I heard you like black sites

Hey Donald, I heard you were reconsidering CIA  black sites overseas. I have a few notes for you. It will take more than 140 characters or less to explain the obligations of human rights law under counter terrorism, but I am hoping against hope you will pay more attention to this than you do your own intelligence briefings. 

Let us first agree on what we colloquially refer to as a “CIA black site”: those are secret prisons, detention facilities operated by the Central Intelligence Agency in which detainees are held incommunicado (without access to a lawyer, without knowledge for the International Committee of the Red Cross), for indefinite amounts of time, without charge or trial, and subjected to ill-treatment and torture for the purpose of interrogation. Those “black sites” – a shameful collection of legal black holes, where truth, memory and sunlight never shine – were built overseas.

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The reason they were built overseas is because of legality. This is no secret our profession bypassed ethics (albeit successfully, to our greatest dismay and fatal sadness) in the name of a government-led and government-approved definition of security. The Convention Against Torture, adopted by the General Assembly in 1984, holds torture as an absolute prohibition. The reservations emitted by the US Congress during the ratification process in 1992 established a definition that made torture only possible overseas, outside US jurisdiction – physical custody or control of another party. And thus, Donald, if you want to lift the ban on the use of torture on terrorism detainees, you will need partner countries to assist you in reviving a horror that is very much present: 41 men are still held in Guantanamo Bay, after having transited through one of those sites. I am here to tell you that you will not get what you want, at least not from European member-states. See, we have obligations to uphold: we have a Court tasked with trying violations, and an entire supranational Committee which mission is to ensure the enforcement of this Court’s judgments.

In a hearing in that same Court in December 2013, UN Special Rapporteur on human rights while countering terrorism, Ben Emmerson QC, described the CIA Rendition, Detention and Interrogation (RDI) programme as a “vast conspiracy”. It is: the number countries that have assisted the United States illustrate a form of international deference to the war on terror and the damage it spurred, to the detriment of efficacy and human rights. The Parliamentary Assembly of Council of Europe (PACE) has conducted two investigations into states’ collusion with the CIA, one via the rapporteur Dick Marty in 2006, and another via the rapporteur Claudio Fava in 2007. Both yielded reports that represent a seminal work of independent parliamentary scrutiny. In early 2016, the European Parliament closed its investigation, reaching the same conclusion: not only were states aware that this was happening, they chose not to collaborate with investigations, and raised classification issues. All of this works in the Trump administration’s favour. A culture of secrecy largely cultivated under transnational security agreements; his Democratic predecessor’s distaste of judicial scrutiny and accountability; a conflict in Syria that never ends, creating millions of refugees and destabilising the entire region. A celebrity fascist was elected because Americans, on top of being angry, were afraid. Europeans, on top of being afraid, are also angry at what took place in Paris, Brussels, Ankara, and Berlin, to name a few.

Ireland, the United Kingdom, Romania, Poland, Lithuania, Italy, Macedonia did everything from facilitating the CIA jets’ refuel, to building black sites on their own territory. To this day, only Italy has carried out a domestic investigation into its own intelligence services’ collaboration with the CIA, resulting in the conviction of CIA agents in absentia. The case itself is fraught with procedural errors, deliberate smokescreens, and abusive use of state secrets. Poland has been found guilty by the Court, and now finds itself in the position to ensure Al-Nashiri’s trial and sentence. None of those states have disclosed the agreement – called a memorandum of understanding (MoU) – with the Court, presumably to preserve their special relationship to the CIA, invoking the absolute necessity to remain on the US’ good side while they seek to participate in the purported “eradication” of terrorism. All of this, again, works in the US’ favour. Except for this tiny, insignificant, fraction of a detail: the rule of law.

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Now, we know. It’s been a long, painful and traumatic road since the first rumours, investigations, and articles about secret Gulfstream IV jets flying unidentified “detainee combatants” from one secret prison to another first came light. The European Court of Human Rights has issued a judgment that clarifies that, even in the absence of disclosure of those MoUs, there had been enough substantiated and corroborated evidence published in the press and through legal and academic research to make a conclusive finding on a gross violation of human rights law. A report compiled by the Senate Special Committee on Intelligence (SSCI), still classified but with its executive summary released in December 2014, remains an formidable excercise of domestic parliamentary scrutiny. The SSCI report, dubbed the CIA torture report, reveals the location of several black sites, the budget the CIA required to carry out that programme, in addition to recordings of interrogation sessions, legal memos in preparation of the establishment of the policy, and photos obtained through the Freedom of Information Act. The question, at this point, is whether the truth is as objective as it should be, and if its existence can replace accountability.

For all the bragging and boasting about enjoying the infliction of long term and damaging suffering on other human beings, for all the speeches given at Langley on extending covert operations, you have not created anything. You are simply considering lifting a ban on a period of American history that has not seen any closure because of an admission the government had “tortured some folks”. The United States is still in violation of UNCAT for refusing to prosecute officials that have authorized the use of torture. For the lawyers, this has led to successful careers. For the military, “harsh interrogation” is still present in the books. The black sites, meanwhile, enjoy a second life: the building in Temara, Morocco, has been used, once the CIA had left the premises, by the domestic intelligence agency to torture dissidents. Wherever the CIA has visited and stayed, visible scars are identifiable. Wherever the CIA tortured in secret, the impunity is perpetuated. Lifting the ban Obama enforced in 2009 isn’t the hawkish, vicious, cynical, dangerous and violent regime the Electoral College wished into existence. It is a pathetic, weak, ignorant, and self-destructive vision of counter-terrorism.

Torture is not efficient. Torture does not provide reliable intelligence. Torture has never made a country safer. Torture has never facilitated the end to illegitimate political violence. The unlawful detention of hundreds of men, some of them sold to US forces by bounty hunters and acknowledged as having suffered on the basis of false information, testimonies or mistaken identity, has provided ammunition for insurgency, has encouraged the use of imagery for the dissemination of similarly atrocious behaviour, and has stripped the United States and participating countries of any legitimacy in denouncing, and acting against, other states engaging in such horrific operations. It has reawakened the trauma of those same interrogation methods used in Northern Ireland at the height of its own conflict, mentioned in the footnote of a legal memorandum discussing, at length, how much pain can be inflicted on a human being without crossing an admittedly arbitrary threshold. You are not making America great again, Donald. You are simply returning to a very recent place in time when large-scale, international security operations were launched to the detriment of the rights of the victims, circumventing international law and international institutions, in the name of an irrational appetite for vengeance.

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Whatever the domestic framework, if you attempt to hire John Yoo again, will be hindered by the current National Defense Authorization Act (NDAA), through an amendment introduced by Sen. Dianne Feinstein; it will be blocked by the Detainee Treatment Act (DTA), both texts acknowledging the veracity of reports of the CIA’s conduct, and furthering the importance of ECtHR rulings against offending states. But most importantly, torture is an absolute prohibition; a war crime; indefinite detention without charge, the refusal of access to a lawyer, the denial of access to the ICRC, the removal of detainees to a military base, are violations of both humanitarian law and human rights law; several protocols of the Military Commissions Act (2006) violating fair trial rules. Donald, this is simple: the only national security position you are entitled to take in regards to the RDI programme is instructing the Department of Justice to prosecute officials that have created the programme, the private contractors that have devised interrogation methods, the intelligence agents that have supervised it and carried it out, as well as cooperating in every possible way with every request emitted by the ECtHR in order for our organization to respect our own obligations. Anything else would be in violation of international law; and every step of the way, there will be lawyers, legal academics, researchers, and journalists ready to expose the mechanisms you will use, because we know them by now.

You will drown under the weight of lawsuits, and you are already at odds with the medical professionals that had once assisted the 43rd President of the United States. For every government lawyer that will attempt to argue our role, as international human rights lawyers, is illegitimate foreign interference, that we are a fifth column, there will be the survivors of Guantanamo Bay to testify of what they have been through, there will be the families of victims of terrorism that seek fair redress, and there will be judicial oversight of counter-terrorism operations reaffirming that efficiency is a human rights obligation resting upon states. Including the United States. Including you, as the depositary of executive authority.

The only way to rid your administration of those pesky international lawyers such as myself is to comply with international law. There is no way around it. To quote the wonderful Linda Sarsour, a Palestinian-American who marched against you in DC, “I will respect the presidency, but I will not respect this president”. On this note, I bid you good night, Donald, and there is no need to tweet at me at 2 in the morning. 

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Can we define terror, or should we let terrorism define us?

