Eva Nanopoulos https://www.opendemocracy.net/taxonomy/term/23478/all cached version 20/04/2018 07:08:49 en Scrapping anti-Terror laws – naivety or opportunity? https://www.opendemocracy.net/uk/eva-nanopoulos/scrapping-anti-terror-laws-naivety-or-opportunity <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>As the government awaits the first report of the Independent Reviewer of Terrorism Legislation, Theresa May has reason to be worried.</p> </div> </div> </div> <p><span class='wysiwyg_imageupload image imgupl_floating_none 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/549093/PA-31562939.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/549093/PA-31562939.jpg" alt="" title="" width="460" height="460" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'></span></span><em>Image: LK Aldama/PA News/All rights reserved</em></p><p>This month, Max Hill QC, <a href="https://terrorismlegislationreviewer.independent.gov.uk/">Independent Reviewer of Terrorism Legislation</a>, is due to submit his first annual report on the operation of key anti-terrorism laws in the UK.</p> <p>The government has reason to be concerned. Theresa May has long been a <a href="https://opendemocracy.net/uk/julian-petley/human-rights-scrapping-terrorism-democracy">pioneer of tough anti-terror legislation</a> and has made clear she would be prepared even to <a href="https://www.theguardian.com/politics/2017/jun/06/theresa-may-rip-up-human-rights-laws-impede-new-terror-legislation">get rid</a> of human rights laws that supposedly detract the war against terror.</p> <p>Hill, on the other hand (the second Independent Review since the office was created), not only opposes the introduction of new measures, but has also expressed his views that special anti-terror laws are unnecessary and should be <a href="http://www.independent.co.uk/news/uk/home-news/terror-laws-uk-offences-abolish-max-hill-interview-independent-reviewer-legislation-isis-attack-a7883836.html">abolished</a>. </p> <p>“The point is that terrorism is crime and all terrorists are criminals. As such, they should be arrested, charged and brought before the courts, and the more that can be done under general criminal legislation the better”, he <a href="https://terrorismlegislationreviewer.independent.gov.uk/">said</a>. </p> <h2>Naivety? </h2> <p>The government’s response so far has been to accuse him of <a href="https://www.thetimes.co.uk/article/anti-terror-chief-max-hills-schoolboy-error-kwgk3szhs">‘schoolboy errors’</a> or ‘<a href="http://www.telegraph.co.uk/news/2017/10/24/uk-terror-tsar-accused-naivety-claims-disciples-hate-preachers/">breathtaking naivety</a>’. But leaving to one side Hill’s wide-range experience litigating anti-terror cases, it is unlikely to be a satisfactory response for long. </p> <p>Hill’s concerns about counter-terrorism legislation are <a href="https://www.theguardian.com/uk-news/2017/jan/17/uk-counter-terror-laws-most-orwellian-in-europe-says-amnesty">widely shared</a> and cannot be simply brushed aside. Concerns include the expansion of terrorist offences based on a pre-emptive approach that targets ‘crimes’ before they are even committed, trading dangerously into the realm of ‘<a href="http://www.independent.co.uk/news/uk/home-news/terror-laws-uk-offences-abolish-max-hill-interview-independent-reviewer-legislation-isis-attack-a7883836.html">thought crime’</a> (Amber Rudd’s <a href="http://www.independent.co.uk/news/uk/politics/terrorist-propaganda-criminal-offence-new-law-amber-rudd-streaming-watching-extremist-material-isis-a7979986.html">latest proposal</a> includes up to 15 years jail time for viewing ‘terrorist’ content online). Other concerns are the granting of sweeping surveillance and other police powers to the executive deployable on the basis of mere ‘suspicion’ and undermining basic civil liberties.</p> <p>Then there’s the racialized use of the anti-terrorist toolkit, which entrenches the treatment of Muslim people as second-class citizens subject to different rules. Such legislation has been incrementally developed through the ‘normalisation’ of emergency legislation passed under condition of moral panic without genuine public debate (the Anti-Terrorism Crime and Security Act 2001 was adopted with 16 hours debate in the Commons and 8 days in the Lords). </p> <p>The government’s argument is that departure from the ordinary criminal law and other principles supposedly at the heart of the British constitution, including the rule of law, is ‘necessary’ to fight the contemporary terrorist threat. But the now often rehashed slogan of the post 9/11 era faces up to several paradoxes. </p> <p>Many anti-terror laws