of the Indian parliament on March 26, 2002. The new law provides draconian police powers to detain “terrorist suspects” for questioning for up to 30 days without being presented before a court, and 90 days without being charged with a crime. A special court can then extend detention without charge for a further 90 days. Acts of terrorism are defined as acts “with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people,” by explosives or weapons or “by any other means whatsoever,” in a manner that causes or is likely to cause harm to people or property or to disrupt government operations and services. The law also introduces broad new police powers and special rules of evidence.[228]

In December 2001, U.S. Congressman Frank Pallone, Jr. had expressed support for India’s anti-terrorism efforts, drawing a direct analogy between the USA PATRIOT Act and the Indian bill. Representative Pallone remarked, “Unusual circumstances in the U.S. called for these types of measures, and the same holds true for India. A true parallel can be drawn here for the two largest, most vibrant democracies in the world. Unfortunately, both of these countries are now combating terrorism.”[229]

Furthermore, the prestigious Indian newspaper The Hindu reported on March 29, 2002 that the United States had given its stamp of approval to POTA, citing a press statement released by State Department Spokesman Richard Boucher the day before.[230] Boucher had endorsed POTA as being in line with U.S. support for government efforts “to strengthen their legal systems…within constitutional bounds, so that we all have more effective tools to use against the threat of terrorism.”[231]

UNDERMINING SAFEGUARDS AGAINST PERSECUTION AND TORTURE

The global antiterrorism environment has also had repercussions on the protection of the non-citizen, particularly in relation to safeguarding the transfer of detainees under international human rights and refugee law. International law requires, for example, that refugees are not sent back to countries in which they face a justifiable fear of persecution. This fundamental principle is known as the principle of non-refoulement. Furthermore, provisions under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention), a treaty to which the United States and most states are party, absolutely bars governments from expelling, returning, or extraditing a person to a country in which “there are substantial grounds for believing that he would be in danger of being subjected to torture.” Many states also oppose extradition to countries in which the individual sought may face the death penalty.

Enforcement of these international standards may be under threat as a result of the United States’ own practice, particularly to the extent that it provides a model for other nations. The reported return of foreign nationals detained in the United States after September 11 to their home countries, after months of detention, should have required consideration of their well-being upon return, particularly to countries in which a consistent pattern of torture has been reported. Detention by the United States in the context of the post-September 11 investigations may, even when no links to violent groups emerged, have branded some as suspect in the eyes of their own governments, placing them in extreme danger of persecution upon deportation. The reported transfer of some of the Guantanamo detainees to second countries, including Pakistan and Egypt, after initial interrogations may have breached U.S. obligations under the Torture Convention.

Fair treatment of immigrants and asylum seekers has also been undermined in Europe. On December 18, 2002, Sweden surprised other European Union members by forcibly returning two Egyptian asylum seekers, Ahmad Hussein Mustafa Kamil Agiza and Muhammad Sulaiman Ibrahim al-Zari, to Egypt, despite concerns that they would face immediate arrest and ill-treatment.[232] Sweden recognized that both men had a well founded fear of persecution but excluded them from protection in procedures of questionable fairness—on the basis of secret evidence alleging their connections to armed Islamic opposition groups. Amnesty International protested that “more than three weeks after their forcible return their location is unknown and they have not had access to family or lawyers.”[233] Other Egyptian nationals were reportedly forcibly repatriated by Jordan, Canada, Bosnia, and Uruguay.[234]