In May 2013, the renowned International Institute for Counter Terrorism, the ICT, held a global workshop of legal scholars, experts, analysts, in order to work toward an international definition of terrorism. Without exception, all panelists worked against the effort led by Dr. Boaz Ganor. In his closing remarks, he lamented the frustrating and sterile experience. “We will never reach the level of counter terrorism efficiency and cooperation that is needed (…) without agreeing on the basic issue. What are we fighting? What is the common denominator? (…)  The first issue is that it is a subjective term, and you can not use subjective tools to a subjective term.”

Dr. Ganor later outlines the fundamental issue: that any global cooperation in counter-terrorism is based around sanctions, blacklisting, arrests, detention, prosecution, extradition, and use of force around a concept no one has grasped, but perhaps most dangerously, has refused to grasp. Any international or transnational response to counter-terrorism is based on a loose definition, that is the lowest common denominator of all current legal translations of terrorism in domestic criminal systems. It is therefore unreliable and extensive to the point of creating crimes of terrorism where there are none, because of the Venn diagrams it forces upon an international or transnational arrest warrant, extradition treaty, or intelligence cooperation. Terrorism has become meaningless as a term, say political analysts, because if everything is terrorism, nothing is terrorism. It is a complete fallacy. It is not that everything is terrorism. It’s that everything is made to be terrorism.

In opposition to the exactitude that is required of criminal law, we have resorted to vague concepts denounced by human rights activists around the world. Terrorism creates and implements a system of criminal and state response that is beyond regular counter-criminal systems: it demands extensive human rights and civil rights derogations, sometimes suspensions; it automatically implements resolutions on wider and less restrictive intelligence and military intelligence sharing protocols; it extends and inflates the presence of law enforcement and special counter-terrorism units. The state response to terrorism being a constant state of emergency – called hyper-vigilance-, its use can only be restricted and restrictive. The trend, however, has been to extend it until everyone is under constant threat, at any given time. This is not threat assessment. This is threat permanence.

This essay is not aimed at defining terrorism; we are far from a consensus in what constitutes terrorism in our day and age, as the definitions are as fluctuant as the crimes themselves, and the battles around how a suspect is treated has just as much to do with pre-emptive action as it is immediate reactionary legislature. If terrorism is terror, it is so effective it has paralyzed any political movement in the face of its action; has the power to immediately shut down civil society debate; takes over the media by storm in a way that reinforces what it expresses, and silences what it in fact reflects. If each era had its own society-defining crime – from war to organised crime to arms trade – terrorism is the most modern criminal creation to date, and we have a part to play in its success.

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Terrorism: the diktat of political ideology

Terrorism and self-determination

Terrorism is commonly understood as being political violence. But not all political violence instils fear in society and state authority. The target of the terrorist attack is just as much a red herring in whether the attack can be called terrorism as much as those referring to it as such. The now-cliché saying of “every man’s terrorist is another man’s freedom fighter” is a sad idiom that has effectively been at the heart of many legal debates: is there a legal framework of considering political violence legitimate? It appears so: insurgency or rebellion against a colonial or tyrannical force, in order to promote the self-determination of peoples, is understood as legitimate violence. It targets an authority that can not be endorsed by principles of international human rights law and has been used to oppress. But because terrorism often targets civilians or civilian buildings, properties, or assets, it loses its legitimacy. Hardly has the history of the IRA in Northern Ireland been so embattled with the question of legitimacy as, perhaps, the case of Hamas in the occupied Palestinian territories. If violence is to be understood as a last resort by a desperate group unable to reach towards political or judicial organs to achieve their goals, insurgency it is, but not terrorism.

A 2004 UN document titled “A More Secure World: A Shared Responsibility” addresses, in part, the threat of terrorism. Without defining what terrorism is, it defines what its consequences are: end of the rule of law, attacks on civilians. It also mentions that counter-terrorism as applied between 2001 and 2004 was already in violation of human rights law, specifically its fundamental part, the right to life. The UN panel in charge of suggesting how to secure said world talked about addressing the causes of terrorism. And in that, arose the concept of political violence in self-determination: occupation. Para. 148:

A thread that runs through all such concerns is the imperative to develop a global strategy of fighting terrorism that addresses root causes and strengthens responsible Stats and the rule of law and fundamental human rights. What is required is a comprehensive strategy that incorporates but is broader than coercive measures. The United Nations, with the Secretary-General taking a leading role, should promote such a comprehensive strategy, which includes:

Dissuasion, working to reverse the causes or facilitators of terrorism, including through promoting social and political rights, the rule of law and democratic reform; working to end occupations and address major political grievances; combating organized crime; reducing poverty and unemployment; and stopping State collapse.

Much has been written about the historically convenient and politically fluid concept of a national security threat. Recent FOIAs filed by MIT researcher Ryan Shapiro on the FBI’s assessment of Nelson Mandela and the ANC‘s role in defeating the apartheid government of South Africa have reminded the collective consciousness that Mandela,this beloved figure whose funeral was attended by the leaders of the free world, was once deemed a terrorist by those very governments, the ANC being removed from the State Department’s terrorist organisation list only in 2008. That Mandela later became a head of state in his own right, reaching the high office after a democratically held election changed the US vision – to the point of the FBI suspecting Mandela would then, in turn, be a victim of terrorism. Would anyone today consider Mandela’s fight less than honourable? Would anyone condemn sternly the actions of the ANC before his rise to power as a people oppressed under state authority based on race? Because the very concept of self-determination implies and involves a rejection of the authority in place, to the point of removing it by force if necessary to install a form of governance that pleases the population, acts of terrorism are often perceived as political violence against the state apparatus itself, the civilian casualties being collateral to the point being made that the authority itself isn’t legitimate. The necessity invoked by the state to protect itself from terrorism is in turn invoked by the fighters to express their will for freedom. The labeling of terrorism, therefore, is a political accusation of the state against which it is aimed: this authority isn’t legitimate and is oppressive. Considering Mandela a terrorist, at the time, meant supporting the apartheid regime of South Africa against an insurgency hell-bent on destroying the status quo.

Do you want… John Brennan to define terrorism? (Reuters)

 

Maintenance of the international standstill

Yet, despite this acknowledgement that crimes of occupation, crimes of aggression, and state corruption are causes of political violence, international bodies of law, by treaty or doctrine, never define terrorism. An interesting passage is the preface to the 1998 International Covenant on Terrorist Bombings recalling the UN General Assembly resolution 49/60 of 9 December 1994 on Measures to Eliminate Terrorism; Article I (3),

Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them.

As the first UN Special Rapporteur on human rights while countering terrorism, Martin Scheinin, explained in a 2006 report, this intentional vagueness on the part of international bodies not to define terrorism leaves it up to the states themselves to provide a definition according to what is the threat they perceive to their own apparatus. Inevitably, however, this leads a state-sponsored definition of terrorism not in regards to the fear it provokes in the population the state is supposed to protect, but within the authority itself, therefore opening the door to the legitimization of tyrannical regimes labeling their opposition “terrorism”, as opposed to the right to self-determination under oppression.

Calls by the international community to combat terrorism, without defining the term, can be understood as leaving it to individual States to define what is meant by the term. This carries the potential for unintended human rights abuses and even the deliberate misuse of the term. Besides situations where some States resort to the deliberate misuse of the term, the Special Rapporteur is also concerned about the more frequent adoption in domestic anti-terrorism legislation of terminology that is not properly confined to the countering of terrorism. Furthermore, there is a risk that the international community’s use of the notion of “terrorism”, without defining the term, results in the unintentional international legitimization of conduct undertaken by oppressive regimes, through delivering the message that the international community wants strong action against “terrorism” however defined.

The rest of the report addresses the key issue: we know what terrorism is not. We are not sure exactly what it is. Proscription of terrorism conduct refers to the act itself, and led to a partially satisfying treaty – the 1998 Covenant on Terrorist Bombings. This is only part of what terrorism can represent to a nation or a region. But if we do not know what it is, it is difficult to legally justify that terrorism is set apart from the rest of criminal offences within domestic law.

Why terrorism is saved a special place in criminal justice is often justified by the risk it poses: it is an existential threat to the nation as a whole, its stability, and the freedoms it guarantees. After 9/11, the United Kingdom derogated from its obligations under Article 5 ECHR – protection against abusive detention – as a response to “a public emergency threatening the life of the nation”. No other member of the Council of Europe deemed it necessary. However, the decision was respected, both by political allies and by the ECtHR itself. But the conflation of a political threat and the existence of protection against it is legitimate and legal. The state can’t be surprised by an act of terrorism, and therefore should act pre-emptively. David Anderson QC, the Independent Terrorism Legislation Reviewer, wrote in 2013:

… It cannot be suggested that the general run of anti-terrorism laws is justified only in the case of a public emergency or the threat to the nation’s life. A permanent emergency would be a contradiction in terms; permanent anti-terrorism law, as we have seen since 2000, is not.