and practices like preventive detention, free speech restrictions, or the use of secret evidence in fact have a much longer history, stretching to the <a href="http://www.cambridge.org/gb/academic/subjects/law/law-general-interest/911-effect-comparative-counter-terrorism?format=PB&amp;isbn=9780521185059#GyEm2GAD8g5YJSHG.97">counter-insurgency practices</a> of <a href="https://opendemocracy.net/uk/tom-griffin/shocking-new-evidence-could-overturn-northern-ireland-ruling-that-became-internationa">British colonial rule</a>. The claim that they are specifically designed to tackle ‘modern’ terrorism distorts the historical record. </p> <p><a href="https://opendemocracy.net/kieran-ford/banality-of-terrorism-story-we-ve-all-heard-before">Recurrent terrorist attacks</a> cast doubt over whether anti-terror laws actually ‘work’. Indeed, by the government’s own account of the causes of terrorism, such extreme measures would be positively contributing to fuelling violence, given that the Prevent strategy links terrorism to the opposition of democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs. To be sure, there are serious flaws with the premises of Prevent. But the point is merely to highlight the contradictions of the government’s counter-terrorism strategy. </p> <h2>Naivety about what?</h2> <p>If Hill is showing any ‘naivety’, it is not about the necessity of anti-terror laws as tools to combat terrorism, but about their broader social and political function, as well as the wider context in which they operate. </p> <p>From a purely legal perspective, the repeal of domestic anti-terror laws would have no effect on the UK’s international obligations, many of which, like the blacklisting of suspected ‘terrorists’ and the freezing of their funds, are not based on a criminal justice approach to terrorism.</p> <p>Nor would abolition affect the numerous laws that do not formally bear the label of ‘anti-terror laws’ but have become crucial components of the anti-terrorism toolkit. Under the Immigration Act 2014, for example, citizenship can be revoked where the person has acted ‘in a manner which is seriously prejudicial to the vital interests of the UK’. Over <a href="https://www.thebureauinvestigates.com/stories/2016-06-21/citizenship-stripping-new-figures-reveal-theresa-may-has-deprived-33-individuals-of-british-citizenship">33 people</a> have been deprived of their citizenship since Theresa May took over as Home Secretary and subsequently Prime Minister, some of whom have since been <a href="http://eudo-citizenship.eu/news/citizenship-news/1160-the-new-powers-of-deprivation-of-citizenship-in-the-uk">be killed by drone strikes</a> by the US. </p> <p>But on a wider level, Hill’s proposals assume that the aim of anti-terror laws is to prevent and punish the commission of terrorist acts. He thus cites the trial and conviction of Fusilier Lee Rigby’s and Jo Cox’s killers as examples where the ordinary law on murder was sufficient. </p> <p>Yet the aims pursued by anti-terror laws and broader processes of securitisation are far more complex. Repressive and racialized anti-terror laws are not only a means to an end (i.e. a means to combatting terrorism), but also appear to pursue a variety of social and political goals (e.g. to exclude particular individuals and groups from the operation of the ordinary law and enable State control over their actions). Proposals to scrap anti-terror laws would therefore need to engage more deeply with the nature and purpose of anti-terrorism laws as tools of social exclusion and control.</p> <h2>Opportunity…?</h2> <p>Hill’s proposals, however, come at a significant political conjuncture, opposing two very different viewpoints not only on <a href="http://www.bbc.co.uk/news/election-2017-40111329">counter-terrorism legislation</a>, but on the role and nature of the State more generally. </p> <p>Proposals to repeal anti-terror laws may be naïve under a government which is predicated upon a neat demarcation between the political and economic realms and for whom its responsibility to keep the public safe is to be discharged through a strong security apparatus. </p> <p>But the same may not be true under a Corbyn government. Corbyn has consistently <a href="http://www.telegraph.co.uk/news/2017/05/26/revealed-jeremy-corbyns-three-decades-blocking-terror-legislation/">voted against anti-terrorism laws ever since he entered Parliament in 1983</a>. His vision of government also rests on a far more polycentric conception of ‘security’, one where <a href="https://opendemocracy.net/uk/gilbert-ramsay/no-link-between-terrorism-and-our-foreign-policy-isn-t-simple-but-jeremy-corbyn-is">understanding and tackling the causes of terrorism</a> would go hand in hand with a broader rethinking of economic, social and foreign policies. Such a vision would engender precisely the kind of (richer) inquiry that a proper assessment of the supposed ‘necessity’ of anti-terror laws requires. </p> <p>In a different political context, Hill’s proposals may therefore turn into an opportunity, not only to get rid of deeply repressive, racialised and divisive laws, but also to begin the work of addressing the deeper ‘political and societal’ issues that, as Hill himself observed, produce and underpin the anti-terrorism framework.