Introduction
George W. Bush's recent admission that he had personally authorised waterboarding in the ‘War on Terror’Footnote 1 provoked considerable reaction. This included indignation among UK policymakers, such as former Labour chairman of the Commons Intelligence and Security Committee, Kim Howells, among others, who expressed doubt that waterboarding had provided any intelligence that had thwarted terrorist attacks, and who portrayed Bush's position as anathema to the liberal norms that they claim Britain,Footnote 2 and indeed liberal democracies in general, normally uphold. More broadly, the human rights abuses of the Bush administration have tended to be seen either as something of a blot on the history of the foreign policies of liberal democracies, or alternatively, and as Bush himself views them, as unfortunate but necessary in the face of enormous threats to national security. Yet when viewed within the context of the various phases of imperialism, torture, forced disappearances, and secret detention without charge or trial, as implemented by the Bush administration, cannot so easily be dismissed as exceptional. Rather, they constitute a continuation of the widespread use of state violence and terrorismFootnote 3 by the now powerful liberal democratic states, from European colonialism to the present day. When states perpetrate violations of human rights, they are rarely simply attempting to harm an individual or group, in isolation. Rather, there is frequently a deliberate intention on the part of the perpetrators to instil terror in a wider audience as a means of thwarting political dissent. It is therefore functional to specific logics underpinning the foreign policy aims of the state. Terroristic state violence has been one of the motors of imperialism. Yet its use has nevertheless led to historical development and social change. This is because it produces important contradictions that reverberate in unanticipated ways, often by generating resistance. Frequently, such change has been facilitated through the transnational human rights agenda, and accompanying legal architecture. The prospect for social change, brought about by confrontation between opposed social forces, is fundamental to historical materialist analysis.Footnote 4 Yet, Marx and many of his followers eschewed the liberal human rights agenda, despite evidence of its emancipatory power.
The primary purpose of this article is to demonstrate how the transnational human rights agenda has constituted a powerful vehicle for challenging oppression by imperial powers. The article is intended to enhance understanding of the contested concept of emancipation among critical International Relations (IR) scholars. Recently, scholars associated with the emergent field of Critical Terrorism Studies (CTS) have explicitly stated their commitment to the emancipation of the oppressed.Footnote 5 Some critics have questioned what precisely they mean by emancipation.Footnote 6 In line with Critical Security Studies (CSS), emancipation is understood here as a process aimed at liberating individual human beings from suffering, or in Booth's words, ‘from those oppressions that stop them carrying out what they would freely choose to do, compatible with the freedoms of others’.Footnote 7 Oppression can take the form of violence and terrorism, but can also involve polices that hamper provision of basic material needs. Emancipation must involve identifying possibilities for change within the prevailing order. As Richard Wyn Jones explains, ‘Rather than criticising the prevailing order in terms of some blueprint for some ideal society, Horkheimer criticises that order on the basis of the unfulfilled potential within it.’Footnote 8 In other words, as Booth argues, ‘emancipation is a politics of careful calculation as well as of hope’.Footnote 9
CSS has made a significant contribution in exploring the role of the critical security scholar within a politics of emancipation, especially through immanent critique. The tendency has been to view emancipation as the recovery of the capacity of the individual (usually the individual victim of oppression) to engage in dialogue. Dialogic contexts are thus expanded, and this is seen as providing the most promising basis for sustainable emancipatory change. While this is an important part of the emancipatory process, because it helps prevent the imposition of freedom through a particular politics or ideology, there has been relatively little focus on the link between the expansion of dialogic contexts on the one hand, and the realisation of progressive social change on the other. CSS scholars acknowledge that part of immanent critique involves identifying agents that might be well placed to implement change. However, the necessary role of collective agency in bringing about social transformation has largely been ignored. This is significant because, as this article will show, victims of oppression are frequently in no position at all to engage in the dialogic process. Their emancipation may have to be achieved on their behalf. The article aims to show that by drawing on Gramscian historical materialist approaches we can gain a better understanding of the historical and structural conditions that produce oppression. This, in turn, can help in identifying possibilities for change. Finally, historical materialism offers insights into the role of collective agency in emancipation. The article thus shares the view that the time is ripe for a serious engagement with historical materialism as a substantive theory of world politics.Footnote 10
The article is underpinned by a historical materialist framework. Fully grasping the influence and effects of historical processes is central to Gramscian historical materialist analysis. This is because if we are to successfully identify the possibilities for social transformation in relation to state violence and terrorism within the prevailing order, we must first understand contemporary state violence and terrorism as social relations that are shaped by, and at the same time reproduce, earlier forms of oppression. For historical materialists, the relationship between the state, capitalism, and world order is ‘embedded in and [to a significant degree] produced through systems of relations which encompass [among other things] the social organisation of production’.Footnote 11 This contrasts with the neo-realist and liberal approaches that tend to reify the state,Footnote 12 in that the focus is on recurring relations between states as formally equal units, and the deeper underlying structures that produce events and shape relations between states, as well as between a multiplicity of other actors are ignored.Footnote 13 When the security of the state is paramount, other referents of security are obscured. Thus, despite the widespread use and sponsorship of state terrorism by liberal democracies, state terrorism by those states, if discussed at all, is explained in some cases as necessary in pursuit of the national interest and for the preservation of the state,Footnote 14 in other cases simply as counterinsurgency or counterterrorism,Footnote 15 and in further instances as exceptional, unrepresentative behaviour of deviants.Footnote 16 By contrast, a socially grounded approach can help us better understand the ways that terrorism and violence have underpinned the foreign policies of imperial powers. Social relations are often shaped by deep and underlying structures that are, as Jonathan Joseph argues, ‘relatively enduring and possess powers of enablement and constraint’.Footnote 17 Such structures include the capital-labour relation or the logic of capital accumulation.Footnote 18 The logics of capital accumulation and global hegemony have frequently been the underlying impulses that have caused states to resort to violence and terrorism.Footnote 19
As I have argued elsewhere, state terrorism has been instrumental for capital accumulation by imperial powers for centuries.Footnote 20 The US was the greatest user, sponsor, and beneficiary of state terrorism of the liberal democratic states in the twentieth and early twenty-first centuries. State terrorism has been a feature of the ‘War on Terror’ and the associated invasions and occupations of Afghanistan and Iraq. These were as much a part of the US aim to ‘play a more permanent role in the Gulf regional security’ as the neo-conservative think tank, the Project for the New American Century had advocated in 2000, and to achieve this through ‘a substantial American forces presence in the Gulf’.Footnote 21 That permanent role included securing Iraq for the establishment of a neo-liberal state in the Middle East that would lend itself to the expansion of US-supported capital and would secure access to and control of resources, with the long term aim of securing the Middle East along similar lines.Footnote 22 In Iraq, state terrorism has occurred on various levels, including in the torture of detainees, the mass detention of men considered potential combatants, and the excessive use of force,Footnote 23 especially in the assault on Fallujah.Footnote 24 Torture has also been used widely by US intelligence and military agents. Through the policy of rendition, the CIA and numerous allies, both authoritarian regimes and liberal democracies, have facilitated the disappearance and torture of thousands of suspects. Rendition involves the seizure of suspects from one sovereign territory by agents of the CIA, often in collaboration with the intelligence and military personnel of other states, and their transfer to another sovereign territory, often states known to routinely use torture, and in many cases, eventually to the US detention facility in Guantánamo Bay, Cuba. This occurs outside of normal extradition proceedings, and therefore violates international law.
Situating contemporary state violence and terrorism historically can help inform those struggling against contemporary forms of oppression, particularly in terms of strategies that have been effective in the past, and those that have not. At various times, state terrorism has been challenged through recourse to the transnational human rights agenda. As the article will show, this has been an important part of the on-going emancipatory struggle for victims of oppression. Yet the notion of what constitutes emancipation is far from settled.
The article begins by exploring CSS/CTS approaches to emancipation, and an argument is made for re-emphasising the historical materialist conceptualisations of emancipation. Historical materialism sees emancipation as being contingent on the capacity of specific agents, located socially and historically, to identify practices that might bring about change, structures that might be transformed, and appropriate agents that are in the best position to facilitate such change.Footnote 25 In other words it involves collective social action. This, the article argues, can involve the effective deployment of human rights. Therefore, Marx's claims that human rights should be eschewed were mistaken, since they fail to acknowledge the emancipatory potential of human rights, particularly the opportunities they provide for collective social action. The article then shows how such collective social action might look in practice with reference to efforts to challenge the US-led, global system of rendition and secret detention in the ‘War on Terror’. Challenges have been articulated in human rights terms, and have led to efforts to ensure that human rights are upheld through the national and international legal architecture. Indeed, through their efforts human rights advocates have had some important successes in halting some human rights violations. This culminated in President Obama outlawing the more flagrant human rights abuses of the Bush administration, such as torture by the CIA. It also led, according to a memo from the Director of the CIA in April 2009, to the closure of all CIA secret prisons.Footnote 26 Thus they have partially succeeded in curtailing the arbitrary use of state power. Importantly, their efforts have contributed to the release of hundreds of detainees from the US Department of Defense detention facility in Guantánamo Bay. The article argues that such efforts might in turn feed into a more profound transformation of social relations.
Emancipation
Critical Security Studies scholars, and adherents to its recent variation, Critical Terrorism Studies have led the way in developing our understanding of emancipation. At the heart of the emancipatory project is the notion that individual human beings should be the focus of our concerns, and that our purpose should be to free individuals from oppression.Footnote 27 Through a process of immanent critique, emancipation involves identifying possibilities for change within the context of the prevailing social order. The most promising basis for sustainable emancipatory change, CSS scholars argue, is the expansion of dialogic contexts so that marginalised voices are heard, and in turn the material conditions of their marginalisation can be redressed. Andrew Linklater makes a powerful argument along these lines. He shows how different discourses since 9/11 have resisted efforts to restrict debate to traditional security concerns. These discourses have been used to widen discussion so that questions of unnecessary suffering are brought to public attention, and legitimate grievances relating to the harsh material realities of billions of people are considered.Footnote 28 Scholars such as Wyn Jones, Booth, and McDonald all emphasise that one of the aims of immanent critique should be to identify those agents that might be best placed to bring about change, acting politically and being tactical and strategic about it in the process. Yet the role of agency, particularly collective agency, has received relatively little attention in the literature. The tendency has been to view emancipation as the recovery of the capacity of the individual (usually the individual victim of oppression) to engage in dialogue. There is an important reason why little attention has been paid to collective agency as a vehicle for change. A significant commitment of CSS scholars is that emancipation cannot be imposed on individuals. Individual victims of oppression must be agents of their own emancipation. This, they argue, can be achieved through processes that enable marginalised voices to be heard, by changing the material distribution of power and resources.Footnote 29 The difficulty here is that in many cases, victims of oppression are frequently in no position to engage in the dialogic process even where space can be opened up. Their voices are not just marginalised; they are silenced because of the severity of the oppression they are under. Their emancipation may depend on others acting collectively on their behalf.
Immanent critique
Booth's most recent attempt to define emancipation emphasises the commitments of critical scholars, and provides insights into why there has been relatively little focus on collective agency as a vehicle for emancipation:
As a discourse of politics, emancipation seeks the securing of people from those oppressions that stop them carrying out what they would freely choose to do, compatible with the freedom of others. It provides a three-fold framework for politics: a philosophical anchorage for knowledge, a theory of progress for society, and a practice of resistance against oppression. Emancipation is the philosophy, theory, and politics of inventing humanity.Footnote 30
As McDonald points out, Booth's definition ‘stops short of providing a clear idea of what emancipation looks like in practice or how it might inform our analyses of empirical contexts’.Footnote 31 This is because Booth takes seriously the commitment advanced by the Frankfurt School thinkers that emancipation is a process which involves identifying possibilities for change, ‘anchored in a realistic assessment of actually existing possibilities’.Footnote 32 This is what is understood by immanent critique, which is aimed at ensuring that realisable visions or ‘concrete utopias’ are advanced to bring about emancipation. Immanent critique thus involves interrogating contemporary practices according to the core principles to which the agents of those practices are claiming to be committed, as the basis for pointing to contradictions and opening up the possibilities for change.Footnote 33 As the article will show, immanent critique has been the starting point for those that have worked collectively to free victims of rendition, secret detention, and torture. They have challenged the human rights abuses of those victims on the basis of the inconsistencies between those abuses on the one hand, and the human rights commitments of the US state, institutionalised in the US Constitution, on the other. In this particular context, the international human rights architecture has been one of the most useful tools for challenging oppression. But this is not to say that this will always be the most appropriate vehicle for emancipation. This gets at an important aspects of emancipatory politics as understood by CSS scholars, and emphasised in Booth's definition. Emancipation is a process, and the purpose of immanent critique within it is to identify ‘those features within concrete situations (such as positive dynamics, agents, key struggles) that have emancipatory possibilities’, and then to work through ‘the politics (tactics and strategies) to strengthen them’.Footnote 34 Sometimes the international human rights architecture may be the most appropriate vehicle for change. But for critical theorists, it is important to guard against entrenching the human rights agenda as a blueprint for emancipation, particularly given the risks that this could also lead to the endorsement of a much broader liberal agenda that may not be entirely emancipatory. For example, proponents of the invasions and occupations of Afghanistan and Iraq have repeatedly justified those wars in human rights terms. Yet there were other agendas at play and the occupations have been characterised by substantial violations of human rights. Put another way, human rights can and should be taken seriously as a potential vehicle for emancipation. But when they are espoused as part of a broader package of measures aimed at refashioning political, economic, and social structures in the interests of the powerful, we should guard against unquestioningly endorsing them as universal and permanent solutions for the ending of oppression. They may not be.
The view that human rights have considerable emancipatory potential contrasts significantly with Marx's position. Marx criticised human rights as constructs of the state and law which operate as a tool for empowering bourgeois dominance. Marx observed that human rights are no more than the rights of man in the abstract, devoid of history and context, a man who can only be emancipated through the intermediary of the state.Footnote 35 This meant for Marx that the rights of man were ‘nothing but the rights of the member of bourgeois society, i.e. egoistic man, man separated from other man and the community’.Footnote 36 David Harvey applies Marx's position to the Universal Declaration of Human Rights:
The UN Declaration of Human Rights of 1948 is a foundational document for a bourgeois, market-based individualism and as such cannot provide a basis for a thoroughgoing critique of liberal or neoliberal capitalism. Whether it is politically useful to insist that the capitalist political order live up to its foundational principles is one thing, but to imagine that this politics can lead to a radical displacement of a capitalist mode of production is, in Marx's view, a serious error.Footnote 37
Certainly rights are paradoxical, as Costas Douzinas has argued, since they support selfishness because they are constrained by capitalist society.Footnote 38 They can of course be deployed in emancipatory ways, but can also be subject to manipulation and can be a force for ill:
[L]egal rights remain a state language and power can shape them in its own image. Through their formal equality and less than universal citizenship, rights emerged as a highly paradoxical institution, both an instrument of emancipation and a means for empowering bourgeois dominance. Their history has been equally ambiguous; they have been used to protect from arbitrary power but they have also helped secure and naturalise dominant social powers and their class, gender, race, and ethnic exclusions.Footnote 39
Nevertheless, Douzinas points out, ‘this does not mean that in and of themselves rights are false and oppressive’.Footnote 40 After all, dignity and equality were the basis for Marx's attacks on capitalism.Footnote 41 Indeed, for Douzinas, what can save human rights is that in the tradition of natural law and right there is, historically a, ‘human trait to resist domination and oppression’.Footnote 42 The UDHR does not offer any means by which to halt the encroachment of capitalism into all spheres of social life. As Harvey explains, modern capital accumulation operates through ‘accumulation by dispossession’ to consolidate class power. Accumulation by dispossession involves the ‘taking away of assets and rights from the common people’, through processes such as the privatisation of public goods and state enterprises, and the relinquishing of public control over growth and investment decisions. At the same time, elites enjoy an immense concentration of wealth.Footnote 43 Accumulation by dispossession ‘can encompass everything – from taking away of rights of access to land and livelihood to the retrenchment of rights (to pensions, education, and healthcare, for example).Footnote 44 Billions have been subjected to the deployment of productive practices that involve privatisation, deindustrialisation, and the erosion of pension and welfare rights orchestrated through credit systems. For many rural populations this frequently leads to them being driven from their land, being forced to give up their subsistence relationship to that land, and being left with little choice but to compete for a place in the unrewarding aggressive urban labour market. These processes, as discussed in the first part of the article, are all underpinned by coercive state powers to enforce them, including extreme violence and terrorism.
Yet, human rights, particularly the right to life, liberty, and freedom from torture and slavery, can and have been effectively deployed to hold states to account for the use of terrorism and violence in processes of accumulation by dispossession, often through collective endeavours on behalf of individuals not in a position to self-emancipate. Therefore, while the Universal Declaration of Human Rights (UDHR) can be used as a tool to enshrine property rights and to insulate the state from alternatives, it has nevertheless been a vehicle for many struggles for equality and liberty. To that end it poses a threat to the privileged few that perceive they have something to lose from greater equality. Thus those who would reject human rights simply on the grounds that they facilitate ‘bourgeois individualism’, fail to acknowledge their emancipatory potential, particularly the opportunities they provide for collective social action, discussed below.
