Governing Through Human Rights in Counter-terrorism: Proofing, Problematization and Securitization

Abstract

Human rights are commonly regarded as the antidote to criminalization and securitization. Yet, since 9/11, at both the national and international levels, human rights law has largely accommodated the security-oriented changes deemed necessary to combat terrorism, including the use of torture and the erection of a "shadow" system of justice through the use of coercive non-trial-based measures (Gearty 2017;Hamilton 2018). In this article, we examine taken-for-granted features of modern legal adjudication and "human rights proofing" (forms of human rights protection) that dilute the restraining power of human rights law and extend security measures. Informed by a "governmental criminological" analysis of human rights in the security field, we present two case studies to illustrate these arguments. The first considers "human rights proofing" mechanisms in the United Nations counter-terrorism assemblage which, we argue, have been rendered "technical" (Sokhi-Bulley 2016) through the complexity of the structures deployed to protect rights and the forms of knowledge privileged by experts. The second case study draws on use of control orders-Terrorism Prevention and Investigation Measures (TPIMs) in the United Kingdom-and examines two governmental "techniques," namely, the judicial "balancing test" and the European Convention on Human Rights "memos" put to parliamentary committees scrutinizing counter-terrorist legislation. At both national and international levels, how human rights are being institutionalized has affected the operation of power: we are being governed through rights (Golder 2011) in ways consistent with conditions of authoritarian liberalism (Dean 2007).

Editors’ Introduction to the Special Issue, “Governing Through Human Rights and Critical Criminology”

“…These are difficult questions, too lofty and complex to be answered in an issue introduction. But in introducing this issue and the articles comprising it that reveal how human rights may be "governed through," there is a sense in which, at least, some human rights may nonetheless ultimately gain some protection from nefarious deployments, such as when they become inserted and deeply entangled in a web of state counter-terrorism measures (see Hamilton and Lippert 2020).…”

“…Straddling both judicial and regulatory arenas is Hamilton and Lippert's (2020) article that examines, in the counter-terrorism context, features of both modern legal adjudication and "human rights proofing" mechanisms that simultaneously contain governmental interference and entrench securitization. The article uses two case studies-the role of human rights within the UN after 9/11 and use of coercive non-trial-based measures in the UKto illustrate the emergence of rights as a response to a given crisis or "problem of government."…”