</p><fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-related-stories"> <div class="field-label">Related stories:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <a href="/uk/gilbert-ramsay/no-link-between-terrorism-and-our-foreign-policy-isn-t-simple-but-jeremy-corbyn-is">No, the link between terrorism and our foreign policy isn’t simple. But Jeremy Corbyn is basically right.</a> </div> <div class="field-item even"> <a href="/paul-rogers/britains-security-choice-pira-then-isis-now">Britain&#039;s choice: the Provisional IRA then, ISIS now</a> </div> <div class="field-item odd"> <a href="/kieran-ford/banality-of-terrorism-story-we-ve-all-heard-before"> The banality of terrorism</a> </div> <div class="field-item even"> <a href="/uk/julian-petley/human-rights-scrapping-terrorism-democracy">Scrapping human rights is as great a threat to democracy as terrorism</a> </div> <div class="field-item odd"> <a href="/ourbeeb/harry-blain/when-bbc-met-terrorism-act">When the BBC met the Terrorism Act</a> </div> <div class="field-item even"> <a href="/ourkingdom/aisha-maniar/on-britains-use-of-torture">On Britain&#039;s use of torture</a> </div> <div class="field-item odd"> <a href="/uk/tom-griffin/shocking-new-evidence-could-overturn-northern-ireland-ruling-that-became-internationa">Shocking new evidence could overturn Northern Ireland ruling that became an international blueprint for torture</a> </div> </div> </div> </fieldset> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> uk uk Eva Nanopoulos Thu, 14 Dec 2017 12:35:54 +0000 Eva Nanopoulos 115314 at https://www.opendemocracy.net A Corbyn-led government should start by scrapping the Prevent Strategy https://www.opendemocracy.net/eva-nanopoulos/corbyn-led-government-should-start-by-scrapping-prevent-strategy <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p>Corbyn wants to talk about and address the causes of terrorist violence? This will require scrapping the Prevent Strategy. </p> </div> </div> </div> <p><span class='wysiwyg_imageupload image imgupl_floating_none caption-xlarge'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/500209/PA-31783986.jpg" rel="lightbox[wysiwyg_imageupload_inline]" title=""><img src="//cdn.opendemocracy.net/files/imagecache/article_xlarge/wysiwyg_imageupload/500209/PA-31783986.jpg" alt="lead lead " title="" width="460" height="275" class="imagecache wysiwyg_imageupload caption-xlarge imagecache imagecache-article_xlarge" style="" /></a> <span class='image_meta'><span class='image_title'>Shadow home secretary Diane Abbott responds to the statement by Home Secretary Amber Rudd in the House of Commons on the recent terror attacks in the UK, June 22,2017. Press Association Wire. All rights reserved.</span></span></span>In less than two weeks, Jeremy Corbyn managed to see through (at least) two spectacular achievements. One was a staggering political earthquake, which puts Labour much closer to a parliamentary majority than was ever thought possible. The other was to open up some breathing space in the asphyxiating and toxic public debate about terrorism and counter-terrorism. </p> <p>In the aftermath of the tragic <a href="https://en.wikipedia.org/wiki/2017_Manchester_Arena_bombing">Manchester attacks</a>, Corbyn emphasised that the War on Terror was not working, that an effective response required a more informed understanding of <a href="https://opendemocracy.net/author/paul-rogers">the causes of terrorism</a> and that this included looking seriously into the government’s foreign policy decisions. </p> <p>It is no surprise that foreign policy or political and social conditions have stayed out of public debate on terrorism for so long. It may be the sheer shock and consternation that follows terrorist violence. It may be the <a href="http://www.independent.co.uk/voices/jeremy-corbyn-speech-manchester-attack-salman-abedi-terrorism-terrorist-honest-causes-a7757186.html">(false) assumption</a> that talking seriously about the causes of terrorism is to justify it. Or it may be the view