Human Rights, the Bush Administration, and the Fight against Terrorism:
The Need for a Positive Vision

By Kenneth Roth, Executive Director, Human Rights Watch

This essay appears in Lost Liberties: Ashcroft and the Assault on Personal Freedom, published by the New Press. Order here.

• Human Rights and the Challenge of Terrorism
• Treatment of Terrorist Suspects
• Bilateral Relations
• International Fora
• Consequences for the Campaign Against Terrorism
• Possible War in Iraq
• Conclusion

Leadership requires more than a big stick and a thick wallet. It also requires a positive vision shared by others and conduct consistent with that vision. The campaign against terrorism is no exception. The United States, as a major target, took the lead in combating terrorism. But the global outpouring of sympathy that followed the attacks of September 11, 2001 soon gave way to a growing reluctance to join the fight and even resentment toward the government leading it.¹

How was this good will depleted so quickly? In part the cause was traditional resentment of America and its role in the world — resentment which was softened only temporarily by the tragedy of September 11. In part it was opposition to U.S. policy in the Middle East. And in part it was growing disquiet that the means used to fight terrorism were often in conflict with the values of freedom and law that most people embrace and that President George W. Bush said the United States was defending.

Despite its declared policy of supporting human rights, the Bush administration in fighting terrorism refused to be bound by human rights standards. Despite a U.S. tradition at home of government under law, the administration rejected legal constraints, especially when acting abroad. Despite a constitutional order that is premised on the need to impose checks and balances, the U.S. government seemed to want an international order that placed no limits on a nation’s use of power save its own avowed good intentions. As I write at the end of 2002, these attitudes are jeopardizing the campaign against terrorism. They are also putting at risk the human rights ideal.

This is hardly to say that the United States is among the worst human rights offenders. But because of America’s extraordinary influence, the Bush administration’s willingness to compromise human rights to fight terrorism set a dangerous precedent. Because of the leadership role that the U.S. government so often has played in promoting human rights, the weakening of its voice weighed heavily, particularly in some of the front-line countries in the war against terrorism, where the need for a vigorous defense of human rights was great.

Human Rights and the Challenge of Terrorism

Terrorism is antithetical to human rights. Since targeting civilians for violent attack is repugnant to human rights values, those who believe in human rights have a direct interest in the success of the anti-terrorism effort. Yet, the Bush administration’s tendency to ignore human rights in fighting terrorism is not only disturbing on its own terms; it is dangerously counter-productive. The smoldering resentment it breeds risks generating terrorist recruits, puts off potential anti-terrorism allies, and weakens efforts to curb terrorist atrocities.

Terrorism cannot be defeated from afar. Curbing terrorism requires the support of people in the countries where terrorists reside. They are the people who must cooperate with police inquiries rather than shield terrorist activity. They are the people who must take the lead in dissuading would-be terrorists. But if they see Washington embracing the governments that repress them, they will hardly feel inclined to help. Their reluctance only increases if their entire community is viewed as suspect, as many young male Middle Easterners and North Africans feel since Sept. 11.

Clearly the United States needs to take extra security measures. But the U.S. government must also pay attention to the pathology of terrorism — the set of beliefs that leads some people to join in attacking civilians, to believe that the ends justify the means. A strong human rights culture is an antidote to this pathology, yet in too many places the Bush administration saw human rights mainly as an obstacle to its goals. Human rights and security are mutually reinforcing, yet too often the administration treated them as a zero-sum game.

Even someone as unsympathetic to human rights as President Ronald Reagan at the height of the Cold War understood the need for a positive vision. He understood that the United States could not only be against communism. It had to stand for democracy, even if at times his support was no more than rhetorical. Similarly, it will not work for the Bush administration today to be only against terrorism. It will have to stand for the values that explain what’s wrong with attacking civilians — the values of human rights.

There were hints of such a positive vision in 2002 — in prominent parts of a speech that President Bush gave at West Point in June; in part of his administration’s National Security Strategy, released in September; and in the conditions for disbursing increased international assistance (the Millennium Challenge Account), announced in November. But this rhetorical embrace of human rights has translated only inconsistently into U.S. conduct and foreign policy.

The sad irony is that for much of the past half-century, the United States was often a driving force behind the strengthening of the human rights ideal. It took the lead in drafting the Universal Declaration of Human Rights, building the international human rights system, and lending its voice and influence on behalf of human rights in many parts of the world. Often this support for human rights was inconsistent — tempered by strategic concerns and a deep resistance to applying international law at home. Yet the U.S. government could still be found at the forefront of many human rights battles, and it contributed significantly to building a global consensus about the importance of human rights as a restraint on legitimate governmental conduct.