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Endnotes

[199] These standards include international humanitarian law—in particular the Geneva Conventions of 1949. They also include the fundamental instruments of international human rights law, founded on the Universal Declaration of Human Rights (1948). The International Covenant on Civil and Political Rights (1966), for example, is an essential building block of treaty law to which most members of the United Nations, including the United States, have agreed to be bound. Other building blocks in this architecture of international standards include the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) and the International Convention on the Elimination of All Forms of Racial Discrimination (1966). International refugee law provides further fundamental human rights protections, especially in the Convention Relating to the Status of Refugees (1951) and its 1967 Protocol. There are also parallel treaties adopted by the regional intergovernmental organizations of the United Nations which provide further strong safeguards for human rights.
[200] On the cost of unilateralism for the counterterrorism campaign, see Glenn Kessler, “Diplomatic Gap Between U.S., Its Allies Widens,” New York Times, September 1, 2002.
[201] President Charles Ghankay Taylor, “Annual Message to the 51st Legislature of Liberia in the joint Chamber of the National Legislature at the Capitol Building in Monrovia,” January 28, 2002, available at http://www.allaboutliberia.com/document6.htm (accessed August 25, 2002).
[202] United Nations, Office for the Coordination of Humanitarian Affairs (OCHA) Integrated Regional Information Network (IRIN), “LIBERIA: Journalist, Two Others to Face Military Court,” July 8, 2002.
[203] Bill Orme, “U.N. Fears Abuses of Terror Mandate,” Los Angeles Times, January 2, 2002.
[204] Cited in Human Rights Watch, “Opportunism in the Face of Tragedy; Repression in the Name of Anti-Terrorism,” pp. 6-7, available at http://www.hrw.org/campaigns/september11/opportunismwatch.htm (accessed July 20, 2002).
[205] Ibid., p. 5.
[206] See Council on Foreign Relations, “Terrorism: Questions & Answers/China,” p. 2, available at http://www.terrorismanswers.com/coalition/china.html (accessed August 30, 2002).
[207] See Kari Haus, “Where China Fits in a ‘War on Terrorism,’” MSNBC, available at http://www.msnbc.com/news/697546.asp (accessed August 30, 2002).
[208] See Council on Foreign Relations, “Terrorism: Questions & Answers/China,” p. 2.
[209] Anna Nivat, “We Are the Lost Ones,” Washington Post, August 21, 2002.
[210] White House Press Release, “President Bush and Russian President Putin Discuss Progress,” October 21, 2001, available at http://www.whitehouse.gov/news/releases/2001/10/20011021-3.html (accessed July 22, 2002).
[211] Cited in Human Rights Watch, “Opportunism in the Face of Tragedy,” p. 6.
[212] Philip Smucker, “For Egypt, a Feeling of Vindication on Crackdowns,” Christian Science Monitor, September 18, 2001.
[213] Cited in Joe Stork, “The Human Rights Crisis in the Middle East in the Aftermath of September 11,” Cairo Institute for Human Rights Studies, p. 6, available at http://www.cihrs.org/conference/storkpaper_e.htm (accessed August 25, 2002). Joe Stork is the Advocacy Director of the Middle East and North Africa division of Human Rights Watch.
[214] Ibid.
[215] See U.S. Department of State, Bureau of Democracy, Human Rights and Labor, “2000 Country Reports on Human Rights Practices – Egypt,” February 23, 2001.
[216] U.S. Department of State, International Information Programs, “Transcript: Powell and Egyptian Foreign Minister Maher on Terrorism; U.S. and Egypt to Work Together in the Fight,” September 26, 2001, available at http://usinfo.state.gov/topical/pol/terror/01092610.htm (accessed August 25, 2002).
[217] See Human Rights First , “Administration Opposes Increased Aid to Egypt,” August 16, 2002, available at http://www.humanrightsfirst.org/defender/ibrahim/ibr_3.htm (accessed August 25, 2002).
[218] See Peter Slevin, “Bush, in Shift on Egypt, Links New Aid to Rights” Washington Post, August 15, 2002.
[219] See Human Rights First , “Workers Rights in Indonesia,” available at http://www.humanrightsfirst.org/workers_rights/wr_indonesia/wr_indonesia.htm (accessed August 25, 2002).
[220] Ibid.
[221] Thomas L. Friedman, “The War on What,” New York Times, May 8, 2002.
[222] Ibid.
[223] See William Orme, “U.N. Fears Abuses of Terror Mandate,” Los Angeles Times, January 2, 2002.
[224] See Article 19: The Global Campaign for Free Expression, “Law of the Republic of Belarus on the Fight Against Terrorism,” available at http://www.article19.by/laws/terroriste.html (accessed July 20, 2002).
[225] Ibid., p. 2.
[226] United Nations, Security Council, Counter-Terrorism Committee, “Report of the Government of India,” December 24, 2001, available at http://www.un.org/Docs/sc/committees/1373/ (accessed August 25, 2002). The report describes the legal basis for ordinances to be issued by the presidency and to be in force pending enactment by the legislature.
[227] See “Advani Defends Ordinance Against Terrorism,” IndiaExpress Bureau, November 1, 2001, available at http://www.indiaexpress.com/news/national/20011101-6.html (accessed August 31, 2002).
[228] The full text of the law is available on the website of the Institute for Conflict Management’s South Asia Terrorism Portal, available at http://www.satp.org/satporgtp/countries/india/document/actandordinances/POTA.htm (accessed August 25, 2002).
[229] Representative Frank Pallone, Jr., “Special Order Prevention of Terrorism Ordinance,” December 5, 2001, available at http://www.house.gov/apps/list/speech/nj06_pallone/st_Dec5Terrorism.html (accessed July 25, 2002).
[230] See Sridhar Krishnaswami, “U.S. Welcomes India’s Anti-Terrorism Law,” Hindu, March 29, 2002.
[231] Ibid.
[232] See Stork, “Human Rights Crisis in the Middle East,” p. 6.
[233] Amnesty International, Amnesty International Report 2002, available at http://web.amnesty.org/web/ar2002.nsf/eur/sweden!Open (accessed August 20, 2002); and Amnesty International, “Sweden: Deportations Leave Men at Risk of Torture in Egypt,” AI Index EUR 42/003/2001 - News Service Nr. 226, December 20, 2002.
[234] See Stork, “Human Rights Crisis in the Middle East,” p. 6; See also Jailan Halawi, “The Tip of an Iceberg,” Al-Ahram Weekly Online, February 7-13, 2002 (citing complaints of torture by one of the two men, both of whom were detained on charges of terrorism upon their return to Egypt).