"While we recognize that the threat of terrorism requires specific measures, we call on all governments to refrain from any excessive steps which would violate fundamental freedoms and undermine legitimate dissent. In pursuing the objective of eradicating terrorism, it is essential that States strictly adhere to their international obligations to uphold human rights and fundamental freedoms." (1) "Stalked in our homeland
by the deadliest terrorists in history, we are armed with investigative
powers calibrated largely for dealing with drug dealers, bank robbers,
burglars, and ordinary murderers." (2)
It really did feel like a different century when the American scholar Francis Fukuyama proclaimed "The End of History". (3) Overwhelmed by the fall of the communist Eastern bloc, many people agreed with Fukuyama that liberal democracy had won not just the battle, but indeed the whole war. While the 20th century had started out as a period of massive bloodshed and totalitarian rule of both the 'left' and 'right', it had ended with an unprecedented wave of democratisation. Fukuyama's declaration was the optimistic, if not euphoric, end to what the British historian Eric Hobsbawn had so fittingly called the "Age of Extremes". (4) How different the beginning of the 21st century looks. While originally scorned for its stereotypical characterisations, the terrible events of 9/11 and the 'war on Iraq' have made Samuel Huntington's "Clash of the Civilizations" (5) an increasingly realistic scenario of the years to come. Politicians from American president George W. Bush to the late Dutch maverick Pim Fortuyn, from French president Jacques Chirac to former Czech president Vacláv Havel, have told us that `Western civilisation' is threatened by dark forces. The enemies are not always the same though; they range from Islamic fundamentalists (in- and outside of the West) to right-wing extremists, and from separatist 'guerrillas' to 'rogue states'. The 'democratic world' has retaliated in many different ways. There is the ongoing 'war on terrorism', which has taken Western countries to battlefields in (so far) Afghanistan and Iraq, but has also had profound (negative) effects on the quality of democracy in their own countries. Fourteen of the fifteen member states of the European Union (EU) have sanctioned their fellow member, Austria, for including an extreme right party in government (while largely ignoring similar developments in Italy). And various countries continue to be involved in often age-old domestic struggles with separatist groups, ranging from non-violent political parties like the Northern League (LN) to terrorist groups like ETA in Spain. What all these examples have
in common is that they deal with the most fundamental question facing democracy:
how can a democracy defend itself from its enemies without losing its democratic
character? In what follows, I will first provide a short overview of the
main challenges confronting (mainly European) democracies in the early
21st century. Second, I will present a short overview of the different
ways in which they have responded to these challenges, including some preliminary
evaluations of their rate of success. Third, and finally, I will offer
some suggestions as to how, in my view, democracies should deal with the
different challenges. This last part is intended as a basis for discussion
rather than the 'last word on the subject', if only because my suggestions
are embedded in a particular interpretation of liberal democracy that is
also open to debate.
Extremist
Challenges in the Early 21st Century:
Democracies are challenged by a wide variety of players: individuals and organisations, small sects and mass parties, religious and secular, left-wing and right-wing, etc. Most of these distinctions are not particularly relevant to the general argument. However, I will focus here exclusively on challenges by organisations rather than individuals, as these tend to be more significant. Also, I will address primarily domestic challenges, ie disregarding threats from foreign countries (either by state or non-state actors). However, I do include organisations which have their central command abroad, but which are active within European democracies (eg various Islamic fundamentalist groups). I will also distinguish between
ideas and actions. By ideas I mean the goals to which the organisations
aspire, while actions denote their attempted methods of attaining these
goals. Both ideas and actions can be divided into democratic and non-democratic.
Now, obviously, these terms are far from straightforward, yet I will not
be going into detail on their specific meanings. Rather, I shall use these
terms in a relative or subjective way, ie phenomena which are 'democratic'
or 'non-democratic' in the view of the democratic State in question.
Category (1) comprises organisations with democratic ideas and actions, such as most trade unions, Christian democratic parties, liberal think tanks et cetera. This category is of little concern to us here, as they do not challenge democracies (they rather form the backbone of the democratic State). Category (2) consists of groups which have non-democratic ideas but which employ only democratic means to achieve their goals. This category first and foremost includes the various 'extreme right' or 'right-wing populist' political parties which, with varying degrees of success, contest elections throughout Europe. (6) It also includes various 'extreme left' groups, such as non-reformed communist parties, as well as certain religious fundamentalist groups (e.g. the Dutch SGP party or some of the groups that constitute the Christian Right in the US). Category (3) contains groups that have democratic ideas, but use non-democratic means to achieve them. This category might seem smaller and less relevant than it actually is, for it includes certain elements of the anti-globalisation movement (which use small-scale violence), of the animal rights movement (most notably the Animal Liberation Front), or the environmental movement (e.g. Earth Liberation Front). Category (4), finally,
is reserved for the real 'bad boys' of democracy, both holding non-democratic
ideas and using non-democratic actions. We might think of various neo-Nazi
groups which take their struggles on to the streets; Islamic fundamentalist
terrorist cells (such as the Armed Islamic Group, GIA); but also the anarchistic
'Black Block', which foments a great deal of the violence surrounding anti-globalisation
demonstrations.
Defending Democracies: Responding to the Challenges There has been little academic research into the area of 'defending democracies'. (7) In the available literature, however, two (ideal/typical) models of democracy are distinguished in accordance with the democratic response to extremist challenges: the American and the German model. In the American model, obviously based on the US experience, the State facilitates the utmost freedom. This means that all ideas are accepted in the democratic 'marketplace of ideas', whether they are democratic or not. One example is the famous Skokie case, where the racist Ku Klux Klan won a court case to march through a predominantly Jewish neighbourhood. However, not all actions are accepted, and violent political groups are the subject of serious State repression (often helped by so-called 'watchdog groups'). (8) The German model is officially called streitbare or wehrhafte Demokratie, which roughly translates as militant democracy. (9) It is based on the legal system in post-war Germany, which has largely been influenced by the Weimar legacy as well as the Allied (and German elite's) distrust of the German population. As in the American model, anti-democratic actions are severely punished in the German model. But the German State has also explicitly defined 'the fundamental principles of the free democratic order', and prohibits not only actions, but also ideas that are opposed to these principles. Since 1973, the state has distinguished officially between 'radicalism' and 'extremism': The terms 'radicalism' and 'radical' have consequently undergone a change of meaning. What we characterise as 'extremist' today used to be characterised as 'radical'. Nowadays, actions designated as `radical' are those aimed at one-sided solutions that go 'to the root' of certain problems, without (yet) aiming at the full or partial elimination of the free democratic order. (10) In short, the difference between radicalism and extremism is that the former is 'only' verfassungsfeindlich (in opposition to the principles of the constitution), whereas the latter is verfassungswidrig (unconstitutional). This difference is of the utmost practical importance for the organisations concerned, as extremist groups are very closely monitored by the (Federal and State) Verfassungsschutz (State Security) and may even be banned, whereas radical groups are free from such intrusion. The distinction between the American and the German model is ideal/typical and reflects less and less the actual situation in the two countries. For one, the German State has become more reluctant to use its repressive measures against extremist ideas (11), although the recent application to the Federal Constitutional Court in Karlsruhe to ban the extreme right National Democratic Party of Germany (NPD) might be considered a relapse. At the same time, the U.S. has become far less tolerant towards extremist ideas. First of all, through the introduction of the concept of 'hate crime', certain ideas have become criminalised. Secondly, since 9/11 groups and individuals that are suspected of sympathising with Osama Bin-Laden and his al-Qaeda network have been increasingly subjected to State repression (varying from monitoring to arrests), this has particularly affected new Americans and alien residents. (12) I shall discuss some examples
below of how European democracies have reacted to extremist challenges.
The challenges will be broken down according to the aforementioned categories.
The ensuing comments are not meant as an exhaustive overview of the various
'democratic defences' in use in Europe, but aim to provide a better insight
into the most commonly used approaches, as well as into the scope of the
approaches used. Moreover, it is intended to fuel discussion on the usefulness
and desirability of the various means by which democracies can defend themselves.
The Challenge of Democratic Ideas promoted by Undemocratic Actions The best recent examples of these challenges are the large anti-globalisation demonstrations that have taken place in cities throughout the world. The most notorious examples were the defining 'Battle of Seattle' and the tragic 'Battle of Genoa', which saw the first demonstrator killed. In all these cases the vast majority of the thousands of participants in the demonstrations hold democratic ideals and behave peacefully, but a small section will get involved in (small-scale) violent behaviour. Even though the demonstrations have been organised from Seattle to Gothenburg and from Melbourne to Prague, State responses have become remarkably similar. Increasingly, States will close off a large (and expanding) area of the city around the meeting place which is accessible to demonstrators but by and large excludes all non-inhabitants of the sector. Additionally, a massive police presence ensures that no one enters the cordoned-off area and prevents the demonstrations from becoming violent. During the period of the
meeting (of world leaders, the IMF, etc.) special regulations are imposed
on the city, and in the restricted area a state of emergency exists. A
zero tolerance policy is introduced, and anyone considered to be breaching
the rules, even by non-violent means, is arrested on the spot and sometimes,
at least initially, held under inadequate conditions without legal assistance.
In some cases the police have also acted proactively, anticipating suspected
violence from certain quarters and searching and/or arresting demonstrators
'before the act'. The most extreme example of this pre-emptive policing
was the raid on a school building in Genoa by the Italian police, which
was carried out under very dubious circumstances and caused mass injuries
to innocent anti-globalisation demonstrators. (13)
Similar, though less serious, incidents have occurred during recent anti-globalisation
and anti-war demonstrations in other European countries, from the Czech
Republic to the Netherlands.
The Challenge of Undemocratic Ideas promoted by Democratic Actions Virtually all the European democracies are faced with organisations that aspire to undemocratic goals but use only democratic means to achieve these goals. The most notable are the various 'extreme right' and 'extreme left' political parties that stand for election in these countries. The parties' rates of success vary considerably, from under 1% of the vote for parties like the Bulgarian National Radical Party (BNRP) or the New Communist Party of the Netherlands (NCPN), around 5 percent for parties like the Hungarian Justice and Life Party (MIÉP) and the Communist Party of Greece (KKE), to (well) over 10 percent for parties such as the Danish People's Party (DFP) and the Communist Party of Bohemia and Moravia (KSCM). European democracies have reacted to these extremist party political challenges in many different ways. In some countries, such as Austria or Slovakia, the extremists have simply been co-opted into the government. In other countries, such as Denmark and Hungary, the extremists have been kept out of government, but have been courted at various times to support particular legislation. In many countries there is a general understanding that extremist parties are to be shunned, although this is not a major point on the political agenda (generally because of the electoral weakness of the extremist parties). Some countries take this policy of isolation even further, by establishing a cordon sanitaire, ie a formal agreement not to co-operate with an extremist party at any level. (14) This is the case in the Flemish part of Belgium, to exclude the extreme right Flemish Block (VB), and used to apply to the Netherlands, with regard to the extreme right Centre Democrats (CD). In addition to the way democratic parties deal with extremist parties in the political arena, there are also differences in the way the democratic States deal with these challenges. Most countries have rules about the prohibition and dissolution of political parties, although the specific provisions vary greatly. (15) For example, in the Czech Republic and Lithuania the state tries to prevent certain parties from becoming an electoral force by denying them registration on the basis of their extremist character (and even their acronyms!). In other countries the measures have been more radical, ranging from prohibiting demonstrations to party bans. For example, Austria banned the National Democratic Party (NDP) in 1988 because of its 'neo-Nazi character', while ten years later the Netherlands banned the Centre Party'86 (CP'86) for being a 'criminal organisation'. Currently, as mentioned, the German state is trying to ban the NPD because of its 'unconstitutional' character. (16) Obviously, a party ban is the most effective measure to prevent a political party from gaining political power. No political party, no political power. But it comes at a very high price in (liberal) democratic terms. The German political science professor Ulrich K. Preuß even calls the party ban a "dangerous instrument [...] because it (a) produces a false sense of security, and (b) also a false sense that unpopular minorities, particularly because they are minorities, in principle do not have to be accepted." (17) Moreover, one can debate the usefulness of banning a party, when successor organisations can often continue their work without any great problems. Other countries have introduced
general measures with the implicit aim of blocking extremist parties. (18)
In the Netherlands, for example, the number of supportive signatures for
a party to stand for election was raised with the implicit goal of preventing
the extreme right CD from standing in any constituency. In Belgium all
parties are required to adhere to the principles of the European Convention
on Human Rights to be eligible for State funding, a requirement with the
barely concealed aim of weakening the VB. In some countries people have
advocated introducing electoral thresholds, or even a different electoral
system, in order to prevent extremist parties from gaining parliamentary
representation. Obviously, these measures have the (additional) disadvantage
of also affecting the democratic parties.