Later, referring to the named specifics of modern terrorism – international networks, suicide attacks, mass civilian casualties – Anderson concludes:

To take an understanding of terrorism that is derived from history or social science, and allow it to serve as a justification for any number of specific legal powers, is a dangerous course. However serious or unique the problem of “terrorism”, it does not follow merely from its seriousness or uniqueness that special powers are necessary to combat it. If special powers are to be justified, it must be by reference to the particular demands of policing and prosecuting terrorism.

But the permanent emergency to which Anderson refers to is very much present. The constant of anti-terrorism legislation in itself is not representative of the political discourse around which it is centered. The permanent threat is highlighted with the constant, painful, reminder of violence and victimhood past, as well as everything done since in order to prevent it from happening again. Being efficient in the fight against terrorism has become more of a litmus test in leadership than, say, social upheaval or economic stability.

Do you want… Theresa May to define terrorism? (Getty)

 

Global counter-terrorism efforts and the lowest common denominator: salus rei publicae suprema lex?

The only way nations brought together not in the name of a common interest – initially – but of a common enemy work alongside one another around a concept they refuse to communally define can only be done once they reach common ground. The definition of terrorism as applied to international or transnational protocols can not possibly accommodate every intrinsic mechanism of domestic law, especially human rights safeguards. To that effect, collaborating in counter-terrorism means working around the lowest common denominator of what constitutes terrorism. In doing so, the effects of making anything a threat – pre-emptively, hypothetically, and retroactively – contaminates the hyper-vigilance of one given state to all of its allies. This is what happened when the United States sought global counter terrorism partnerships with EU states bound to the Convention on Human Rights and their own domestic applications, hereby making the counter terrorism partnership at odds with a culture of preserving habeas rights even in cases of serious crimes. The UK, having already experienced the dangers of overreaching counter-terrorism legislation with the Prevention of Terrorism Acts (PTAs) in the 1970s made efforts, in 2000, to create a framework specific to terrorism; but as of today, compliance with the Convention is now purely theoretical. In fact, it has become a topic of high contention in the UK as to whether human rights law could still be applied in an “adequate” fight against terrorism.

To explain how EU member states, and specifically the UK, have aligned their own counter-terrorism policies to that of the US’, even after being at the center of a human rights debate in the application of their former legislation, one needs to take a look at transatlantic cooperation and how it drastically evolved between 2001 and 2008. A 2011  research paper authored by Annegret Bendiek for the Stiftung Wissenschaft und Politik German Institute frames it:

To make matters worse, all past attempts to work out a universal definition of terrorism within the framework of the United Nations have failed. The United States still claims the right t act unilaterally and to use the military means in cases in which the UN refuses to support it. The United States justified its military actions in Pakistan and Yemen by pointing to its right to self defense and id not even try to get formal authorization from the Security Council. In sum, US counter terrorism policy will be characterized by an instrumental use of multilateral structures also under President Obama. The essential difference between the United States and the EU remains that the US combats terrorism by military means, whereas the EU and its member states concentrate on policing and intelligence measures.

If the UN repeatedly asked for cooperation among states in the fight against terrorism, this has led to various international and transnational abuses, due to the necessity to stoop down to the lowest common denominator in the fight against terrorism. In international law enforcement, the blacklisting and surveillance of terrorist suspects – through Interpol’s Orange notices, the Schengen’s Article 99 system and so forth – has to abide by a definition of a criminal conduct all states can adhere to. Although the United States, as stated above, will not shy from using lethal force, the transatlantic cooperation in counter-terrorism has made the strengths of both “visions” of counter-terrorism – militarisation and intelligence – mutually beneficial for US counter terrorism partners. It strengthened existing intelligence sharing agreements, it reinforced military cooperation on already existing bases, and helped disseminate massive defense spending in the name of the war on terror.

It is a testament to the power of terrorism that contradictory perceptions of the threat as seen by the US and by the EU have found a way to reconcile within international security cooperation. The historical experience of the EU – specifically France and the UK – differs from the US, relatively “new” to its status of victim of political violence. If US national security demands are violent in their response and unwavering in their commitment to wage war, the EU sees it as a long-haul, cooperative and interdisciplinary method to combat the threat, from deradicalisation to international deployment of intelligence operations. After 9/11, it becomes obvious in the European Security Strategy that the EU saw it fit to align with the US, specifically the UK, upping the ante in terms of legislation, force, and, namely, surveillance. Because of EU safeguards in terms of data protection, judicial review and the supranational power of the Convention on Human Rights, the pooling intelligence information with the US presented many civil rights and human rights challenges. In so, US-EU counter terrorism agreements are intergovernmental rather than at European level. Wyn Rees, studying the effects of transatlantic counter-terrorism cooperation in 2006, explains:

Bilateralism, rather than multilateralism, has been the watchword for post-war intelligence sharing. Information can be shared with one country, but not with another, thereby rendering difficult to build up broader patterns of dissemination. The US has recognized the value of sharing information, but it has done so through close bilateral relationships with allies. Certain EU countries have established a privileged intelligence relationship, namely the UK, France, and Germany, and this has given them a vested interest in ensuring that the relationship continues (…) The challenge for the transatlantic relationship has been to find a framework in which intelligence can be shared multilaterally. There are enormous advantages for both sides if they can obtain information from single, central sources rather than engage in cross-cutting bilateral contacts. This need not mean that all information be shared with all parties(…) Trust is something that takes a long time to foster, and the transatlantic allies have wrestled with the problem that there is no obvious framework in which to share information.

Following the Snowden documents, which welcome release have inevitably strained the bilateral and multilateral relationships cultivated by the US under the pretense that the necessity to counter terrorism could still be compliant with the legal framework of the countries in which it operated, data sharing and intelligence sharing agreements are put back into question, and observed through a transparency prism that had seemingly never been requested of counter-terrorism partnerships before. These are, namely, the actions of Europol and the European Arrest Warrant; the collection of flight passenger data under the EU-US PNR agreement, and the extensive retention of names and information under US counter terrorism protocols; and negotiations around the EU-US TFTP agreement, a tracking system implemented in order to identify and block any financing of terrorism activities. Those, however, are negotiated at EU level, under EU safeguards. It is necessary for EU member states to individually denounce the human rights violations of their own bilateral agreements, which is unlikely to happen under this new new war against ISIS. Not defining terrorism allows for terrorism-specific arrangements and agreements to remain in place for as long as a threat is identified – a threat, not the threat.

Do you want… Tony Abbott to define terrorism? (TheAustralian)

One system that has inflated rather than deflated even in the aftermath of the Snowden revelations was the system of terror blacklisting, already decried by Bendiek in 2011 for not being transparent enough so blacklisted individual can seek redress. In a world where terrorism isn’t defined, supporting terrorism, associating with terrorists, or promulgating terrorist material can mean anything – and many of the systems in place to block supporters of terrorism fail the most basic human rights standards. In fact, the UNSC Res 2178 against foreign fighters, passed hastily in September under unanimous consent, demands of UN member states to not only cooperate further in terms of intelligence-sharing, but to also stop the flow of foreign fighters to the twin conflicts of Iraq and Syria, and ensure that their financial resources are dried up. It would be impossible to track unless, of course, the blacklisting system incrementally upgraded and increased to meet this unprecedented threat. Bendiek, in 2011, concludes that the EU is well ahead of the US in developing judicial safeguards against blacklisting following the Kadi I decision. It might be correct on paper: there is no blacklisting case brought against the Council of Europe that the executive body has won. However, the issue of transparency remains for the blacklisted individuals, still unable to bring their case before a court unless they are notified that they have been placed under surveillance, blacklisting, or a no-fly list. All instances of invalidation of a blacklisting, except one, have been made on grounds that there was no information available to the appellant or the Court to motivate and justify the blacklisting – the information remains classified in the name of national security. The one exception, the Nada case, displayed a fundamental flaw in the multilateral blacklisting system: Nada, blacklisted by the UN, was found exonerated in Switzerland (!) as the 1267 UN blacklist was found in breach of the ECHR/ ICCPR.

