HUMAN RIGHTS AND TERRORISM - Netherlands Helsinki Committee

PART IV: HUMAN RIGHTS VERSUS SECURITY, A CRUCIAL DIALOGUE
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plenary debate
Severe criticism on some states’ security policies

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Put representatives of human rights or humanitarian organizations together with delegates from nations involved in areas of conflict. What inevitably happens? Severe criticism will be heard on the human rights aspects of some states’ policies, as in the third debate of the seminar. This debate hones in on both disapproving and justifying interventions on anti-terrorist policies regarding Uzbekistan, Chechnya, and the prisoner-of-war status of the Guantanamo Bay detainees.
In addition, some delegates respond directly to Mr. Malinowski’s view that any successful security policy should fully respect all human rights. Some argue that public security is a common good that may demand some sacrifices from individuals, i.e. some infringement on their fully enjoying their human rights.
The friction between human rights and security is also addressed at a practical level, for instance as a recommendation to make institutional arrangements to deal with this friction, or as a recommendation for a more realistic approach by organizations who criticize states’ human rights behaviour: isn’t denying the existence of friction between security and human rights a too lofty, academic point of view, when states in fact do set aside notions of human rights when dealing with urgent security issues? Shouldn’t human-rights organizations address this security-reflex?
Another practical matter comes up further to Mr. Malinowski’s criticism of the U.S.’s rounding up 1,200 aliens from Muslim countries in the aftermath of ‘9/11’. Could this be described as detaining and convicting presumed terrorists, based on group characteristics alone? Professor Dinh thinks it is not (and that it would be illegal, otherwise). But, he argues, it is entirely legal to make maximum use of any infringement of any law that might remove suspected terrorists from the streets or from the country.
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Plenary debate: disapproval from human rights organizations, justifications by criticized states.

Mr. Alisher Shaykhov (Uzbekistan):
“Focus on the security needs of the general population”
“One of our main dilemmas is balancing the costs of action and inaction, as was mentioned by professor Dinh. When one acts, usually some mistakes are made, but when one doesn’t act, one has a serious problem. ‘September 11’ is, I think, the result of inaction by the international community. It is absolutely clear that we have learnt our lesson.
There’s also a dilemma between theory and practice. When one has had the experience of being victimized by terrorist acts, one’s thinking changes, one’s understanding of terrorism changes, as happened in the United States after September 11. With this new understanding of the problem of terrorism, for the United States it was easier to make the decision to become involved in Afghanistan and in Iraq. But for our country, it was a very difficult decision, and the same applies to others participating there. There’s the dilemma again: one has to choose to prevent new problems, new terrorist acts in the future. And then: whose human rights are we thinking about when we’re dealing with terrorism? The rights of the victims? The rights of the terrorists? Or the rights of the public, the potential victims? The state’s responsibility, of course, is for the potential victims. So we don’t just have to think about the terrorists and the suspects. I think that this is where Human Rights Watch is possibly making a mistake. By usually highlighting certain problems. These do exist, no doubt about that. But one should focus on the problems of the general public, the other side, the majority of the population, who need support to realize their right to live in a peaceful and secure world.”

Mr. Piet De Klerk (The Netherlands):
“Design institutional arrangements for dialogue between human rights and security sectors”
“If you’ll allow me, I’ll sketch three models to embody the crucial dialogue between human rights and security within foreign policy institutions. The first model I would call ‘integrated foreign policy’, which implies mainstreaming human rights in all regional and thematic parts of foreign policy. There, human rights aspects are structurally taken into account in any kind of decision-making process. In this model, those responsible for implementation of security policies are also responsible for the introduction of human rights aspects into those policies. Only if asked for advice by the security sector, specific advice could be provided by the human rights sector.
The advantage of this model is that it is efficient, but, due to pressures the security sector faces, it might be tempting to devote little, if any, time to the human rights dimension.
A second model I would call ‘clash of interests’, which is the opposite; the security section within the administration is responsible for the security interest. It is up to the human rights sector to criticize any measures that may run counter to human rights’ interests. This model has the advantage that the responsibilities are clear and simple, but the disadvantage is that it could lead to bureaucracy and possibly to endless fights between the two sectors, which may delay decision-making. In times of pressure, the end-result may be that ministers are tempted to rely merely on the security sector for quick decisions and ignore the human rights sector.
A third model is a bit of an intermediate model, as you may have expected. It’s based on the general philosophy of integrated foreign policy, but it also faces reality; it recognizes the fact that human rights are forgotten when security pressures are high. In order to deal with this, special institutional arrangements are introduced to make sure that human rights aspects will effectively be taken into account by the security sector. Institutional measures in this regard could be the designation of someone with the explicit responsibility for human rights within the security sector, or of someone with the overall responsibility in the organization to protect the human rights dimension. At the international level, a corresponding arrangement could be the inclusion of human-rights expertise in international decision-making bodies within the security sector. Now I mention these models not to suggest a choice myself. But I think it would be interesting to hear some reactions to these models, because it is important to give shape to the tensions between the two areas in the different institutions.”

