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Alicia Nicholls

If we destroy human rights and rule of law in the response to terrorism, they have won.

Joichi Ito (Japanese-American entrepreneur)

In the best of times human rights and national security interests enjoy an uneasy tension. In the darkest annals of human existence as in the aftermath of a terrorist tragedy like that in Paris last Friday, human rights concerns are often jettisoned in favour of national security goals. The discovery of a Syrian passport next to the body of one of the Paris attackers has fuelled the conviction that at least one of the attackers may have entered the country with the flow of Syrian refugees currently fleeing the brutality of Syria’s Assad regime. This unfortunate connection, true or not, has led many Western states to a retreat towards the ever trusted confines of national security rationale to renege on or double down on the denial of entry to refugees.

On Friday, November 13, gunmen, later claimed by ISIL (Islamic State of Iraq and the Levant), launched a highly coordinated and brutal attack on six sites in the French capital of Paris, and its northern suburb of St. Denis. In the aftermath, 129 persons were senselessly massacred, most of them at the Bataclan Theatre. Over 430 were wounded. The attacks were the second ISIL attack within the space of 24 hours.  Earlier in Lebanon, two suicide bombers detonated explosives in a suburb of Beirut killing 43 and injuring over two hundred.  ISIL also claimed responsibility for that attack but this one was largely ignored by the media. Months earlier terrorists (not ISIL) massacred 149 innocent students at the University of Garissa. That too did not spark a percentage of the outrage which the Paris attacks did.

A thorough history of the origins of ISIL are beyond the scope of this article.  However, ISIL is a Wahhabi/Salafi militant group which is led by Abu Bakr al-Baghdadi with the goal of launching global jihad. It claims to be an Islamic State and Caliphate but has been denounced by Al-Qaeda. The two are now rivals. ISIL has spread its poisonous tentacles from Iraq and Syria to include strongholds in several states across the Middle East and Africa, including in parts of Afghanistan, Libya and Nigeria. Comprised of Sunni Muslims, ISIL is one of the major groups fighting government forces and loyalists of the Shia government of President Bashar Al-Assad in Syria. Besides the brutality of the Assad regime, ISIL controlled areas of Syria have also been under iron rule.

The net result has been a large scale displacement of hundreds of thousands of Syrian nationals seeking to flee the bloodshed, resulting in a veritable refugee crisis of historic proportions. European countries have seen thousands of refugees attempting to pour over their borders daily. Some walked thousands of miles to make it to safety often going days without food or shelter. Some like the little boy whose body washed up on the shores of Turkey and brought international attention to the situation, never make it.

One of the hallmarks of a State’s power is the sovereign right to control the entry of people into its borders. It is a power which states guard jealously through such mechanisms such as border controls, visas and the like. It is a right which states only give up once it is believed that the economic benefits to free movement of persons outweigh the security concerns, such as in a political union like the European Union. The EU Schengen Area, which allows unimpeded travel for EU citizens across participating European country borders, is now under threat in light of the revelation that the porous borders may have facilitated the attackers.

The 1951 Convention relating to the Status of Refugees and its Optional Protocol relating to the Status of Refugees define the international law on refugees and are part of the ambit of conventions which inform international human rights law.

Article 1(a)(2) of the 1951 Convention defines a refugee as

an individual who is outside his or her country of nationality or habitual residence who is unable or unwilling to return due to a well-founded fear of persecution based on his or her race, religion, nationality, political opinion, or membership in a particular social group.

It is left up to states themselves to determine whether a person meets the definition of a refugee, something which often is decided within the scope of the state’s national interests.

European states have been at a loss in regards to how to adequately respond to the Syrian migrant crisis, with some states like Germany agreeing to accept quotas of migrants. However, the Paris attacks have led some states like Poland to refuse the imposition of any quotas.

In moments of tragedy it is human nature to succumb to deeper, darker frailties like fear and xenophobia.  However, it is lethal when these frailties inform and frame national policy. In one of her masterpieces “The Shock Doctrine: Rise of Disaster Capitalism”, world-renowned journalist Naomi Klein conceptualised what she termed “the shock doctrine” –  the exploitation of economic crises to enforce otherwise unpopular laissez-faire economic policies.  She also spoke of its use in the aftermath of 9/11.

