[Interview] Asser researcher Rumyana van Ark: 'How the legacy of the War on Terror continues to cast a deep shadow 20 years post 9/11'

Following the events of 11 September 2001, the prevention and pre-emption of acts of terrorism became a priority for governments around the globe, both at domestic and international levels. This led to a transnational counter-terrorism campaign known as the ‘War on Terror’. 21 years on, Asser Institute counter-terrorism expert, Rumyana van Ark, investigates the legacy of this political and legal paradigm, and its implications on human rights, humanitarian law, counter-terrorism, and armed conflict in an upcoming book chapter as part of the ‘International Conflict and Security Law’ edited collection. Rumyana is also one of the coordinators and speakers for our upcoming advanced summer programme ‘terrorism, counter-terrorism and the rule of law’, organised together with the International Centre for Counter-Terrorism. An interview.  

On 11 September 2001, the world watched in horror as live on TV, a plane curved into the World Trade Centre in New York. It was the second suicide attack by plane, a short while after the first plane made the first Twin Tower collapse. What came to be known as ‘9/11’ were a series of airline hijackings and suicide attacks committed by the Islamic extremist group al-Qaeda against targets in the United States. It was the deadliest terrorist attack on American soil in U.S. history.

A few days later, in a joint session of Congress, U.S. President George W. Bush declared: “Our War on Terror begins with al-Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped, and defeated”. This speech turned out to be a catalyst in solidifying and altering international and domestic counter-terrorism and state security policies.

As a starting point, how would you define the War on Terror?
‘Domestically, states such as the United States and United Kingdom, engaged in, what we sometimes call ‘legislative fever’, in which existing criminal and counter-terrorism legislation was frantically updated and expanded upon, while at the same time new acts and measures were being introduced in an equally swift manner. A case in point is the USA Patriot Act, codified into law a mere 45 days after 9/11, which aimed to “deter and punish terrorist acts in the United States and around the world” and “to enhance law enforcement investigatory tools. At the international level, through a series of resolutions and through the establishment of a new Security Council’s Counter-Terrorism Committee (CTC), the UN Security Council contributed to the development of this transnational environment, in which wide-ranging and collaborative counter-terrorism measures were accommodated.

Despite these substantial legislative changes, however, considerable legal and political effort was devoted by the US in particular to construct the transnational counter-terrorism campaign known as the ‘War on Terror’. As a legal paradigm, the ‘War on Terror’ was designed to construct an environment within which the applicability of the relevant international norms was either severely restricted, or uncertain. As a political paradigm, the ‘War on Terror’ was used to justify the military operations in Afghanistan and Iraq. At the height of its ‘War on Terror’, the US was relying on up to 54 other states to operationalise various elements of its ‘High Value Detainee’ programme such as the ‘extraordinary rendition circuits’. These circuits involved the transfer of, alleged members of terrorist organisations to a number of destinations where the captured individuals were detained and interrogated in a manner violating international legal standards’

Can you give an example of how this 9/11 legacy continues to be felt?
‘One of the most enduring legacies of 9/11, I believe, is that there is the now entrenched perception that it is justifiable to curtail the rights of individual terror suspects, and the corollary argument that human rights provisions would limit the abilities of states to pre-empt and respond to acts of terrorism. It is now, for instance, a lot easier for states to – through legal means, not just extra legal means – implement measures against individuals suspected of engaging in acts of terrorism, than at any other time before in history. In many respects, this has become possible because of the international, regional, and domestic responses to the events of 9/11.

In the past few years, the deprivation of citizenship of suspected foreign fighters, such as the British-born, Shamina Begum, has become part of the counter-terrorism toolkit of states such as the United Kingdom, Australia and the Netherlands.This taking away of nationality has severe consequences for the individual, and you can wonder about the efficiency of the measure. The expulsion of a citizen from society by taking away his or her nationality may have great symbolic power, but that does not nullify potential security threats or decrease the risk of terrorism across the world. In my view, a measure such as this would have been unpalatable and unjustifiable before 9/11. But the persistent intertwining of security, immigration and preventative criminal justice measures, since then, have culminated in measures such as this one’

What challenges do you think still remain, nearly 21 years since 9/11, in the realm of international counter-terrorism and the rule of law?
‘Now that the memories of the September 11 attack are starting to fade, we really need to reflect on how much the world of counter-terrorism, security, and human rights has changed, because of the events that took place on that day. Security policies, strategies and measures should be grounded firmly in respect for human rights and the rule of law. Therefore, I think one of the biggest challenges that remains, is for human rights institutions and bodies to find their voice again, and to push for more transparency and accountability by states; this is key to ensure a practical and effective enforcement of rights. This is very important, because what tends to be often lost in discussions on the application of security and counter-terrorism measures is the fact that all the various human rights instruments were ultimately written, agreed upon and ratified by states themselves.

And within these instruments that states have allowed themselves flexibility in times of national emergencies, to limit proportionately and when strictly necessary, certain rights. There is a consistent misperception since 9/11 that you cannot engage in effective counter-terrorism and security unless you severely restrict or even ignore human rights provisions. But the human rights framework does not prevent or stop states from engaging in counter-terrorism and security measures. This misconception needs to be constantly challenged’ 

About Rumyana van Ark
Dr Rumyana van Ark Grozdanova is a researcher in terrorism, counter-terrorism and international law at the T.M.C. Asser Instituut (University of Amsterdam) within the Asser research strand ‘in the public interest: accountability of the state and the prosecution of crimes’. She is also a senior coordinator and research fellow at the International Centre for Counter-Terrorism (ICCT – The Hague). She is currently a member of the Advisory Board of the PREPARE Project.

Advance your knowledge on counter-terrorism and the rule of law
From August 29 – September 2, 2022, the T.M.C. Asser Instituut and International Centre for Counter-Terrorism will host the twelfth Advanced summer programme on terrorism, counter-terrorism and the rule of law. In this thought-provoking summer training you will focus on the international and domestic legal aspects of counter-terrorism and counter-extremism, in inspiring and interactive classes by leading speakers in the field. Sign up now.

Read more

International conflict and security law – A research handbook (2021)
This unique two-volume book covers virtually the whole spectrum of international conflict and security law. It proceeds from values protected by international law (Part I), through substantive rules in which these values are embodied (Part II), to international and domestic institutions that enforce the law (Part III). It subsequently deals with current challenges in the application of rules of international conflict and security law (Part IV), and crimes as the most serious violations of those rules (Part V). Finally, in the section on case studies (Part VI), lessons learnt from a number of conflict situations are discussed.

The War on Terror (2020) by Rumyana van Ark

Following the events of 11 September 2001 (9/11), the prevention and pre-emption of acts of terrorism has become a priority. Considerable legal and political effort was devoted by the US in particular to construct a transnational counter-terrorism campaign known as the ‘War on Terror’. As a political paradigm, this ‘war’ was used to justify the military operations in Afghanistan and Iraq. As a legal paradigm, the ‘War on Terror’ was designed to construct an environment within which the applicability of the relevant international norms was either severely restricted or uncertain. In the years following the events of 9/11, the US ‘War on Terror’ gradually came to define the first decade of the 21st century. Almost 20 years on since its start, its legacy continues to be felt.