Mr. Vladislav Ermakov (Russian Federation):
“Give terrorism legal status as a violation of human rights”
“Before making a couple of comments on the very interesting presentations we have been listening to, I would like to ask Mr. Malinowski a question. He pointed out that, as a result of actions of the Russian authorities, Chechnya has become a battlefield where everybody can be killed. My question: isn’t Iraq not as well gradually becoming such a battlefield as a result of the actions of the current occupational administration? Where everybody can be killed, including representatives of the United Nations? The recent tragic event of the assassination of Sergio Vieira de Mello (?) may be quite an illustration to this effect.
As to the presentation, it brings us back to the theme whether terrorist attacks are crimes or violations of human rights. Whether terrorists per se may be considered as suspects of violations of human rights. The near future may force us, I believe, to reconsider. The doctrine of human rights was developed after World War II, in circumstances quite different from what we face now. As a result of globalisation, many states and indeed non-state subjects are able to commit very severe violations of human rights. I therefore believe that it would be extremely important to review this issue. And if we declare that terrorists do not only attempt to violate human rights, but de facto do violate them, this may be an important step forward in our collective fight against terrorism. This issue has already been discussed within the Council of Europe, when we elaborated the Guidelines (?). At that occasion we have developed a mitigated phrasing: ‘Terrorism is a serious threat to human rights’. We should go a bit further, to give terrorism a more concrete status in international law. It’s no coincidence that the UN-resolution (?) that followed September 11 explicitly said that terrorism is not only threatening human rights, but that it is oriented towards removal of human rights. This is still a doctrine, there’s no clause in international law. I’m asking myself, if we don’t acknowledge terrorism as directly violating human rights, shouldn’t we acknowledge it as destroying human rights?”

Mr. Ulrich Fischer (International Helsinki Federation):
“Gross violations of human rights are being excused as ‘fighting terrorism’”
“As a human-rights organization the International Helsinki Federation has several national committees, for example in Russia; we are very close to the Chechen conflict and we have good friends and colleagues in Uzbekistan. Of course, we acknowledge the dilemmas of security and human rights. And we see the problems of the Uzbek government, as we see the problems of the Russian Federation government. It’s just that you use horrifying methods to keep up your security. So horrifying that I only can be impolite, sir. As I know myself, you still have the policy of putting dissidents in psychiatric clinics and mistreating them heavily. I’ve been there myself, in Tashkent. You still have goelags, near the border of the Aral Sea, where people disappear to. You have more than 3,000 death-penalties and executions yearly. And the families of the victims are not even being told that their beloved ones have been killed by the State. These are human-rights violations, these are actions by your government.
And they are totally unnecessary. We would like to help. We have been discussing the necessity of promoting human rights in the fight against terrorism, with your colleagues in Tashkent, in Parliament, in the government. The Islamic movement of Uzbekistan probably is a terrorist organization, we agree on that. But the way you fight them is totally unacceptable. Hizb ut-Tahrir (?) is not a very nice organization, but they have the right to speak up. So far they have been peaceful, so why do you hassle them? Why do you sentence people to eighteen or twenty years in prison, just for having a mindset that doesn’t go along with your government’s mindset? Why do you resettle people from the Tajik minority fifteen-hundred kilometres away from the border of Tajikistan? These are very serious human-rights violations and they do not help Uzbekistan being accepted in the world community and especially not in the human-rights community.
Then some words with regard to the comparison of the gentleman from the Russian Federation of the behaviour of American and Russian troops, in Iraq and Chechnya, respectively. We have been to Chechnya, I have been to Grozny myself. And I would to like to remind the gentleman from Russia to think about the state of mind his soldiers there are in. They are dressed and behaving like bandits. You almost cannot call them orderly troops anymore. And they are hassling the civilian population every night. I don’t want to go into details, but everyone knows.
And one cannot say that of the American troops, not at all. I’m not agreeing with the fact that America has waged the war in Iraq; I’m from Germany and I agree with my government. But American troops are trying to save civilian’s lives, while hunting suspects from the former regime, they are not hassling the civil population. This comparison just isn’t acceptable.
These are just some private comments, but I had to get them off my plate.”