Agents of emancipation
With few exceptions, CSS scholars have tended to pay little sustained attention to collective agency in emancipatory processes. As discussed, this is largely because of their commitment to ensuring that emancipation is not imposed. This has meant that while CSS scholars acknowledge the role of collective action, their focus has been on the recovery of individual capacity to engage in dialogue. The emphasis, as McDonald writes, is on ‘the need to amplify the voices of marginalised actors to speak security as a means for altering material structures of oppression’.Footnote 45 McDonald and Booth both stress their concern with material inequality and deprivation, and comment on this at some length in their work. They have also pointed to the sorts of organisations that might be agents of change, such as civil society actors, Non-Governmental Organisations, and small political parties, and the importance of collective action. But for McDonald much more attention is given to possibilities for change through ‘advances in non-repressive deliberation’.Footnote 46 Examples of what emancipatory practices in relation to terrorism might look like for McDonald include freeing up spaces for moderate voices or dissident groups to speak on matters of security, and freeing up space to think, speak and write differently (presumably from the mainstream) about what terrorism might mean and how it might be studied.Footnote 47 We see a similar focus on the role of the individual victim of oppression and the opening up of space for them to ‘speak security’ in Booth's discussion of human rights in Theory of World Security. He emphasises the discursive power of human rights. He considers human rights to be concerned with ‘inventing humanity by constituting persons as rights-bearing, equal, free individuals with the potential to “live a life”’,Footnote 48 and he argues that, in line with ‘Frankfurt School explanations of social phenomena’, human rights are ‘part of human self-constituting’.Footnote 49 Recent work by Fraser Egerton echoes this focus on the individual; he argues that emancipation must be ‘centred on the individual’ in that ‘each individual should be the determinant of their own lives’.Footnote 50 But frequently, individual victims of oppression are in no position at all to determine the outcome of their predicament. Using the example of state terrorism, we see that this focus on the individual as self-emancipator is sometimes problematic. Furthermore, while discourse analytic approaches which subject the use and abuse of power to scrutiny are an important component of immanent critique, human agency is then needed to secure the victims' freedom, and it may not be the victims themselves that can achieve this.
State terrorism, an extreme form of oppression, is a social relation that exists beyond the discourse that constructs that social relation. Discourse analytic approaches help us understand the ways that discourses shape and underpin specific actions by the state. For example, the labelling of an individual as a terrorist can lead to further discourses which help legitimise the oppression of that individual. By using language which sets that individual up as ‘dangerous’, ‘evil’, and as a ‘threat’, in contrast to those who are ‘liberal defenders of freedom’, who must be ‘protected’ it becomes easier for the state to justify the violation of human rights.Footnote 51 Discourse analytic approaches help us turn these assumptions on their head, for example by challenging the labels that are used, and offering alternative forms of language to describe the ‘terrorist’ and the ‘liberal’ state. When state officials refer to ‘terrorists’ they are often in fact referring to individuals suspected of terrorism. Regardless, whether suspected of or convicted for involvement in terrorism, they hold certain inalienable rights. And while liberal states accuse individuals of terrorism, they have often perpetrated terrorism. But being able to challenge dominant discourses, and offering alternative discourses that involve constituting persons as rights-bearing, does not lead to emancipation. Strategies, tactics, and crucially, agency, are also needed to achieve this. This is because those discourses simply describe an underlying social relation of oppression that exists between those that perpetrate disappearances and torture, and the victims on the receiving end of those nefarious practices, irrespective of whether the human rights discourse is present to differently constitute the ‘terrorist’ as a terror suspect whose rights must be upheld. The terror suspects who are detained in the borderlands of Afghanistan and Pakistan, sold for a bounty to US forces, subjected to interrogation and torture, flown to the Camp X-Ray detention facility in Guantánamo Bay, Cuba, and detained for five years with no access to lawyers, while all the time subjected to mistreatment, may have no education beyond primary level. They may never have heard of the UDHR, the United Nations or their human rights. Much of the outside world may know nothing of their fate, so no discourse from outside is present to construct their individual treatment as oppression. But they know themselves to be oppressed. They know that what they are subjected to strips them of their human dignity and denies them their liberty. They do not need the discourse of human rights to reach this conclusion. However, when stripped of all their basic rights, there is very little scope for them to exercise any individual empowerment. Their freedom from oppression can only be secured with the help of others.
This example shows that concrete, collective action can be a necessary component in the freeing of people from oppression. By turning to Gramscian historical materialism, we can develop a fuller account of the role of agency, particularly collective agency, in social transformation. Wyn Jones made a compelling case for drawing on Gramsci to develop a clear understanding of the role of the theorist in supporting progressive social change.Footnote 52 Gramsci's work also offers insights on the centrality of collective social action to emancipatory processes. This can include the human rights agenda and its accompanying legal architecture. Indeed, those who eschew the human rights agenda are at odds with Gramscian notions of emancipation, which sees human rights as one of a number of means in the prevailing order that contain within them the potential for transformative social change. We will now consider how Gramscian historical materialism offers insights that can strengthen our conceptualisation of emancipation before considering how this might look in practice with reference to collective efforts to challenge rendition and secret detention in the ‘War on Terror’.
Central to Gramscian thought is the role of collective social action. Thus, rather than focusing on the individual as the agent of her/his own emancipation, as CSS/CTS scholars do, or emphasising abstract, individualised man, as Marx does, Gramscian approaches focus on collectives of specific agents able to enact social change. Gramsci, reflecting on how social change occurs within modern capitalism, argued that historical development is a process of ‘becoming which … does not start from unity, but contains in itself the reasons for a possible unity’.Footnote 53 Mark Rupert's interpretation of what this means in instructive:
The class-based relations of production under capitalism create the possibility of particular kinds of collective agency, but this potential can only be realised through the political practices and struggles of concretely situated social actors, practices which must negotiate the tensions and possibilities – the multiple social identities, powers, and forms of agency – resident within popular common sense.Footnote 54
Or, put another way, as Joseph argues, emancipation is ‘a question of social transformation which in turn depends on social location and historical context as well as the powers and liabilities of specific agents (rather than some universal individual)’.Footnote 55 Thus, historical materialism would ‘try to identify specific practices to engage in, particular structures to transform, those agents best placed to bring about change, and so on’.Footnote 56 Such a model of social activity, Joseph notes, is one where:
[A]gents are located within specific social structures which, through their collective practices they normally reproduce, but occasionally transform. This sees structures as both enabling but also constraining in the way suggested by Booth. The process of removing these constraints is a specific socio-historical project rooted in the actual social relations that agents are situated in. Hence the process of emancipation should avoid utopian gestures and focus on the specific mechanisms of social exploitation and identify concrete social practices designed to transform them.Footnote 57
This reading of Gramscian thought suggests that the human rights agenda and accompanying legal architecture are one of various vehicles in the prevailing order that enable specifically situated agents to act collectively and engage in endeavours that can challenge and transform relations of oppression and exploitation. As such, human rights have engendered concrete mechanisms through which emancipation can occur.
