The False Dichotomy of National Security and Human Rights
We can have both collective security and human rights. Anything less than this weakens our democracy.
Law- and policy-making contains inherent trade-offs; we are often rightly told that we cannot have the utopia where all our hopes and dreams come true.
In the national security space broadly, and specifically within counterterrorism debates, we are told that the trade-off is clear: you can either have human rights or you can have security, not both. Whilst protecting national security and upholding the human rights of potential victims of alleged threats, the human rights of ‘others’ are deemed as acceptable collateral damage.
As I will explain below, this dichotomy — often phrased in terms of ‘balancing’ — is just an oversimplification of the competing policy arguments. Rather than this situation being the aforementioned utopia, we should instead see that laws, policies, and practices that respect both collective security and human rights in fact protect the foundations of a democratic society.
Lawyers and policy specialists are accustomed to this oversimplistic ‘balancing’ debate in policy-making — which permeates everything from the economy and taxation to international affairs and penal reform — a method that produces seemingly clear and easy options for legislators. It is easy to justify your response to the media and the public if you frame it as two contrasting choices.
Hell, in an earlier life as a tutor, I would advise students in taking this somewhat binary approach when writing legal essays, as a surefire way to high grades.
But what works in the classroom should not work in policy-making.
While many decision-makers do extol the virtues of a comprehensive approach, what we hear in public debates and in the media remains true to basic dichotomies. And in many instances, this eventually permeates into policy- and law-making.
Perhaps the most pertinent example is in the national security context and the aforementioned dichotomy between that ideal and human rights.
One instance can be seen in the UK Government’s frequent use of closed material procedures (CMPs), whereby one party, usually an executive body, can seek to prevent certain aspects of legal proceedings from being made public. Legal doctrines authorising secret judgments are not new, and are frequently — and perhaps justifiably — used both to protect the privacy of the parties and also in the interests of national security, but where CMPs differ is that they go further. If successful, they authorise the executive to rely on evidence that the other party cannot see. Not only will they have to guess what the secret evidence allegedly proves, but they will nonetheless be unable to challenge its credibility and the executive’s methodology.
While the role of judges may mitigate any human rights concerns in this context — for instance by refusing a CMP application or by independently and sufficiently scrutinising the content and methodology of the secret evidence — we cannot know for certain whether judges actually fulfill this role. As a result, the fundamental right to a fair trial is limited in the interests of national security.
Whereas, in fact, we can have both liberty and security.
Respecting the human rights of everyone, including those deemed to be security threats, creates a more transparent, free, and frankly a ‘better’ society for us all.
Take CMPs for example. Originally introduced with a somewhat limited scope, subsequent legislation spearheaded by an emboldened government has since significantly expanded their remit. In response to a recent UK Government review, many NGOs with tangible experience of the use of CMPs demonstrated this ‘mission creep’s’ impact not only on alleged security threats but also on the general public.
While upholding the rights of all creates a more transparent system and holds the executive to account, it also ensures that basic principles of legality and the right to a fair trial are upheld. It is important to remember that, in many instances, national security and counterterrorism measures are taken both before any criminal act has occurred — instead looking to ideology or intention — and before culpability has been proven before a court of law.
While the well-treaded critique of the rendition process touches on these issues, the UK has also taken a step further into the pre-crime space with its strategy for countering violent extremism, Prevent. In obliging teachers, social workers, and other essential service providers to monitor and report on those ‘at risk of being drawn into terrorism’, the strategy has caused significant damage to the communities it has been trying to police. As well as concerns regarding discrimination against Muslim communities, Prevent has also stopped people from accessing essential services due to a fear of being criminalised, despite having committed no criminal act.
It is also important to consider that such a polarised analysis also fails to consider the contested idea that violating human rights may in fact lead to more severe individual and collective security threats in the future. While the sociological basis behind this view is contested, we should at least be considering it as part of a comprehensive law- and policy-making process.
In this short piece, I have sought to address the misconception that national security and human rights are in fundamental tension. The dichotomy is, simply put, a myth.
