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Human Rights and Human Responsibilities in the Age of Terrorism
by Malcolm Fraser
Address at Symposium on "Human Rights and Human Responsibilities
in the Age of Terrorism" 1-2 April 2005, Santa Clara University
When the IAC was formed in 1983, we became concerned about the possibility of a Clash of Civilisations, which Samuel Huntington had written about so eloquently.
We did not believe that conflict was inevitable but we did believe that positive steps should be taken to make sure there was greater understanding between different countries, regions and in particular between different faiths.
Therefore we convened a meeting which was held in the Vatican in 1987.1 The world's major religions were represented at a high level. Our purpose was to decide whether an ethical statement could be drafted acceptable to all religions to all faiths.
We came away from that meeting encouraged. The core values of the world's major religions have great similarity. There is a common view about what is needed for a peaceful, cohesive and constructive society, where discrimination and prejudice can be pushed aside.
As a consequence of that judgement and with the advice of ethical philosophers like Professor Hans Kung, we set about drafting a Statement of Human Responsibilities. It was our view that if major states could be persuaded to accept such a statement, that it would become a companion declaration to the Universal Declaration of Human Rights and that an acceptance of universal "responsibilities" would enhance the acceptance of human rights around the world.
Human Rights are broadly understood, and, in theory at least, accepted. On one level, "human rights" are the inalienable possession of each individual. On another level, they are the "rights" the government must accord to their citizens.
The most basic of "rights" go back to Magna Carta itself, to Habeas Corpus, to the Rule of Law, to Due Process under the Law, to equal access to the Law, the right to liberty and security, to freedom of thought, conscience and religion, to freedom of opinion and expression without distinction of any kind as to race, gender, faith, language or political belief.2
Our Draft Declaration on Human Responsibilities outlaws inhumane behaviour;3 it makes it clear that no person, group or organisation stands above good or evil.4 Everyone endowed with reason and conscience, must accept responsibility.5 What you don't wish to be done to yourself, don't do to others.
There is a responsibility to respect life;6 to resolve disputes between states without violence;7 to protect each person unconditionally;8 to behave with integrity, honesty and fairness9 and to make serious efforts to overcome poverty, ignorance and inequality.10 No person is exempt from general ethical standards.11 There is a responsibility to speak truthfully,12 to show respect for all other people.13
If we look at the Universal Declaration of Human Rights it is clear that for a person to be able to exercise these "rights" somebody or some institution in a position of authority will need to act "responsibly".
"Rights" and "Responsibilities" are indeed complementary.
The draft Statement on Human Responsibilities was completed and published in September 1997.
Many countries in the East and in the developing world liked the ideas we espoused. But in the West there was considerable difficulty. The arguments largely rested on two grounds.
Some argued that it was hard enough to get nations to accept their obligations under the Universal Declaration of Human Rights and that a further declaration would confuse the issue. Others argued that some states would use a draft Statement on Responsibilities in a repressive or even a reactionary fashion.
Those who used this argument had in mind the perversion of responsibility common in Nazi Germany.
There was a third argument devised by Prime Minister Blair that the Universal Declaration of Human Rights really represented a statement about the way government should behave in protecting the rights of individuals, while the draft Statement on Responsibilities was much more a matter for individual action, and it would be quite wrong for governments to be prescriptive about what individuals should or should not do.14
I believe Prime Minister Blair's argument was mistaken. The Universal Declaration of Human Rights does contain some references to "duties" and "responsibilities". It does not ignore the concept of responsibility.
The Draft Declaration on Responsibilities not only refers to the responsibility of citizens, as general members of society. It refers in particular to the responsibility of people in positions of power and authority whether that power comes from wealth, from institutions, from corporations or from government.15
It is clear in the Draft that those in the position of greatest influence should, in the view of the Declaration, carry greatest "responsibility".
It had been our hope that the Draft Declaration would be introduced into the United Nations to be a companion piece to the Universal Declaration of Human Rights so that both "rights" and "responsibilities" would be defined.
