Self-Defense and Human Rights Linkages
There is has always been an interesting and important nexus between national
security and human rights and the ebb and flow of harmony and disharmony between
them. However, this is an especially challenging period. It may be time to adapt our
thinking and allow for relaxation along certain dimensions so as not to further distance
the spirit and practicalities of the law from the realities and prerogatives of state
practice. This is not to say that the United States should be allowed to break the laws
simply because, as some US officials seem to imply, al-Qaeda exists and is a known
threat. Indeed, it is not to say that any of the practices the United States is known to be
engaging in – from the policies of rendition and secret detentions to the torture-lite
practices of prisoners at Guantánamo and even the methods by which they ended up in
US custody in the first place – are lawful. It is to say, rather, that humanitarian and
human rights law is only as strong as states’ levels of national security and commitment
to reasonable use-of-force criteria. This is a commitment, in other words, which itself
depends on states’ perceived security needs and the perceived capacity of law to
accommodate them – in other words, the bigger security picture.
Human rights law developed during the Cold War as an outgrowth of states’
perceived success in managing threats. That success was aided by the sense of security
that was, despite the obvious absurdity, provided by the doctrine of mutually assured
destruction. Successful threat management served to expand and increase the
universality of human rights. The international human rights instruments and ethos that
developed over this time were based on states’ confidence that they could “afford” to
extend such rights under circumstances in which each side knew who the enemy was (or
could be), were secure that the enemy’s arsenal and methods were knowable, and
believed they had the means at hand to fight the enemy. The major states could thus
agree to supplement their war/defense policies with appropriate human rights and
humanitarian corollaries (which, admittedly, also served their geo-strategic interests in
that they could be used to demonize the enemy).
The stability afforded by the bipolar arrangement carried over after the end of the
Cold War, when the world was to enjoy the so-called “peace dividend” and when the
United States seemed to be leading the way toward a world (somewhat shakily) based on
13
Convention