9/11 was a human tragedy, a crime against humanity, and a serious threat to human security. It required responses that would hold those responsible to account, honor the victims, and reassert the rule of international law and our shared humanity, in face of the lawlessness and inhumanity of that day. When I first wrote about these issues in October 2001, it was to highlight the existence of an applicable framework of international law, however imperfect, that enabled and constrained response to the attacks. Rules governing the use of force, state and individual responsibility, interstate cooperation, international human rights and more, provided the norms, tools and mechanisms for a coordinated, people-centered, rule of law response.
What Happened?
The “global war on terror,” or GWOT, unfolded differently. It did little to promote accountability for terrorism, or the rights of its victims, while creating many more victims. It proved catastrophic for the rule of law, human rights, and human security across the globe.
A quarter century of the “GWOT” demands reflection and reckoning. The historic milestone urges the international community to confront not only the nature and extent of violations in the name of security that have swept the globe, but also their foreseeability – and the adamant collective resistance to change course, even in the face of increasingly striking evidence of harm. It also provides the opportunity and obligation to consider the human beings around the world whose lives have been devastated by post-9/11 counterterrorism. It requires urgent reflection on the implications for the profound human rights challenges and unravelling of norms, processes, and institutions the world faces today.
The Characteristics of the War on Terror
Writing in the first few years after 9/11, I was one of a number of scholars and practitioners identifying characteristics of the GWOT that raised red flags for the rule of law. Four characteristics stood out then which are worth recalling briefly given their relevance today.
- First, militarization: resort to military force led post-9/11 responses, pursuant to a putative “war” that wasn’t, in any legal sense, actually a war at all. Widespread resort to force against ill-identified “enemies” in this amorphous, global, and potentially endless conflict was accompanied by expansive justifications that loosened the strict constraints of the law of self-defense, weakened international humanitarian law (IHL) including the protection of civilians, and marginalized international human rights law (IHRL).
- Second and relatedly, exceptionalism and arbitrariness have been defining characteristics of the GWOT, with many manifestations. Exceptional executive powers proliferated, eroding political and judicial oversight. Misinformation and heightened secrecy contributed to a post-truth world. Terrorism provided a pretext for governments to invoke “special” measures, onerous consequences and heightened penalties, paradoxically matched with lower standards of protection and procedural safeguards. In the increasingly law-free zone of counterterrorism, impunity was enshrined in law or established in practice across the globe.
- Third, othering and dehumanization of the “enemy” enabled the worst of the GWOT. Just as some actors were above the law, free from accountability, others were beneath it and free from protection.
- A fourth and final characteristic of the GWOT was already apparent in the immediate aftermath of 9/11, but has steadily worsened ever since. This is the fundamental rule of law challenge posed by the indeterminacy of the term “terrorism” to which these exceptional measures applied, and how this amorphousness led to insidious creeping reach.
A War with an Ever-Expanding Target
Several reports and commentary, including by United Nations Special Rapporteurs past and present, and authors including myself, have noted the role the U.N. Security Council played in this 25 years ago, when it “opened the hunting season on terrorism, without defining the target.” In the post-9/11 furor, the Security Council identified all acts of terrorism as threats to international peace and security, absent a clear definition or indication of how that should be understood. Binding chapter VII powers of the U.N. Charter mandated wide-reaching measures against the phenomenon, with states’ own interpretations filling the definitional void. Over time, the target gradually expanded, from undefined terrorism to embrace ever broader, vaguer, and even more malleable terms such as “extremism,” and various forms of “support,” “justification,” or “glorification.” In the name of prevention, anti-terrorism laws including those criminalizing expression or support for prohibited causes, expanded to reach further back to pre-terrorism, and further out to environments perceived to enable it. The steady expansion and layering up of indeterminacy led over time to the massive amorphous reach of global anti-terrorism law today.
The human cost has been devastating, yet the expansive trend continues.
The Terrorists Today?
So, who are today’s “terrorists”? They are multitudes, and I have had the privilege to represent many of them. They are lawyers, journalists, civil society organizers, environmental protesters, and doctors. They are peace activists, political thinkers, academics, migrants fleeing persecution, bloggers, artists, writers, lovers, and more. They are family members, associates, or supporters of all of the above. Their cases are wide-ranging, but notably none of those I represent have been accused of the serious violent acts that most of us would associate with the core concept of terrorism. They bear no relation to the horrendous acts of violence committed on 9/11. They are very far from the serious offense of “terrorism” that the United Kingdom ambassador to the Security Council in 2001 assured the public “we would know if we saw it,” as he dismissed the definitional deficits.
The wildfire expansion of counterterrorism since 9/11 has claimed many more victims, and raises important questions about the broader implications for us all.
They include clients such as Turkish medical expert Sebnem Fincanci, whose offense of “propagandizing for terrorism” consisted exclusively of stating that allegations that the Turkish state may have been using chemical weapons against deceased PKK members deserved an independent investigation, in line with international law. They include a group of “Academics for Peace” whose crime was to sign a petition calling for peace in southeastern Turkey. They include myriad other Turkish human rights defenders, journalists, philanthropists, opposition politicians, and many others who have been silenced, stigmatized, and criminalized by a counterterrorism edifice busy dismantling democracy one actor at a time.
They include judges, such as my client Youssef Bouzekhar, former head of the Tunisian High Judicial Council, dismissed in a purge of 57 judges in one day, part of the state capture of democratic institutions and the courts by President Kais Saied since 2021. Subsequent efforts to justify the disbanding of the Council and removal of judges cited support for “terrorism,” with no apparent need to share evidence or ensure due process of law.
