‘Soft law’ approach to terror threat ‘insidious’

Normative and institutional change post-9/11 has had adverse effects on civil society, this year’s Law Society's Human Rights Lecture has heard.

The lecture was delivered by Professor Finola Ní Aoláin on the anniversary of the 9/11 attacks.

There was an unwillingness to see the costs of counterterrorism, Prof Ní Aoláin stated.

“The usual assumptions about the traction of certain kinds of legal norms and institutions and international law do not, in fact, hold in the conflict, security and counterterrorism realm,” Prof Ní Aoláin said last night (11 September).

'Alice-in-Wonderland universe'

“The result is what we might call an Alice-in-Wonderland universe, in which the usual rules of international law simply don't apply,” she added.

A distinguished professor of law at both the University of Minnesota Law School and Queen's University Belfast, and a former UN Special Rapporteur on human rights and counterterrorism, Professor Ní Aoláin has also visited Guantanamo Bay, where she saw first-hand the effect of the war on terror on human rights and international law.

30 detainees remain in Guantanamo Bay, many held without trial.

Professor Ní Aoláin described Guantanamo as a place defined by "arbitrariness", where detainees lived under conditions that met the threshold for cruel, inhuman, and degrading treatment.

Many of them are effectively stateless, detained by mistake, or based on bounties.

Such counterterrorism measures often led to long-term failure and loss of trust in democratic institutions, the academic said, and human-rights abuses had found their contemporary roots in the post-9/11 context.

In her lecture, Professor Ní Aoláin warned that the legacy of these policies continued to shape international norms and attitudes toward human rights and democracy.

While the immediate response to the attacks was driven by security concerns, the long-term effects have highlighted the dangers of compromising legal standards.

“The intersection of human rights, counterterrorism, and armed conflict is both complex and urgent,” she told listeners to the Law Society lecture.

“The detention and torture of individuals at Guantanamo Bay is a stark example of how counterterrorism measures can sometimes lead to severe human-rights violations,” Prof Ní Aoláin continued.

In navigating the impact of counterterrorism measures on human rights, a balance must be found between ensuring security and upholding the fundamental principles of human rights, she said.

Overt rhetoric

Even though the overt rhetoric of the ‘war on terror’ might have been officially toned down, the underlying mechanisms and practices associated with counterterrorism had not only persisted but had also evolved, Prof Ní Aoláin stated.

The lack of a universally agreed-upon definition of terrorism allows states considerable leeway to define and combat terrorism according to their own interests.

This flexibility permits states to justify a wide array of actions under the banner of counterterrorism, from genuine threats to political dissidents and activists.

The concept of terrorism, therefore, becomes a tool for maintaining control and suppressing dissent, rather than solely addressing violent extremism.

The post-9/11 era had seen the United Nations Security Council take a more assertive role in counterterrorism, particularly through Chapter 7 of the UN Charter, Prof Ní Aoláin said.

This had resulted in a form of law-making by the Security Council that could sometimes override national laws and human-rights protections, she stated.

The move towards ‘soft law’ in the realm of counterterrorism was significant, Prof Ní Aoláin said.

‘Soft law’, while not legally binding, can still influence State behaviour and international norms, with its guidelines, resolutions, and recommendations that often have significant practical effects.

The proliferation of soft law in counterterrorism had led to a dense network of regulations and practices that often overshadowed traditional hard-law obligations, the academic said.

This shift to soft law can undermine human-rights protections, as these norms may be less rigorous and less subject to scrutiny compared to binding legal instruments.

The rise of counterterrorism measures had had a detrimental impact on civil society, she stated, adding that the broad, and often vague, nature of these laws could stifle activism, limit freedom of expression, and constrain the work of human-rights activists.

The continued operation of exceptional legal frameworks, such as the Special Criminal Court in Ireland, exemplifies how these measures can become entrenched and difficult to reverse, even in the absence of ongoing threats.

A re-evaluation of counterterrorism policies was crucial to ensure they were effective without compromising human rights, Prof Ní Aoláin said.

This includes pushing for clearer definitions, more transparent practices, and robust protections for civil society.

The integration of security practices into national legal systems has made it difficult to separate security from governance.

Exceptional legal regimes

This had led to the normalisation of exceptional legal regimes, often at the expense of fundamental rights and due process, the academic said.

Prof Ní Aoláin also observed that the rapid advancement in technology – including drones and surveillance – had outpaced existing legal frameworks.

While agreement on a cyber-crime treaty was a step forward, its weaknesses in addressing human rights and accountability meant that it could be exploited by authoritarian regimes, Prof Ní Aoláin said.