Collective social action in the ‘War on Terror’
An examination of US human rights violations in the ‘War on Terror’, and resistance to them, provides important insights into the centrality of the human rights agenda to emancipatory practice in the prevailing order. A brief account will be given of the various means by which the US has sought to circumvent human rights law and their relationship to US imperialism, before exploring the ways in which the US has been challenged. This has been through collective social action, where specifically located agents have worked collectively to identify concrete practices that could be deployed within specific structures to bring about the release of detainees subjected to human rights violations at the hands of the US in the ‘War on Terror’. Before exploring the efforts of human rights advocates in the ‘War on Terror’ in detail, it is worth noting that these endeavours echo similar struggles against human rights abuses during the Cold War.
The cases of human rights abuses in Latin American during the Cold War are demonstrative of the ways in which state terrorism and the arbitrary use of state power have been challenged in the past.Footnote 58 Pinochet's use of state terrorism in Chile from the coup in 1973 had the effect of mobilising resistance to the regime, both at home and abroad, including in the US. Led by the Catholic Church in Chile, a coalition of churches established the Committee for Peace, which later became the Vicariate of Solidarity. They supported victims and their families of political repression, both morally and legally, and meticulously documented every case they encountered, producing regular reports on human rights in Chile. They strengthened the efforts of other human rights movements that emerged too. Externally, international organisations, both governmental and non-governmental, focused closely on the human rights situation, drawing the attention of the international press. External actors all relied on the information provided by the Peace Committee. As the report of the Chilean National Commission on Truth and Reconciliation notes:
The intense international focus on the human rights situation in Chile was subsequently sustained due to the work of Chilean human rights organizations. The Vicariate of Solidarity had succeeded in documenting the vast majority of all serious human rights violations committed by the military government. Chilean human rights organizations came to be widely considered by the international human rights community as among the most effective groups working within a context of dictatorship.Footnote 59
In many respects, the struggles of human rights advocates in the ‘War on Terror’ have been similar to those of the Chilean human rights community in the Cold War, particularly in terms of the collaborative efforts taken to carefully document human rights abuses, to support victims of repression and their families, and to identify the means of drawing the attention of a wider audience. Indeed this is significant for our understanding of immanent critique. By situating contemporary oppression in a longer historical context, as Gramscian approaches suggest we should, we can be better informed about the structures and historical processes that produce oppression, and about the strategies that have been used previously to challenge that oppression and bring about the emancipation of the oppressed. Groups involved in contemporary human rights struggles have learned from the strategies of preceding generations of human rights defenders.
One of Bush's first moves following 9/11, was to issue a memorandum on 17 September 2001 to the director of the CIA pertaining to the detention of suspected terrorists in secret CIA prisons. It has never been released to the public despite efforts by the American Civil Liberties Union to obtain it through Freedom of Information requests.Footnote 60 Shortly afterwards, on 13 November 2001, Bush issued an Executive Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.Footnote 61 This stipulated that individuals detained under the Order, known as ‘enemy combatants’ need not be tried, but when they are, this should be by military commission.Footnote 62 It also allowed for the detention of individuals at an appropriate location designated by the Secretary of Defense outside or within the US. It was this Order that paved the way for the arbitrary detention of thousands of detainees in Afghanistan and Iraq at sites intended for this purpose, including at the Bagram Airbase, Afghanistan, and the Abu Ghraib prison, Iraq, as well as for the system of rendition, which has seen the detention of thousands more in multiple detention sites in various territories.Footnote 63 A notable and important aspect of rendition and secret detention is that it has brought together the intelligence and security apparatuses of multiple states, under the US's leadership, ostensibly to protect the US state from further US attacks. As in the Cold War, these security arrangements also facilitate the preservation of US dominance. In this regard, rendition and secret detention also serve a symbolic function in that they demonstrate the power of the US state globally through its ability to bring together for its own purposes agencies that are the embodiment of sovereign state power, since it is they that constitute the coercive capacity of the state. Furthermore, states have allowed the mistreatment of individuals within their own sovereign territories by external agents who are also allies. This is most clearly demonstrated in the report of the investigation by the European Parliament into the complicity of EU states in rendition, which demonstrates that in multiple cases CIA agents were given carte blanche to remove citizens from the streets of European sovereign states, transfer them to states known to use torture, and detain them indefinitely without due process.Footnote 64 Indeed this illustrates the extent to which the US's illicit actions have been facilitated by its cooperative allies.
Significant challenges to rendition and secret detention have arisen through the work of a variety of human rights organisations and firms of lawyers,Footnote 65 who have worked with each other and in collaboration with individual detainees in the ‘War on Terror’ and their families. In addition, their endeavours have been buttressed by numerous human rights organisations in the US and the UK pooling resources and working collaboratively, both to develop a comprehensive knowledge of the extent of rendition and secret detention, and to mount collective legal cases in defence of victims. Collaborative research and analysis has been undertaken by the British legal organisation Reprieve, the Center for Human Rights and Global Justice at New York University Law School, the Center for Constitutional Rights, American Civil Liberties Union, Human Rights Watch, Human Rights First, British NGO Cageprisoners, and Amnesty International.Footnote 66 They have also worked with the International Justice Network, small organisations and individuals that have been involved in tracking the journeys of rendition flights, such as Shannonwatch,Footnote 67 and a small number of academics. The Center for Human Rights and Global Justice at New York University Law School, the Center for Constitutional Rights, and the American Civil Liberties Union have also worked together to mount legal cases in the US courts.