that nihilist violence is not something we can, and therefore should, try to understand. But it is also years of repeated counter-terrorism legislation that have kept hammering the point that terrorism is something exogenous rather than endogenous to society and that we can fight it by legislation rather than radical political or social change. </p><h2>State responsibility</h2> <p>The Prevent Strategy, which was legalised by the Counter-Terrorism Act 2015, is a central plank of this narrative. Prevent broke away with the myth that terrorism is something that is born abroad, in the ‘failed’ States and the dictatorships of the East. But the figure of the ‘home-grown’ ‘radicalised’ terrorist that emerged out of the strategy fundamentally distorted the problem. Prevent locates the causes of terrorism at the level of abstract ideas – extremism and terrorism begin with the vocal opposition to British values – and their incubation into individual vulnerable bodies eventually producing the intractable terrorist self. This not only avoids taking stock of the inter-connections between foreign policy and domestic security or between neo-liberal policies and global human insecurity. It also more fundamentally forecloses any form of State responsibility for terrorist violence. &nbsp;&nbsp;</p> <p>Although it is no secret that the strategy is primarily aimed at the Muslim community – and that it therefore itself contributes to the creeping Islamophobia that has characterised the War on Terror and that fuels the sort of racist violence underpinning the <a href="https://www.theguardian.com/uk-news/2017/jun/19/finsbury-park-attack-visual-guide-graphics-maps">Finsbury Park attack</a>s – Prevent is not fundamentally concerned with trying to pin down what these ‘extremist’ ideas are. What matters is that they are not the values of the British State and hence that terrorism could never truly be traced back to its actions or policies, whether at home or abroad. </p> <p>Replacing ‘British values’ with ‘universal democratic values’, as the Liberal Democrats <a href="https://www.theguardian.com/politics/2016/sep/13/lib-dems-aim-to-scrap-counter-productive-prevent-strategy">propose</a>, may address some of the problems underpinning the definition of extremism, not least the hypocrisy that the rule of law, democracy or human rights, are somehow peculiarly British values. But it would not counter the view that terrorism is something that inherently inhabits the ‘outside’, rather than a form of violence that emerges out of a complex set of factors that include the actions of the British State and other <a href="http://www.independent.co.uk/news/uk/politics/theresa-may-internet-regulated-london-bridge-terror-attack-google-facebook-whatsapp-borough-security-a7771896.html">allied democratic governments</a>. &nbsp;</p><h2>More of the same </h2> <p>In contrast to Corbyn’s response, Theresa May’s reaction to the <a href="https://www.theguardian.com/uk-news/2017/jun/04/london-bridge-attack-pushes-theresa-may-into-promising-new-laws">Manchester</a> and <a href="https://www.theguardian.com/uk-news/2017/jun/04/london-bridge-attack-pushes-theresa-may-into-promising-new-laws">London Bridge</a> attacks was to promise yet more counter-terrorism legislation. Harsher restrictions on movement through the tightening and expansion of TPIMs (Terrorism Prevention and Investigation Measures), more deportations, greater powers of surveillance, longer sentences. Curbing the actions of these individuals will, she maintains, deliver ‘safety and strength’ to the public, despite the fact that hard legislation has already tried and visibly failed to diminish terrorist violence. </p> <p>Given widespread criticism and <a href="http://www.independent.co.uk/news/education/education-news/teachers-to-debate-stance-on-prevent-counter-terrorism-strategy-in-schools-a6956066.html">opposition</a> to Prevent, her position on the strategy remains ambiguous. May’s four-point plan for a renewed package of counter-terrorism legislation now includes recasting Prevent as an Engage programme. But only a few months ago there were rumours that the policy would be <a href="https://www.theguardian.com/uk-news/2016/nov/11/prevent-strategy-uk-counter-radicalisation-widened-despite-criticism-concerns">strengthened</a> further. In any event, no major U-turn is to be expected on the policy. Just as TPIMS are increasingly looking like the control orders regime which they were meant to replace, any change to the Prevent strategy is likely to be cosmetic and temporary at best. </p> <p>May’s longer term plan, moreover, is to expand, not reverse, the counter-extremism agenda by