Daniel Moeckli. Human Rights and Non-discrimination in the 'War on Terror'

Abstract

Since 11 September 2001, countries across the world have adopted an enormous range of anti-terrorism laws with the potential to undermine even the most basic and long-established human rights. Fundamental principles such as habeas corpus and public trial before an independent and impartial tribunal have been thrown into question. Administrative detention without trial is no longer, in Justice John Paul Stevens's words, �the hallmark of the totalitarian state�, but already a reality in some democracies and under serious consideration in others. In this insightful study, Daniel Moeckli argues that the post-11 September anti-terrorist regime rests on several assumptions. The terrorist threat can no longer be traced to a clearly defined organization, such as the IRA or the Red Army Faction, but emanates instead from a grouping simultaneously ubiquitous and shadowy which is said to threaten not only one particular state but the entire value system of the Western world. As this ill-defined group allegedly has the potential to conduct attacks with devastating consequences, governments feel increasingly impelled to take preventive measures to head off any possible threat. Yet since the threat cannot be associated with any particular context, profiles of potential terrorists have to be constructed along the lines of the civilizational challenge to the Western world from religious fundamentalism in which the terrorist threat is allegedly rooted. Moeckli argues that �as a consequence, broad group characteristics that are believed to be indictors for an involvement in this challenge have become the central criteria for defining the targets of anti-terrorist measures�. However, the introduction of a legal regime which treats one group as inherently more likely to be terrorists than the population in general evidently raises the question whether such measures are compatible with the right to non-discrimination.