What often happens in the wake of tragedies and heightened sense of fear and insecurity by the public is a kind of national security “shock doctrine” (If I may borrow her phrase); the promulgation of otherwise unpopular policies couched in national security terms which in effect strip away citizens’ rights. The aftermath of the 9/11 attacks spawned the Patriot Act, unauthorised wire-tapping and countless human rights violations, including indefinite detentions and waterboarding, violations which may never be prosecuted.  This is not a new phenomenon. Months after the Japanese attack on Pearl Harbour on December 7, 1941 there was the forced imprisonment in camps and deportation of hundreds of Japanese Americans pursuant to President Eisenhower’s Executive Order 9066.

Every day persons are not immune to the draconian national security measures which have been imposed in an effort to protect the state. As recently as this month a Barbadian dentist was arrested in the United States while on a flight from Miami to Barbados simply for having a dental implement. Less dramatic, but still relevant, as recently as last year during the height of the Ebola Outbreak, numerous states, including some in CARICOM, closed their borders to all West African travellers, including some which were not from Ebola affected territories.

Human rights violations in the interest of national security result not just from action but inaction by States. How often have we seen western states sit idly by while innocent people are being slaughtered under brutal dictatorships? How often have we seen western countries prop up dictatorships with arms and other support because it was in their vital economic or geopolitical interests to keep those dictators in power? Pinochet in Chile comes to mind.

History shows that in the fight with national security, human rights will almost always be the challenger and not the champion. One ray of hope is the statement made by President of the United States, Barack Obama at the G20 Leaders Summit in Antalya, Turkey. He said as follows:

“We also have to remember that many of these refugees are the victims of terrorism themselves, that’s what they’re fleeing. Slamming the door in their faces would be a betrayal of our values. Our nations can welcome refugees who are desperately seeking safety and ensure our own security. We can and must do both.”

Another ray of hope is that Prime Minister of Canada, Justin Trudeau, doubled down on his commitment to accept 25,000 refugees.

Both men however have a huge fight on their hands, particularly Mr. Obama. Several US governors have refused to accept any Syrian refugees in the wake of the attack. There have been calls to defund the President’s relocation programme. Republican presidential candidates, appealing to the xenophobic sentiments which characterise much of their base, have voiced their opposition.

However, there is need for consideration of another dimension. While I absolutely and categorically condemn the attacks, western countries have to acknowledge some of the responsibility they have played in creating the environment for extremist groups like Al-Qaeda, ISIL and others like them to gain a foothold and expand in the region. Western countries played a significant role in helping to escalate much of the conflict which currently exists in the Middle East and which has served as a fertile breeding ground for these extremist groups to fill the vacuum created by the absence of the rule of law. Iraq and Libya are just two examples. Moreover, Muslim youth living in these European countries are often discriminated against and persecuted by the police. Groups like ISIL prey on young persons who feel alienated from Western societies in which they were born but are never treated like equals. In this regard, it is incumbent on western nations to address some of these issues to help reduce the attractiveness of radicalisation to these youth.

Is there any way to reconcile this uneasy tension between human rights and national security?  While the tension has always existed, its escalation is in direct response to the completely different nature in which threats to national security manifest themselves in the age of globalisation. It is an age marked by increased porosity of borders and enhanced technological interconnectivity. It is also exacerbated by the difference in the threat itself. Military threats to countries these days are not flotillas of ships or armies coming to invade their territories. They come from well-funded, well-organised non-state entities which capitalise on the increased mobility afforded by globalisation and the interconnectivity permitted by social media to spread their messages of hate and terror.

It is harder to spot a suicide bomber than it is to spot a soldier from an invading army. Increased screening of persons and security measures will of course be increasing priorities to assist states in ensuring they can quickly detect and deter any potential threats to their security.  In the case of the Syrian refugees, screening should of course be done wherever possible. However, while the right of the State to protect its borders is inherent and a necessity of statehood, there needs to be a re-think of the relationship between human rights and national security.  To purport to close the door to all Syrian refugees just because one of the Paris attackers was supposed to have been Syrian is not just unconscionable. It is simply inhumane. The de facto position for years has been that national security rights trump all and that human rights are a pastime to engage in only when there is nothing threatening the homeland.  If we are to ensure that basic rights are protected, then in the conflict between human rights and national security, human rights must triumph. As expressed in the Joichi Ito quote I opened with, jettisoning human rights simply to serve national security concerns only lets the terrorists win.

Alicia Nicholls, B.Sc., M.Sc., LL.B. is a trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read her commentaries and follow her on Twitter @LicyLaw.