They include Russian NGOs, such as Nobel peace prize winner Memorial Russia; journalists; bloggers; and peace activists. They include, very commonly, protesters, such as the hundreds detained for protesting against socioeconomic scarcity in Kazakhstan, just like the women protesters in Iran, or Palestinian solidarity networks in the United Kingdom. The sinister recent suggestion from the Trump administration that undefined “leftist terrorism” must be targeted is one extreme iteration of a trend that has seen many political leaders and opponents labelled terrorist supporters in multiple countries.
The latest frontier in the expansion of the terrorist label to demonize, stigmatize, and engage exceptional measures may be migration. For example, the El Hiblu 3—three young migrants seeking to access European shores, pleading not to be returned to Libya where they say they face persecution and torture—were met with “terrorism” charges when they landed in Malta. They are the subject of pending criminal trials in Malta and in one case, UK extradition proceedings, where a key question has to be: is this terrorism?
Terrorism is real, and can be deadly, as we hardly need reminding of on the anniversary of 9/11. But across autocratic and democratic states, it is very well recorded that the label is being applied to much less serious conduct more frequently, and to conduct that doesn’t remotely fit the concept of terrorism at all. It is being used to stifle the work of democratic actors, law enforcers, and others, that is essential to a healthy global society. The weaponization of counterterrorism to delegitimize dissent, stifle democratic engagement, and further unravel the rule of law, jeopardizes the ability to respond to the very real and looming threats to human security.
Crucial to addressing the impact of the GWOT is understanding that it is, in no sense, a thing of the past. While the GWOT continues to expand, some its most notorious cases, notably the torture and arbitrary detention of the immediate aftermath of 9/11, are ongoing. One particular case showcases the depths to which even democratic states have gone, and the obstinate refusal to learn lessons and correct course.
Abu Zubaydah: The A-Z of Where We Are Still Going Wrong
The case of one of my clients, torture victim and Guantánamo detainee Abu Zubaydah, epitomizes all of the characteristics of the GWOT discussed above, and their human toll. He was the first victim of the CIA-led rendition and torture program and described by an FBI interrogator as its “guinea pig.” His drawings, completed in U.S. detention, provide graphic illustration of the depravity and inhumanity to which he was subject by U.S. officials at secret CIA “black sites” around the world: Thailand, Poland, Lithuania, Morocco, Afghanistan, and at Guantanamo Bay. The CIA “enhanced interrogation techniques”–from beatings to waterboarding and beyond–approved at the highest levels of the U.S. government, and facilitated by many states, but which led to no actionable intelligence, have been well-documented in a 2014 U.S. Senate Report and multiple international reports and judgments. His case has been described as “the A to Z of where we went wrong.”
Abu Zubaydah has now been detained for over 24 years without any charges or trial, in flagrant violation of IHL and IHRL – a symbol of the GWOT’s arbitrariness. The supposed legal base for detention, potentially for life and without due process, remains a putative global war on an undefined enemy. Even efforts to bring civil claims or to enable cooperation with foreign prosecutions have been thrown out, shrouded in “state secrecy.”
Unsurprisingly, many international courts and bodies have condemned his indefinite detention as “anathema to the rule of law” (the European Court of Human Rights or ECtHR), as ongoing torture, a crime against humanity (the U.N. Working Group on Arbitrary Detention), and enforced disappearance (the U.N. Working Group on Enforced Disappearance). He has received monetary compensation from Poland and Lithuania, following ECtHR judgements, and the United Kingdom has paid a substantial sum to settle a civil claim against it for providing questions to be put to him despite knowing he was being tortured. Legal cases, like unprecedented petitions by U.N. rapporteurs and human rights experts call for his “immediate release.” Films and articles amplify the incredulity and injustice.
Yet the violations and the complicity continue. Almost 25 years into detention without legal basis, charge or trial, there is no obvious end in sight. The world looks away. Responsible states refuse to even offer him a home for a life with dignity after Guantanamo or to speak out publicly. No one has been held to account, despite abundant evidence.
Concluding Reflections
As others have noted, including at Just Security, the characteristics of the GWOT are on clear display in many violations of the rule of law around the globe today. Recently, commentators addressed the lineage between the killings of people at sea in the Caribbean, on the basis that they are supposed “narco-terrorists,” and the post-9/11 unravelling of the prohibition on use of force, the right to life, and the unfettered exercise of executive powers in the GWOT (see here and here). The United States’ Operation Epic Fury in Iran, absent any plausible or articulated legal basis, has likewise been traced to the legacy and rhetoric of the post-9/11 era, as has the brutality and impunity that increasingly accompanies the treatment of migrants.
The weakening of the rules on force, and the force of rules, is seen well beyond the United States. Most obviously the flagrantly unlawful use of force in Ukraine and Gaza reflect cycles of impunity and escalating violations. The normalization of law breaking has prompted scholars to call on willing states to act “to save the international legal order.” Looking back 25 years, it was clear then that it wasn’t only what the United States did post-9/11 that would be important, but whether and how others would react to it, and who would stand up for the rule of law? That question is the same, the answer less clear, and the stakes even higher, a quarter century into the ongoing and expanding global war on terror.
The author is grateful to Human Rights in Practice research assistant Tulli Seton for her help with this article.
