¹ Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended by Protocols 11 and 14, hereinafter “ECHR”), June 2010, available at http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/ENG_CONV.pdf (last accessed 29^th September 2011).Google Scholar

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⁴ See Neocleous, Mark, The Problem with Normality: Taking Exception to “Permanent Emergency,” 31 Alternatives 191, 195 (2006). Neocleus undertakes a literature review in this area to conclude that “permanent emergency” is now the dominant mantra of the left and indeed, of the libertarian right as well.Google Scholar

⁵ On 11 September 2001, two hijacked airliners flew into the World Trade Centre Towers, New York destroying them and killing thousands. A third plane crashed into the Pentagon Building, Washington. A final plane crash-landed in Pennsylvania, killing all on board. In total, 2,753 people lost their lives. See generally, National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States, available at http://www.gpoaccess.gov/911/pdf/fullreport.pdf (last accessed 29th September 2011).Google Scholar

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⁸ For examples of an extra-legal/extra-constitutional approach see Gross, id. at 1096; Tushnet, Mark, Defending Korematsu? Reflections on Civil Liberties in Wartime, Wisconsin Law Review 273, 304-307 (2003). See also Nomi Claire Lazar's rejection of the state of exception discourse in Nomi Claire Lazar, States of Emergencies in Liberal Democracies (2009). Dyzenhaus argues that the rule of law expressly prohibits an exception, either within or outside the legal order. See generally, David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (2006).Google Scholar

⁹ See Zuckerman, Ian, One Law for War and Peace? Judicial Review and Emergency Powers between the Norm and the Exception, 13 Constellations 522, 524 (2006).Google Scholar

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¹¹ As the US Supreme Court declared of the applicability of the US Constitution in a time of war in Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 120-21 (1866).Google Scholar

¹² A v. Secretary of State for the Home Department 2 W.L.R. 87 (2005); A and Others v. United Kingdom [hereinafter “Belmarsh”], Judgment of 19 February 2009, 3455 Eur. Ct. H.R. 5 (2009). This case concerned the legality of the indefinite detention of the applicants in Belmarsh Prison, London under s.23 of the Anti-Terrorism, Crime and Security Act 2001.Google Scholar

¹³ Lawless v. Ireland [hereinafter “Lawless”], Judgment of 1 July 1961, 3 Eur. Ct. H. R (ser. A, 1961).Google Scholar

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¹⁵ As delineated by lexicological sources, the Oxford English Dictionary defines an emergency as “a serious, unexpected, and often dangerous situation requiring immediate action;” Emergency Definition, Oxford English Dictionary (2010), available at: http://www.oed.com/view/Entry/61130?redirectedFrom=emergency#eid (last accessed: 27 September 2011); Merriam Webster's Dictionary defines an emergency as (1)“the unforeseen combination of circumstances or the resulting state that calls for immediate action or (2) an urgent need for assistance or relief;” Emergency Definition, Merriam-Webster Dictionary (2010), available at: http://www.merriam-webster.com/dictionary/emergency (last accessed: 29 September 2011).Google Scholar

¹⁶ See generally, Herbert Lionel Adolphus Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593 (1958).Google Scholar

¹⁷ Hence the emphasis of the “unforeseen” or “unexpected” nature of the crisis in the lexicological definitions outlined above; see supra note 15. See also Oren Gross, Once More Unto the Breach: The Systematic Failure of Applying the European Convention on Human Rights to Entrenched Emergencies 23 Yale J. Int'l L. 437, 438 (1998).Google Scholar

¹⁸ The second definition proffered by Merriam-Webster's only refers to the response element of emergency, and there is no mention of what phenomenon would induce such a need; see supra note 15.Google Scholar

¹⁹ See, for example, Washington State Legislature, The Washington State Emergency Action Plan, (2000), available at: http://www.emd.wa.gov/plans/documents/emergency_operations_plan.doc (last accessed: 27 September 2011), which includes as an integral part of the definition of emergency that the response must be “beyond routine incident response resources.” Similarly, the Irish Office of Emergency Planning requires the phenomenon to be “beyond the normal capabilities of the principal emergency services” before an emergency can be declared. See Office of Emergency Planning, Department of Defence, Strategic Emergency Planning Response (2004), available at: www.emergencyplanning.ie/media/docs/1SEPG.doc (last accessed: 29 September 2011).Google Scholar