The Bush administration, too, tried to advance human rights in places where the war on terrorism was not implicated, such as Burma, Belarus, and Zimbabwe. The administration has publicly recognized the connection between repression and terrorism, and to a limited extent tried to promote human rights in some places that were more directly involved in the fight against terrorism, such as Egypt and Uzbekistan. Yet it compromised the long U.S. engagement on human rights in three important respects.

First, in several key countries involved in the campaign against terrorism, such as Pakistan and Saudi Arabia, even rhetorical U.S. support for human rights was rare — often nothing more than the State Department’s once-a-year pronouncements in its global human rights report. The administration also showed little inclination to confront such influential governments as Russia, China, and Israel that used the fight against terrorism to cloak or intensify repression aimed at separatist, dissident, or nationalist movements that were themselves often abusive.

Second, even when the Bush administration did try to promote human rights, its authority was undermined by its refusal to be bound by the standards it preaches to others. From its rejection of the Geneva Conventions for prisoners from the war in Afghanistan to its misuse of the “enemy combatant” designation for criminal suspects at home, from its threatened use of substandard military commissions to its abuse of immigration laws to deny criminal suspects their rights, the administration fought terrorism as if human rights were not a constraint.

Third, the Bush administration intensely opposed the enforcement of international human rights law, from the International Criminal Court to more modest efforts to affirm or reinforce human rights norms. Similar exceptionalism could be seen in such actions as the administration’s rejection of the Kyoto Protocol on global warming or its blocking of efforts to strengthen the Biological Weapons Convention. This opposition suggested a radical vision of world order — a view of the superpower as unconstrained by international law. Certain influential elements in the administration seemed to view international law as an unnecessary encroachment on U.S. latitude — a set of rules to be avoided because they might in the future restrict the United States in unforeseeable and inconvenient ways. Instead, they advocated determining the proper scope of governmental conduct, if not through unilateral assertions of power, then at least through case-by-case negotiations, where America’s overwhelming economic and military strength was more likely to prevail.

But even American might has limits. Shared norms — of commerce, peace, or human rights — are needed so that most governments voluntarily abide by them. Pressure may still be needed to rein in recalcitrant governments, but an effective global order depends on most governments living voluntarily by agreed-upon rules. Even if the result is disappointing in a particular case, most governments recognize that a system of law is in their interest over the long run. But that logic breaks down if the superpower routinely exempts itself from the enforcement of international law. If shared norms give way to relations built on power alone, the world will revert to a pre-modern, Hobbesian order. That can hardly be in the long-term interest of the United States or anyone else.

The Bush administration’s neglect of human rights in fighting terrorism was visible throughout 2002 in its own treatment of terrorist suspects, its bilateral relations with other governments, and its behavior in international fora.

Treatment of Terrorist Suspects

Historically, the United States has been expansive in its compliance with the requirements of international humanitarian law (the laws of war) with regard to belligerents captured in the course of an armed conflict. For example, the United States afforded prisoner-of-war status to Chinese soldiers captured during the Korean War even though the People’s Republic of China was not a party to the 1949 Geneva Conventions. It provided POW status to many captured guerrillas during the Vietnam War. During the 1991 Gulf War, the U.S. military convened special tribunals to determine the legal status of more than one thousand captured Iraqis, as the Geneva Conventions require.

The United States upheld international standards in part out of recognition that they ultimately benefit U.S. soldiers. Needless to say, the reverse is also true — the failure to comply with the Geneva Conventions encourages noncompliance by others when U.S. servicemembers must depend on the conventions for their protection. Unfortunately, the Bush administration broke with this long U.S. tradition in its treatment of terrorist suspects and others detained in the war against terrorism.

A good illustration was the administration’s treatment of the people detained at Guant‡namo Bay, Cuba. The administration’s unjustifiably narrow reading of the Geneva Conventions effectively placed these detainees in a legal black hole where they could be kept in long-term arbitrary detention despite international prohibitions. For instance, the Third Geneva Convention provides that captured combatants are to be treated as prisoners of war until a “competent tribunal” determines otherwise.² Under the standards set out in the convention, the detainees who were former Taliban soldiers would almost certainly qualify as POWs, while many of the detainees who were members of Al Qaeda probably would not.³ But the administration refused to bring any of the detainees before a tribunal and unilaterally asserted that none qualified as POWs.

This flouting of international humanitarian law could not be explained by the exigencies of fighting terrorism. Treating the detainees as POWs would not have precluded the United States from interrogating them or prosecuting them for committing terrorist acts or other atrocities. And POWs, like other detained combatants, can be held without charge or trial until the end of the relevant armed conflict.

