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Human Rights and the Campaign Against Terrorism

March 14, 2002

Kenneth Roth

Introduction

JOANNE MYERS: I would like to welcome our guest, Ken Roth, the Executive Director of Human Rights Watch. He will be talking about Human Rights and the Campaign Against Terrorism. In the attempt to defend our country against terrorists, questions about how far the Bush Administration can and should go in its pursuit of these evildoers have raised new and challenging questions for human rights advocates.

Many have reacted with outrage, saying that the sweeping powers which the U.S. wants to employ to counteract terrorism are compromising basic principles of human rights and our fundamental freedoms. Furthermore, since September 11th, new fears have been raised questioning whether the anti-terror campaign led by the United States will inspire opportunistic attacks on civil liberties throughout the world and worsen an already precarious human rights environment.

One has only to read about recent measures taken throughout the Middle East, North Africa, Russia, and China to realize the concerns that human rights advocates have as they witness governments in every part of the world silence their opponents, no matter what their political affiliations, all under the cloak of a fight against terrorism.

As human rights issues are put to the test, there is no one better to discuss this topic than our guest this morning, for few individuals in this field have earned the worldwide recognition and respect that Ken Roth has. In the nearly ten years that Ken has been the Executive Director of Human Rights Watch, the organization has nearly tripled in size while greatly expanding its geographic reach and adding special projects, such as those devoted to refugees, children's rights, and academic freedom. Under his leadership, Human Rights Watch continues to address accountability for gross abuses of human rights as it monitors human rights policies of the United States and the United Nations, and standards governing military conduct in time of war.

Before joining this largest U.S.-based international human rights organization, Ken was a federal prosecutor for the U.S. Attorney's Office for the Southern District of New York and also worked on the Iran contra investigation in Washington.

He has written extensively on a range of human rights topics in publications such as The New York Times, The Washington Post, Foreign Affairs, The Nation, and The New York Review of Books. In addition, he also appears on major media outlets such as CNN, PBS, the BBC, or NPR and testifies before Congress.

Remarks

KENNETH ROTH: I'd like to talk briefly this morning, and then have more of a conversation, about what the campaign against terrorism should really be about.

Most of us after September 11th understood that any effort to defeat terrorism has to have a very important security component, and we all felt "let's do what you can to stop further attacks and to try to bring those responsible for September 11th to justice."

But what was overlooked, particularly in the initial reaction, is how important it is to see the campaign against terrorism also as a campaign for human rights. I believe that is a necessity if in the long term this campaign is going to be successful. Let me explain briefly what I mean by that and the ways in which the U.S. in the global response to terrorism has in some important respects fallen short of making the fight against terrorism one that involves both security and the active promotion of human rights.

What's wrong with attacking the World Trade Center? Why is that something that we call terrorism? At an instinctive level, we say, "You're just killing innocent civilians." But if you ask, "What is the element of international law that makes that a crime?", it is the Geneva Conventions or the body of international human rights and humanitarian law that explain that regardless of your cause, regardless of whether you see yourself at war, there are certain lines you cannot cross, including one that says you can never deliberately attack civilians.

So in that very straightforward sense, reaffirming a public sense of what's wrong with terrorism requires reaffirming the importance of human rights, building a culture of human rights, a culture where people don't believe that the ends justify the means, where they believe that there are certain limits that legitimately are placed on political or military conduct. Whatever you believe about anything else, the bottom line should be you never deliberately kill civilians, the fundamental principle of human rights and humanitarian law.
The campaign against terrorism should be understood as a campaign for human rights in another respect as well, which is that if you look at the governments or the countries that are likely to give rise to violent extremism, they tend to be countries where there are significant grievances—economic, political, social, religious—and the usual options for political change that we take for granted in a democracy are closed off.

In a place like Saudi Arabia, there is no option of setting up a local NGO to advocate your particular cause. There is no opportunity to set up a political party. And if there is no opportunity even to vote on your government, you can't take to the radio stations and criticize the government. In such a situation, the options available are usually acceptance, reluctant acceptance, exile, or the resort to violent opposition.

While obviously not everybody becomes a terrorist, predictably some number of people will think that their grievances are so severe and their opportunities for peaceful change so restricted, that the option of terrorism makes sense to them.

