Crisis Lawyering in a Lawless Space

2021 ◽  
pp. 32-62
Author(s):  
Baher Azmy
Keyword(s):  
Human Rights ◽  
War On Terror ◽  
State Power ◽  
September 11 ◽  
Constitutional Rights ◽  
Legal Intervention ◽  
Historic Period ◽  
Legal Challenge ◽  
Political Consensus ◽  
Indefinite Detention

This chapter tells the story of the initial legal intervention by a small bold group of radical lawyers at the Center for Constitutional Rights (CCR) and elsewhere to challenge the George W. Bush administration’s policy of indefinite detention and torture in Guantánamo in the immediate aftermath of September 11. That initial legal challenge was undertaken on pure principle but seemed initially futile given the president’s war on terror posturing and categorical denial of the applicability of law. Yet in part through CCR’s mobilization of hundreds of other lawyers and human rights advocates, just six years later there developed a legal and political consensus that the prison should be closed. While recognizing the courage and creativity of crisis lawyering during a historic period, this chapter underscores that the authoritarian legal architecture in Guantánamo, like all forms of repressive state power, is resilient and can render claims of rights by the disfavored unenforceable.

Human rights abuses at the limits of the law: Legal instabilities and vulnerabilities in the ‘Global War on Terror’

2017 ◽  
Vol 44 (1) ◽  
pp. 2-23 ◽  
Author(s):  
Rebecca Sanders
Keyword(s):  
Human Rights ◽  
War On Terror ◽  
State Violence ◽  
Legal Compliance ◽  
Liberal Democracies ◽  
Global War On Terror ◽  
Human Rights Abuses ◽  
Indefinite Detention ◽  
Protection Of Human Rights ◽  
Global War

AbstractLaw following and law breaking are often conceptualised as polar opposites. However, authorities in liberal democracies increasingly deploy a strategy of what I callplausible legalityin order to secure immunity and legitimacy for proscribed practices. Rather than ignore or suspend law, they construct legal justifications for human rights abuses and other dubious policies, obscuring the distinction between legal compliance and non-compliance. I argue this is possible because instabilities in legal rules make them vulnerable to manipulation and exploitation. By tracing American rationales for contentious ‘enhanced interrogation techniques’, indefinite detention, and ‘targeted killing’ practices in the ‘Global War on Terror’, I show that law need not always be abandoned or radically reconstituted to achieve troubling ends and that rule structures enable certain patterns of violation while limiting others. The international prohibition on torture is robust and universal, but provides vague definitions open to interpretation. Detention and lethal targeting regulations are jurisdictionally layered and contextually complex, creating loopholes and gaps. The article concludes by reflecting on implications for the protection of human rights. While law is not wholly indeterminate, human rights advocates must constantly advocate shared legal understandings that constrain state violence.

The Fate of Human Rights in the Global War on Terror

2018 ◽  
Author(s):  
Rebecca Sanders
Keyword(s):  
Human Rights ◽  
War On Terror ◽  
The United States ◽  
State Violence ◽  
Humanitarian Law ◽  
Global War On Terror ◽  
Legal Norms ◽  
Indefinite Detention ◽  
Global War ◽  
Trump Administration

American officials attempted to construct the plausible legality of torture, indefinite detention, targeted killing, and mass surveillance in the global war on terror. These efforts were largely successful, foreclosing prosecution and ensuring impunity for human rights violations. Moreover, with the exception of torture, many of these counterterrorism practices persist and enjoy widespread acceptance. Around the world, international human rights and humanitarian law have been weakened by American efforts to erode and reinterpret constraints on state violence. This has created space for more overt attacks on legal norms by the Trump administration, which has signaled its intent to shift American national security legal culture toward the politics of exception. At the same time, international law advocates are pushing back. The chapter concludes by reflecting on possible pathways for promoting a culture of human rights in the United States.

scholarly journals CONCEPT OF APPLICATION OF WORKERS 'CONSTITUTIONAL RIGHTS JUSTICE OUTSOURCING

2019 ◽  
Vol 3 (2) ◽  
pp. 164
Author(s):  
Mashari Mashari
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Human Dignity ◽  
Logical Consequence ◽  
State Power ◽  
Constitutional Rights ◽  
Entire System ◽  
State Law ◽  
The Rule Of Law

<p>Indonesia as a state of law, which in the implementation of state power is carried out<br />under the rule of law. The logical consequence, the entire system of administration of state<br />administration must be based on the constitution.<br />1<br /> Every implementation of state or government <br />power is always built by and based on the principles and provisions of the constitution.<br />The Indonesian Constitution states that the human rights of all citizens must not be<br />violated and must be fulfilled. The provisions of Article 1 paragraph (1) of Law Number 39 of<br />1999 concerning Human Rights, which basically says that human rights are rights that are<br />inherent and inherent in every person as God's creatures. As rights inherent in every human<br />person, human rights are gifts that must be respected, upheld, guaranteed and protected by the<br />state, law and government, for the glory and protection of human dignity.</p>

Involuntary Circumcision of Males in Illegal Initiation Schools in South Africa: A Violation of African Customary Human Rights?