The more cases of blacklisting, even blacklisting under UN Security Council resolutions, come before courts, the more it appears it is unconstitutional and unlawful under international law, despite being extended by the same international body that promulgated these laws in the first place. The case of A, K, M, Q and G v HM Treasury, before the UK Supreme Court in 2010, found that the necessity to blacklist an individual under the provision of the 1267 UN blacklist was in violation of the individual’s fundamental rights. A document provided by the ECCHR authored by Gavin Sullivan and Ben Hayes details the specific situation of Muhamad al-Ghabra (G):

He was first informed by the UK Treasury that his funds were to be frozen and a few days later told that the reason why was that he had been included on the 1267 list, which UK authorities were bound to implement. What he was not told at that time was that it was the UK authorities themselves that had nominated him for inclusion on the 1267 list. Thus, instead of freezing G’s assets directly under national law (by making a decision which would have been liable to judicial review), the UK government froze G’s assets indirectly, using the mechanism of the UN Sanctions Committee (through a procedure outside the scope of judicial review). G’s experience highlights the ways that the Security Council has been transparently and strategically used as “a venue through wish to wash national executive decisions which would otherwise be subject to judicial control of their vulnerability to court supervision of the interests of the individual.”

And if the UNSC can be used as a tool to further the counter-terrorism purposes of a given state, multilateral agreements outside the scope of judicial review through classification can be just as well, if not worse.

If terrorism is commonly understood as being political violence, it isn’t simply political violence. Terrorism, or the climate of terror it provokes or creates, is the social paralysis. It’s the political impossibility to act within a frame of normalcy. It’s hysteria. The political violence in itself becomes as destructive as the threat of violence. A nation or a region living under the threat of terrorism is holding its breath permanently. When terrorism is not defined, it allows the fear to permeate every organ of society. Unless the devil is placed back in the box, it will be impossible to return to normalcy: the state is in fight or flight mode. Counter-terrorism partnerships install this climate and work toward destroying it, on paper. Instead, because those intelligence sharing protocols inflate the powers of the state to the point of little to no judicial or legislative review, they become extremely beneficial to state organs that would otherwise be restricted in their scope of action. The state of hyper-vigilance caused by terrorism becomes, in itself, self-perpetuating, and turns the state into a body that has allowed itself to work the concept of necessity to the extent it can, if needed be according to self-imposed rules, impose terror in return.

Terrorism as state violence

Journalist Glenn Greenwald, on MSNBC’s The Last Word from October 29, 2014:

… the problem that Israel and the US have is that it is impossible to get a definition that excludes their own behavior, while including those they want to include. So, there never has been a definition. It really is a fearmongering term. If you want to call it ‘killing of civilians to change policy’, we have to apply it to ourselves as well.

It would be irresponsible to only attempt to define terrorism as a challenge to state authority and sovereignty while forgoing the fact that other nation-states apply it to their perceived and defined “enemies” as well. Terrorism as state violence has very much been an unmissable, and hopefully unforgettable feature of the War on Terror: all means necessary to achieve something as unruly and vague as the terms defined in the Authorization of the Use of Military Force: defeat the militant enemy. In fact, the War on Terror could very much be the epitome of terrorism as state violence. From extending attacks to undeclared battlefields to pre-emptive strikes, to the killing of citizens abroad and the thick coat of secrecy surrounding every operation, the War on Terror is the image of terror itself.

On October 29, 2013, relatives of drone strikes victims from Waziristan, the border region between Pakistan and Afghanistan, the location of the most intensive displays of the drone warfare, testified before Congress. Their words, which brought their translator to tears, were only heard by five members of Congress. If the relevance of their testimony did not hit legislature then – or was too embarrassing to attend – it caught the eye of the international community, increasingly alarmed by the lack of regulation with which drone strikes are conducted. Operated by the CIA, the attacks in Waziristan operate completely outside the realm of review, and were qualified recently by the Pakistani Interior Minister as a violation of their sovereignty. This testimony reflects how drone warfare makes ordinary civilians feel, how it affects their daily life, and how it profoundly modifies their behavior, to the point of making them afraid of their environment, so much that what was once friendly and familiar becomes strange and lethal. This is how terrorism affects the society it is perpetrated in, and is applied in this instance to the US-led war on terror:

As I helped my grandmother in the field, I could see and hear the drone hovering overhead, but I didn’t worry” he said. “Why would I worry? Neither my grandmother nor I were militants. (…) When the drone fired the first time, the whole ground shook and black smoke rose up. The air smelled poisonous. We ran, but several minutes later the drone fired again. People from the village came to our aid and took us to hospital. We spent the night in great agony in at the hospital and the next morning I was operated on. That is how we spent Eid. (…) Now I prefer cloudy days when the drones don’t fly. When the sky brightens and becomes blue, the drones return and so does the fear.

The efficiency of drone warfare has been recently put into question. If anything, the lack of legitimacy and the backdoor legality has helped radicalise a demographic that would otherwise not become so – the word here being use purposefully – militant. Projects on accountability are rare, but make incredible strides, especially given the secretive nature of the CIA side of the war on terror, and the difficulty of collecting data on the ground, so unreliable is the environment and the sources. Naming The Dead, a project hosted by The Investigative Bureau of Journalism, has identified that only 4% of the drone strikes victims in Pakistan can be factually identified as members of Al-Qaeda, the terrorist organisation blacklisted by two successive UN Security Council Resolutions – the motive behind the war on terror, the ubiquitous enemy combatant, the enemy which must be defeated to restore peace and freedom in the western world. The remaining 96% can be militants from other organisations; soldiers from unidentified factions; but in the absence of an actual identification of a given individual or group as hostile, per international humanitarian law: they are civilians.

Do you want… James Clapper to (unwittingly) define terrorism?

In Yemen, a country ruled by tribal elders and rife with corruption, the incursion of the US drones created not only a climate of fear, but established political instability as a permanence. The millions of dollars lavished upon Yemeni leaders as “counter terrorism aid” is funneled elsewhere. There are a lot of winners of the war on terror in Yemen, but most certainly not regular people, least of them children, living their lives in the mountainous regions. In Yemen, anyone who isn’t aggressively demonstrating its allegiance to the United States is a potential threat. Journalist Gregory Johnsen, specialist of the Arabian Peninsula, researched the circumstances of a December 12, 2013 drone strike that hit the members of a wedding party. The scene he paints is startling and horrifying.

Clustered around them in a sweaty, jostling circle, dozens of men bumped up against one another as they struggled for position and a peek at the remains. Above the crowd, swaying out over the row of bodies as he hung onto what appeared to be the back of a truck with one hand, a leathery old Yemeni screamed into the crowd. “This is a massacre,” he shouted, his arm slicing through the air. “They were a wedding party.” Dressed in a gray jacket and a dusty beige robe with prayer beads draped over his dagger, the man was shaking with fury as his voice faltered under the strain. “An American drone killed them,” he croaked with another wild gesture from his one free hand. “Look at them.”

It’s no contest that Yemen plays a double game. It supposedly agrees to the roaring sound of drones hovering in its skies, but has to calm and quiet the angry voices of the local leaders and families seeing their loved ones being turned into charred human remains.  On June 14, 2013, President Obama released a message to Congress consistent with the War Powers Resolution addressing the situation of operations in Yemen under “Military Operations Against al-Qa’ida, the Taliban, and Associated Forces and in Support of Related U.S. Counterterrorism Objectives” in such concise terms it could hardly reflect the situation on the ground:

The U.S. military has also been working closely with the Yemeni government to dismantle operationally and ultimately eliminate the terrorist threat posed by al-Qa’ida in the Arabian Peninsula (AQAP), the most active and dangerous affiliate of al-Qa’ida today. Our joint efforts have resulted in direct action against a limited number of AQAP operatives and senior leaders in Yemen who posed a terrorist threat to the United States and our interests.

That is all. Johnsen, however, sees more in the conflict in Yemen. Specifically, he sees the manipulation of unrecorded civilian casualties and the financial corruption that, in fine, benefit AQAP more than anything else. In the end, in a war waged against an enemy without an army, without borders, and without identifiable messages, easily replaced leaders and transnational networks of financing, who isn’t a potential enemy anymore? Johnsen asks:

For much of the past century, the United States has gone to war with lawyers, men and women who follow the fighting, adjudicating claims of civilian casualties and dispensing cash for errors. They write reports and interview survivors. But what happens when there are no boots on the ground? When the lawyers are thousands of miles away and dependent on aerial footage that is as ambiguous as it is inconclusive? How do you determine innocence or guilt from a pre-strike video? When everyone has beards and guns, like they do in rural Yemen, can you tell the good guys from the bad? Is it even possible? And when the U.S. gets it wrong, when it kills the wrong man: What happens then? Who is accountable when a drone does the killing?