transposing much of the counter-terrorism toolkit to this area, introducing such measures as the banning of extremist groups or extremist disruption orders and closure orders designed to stop individuals engaging in extremist behaviour, and shutting down premises used to support extremism. Her latest project – formally announced in the Queen’s speech – includes the creation of a <a href="http://www.independent.co.uk/news/uk/politics/theresa-may-conservative-manchester-attack-general-election-2017-commission-countering-extremism-a7759486.html">Commission for Counter-Extremism</a> designed, among other things, to advise the government on how to assert British pluralistic values, building further on the problematic assumptions that underpin the Prevent agenda. </p><h2>Enabling genuine dialogue</h2><p>Last December, Diane Abbott called for a major review and fundamental rethink of the Prevent strategy. But if we really are to begin talking seriously about the causes of terrorism and deliver on the changes that are genuinely capable of tackling terrorist violence, there is no watered-down version of Prevent that will do the trick. </p><p>Prevent is not an unworkable, ineffective or <a href="https://www.theguardian.com/politics/2016/sep/13/lib-dems-aim-to-scrap-counter-productive-prevent-strategy">counter-productive</a> strategy. It is the lifeblood of a political establishment that seeks to pre-empt any meaningful public dialogue about the <a href="https://www.opendemocracy.net/digitaliberties/nafeez-mosaddeq-ahmed/theresa-may-s-counter-extremism-plan-will-create-incompetent-p">links</a> between terrorist violence and the actions of the State at home and abroad. Corbyn is right that if there are difficult conversations to be had, this must start with the UK’s relationship to Saudi Arabia and other Gulf states. But for these conversations to take place, Prevent and the language of extremism must go. </p> <p>Blairism imported counter-radicalisation from the Netherlands into UK policy. The Tories expanded the Prevent strategy and placed it on the statute book. It should be among the first steps of a Corbyn-led government to put it back where it belongs: the wish-list of a defeated right wing opposition.&nbsp;&nbsp;&nbsp;&nbsp; </p><fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-read-on"> <div class="field-label"> 'Read On' Sidebox:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <p>Paul Rogers is <strong>openDemocracy's</strong> international security adviser. See <a href="https://opendemocracy.net/author/paul-rogers">his weekly column here.</a></p> </div> </div> </div> <div class="field field-related-stories"> <div class="field-label">Related stories:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <a href="/digitaliberties/nafeez-mosaddeq-ahmed/theresa-may-s-counter-extremism-plan-will-create-incompetent-p">Theresa May’s counter-extremism plan will create an incompetent police state </a> </div> <div class="field-item even"> <a href="/can-europe-make-it/paul-thomas-ted-cantle/extremism-and-%27prevent%27-need-to-trust-in-education"> Extremism and &#039;Prevent&#039;: the need to trust in education</a> </div> <div class="field-item odd"> <a href="/walter-armbrust/prevent-free-speech-and-antisemitism"> ‘Prevent’, free speech and antisemitism</a> </div> <div class="field-item even"> <a href="/ourkingdom/jamie-bartlett-carl-miller/should-britain-work-with-extremists-to-prevent-terrorism-where">Should Britain work with &#039;extremists&#039; to prevent terrorism? Where do we draw the line?</a> </div> <div class="field-item odd"> <a href="/uk/anthony-cornish/we-need-to-talk-about-how-we-talk-about-prevent">We need to talk about how we talk about Prevent</a> </div> <div class="field-item even"> <a href="/can-europe-make-it/paul-thomas-ted-cantle/prevent-and-antiextremism-education">Prevent and anti-extremism education</a> </div> <div class="field-item odd"> <a href="/digitaliberties/francesco-ragazzi/trust-and-suspicion-under-policed-multiculturalism">Trust and suspicion under ‘policed multiculturalism’</a> </div> <div class="field-item even"> <a href="/can-europe-make-it/amandine-scherrer-didier-bigo/will-democratic-debate-over-counterrorism-gain-edge">Will the democratic debate over counterrorism gain the edge in battle? </a> </div> </div> </div> </fieldset> <div class="field field-country"> <div class="field-label"> Country or region:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> UK </div> <div class="field-item even"> EU </div> <div class="field-item odd"> United States </div> <div class="field-item even"> Saudi Arabia </div> </div> </div> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> Can