It is not an accident that the nineteen alleged hijackers of September 11th came from countries like Egypt or Saudi Arabia, where political options are few. Nor is it a surprise that a country like Uzbekistan breeds the INU, the rebel group named by President Bush in his first post-September 11th speech.

If the campaign against terrorism is to be one that not only attacks particular terrorists but also tries to go to the root cause of terrorism, it is important to look at these closed countries and begin to press for the creation of pluralism, or real political opportunities there.

What has the response been since September 11th? On this front it has been disappointing in many respects.

We saw just after September 11th an outbreak of opportunism around the world. The most ridiculous case was that of Robert Mugabe, who while he was busy locking up journalists explained that this was to help fight terrorism.

Putin jumped on the anti-terrorism bandwagon as offering a new explanation for why he had to not only fight a Chechnyan insurgency, fair enough, but used the means of torture, disappearance, and summary execution as his principal tools.

China suddenly realized that it had a new excuse for cracking down on Uigur culture in Xinjiang Province—this was now really going after an al-Qaeda ally, not trying to repress the legitimate cultural aspirations of a Muslim minority in the country.

You saw similar efforts in Egypt, where the government came out and said: "You may have been criticizing us for our summary military trials all these years, but these are actually the best way to fight terrorism, and I wish you would now go home and shut up."

In Israel, the Defense Minister bragged, "We killed"—at that stage what seemed like a large number, fifteen or so—"Palestinians in the matter of a couple of days, and nobody noticed because we're fighting terrorism."

The West response, particularly at the outset, wasn't great. The most egregious case was when German Chancellor Schroder and Italian Prime Minister Berlusconi were at a joint press conference and suddenly said that there's a need to reassess Russian conduct in Chechnya, which meant nothing other than to back off the criticism of their horrendous human rights record. A real test as to whether they're going to stick to that revisionism will come up next week when the UN Human Rights Commission meets in Geneva and the biggest issue on the agenda is whether, as the Commission did in the last two years, it will go forward and condemn Russian atrocities in Chechnya.

Similarly, in the U.S. Government, many of you know that Congress mandates the State Department each year to produce a report about governments that violate religious freedom. Under any objective assessment, the man who visited the White House yesterday, Uzbek President Karimov, should have been at the top of that list, because in Uzbekistan if you have the audacity to want to pray in a mosque that is not controlled by the government, you risk torture and imprisonment for fifteen or twenty years. If you dress with a beard or in the garb of a pious Muslim, you are assumed to be a sympathizer of the rebel IMU and face similar treatment. But Uzbekistan wasn't listed as a country of concern. Objectivity was thrown out the window because Uzbekistan was an important front-line state with respect to Afghanistan.

Now, the Administration did a little bit better yesterday. Powell stressed that U.S. security assistance to Uzbekistan has to include a parallel commitment on Karimov's part to political and economic reform, but it was all at a fairly vague level. The U.S. didn't push for concrete improvements before they granted Karimov the audience with the President yesterday.

So he got away with tokenism. He registered one human rights group—the first time ever, a breakthrough in a sense—but one independent organization was registered. He did nothing about the 7,000 people who are in prison because of their religious belief. He had offered an amnesty, but it was conveniently for people who are sentenced to less than six years, and most of the religious believers are sentenced to far more than that. And even those who were offered release had to recant their beliefs. So this was the kind of tokenism that the U.S. settled for in granting Karimov this great victory of a forty-five-minute meeting with President Bush.

You see a similar lax attention to human rights in the West's reaction to places like Egypt or Saudi Arabia, where human rights are just not seriously on the agenda. No one at this stage is seriously pushing the Saudi Government to open up.

Much of the rationale, particularly in the Middle East, is fear that if you do try to open up these societies, you will lead to an Islamic victory. "If we do force Saudi Arabia to open up, we are going to be faced with the Feis victory in Algeria in 1992, or we will have a Khomeni overthrow of the Shah, as happened in Iran." That is a dilemma that the leaders of the Middle East love to present. By preventing the emergence of any political alternative or a political center, they create an artificial dichotomy that then makes the West choose between the autocrat they know or the feared violent extremists that they don't know.

