Human Rights Strategies in an Age of Counter-Terrorism

Abstract

One of the key questions facing 'the human rights movement' today is how human rights can be effectively protected in an alleged 'age of terror'. Two main schools of thought have emerged on this issue. According to what is clearly the dominant position, human rights violations committed in the fight against terrorism are the consequence of an exceptional lack of legal regulation and should thus be addressed by insisting on the rule of law and turning to judicial mechanisms. This invocation of the rule of law and reliance on litigation has recently been increasingly subject to criticism from a number of authors who argue that the post-September 11 measures are not exceptional, extra-legal phenomena but in fact firmly rooted in the law. Therefore, this second, 'critical', school of thought warns against an endorsement of the rule of law and instead calls for a 'political response'. The arguments of these critical scholars made in the context of the 'war on terror', and especially Guantanamo Bay, reflect a wider skepticism in critical legal circles about the potential of the rule of law and legal procedures to prevent or rectify human rights abuses.This paper argues that the analysis of the critical school of thought is largely correct but that their suggested prescription of abandoning the rule of law should be rejected. Those concerned about human rights should neither pretend that Guantanamo Bay is some extraordinary lawless space nor should they forgo rule-of-law arguments when opposing the US government's practices there. They do not need to choose between law and politics. Instead, they should try to identify the most promising tools of challenging repressive counter-terrorism policies. Often these will be insistence on the rule of law - especially the requirement that laws must be generally applicable - and instigation of court proceedings.