The work of these organisations takes emancipatory struggle beyond the realms of communicative processes that critique state power, and provides a concrete set of social practices that are deployed to bring about the emancipation of the oppressed. Within a human rights framework, they have been able to bring dozens of cases, often collectively, against the US state in the district courts, the courts of appeal, and the Supreme Court, for its abuses of human dignity and freedom. Specifically, the cases variously challenge the illegal detention of detainees in Guantánamo Bay and Bagram airbase, the denial of habeas corpus rights, and US complicity in torture and other cruel, inhuman, and degrading treatment. Thus, they have identified the very specific ways in which the US's practices are at odds not just with international law, but also with domestic law. In the various cases brought before the US Courts, numerous articles of both US and international law have been invoked, including Title 18 of the US Code on Crimes and Criminal Procedure, Title 28 of the US Code on the Judiciary and Judicial Procedure, especially chapter 153 on Habeas Corpus rights, Articles I, II, III, and IV and Amendments III, IV, V, and VIII of the US Constitution, the UN Convention Against Torture, the Universal Declaration of Human Rights, and the Geneva Conventions, to all of which the US is a signatory. In other words, the nefarious practices of the administration are being challenged primarily with reference to the laws of the US state itself.
Clearly, one of the key challenges of those involved in efforts to challenge rendition, secret detention, and torture was to make explicit the ways in which the Bush administration had sought to curtail rights and freedoms through its framing of terror suspects as enemy combatants. Their strategy was to show how Bush's Executive Order and accompanying practices violate the principles at the heart of the US Constitution. Those involved in the struggle, therefore, sought to reverse the means by which the law and the legal architecture had been manipulated by neo-conservatives to facilitate the illegal imprisonment of suspects in the ‘War on Terror’.
These efforts have led to some important successes in wresting power from the Executive, since in a number of cases, the US Courts ruled against the state and in favour of plaintiffs, emphasising the fundamental right of habeas corpus, as enshrined in the US Code and the US Constitution, to all persons, irrespective of race, nationality, or citizenship. Notable cases included Rasul v Bush and Hamdi v Rumsfeld. A key ruling was made on 28 June 2004, when the Supreme Court held in Rasul v Bush that the 600 Guantánamo Bay detainees had a right to access the US federal courts ‘via habeas corpus and otherwise, to challenge their detention and conditions of confinement’.Footnote 68 This does not mean to say that the state accepted the ruling without question. Indeed it made a number of attempts to again circumvent the law, and to continue infringing the basic rights of those detained.
Within a week of the Supreme Court's ruling the US Government authorised the establishment of the Combatant Status Review Tribunals (CSRTs) at Guantánamo.Footnote 69 These were deliberately intended to avoid providing Guantánamo detainees any access to the US Courts, despite the ruling of the Supreme Court.Footnote 70 It was up to military officers to review each detainee's enemy combatant status without the involvement of lawyers representing the detainees, evidence was permitted that had been obtained under coercion or torture, and detainees were denied access to classified evidence, which in many cases comprised the majority of the evidence against the detainee.Footnote 71 Numerous challenges were brought in both the District and Supreme Courts to these tribunals, again invoking the habeas corpus rights of the detainees. To try and halt these various petitions, the Detainee Treatment Act was enacted into law on 20 December 2005.Footnote 72 This purported to strip the US courts of their jurisdiction over the various habeas corpus petitions filed on behalf of the Guantánamo detainees, vesting exclusive review of the final decisions of the CSRTs and military commissions into the District of Columbia Circuit Court.Footnote 73 Human rights lawyers were not deterred. The law was on their side, as the Supreme Court ruling in Rasul v Bush made clear, and eventually, in Hamden v Rumsfeld, the Supreme Court ruled on 29 June 2006 that the Detainee Treatment Act did not preclude federal jurisdiction of pending habeas corpus actions. Furthermore, it ruled that the military commissions, as defined under President Bush's Executive Order of 2001, violated military law and the Geneva Conventions.Footnote 74 Within just a few months of the ruling, the Bush administration managed to pass the Military Commission Act on 17 October 2006.Footnote 75 It was aimed at severely limiting the avenues of judicial review for non-citizens held in US custody and eliminating judicial review for any claims challenging any aspect of detention or treatment of all non-citizen detainees determined to be ‘enemy combatants’ or ‘awaiting such determination’. It also ratified the severely limited CSRT review process as a substitute for habeas corpus.Footnote 76 This dealt a severe blow to the work of human rights organisations and lawyers representing Guantánamo detainees, and on 20 February 2007, the Court of Appeals of the District of Colombia Circuit ruled 2–1 against the detainees in a series of consolidated cases, upholding the government's position that Guantánamo detainees had no constitutional rights to habeas corpus review of their detentions in the federal court system, on the grounds, they argued, that the ‘common law habeas, according to the majority, did not extend to noncitizens captured abroad and held outside of the US’.Footnote 77 Subsequently, on 2 April 2007, the Supreme Court refused to hear an appeal in the combined cases. However, in its first reversal in 60 years, on 29 June 2007, it announced that it would hear the consolidated cases. The Supreme Court eventually gave its ruling in the case on 12 June 2008, when it ruled 5–4 in favour of the detainees, reversing the Court of Appeals decision, and granting detainees the writ of habeas corpus. Importantly, it asserted that the review process under the Detainee Treatment Act was not an adequate substitute for full habeas review.Footnote 78 As a result, a number of cases have been heard, and rulings have been made that there was no credible evidence on which to continue holding the detainees, and the Court has ordered that the detainee be released, for example in Al Halmandy v Bush on behalf of Mohammed Jawad.