Mr. Jose Pablo Alzina (Spain):
“Sacrificing a bit of our rights to gain collective security is our citizen’s duty”
“The debate about human rights and security is an old one, discussed in various fora. Today, we seem to forget an equally old idea. In the context of social relations, public interest, and the life of citizens, one cannot speak of rights without at the same time understanding the duties one has, as a citizen, as a human being; duties towards society, towards common goals and towards one’s fellow-citizens. Let me give some examples. We pay tax, i.e. we give up part of our right to a good salary to gain social security. We are ready to limit our right to move freely, when we stop at a red light. Soldiers, policemen and security-officers are daily risking their life to prevent us becoming victims of terror and living in terror. As citizens, we should also pay our fair share in this fight and be ready to sacrifice, or to contribute with, a certain amount of our rights, with a certain degree of inconvenience, and with a certain degree of sacrifice. Just as we do for other important social motives, such as social security, transport, or a well-functioning administration. So, let us also speak about our duties. Maybe it’s not politically correct, but I think it is very realistic and very just.”

[Mr. David Morris] (USA):
“Military intervention is just one part of the U.S anti-terrorist strategy”
“First a couple of comments. I like to thank the organizers for choosing three presenters from the United States who prove only too well what a lively debate we have domestically. I like to thank Mr. Malinowski for mentioning—in what I think was a very balanced presentation—the role of U.S. diplomacy. And in this context we do indeed speak every day with governments around the world. And as my Uzbek, Russian and some other colleagues from Vienna today represented here around the table very well know, in the context of the OSCE we are one of the most vocal to criticize on human rights and democratisation issues. We’re also one of the largest contributors to democratisation, good governance and civil society. So we’re certainly not only resorting to military means alone.
In the context of possible discrimination, racism, or xenophobia in the United States as a result of the war on terrorism, I would like to refer delegates here to the website of my mission: www.usosce.gov, to the interventions of a conference (?) a few weeks ago, on that very subject. And particularly to an intervention by a colleague of Mr. Dinh, Mr. Ralph Boyd Jr., former Assistant Attorney-General for Civil Rights in the U.S. Department of Justice, in which he refers in great detail to the efforts of the U.S. Department of Justice and of the entire administration to reach out to those who are most at risk from a ‘backlash’ from the war on terror, particularly the Arab-American and the South-Asian communities. I think that would be very interesting reading for the people here.
Just a few more interesting points, if I may. There is the question of detainees ‘in limbo’, those who are not considered combatants. Although the U.S. never recognized the Taliban as the legitimate government of Afghanistan, President Bush determined that, as Afghanistan is a party to the Geneva Conventions, the Conventions apply to the armed conflict with the Taliban. Under the terms of the Third Geneva Convention of 1949 , however, the Taliban fighters are not entitled to POW status. Specifically, the Taliban did not qualify as lawful combatants (or POW’s) under Article 4 of the Third Geneva Convention of 1949 because they failed to satisfy the conditions of that Article. The Taliban have not effectively distinguished themselves from the civilian population of Afghanistan. Moreover, they have not conducted their military operations in accordance with the law and customs of war.
I would also like to call the attention of the delegates to the protection we afford to the defendants or accused who are in fact in military detention. The military commissions that may well be put together will be impartial. They will provide full and fair trials. Any guilty findings in a military commission will follow the established standard of all United States courts—guilty beyond a reasonable doubt.
Additionally, other legal protections for the accused will be observed, including:

