Strife Series on Counterterrorism and Human Rights, Part I – Countering terror in a liberal democratic state: a case of norm contestation

By Lenoy Barkai

European Court of Human Rights in Strasbourg, France
European Court of Human Rights in Strasbourg, France

Counterterrorism strategies around the world challenge human rights through breaches of privacy, arbitrary detention, dubious judicial procedures and in the worst cases – torture. What is it about terrorism that pushes the liberal state over the edge? And is its capitulation to the pressures of terror indicative that liberal ideas and internalised norms run only skin deep? When faced with terror, do states reveal themselves to apply brute-force and be power-driven realists at heart?

Counterterrorism challenges self-imposed human rights standards

According to the ‘spiral model’, human rights norms get internalised by violating states through a step-by-step process[1] as they progress chronologically and unidirectionally along five phases of socialisation. Violating states begin by denying both the violation itself and the legitimacy of universal human rights norms. As pressure by domestic and transnational human rights advocacy networks escalates, however, such states begin to make concessions. These are initially cosmetic and tactical in nature, but once even marginal change takes hold, the model predicts an inevitable progression towards accepting and ultimately fully internalising universal human rights norms. According to this model, the probability of state recidivism is highly unlikely.[2]

Nevertheless, it appears that when it comes to fighting terrorism, even the most liberal of democracies have sought to (re)test the limits of their self-imposed human rights standards. We find instances of human rights being loosely interpreted, subordinated to other rights (security, freedom) or even brazenly ignored. How is it that terrorism challenges the liberal democracy’s most entrenched ideals?

States have attempted to imbue their counterterrorism strategies with a preventative logic in order to prevent violent attacks from happening in the first place. When applying a criminal-justice model, court-admissible and sufficiently damning evidence needs to be collected at a preliminary stage of the investigation. Such preventative logic means capturing terrorist suspects at the point when they are only planning to build the bomb, not in the moments before they self-detonate in a crowded marketplace. But this same logic serves to highly incentivize snooping, internment, loose legal grounds for widespread arrest, and even, in the most drastic cases, torture. When applying a war model, a more indiscriminate military response may be rationalised. But faced with a terrorist organisation’s adaptive strategy and embeddedness within the very fabric of society, the military becomes a blunt object. The distinctions between combatant and non-combatant, between legitimate and illegitimate targets, as seen through the lens of the war model, becomes blurry and uncertain.

The use of preventative logic does not, however, presume that human rights violations are necessary. For instance, preventative logic can be the driving force behind starkly different counterterrorism strategies to similar issues – such as strengthening youth community centres in at-risk areas on the one hand and waterboarding on the other.

However, more problematic is when a different sense pervades counterterrorism strategies. It arises commonly in the aftermath of an attack when the public reacts with incredulity: How was this not prevented? How could the authorities not see this coming? What was impossible to predict from a particular point (t-1) appears crystal clear at a later point (t), i.e. in retrospect, when the plot is traced backwards from execution to conception. Often, intelligence agencies are blamed for non-provision of information, or for not acting on such information. In brief, what the public here demands of the authorities is a pre-emptive logic. But pre-emption is a creative logic. It demands imagining not only where, when and how an attack is probable (as with prevention), but where it is merely possible. Thus, the space and depth of a pre-emptive investigation are almost limitless. And the violation of human rights moves from the realm of incentive (where a choice is involved) to necessity. For Marieke de Goede, adopting a pre-emptive logic demands ‘a world of limitless resources in which each and every potential target could be investigated and disabled.’ And yet this world, she notes, ‘is inappropriate in a democratic society.’[3] This precisely reflects the strain around government snooping and individual and societal privacy measures.

Does pre-emption necessitate illiberal practices?

The proliferation of human rights violations when it comes to countering terrorism illustrates the ongoing norm-contestation inherent to identity formation. Terrorism and counterterrorism, after all, are intrinsically relational phenomena. Each action elicits a reaction that in an iterative process defines and redefines the actors and goals involved, setting them up in a chain of strategic interaction. Alexander Wendt contends that with each interaction, ‘actors are also instantiating and reproducing identities – narratives of who they are – that in turn, constitute the interests on the basis of which they make behavioural choices.’[4]

Thus, the emergence of human rights norm violations by liberal democratic states does not necessarily reveal ‘their true essence’ so much as the manifestation of contested pressures on a continuously reproduced identity. The ‘spiral model’ logic is perhaps better understood as running backwards and forwards, vertically and horizontally. If state identities are constantly in a process of (re)formation, human rights norm violations need not become concretised as the new normal.

Human rights violations in the face of a terrorist threat are not a natural given. But similarly, human rights advocacy cannot afford to become complacent. In order to perpetuate, human rights norms need to be continuously reproduced. Counterterrorism strategies have demonstrated that, given the right pressure combinations, internalised norms are retractable. The logic of prevention is imbued with incentives to violate human rights. But in each case there is a choice involved – a choice to apply a preventative logic within the bounds of universal human rights norms, a choice not to succumb to the pressures of adopting a pre-emptive counterterrorism approach which by definition demands their violation. That choice is determined by contestation from domestic public pressure, from international institutions, from transnational networks. If the ‘spiral model’ has shifted into reverse, the capacity exists to propel it back.


Lenoy Barkai (@LenoyBarkai) is an International Relations MA candidate at King’s College London. She holds a Bachelor Degree (Hons) in Foreign Languages, Literature and Music and is a CFA Charterholder. Her research interests include political violence and human rights, with a focus on European security and foreign policy. 


Notes:

[1] Risse, T., Ropp, S. & Sikkink, K. eds. (1999). The power of human rights: International norms and domestic change. Cambridge: Cambridge University Press, pp.1-38.

[2] Shor, E (2008) Conflict, terrorism, and the socialization of human rights norms: The spiral model revisited. Social Problems. 55(1) 117-138. Available from DOI: 10.1525/sp.2008.55.1.117.

[3] de Goede, M. (2014) Preemption contested: Suspect spaces and preventability in the July 7 inquest. Political Geography. 39. 48-57. Available at: http://dx.doi.org/10.1016/j.polgeo.2013.08.001

[4] Wendt, A. (2003) Social Theory of International Politics. Cambridge: Cambridge University Press.


Image Source: https://commons.wikimedia.org/wiki/File:European_Court_of_Human_Rights_Court_room.jpg


 

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