This is a false dichotomy. Countries in the Middle East that have permitted more opening have not had a problem of extremism winning. You can see this in Bahrain, Jordan, Kuwait, Morocco, and Turkey. It is possible to have democracy in the Islamic world.

But that's not a message that the Saudi or the Egyptian Government wants you to hear, and it's one that the U.S. and European governments have not been actively pressing. If their goal is to fight terrorism to prevent the emergence of the kind of violent opposition that many people in the Middle East rationally feel is the only alternative, this is very short-sighted.

I would like to conclude by talking about the example that we are setting in terms of our own observance of human rights.

First, the military commissions that President Bush announced by military order in November. The Pentagon claims that it is working on regulations that will fix the original order. I was told at a meeting with Condi Rice on Friday that we will get 95 percent of what we asked for. But they haven't published these regulations; and are not even sure they will publish them.

Now we have the proposal to try people in tribunals that could be entirely secret, admit secret evidence, where there is no right to confront the witnesses or the testimony against you, no guaranteed right to an attorney or against self-incrimination, or against tortured testimony being presented. A mere two-thirds of the three judges can vote to convict or sentence to death. There is no independent judiciary, the officers are in the military chain of command, so you have Bush or Rumsfeld serving as both prosecutor and judge. There is no appeal to an independent court. And it's unclear whether all of these problems will really be fixed.

Plus, while there is a tradition of military commissions being used for people arrested on the battlefield, the Bush proposal is for these commissions to be used for anybody caught in the campaign against terrorism. You could be an alleged terrorist caught in Germany and be whisked before these military commissions, even though there is a perfectly viable court system in Germany or here that could try you. It's not as if in the exigency of the battlefield you have no choice but to just convene a few military officers and do the best you can under those urgent circumstances.

So this is a real stretch on the part of the Bush Administration, which fortunately has been widely criticized, but it is not yet clear whether they are going to make the necessary amendments.

This invites other countries to replicate this shortcut with due process. Indeed, we even saw in the State Department's country human rights report, that was put out a couple of weeks ago, that traditional criticisms of people like Egypt for their military commissions had to be softened because of the obvious hypocrisy problem.

This is one area where the U.S. is hardly setting an example in showing that the ends do not justify the means, that we in our legitimate fight against terrorism are not necessarily going to adhere scrupulously to human right standards. That is not a message you want to send to other people who think that their cause is just and are willing to make their own transgressions of human rights standards in fighting that cause.

Second, the Guantanamo issue. I don't want to focus here on the conditions of detention. People were being perhaps sent astray by the initial photographs of the hooded and handcuffed prisoners. As far as we can tell, the conditions are not wonderful, but they are adequate under the circumstances.

But the real issue is the U.S. Government's absolute refusal to follow the Geneva Conventions and apply them to these detainees. If you read the Geneva Conventions, they actually are not terribly complicated. The Administration has benefited from the fact that most people haven't read them, but the relevant sections are very short and straightforward.

They say in relevant part that there are two avenues for becoming a prisoner of war.

If you are an irregular force—not a member of an army, but an irregular band like al-Qaeda—you then must meet a four-part test: 1) bear your arms openly so that the other side can see that you're a soldier and not disguised as a civilian; 2) wear a uniform that distinguishes yourself from the civilian population; 3) have a responsible command that will tell you about the Geneva Conventions and urge you to follow them; and abide by the Geneva Conventions. Al Qaeda fails those tests, and no one is claiming that the bulk of the al Qaeda members should be treated as POWs.

But the Taliban face a different test. The Geneva Conventions say that if you are a member of the regular armed forces of a government—and the Taliban were the Afghan armed forces—you don't need to meet that four-part test; you are automatically a prisoner of war. The reason for that is pretty straightforward: The governments of the world decided that they didn't want to give their enemies in the middle of war an opportunity to start second-guessing whether their soldiers should be treated as POWs.

You can imagine how the U.S. Special Forces react. They're running Afghanistan hardly wearing uniforms that distinguish themselves from the general population—in fact, just the opposite.

Under the Bush interpretation, you must apply the four-part test not only to irregular forces, but also to regular armies. Under the Bush test, the U.S. Special Forces would not be POWs because they are not wearing their uniforms openly, even though that is not what the Geneva Convention says.