The administration’s refusal to apply the Geneva Conventions seemed to stem in part from its desire to minimize public scrutiny of its conduct. For instance, in the absence of criminal prosecutions, the Geneva Conventions require that all detainees, regardless of their status, be repatriated once “active hostilities” have ended.⁴ In the case of at least the Taliban detainees, that would seem to have required repatriation as soon as the war with the Afghan government was over — that is, presumably, after a loya jirga (grand assembly) elected Hamid Karzai president of Afghanistan in June 2002. But by refusing to apply the Geneva Conventions, the administration avoided making such a determination.

The Bush administration also breached the rule of law to take custody of some detainees. In October 2001, it sought the surrender in Bosnia of six Algerian men who were suspected of planning attacks on Americans. After a three-month investigation, Bosnia’s Supreme Court ordered the men’s release from custody for lack of evidence. When rumors spread of U.S. efforts to seize the suspects anyway, Bosnia’s Human Rights Chamber — which was established under the U.S.-sponsored Dayton peace accord and includes six local and eight international members — issued an injunction against their removal. Yet in January 2002, under U.S. pressure, the Bosnian government ignored this legal ruling and delivered the men to U.S. forces, who whisked them out of the country, reportedly to Guant‡namo.

The line between war and law enforcement gained importance as the U.S. government extended its military efforts against terrorism outside of Afghanistan and western Pakistan. In November, the U.S. Central Intelligence Agency used a drone-launched missile to kill Qaid Salim Sinan al-Harethi, an alleged senior Al Qaeda official, and five companions as they were driving in a remote and lawless area of Yemen controlled by tribal chiefs. The Bush administration accused al-Harethi of masterminding the October 2000 bombing of the U.S.S. Cole which had killed seventeen sailors. Based on the limited information available, the attack on al-Harethi did not seem to be an extrajudicial execution, given that his alleged al-Qaeda role arguably made him a combatant, the Yemeni government apparently lacked control over the area in question, and there evidently was no reasonable law enforcement alternative. Indeed, eighteen Yemeni soldiers had reportedly been killed in a prior attempt to arrest al-Harethi.⁵

However, the U.S. government made no public effort to justify this use of its war powers or to articulate the legal limits to such powers.⁶ Even someone who might be classified as an enemy combatant should not be subject to military attack when reasonable law enforcement means are available. The failure to respect this principle would risk creating a huge loophole in due process protections worldwide. It would leave everyone open to being summarily killed anyplace in the world upon the unilateral determination of the United States (or, as the approach is inevitably emulated, any other government) that he or she is an enemy combatant.

The appropriate line between war and law enforcement was crossed in the case of Jose Padilla, a U.S. citizen who Attorney General John Ashcroft claimed had flown from Pakistan to the United States in May 2002 to investigate creating a radiological bomb. U.S. officials arrested him as he arrived at Chicago’s O’Hare International Airport and briefly held him as a material witness. Then, instead of the Justice Department charging him with this serious criminal offense and bringing him to trial, President Bush declared him an “enemy combatant.” That designation, the administration claimed, permitted it to hold him without access to counsel and without charge or trial until the end of the war against terrorism, which may never come. With no link to a discernible battlefield, that assertion of power, again, threatened to create a giant exception to the most basic criminal justice guarantees. Anyone could be picked up and detained forever as an “enemy combatant” upon the unverified assertions of the Bush administration or any other government. At the end of 2002, this radical claim was being litigated before U.S. District Judge Michael Mukasey in the Southern District of New York.

Due process shortcuts also plagued the Bush administration’s detention of some 1,200 non-U.S. citizens whom the government sought to question regarding their links to or knowledge of the September 11 attacks. Of this group, whose number has never been fully disclosed, 752 were detained on immigration charges but treated like criminals. Rather than grant them the rights of criminal suspects, the administration used immigration law to detain and interrogate them secretly, without their usual right to be charged promptly with a criminal offense and (in case of economic need) to government-appointed counsel. Immigration detainees would ordinarily be deported, allowed to leave the country voluntarily, or released on bond pending a hearing on their case. But these “special interest” detainees were kept in jail until “cleared” — that is, until proven innocent of terrorist connections — often for many months. Through the end of 2002, none of them had been charged with a crime related to September 11.⁷