More and more political leaders are coming to talk about the "responsibilities" of their citizens but they are doing so without context, without guidelines about what constitutes reasonable, desirable, even necessary "responsibility".
Just as there has been and continues to be a vigorous discussion about what constitutes "human rights", we need a discussion about what constitutes "human responsibility".
Without such a debate, the term "responsibility" is likely to be exploited for political and repressive purposes.
This is not an argument to avoid "responsibilities". It is an argument to debate, and to adopt a Declaration of Human Responsibilities.
Abuse of "responsibilities" will not be avoided by postponing debate or work on a Declaration.
This may not have been clear in our discussions during the 1990's.
The changes to the world since September 11, 2001 have introduced new, relevant arguments.
In 1948, when the Universal Declaration of Human Rights was adopted by the United Nations it was an article of hope, a light on the hill, an aspiration to work for. It is true that many of the drafters of that Declaration were Western. The world in particular needed such a document because civilisation as we knew it had nearly been destroyed.
The Declaration of Human Rights indicated to the world that nations great and small were determined to work for a better world.
The Universal Declaration of Human Rights was given substance by the 1951 Convention of the Status of Refugees, the Convention on Status of Women (1952, 1967, 1979), Conventions on Economic, Social and Cultural Rights, and on Civil and Political Rights (1966). There are then other Conventions on the Rights of the Child (1959, 1989).
These Conventions and their later protocols have had a common purpose: to give legal force to the principles of the Universal Declaration of Human Rights. They were an exposition of what governments owed to their citizens.
As a parallel, the Geneva Conventions of 1949 were negotiated protecting prisoners of war from unjust and inhumane treatment. In some places prisoners of war had been abused mercilessly.
These Conventions relate to people taken prisoner in armed conflict. It was not necessarily in armed conflict between states. This has implications for the assertions of "unlawful combatants" and of "failed states".
It was clear that the world had to react forcefully to the attacks on 9/11. Whether we have reacted effectively is still an open question.
A concern, even paranoia, has developed in many places about Islamic fundamentalism and indeed, in some quarters, about Islam itself. If we want to avoid Samuel Huntington's Clash of Civilisations, we will work to bring reason and common sense to the debate and switch off the paranoia. I will give two examples.
Since September 11, fears have been aroused not only in the United States but around the world. I had people writing to me from London saying they were greatly concerned at the idea that Saddam Hussein could drop chemical or biological weapons on the city of London within 45 minutes. No one had said Saddam Hussein could do that - but the British Government had left hanging in the air, the strong impression that he could deploy such weapons within 45 minutes.
Was it just a slip, an error not corrected, or part of a general attempt to prepare people for the most extreme actions as we combat terrorism? I know my friends in London believed that that concern of theirs went a long way towards justifying war against Iraq.
It is also clear that the qualifications placed by intelligence agencies on the possession of weapons of mass destruction were not really heeded by the Coalition of the Willing. Possession of such weapons was depicted as a certainty.
Whatever was said about weapons of mass destruction, the United States knew that Saddam Hussein had no missiles that could go any way towards harming cities in Europe, much less London. That was not in doubt. It was based on complete and continual observation of all missiles that take off anywhere in the world.
This demonstrates the need for wise and suitable leadership. We need governments who can speak of the reality so that there can be a considered and effective response. Leaders who frighten their people, who expand the truth, who unadvisedly support extreme action, will not be effective.
The second example is from Tony Blair talking about "The Opportunity Society"16 in September last year. On one page he said that terrorism "is a wholly new phenomenon" . Whose fundamental advocates..... "preach hatred of the West and our way of life."
Blair speaks of these people, of the terrorists saying "they are not provoked by our actions; but by our existence. They are in Iraq for the very reason we should be. They have chosen this battleground because they know success for us in Iraq is not success for America, or Britain, or even Iraq itself, but for the values and way of life that democracy represents. They know that. That's why they are there."
That to me is saying they are fighting because they hate us for what we are. But then a little further on in the same speech, Prime Minister Blair says: "After November 1, I will make its (Middle East Peace Process) revival a personal priority. Two States, Israel and Palestine, living side by side in an enduring peace would do more to defeat this terrorism than bullets alone can ever do."