 

Terrorism: the manipulation of the manipulative

Working towards an international definition of terrorism, what appears most appalling to the researching eye is not the lack of willpower or strength of intent of legal workers and experts calling for a definition of it, but rather the strength of a refusal to create, in a legally binding treaty, a definition all would adhere to without the possibility of tweaking it according to current events and political necessity. All crimes evolve; all technology evolves; and if laws can become obsolete as time changes and borders move, so can a definition of terrorism beyond the pyramidal, insurgency-like structure the United Kingdom has known since the first Irish rebellion. It’s not the structure, ever so changing, that has to be defined. From lone wolf terrorism to internationally funded tree-like power organisations, it’s not only the action, but the intent behind the action that differentiates an action belonging to criminal justice and one fitting the terrorism definition. It’s the willingness not just to create pain and suffering among a specifically targeted group, it’s to bring all turning wheels to a screeching halt: the political system, in order to create chaos and instability; the social order, paralysed by fear of the randomness of the attack; and the judicial system, derogating power and oversight to the executive in an emergency.

In that, terrorism is manipulative. But one can only manipulate what it knows so well. That the concept of ‘homegrown terrorism’ seems so foreign and incomprehensible to political elites is truly baffling. Terrorism’s randomness itself is calculated. It will strike whenever is least expected and will touch on what is likely to provoke an overhyped emotional reaction. It is not just seeking blood and warfare, it is seeking fear. It looks toward what a population is cherishing the most, either because its future is dependent on it, or because its symbolism is too strong to ever thought vulnerable. Terrorism is the criminal achievement of a long internal study of the target of the crime. Because no society can survive, let alone thrive, by being impenetrable from the outside, terrorism needs to be understood as an eventuality. It must be taken into account when addressing criminality. A society, a government, a power structure must be prepared to face the threat. But this threat can never override any daily mechanism of the social and political structure. Yet this is what 9/11 derailed. From the fear of London over three decades of uncertainty in pubs, train stations, and any innocent trash can, came a world order of fear, a domination of a perceived necessity of addressing something that does not exist.

Thus was born the modern security state, not out of an avowed thirst for control, but of an insecurity so blatant and so overpowering it has permeated even the most supposedly critical and adversarial of its structure, the media. The fortress that has become the West in the wake of a terrorism threat it knew of but couldn’t exactly fight is transparent in how it lets its own fear control it, to the point that surrendering to the notion of a permanent failure to guarantee the safety of its population gives rise to a use of force beyond limits, beyond borders, beyond carefully crafted rule of international law that was based on political normalcy, not hysteria.

And so began the permanent war.

“We need the powers and the resources to expose the truth”

David Anderson QC (left), independent terrorism legislation reviewer. Ben Emmerson QC (right), UN Special Rapporteur on human rights while countering terrorism

On Wednesday, March 26, the Joint Committee on Human Rights (JCHR) convened on Westminster with the heaviest agenda of the parliamentary year so far – scrutiny of human rights compliance with counter-terrorism laws, protocols and their application. Following just  a week after another committee (Home Affairs) took great paints to summon Sir Mark Waller over GCHQ activities – and concluded that the little if any scrutiny granted to intelligence activity and data collection was far below a democratic threshold – the JCHR intended to make an inventory of the most pressing issues facing the human rights community in regards to counter-terrorism laws in the UK, enforced domestically and abroad. Present where David Anderson QC, an amicable, straight-forward and honest reviewer aware of his possibilities and difficulties as independent reviewer of terrorism legislation; and the both ubiquitous and far too rare Ben Emmerson QC, Special Rapporteur on Human Rights while Countering Terrorism.

As the UK slowly emerges from the deep slumber induced by the shock of the Snowden revelations, and intends to bring forward a semblance of a healthy democratic debate surrounding the overwhelming powers granted under its anti-terrorism legislation – from Parliament-embraced measures to unchecked use of executive power – this hearing was more formal that the Home Affairs’ submission to Sir Mark sought to be. Anderson and Emmerson, both tasked with a position that requires more than annual reports and evidence submission, highlighted not only the domestic inconsistencies of counter-terrorism legislation both in regards to constitutional safeguards but European legal compliance, but the international implications of the UK armed forces abroad – and even more to the point, the UK collusion with the US drone war.

Both Anderson and Emmerson were asked, as a preamble, to identify three key issues arising from abuses of counter-terrorism legislation – and both agreed on all three, their pressing need to be addressed, and the importance of a legislative scrutiny. Not respecting their own order, this write-up of the hearing seeks to re-affirm the basic principles of human rights compliance in counter-terrorism activities. Despite the current climate and the domestic policies seemingly asserting that the two are mutually exclusive, that conditions of necessity and proportionality involve derogations, and that national security imperatives supersede all – Anderson and Emmerson were both unequivocal in the belief that unless regular scrutiny, legislative and judicial review, and transparency prevail in a democratic country seeking to combat the extremely real of terrorism, abuses would be just as well shared by the nation-state violating the principles it had originally vowed to uphold.

Definition of terrorism

The question arose in the context of the Miranda v Home Secretary ruling in February, in which it had been effectively denounced and illustrated that section 40 (1) (b) of the ATCSA was too broad, too vague and unchecked to be efficient and free of possible discretionary, discriminatory abuses. As Emmerson remarked, the UK’s situation in defining terrorism – or failing to appropriately do so – is hardly unique. Many states, most of them being western democracies grappling with more or less open conflict in MENA or South East Asia, have definitions of what constitutes terrorism that are adaptable, subjected to interpretation, often not legislative. Anderson noted that he intended to revisit the definition incorporated into the ATCSA, if only in the light of the Miranda verdict – although the High Court ruling only emphasized that this became necessary, as opposed to shedding a light on an issue no one addressed. Continuing, “in the old days, terrorism was simple”, referring to the usual and perhaps now obsolete decision that terrorism was an act of violence perpetrated in order to achieve a certain political aim. The definition of ethnopolitical terrorism, a type of conflict Northern Ireland declared for decades, may no longer fit such a clear-cut bill: what has become a political means to achieve? Is the goal of the political action the strict act of self-determination, or can wanton destruction (of both property and persons) be considered terrorism? Should it be foreign or domestic? Should be carried by an organisation or an isolated individual? In the attempt to cover all bases, 40 (1) (b) covered, in fact, all bases, even those that perhaps should never be criminalized to the full extent of the overreaching powers of couter-terrorism legislation.

Ben Emmerson

Maybe more to the point – and this was said as an aside, despite its importance – a broad definition of terrorism could apply to state actors as well as it could to organisations and individuals. Emmerson:

This definition (…) criminalises conduct too broadly. The purported safeguards against abuses can’t be used against executive orders, that remain unchallenged. If you apply this definition, it could apply to British armed forces overseas.

Although it remains quite unsure as to how many eyebrows were effectively raised following this statement, Emmerson continued on the difficulties of applying a terrorism charge ex post facto. “This is not consistent with our constitutional principles”, he concluded, which will later be raised once more in the evolution of the legal context of counter-terrorism.

What was at the core of the Miranda case, indeed, was the extension of counter terrorism legislation to journalism – and the fact that carrying material that could be deemed harmful to national security; knowing, carrying, transporting, or transferring information deemed harmful; and publishing said information is now subjected to a terrorism charge. If journalists have now become a preferred target for outlandish counter terrorism laws that are only a front for clearly criminalizing dissent, the goal of extending these powers – which include prolonged detention, seizure of property, prolonged interrogation often as a result of long standing surveillance – to journalists, protected by the ECHR, the ICCPR and domestic mechanisms of press freedom, has a dangerous aspect that has forced one member of the JCHR to ask both barristers if journalism, and being a journalist, should be defined in order to create a framework that would escape the claws of counter-terrorism legislation. But being a journalist is not simply a profession on a card, not simply a career; it is the act of researching information and publishing it. In the digital era, an individual that may not necessarily be a career journalist, would not necessarily identify as such, or would not be hired full time and under contract by a newspaper organisation, can indeed act as a journalist and publish as such. Those individuals also deserve the protection of Article 10, and hold the right to a public interest defense.

Emmerson did not mention the Johannesburg Principles; instead, he referred to a more recent convention – principles laid out that goes through both domestic and comparative law in order to provide the best media protection possible, as well as enriching the legal mechanisms and recourses for whistleblowers… including those engaging in unauthorized disclosures. It is of Emmerson’s “robust view”, as he puts it – which may be robust in a vacuum, but necessary in the context – to foster and favour an environment in which the media plays a role of governing accountability and providing a healthy debate in the name of public interest. If the question of transparency has popped in a few times during the short hearing, it has however made a lasting impact – Westminster has now effectively held two parliamentary hearings during which observers, national, domestic workers in different fields, have assessed the Snowden disclosures not only as being in the public interest of the United Kingdom, but also having a much broader, international scope – which forces the national government in this situation, not only to address its own population in regards to the domestic spying apparatus in place, but to answer to the duties and responsibilities each nation has toward the others with which it engages.