President Bush’s November 2001 order authorizing the creation of military commissions to try non-American suspects lacked the most basic due process guarantees and raised the prospect of trials that would have been a travesty of justice. In March 2002, the Defense Department issued regulations for the commissions that corrected many of the due process problems of the original order. However, the regulations still allowed the commissions to operate without even the fair-trial standards applicable in U.S. courts-martial. Defendants in such courts-martial are entitled to appeal to the U.S. Court of Appeal for the Armed Forces — a civilian court outside the control of the executive branch — and ultimately to petition the U.S. Supreme Court. But the commission regulations permit appeal only to another military panel of people who must answer to the president. That makes the president, through his surrogates, prosecutor, trial judge, and appellate judge. Especially as applied away from the exigencies of the battlefield, these compromised commissions violate the minimum legal requirement of “an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure.”⁸ If these commissions are used to try detainees who should be considered prisoners of war, and thus are entitled to the more protective procedures of a court-martial,⁹ the Bush administration would open itself to war-crimes charges.¹⁰

This pattern of abuse in the Bush administration’s own conduct sent a signal of contempt for basic human rights standards. It suggested that the administration saw international human rights standards as an inconvenient obstacle to fighting terrorism — one that was readily sidestepped — rather than as an integral part of the anti-terrorism effort.

Bilateral Relations

In its bilateral relations, the U.S. government made some efforts to promote human rights while fighting terrorism. After September 11, for example, many assumed that Washington's limited promotion of human rights in the front-line states of Central Asia would end; in fact, in some ways it intensified, especially as the war in Afghanistan subsided. It is true that the larger U.S. military presence in Uzbekistan, Kyrgyzstan, and Tajikistan associated the United States with these countries' repressive policies — as did frequent presidential summits and enhanced aid packages. And the Bush administration consistently exaggerated these governments’ progress toward reform to justify continued aid. But more often than in the past, administration officials pressed the region's leaders to release prisoners, respect media freedoms, and allow civil society to function, in part due to more frequent interaction at all levels between administration officials and governments in the region. The administration also took its first limited steps to use its leverage with these countries to promote human rights, canceling a high-level meeting with the Kazakh foreign minister with the aim of freeing a Turkmen dissident detained on Kazakh soil, and suspending a trade mission to Kyrgyzstan over its refusal to a allow an independently operated printing press.¹¹

In Colombia, linked by Secretary of State Colin Powell to the global war on terrorism, Washington also took several positive steps. In September 2002, Attorney General John Ashcroft announced the indictment on drug charges of Carlos Casta–o, the head of the vicious and murderous paramilitary organization, the United Self Defense Forces of Colombia. Other paramilitary and guerrilla leaders with abusive records were also charged with drug offenses. In November, the State Department suspended the U.S. visa of Colombian Admiral Rodrigo Qui–ones, who had been repeatedly linked to serious abuses; that led to Qui–ones's resignation as Colombia's military attachˇ to Israel. The same month, the State Department announced the suspension of military assistance to a Colombian air force unit that had been implicated in a deadly violation of the laws of war and a subsequent cover-up — the first time the United States had suspended assistance to Colombia on human rights grounds. These actions began to signal to Colombia that it must address at least the most extreme human rights abuses. Still, the U.S. government’s dominant concern remained fighting the guerrillas and curbing drug trafficking. That led the State Department, in a May 2002 certification, to exaggerate Colombia’s progress in meeting human rights conditions attached to massive U.S. military aid.

In countries that were critical to the fight against terrorism, the Bush administration’s support for human rights was at best inconsistent and at worst completely absent. Afghanistan, the primary focus of anti-terrorism efforts after September 11, illustrated the problem. The military overthrow of the highly abusive Taliban raised the prospect of greater freedom for the Afghan people. And if one judged by Kabul, the Afghan capital where international peacekeepers patrolled, life improved dramatically. But the Bush administration sought security for the rest of the country on the cheap. Throughout 2002, it offered at best lukewarm support to the deployment of international troops outside of Kabul (European governments were equally reluctant) and took few meaningful steps to demobilize factional forces or establish a professional Afghan army. Instead, it delegated security to resurgent warlords and provided them with money and arms.

In some parts of the country, the consequences looked much like life under the Taliban — a far cry from President Bush’s vow to help Afghanistan “claim its democratic future."¹² For example, Ismail Khan, the Herat-based warlord in western Afghanistan, stamped out all dissent, muzzled the press, and bundled women back into their burqas. Those who resisted faced death threats, detention, and sometimes even torture.¹³ Afghans who had taken refuge in Iran during Taliban rule complained to Human Rights Watch that they had been freer under the Iranian clerics than they were under Khan. Yet U.S. Defense Secretary Donald Rumsfeld, after a visit to Herat in April 2002, called Khan an “appealing person.”¹⁴ Under growing pressure to address the violence and insecurity outside of Kabul, the Bush administration announced in November 2002 that it would send a small number of soldiers and civil affairs officers to eight to ten Afghan provincial cities, mainly for development work. Their mere presence promised some modestly enhanced security, but it was far from the focused security effort needed to end warlord abuses.

