The three countries whose laws and practices have been examined in this chapter exist in a shared universe in which one cosmic event has ramifications for other entities in the universe. The US and the UK have attacked the prohibition on torture which was, until now, thought to be absolute and beyond attack in principle (although the practice never conformed to that principle). The results are sadly evident in the appalling pictures of torture that emanated from Abu Ghraib. Torture becomes routine and it degrades the torturer as well as its victims. Victims become terrorists.
The detention practices of each state attempt by various devices to erect a shield against legal scrutiny. None of these attempts may be successful in the end, with Australia’s being, perhaps, the most reasonable — a seemingly plausible attempt to milk the legal ambiguity surrounding the concept of preventative detention. However, each of them is fraught with danger from a human rights perspective.
Perhaps the most dangerous of these developments are those in the UK — in many respects a country that could be seen as the Big Bang of human rights. The intervention in the Ramzy Case comes close to a full-frontal attack on the fundamentals of international human rights law, that is, that rights are universal, indivisible, interdependent, and inter-related. The UK’s argument may be shown to be spurious or misguided, however, in many ways it is fairly honest and perhaps, therefore, when compared with the language of ‘war’ used by the US, a more formidable argument that could reshape international human rights law.
I hope not. Human rights have long been criticised for their absolute nature and hidden assumptions that are said to belie their purported universalism.[137] I am, in many respects, a fellow-traveller with these critics.[138] Clearly, however, in the case of the ‘fight against terrorism’, it would be even worse if human rights failed to remain absolutist at this point, transparently bending to the will of the powerful. In the ‘fight against terror’, the road to hell is paved with ‘balanced’ arguments.
[137] For an example of such criticism in this volume, see Pue, Chapter 4.
[138] Indeed, at a launch of a number of books, including a text for students written by myself and others, my fellow authors and I were challenged by a High Court judge for espousing postmodern views. We had presented a number of critical perspectives on the law, such as feminist perspectives, in order to assist students in criticising laws that entrench an unjust status quo. We did this, because we all heartily wished that more of our teachers had done the same for us. We felt that this would have allowed us the space to be critical of laws that, for example, denied Aboriginal people property rights in the land they had occupied for time immemorial.