By Otto Spijkers
Last week, the Department of Public International Law of the University of Leiden, my department that is, co-organized an expert seminar on counterterrorism strategies. One of the speakers was our current Minister of Foreign Affairs, mr. Maxime Verhagen. He spoke about counterterrorism strategies from an international law and policy perspective. It may be interesting to highlight the important parts of that speech, since it gives our readers an idea on where the Netherlands stands in the debates.
Evolution of international law
Today’s world is very different from that of 1907. In the span of a century, international law has grown by leaps and bounds. The Hague Conventions were among the first formal statements of the laws of war in the corpus of modern international law. In the wake of two World Wars, the Geneva Conventions of 1949 created the framework for international humanitarian law. In the decades that followed, additional protocols were added and various human rights conventions were concluded. As new realities presented themselves, international law adapted to the changing times. Over the last hundred years, the evolution of legal norms has resulted in a rich body of international law.
Modern terrorism & security interests
Then, at the turn of the new century, modern terrorism reared its ugly head and confronted the world with a threat of new dimensions. The attacks on the World Trade Centre and the Pentagon were not isolated incidents. They were followed by bombings in Madrid and London, and many other atrocities around the world. Our values were suddenly under attack, not from a familiar enemy, but from international terrorist networks, trained to harm civilian populations to the greatest extent possible. This new threat does not fit old patterns of international aggression: there is no country or other recognisable enemy, no traditional boundaries, no traditional warfare. Modern terrorism is an international threat, as real as those that nations have faced in the past, but far less familiar. It is a phenomenon that threatens our legitimate security interests.
Response to modern terrorism; differences of opinion
The world is united in its condemnation of terrorism. But to date, the world has failed to come up with a full, united and effective response to the challenges it poses, either in the political or in the legal domain.
Of course, we’ve made important progress in developing legal and policy frameworks over the past few years. We have agreed on counterterrorism strategies both at the United Nations and within the EU. But there is still no comprehensive convention on terrorism, largely because we cannot agree on the definition of a terrorist act.
Opinions also differ on the relevant law. Is the fight against terrorism an armed conflict, meaning that international humanitarian law should apply? Or is it actually the domain of criminal law? So we have to decide which type of law should prevail, and we must also address an even broader question: is contemporary international law equipped to meet the challenges of modern terrorism? Ladies and gentlemen, there is a lot on our plate tonight.
The Dutch position, specifically on rule of law and human rights
The Netherlands has always made it abundantly clear that the rule of law must always be upheld when combating terrorism, both nationally and internationally.
The orator Cicero was once called upon to defend the Roman praetor Milo from accusations that he had murdered his rival, Clodius. Cicero argued that the killing had been in self-defence, saying, ‘Silent enim leges inter arma’. In the face of arms, the law stands silent.
I would remind you that Cicero lost that case. And rightfully so, I would say, though I do realise that it’s dangerous for a politician to comment on legal verdicts, even if they are over 2000 years old! The rule of law is an inflexible imperative. Any response to modern terrorism must be within the bounds of the law. It is my firm conviction that, in defending ourselves and our values from terrorist attacks, we mustn’t compromise those same values. Moral authority ought to be an important element of any action taken to rid the world of terrorism. This implies that we must recognise the human rights of our worst enemy, even if we don’t like the idea. Respect for human rights standards is a line we must not cross.
And yet we know that human rights are under pressure. In fact, Amnesty International has gone so far as to say that governments around the world are undermining human rights in their fight against terrorism. Illegal detentions, lack of due process, torture ? these are serious allegations, and sadly, this may not even be the worst of it.
Guantánamo Bay – moving away from the trenches
Take Guantánamo Bay, the most visible example of our differences. The United States has detained a large number of ‘illegal enemy combatants’ there, in the face of protests from much of the rest of the world. You, the legal experts, have either criticised or defended the legality of such a move, pointing out the flaws in the other side’s legal reasoning. Politicians have done much the same. But we’ve become somewhat entrenched in our views. And this has hampered progress.
Recently, there seems to have been some movement. Only last week, I was in Washington, where I discussed the future of Guantánamo Bay with Secretary of State Rice. I of course restated the Dutch position that the detention facility should be closed. At the same time, I understand the problems the United States would face in doing so.
A policy of harsh confrontation will not bring us any closer to a more acceptable solution. There needs to be a mutual willingness to hear each other out, to agree to disagree on certain issues and to move forward. Keeping the lines of communication open is the only option.
Let’s not lose sight of the fact that there are legitimate security issues at stake here, for all of us. And to preserve our values and freedom we will need to join forces. The nature of modern terrorism is so unusual that straightforward, legally acceptable solutions are hard to come by. At the very least, we can all agree on that. Our discussion should not fall on deaf ears.
Hi Otto,
The following quote seems to summarize one of the larger disagreements in how to address today’s terrorism within the confines of the law: Opinions also differ on the relevant law. Is the fight against terrorism an armed conflict, meaning that international humanitarian law should apply? Or is it actually the domain of criminal law?
The way in which we characterize the issue obviously affects our analyses. For example, at recent conference, here, in Ottawa, the difference in language between the Israeli Ambassador to Canada and the Secretary General of Amnesty International was remarkable. The former spoke of “targeting,” “armed conflict” and humanitarian law, whereas the latter employed language reminiscent of domestic criminal law and procedure. In the end, I think that the international community will need to make some progress towards a common understanding of how to characterize the issue of today’s terrorism.
Hi Maarten,
I happen to sympathize with the view that certain brands of terrorism would best be addressed with international humanitarian law. For example, I think that this field of law best applies to situations of global and transnational terrorism, such as Al-Qaeda and Hezbollah. However, other variations, such as “home-grown terrorism” might best be served with criminal law. And so I wonder if this is necessarily an “either-or” issue, but rather a question of applying both according to the circumstances. But as mentioned above, there are a whole host of problems with respect to proper characterization.
I agree that modern terrorism is not that unusual. The only difference is that today we have nuclear weapons- that is the only thing that really concerns me about terrorism. That, and the way we respond to it. Any rational person would notice that the odds of being killed in a terrorist incident are far lower than the odds of dying in many other ways. On this tragic day when 32 innocent students lost their lives at Virginia Tech University, it is worth remembering that firearms killed 11,920 Americans in 2003 alone, not to mention 2,049 homicides by sharp objects, 3,306 from drowning, and 44,757 in motor vehicle accidents.
(http://www.nsc.org/lrs/statinfo/odds.htm)
Hi Otto, thanks for keeping us informed. I always get a bit edgy with people who come up with statements like ‘is contemporary international law equipped to meet the challenges of modern terrorism?’, assuming that ‘modern terrorism’ is some sort of thing from outer space which defies all existing principles of criminal and international law. Back in 2003, the Venice Commission already issued an opinion (http://venice.coe.int/docs/2003/CDL-AD(2003)018-e.asp) on the issue of ‘the capacity of International Humanitarian Law adequately to address new forms of terrorist violence’, in which it concluded (par. 85)’It therefore appears that in respect of these matters there is no legal void in international law, and no need for further development of the Geneva Conventions. However, it is of paramount importance that the rules of International Humanitarian Law, as well as human rights law, be properly implemented.’