the presumption of innocence;
representation by defence council, at no cost to the accused;
the death penalty can only be imposed by unanimous decision of a 7-member panel;
in all cases review is available by an impartial, 3-member panel (possibly including civilians who are temporarily commissioned in the U.S. military);
the accused is not required to testify, and no adverse inference may be drawn from a refusal to testify;
the accused may present evidence in his defence and may cross-examine witnesses presented by the prosecution;
proceedings will be open to the public ‘to the maximum extent practicable’ (but they can be closed to protect national security and other interests);
at all times, including in any closed proceedings, the accused will be represented by counsel;
the prosecution will provide the accused with access to evidence the prosecution intends to introduces at trial and with access to evidence known to the prosecution that is inconsistent with the alleged guild of the accused;
the review panel has the authority to return the case for further proceedings if a majority of its members have a definite and firm conviction that a material error of law occurred.”

Mr. Alisher Shaykhov (Uzbekistan):
“The accusations of human rights abuses are false and don’t help Uzbekistan”
“Unfortunately this [intervention of the International Helsinki Federation] is one of the examples of highlighting certain problems without showing the whole picture. Wrong information was given. The Tajik people are a big minority, but we have a lot of Tajik people working in the government, including the Deputy Prime-Minister and some Ministers. So I’m really surprised that such information is announced here.
We have another problem. It is not easy to tackle terrorism when society faces many challenges. We’re trying to build civil society. Somebody mentioned the so-called religious minorities that would be hassled also in Uzbekistan. This mention of Islamic minorities is absolutely wrong, as it is a majority; we cannot struggle against a majority in Uzbekistan.
And one thing that I also want to mention. It is a pity that only mention of bad things is applauded here. Why are you not talking about the big educational efforts? You lived in Uzbekistan. And only one country in the region is requesting more credit for educational purposes from foreign countries. Why? Because we want to do well for our society, we want to do well for the people, for new people who understand democracy. Unfortunately, organizations like yours only criticize and pick on the really bad things, never help us. We are really pleased to have the strong support of the United States. The United States is helping us in this area. The European Commission is helping us in developing democracy, also. Belgium is helping us in the area of education. A lot. But we’re knocking on many countries’ doors, asking for their support. But they’re sending their experts just to get additional investment for themselves only, without sharing their experience. If you to have this experience, please share it with us. Sometimes we feel a lack of will. There is the will to criticize, but not the will to share your experience to reach the same level of development as you have.”

Mr. Vladislav Ermakov (Russian Federation):
“Doesn’t the U.S. intervention in Iraq provoke terrorism?”
“Just a short answer to the representative of the Helsinki Federation. First of all, he hasn’t quite correctly understood my words. What I said, was that I would like to ask Mr. Malinowski what he wanted to say concerning Chechnya. As I understood, it was an interpretation of the facts in such way that when the Russian government just provides security for its own citizens, its actions in Chechnya are presented as an escalation of the conflict, which would provoke terrorists. The victims of terrorisms are not mentioned, though. So we have a certain imbalance here, and in this context we would like to hear an opinion of a human-rights expert. Don’t you think that the same imbalance that is found here, can be seen in Iraq? That the actions of the American authorities might provoke terrorists; might provoke them to commit the terrorist acts that took place there? Again I would like to underline that we support a balanced approach.”

Mr Gabor Rona (International Committee of the Red Cross):
“The U.S. has not correctly determined the possible POW status of Taliban fighters”
“My ears prick up whenever a presentation is about the content of the Geneva Conventions, as was the case moments ago, concerning the requirements for determining the status of prisoners of war. I would like to point out a somewhat different interpretation than the one we heard, although this doesn’t bear directly on the conversation concerning human rights and terrorism.
The article mentioned, Article 4 of the Geneva Conventions, which deals with prisoners of war, says that members of armed forces of a party to the conflict are prisoners of war. Full stop. At the ICRC we are quite aware that there are other views. One of them was represented a few minutes ago: that, in order to qualify for prisoner-of-war status, individuals have to meet other criteria. Indeed Article 4 of the Geneva Conventions does have other criteria, but it applies those other criteria only to members of militias and other volunteer movements. So they don’t apply to members of the armed forces themselves.
Even if you still go with the view that other criteria need to be met—although the Conventions’ language itself does not stand for this view—then for that purpose the Conventions establish a process for the determination of possible prisoner-of-war status. Time and time again, the ICRC has mentioned that that process is required for detainees in situations of armed conflict.
One more point is that the Conventions also say that those who otherwise qualify for prisoner-of-war status but are suspected of committing war crimes, do not thereby lose their prisoner-of-war status. Of course they may be prosecuted for those crimes. And so, once again, we see the rather holistic view in the Conventions, that at least members of regular armed forces, even if they do not abide by the principle of the Conventions, are not denied prisoner-of-war status. They do, however, become subject to prosecution.”