His first statement is saying terrorists have no cause but hatred.
The second statement is saying they have a cause which is their perception of a fundamental injustice suffered by the Palestinians.
Both statements cannot be true. I believe his second statement is true. There are many causes of terrorism: In the Middle East, the perception of injustice to Palestinians; In Chechnya, the desire to break away from Russia; In Basque, there are specific objectives; For decades, Britain experienced terrorism practiced by the IRA; Those wanting separatism in the Philippines, over several decades, have another reason. While techniques and practices may be similar, the objectives of terrorists are varied.
None of this should be construed as justifying any element of terrorism or any sanctioning of violence against civilians. It is a plea for our governments to ask themselves, why do people become terrorists? Unless we understand that, our fight against terrorism will fail.
We should also advance these arguments with some semblance of humility. Nearly every religion in different stages of its history has been perverted by people whom today we'd call fundamentalists; we'd call terrorists.
The United States Defence Department conducted an investigation into Lt. General William G. "Jerry" Boykin, the Pentagon's senior military intelligence official. The Report found that he had been guilty of contravening regulations.
The New York Times in August last year, and the Washington Post at the same time both used this quotation "He said in one speech of a Somali warlord that "I knew that my god was bigger than his. I knew that my god was a real god and his was an idol".17 How could such a person accurately sign off on intelligence from the Pentagon to the White House?
Fundamentalism has not only been a disease of Islam, but at different times of nearly every religion.
The founder of the Liberal Party in Australia in the middle to late 40's used to emphasise the Rule of Law, Due Process under the law, Equal Access to the law. As a child I had been taught to take these things for granted. But now I know that these basic principles, on which democracy depends, cannot be taken for granted.
From the end of the Second World War to September 11, democratic powers moved falteringly and often inadequately to establish a world governed by law. The Conventions mentioned earlier were designed to give legal framework to the Universal Declaration of Human Rights. The International Criminal Court came into being in July 200218 perhaps the most substantive change to international structures since the foundation of the United Nations itself.
In these years, the ideal of a world governed by law was more than a dream. Many people, many Americans, worked for it.
We believe that people who do not preserve the Rule of Law deserve condemnation. Under the Rule of Law, there can be no discrimination. The law must apply to all people of all nations without discrimination, regardless of race, colour, ethnicity, religion or gender.
In today's world we've stepped back into a darker age. It is now common to argue that because of the nature of global terrorism, we must also alter the principles by which we have lived.
There are too many examples of governments legislating discriminately. In Britain against aliens who were thought to have some links to terrorism, but who were not charged and who were held in jail the Law Lords found such laws unconstitutional.19
After a great deal of debate and argument between the Commons and the Lords, this issue has now been resolved. The solution requires the closest possible supervision both by the Courts and the Parliament. Untrammelled use of Executive Power is no longer possible. While detention or restraint without trial is always repugnant, the conditions attached to such treatment by the latest British Legislation20 will go a long way to prevent abuse.
To go back to history, this is not a new question.
There is a passage from a cable Winston Churchill sent to Herbert Morrison, as Home Secretary at the time Sir Oswald Moseley, leader of the Nazi Party in Britain and his wife Lady Diana Moseley, were to be released from custody.
They had been imprisoned under Section 18B of the Security Legislation. The war was going a good deal better for the Allies; the Mosleys had become ill; and the Home Secretary was preparing to release them, but with restrictions.
Churchill's memorandum to Morrison asked the Home Secretary to emphasise that the release of the Mosleys was also a matter of high principle.
He suggested that the great privilege
But today, in the name of security, the most curious and frightening provisions are justified.
The United States sought to put people in Guantanamo Bay, beyond the law. The Supreme Court ruled that they had access to American Courts.22 That was a notable victory for the Rule of Law, which implied heavy criticism of an excess use of Executive Power.