Glenn Greenwald after finding out about Scotland Yard’s “Ports Circulation Sheet” related to the arrest and detention of his partner, David Miranda.

(If the Snowden revelations damaged more than two governments’ abilities to be trusted by their own population, we may not know in the immediate; US journalist Jason Leopold, who has filed a Freedom of Information Act (FOIA) request for a DIA document supposedly reporting on the “grave damage” the Guardian publication would have caused has been met with an “exceptional circumstances” excuse, seeking additional time to process his request. Considering the discourse on the so-called lethal effects of the NSA disclosures at home and abroad, one would be under the belief that the DIA would want this report out there, for everyone to stop considering Snowden a hero. Alas, this is not the case; and the notion of public interest in the face of grave human rights violations remain.)

Anderson, who has had first hand experience in observing press freedom and its restrictions elsewhere while on a mission for the Council of Europe (CoE), has reported that instances of restrictive definitions of what constitutes journalism and who can be considered a journalist, with the legal protections attributed to the title, more than often led to press freedom violations. He referred to the Levison case, another ominous jurisprudence for the United Kingdom. Although Anderson’s point was brief, if his intent was to suggest press freedom ought not to be restricted on matters of principle to avoid civil liberties violations (as opposed to restricting them for opaque national security matters), it was very well conveyed. The concerns raised by the JCHR was not in the strict and immediate future of the Miranda ruling, which is still under ongoing litigation, but just as dangerous and pervasive chilling effect it has on freedom of expression, opinion, and access to information. Emmerson, who never sought to wax poetic and engage in rhetorical battles of sorts on political linguistics, stated that national security was in fact used as an excuse to intimidate and silence the press. This goes hand in hand with recent declarations by UN Rapporteur Frank La Rue on the chilling effects of prosecution of whistleblowers. Anderson, who explained that national security was “notoriously undefined”, took issue with unquestionable, unchallenged and unscrutinized executive orders – as well as the Royal Prerogative – which, as a terrorism reviewer, leaves those unilateral decisions outside of his purview. It became clear at this point of the hearing that a legislative review of counter-terrorism, powers granted by Parliament and possibility to curtail, democratically, exceptional powers granted to the executive, could be what the UK – and by extension, the US – need.

CIA rendition program

A long-lasting thorn in Ben Emmerson’s side, the release of the Gibson Inquiry echoes the current theater drama on the other side of the Atlantic, as Sen. Feinstein struggles with the CIA, her own demons, and getting the votes to hypothetically release the CIA torture report. The Gibson Inquiry, named after Sir Peter Gibson, tasked to investigate the role of British intelligence forces into the CIA torture program, has notoriously been stalling for years. Then transferred to the Intelligence Services Committee (ISC), David Cameron, as a campaign promise, sought to take it away from Lord Gibson and handing it out to the ISC. He famously said, in 2010:

I do not think for a moment that we should believe that the ISC should be doing this piece of work. For public confidence, and for independence from parliament, party and government, it is right to have a judge-led inquiry. That is what we need to get to the bottom of the case. The fact that it is led by a judge will help ensure that we get it done properly.

A statement made on December 19, 2013 and released to David Cameron said the report concluded that matters needed “further investigation”. However, the ISC has been heavily criticized for failing to conduct proper oversight into the activities of intelligence services; in this case, the only released information concerned the MI-6 collusion with Gaddafi, which resulted in the rendition and torture of two Libyan opposition leaders in 2004. Handing the Gibson inquiry to a committee that lacks powers and resources to conduct a truly independent and thorough inquiry has been perceived by members of human rights groups as a willingness to whitewash the activities of the MI-5 and MI-6. As the ISC reviewer himself, Sir Mark, proved at his own hearing last week, the reviewer has little to no power over GCHQ; is massively understaffed; does not possess the power to compel evidence or summon witnesses; any evidence provided will be heavily redacted if ever possibly released at all. Emmerson, who expressed his frustration over the procedural limitations of the inquiry over and over again, re-affirmed the need to absolutely lift any roadblocks standing before the ISC “so the Committee can do its job”:

Individuals concerned by the inquiry boycotted it – but those who committed crimes need to be exposed. The Committee needs to have the powers and resources to expose the truth.

When asked if the ISC would ever face a conflict of interest in the conduct of a review that is neither legislative nor judicial, Emmerson expressed a commitment to oversight that is refreshing in an era of hyper-classification and constant executive-led belittling of calls for transparency. The Rapporteur then made a statement that sounds like stating the obvious, a truth that many democratic regimes may have held as self-evident, that is, until someone blows the whistle on works behind the scenes: that oversight is a traditional mechanism in advanced democracies. It is the one tool of accountability that can be relied upon especially when exercised by the very representatives of the people (legislative) and/or by an absolute separate branch of government (judicial). Only a lack of oversight, or a demonstration of powerless or virtually pointless oversight can reveal that separation of powers or excessive executive control has undermined the constitutional principles of society. As to whether any inquiry, inquiry report or conclusions should lead to prosecution, Emmerson believes that a strong judicial component to an inquiry could be an asset to conducting an investigation into intelligence services – as the judicial hand might be seen as stronger and less subjected to influence.

In light of Sir Mark’s testimony – which, again, he performed extremely reluctantly – the issue of transparency not only in intelligence itself, but in the conduct of oversight was raised. Although both Emmerson and Anderson mentioned the concept of “responsible journalism” earlier in the hearing, the necessity for information and the right to truth was once again made in front of a legislative body (emphasis mine):

It is always difficult to decide [ on release ] when dealing with sensitive information, to decide if privacy is justified. But what the committee is tasked with, parts are capable of being held in public. All that can be safely in the public domain should be in the public domain.

Unmanned aircrafts, targeted killings and undeclared battlefields

It was surprising to hear members of the JCHR being surprised that the use of drones made Anderson and Emmerson’s top three counter-terrorism issues list. Following an extremely brutal yet absolutely necessary report three weeks ago, which seemingly went half unnoticed even in the list of proposals it laid out in its conclusion, Emmerson provided the committee with what Anderson later referred to as a “masterclass on drones”. No stranger to their use in undeclared battlefields and the massive human rights violations they committed – pre emptive killings, unsanctioned use of military force, civilian killings and the absolute classification over their intelligence collection methods, their trajectory, and little known about their operating bases, it was no wonder that Emmerson’s tenure at the UN would prominently feature his lengthy field research in Pakistan and Yemen in order to amass the information that no one else would release to him, despite his position, that one would assume significant enough to warrant cooperation.

Alas.

Know Your Drone

Emmerson identified four key concerns, which he outlined in concise but harsh terms:

1) this is a 21st century weapon designed for asymmetrical armed conflict. As a counter-insurgency tool, which is what it is branded to be, it is of very little use and effect.

2) the Committee was right in saying that with the technology at our disposal, and the capacity to place suspects under 24/7 surveillance, it is in fact possible to protect the right to life closer to a zero-collateral damage than ever before – tools of precise targets, even more surgical strikes, and threat removal. Instead, the use of drones have illustrated reckless endangerment, and have destroyed said right to life.

3) Most of the difficulty that arises from the counter-terrorism and human rights study of the use of drones is that they often operate outside of the theaters of traditional armed conflict. Their constant hovering over Yemen, Pakistan and Somalia, nations with no declared war against the US or the UK, force precedence in areas of international law where there is nothing even remotely close to a political or legal consensus.

4) Drones are operated by the CIA.

Presenting this quote without further comment:

I don’t know who originally thought it was a smart idea to hand drones in a campaign of waging war through the air to an organisation bound by the rules of neither-confirm-nor-deny. (…) I’d rather give MI-6 a fleet of aircrafts and let them go off and do whatever they needed to do.

The complete lack of transparency even in answering simple questions from journalists and lawyers is what makes the CIA such an unpractical and dangerous organisation to direct and lead unmanned aircrafts – remotely based pilots distanced and detached from the battlefield, the realities of the insurgency and the bloodshed of the bombs they let off. The historical culture of classification and secrecy held by the CIA, the topic of which is often source of heavy-handed satire and conspiracy theories is an issue in and of itself. Abuses do arise, but in the hands of the CIA, they are effectively removed from any tool of accountability for the civilians affected by their practices; the wounded as well as the killed. The effort to transfer the direction of drones from the CIA to the Department of Justice (DoJ) was a step in the right direction, but hindered. Emmerson however noticed that since John Brennan took over as head of the CIA, Pakistan enjoyed a period of relief from the death machines. (Sadly, this has not proven true for Yemen).

