The epithet ‘subversive’ had such a vast and unpredictable reach, the struggle against the ‘subversive’ had turned into a demential generalized repression with the drift that characterizes the hunting of witches and the possessed.(National Commission on the Disappeared, Argentina, 1984)
Defending human rights … is a prerequisite to every aspect of any effective counter-terrorism strategy. It is the bond that brings the different components together. That means the human rights of all – of the victims of terrorism, of those suspected of terrorism, of those affected by the consequences of terrorism.(UN Secretary-General, Global Counter-Terrorism Strategy Launch 2006)
The starting point for an analysis of IHRL is the principle of universality: human rights stem from the intrinsic value or the inherent dignity of the human being, irrespective of nationality, status, or indeed alleged wrongdoing. In this vein, as the German Constitutional Court has noted, ‘dignity is not therefore at the disposal of the individual’, just as it is not at the disposal of the state. Rather, IHRL at its core seeks to ensure a basic standard of protection for all human beings at all times, in all places. It becomes more critical, not redundant, in the face of situations of crisis.
Much state practice post-9/11 has challenged this fundamental premise of the universality of human rights law, as will be seen in Part B below. An exceptionalist approach has emerged recurrently, questioning the ‘applicability’ of the human rights framework (whether it is applicable at all, rather than simply as to how it applies) to certain classes of individuals, offshore locations, in a ‘war’ on terror, or in security-challenged situations more broadly. Likewise, the pitting of ‘security’ against ‘human rights’, or resort to the war paradigm, has at times brought into question whether human rights are a luxury we can afford in the face of international terrorism, and questioned how apt or well equipped the human rights framework is to adjust and respond to security challenges.