Military Tribunals were established to try people from Guantanamo Bay. Two Federal Court Judges have found that those Tribunals are unlawful.23 Judge Green determined that despite a terrorist emergency "that necessity cannot negate the existence of the most basic fundamental "rights" to which the people of this country have fought and died for over 100 years".24
Judge Green argued that the Tribunals did not satisfy demands for fairness on two counts: They denied inmates the right to hear all the evidence against them, and they allowed the introduction of testimony obtained under torture.
The highest law authority in the United Kingdom, the Attorney General Lord Goldsmith has said that the military tribunals would not provide the kind of justice that the British Government would expect for all British citizens.25 The Australian Government has decided to support the United States Government.
The issue will ultimately be determined by the Supreme Court.
In America, to America's credit, there is debate about these issues. In my country, very little. In Australia, it may be easier to do things which are unreasonable contrary to Magna Carta, to Habeas Corpus and to Due Process because we do not have a Bill of Rights, unlike America, Canada, New Zealand, Britain and every European Union country. A Bill of Rights provides protection against excess and repressive use of Executive Power.
The "Australian Security Intelligence Organisation Legislation Amendment (Terrorism) of 2002" has been described as the most draconian bill any Australian Government has ever conceived. It is believed to surpass anything the former Australian Prime Minister, Sir Robert Menzies, tried to do when he sought a ban on the Communist Party as long ago as 1950.
The Legislation has been compared to Counter Terrorism Legislation in the United States, Canada and the UK and many believe it exceeds the measures adopted in any of these jurisdictions.
One person summed it up in this way: " .only Australia has sought to legislate to authorise the detention in secret of non-suspects".26
More specifically this legislation allows our government to detain a person whom authorities believe may help in counter-terrorism enquiries. The authorities do not have to believe the person is guilty of any offence. They only have to believe that the person may know something of relevance to anti-terrorism enquiries, even if the person does not know he or she knows it.
While in some cases provision can be made for the person to access a lawyer, there is a general provision which prevents a detained person contacting anyone at all.27 Section 34F stipulates : "A person who has been taken into custody, or detained, under this Division is not permitted to contact, and may be prevented from contacting, anyone at any time while in custody or detention.".
If the detained person fails to provide information requested, he or she is subject to prosecution and up to 5 years jail.28 The legislation goes on to say that if the person does not have any information, then it is not an offence; but the person has to prove he or she has no information.29
The same provision applies for the production of records.30 Failure to produce can put you in jail for five years; but if you don't have anything to produce, it is not an offence so long as you can prove another negative.31
If the authorities happen to be wrong at the outset and the person does not know anything, and does not have anything failing to answer or to produce proof, could result in a very heavy jail term unless they can prove a negative. How does one prove a negative?
It is for good reason that under British law and under our law, the onus of proof has been on the Crown and the presumption of innocence until proven guilty is accorded to all people, but no longer under this legislation.
As originally introduced, the legislation placed no restrictions on who could be detained or questioned. In other words, it applied to any child. The only restriction as to age was that a child under 10 years who was detained could not be strip searched.32
Now, the legislation applies to anyone over the age of 18. For young people between 16 and 18 years, the authorities need to believe that the person may commit or has committed a terrorism offence.33 But it is only a question of belief. There is no suggestion the authorities have to prove it to detain somebody between the ages of 16 and 18 under these provisions. So a person can disappear for the time prescribed.34
You might think we have a free press and that a disappearance will get reported and perhaps notoriety, but our Government has thought of that also.
The authorities have covered normal reporting of these events. Anyone disclosing somebody's detention under a warrant, commits an offence. Under the provisions of this legislation, the penalty for such disclosure is 5 years jail.35
One might think that the ban on publication would only apply for the period of the warrant allowing detention, but there is a second section that makes it an offence to disclose the fact that somebody has been detained under such a provision for two years from the end of the warrant. Again, imprisonment for 5 years.36
There are also provisions that apply to the person subject to detention and to that person's lawyer, if that person has been permitted access to a lawyer, making it an offence to disclose the fact of detention and questioning.37
How would one describe these powers? How is it that both major parties in Australia agreed with these provisions? The legislation is contrary to the Rule of Law. It is contrary to Due Process, to Habeas Corpus, to the basic rights which we have come to understand are central to a free and open society.