Picking apart Emmerson’s new report draws the eye on his rhetorical questioning on a proposed change of international law (!) and accountability systems of counter-terrorism (!!) to fit the current and evolving framework of the counter-terrorism and counter-insurgency methods the US and UK are practising in the name of their endless War on Terror. Reducing it to the simplest possible question due to the nature of the hearing and its limited duration, Emmerson was asked to answer whether war should be redefined. This, however, was not rhetorical. Stating that this is a complex issue – and I would argue, the most complex international criminal issue of our time, one I have been working on for ages – there is no consensus among states, or even among lawyers. The Geneva Conventions are and should remain the guiding principles of the law of warfare; but the nature of conflicts themselves have evolved far away from our traditional and historical definition of what constitutes an international armed conflict. Most of the battle zones, these days, are asymmetrical battlefields – meaning, in broad and simple terms, a nation-state against a more or less borderless organisation. Henceforth, the targeted laws of international humanitarian concepts are harder and harder to apply. Jurisdiction is an ongoing concern in matters of judicial accountability. Classification is the biggest fear in matters of political accountability. If counter-insurgency and counter-terrorism are often confused in media coverage, it is because the definition of what constitutes a legitimate military target not only varies according to the country in which the fight is taking place, but also the rules of engagement (for armed forces); the duty handbook (for private military contractors), and legislation once one policy expires or there is a change in administration. The questions Ben Emmerson asked at the end of the report, which asked states involved in the War on Terror to not only answer his calls for transparency and release of information, will be subjected to a vote at the United Nations shortly, recommending the establishment of a committee that would hear states and their own national, domestic and political vision of counter-terrorism, human rights compliance, and the legal systems of accountability they would recognize.

As I said, Emmerson’s report was a brutal read; and if some states decided to play the game and submit themselves to Emmerson’s questioning – the future will tell the degree of truthfulness involved – the Rapporteur was quick to point out that the UK was “not terribly keen” to submit themselves to the Human Rights Council. In itself, it is immensely telling.

Home Secretary Theresa May

Citizenship deprivation, executive powers

When mentioning the awfully limited and comically useless powers of Sir Mark Waller, it was unbelievable to conceive that David Anderson would face oversight issues. Indeed, his body of work as a reviewer is comprehensive, transparent, available and accessible. However, in the recent decisions made by the Secretary of State and Home Secretary, regarding immigration, deportation and revoking powers, Anderson admitted he had no review powers – those fell under immigration ministry oversight. However, one concern was a power that had been long lost and was somehow revived in the last twelve months: revoking a passport. Since April 2013, 14 passports have been revoked under powers granted by the Royal Prerogative, another unilateral executive power not subjected to review. (We remember activist Moazzam Begg’s passport being confiscated upon return from a humanitarian trip to Syria, not long before being arrested and detained by the anti-terrorism unit of Birmingham Police).

But again, the bigger picture remains the same: it is an issue of transparency and accountability. Theresa May’s citizenship deprivation scheme, detailed here at length by journalist Aviva Stahl, have obscured motives yet terrifyingly clear results. Left vulnerable, without diplomatic assurance and the protection of the right of abode, statelessness effectively makes individuals vulnerable to gross human rights violations – historical instances in the previous centuries having led to the 1954 Convention on the status of stateless persons. Although the power of revoking citizenship is a prerogative of any member state, the necessity to ensure that the individual is not only entitled to powers of appeal of the decision but also has another citizenship or state willing to grant asylum once the decision made should be a duty incumbent to any state party to that treaty. Emmerson, falling into the footsteps of a House of Lords hearing last week during which the scheme was debated, in the light of two individuals murdered by a drone strike directly following the revoking of their citizenship, reaffirmed that international law had to prevail in a climate of perpetual and ubiquitous conflict during which individuals are not to be left without possibility of refuge. However, the follow-up question was met with concerns for the security of the United Kingdom, not an appreciation of the human rights of individuals, regardless of their alleged or confirmed criminal status. Emmerson, again:

Those singled out for a crime that is wholly public – on notice from the government and the services that watch them – are those posing the least threat. This is a radical power, and it makes one wonder what someone did to deserve such a measure.

Anderson, who has consistently and abundantly worked on TPIMs, was happy to report there were none enforced currently; there should be an emphasis on prosecution in matters of criminal wrongdoing, as opposed to executive orders in matters of security. Are the TPIMs really that efficient in terms of counter-terrorism prevention? Are executive powers a deterrent to criminal activity? What can be a deterrent? Wouldn’t the appropriate behavior to work on the roots of terrorism – explained and detailed in the UN 2006 global counter-terrorism strategy – as opposed to immediately and profusely rely on executive powers, unchallenged and unchecked, to provide national security?

Crux of the matter remained that scrutiny of executive powers and executive services – intelligence and use of military force in matters of counter-terrorism – require that the other branches of government obtain at least equal power to the executive as opposed to being subjected to disclosure exemptions, classification refusals, and clearance denials when accessing material, evidence, and individual that would facilitate the conduct of their work. Anderson suggested that members of Parliament engaged in legislative review should be granted security clearance to access GCHQ / MI-6 material – or at least, be treated as if they did. “It is the only way we can debate information in a meaningful way”, he said, in yet another significant effort by a terrorism specialist to emphasize the necessity for clarity and transparency in the healthy course of democracy. Emmerson concluded that oversight was not working as it well as it should be, but thankfully, we could rely on a momentum, at international level, to create direct obligations upon member-states to abide by human rights provisions in the course of intelligence gatherings and counter-terrorism.

And we hope it doesn’t stop.

 

The Monster Within: the Uncomfortable Truth Behind the Oslo Terrorist Attacks.

Oslo, shortly after the explosion.

Whether he knows it or not, Breivik is a member of Al-Queda. It is with those words that The Danger Room’s Spencer Ackerman chose to write his first words related to the Oslo attacks. Two acts of terrorism of extreme violence carried out without a slightest warning in a country mostly known for soccer teams and a stern refusal to be a part of the Euro zone. Wherever Europe chose to hide its best, brightest and quietest – Scandinavia – the curtain has now been pulled to reveal that the darkest stains of the Old Continent have spread to the parts we believed were kept out of the miserable stench of racism emerging out of the upmost western shores. The 2008 crisis did nothing to help a rise in extreme right fringes represented within France’s Sarkozian government, Britain’s Tories flirting with the BNP and Austria’s early 00’s dance with Jörg Haider. Regardless of the position, terrorism is terrorism: it is the refusal to adhere to the rule of law, a complete disregard for human life, and a basic, if at all, knowledge of what constitutes civil society. What is shocking the world as of today is not the scope of the attack, its suddenness, or its unusual location. It is the fact that Anders Behring Breivik was a white-skinned, blonde-haired, blue-eyed 32 years old who couldn’t find another way to “spark a revolution” he believed to be necessary to rid the world of “the threat of Islamism”. Primitive fear of the other and outstanding political violence: Europe is facing its own failure to integrate, mix, and roll in with multiculturalism. The ghosts of the wars of the 20th century are passing by, sending a very chilly breeze. Antonio Fernandez gives us his insight on Europe’s old trends of xenophobia and the hypocrisy in national narratives.

“the flow of minute-by-minute particular details of the massacre provided by mainstream media cannot and should not prevent us from asking larger questions about Nazism as a European phenomenon, deeply rooted in the mind-set of European national narratives”

On Friday, July 22nd, Anders Behring Breivik, a 32-year-old Norwegian man with extreme right ideas, allegedly a member of Swedish Nazi forum, killed at least 93 children in the island of Utoya. It is the worst attack suffered by Norway since the Second World War and has been described in the media as Norway’s Oklahoma moment. Behring’s outspoken hatred of Muslims, Marxists and multiculturalism, his call for a defence of what he perceives as a “decadent” Europe put him in line with the extremist ideas of the resurgent neo-Nazi movement in Europe. It is deeply worrying to observe how almost 70 years after the Nazis’ war on Europe and fascism, countries such as Sweden, Finland, Germany, Austria, Russia, Italy and Spain, to name only a few, have seen the ideas of xenophobic, populist and demagogical political parties taking seats in their national parliaments. What should raise our concern, however, is the disproportionate and indiscriminate nature of the brutal twin attacks, which clearly mark a transition from street knife crime to what could be seen as a more violent and sophisticated form of terrorism in Europe. The question that runs through my head is probably similar to that of many: why? Obviously, the flow of minute-by-minute particular details of the massacre provided by mainstream media cannot and should not prevent us from asking larger questions about Nazism as a European phenomenon, deeply rooted in the mind-set of European national narratives and its devastating consequences. My intention with this article is to briefly navigate to the core of racism in Europe and offer a broader historical and philosophical perspective about the ramifications of power in the right to kill the other, which lies at the heart of European totalitarianism. Nazism should never occur in Europe again but the resurgence of organised racism forces us to wonder whether Europe has really learned its historical lessons. It is only by confronting the discomforting and uncomfortable truth of Europe’s colonial past that we may be able to fight terror – intellectually and physically – in all its forms, whatever traits the terrorists uphold and whatever the nature of terror inflicted.