The Challenge of Undemocratic Ideas promoted by Undemocratic Actions In most cases this challenge is the most severe and threatening to both the democratic system and society. The challengers range from loosely organised semi-collectives of individuals, like skinheads and some neo-Nazi gangs, to highly trained and organised cells and international groups like al-Qaeda. I will focus on the responses to the latter, and most notably to the events of 9/11, which have given rise to an unprecedented wave of legal reform throughout the world. What these reforms have in common is that they "extend the illegal areas, increase penalties, ease the burden of proof, restrict opportunities for defence and obstruct legislative supervision." (19) One of the most worrying
reactions has been the extra-legal, if not simply illegal, detention of
foreign suspects in some countries. For example, in the U.S. some 1.500
foreigners and persons of Arab descent have been arrested without a court
decision, legal council, or a clear legal reason. In the UK the Home Secretary
has obtained the right to detain suspected foreigners for a specified period.
(20)
It is clear that such measures have severe repercussions on the human rights
situation in these countries and, therefore, on the quality of democracy
(even if they - for the moment - mainly affect non-citizens).
Some Suggestions for Future Procedure There seems to be a compelling case for readdressing the 'liberty-security in the light of 9/11 and of the fairly recent rise of extremist parties and violence. Particularly in the US the debate has already started, and has not surprisingly been heavily biased towards 'security'. Even the once influential American Civil Liberties Union (ACLU) has become largely powerless in the face of the Angst of the American elite and masses alike. However, it is important to note that throughout the Western world "the tendency to reinforce security at the cost of freedom has existed since the 1970s and 1980s. 11 September 2001 has strengthened, but not justified, this tendency." (21) Countries across the globe have varied greatly in their legal responses to 9/11. Propositions have ranged from relatively moderate demands, such as easing the burden of proof from 'probable cause' to 'reasonable suspicion', to rather extreme suggestions, including the use of psychological coercion and truth serum in interrogating suspected terrorists. (22) Indeed, the American journalist Jonathan Alter, considered to be a 'liberal' (!), has argued We can't legalize physical torture; it's contrary to American values. But even as we continue to speak out against human-rights abuses around the world, we need to keep an open mind about certain measures to fight terrorism, like court-sanctioned psychological interrogation. And we'll have to think about transferring some suspects to our less squeamish allies, even if that's hypocritical. Nobody said this was going to be pretty. (23) In various European countries the propositions have not been as extreme, but almost as significant. Privacy is no longer considered an important right, not even for self-declared liberals. The new motto has become: "if you have nothing to hide, you have nothing to fear". (24) Consequently, opposition to the increased repression measures is seen as an indication of 'guilt', or at the very least tacit support for the 'terrorists'. In this climate where "the question is not whether we should increase governmental power to meet such [terrorist] dangers. The question is how much" (25), my suggestions might sound anachronistic. They are, however, based on the following key principles: Consequently, the first response to any extremist challenge should be one of inclusion, rather than exclusion, and this applies to both individuals and organisations. That said, violence (apart from self-defence)should always be punished, and inclusion does not necessarily mean also adopting the ideas in question. However, a democracy should always be open to all ideas, and take challenges to its mainstream seriously. With regard to category 2 challenges, i.e. organisations with undemocratic ideas that use only democratic actions, inclusion into the democratic community of both the organisations and their supporters is crucial. Unfortunately, nowadays most attention is aimed at excluding extremist parties from political responsibility, while their voters are either ridiculed ('fearful white men') or grossly misinterpreted ('they are just protesting'). Many have legitimate complaints, such as the overlooking of important issues (immigration, crime, loss of economic security), which the democratic parties must take seriously. However, taking these issues on board should not mean copying extremist policies on these issues! Democratic parties should provide their own solutions to these policies, seeking inspiration and guidance in their own ideologies. Secondly, democratic parties should deal with (alleged) extremist parties as normally as possible, i.e. as they do with other (relevant) political parties. Most European democracies are governed, both locally and nationally, by coalitions of parties. As is clear from the recent experience in countries like Belgium, the Czech Republic or France, the cordon sanitaire does not (always) bring the desired results. The extremist parties do not go away, and often even increase their support base. This is not all that surprising, given that the parties in power often also taboo the issues championed by the extremists. Obviously, ignoring these issues does not make them go away. There is another reason why extremist parties will not be greatly damaged by their exclusion. Like all (the larger) parties, extremist parties have different component factions, with different priorities and positions. Their exclusion keeps these factions close together, as (1) they are not forced to chose priorities (in opposition you can promise everything to everyone), and (2) a 'siege mentality' of 'all against one, one against all' strengthens the internal bond. Incidentally, the few examples of cooperation with extremist parties have shown that the effects on democracy are not necessarily threatening. The first Berlusconi government in Italy, for example, had a mainstream right-wing program that reflected the moderate Forza Italia party far more than the extreme right National Alliance (AN) or LN. The same can be said about the current second Berlusconi government, as well as the two most recent Austrian governments, which have included both the Christian democratic Austrian Peoples Party (ÖVP) and the extreme right Austrian Freedom Party (FPÖ). Even in Eastern Europe, in the cases of the Meciar governments in Slovakia or the first Iliescu government in Romania, the power of the extremists was limited, even though the mainstream parties were themselves more susceptible to xenophobic nationalism. These experiences show us that one can collaborate with (some) extremists, but that it is vital that this be done from a strong position, in which the democratic parties clearly delimit what is acceptable from what is not. Category 3 challenges, ie organisations with democratic ideas that use undemocratic means, must be dealt with temperately but decisively. All violence is unacceptable and must be punished. However, given that the ideas of these organisations are democratic, the State should encourage them to resort exclusively to democratic actions. This can be done, first of all, by adopting a less belligerent position towards them, and, secondly, by including them in the political debate. In this respect there have been some positive developments with regard to dialogue between those for and against globalisation (26), which might also lead to more self-policing within the larger movement. However, States should also do more to accommodate the views of anti-globalisation activists and uphold their right to demonstrate. Category 4 challenges, finally, raise the greatest problems. Organisations with undemocratic goals that use undemocratic means are very difficult to include in the democratic community - mainly because they do not want to be included. However, democracies should always leave the door open to those who do want to 'return', whether individuals or organisations. This is particularly important in the case of young people who are active in these groups, like teenage skinheads or neo-Nazis, who are sometimes scarred for life by dangerous convictions at an early age and the consequent official and social exclusion. In dealing with well-organised terrorists of the al-Qaeda type, it is vital to ensure that basic human rights are not sacrificed for (specious) safety. Furthermore, privacy is not infinite: it can be limited. But it is one thing to introduce, say, an identification duty (27), and another to argue that the State should at all times and under all circumstances have a right to monitor your mail, phone or e-mail. I believe that there are a few fundamental rules and values that should always be upheld:
1
Mary Robinson, the United Nations High Commissioner for Human Rights, Walter
Schwimmer, Secretary-General of the Council of Europe, and Ambassador Gérard
Stoudmann, Director of the Organization for Security and Cooperation in
Europe's (OSCE) Office for Democratic Institutions and Human Rights, press
release, 29 November 2001.
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