The provisions would well accord with old-fashioned Communist States with tyrannical dictatorships.
Such actions have been justified as necessary to fight terrorism.
The Australian Government is able to pass such laws significantly because we do not have a Bill of Rights. It is also worth noting that in America, Britain, Canada and New Zealand, governments are all restrained by a Bill of Rights; every European country is so restrained, and thus their citizens are, to a degree, protected.
Where proper Executive Power is transgressed as has been the case in the United States the Courts come into play. This is very much to the credit of the United States.
In the 70's and 80's, Germany and Italy were under extraordinary terrorist pressure from the Red Army Faction and the Red Brigades. Both countries beat the terrorists.
Despite that experience, the United Kingdom is the only European Union country which has found it necessary to suspend some aspects of the European Union's Bill of Rights.
We all need to take a long, hard look at ourselves to see what our Governments have executed in our name.
When we first saw the photographs of Abu Ghraib, many rushed to condemn torture. "This is just way out soldiers acting unlawfully". But The Torture Papers released by New York University's Centre on Law and Security, and published by Cambridge Press, tell a different story.
The Executive wanted to know how far interrogators could go without running foul of the Geneva Conventions, or of Human Rights Legislation in America or internationally.
Part of the purpose of a lawyer is to tell a client how to do what that client wants to do.
And so the torture trail began. The Executive wanted to know, "How do we justify the rigorous, intrusive questioning?".
Critics from the United States have offered their own condemnation of these events. I do not need to add mine.
In the New York Times, a long term National Security Advisor to the first President Bush, Donald Gregg, wrote that the memorandum "cleared the way for the horrors that had been revealed in Iraq, Afghanistan and Guantanamo that make a mockery of Administration assertions that a few misguided enlisted personnel perpetrated the vile abuse of prisoners. I can think of nothing that can more devastatingly undercut America's standing in the world or more importantly our view of ourselves than those decisions."38
Israel is one Western-style democracy that has acknowledged that the mistreatment of prisoners is indeed sanctioned. I am advised that in "1987, the State Commission established secret guidelines for interrogators using what was called "moderate physical and psychological pressure". In 1999, Israel's Supreme Court ruled against those guidelines."39 In their view, torture was illegal under any circumstances and constitutes "a greater evil than the evil it was intended to challenge."40 Unfortunately, Israeli authorities have shown inadequate respect for their own Supreme Court.
In the memoranda that were published,41 there is a clear desire to place detainees beyond the reach of any court or law; a desire to abrogate the Geneva Conventions, and a desire to make sure that those implementing or authorising the policies will not be liable for war crimes under US or International Law.
The profession of law has been shamed by many of the opinions offered. The Secretary of State Colin Powell was a lone voice arguing against such policies. He was joined as far as The Papers are concerned by William Howard Taft IV, the US State Department legal adviser.
One opinion said that "interrogators could go very far" and not face legal consequences. "Physical pain amounting to torture" Assistant Attorney General J.S. Bybee advised the Counsel to the President, Alberto Gonzalez "must be equivalent in intensity to the pain accompanying serious physical injury such as organ failure, impairment of bodily function or even death". He added "in the Justice Department's view, actions by interrogators may be cruel, inhuman or degrading but still not produce pain and suffering of the requisite intensity" to constitute torture.
On page 134 of The Torture Papers, there is a memorandum signed by President Bush42 saying that interrogation must be "humane". This seems incompatible with other documents. Was he the odd-man-out?
Anthony Lewis43 wrote "they are an extraordinary paper trail to mortal and political disaster; to an episode that will soil the image of the United States in all parts of the world for years to come." I happen to agree with that view, but it is also to the credit of the United States that these issues do not remain silent; that they are debated and revealed.
