
Brussels was the venue for a very important human rights conference
this past week, but it took place in an academic setting, out of the
spotlight but hopefully not entirely unnoticed.
ULB’s October 20 conference, “Terrorism Lists, Executive Powers, and Human Rights,” organized by the European Centre for Constitutional & Human Rights” (ECCHR),
aimed very high. It gathered internationally-known jurists from
academia and the human rights community, but also “practitioners” from
both sides of the bar.
The day-long program started with a debate, Gilles de Kerchove, the EU Counter-Terrorism Coordinator versus Mark Muller QC, Chair of the prestigious UK-based Bar Human Rights Committee (BHRC).
De Kerchove garnered general admiration for his willingness to appear
before a generally critical audience, before which speaker after
speaker denounced the politicization of justice represented by the
widespread creation, post 9/11, of no-fly lists. Muller stressed the
disproportionate impact on open exile groups, whose freedom of
expression has been hard hit by the blacklisting by EU member states,
often simply copying each other’s lists, or worse, taking verbatim
“toxic” lists coming out of the crusading Bush White House.
Kafka in Canada
“Kafkaesque” was used more than once to describe travesties, not of
justice, but of what de Kerchove called “administrative procedure.”
Those two chilling words have condemned people to much more than
getting bumped from flights. In the case of Sudanese-Canadian Abousfian
Adelrazik, it resulted in exile, torture, and brushes with death,
before concerted legal, civil disobedience, press, and ultimately
domestic political pressure shamed the Canadian government into
granting a passport to one of its own citizens. “A black man, in a
black site, on a black list,” is how Professor Amir Attaran
of the University of Ottawa described Abdelrazik, who only escaped
death because his case went beyond the courts. He had fallen into the
black hole of the black list: “too innocent to charge, too guilty to
fly.”
Such a gathering of legal brainpower would not be so rash as to
condone terrorism, indeed one speaker denounced terrorism as one of the
worst crimes against human rights. But the “craven arbitrariness,” as
Attaran called blacklisting, risks subverting separation of powers and
the rule of law, through extending and generalizing states of emergency.
“Proscription regimes,” as they are referred to in legal circles -
black lists or no-fly lists if you will - give inordinate power to
intelligence agencies, and have led to mistakes, misinformation, and
deliberate disinformation changing (and ending) lives of sometimes
innocent people. Blacklisted people wind up living a sort of non-life,
deprived of means of earning a living, or even conducting basic
economic activities (ever try to live without money?).
Remember, we are sometimes talking about people whose only crime was to
oppose dictators in their home countries, often quite peacefully. And
once on Country A’s blacklist, it is extremely difficult - even when
“cleared” - to be removed from those of Countries B through Z.
How Terrorism Ends (hint: not through war)
One of the most potent arguments opposing the wholesale, and
sometimes unquestioning, inclusion of individuals and movements on
blacklists came from Oliver Wils, the Director of Berlin-based NGO Berghof Peace Support, active in conflict resolution. Wils cited (as did the US Congress) a 2008 RAND Corporation study How Terrorist Groups End:
The evidence since 1968 indicates that most groups have
not ended due to military pressure but because (1) they joined the
political process or (2) local police and intelligence agencies
arrested or killed key members and that few groups achieved victory
within this timeframe.
The ending of most terrorist groups requires a range of
policy instruments, such as careful police and intelligence work,
military force, political negotiations, and economic sanctions. Yet
policymakers need to understand where to prioritize their efforts with
limited resources and attention.
The RAND study, noted Wils, shows that only 7% of terrorist groups
that operated in the last four decades were put out of action by
military force.
The Obama Administration wants to apply “smart power” solutions to
problems exacerbated by the Bush Administration’s kinetic “War on
Terror.” This week’s conference on the dangers of blacklists
highlighted a number of key issues which should be of interest to smart
American negotiators, and to European policy makers. With increasing
focus on diplomatic solutions, will the Obama Administration pause
before acceding to some dictator’s demand to put a legitimate
opposition movement - even a liberation movement - on a black list? How
many “peace processes” have come to a screeching halt, because one of
the parties - The Outs - are declared “terrorists” by The Ins?
This post first appeared in Blogactiv.eu.