Mr. Andre Kamenshikov (Nonviolence International):
“Human rights are served by bridging the gap between reality and human rights theory”
“In one presentation it was said that there’s no serious dilemma between the fight against terrorism and protection of human rights. I would like to comment on that. Theoretically, everything said seemed very nice and true. But looking at reality, we should admit that there’s an extremely wide gap between reality on the one hand, and human rights norms, regulations and principles on the other. Especially when there are very serious terrorist threats, violence, or war, for instance in Chechnya, we face the problem that, in fact, governments simply not recognize the situation as it is. The need for some kind of special limitation of human rights is not even recognized; human rights are simply ignored. When we refuse to move an inch from human rights principles and the reality is totally different, are we then really serving our cause rightly? Maybe we should accept the legitimate concerns of governments and institutions fighting terrorism, at the same time demanding that they openly acknowledge what they’re doing in the human rights field, rather than making it look like there is no issue at all. Maybe that would be more effective, maybe we could bridge the gap between reality and what we would like reality to be. I think such a strategy would be more effective than just saying: these are the human rights norms and there is no contradiction between the need to fight terrorism and these norms.”

Mr Marten van Harten (Helsinki Citizens’ Assembly):
“How do neighbourhood watches function as counter-terrorism measure?”
“The Helsinki Citizens’ Assembly (HCA) is a network of civic initiatives in the OSCE region, including the United States. I would like to thank professor Dinh for the image of the ‘building of ordered liberty’, which, I think, is quite clarifying for highlighting the positive role civil society can play in preventing terrorism. On September 11 ‘the button was pushed to crush the building’, but the foundation remained largely unshaken; the foundation, as far as local civil society in New York City was concerned. There were many civic initiatives dealing with the effects of terrorism, engaging in local dialogues, and also avoiding public disorder. In my understanding these came not only from the NGO sector, but also spontaneously. Just like the infrastructure of the local neighbourhood watch: just ordinary, committed citizens engaged in crime prevention. Now the question is, as I understood, U.S. Attorney-General John Ashcroft has ordered the doubling of neighbourhood watches with the purpose of gathering information about terrorism. Is this effective? Does it work? Are citizens trying to identify terrorists and to collect this kind of information? Second question: what safeguards are provided, especially on the level of civic monitoring of the executive, the intelligence services and the police?”

Mr. Victor Wei (Belgium):
“Do general indications suffice for either detention or administrative measures?”
“When preparing for coming here, I read the documentation issued. On page two, there was an interesting question, to my mind, to which I haven’t had an answer yet, while other questions have received answers. The question is this one: is it necessary for detention of presumed terrorists to be based on concrete accusations, or can it be based on general indications, e.g. the person belonging to a certain group? The complementary question is, when one is not talking about detention but about administrative measures, what type of proof is needed then?”