Europe make it? North-Africa West-Asia uk Saudi Arabia United States EU UK Gulf states Eva Nanopoulos Mon, 26 Jun 2017 19:57:02 +0000 Eva Nanopoulos 111905 at https://www.opendemocracy.net Will human rights law actually protect us from fascism? https://www.opendemocracy.net/openglobalrights/eva-nanopoulos/will-human-rights-law-actually-protect-us-from-fascism <div class="field field-summary"> <div class="field-items"> <div class="field-item odd"> <p><img width="140" src="//cdn.opendemocracy.net/files/NanopoulousMarch.jpg" style="float: right;" /></p> <p>Human rights regimes such as the European Convention on Human Rights are unlikely to shield citizens against the wave of authoritarianism threatening liberal democracies.&nbsp;</p> </div> </div> </div> <p dir="ltr">Shortly after the election of Donald Trump to the presidency of the USA, <a target="_blank" href="https://www.opendemocracy.net/openglobalrights/stephen-hopgood/fascism-rising">multiple</a> <a target="_blank" href="https://www.opendemocracy.net/openglobalrights/kathryn-sikkink/international-pressure-on-us-human-rights-matters-now-more-than-eve">authors</a> on openGlobalRights were <a target="_blank" href="https://www.opendemocracy.net/openglobalrights/samuel-moyn/trump-and-limits-of-human-rights">already debating</a> what role, if any, international human rights could play in the struggle against the spread, normalisation and institutionalisation of the misogyny, racism and latent fascism of the Trump campaign. In the European context, memories of fascism and the Nazi Holocaust were important factors in the adoption of the European Convention on Human Rights (ECHR) in 1950. The drafters may have been driven by a broader agenda to contain <a target="_blank" href="https://www.opendemocracy.net/ourkingdom/marco-duranti/strasbourg-court-is-anti-democratic-just-as-its-founders-intended">democracy and socialist ideas</a>, but the hope that a supra-national legal system of human rights protection would stabilise and safeguard liberal democratic institutions runs quite deep in the foundations of the ECHR.</p><p dir="ltr" class="mag-quote-center">Human rights law alone is unlikely to protect liberal democratic institutions from a fascist take-over.</p><p dir="ltr">Now that liberal democracies have delivered far-right regimes in Europe (and beyond) and contributed to the legitimation of xenophobic discourse and practices, there is indeed cause to ask whether international human rights law will actually deliver on its “promise”. The legal perspective from the European regime, however, suggests that human rights law alone is unlikely to protect liberal democratic institutions from a fascist take-over and that we are far from immune from the atrocities of the early twentieth century.</p><p dir="ltr">First, there is little in the ECHR that could be used to challenge the election of a party with fascist views through the ordinary democratic process, as opposed to challenging the laws or actions of such a regime. Article 17 of the ECHR states that nothing in the Convention implies that any state, group or person has the right to engage in an activity or act aimed at destructing the rights and freedoms in the Convention. But the focus and effects of this provision are limited. It only refers to actions that annihilate human rights; it does not speak to the ideology or political formation of the state. And it can only be used to exclude reliance on the ECHR (e.g., by individuals seeking to rely on Article 10 on the right to freedom of expression to disseminate racist views); it is not a self-standing provision on the basis of which an action can be brought directly before the European Court of Human Rights (ECtHR). The result is that although fascist ideology goes against any notion of universal human equality, that fundamental incompatibility carries little concrete juridical effects. After all, Golden Dawn, an openly neo-Nazi party, sits with a comfortable 7% in the Greek Parliament.&nbsp;</p> <!--Image/Credit/Caption Begins--> <div style="color: #999999; font-size: 11px; line-height: normal; font-style: italic; text-align: right;"> <img width="444" src="//cdn.opendemocracy.net/files/NanopoulousMarch.jpg" style="max-width: 100%; background-color: #ffffff; padding: 7px; border: 1px solid #999999;" /> <br />Flickr/anokarina (Some rights reserved) </div> <p style="color: #666666; font-size: 12px; line-height: normal;"> A mural at the Center for Civil and Human Rights in Atlanta, GA. Human rights law alone is unlikely to protect liberal democratic institutions from a fascist take-over. </p> <hr style="color: #d2d3d5; background-color: #d2d3d5; height: 1px; width: 85%; border: none; text-align: center; margin: 0 auto;" /> <!