2018 ◽  
Vol 33 (1) ◽  
Author(s):  
Porsche Makama
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Cultural Beliefs ◽  
Young Men ◽  
Cultural Tradition ◽  
Constitutional Rights ◽  
Topical Issue ◽  
Community Members ◽  
Human Right ◽  
Traditional Practice

The incidence of deaths associated with the practice of forced and botched circumcisions at initiation schools has become a topical issue in South Africa. In recent times, the number of deaths and injuries among initiates has risen at an alarming rate, most of them occurring at illegal initiation schools. The continuous rise in the number of injuries among initiates at these schools has elicited mixed reactions among community members, some referring to it as genocide in the case of fatalities and calling for its abandonment, while others argue that this traditional practice should be allowed to continue. The majority of young men who go to initiation schools do not make the decision on their own, nor do they have a choice in the matter. Instead they are compelled by parents or guardians, influenced by friends, and also coerced by others in the community who insist that they have to ‘go to the mountain’, as initiation schools are generally referred to in South Africa. It has been argued by those against circumcision that this practice infringes constitutional rights and contravenes the Children’s Act 38 of 2005. There have been numerous instances where young and even mature males have been taken from the streets, or even from the comfort of their homes, and forced into circumcision camps with or without their consent. This begs the question whether the continued practice of a cultural tradition that violates the fundamental human right and freedom to choose religious and cultural beliefs is justifiable.

Plausible Legality

2018 ◽  
Author(s):  
Rebecca Sanders
Keyword(s):  
Human Rights ◽  
State Violence ◽  
Habeas Corpus ◽  
Global War On Terror ◽  
Political Actors ◽  
Legal Norms ◽  
Drone Strikes ◽  
Indefinite Detention ◽  
Global War ◽  
Enhanced Interrogation

After 9/11, American officials authorized numerous contentious counterterrorism practices including torture, extraordinary rendition, indefinite detention, trial by military commission, targeted killing, and mass surveillance. While these policies sparked global outrage, the Bush administration defended them as legally legitimate. Government lawyers produced memoranda deeming enhanced interrogation techniques, denial of habeas corpus, drone strikes, and warrantless wiretapping lawful. Although it rejected torture, the Obama administration made similar claims and declined to prosecute abuses. This book seeks to understand how and why Americans repeatedly legally justified seemingly illegal security policies and what this tells us about the capacity of law to constrain state violence. It argues that legal cultures shape how political actors interpret, enact, and evade legal norms. In the global war on terror, a culture of legal rationalization encouraged authorities to seek legal cover—to construct the plausible legality of human rights violations—in order to ensure impunity for wrongdoing. In this context, law served as a permissive constraint, enabling abuses while imposing some limits on what could be plausibly legalized. Cultures of legal rationalization stand in contrast with other cultures prevalent in American history, including cultures of exception, which rely on logics of necessity and racial exclusion, and cultures of secrecy, which employ plausible deniability. Looking forward, legal norms remain vulnerable to manipulation and evasion. Despite the efforts of human rights advocates to encourage deeper compliance, the normalization of post-9/11 policy has created space for the Trump administration to promote a renewed culture of exception and launch bolder attacks on the rule of law.

Diplomatic Assurances Against Torture – An Effective Strategy? A Review of Jurisprudence and Examination of the Arguments

2008 ◽  
Vol 77 (4) ◽  
pp. 319-364 ◽  
Author(s):  
Lena Skoglund
Keyword(s):  
Human Rights ◽  
International Law ◽  
War On Terror ◽  
The State ◽  
Security Threats ◽  
International Human Rights ◽  
Actual Risk ◽  
Substantial Risk ◽  
International Human ◽  
Controversial Area

AbstractHuman rights organisations have warned repeatedly that basic human rights are being challenged in the so-called 'War on Terror'. One particularly controversial area is the use of diplomatic assurances against torture. According to international human rights instruments, the state shall not return anyone to countries in which they face a substantial risk of being subjected to torture. In the 'War on Terror', an increasing number of non-citizens are being deemed 'security threats', rendering them exempt from protection in many Western states. To be able to deport such 'threats' without compromising their duties under international law, states are increasingly willing to accept a diplomatic assurance against torture – that is, a promise from the state of return that it will not subject the returnee to torture. There is wide disagreement as to whether and/or when diplomatic assurances can render sufficient protection to satisfy the obligations of non-refoulement to risk of torture. Whereas the human rights society label such assurances as 'empty promises', others view them as effective, allowing states to retain their right to remove non-citizens without violating international law. This article reviews international and selected national jurisprudence on the topic of diplomatic assurances against torture and examines if and/or when such assurances might render sufficient protection against torture to enable removals in accordance with international law. The courts and committees that have reviewed the use of diplomatic assurances against torture have identified essential problems of using them, thus rejecting reliance on simple promises not to torture. However, they have often implied that sufficient protection might be rendered by developing the assurances. I argue that this approach risks leading the governments into trying to perfect a system that is inherently flawed – whilst, incidentally, deportations to actual risk of torture continue. Even carefully modelled assurances render only unreliable protection against torture. For this, and reasons connected to undesirable side-effects of their use, I argue that the practice should be rejected.

Sign in / Sign up

Export Citation Format

Share Document