In Pakistan, General Pervez Musharraf pushed through constitutional amendments that extended his presidential term by five years, arrogated to himself the power to dissolve the elected parliament, and created a military-dominated National Security Council to oversee civilian government. But when asked about this disturbing trend, President Bush said, "My reaction about President Musharraf, he's still tight with us on the war against terror, and that's what I appreciate."¹⁵ Only as an afterthought did President Bush also mention the importance of democracy.¹⁶ With Washington supporting Pakistan’s military ruler and the repressive warlords next door in Afghanistan, it should have been no surprise that anti-American political parties in Pakistan were the big winners in October 2002 parliamentary elections. Their victory as well in simultaneous local elections in the two provinces bordering Afghanistan threatened to complicate U.S. efforts to apprehend any residual Taliban and Al Qaeda forces in the area.

In Indonesia, an abusive military and allied militia have been major factors in separatist and communal strife. The government’s inability to hold abusive military figures accountable has been a major cause of popular discontent. Military-sponsored atrocities in East Timor in 1999 led the United States to cut off some military assistance. But with Indonesia seen as a major front in the battle against terrorism, the Bush administration tried to resume military training, even though little if any progress had been made in subjecting the military to the rule of law.

In a particularly egregious move, the administration sought dismissal of a lawsuit brought in U.S. court by victims of military atrocities in Indonesia who sought compensation from Exxon Mobil for its alleged complicity in the abuse. The suit, filed in June 2001 in Washington, alleged that the Indonesian military had provided "security services" for Exxon Mobil's joint venture in Indonesia's conflict-ridden Aceh province, and that the Indonesian military had committed "genocide, murder, torture, crimes against humanity, sexual violence and kidnapping" while providing security for the company from 1999 to 2001. The plaintiffs claimed that Exxon Mobil had been aware of widespread abuses committed by the military but had failed to take preventive action. In a July 2001 letter from State Department Legal Adviser William H. Taft, IV, the administration justified its opposition to this effort to enforce human rights standards in part out of its stated fear that Indonesia would retaliate by stopping its cooperation in the war on terrorism.¹⁷

A broad range of other U.S. allies in the war on terrorism received similarly soft treatment for their human rights abuses. For example, Russian President Vladimir Putin faced only mild criticism of his troops’ continuing brutal behavior in Chechnya; their atrocities only intensified after Chechen militants took some 700 people hostage in a Moscow theater in October 2002. In China’s western Xinjiang province, Beijing has long repressed the Turkic-speaking Uighur majority, China’s largest Muslim population; despite the Bush administration’s occasional criticism of Chinese conduct in Xinjiang, the administration’s decision to designate as a terrorist organization the small East Turkistan Islamic Movement, which was said to be a Uighur movement from Xinjiang, provided new cover for Chinese repression of the Uighurs. The Israeli military in fighting armed Palestinian groups and their suicide bombings continued to employ such abusive practices as the use of excessive lethal force and the collective punishment of Palestinian civilians, yet Washington frequently shielded Israel from international pressure and continued to supply it unconditionally with weapons and military assistance. Because Malaysian Prime Minister Mahatir bin Mohamad was outspoken in support of the campaign against terrorism, the Bush administration also muted its criticism of his government, whether for its use of administrative detention or its continued imprisonment on trumped-up charges of former Deputy Prime Minister Anwar Ibrahim.

The overriding message sent by these U.S. bilateral actions was that human rights are dispensable in the name of fighting terrorism. That policy may have provided greater leeway for short-term security measures. But if an important aim was to build a culture of human rights in place of the pathology of terrorism, it sent a dangerous and counterproductive signal — one suggesting that it is acceptable to replace respect for the life of every person with the view that the ends justify the means.

International Fora

At the multilateral level, the Bush administration consistently opposed any effort to enforce human rights standards. This posture was not entirely new. Both Democratic and Republican administrations have always kept human rights treaties at arm’s length. The U.S. government has never ratified three of the seven leading human rights treaties¹⁸ or the leading treaty governing modern armed conflict.¹⁹ Even when the U.S. government has ratified a human rights treaty, it has done so in a way that denies Americans the ability to enforce the treaty in any court, whether international or domestic.²⁰ This resistance to enforceable human rights standards only intensified after September 11.

The resistance was on display at the March-April 2002 session of the U.N. Commission on Human Rights, the leading U.N. human rights body. Mexico proposed a resolution that stressed the importance of fighting terrorism consistently with human rights. The resolution did not condemn any nation; it simply reaffirmed an essential principle. Yet the Bush administration opposed even this motherhood-and-apple-pie statement. It was joined by Algeria, India, Pakistan, and Saudi Arabia — hardly committed supporters of the international enforcement of human rights. Mexico withdrew the resolution. Not until eight months later, in December 2002, did the U.N. General Assembly eventually adopt a similar resolution, when the administration’s opposition failed to derail it.

The administration also opposed efforts at the United Nations to strengthen the prohibition against torture. It objected to a proposed new Optional Protocol to the Convention Against Torture, which establishes a system for inspecting detention facilities where torture is suspected — an important preventive measure. The administration’s position was at first puzzling, since the United States opposes torture as a matter of policy and has ratified the Torture Convention. If Washington wanted to avoid scrutiny under this new inspection procedure, it could simply not ratify the protocol, which, as its name suggests, is optional. The administration’s decision, instead, to try to deprive other nations of this added human rights protection stemmed from an evident desire to avoid strengthening any international human rights law that might even remotely be used to criticize its own conduct — especially, one must assume, its interrogation of security suspects.²¹ The optional protocol came to a vote before the U.N. General Assembly in December 2002; the United States was one of only four governments to oppose it, against 127 supporters.

At the U.N. General Assembly Special Session on Children, in May 2002, the Bush administration sought to prevent any reference in the final document to the Convention on the Rights of the Child. The United States is the only country in the world not to have ratified the treaty (other than Somalia, which has no national government). The special session — the highest-level U.N. summit on children in a decade — presented an important opportunity to reaffirm the rights contained in the convention. But the administration objected to any mention of the concrete rights of children, preferring vaguer reference to children’s “well-being.”

The administration was no better when it came to the rights of women. In December 2002, it launched an attack on the Cairo Programme of Action — a population control program endorsed by 179 countries — by seeking to remove the phrases “reproductive health services,” “reproductive rights,” and “consistent condom use” from a conference document for the U.N.-sponsored Fifth Asian and Pacific Population Conference. The document was adopted over U.S. objections. In addition, the administration withheld $34 million appropriated by Congress for the United Nations Population Fund, claiming that the UNFPA supported coerced abortion and sterilization in China. A State Department investigation found no basis for that claim. The UNFPA said this amount could have prevented two million unwanted pregnancies, 800,000 induced abortions, 4,700 maternal deaths, and 77,000 infant and child deaths.

The administration’s opposition to the enforcement of human rights standards was most extreme in the case of the International Criminal Court. The court has numerous safeguards to address legitimate U.S. concern about politicized prosecutions. Crimes are defined narrowly — more narrowly than even U.S. military manuals. Several independent panels of judges oversee prosecutorial decisions. A mere majority of the states party can impeach an abusive prosecutor (and most of the states party are democracies, given that ratification subjects a government’s own conduct to the court’s jurisdiction, and U.S. allies). Governments can avoid ICC prosecution altogether by conducting their own good-faith investigation and, if appropriate, prosecution. Moreover, the ICC does not purport to exert jurisdiction over a suspect unless the suspect’s government has ratified the court’s treaty or the suspect is alleged to have committed a crime on the territory of a government that has ratified the treaty — both long-accepted bases of jurisdiction.

Yet, the Bush administration declared a virtual war on the court. It repudiated former President Bill Clinton’s signature on the ICC treaty. It threatened to shut down U.N. peacekeeping unless U.S. participants in U.N.-authorized operations were exempted from ICC jurisdiction. It threatened to cut off military aid to governments unless they agree never to deliver an American suspect to the court. And President Bush signed legislation authorizing military intervention to free any American suspect held by the ICC — dubbed the “Hague Invasion Act.” With occasional exceptions, the administration did not discourage governments from ratifying the ICC treaty for the sole purpose of addressing conduct by others, and by the end of 2002, eighty-seven governments had joined the court — well above the sixty needed for the treaty to take effect. But the Bush administration’s efforts to exempt Americans from the court’s investigations and prosecutions advanced a double standard that threatens to undermine the court’s legitimacy.

By these multilateral interventions, across a wide range of issues, the Bush administration signaled that human rights standards are at best window-dressing. They are fine grand pronouncements, but their universal enforcement — enforcement that might affect the United States even indirectly — was to be avoided. Such hypocrisy only undermined these norms. It also undermined the credibility of the United States as a proponent of human rights, whether in fighting terrorism or in combating more traditional repression and abuse.

