Human Rights and the Reaction to Terrorism

Schabas, William

59 Advocate 905. The lawyers Weekly Vol. 21, No. , 21 October 5, 2001

The terrorist acts of September 11 may well have been an attack on democracy, as George Bush, Tony Blair and others asserted, but they were no threat to democracy. Democratic regimes have survived far worse. It is the reaction to terrorism that destroys democracies.

Modern democracies have perfectly We track them down, catch adequate justice systems for dealing with terrorists.them, bring them to trial and impose fit punishment. That is what the US and the UK did with those responsible for the Lockerbie crash, and for the embassy bombings in Nairobi and Dar es Salaam. It is what the UN is doing for those accused of genocide and crimes against humanity in the former Yugoslavia and Rwanda.

How much more healthy it is for democracy that Milosevic be judged by an international court rather than murdered by a cruise missile aimed at his home. As for the two Lockerbie defendants, one was acquitted by Scottish judges earlier this year. Had the advocates of assassination and summary execution prevailed in that case, an innocent man would have been killed in the name of democracy’s war on terrorism.

Some American politicians now argue that criminal justice is inadequate because the events of September 11 were an “act of war”. But according to international law, we must know what State committed it. A group of individuals, even numbering in the hundreds, cannot commit an “act of war”.

Perhaps those who harbour terrorists may themselves be accomplices in an “act of war”. But let us remember the last time this bold claim was made, in 1914, when Austria-Hungary declared war on Serbia because a Serb nationalist had assassinated its archduke. It unleashed a cascade of belligerent declarations justified by an earlier equivalent of article 5 of the NATO treaty.

We now look back in horror and bewilderment at how an overreaction to terrorism, in the name of punishment and retribution, provoked a chain of events that ultimately slaughtered an entire generation of European youth.

The anger and even the thirst for vengeance of the victims and their families can well be understood. But any act of reprisal that takes civilian casualties or is directed against civilian objects is quite simply forbidden by international law. It is a war crime. To the extent reprisals are allowed at all, they must target purely military objectives.

The US seeks sympathy for the thousands of innocent victims of this tragedy, and they have it. Our hearts have been broken to see the agony of the bereaved relatives, and an unbearably sad hole in a beloved skyline. But international solidarity should not become a pretext for promoting a US political agenda that has little to do with catching the perpetrators and preventing future crimes.

Above all, if measures are to be taken in the name of protecting democracy, there can be no room for double standards. Only two years ago, in another context, the US argued that a civilian office building in Belgrade was a legitimate military target because it housed a television station. The US justified the resulting deaths of civilian office workers as “collateral damage”. If those responsible for attacking the World Trade Centre are ever brought to court, they may invoke this precedent. The scale of the killings was different in Belgrade, but the principle is barely distinguishable.

Let us recall, again and again, that civilians must be spared in any conflict. The right to life is the most fundamental of all human rights. The right to life of thousands of innocent civilians in New York City and Washington has been egregiously violated. But that same right also belongs without exception to civilians in Belgrade, Baghdad and Kabul.

Professor William A. Schabas, director, Irish Centre for Human Rights, Galway. Professor Schabas is a member and a director of Lawyers’ Rights Watch Canada (LRWC), a committee of Canadian lawyers promoting the rule of law and human rights internationally. LRWC can be contacted at: