Rule Of Law, Torture & ‘War On Terror’

Under The Spotlight

By Muhammad Khan
Issue 253, Friday 28 May 2010
14 Jumad al-Akhar 1431
Courtesy Of "The Muslim News"

Rules of the Game: Detention, Deportation, Disappearance. By Asim Qureshi. London: Hurst & Company, pp220, 2009, PB, £12.99.

Richard Falk, Professor Emeritus of International Law at Princeton University and the author of The Great Terror War (2003), wrote, “Since the birth of modern world order at the Peace of Westphalia in 1648, the outer boundaries of permissible behavior in world politics have been constantly modified by the assertion of reasoned and effective claims to take action in defense of vital interests by leading states. This process of lawmaking by powerful states has always been controversial, as it blurs the distinction between law and power, and relies on the subjective interpretation by the actors themselves as to what is reasonable and necessary. This experiential process of lawmaking has been influentially theorized in relation to international law by Michael Reisman under the rubric of ‘incidents jurisprudence’ – that is, international incidents providing the concrete occasions for stretching existing international law to meet new challenges by reasonable behavior whether covered by prior legal rules or not.” (pp 183 and 184)

Although the attacks of September 11, 2001 in New York and July 2005 in London were horrific and despicable, whether they were serious enough to fall under the rubric of “incidents jurisprudence” was clearly spelled out by Tony Blair, the then British Prime Minister, in these words, “What I’m trying to do here is, and this will be followed up with the action in the next weeks as I think you will see, is to send a clear signal out that the rules of the game have changed.” Did those terrorist attacks warrant such a drastic response? In the book under review, Asim Qureshi, a senior researcher for Cage-Prisoners, argues that although the rules of the game was drastically changed, the consequences of pursuing such a course of action was not properly thought-through, as more and more people became innocently embroiled in the ‘war on terror’ in different parts of the world.

In the author’s own words, “The last seven years of counter-terrorism strategies have produced a plethora of commentaries looking at the legality of Government policies, whether they relate to the wars in Afghanistan and Iraq, Guantánamo Bay or the use of secret detention and torture. The aim of this book, however, is to present the stories of those who have been personally affected by the ill-conceived reaction to the terrorist threat of the United States and her allies. It is about policies that have been implemented worldwide in order to justify abuses of human rights and the degradation of the law, but conveyed through the voices of those who have suffered. The US has led the way in the War on Terror, but in doing so, it has lowered the threshold of acceptable human behaviour to such an extent that even countries such as China find the moral authority to point the finger back.” (pp1-2)

Consisting of eight chapters and a useful Introduction, in the first part of the book, the author argues that the ‘war on terror’ has led to the indiscriminate profiling of Muslims even thought it is not practically possible to create a single, uniform profile of a would-be terrorist given the huge diversity of global Muslim population. “There are many non-Muslims in the world who have converted to Islam and retained their names and choose not to don attire of Islamic appearance – these people would be very difficult to identify. How to distinguish John Smith, a Muslim convert without facial hair or Islamic clothing, from any other John Smith? Similarly, Muslims from the American, Asian, European, and African continents could come from a multitude of backgrounds and ethnicities. Yet this profile remains – simply based on the perception that acts of terrorism today are primarily perpetrated by Muslims.” (p5) Not surprisingly, this has led to the indiscriminate and wrongful detention and harassment of Muslims at airports, train stations, hotels and restaurants across the world.

In Chapter Two, the author explores the use of incommunicado detention in the ‘war on terror’ in different parts of the world. Although one of the fundamental cornerstones of our legal system is that one is innocent until proven guilty, however, according to the author, “The War on Terror has sought to change that universal understanding; governments around the world are ready and willing to sacrifice human rights and civil liberties in the name of security interests. An endless media campaign by mainstream networks perpetuates the climate of fear that allows policies to be legislated without checks and balances.” (p37)

Most worryingly, when prominent Western nations have resorted to such actions, it is not surprising that many dictators and dictatorships around the world, too, have started to justify such tactics in order to suppress political dissent and opposition. By contrast, in Chapter Three, the author shows how the ‘war on terror’ has enabled many governments in the East and the West to erode, if not systematically undermine, the rule of law in order to bring about convictions which, under normal circumstances, may not have been possible to achieve. (p64)

In the following chapter, the author focuses on the “theme of detention without charge by looking at the international transfer of detainees. The removal of citizenship, extradition and the process of deportation have been radically altered over the last seven years. Previously, refoulement (the rule against transferring an individual to a country where they may face harm) was considered absolute in its illegality due to the implications for the human rights of those facing torture or ill treatment upon removal from a place of sanctuary. The suspicion of terrorism is used to circumvent carefully established principles of the rights of those facing harm from another state.” (p8)

An example of such action, argues the author is the enactment of the Extradition Act 2003 in Britain which effectively allows the US to simply make allegations against any British nationals and seek their extradition without giving the latter a chance to answer a prima facie case first. This is true despite the fact that, prisoners in general and terrorism-related detainees, regularly suffer inhumane treatment in the US; cases of systematic abuse and maltreatment of prisoners at the US detention centre in Guantánamo Bay is only too well known, argues Qureshi.

In Chapter Six, the author investigates the alarming situation in Pakistan where hundreds of people have been kidnapped by the security services and other similar agencies without a trace. Although such enforced disappearances are illegal under international law, Pakistan and many other Third World countries have become notorious for such cases. Sadly, many Western countries, too, have turned a blind-eye to such cases of abuse, torture and disappearance, thanks to the ‘war on terror’ and its far-reaching consequences.

In the last two chapters, the author briefly explores the highly emotive topic of ‘torture and abuse’ and their relationship to ‘security’. In short, by demonising the ‘other’, coupled with widespread profiling of Muslims, the US and its allies have directly or indirectly helped to perpetuate misinformation, ill-feelings and hatred against Islam and the Muslims, and this has contributed to the increasing disregard for and violation of the universal agreement and rule against torture and abuse, argues Qureshi.

For this reason, “The impact of the worldwide policies of the War on Terror is best understood through the voices of the people who are most affected: the detainees, their families and the lawyers, all of whom are on the frontline…It is important to note that even in the short term, it is unlikely that international peace and security can be achieved through the abuse of human rights.” (p12) For this reason, we urgently need to rethink our entire approach to the ‘war on terror’ which is underpinned by the notion that “the ends justify the means” even though some of our greatest thinkers and philosophers like Hegel and Kierkegaard have warned us a long time ago against pursuing such a course of action. To quote Esmeralda, “Nothing will ever justify torture because it assaults the human condition.”

May we heed these wise words, and the sooner we do the better!

This is an informative and useful book on a very important and topical subject; recommended especially to the politicians, policy-makers, lawyers and the journalists.

Muhammad Khan

M Khan is author of The Muslim 100 (reprinted 2009), and The Muslim Heritage of Bengal (forthcoming); he is a Director of Bengal Muslim Research Institute UK.