Reaction Professor Viet Dinh (Georgetown University Center, USA):
“Despite some initial mistakes, in the U.S. no violation of human rights will be tolerated”
“I will start with the last question, because it is the most interesting and the least political one of the questions that I have to address. Also it is the easiest one to address as a former government official and as a legal scholar. Acting on general suspicions, based on nothing but group characteristics, would not only be unjustified under domestic United States law, it would even be unconstitutional under United States constitutional law and there would be administrative, legal, and in some case criminal, sanctions for such racial or ethnic profiling.
Which brings us to the immediate response of the United States government after September 11, which Mr. Malinowski has criticized. This reaction doesn’t correspond to the situation that the representative from Belgium posited, namely that there are no other allegations or indications of criminal or other violations of law. After September 11, a number of people were arrested or detained, but each single one of these persons was detained based on a individualized predicate of either a criminal law violation or an immigration law violation. Tom is exactly correct that not all of these violations are terrorism-related, and they have been charged with criminal offences as common as credit-card fraud or immigration offences as common as visa-overstays. But charging them with common offences isn’t a human-rights violation; there is no legal, constitutional or moral right to violate the laws of the host-country.
And our strategy is very clear: if we suspect someone of terrorism, we will use every effort to remove him from the streets, from the country, from the people whom he would do harm. We do not violate any principle or any legal standard, because we rely upon an independent, and sometimes truly independent, violation of law that is not linked to the suspicion of terrorism. That said, I think that Tom has been very balanced, certainly the most balanced of the conversions I have been fortunate enough to be in, and I’ve been participating in a lot of debates. He has been pointing out some of the mistakes of the last years; these mistakes have been few, but there have been some. And the mark of a civilized society, governed by the rule of law, is not that we prevent or deny the mistakes, or sweep them under the carpet, but rather that we respond to them. And I think that the administration, after a couple of missteps, has been very clear and unequivocal that any violation of legal or human rights standards would not be tolerated. And where it has happened in the Department of Justice, the Attorney-General has taken the allegations very seriously and ordered investigations, and, where applicable, to prosecute the individuals involved. Human beings will make mistakes. Our job as government officials is to uncover those mistakes and punish the transgressors, not simply to admit those mistakes and sweep them under the carpet.
One comment about the military commission, before I end with the specific question about civil society. I want to be absolutely clear that the representative of the United States is absolutely right, in my independent assessment, about the military commissions’ procedures. My assessment is truly independent, because I was not involved in the constructing or the drafting of them while I was in the Department of Justice; other colleagues were. It is right that the procedures are as vigorous as any judicious process available in the United States and certainly any other country represented here at this table. My only quibble is that, in order to truly show how effective and protective they are, we should start using them and, especially, we should at least promise to use them in the cases of José Padilla and Yaser Hamdi (?), hopefully before those cases have reached the United States Supreme Court. Because I cannot see the United States Supreme Court deferring to an executive process, absent any such an executive process such as the military tribunals.
I understand that these tribunals cause a lot of concern among the European countries, but I would only ask that those who express this concern ask their own individual governments, their departments of military history, to show the history and evolution of these military commissions, especially as used by the European allies in thousands of cases, during and after World War II, as a precedent for such uses. You may conclude that your government has evolved to a point where these commissions are not tolerated, but I think that candour in the recognition of the historic, traditional and legal precedent of these commissions in times of war is a necessary precondition to such criticism.
Finally, I want to end with the civil society comment. It has been a work-in-progress, I likened our responses to terrorism of the last two years as the sprint-stage of a race. Now we are entering the marathon–phase of the ongoing race against terrorists in order to protect our security. The sprint started right after September 11. With respect to the responses of the New Yorkers to that tragic attack, I think it was spontaneous. I think that no government official and no government institution could have ensured the tranquillity of the citizens in a city of twelve million people, when all essential services collapsed. One only had only to look at the recent black-out in New York and the responses of the city’s residents, as compared to the last one in the seventies, when there was looting and crime rampant in the streets, to see how the attitude of New Yorkers has changed, how a city has come together as a community. And so in tragedy we find community. And that is where the source of the idea with respect to the neighbourhood watch has originated. In World War II, President Roosevelt had established rooftop-watchers; these were ‘block-captains’, who would get on their rooftops every day to watch for enemy planes coming into the coast, the East Coast or the West Coast. Obviously, they did not see very many planes, as the watchers were established after the attack on Pearl Harbour. But it was a very useful tool for the President to get citizens’ support for the war.
With respect to the neighbourhood watches, these are ongoing activities, spontaneous, by the communities, in order to report crimes. After September 11 there was a proposal to expand and empower these neighbourhood watches to report terrorism activities. It is very unfortunate that, as a political and public-relations matter, it was named ‘Operation Tips’. It was portrayed as an operation where neighbours would be spying on neighbours, mailmen on their customers (there was even a question that came to me, whether it would be a crime for dogs to attack a mailman, because the mailman would be a law-enforcement officer). Because of the public outcry, needless to say, we did a ‘CTRL-ALT-DEL’, we rebooted the programme. So we do not have any evidence to share with you about its effectiveness or its restrictions. I do know that in the original design of the programme, not originating from the Department of Justice but from elsewhere, there were restrictions, for proper training of personnel.”