Similarly, if you imagine a U.S. pilot shot down in Iraq, Saddam will say, "You were violating the laws of war, and under the Bush standard, that would be grounds for denying a member of the regular armed forces POW status," even though under the Geneva Conventions that's not one of the tests.

Rumsfeld and Bush have ripped up the Geneva Conventions in Guantanamo, and said, "We're not going to follow the clear rules. These terrorists don't deserve to benefit from these rules."

But in their process, they are, first of all, endangering U.S. and Allied troops around the world; and they are also once more sending the message that for a worthy cause you don't have to follow human rights rules. And that's not the message that we want to be sending to the rest of the world at this stage.

Finally, I want to mention the International Criminal Court. At a moment when the United States is asking the rest of the world to help in this very important law enforcement effort, it is considering launching a campaign that would actively undermine an international law enforcement institution designed to address the worst human rights crimes imaginable: genocide, war crimes, crimes against humanity.

The reason this is coming to the fore is that the treaty to establish the International Criminal Court requires ratification by sixty governments. We have fifty-five as of this moment, and will have sixty within about six weeks. So suddenly the Bush Administration is facing pressure that they detest because, in principle, it could apply to America. It was designed to be a universal court. And while, for the most part, it only applies within the territories or against the nationals of people who have ratified the treaty, if an American is fighting in the territory of a government that has ratified the court, an American could be prosecuted. Just as they could be prosecuted in the local courts of that country if they commit a crime, so that country can delegate the responsibility to the International Criminal Court in the case of the most heinous human rights crimes.

This drives Washington crazy. They cannot abide the thought that an international tribunal might try an American. And so the Bush Administration right now is seriously considering whether to take President Clinton's signature on the ICC Treaty and erase it, something that has actually never been done. If they do so, it would probably be part of an effort to undermine or attack what is a huge advance in the cause of international justice and human rights. This decision has not been made yet, it is actively under review, but there will be pressure for them to make it imminently because the court is about to be up and running.

I mention this because it sends the signal that we're for international law enforcement, but only of a certain sort, and that is not the kind of principled support for international human rights standards that is absolutely essential if we are going to undermine the culture that is willing to countenance attacks on civilians as a legitimate form of politics or warfare.

Question & Answer

QUESTION: If we as a United States of America are going to impose the standards and the values of this country on others, are we then violating their rights? The social mores, system of law, in this country is unique to the United States, and not to other countries. If you look at the Koran, it states not to kill civilians. So, therefore, how do we apply our standards of law and values to any other organization? Where do we establish lines of demarcation and by whose definition do we proceed in this campaign against terrorism?

KENNETH ROTH: First, just as a practical matter, the standards that Human Rights Watch works to uphold are standards that are written in international law and quite broadly ratified. At this stage, particularly the very basic ones of free expression and association are beyond the point of being theoretically controversial. Most governments have formally subscribed to them, even though they don't necessarily abide by them.

You are absolutely right that those concepts are found in many cultures around the world. One can certainly cite the Koran or a number of other religious texts finding support for different elements of human dignity that are at the heart of the human rights cause.

In terms of what exactly we do, though, the human rights movement does not impose values on people. Rather, in a place like Saudi Arabia, the government is actually imposing a certain form of governance, a certain power structure, on its people. If the people were to, after appropriate opportunity to debate, elect a form of government like that, that would be very different from being denied the opportunity to have any say.

Similarly, if you take the rights of women, which is often the most critical issue in the cultural clash, if women choose to wear the burka or to lead a more domestic life, fine, nobody is imposing a certain lifestyle on them. But it's the opportunity to choose one way or the other that is where the human rights movement comes in. The Saudi Government is right now denying women those choices.

So our aim is not to impose values, but rather to create opportunities for people to make that option themselves.

QUESTION: What kind of safeguards are there in place with regard to the criminal court to ensure fairness.

KENNETH ROTH: The Rome Treaty, the guiding treaty for the International Criminal Court (ICC), actually has many legal safeguards. It has every procedural right recognized in international law. Not a jury trial—that is a very Anglo-American concept—but independence of judges, access to lawyers, right to confront witnesses, opportunity not to be forced to testify against yourself, multiple appeals and judicial checks on prosecutorial action. If you look at the full gamut of rights set forth in the International Covenant of Civil and Political rights, they are all in the ICC Treaty.

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