- Human Rights and Non-Discrimination in the “War on Terror”
Daniel Moeckli’s Human Rights and Non-Discrimination in the “War on Terror” is an original work on the balance between human rights and national security in the context of contemporary terrorism. The book, based on Moeckli’s doctoral thesis, was published in 2008 as part of the Oxford Monographs in International Law collection of publications.
In Human Rights and Non-Discrimination, Moeckli offers a new angle on the common theme of the balance between individuals’ liberty and national security. Indeed, he focuses on the specific human right of non-discrimination as he explores whether recent anti-terrorism laws have disproportionately affected the liberty interests of particular categories of people.
The book opens with a comprehensive introduction, which presents an analysis of the balance between security and liberty. This outline very clearly identifies the importance of this issue as well as the gaps in the existing academic analysis, which has so far focused on the human right of liberty. Moeckli chooses to limit the scope of his study to post-11 September measures against international terrorism in three democracies—the United States, the United Kingdom, and Germany—and to approach his work by concentrating on discrimination. This focus is justifiable by the otherwise over-wide concepts of counter-terrorism measures and human rights on the one hand, and the lack of existing studies in this particular context on the other.
The first part of Human Rights and Non-Discrimination concentrates on the two main concepts of the work: counter-terrorism regimes and the human right of non-discrimination. It thereby provides a very valuable summary of the research findings to date. Moeckli’s study of the concept of terrorism and counter-terrorism measures covers most issues linked with the subject, from the problem of a common definition to the question of the specificity of terrorism as a crime. He links these issues together by the idea that decisions on all these matters are eventually based on political considerations; Moeckli suggests that all counter-terrorism laws serve to denounce specific terrorism in order to stigmatize the author of a terrorism act and to demonstrate to the public the state’s capacity to react. He stresses that the aim of a counter-terrorism regime is to show that terrorism is never an acceptable tactic and to reassure the public that action against the authors of the act in particular, and terrorists in general, will be taken as soon as possible. As former United States Vice President Dick Cheney declared when hearing about Pakistani physicists discussing the possibility of nuclear weapons with al-Quaeda:
If there’s one percent chance that Pakistani scientists are helping al-Quaeda build or develop a nuclear weapon, we have to treat it as a certainty in terms of our response. . . . It is not about our analysis or finding a preponderance of evidence. . . . It’s about our response.1
This response has traditionally been national and in the context of criminal law. The recent developments in international [End Page 827] terrorism have led to states wishing to counter these acts through adopting international instruments. In spite of this international involvement, states still have a large freedom concerning the procedural means of implementation of their obligations. In general, as there is no international definition of terrorism, it is in the discretion of the states to decide what terrorism is. Therefore, governments will tend to characterize it as “the use of force by non-state actors who are motivated by a political or ideological cause.”2 Further, governments will emphasize their idea of national security over human security, thereby running the risk of infringing on the human rights of its inhabitants under the pretext of “national security.” While national security has always been a concern for states, it has developed in a particular way in the context of terrorism. Moeckli argues that this specificity provokes discrimination. The author reminds us of the various reasons brought forward for justifying specific legislation on terrorism—that terrorism...