Consequences for the Campaign Against Terrorism

The Bush administration’s willingness to sidestep human rights as it fought terrorism had potentially profound and dangerous consequences. At the very least, it meant that the United States was a party to serious abuse. If Washington provided assistance to abusive warlords in Afghanistan or a military dictatorship such as Pakistan’s, it became complicit in the abuses that they foreseeably committed.

In addition, as noted, Washington’s neglect of human rights threatened to impede its campaign against terrorism. As President Bush himself observed, repression fuels terrorism, by closing off avenues for peaceful dissent. Yet if the U.S. campaign against terrorism reinforces that repression, it risks breeding more terrorists as it alienates would-be allies in the fight against terrorism.

The administration’s subordination of human rights to the campaign against terrorism also bred a copycat phenomenon. By waving the anti-terrorism banner, governments such as Uzbekistan seemed to act as if they had greater license to persecute religious dissenters, while governments such as Russia, Israel, and China seemed to act with greater freedom as they intensified repression in Chechnya, the West Bank, and Xinjiang.²² Tunisia stepped up trying civilians on terrorism charges before military courts that flagrantly disregarded due-process rights.²³ Claiming that asylum-seekers can be a “pipeline for terrorists” entering the country, Australia imposed some of the tightest restrictions on asylum in the industrialized world.²⁴ Facing forces on the right and left that had been designated terrorists, Colombia’s new president, ēlvaro Uribe, tried to permit warrantless searches and wiretaps and to restrict the movement of journalists (until the country’s highest court ruled these measures unconstitutional).²⁵

In sub-Saharan Africa, some of the mimicry took on absurd proportions. Ugandan President Yoweri Museveni shut down the leading independent newspaper for a week in October 2002 because it was allegedly promoting terrorism (it had reported a military defeat by the government in its battle against the Lord’s Resistance Army rebel group).²⁶ In June, Liberian President Charles Taylor declared three of his critics — the editor of a local newspaper and two others — to be “illegal combatants” who would be tried for terrorism in a military court.²⁷ Eritrea justified its lengthy detention of the founder of the country’s leading newspaper by citing the widespread U.S. detentions.²⁸ Zimbabwean President Robert Mugabe justified the November 2001 arrest of six journalists as terrorists because they wrote stories about political violence in the country.²⁹ Elsewhere, even former Yugoslav President Slobodan Milosevic defended himself against war-crimes charges by contending that abusive troops under his command had merely been combating terrorism.³⁰

The inconsistency of the Bush administration’s attention to human rights abroad also weakened an important voice for human rights when the United States did speak out. The most dramatic example was the case of Saadeddin Ibrahim, the Egyptian democracy activist who was sentenced in July 2002 to seven years in prison for his peaceful political activities. To its credit, the administration not only protested but also said it would withhold an incremental increase in aid that might have gone to Egypt. That was a dramatic step — the first time in the Middle East that the United States had conditioned aid on the positive resolution of a human rights case. But in light of Washington’s long history of closing its eyes to human rights abuses in the Middle East, and its failure to protest Egypt’s similar persecution of Islamists for non-violent political activity, many Egyptians distrusted the administration’s motives, and even some Egyptian human rights groups denounced the action. In December, Egypt’s highest appeals court — with a long tradition of independence from the government — reversed Ibrahim’s conviction and ordered a new trial. But Washington’s voice was shown to have been compromised as a means to build broad public support for human rights.

Possible War in Iraq

As this chapter was written in late 2002, war in Iraq was threatening. Leaving aside the question of whether war should be launched, there was reason for considerable anxiety about how a war might proceed from the perspective of the lives of noncombatants in Iraq.

In human rights terms, Saddam Hussein is as bad as they come. In 1988, in the notorious Anfal campaign, he committed genocide against the Kurds. After using chemical weapons on at least forty occasions to drive Kurds from their highland villages, his forces rounded up and executed some 100,000, mostly men and boys. In suppressing the 1991 uprisings, his forces killed an estimated 30,000 Iraqis, mostly Kurds in the north and Shi’a in the south. In the following years, untold atrocities were committed against the Marsh Arabs. On a day-to-day basis, the Iraqi government used arbitrary detention, torture, and execution to maintain power.

But the threatened war on Iraq was not a humanitarian intervention in the sense that it would be waged primarily for the purpose of benefiting the Iraqi people. If Saddam Hussein had been overthrown in a palace coup and replaced by an equally repressive dictator who nonetheless was willing to cooperate in ridding the country of alleged weapons of mass destruction, there clearly would be no invasion. That said, it is important from a human rights perspective to stop the possible use of weapons of mass destruction when there is a credible threat of their use. However, any war to be fought in Iraq will be judged in significant part by the degree to which the attackers take into account the potential risks facing the Iraqi people, particularly in light of the atrocities that Saddam Hussein has shown himself capable of committing.

