Speaking Rights to Power or Governing through Rights? Making rights matter in a securitised world

Guest post by Claire Hamilton. Claire is Professor of Criminology and Head of Criminology at Maynooth University, Ireland. This is the second of five posts that summarise individual chapters from A Research Agenda for a Human Rights-Centred Criminology, edited by Leanne Weber and Marinella Marmo and published in the series Palgrave Critical Studies in Human Rights and Criminology. You can read the introduction here.

Human rights are commonly regarded as the first line of defence against excessive 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. Drawing on his extensive research on rights and security, Conor Gearty identifies 9/11 as a serious ‘hammer blow’ to the fate of human rights in the contemporary era, one which tipped the scales away from human rights and towards security, and, further, one which, together with the economic crisis of 2008, exposed systemic faults in the architecture of the post-war global order.

How did we get here? Beyond the undeniable impact of September 11th, important questions remain about the very expansiveness of the human rights idiom in the security field: how did it come to endorse mass surveillance, racial profiling, detention without trial and even torture? My contribution to A Research Agenda for a Human Rights-Centred Criminology explores this further through the conceptual lens of ‘governing through rights’. As many readers of this blog will know, criminologists have used ‘governing through’ in work ranging from ‘governing through crime’ to ‘governing through privacy’ and ‘governing through security’. Governing here, following Foucault, is understood broadly as ‘action upon action’—of ‘conducting conduct’— and in each instance of governance, something is typically accomplished beyond what is claimed to be governed. On this view, therefore, rights may be seen as potentially entrenching and extending governance and securitization, even as they are claimed to emancipate and protect often vulnerable lives.

Two brief examples serve to illustrate the point. The first concerns the role of human rights within the UN, given the critical impact of United Nations (UN) Security Council resolutions on the laws of member states in the post 9/11 period. While the UN has recognised the need to protect human rights when countering terrorism, the complexity of the rights assemblage ─ described as a ‘hydra-headed architecture of bodies’ and ‘an enigma’ ─ not only dilutes human rights effectiveness within the UN, but also renders rights technical, and therefore governmental. Beyond merely marginalizing human rights in practice, moreover, the inclusion of human rights has produced conditions for authoritarian practices to occur and expand. Rights form a central plank of the UN Plan of Action to Prevent Violent Extremism, with the phrase, ‘human rights,’ mentioned almost fifty times. The plan emerged from a Preventing Violent Extremism (PVE) agenda and ultimately resulting in a resolution titled: ‘Human rights and preventing and countering violent extremism.’ This ‘softer’ approach recognized that law enforcement and security measures were insufficient to address terrorism, grounding counter-terrorism efforts in rights-based approaches developed in partnership with communities. Organizations, such as FIDH, however, have criticized how human rights have become securitized in this domain, ‘allowing states to criminalize undefined violent extremism and pursue draconian policies that securitize social (PVE) programming in the name of national security’. The prosecution of human rights defenders and political opponents in nations such as China and Russia on charges of ‘extremism’ (as evidenced in FIDH’s report) thus illustrates how an ostensibly rights-based approach to counter-terrorism can comfortably articulate with authoritarian regimes/practices.

The second case study examines ‘control orders’, coercive non-trial-based measures in the UK, introduced via the Prevention of Terrorism Act (PTA) 2005. The Act, which clearly mandated significant interferences with liberty, met with initial fierce opposition in the House of Lords and was criticized by the Joint Committee of Human Rights, who foresaw problems with Article 5 of the ECHR. Despite this, the legislation was presented by the government as compliant with the HRA/ECHR, arguably resulting in a de facto derogation from these instruments. This, rather paradoxical, situation was aided by House of Lords decisions scrutinizing the new regime in 2007—decisions that were largely progressive, but which, as presciently observed by Ewing, also contained ‘the seeds of further restriction’. Thus, when the decisions sought to impose limits on the orders, such as forced relocation, these judicial modifications were welcomed by the government as giving the impression that the judges had, in human rights terms, supported the control orders scheme. As in the first example above, the co-option of rights in the service of security was achieved through ‘technical’ rights-proofing mechanisms aimed at embedding rights into the legislative process. Here, this took the form of ‘declarations of compatibility’ mandated under the Human Rights Act and deployed by government ministers during the renewal debates on the PTA to advance claims that the House of Lords in the control order litigation had, in effect, licensed the regime. Indeed, in later debates, the government again relied on the early House of Lords’ decisions on control orders to resist calls for the abolition of non-trial-based measures in parliament and thus to entrench liberty-invading practices.

In these two cases of ‘governing through rights,’ rights have served simultaneously to contain and entrench securitization at both a national and an international level. They have become technical, and thus governmental. Yet, while invoking rights can sometimes be ineffectual, this is not inevitable in all instances, nor can rights be dismissed as merely camouflage or legitimation. In the UN human rights assemblage, rights represent a powerful language for claims-makers, such as the UN Special Rapporteur of Human Rights and Fundamental Freedoms while Countering Terrorism (PPHRFFCT), while also lying comfortably alongside coercive state practices. Similarly, in the UK, while the courts largely accommodated the control order scheme, the regime nonetheless became less repressive as a result of the litigation.

So how can ‘doing rights criminologically’ help make rights matter in the security field? First, recognising the continued ability of rights to ‘speak to power’ in a troubled world, we must move away from a purely technical, legal model of the human rights project and towards a perspective informed by critical criminology. Its advantage lies in its ability to locate rights within broader relations of power, governance and resistance, a reading which, as we have seen, is essential for unpicking the complex, labyrinthine workings of the transnational ‘counter-terrorism order’. A second, important role for critical criminology plays to its strengths as an empirical discipline that allows for inquiry into the operational dimensions at specific sites and thus, as Marmo and Fishwick argue, the ‘possibility to assess and concretise human rights concepts’. The Foucault-inspired governmentality analytic applied in the chapter, for example, provides important tools to analyse modes of thinking (of all decision-makers, not only the judiciary); forms of knowledge informing such decision-making; and the mechanisms by which these are translated into reality. Foucault, then, forces us to pay attention to the power-knowledge networks inherent in the bureaucratic, political and juridical apparatus through which rights are negotiated. In so doing, his work offers critical criminology important possibilities for a politically richer, more self-reflexive and ultimately less disingenuous rights discourse.

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