--Image/Credit/Caption Ends--> <p dir="ltr">Second, the ECHR would not necessarily prevent a regime with fascist aspirations from derogating from its human rights obligations. The creation of a supra-national machinery was designed to place human rights beyond the reach of the nation state. In particular, the ECHR purported to avoid a remake of the <a target="_blank" href="http://www.history.com/this-day-in-history/weimar-constitution-adopted-in-germany">Weimar Constitution</a>—which was suspended during the Third Reich—by placing limits on the ability of states to derogate from their human rights obligations. Pursuant to Article 15 ECHR, the ECtHR must verify that there is a “war or other public emergency” that justified departure from the ECHR and that the measures taken do not go beyond what is “strictly required by the exigencies of the situation”.</p><p dir="ltr">But there are reasons to doubt the resilience of this framework. Although states must notify the Council of Europe of their intention to derogate from the ECHR, the mechanism of Article 15 is largely reactive. This becomes particularly problematic under conditions of internal repression and of pan-European convergence towards the far right, where the prospects of a successful challenge diminish. Judicial control has been weak thus far on the ground that national authorities are best placed to determine the existence of, and the measures required to respond to, an emergency. Moreover, the interpretation of Article 15 ECHR has evolved to reflect the changing political and social conjuncture. &nbsp;</p><p dir="ltr">For example, since 9/11, states are no longer required to demonstrate the existence of an imminent and concrete threat—intelligence over a possible terrorist attack on UK soil was sufficient to meet the Article 15 requirements—contributing to the collapse between normalcy and exception that underpins criticisms that the “war or terror” has led to a permanent state of emergency. And emergency measures passed to combat terrorism have often been used for purposes other than the aversion of the “security threat”. Many of the measures introduced in France after the Paris attacks of November 2015 have since been used to suppress political activism, including opposition to the infamous “<a target="_blank" href="https://en.wikipedia.org/wiki/El_Khomri_law">Loi El-Komhri</a>”, which dismantled many labour law guarantees for workers. The state of emergency also made space for more institutionalised forms of racism and Islamophobia, as the controversial “<a target="_blank" href="https://www.theguardian.com/world/2016/aug/28/french-mayors-burkini-ban-court-ruling">Burkini Bans</a>” adopted on grounds of “peace and public order” demonstrate (the French Conseil d’Etat set aside some of the bans, but various regional bodies still refuse to comply). Thus, Article 15 ECHR has been no panacea to authoritarianism, even by liberal democratic regimes.</p><p dir="ltr">In theory, Article 17 ECHR—prohibiting the destruction of rights and freedoms—could prevent a fascist government from invoking Article 15. But the professed neutrality of the human rights framework raises questions about the willingness of the ECtHR to express a clear judgment on, and openly condemn, the fascist nature of a regime. In the “<a target="_blank" href="https://www.jstor.org/stable/40970063?seq=1#page_scan_tab_contents">Greek case</a>”, several states objected to the invocation of Article 15 by the Greek military junta. But the Commission largely avoided the question, ruling that the junta had failed to establish that there was a communist conspiracy threatening the life of the Greek nation without making any mention of the dictatorial nature of the regime. Even if the ECtHR could be expected, in the abstract, to take a more robust position, this underestimates the concrete effects of far-right resurgence and the more covert forms fascism takes in the contemporary moment. It is difficult to imagine the ECtHR would bar Marine Le Pen, were she to be elected, from extending the state of emergency and further consolidating her power, even though the Front National remains rooted <a target="_blank" href="https://www.jacobinmag.com/2017/02/france-national-front-marine-le-pen-fascism-antisemitism-xenophobia/">in the fascist project. </a>&nbsp;</p><p dir="ltr">Legally, the situation is quite different from the 1930s. At the time, there was no international human rights regime in place that could be brought to bear on the internal activities of the state. It would, however, be