Mr. Tom Malinowski (Human Rights Watch):
“Human rights protection might even benefit from the ‘War on terrorism’”
“Let me respond to a couple of things: Russia, Uzbekistan and maybe a bit on the military commissions. I was asked by the representative of the Russian Federation what I meant, so let me try to explain. What I meant, and what I believe, is that one of the keys to fighting terrorism in a conflict situation is that one has to distinguish between terrorist combatants and civilians. Because if one fails to make this distinction, ultimately civilians are going to become combatants. And the problem is going to be worse.
The problem in Chechnya is that Russia has patently failed to make this distinction. In fact, Russian forces have targeted and attacked civilians, on many occasions deliberately. Most famously in these ‘sweep-operations’, where people have been taken from their homes, often never to be seen again. And, not coincidentally, it is patently obvious that the Russian operations in Chechnya, from a counter-terrorist perspective, have failed miserably. They have not defeated terrorism, in fact, one could argue that the opposite is true. In terms of comparison to the United States, Human Rights Watch obviously doesn’t let the U.S. military off the hook; if you look at our website, you’ll see release after release questioning the use of various tactics in the recent wars the U.S. military have fought. But clearly, the United States didn’t wage war in Iraq and Afghanistan indiscriminately, and it did not wage attacks deliberately against civilians. On the contrary. And again, not coincidentally, I would argue that the United States achieved a good deal more, from a counter-terrorism perspective, in a matter of weeks, than Russia has managed to achieve in Afghanistan in a matter of years. And that’s perhaps an understatement.
Now, in terms of Uzbekistan, I know we’ve all piled it on a little bit here, and I won’t repeat the litany of problems, although they’re certainly the same kind of problems our organization has seen, that governments have seen, that everybody agrees exist in your country, I’m afraid to say. I think the interesting question for us is: what is the relationship between those problems and the fight against terrorism, which we all recognize as being a legitimate one? I would simply say: why do we have to arrest journalists in order to fight terrorism? Why do we have to ban all political parties to fight terrorism? Why do we have to maintain systematic torture in prisons—which is not my phrase, but the UN’s phrase, with respect to the Uzbek presence—in order to fight terrorism? I would argue there are really only two connections between those problems and the war on terrorism. The first connection is that they make the war on terrorism harder to fight, not easier. Because of what they do in practice; they drive young men in Uzbekistan, and in other countries undergoing similar problems, into the orbit of extremist groups. They have nowhere else to go. They do not have moderate democratic movements that can express their grievances for them. The second connection is, interestingly enough, that the war on terrorism has made your problems our problems. Because they fuel problems that come back to haunt the whole world. And actually I think this is a good thing about the war on terrorism, a potentially positive thing from the perspective of human rights, that there is now far more attention being paid to things that really no-one paid attention to, including Central Asia, precisely because this connection between repression and the war on terrorism. And I’m happy to say that in my judgement, although I think that U.S. policy in the region still leaves some things to be desired, there is more attention from the United States to these problems in Uzbekistan, and I frankly wish that your government would listen to the United States. Because the United States defeated the IMU (?) for you. And the United States is helping you with education and other development issues. The United States is your friend, and is asking you for the most reasonable things, to increase the space for civil society. Frankly, your government is saying: ‘Hell, no!’ And that, I think, is unacceptable, from the point of view of an American who cares about human rights and about national security.
Finally, about military commissions, I would agree they were vastly improved over the first generations, there were numerous due-process rights guaranteed. There is still one very important problem, which distinguishes the military commissions from the traditional U.S. system of military justice, and that is the lack of an independent appeal. The way these things work, ultimately, the only person one can appeal to is the Secretary of Defense and the President of the United States. And that is a departure, and an important one. Interestingly, in the United States the uniformed military is perhaps the group most distressed about this. The military cares very deeply about protecting the reputation of U.S. military justice, in part because they rely on the standards they built up over the years when Americans are taken prisoner and captive overseas. And that’s a problem we’ve gone some way to solve, but certainly haven’t solved.“

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