First, it will be important to examine whether the attackers did everything feasible to avoid civilian casualties by their own forces. That means, at minimum, avoiding such controversial practices as using cluster bombs near populated areas (as occurred during the Gulf War of 1991, the Yugoslav war of 1999, and the Afghan war of 2001-02). It means not using military force to target civilian morale or to attack political supporters of a regime who are not directly contributing to the military effort (as occurred in Yugoslavia). And it means taking all feasible precautions to avoid misidentifying targets, especially in the case of “targets of opportunity” when the review system is necessarily abbreviated (as occurred in all three above-noted wars but particularly in Afghanistan, where special operations forces in the field were used extensively to identify targets).

Second, it will be important to determine whether the United States and its allies took into account the history of abuse already suffered by the Iraqi people and made serious attempts to prevent its recurrence. As noted, on numerous occasions as part of the 1988 Anfal genocide, Saddam Hussein used chemical weapons against Iraqi Kurds. If upon a U.S. invasion the Iraqi president sees that the end of his rule is near, his history suggests that he might resume the slaughter by using any chemical or biological weapons in his possession to kill many of his own people, either in retaliation or in an effort to embarrass his attackers. During the 1991 uprising, Iraqi rebel forces, both Kurdish and Shi’a, demonstrated that they are capable of summarily executing government officials, Baath Party members, and their perceived supporters. Unless restrained during a new war, there is every reason to believe that they will pick up where they left off, but this time as perceived U.S. proxies. Also in 1991, some neighboring countries closed their borders to people fleeing the war in Iraq. Turkey, in particular, left Kurds to die of exposure to the winter cold on the mountains along its border. Facing the possibility of a renewed war, it publicly threatened to close its borders again.

The Bush administration took some steps in 2002 to prevent repetition of these abuses in anticipation of war. It warned Iraqi troops that they would be prosecuted if they used weapons of mass destruction. And it cautioned the relatively organized Kurdish forces against committing atrocities, although that message was more difficult to deliver to less organized Shi’a forces. But it remained an open question whether the administration could avoid repetition of the Kosovo tragedy, when unprepared U.S. troops were forced to watch from the sidelines as the forces of Slobodan Milosevic escalated their attacks on Kosovar Albanian civilians in response to the NATO bombing campaign. The stakes were particularly high because the possible availability of weapons of mass destruction in Iraq threatened killing on a much larger scale. The potential dangers that Iraqis faced heightened the importance of neighboring governments permitting them to flee and take refuge elsewhere.

One especially difficult issue concerned combatants taken prisoner. During the Afghan war, the United States took insufficient steps to prevent allied Northern Alliance forces from committing atrocities against prisoners. During the Gulf War, Iraq severely mistreated coalition prisoners of war. The urgency of preventing repetition of those abuses was complicated by the Bush administration’s degrading of the Geneva Conventions at Guant‡namo, since that made some arguments in defense of captured combatants more difficult to advance.

The Bush administration was also reticent about its post-war strategy. Having failed to repudiate its “warlord strategy” in Afghanistan, it left uncertainty about whether it would build the rule of law in Iraq. It spoke about bringing senior Iraqi officials to justice, but offered no guarantee of fair trials and independent tribunals. It remained vague about whether it would proceed against only a “dirty dozen” top officials or ensure at least some form of accountability for people further down the chain of command. It made no offer to subject its own conduct and that of its allies to international scrutiny, leaving the impression that it might settle for victor’s justice. The resolution of these issues would play an important part in determining whether, even with Saddam Hussein gone, possible war with Iraq would hold much promise of improving the plight of the Iraqi people.

Conclusion

The security threat posed by terrorism should not obscure the importance of human rights. Military or police action can be seductive. It leaves the impression that the problem is being addressed firmly, head-on. Concern with human rights, by contrast, may seem peripheral — of long-term utility, undoubtedly, but not a high immediate priority.

That view is profoundly mistaken. An anti-terrorism policy that ignores human rights is a gift to the terrorists. It reaffirms the violent instrumentalism that breeds terrorism as it undermines the public support needed to defeat terrorism. A strong human rights policy cannot replace the actions of security forces, but it is an essential complement. A successful anti-terrorism policy must endeavor to build strong international norms and institutions on human rights, not provide a new rationale for avoiding and undermining them.

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