naïve—and dangerous—to think that the human rights framework will deliver on its promise to curb the impulses of fascism. On Trump’s election, Barack Obama attempted to present a façade of business-as-usual and ensure an orderly transition of power. A week into Trump’s presidency, there were already signs that blind faith in liberal constitutional institutions is fading. Hundreds of thousands took to the streets in protest of the “Muslim Ban” and recent <a target="_blank" href="https://www.justsecurity.org/36621/u-s-constitution-risk-democratic-backsliding/#more-36621">research</a> has already warned that the legal and institutional framework of the US Constitution provides little safeguards against an authoritarian turn. Commentators have asked whether international human rights law will come to the rescue. The European legal framework suggests that attempts to <a target="_blank" href="https://www.princeton.edu/~amoravcs/library/origins.pdf">“lock-in” </a>liberal democratic institutions through human rights instruments are unlikely to prevent or survive the rise of fascism. And there is therefore an urgent need to build alternative strategies of resistance, both in Europe and beyond.</p><p><span class='wysiwyg_imageupload image 0'><a href="//cdn.opendemocracy.net/files/imagecache/wysiwyg_imageupload_lightbox_preset/wysiwyg_imageupload/537772/EPlogo-ogr-4_2.png" rel="lightbox[wysiwyg_imageupload_inline]" title="imgupl_floating_none"><img src="//cdn.opendemocracy.net/files/imagecache/article_large/wysiwyg_imageupload/537772/EPlogo-ogr-4_2.png" alt="" title="imgupl_floating_none" width="300" height="115" class="imagecache wysiwyg_imageupload 0 imagecache imagecache-article_large" style=""/></a> <span class='image_meta'></span></span></p> <meta http-equiv="refresh" content="0; URL=' http://www.openglobalrights.org/will-human-rights-law-actually-protect-us-from-fascism/'" /> <fieldset class="fieldgroup group-sideboxs"><legend>Sideboxes</legend><div class="field field-read-on"> <div class="field-label"> 'Read On' Sidebox:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <p><a href="http://www.opendemocracy.net/openglobalrights"><img width="140" src="//cdn.opendemocracy.net/files/OpenGlobalRights-highlight4English.png" /></a></p> </div> </div> </div> <div class="field field-sidebox"> <div class="field-label"> Sidebox:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <p><a href=" https://www.opendemocracy.net/openglobalrights-openpage"><img width="140" src=" https://www.opendemocracy.net/files/openPagesidebox.png &#10;" /></a></p> </div> </div> </div> <div class="field field-related-stories"> <div class="field-label">Related stories:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <a href="/openglobalrights/stephen-hopgood/fascism-rising">Fascism rising</a> </div> <div class="field-item even"> <a href="/openglobalrights/james-goldston/making-human-rights-movement-great-again-amidst-rising-nationalism">Making the human rights movement great again—amidst rising nationalism</a> </div> <div class="field-item odd"> <a href="/stuart-wilson/opportunities-for-resistance-trump-s-authoritarianism-and-law">Opportunities for resistance: Trump’s authoritarianism and the law</a> </div> <div class="field-item even"> <a href="/c-sar-rodr-guez-garavito/trump-s-victory-could-push-human-rights-movement-to-transform">Trump’s victory could push the human rights movement to transform</a> </div> <div class="field-item odd"> <a href="/openglobalrights/david-barrett/tackling-economic-inequality-with-right-to-non-discrimination">Tackling economic inequality with the right to non-discrimination</a> </div> <div class="field-item even"> <a href="/openglobalrights/rachel-wahl/working-with-enemy-pros-and-cons-of-collaborating-with-perpetrators">Working with the enemy: the pros and cons of collaborating with perpetrators</a> </div> </div> </div> </fieldset> <div class="field field-rights"> <div class="field-label">Rights:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> CC by NC 4.0 </div> </div> </div> openGlobalRights openGlobalRights openGlobalRights-openpage Eva Nanopoulos Canada & the US Western Europe Trump and Human Rights Tue, 14 Mar 2017 09:30:00 +0000 Eva Nanopoulos 109309 at https://www.opendemocracy.net Eva Nanopoulos https://www.opendemocracy.net/content/eva-nanopoulos <div class="field field-au-term"> <div class="field-label">Author:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> Eva Nanopoulos </div> </div> </div> <p>Eva Nanopoulos is a Lecturer in Law at Queen Mary, University of London.</p> Eva Nanopoulos Sun, 12 Feb 2017 20:48:44 +0000 Eva Nanopoulos 108756 at https://www.opendemocracy.net