In The Torture Papers the Red Cross Report of February 2004 and The Taguba Report concerning the treatment of prisoners both make it clear that the mistreatment of prisoners has been commonplace. Both reports are written in careful language, but it is plain that the violations and the mistreatment has been pervasive and substantive.
Attorney General Gonzalez claimed in his Confirmation Hearings before the Senate that he was against torture but the memorandum to which his name was attached in The Torture Papers demonstrates that he was in favour of questioning techniques that most people would say comprises torture.
Powell and Taft come out of it with credit, but a long list come out of it with shame, which includes Assistant Attorney General Jay Bybee (now a 9th Circuit Court of Appeals Judge), then-Deputy Assistant Attorney General John Yoo, new-Attorney General Alberto Gonzalez, and Secretary of Defense Donald Rumsfeld.
Even more recently, the willingness to use torture has been underlined by the United States defence of "rendition" for terrorist suspects: Capture them, then take them to a country where they can be interrogated without supervision. Thus torture is well and truly on the agenda.
What purpose does "rendition" have, unless it is to enable the authorities to interrogate certain suspects with torture?
There are many experts, including from the FBI and the CIA, who claim that torture is a most inefficient way of gathering information. It is claimed that it is unreliable, often false and cannot be checked. That is a practical argument against its use. So in practical terms, it is almost certainly a highly inefficient way of gathering information.
There is one more disturbing aspect of these events. The speed with which many countries, especially English speaking countries, have been prepared to put aside basic liberal democratic principles the right of Habeas Corpus, to trial by jury, to no detention without charge and trial, to the end of Due Process is reminiscent of tyrants.
Are we really convinced that we cannot defend our free societies by adherence to our own principles?
Do we really believe that the enemy the tyrant has an advantage by being prepared to torture, imprison and jail without Due Process?
Was this an advantage for Hitler, for Stalin for Saddam Hussein?
Is it an advantage for the Stalinist dictator of Uzbekistan at the present time?
Or do we believe that the strongest argument on our side is a willingness to act in accordance with principle as the United States has done through most of its history, but not, I believe, through recent years?
If we embrace the methods and techniques of tyrants, we take a significant step to becoming too like them. This is the danger we face. This is the central dilemma our leaders have not resolved.
To defend freedom and democracy, can we live by the principles of freedom and democracy or do we need to embrace the mechanisms of the tyrant and the practices of the terrorists?
Since Magna Carta, since Habeas Corpus, there has been a long march to the liberty of individual citizens. There has been a longer march to establish basic rights, the Rule of Law, throughout the wider international community.
It is a disturbing phenomenon that since September 11 some people in positions of great authority have been prepared to throw those principles overboard. They have been prepared to accept that we cannot defend liberty by the principles of liberty. That our principles prevent us doing what they think must be done. It shows how fragile is our grasp of the real necessities of a democratic, liberal society.
The speed with which governments in the West have turned their backs on the Due Process and the Rule of Law, the speed with which they have embraced the methods and techniques of tyrants should greatly disturb us.
These events demonstrate that a debate about "responsibilities" is an urgent necessity for all countries, but in particular for Western democracies.
The provisions that relate to the fundamental principles of humanity, to respect for life, for justice and solidarity underlining the Rule of Law, to truthfulness and tolerance, to partnership well underline and reinforce the basic concept of the Universal Declaration of Human Rights.
It is worth nothing that in our Draft Declaration of Human Responsibilities, greatest "responsibility" is placed on those in positions of power and authority. Article 13 states that such people are not "exempt from general ethical standards".44
We would do better in the war against terror if we could demonstrate
to the world that we can fight that war, and maintain the sense of "rights"
8. A Universal Declaration of Human Responsibilities,
proposed by InterAction Council. 1 Sept 1997. Art. 7.
23. US District Court, District of Columbia Circuit, Judge James Robertson, Civil Action No 04-1519(JR) Hamden v. Rumsfeld, 7 November 2004. Judge Joyce Hens Green, US District Court, District of Columbia Circuit, Judge Joyce Green, Civil Actions 2002-0299 Guantanamo Detainee Cases, January 31 2005.