While frequently the US Courts upheld and defended the practices sanctioned by the Executive, on occasion they ruled in favour of the plaintiffs. In doing so, they put pressure on the Executive to put an end to practices anathema to US and international law. At this stage it remains unclear what has made the difference in cases where courts have ruled against the state. In discussions with staff from the American Civil Liberties Union and with lawyers that have represented detainees, a number have suggested that what often makes the difference is the make-up of the panel of judges. A number are convinced that the outcomes in these cases have been, at least in part, political, with the Supreme Court being more likely to rule on behalf of the detainees where a majority of judges are ideologically sympathetic to Democrat rather than Republican politics, and at the district court level where the judge hearing the case is ideologically more inclined towards the Democrats. More research is needed to determine whether it is accurate to say that there is any relationship between the outcomes in these cases, and the ideological commitments of the judges, particularly as this has important implications concerning the degree to which the US court system operates independently of US politics.
The collaborative work of human rights organisations to publicise, condemn, and challenge the human rights abuses perpetrated by the state made a substantial contribution to these changes in US foreign policy in the latter year of the Bush administration, culminating in Obama's reforms on entering office.Footnote 79 Indeed it was the efforts of those organisations that made the difference, in that they had enough of an impact for Obama to take the decision to formalise reforms that were already underway, and that had begun with Bush's outlawing of harsh interrogation techniques as part of the 2005 Detainee Treatment Act. On entering office in 2009, Obama passed three executive orders. The referral of any further cases to military commission under the 2005 Military Commission Act was prohibited, pending the review of these.Footnote 80 There was to be a review of US detention policy options for those detained as terror suspects.Footnote 81 The use of torturous techniques by the CIA was banned. Permissible techniques for all US interrogations were now limited to those found in Army Field Manual 2–22.3. The Detainee Treatment Act 2005 had previously outlawed harsher techniques during Department of Defense interrogations, but President Bush had vetoed attempts in March 2008 to restrict the CIA to the same methods. The use of CIA secret prisons was outlawed. President Bush's Executive Order 13440 which had affirmed that detainees were not entitled to protections under the Geneva Conventions was outlawed. Common Article three of the Geneva Conventions was reinstated as a minimum baseline for the treatment of all detainees held ‘in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States’.Footnote 82 While these moves were a step in the right direction, we should exercise caution in assuming they marked the end of rendition and associated human rights abuses. We have not yet seen the end of detention without trial. Following the review of military commissions and under considerable pressure from the Department of Defense and national security officials, as well as faced with a Republican majority in Congress and Senate, Obama reinstated the military commissions by Executive Order on 7 March 2011.Footnote 83 Regarding the treatment of detainees, there is a significant loophole in the above stipulation that they must be treated humanely in the custody of the US. As long as the detainee cannot be said to be ‘under effective control’ of the US, or in a US-operated facility, CIA and Department of Defense agents have not been expressly forbidden by the president from aiding the secret detention and torture conducted by others. Furthermore, rendition itself has not been outlawed. It in fact explicitly remains as a valid counterterrorism tool. It is claimed that those subjected to rendition will be closely monitored to ensure proper treatment, although many human rights groups and lawyers argue that such ‘diplomatic assurances’ have proved worthless in the past. Guantánamo has yet to be closed. The basic rights of the many hundreds of people still held in detention facilities run by the US Department of Defense in Guantánamo and Bagram, or on behalf of the US by third party states, have not been reinstated. In this regard, the battles that have been won and the improvements that have been made are not totally transformative.
Sustained scrutiny and activism by human rights organisations, lawyers, and academics are needed both to determine whether Obama's orders have led to improved compliance with human rights norms within the CIA and Department of Defense, and to continue representing those who are still detained without charge or trial. Human rights lawyers are still bringing new cases to the Courts in defence of the basic human rights of civilians detained at numerous detention sites around the world on behalf of the USA. The International Justice Network, for example, is working on several cases on behalf of individuals that have been detained at the Bagram Airbase, denied basic legal rights, and allegedly subjected to cruel treatment.Footnote 84
The case of rendition strengthens our understanding of what emancipatory efforts look like. They begin with critiques of the illicit use of state power. But they also involve the process of identifying the best strategies, agents, and institutions that might be deployed to challenge the illicit use of state power. In this case, the collective efforts of human rights lawyers and human rights organisations, working closely with victims of oppression, were brought to bear on the state through the US Courts. These were underpinned by collaborative work to fully research the extent of rendition, secret detention and torture, and to identify the best ways that the courts could be used to challenge these human rights violations. Raising public awareness was an important part of the struggle. The struggles in the US courts have also inspired new ways of challenging the various human rights violations that rendition and secret detention entail. Indeed, transnational networks of human rights lawyers, NGOs in the US, UK, and in countries where rendition has taken place, including Kenya, Pakistan and Jordan, investigative journalists, and key departments in international organisations, as well as a small number of academics, are now coming together alongside detainees and former detainees to challenge the human rights abuses perpetrated in the name of the ‘War on Terror’. They have identified ways in which their own resources might be pooled to exert pressure on those states complicit in rendition and secret detention. They are collaborating to bring cases on behalf of numerous detainees to various courts including the European Court of Human Rights,Footnote 85 and the courts of some European states. Human rights advocates in the US have been particularly positive about the fact that such cases are being picked up elsewhere and taken to other jurisdictions, and a number have indicated that international interest and proceedings through the European Court of Human Rights in particular helps keep the pressure on the US state. For historical materialists, though, social transformation demands more. These struggles need to be linked to other forms of struggle as part of a wider agenda aimed at transforming deeper inequalities in social relations.
