ULB’s conference on 20 October, “Terrorism Lists, Executive Powers, and Human Rights,” organised by the European Centre for Constitutional & Human Rights” (ECCHR), aimed very high. It gathered internationally-known jurists from academia and the human rights community, but also “practitioners” from both sides of the bar.
The day-long program started with a debate, Gilles de Kerchove, the EU Counter-Terrorism Coordinator versus Mark Muller QC, Chair of the prestigious UK-based Bar Human Rights Committee (BHRC). De Kerchove garnered general admiration for his willingness to appear before a generally critical audience, before which speaker after speaker denounced the politicisation of justice represented by the widespread creation, post 9/11, of no-fly lists. Muller stressed the disproportionate impact on open exile groups, whose freedom of expression has been hard hit by the blacklisting by EU member states, often simply copying each other’s lists, or worse, taking verbatim “toxic” lists coming out of the crusading Bush White House.
Kafka in Canada
“Kafkaesque” was used more than once to describe travesties, not of justice, but of what de Kerchove called “administrative procedure.” Those two chilling words have condemned people to much more than getting bumped from flights. In the case of Sudanese-Canadian Abousfian Adelrazik, it resulted in exile, torture, and brushes with death, before concerted legal, civil disobedience, press, and ultimately domestic political pressure shamed the Canadian government into granting a passport to one of its own citizens. “A black man, in a black site, on a black list,” is how Professor Amir Attaran of the University of Ottawa described Abdelrazik, who only escaped death because his case went beyond the courts. He had fallen into the black hole of the black list: “too innocent to charge, too guilty to fly.”
Such a gathering of legal brainpower would not be so rash as to condone terrorism, indeed one speaker denounced terrorism as one of the worst crimes against human rights. But the “craven arbitrariness,” as Attaran called blacklisting, risks subverting separation of powers and the rule of law, through extending and generalising states of emergency.
“Proscription regimes,” as they are referred to in legal circles – black lists or no-fly lists if you will – give inordinate power to intelligence agencies, and have led to mistakes, misinformation, and deliberate disinformation changing (and ending) lives of sometimes innocent people. Blacklisted people wind up living a sort of non-life, deprived of means of earning a living, or even conducting basic economic activities of daily living (ever try to live without money?). Remember, we are sometimes talking about people whose only crime was to oppose dictators in their home countries, often quite peacefully. And once on Country A’s blacklist, it is extremely difficult – even when “cleared” – to be removed from those of Countries B through Z.
How Terrorism Ends (hint: not through war)
One of the most potent arguments questioning the wholesale, and sometimes unquestioning, inclusion of individuals and movements on blacklists came from Oliver Wils, the Director of Berlin-based NGO Berghof Peace Support, active in conflict resolution. Wils cited (as did the US Congress) a 2008 RAND Corporation study How Terrorist Groups End
The evidence since 1968 indicates that most groups have not ended due to military pressure but because (1) they joined the political process or (2) local police and intelligence agencies arrested or killed key members and that few groups achieved victory within this timeframe.
The ending of most terrorist groups requires a range of policy instruments, such as careful police and intelligence work, military force, political negotiations, and economic sanctions. Yet policymakers need to understand where to prioritize their efforts with limited resources and attention.
The RAND study, noted Wils, shows that only 7% of terrorist groups that operated in the last four decades were put out of action by military force.
The Obama Administration wants to apply “smart power” solutions to problems exacerbated by the Bush Administration’s kinetic “War on Terror.” This week’s conference on the dangers of blacklists highlighted a number of key issues which should be of interest to smart American negotiators, and to European policy makers. With increasing focus on diplomatic solutions, will the Obama Administration pause before acceding to some dictator’s demand to put a legitimate opposition movement – even a liberation movement – on a black list? How many “peace processes” have come to a screeching halt, because one of the parties – The Outs – are declared “terrorists” by The Ins?
Gerald Loftus also writes the blog Avuncular American.