Anders Behring Breivik

“In Agamben’s words, the state of exception is that space where one who has been accused of committing a crime, within the legal system, loses the ability to use his voice and represent themselves- the individual can not only be deprived of their citizenship, but also of any form of agency over their own life”.

Anders Behring Breivik travelled to the island of Utoya dressed as a policeman after having left explosives in a governmental building. With chilling coldness, Breivik arrogated himself the right to end the life of 93 young boys and girls, members of the Socialist youths. They were not given the chance to speak, to say a word in their defence as, in Breivik’s mind, they represented everything that he stood against: multiculturalism, empathising with Muslims, and the perversion of Europe’s cultural purity. The island became a form of a state of exception and the young boys and girls became homo sacer, to use the terminology employed by philosopher Giorgio Agamben. In Agamben’s words, the state of exception is that space where one who has been accused of committing a crime, within the legal system, loses the ability to use his voice and represent themselves- the individual can not only be deprived of their citizenship, but also of any form of agency over their own life. Agamben identifies the state of exception with the power of decision over life. On the island of Utoya, Breivik turned the congregated into homo sacer, that is, human beings outside the reach of law by virtue of the state of exception, where no law applies. But, in Breivik’s own words, the end justified the means – he recognised the brutality of the massacre yet claimed it was necessary. A sort of instrumental rationality seemed to underpin the goal of his actions.

Racism in Europe emerged in the age of colonial exploration, when the European merchant class went overseas in quest for raw material and new markets. Thanks to technological improvement and the rule of Enlightnement, Europe moved beyond the Middle Ages and entered  Renaissance as the descriptor and scriptor of the world, the beacon of civilisation, the civilising centre of the world to which the other peoples in the world should naturally tend. Soon, Indigenous populations were rendered primitive and backward or as having a civilizational deficit, in front of Europe’s perceived technological superiority. Different life styles and worldviews that did not conform to the standards of agricultural productivity and technological efficiency that had allowed Europe to overcome the medieval age were deprived of their legitimacy to exist by using violence dressed as liberal legality. The discourse of modernity justified colonial genocide in Australia, Africa and South America: the “end” of economic growth justified plundering and dispossession and soon the machinery of death began to emerge in slave plantations. Entire populations of human beings were dehumanised and excluded from the rule of law and, as Michel Foucault argues in The Will to Knowledge, the first volume of The History of Sexuality, racism became a technology by which the right to death was exercised by judicial agents that arrogated themselves the right to define law and, at the same time, to arbitrarily exclude the “other” from the rule of law.

candlelight vigil in Oslo

In the 19th century, racism was institutionalised within nation-states, that ascribed European peoples with essentialised ethnic, linguistic, geographical and historical features, as if cultures were isolated and bounded entities. The construction of the non-European “other” (e.g. the Arab, the Hindu) as irrational, passion-led was a necessary step in the civilising process of killing and colonial expropriation: the perception of the “other” as a threat or dangerous mysterious entity enabled their dehumanisation and justified the massive taking away of lives. Again, the appropriation of the natural resources of other peoples in foreign lands (the irrational) had to be rationalised. As I mentioned before, it is the European nation-state that creates and defines law and lawlessness in order to remove any obstacle on the road to economic growth. This is a far-right ideology, the same ideology endorsed by Breivik: as Ibrahim Hewitt argues, “the notion of Europe’s and Europeans’ racial superiority – giving cultural credibility to the far-right – gave rise to the slave trade and the scramble for Africa leading to untold atrocities against “the Other”; ditto in the Middle and Far East”.  Seen from this perspective, the rhetorical stance of Breivik’ anti-Muslim view is nothing new under the sun. As we have seen, the idea that Europe is being “occupied” or “conquered” by hordes of “barbarous” Muslims is well rooted in the European consciousness; and far from disappearing, it can be found in more recent literature such as Samuel Huntington’s The Clash of Civilizations, where the cultural features of a community of almost 100 million people is reduced to a number of stereotypes.

“The pursuing of geopolitical interests across the world by European nations (and non-European as well) requires the implementation of spaces excluded from the rule of law, as in the West Bank and Gaza, where human beings converted into homines sacri can be routinely and massively killed”.

The “rationalised” irrational logics of the slave plantation, the Bantustans in South Africa, the Nazi concentration camps and the present day prison state of Gaza or Guantanamo, the wall in the West Bank and in the US Mexican border or the fence in the North African city of Melilla are physical metaphors of the mental barriers of many Western countries. The economic system that governs our lives requires the constant fabrication of states of exception, in cultural and physical space. The pursuing of geopolitical interests across the world by European nations (and non-European as well) requires the implementation of spaces excluded from the rule of law, as in the West Bank and Gaza, where human beings converted into homines sacri can be routinely and massively killed with the legitimation of Israeli law and probably, with the legitimization of theories like Huntington’s.

Are Breivik and fellow extremists aware of the absurdity of their claims? How can they not possibly see or at least have a hint that migratory movements in this globalised world are the consequence of military conflict, hunger, poverty mainly caused by neoliberalism, which is a perpetuation of the very same capitalist economic system that has generated the same dynamics of irrationality (the serial, industrial calculation of death and human exploitation) in the name of economic efficiency? Why is it that racism and the luring appeal of “the motherland” remained alive and well, taking hold of more more European ideological mindsets? We educate our children to be efficient and successful in the same kind of society and economic system in which the (extreme) right wing has felt most comfortable. I do not know of any school where the colonial period of European history is honestly taught from the standpoint of its victims. Rather, education in European schools is mostly Eurocentric and multiculturalist, which has been conceived as the mere unarticulated juxtaposition of cultural atomistic entities, without contributing to erase the walls of otherness between European and non-European citizens. Ignorance breeds hatred and only this can help us understand the barbarous irrationality of Anders’ actions. It is hard to believe that, 75 years after the Holocaust, ignorance and racial stereotyping is still fomented and legitimated by the media, shaping the opinion of a significant segment of the European population who uncritically accept barbarity and irrationality as a normal and acceptable discourse. As long as we are trapped in the vicious circle of instrumental rationality that places efficiency and economic benefits above moral and ethical principles, we are prone to repeat the same mistakes and we will never understand why an individual can decide on its own the killing of other human beings. Like George Bush’s government decided unilaterally the massive killings of Iraqis for geostrategic, instrumental reasons, just like the International Monetary Fund pack of privatisation measures sparked the seed of nationalist, ethnic hatred in Yugoslavia during the 1990’s for the instrumental purpose of extending neoliberalism in the region.

Finally, I must admit that recalling Angela Merkel and James Cameron’s words certifying the death of multiculturalism a couple of months ago, using a nationalist rhetoric that is not far at all from one of the points in Breivik’s extremist agenda, supports my claim that still in the 21th century, politicians have not learned anything about our most recent past. The discourse of the nation as an homogeneous entity (an idea that is not supported by facts) continues to generate and perpetuate the very same irrational mental barriers that have driven Europe to its darkest times. As I write this article and read the news, what I find is a disheartening display of evidence that something is very wrong in our European societies: the English Defence League blames the Norwegian government for the attacks, most media headlines and governments have claimed, without a single fact, that the attacks were caused by Islamist militias, the perpetrator is not a defined as a terrorist but just a lunatic killer, avoiding any reference to its Christian supremacist views, defying all logics….isn’t all this irrational and barbaric, yet it’s part of our everyday life? Perhaps in Europe the fine line between rationality and irrationality is not clear as rationalising the irrational is deeply engrained in our history. As long as long Europe looks itself in the mirror and confronts the origins and consequences of its own actions, barbarity and irrationality will continue to undermine the prospect of a better and more just society for everyone.

Antonio Cuadrado-Fernandez is an independent researcher who obtained his PhD in postcolonial literature in the School of Literature and Creative Writing at the University of East Anglia, where he has taught literary theory, Ecopoetry and Catalan language. His research focuses on the relationship between art and biodiversity, cultural politics, philosophy of mind and cultural/human geography. He also loves progressive rock, growing vegetables and all kinds of coffee. He is a freelance translator, Spanish and Catalan Tutor and enjoys volunteering for the U3A group teaching Spanish to elderly people in Norwich.

Antonio has already contributed to the OISC project writing about the Spanish uprisings.