Transforming popular ‘common sense’
For historical materialists, the transformation of inequalities in social relations does not end with efforts to ensure that the rights of the oppressed are realised. The next stage involves shaping ‘common sense’ understandings of the underlying causes of oppression, which in turn can help bring together those involved in a whole variety of struggles around a shared vision of social transformation. For Gramsci, social transformation involves identifying ways in which individual struggles around numerous oppressive practices can be unified to challenge not just specific violations of rights, but the structures which underpin relations of oppression. This is because Gramsci saw popular ‘common sense’ as ‘a critical terrain of political struggle’.Footnote 86 ‘Common sense’ though, as Rupert explains, was not ‘monolithic or univocal’, but ‘a syncretic historical residue, fragmentary and contradictory, open to multiple interpretations and potentially supportive of very different kinds of social visions and political projects’.Footnote 87 Gramsci's political project ‘entailed addressing the popular common sense operative in particular times and places, making explicit the tensions and contradictions within it as well as the sociopolitical implications of these, in order to enable critical social analysis and transformative political practice’.Footnote 88 Gramsci's position, therefore, was not to discard ideological concepts such as human rights, as Marx had done, but to argue that we should redefine rights ‘against whatever conservative connotations they may have acquired, adjust them to the project of popular politics and build around them a “hegemonic” bloc’.Footnote 89 In the case of rendition and secret detention, this means highlighting the ways in which these foreign policy tools are part of the broader exploitative social relations inherent to the contemporary capitalist order, and the US's efforts to maintain its dominant position within it. The use of torture and extraordinary rendition by the US against terror suspects in the ‘War on Terror’ are part of a broader imperial project in which the US is seeking to increase its presence and influence in the wider Middle East, to ensure privileged relations with the security agencies of numerous states in key strategic areas, and to assert its position as the world's most powerful state, at a time of emerging competition from other players. Given the considerable ambiguity over the degree to which the human rights abuses perpetrated and sponsored by the US have been functional, rational, or effective for the US's broader objectives,Footnote 90 their assumed utility should be called into question in public debate.
Victories for the various social movements that challenge oppression are often only partial, and may only bring about incremental change, but can be totally transformative for individuals. But they also contain within them the seeds for transforming popular common sense. This involves enhancing understanding of the exploitative social relations inherent to the contemporary capitalist order which are productive of the many oppressive practices in question. This in turn facilitates the critical analysis of what the best strategies might be for bringing about social change. An important challenge nevertheless remains. That is to engage in educative efforts which transform popular ‘common sense’ ideas about what purpose the abuse of human rights is intended to serve, and how it interacts with much deeper and entrenched relations of subordination. While scholarly efforts to highlight these relations are a start, more creative ways of informing public common sense need to be found, which in turn might inspire new ways of struggling for the realisation of the rights of the oppressed.
Conclusion
The transnational human rights agenda has been a powerful force in challenging both state terrorism, and the abuse of state power. A historical materialist approach to imperialism provides a very helpful framework for understanding the roots of oppression and human rights abuses, but also the emancipatory power of the human rights agenda. Human rights are profoundly subversive. Their power can be exercised through immanent critique. This involves identifying the contradictions between the ways that states use power illegally and arbitrarily to oppress, and the claims that they make about their human rights commitments. But the power of human rights is not only located in its discourse, through which notions of oppression are constituted. While discourses of oppression may serve to reinforce oppression, the basis of that oppression exists outside of and independently of that discourse. Immanent critique must involve entertaining the possibility of collective social action to bring about emancipatory social change. For good reasons, CSS scholars have been reluctant to suggest that emancipation can be achieved without first opening up space for individual victims of oppression to speak. But very often in the case of serious human rights abuses, agency will have to be exercised on their behalf. Immanent critique must therefore involve identifying the variety of agents located socially, historically, and institutionally, and the means they might deploy to challenge practices of oppression, and the resources they might pool to bring about transformative social change, on behalf of those who simply may not have a voice, never mind the means. The case of the various challenges raised in the US courts to the excesses of the Bush administration, through its use of forced disappearances, arbitrary and secret detention and torture, demonstrates this well. It shows how, repeatedly, the fundamental laws and values on which the US state claims to rest have repeatedly been rescued from efforts by the Executive to undermine them. It helps illustrate what emancipation might look like in practice. It is a collective struggle. Indeed emancipation is only meaningful when it is situated socially as well as politically. It is not essentialist or imposing; rather it speaks to the fundamental notions at the heart of the human rights agenda of freedom, justice, and dignity. It does not give up when the state and its institutions seeks to thwart emancipatory efforts, through the cooption of laws and norms for its own purposes. Instead, it seeks to reclaim them, liberating them for the purposes they were intended to serve. And it goes on doing so as often as the state seeks to undermine the freedoms it claims to uphold.
In this regard, Marx's eschewal of the human rights agenda was mistaken. Human rights are grounded in an enduring human trait to resist oppression. They also provide a vehicle for collective social action in the face of much oppression. Of course they have been used and articulated in ways that buttress the state and entrench neo-liberal capitalism. And for this reason, the warning of CSS scholars not to reify the human rights agenda, or any other exogenous blueprint for social change, is well taken. But human rights have also been deployed to great effect as a tool of emancipation. In and of themselves, as Gramsci argued, rights do not provide a unified front against rapacious capitalist penetration. But in the prevailing order, they do contain within them the possibility for diverse progressive struggles to come to a collective understanding and shared vision of the underlying causes of inequality, violence, and terror. Emancipation requires collective human agency to subject oppressive practices to scrutiny, to use the mechanisms and institutions available to challenge those practices, and to identify the best means, agents, and times at which to hold the state to account for its abuse both of human beings under its control, and of its power. In turn, this agency needs to be informed by a conceptual understanding of the specific nature of the forms that oppression takes and what the best strategies might be for bringing about social transformation. It is perhaps here that critical scholars of International Relations can make an important contribution. Critical scholars can provide insights into the behaviour of states, and analysis of how human rights struggles have played out in the past. They may best do this through engaging seriously with historical materialist theories of imperialism, state terrorism and social change, as well as through collective endeavours with those beyond academia engaged in a whole variety of emancipatory struggles.