²⁰ Ferejohn, John & Pasquino, Pasquale, The Law of the Exception: A Typology of Emergency Powers, 2 international journal of constitutional law 210 (2004).Google Scholar

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²⁸ See Gross, supra note 6, at 1073-1082.Google Scholar

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³² E.g. Ireland was under an official declaration of emergency in accordance with Art.28(3)(3) of its constitution from the outbreak of World War II in 1939 until 1976. The day after it was lifted, a new state of emergency was declared to deal with the increasingly violent situation in Northern Ireland. This lasted until 1995; See the Constitution of Ireland, enacted 1 July 1937. Israel has effectively been in a state of emergency since its inception as a sovereign state in 1949. See Adam Mizock, The Legality of the Fifty-Two Year State of Emergency in Israel, 7 Davis Journal of International Law and Policy 223 (2001). Egypt has been in a persistent state of emergency since 1981, and for all but four years since 1957. Despite a popular movement that ousted President Hosni Mubarak in February 2011, at the time of writing (July 2011), the state of emergency he declared in 1981 remains in force. On 24 February 2011, Algeria lifted its 19-year state of emergency following a period of popular public protest. The state of emergency proclaimed in Syria on 9 March 1963, effectuating Legislative Decree No. 51 of 22 December 1962, remained in force until 21 April 2011. However, one can hardly describe the condition in Syria at the time of writing to correlate with normalcy, equating instead with a de facto state of emergency. See Questiaux, supra note 3, at 26.Google Scholar

³³ E.g. The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, also known as the Patriot Act, enacted in the aftermath of 11 September 2001, originally contained 16 provisions due to sunset on 31 December 2005. 14 of these were made permanent, and the remainder repeatedly renewed. They are now expected to sunset on 1 June 2015. The Northern Ireland Emergency Powers Act 1973 (EPA), was renewed in 1978, 1987, 1991 and 1996, before being replaced by the Terrorism Act 2000 (2000 Act). The 2000 Act re-enacted the EPA 1996 provisions under Part VII, subject to annual renewal. This lapsed on 31 July 2007, ending the 34- year life of the so-called “emergency provisions.” Similarly, the Prevention of Terrorism (Temporary Provisions) Act 1974 (PTA) despite a sunset clause that was repeatedly renewed repeatedly every 5 years, until replaced by the Terrorism Act (2000), which made the measures permanent.Google Scholar

³⁴ See Neocleus, supra note 4, at 191-194. Neocleus himself rejects this argument, suggesting instead that “permanent emergency” is primarily caused by the use of emergency powers to deal with an increasing array of phenomena of ever-decreasing severity.Google Scholar

³⁵ This is illustrated by the fact that “terrorism” avoids a universally accepted legal definition. See Jorg Friedrichs, Defining the International Public Enemy: The Political Struggle Behind the Legal Debate on International Terrorism 19 Leiden Journal of International Law 69 (2006).Google Scholar

³⁶ The “terrorist” shares many of the same substantive characteristics of the “partisan” fighter: an irregular soldier who generally utilizes hit-and-run tactics against a militarily superior force. It is therefore in the advantage of the partisan to blend into the background of the ordinary population in order to evade detection and by extension, attack the enemy most effectively. See generally Carl Schmitt, Theory of the Partisan (2007).Google Scholar

³⁷ See Chesney, Robert & Goldsmith, Jack, Terrorism and the Convergence of Criminal and Military Detention Models, 60 Stan. L. Rev. 1079 (2008).Google Scholar

³⁸ Al Qaeda has been described loosely as merely constituting a shared ideology as opposed to an organization. See Burke Jason, Al Qaeda, Foreign Policy (FP) 18 (2004). Naim considers Al Qaeda to be a “loose network of individuals united by a shared passion for a single cause,” similar to NGOs. See Moises Naim, Missing Links: Al Qaeda, the NGO, FP 100 (2002). General consensus appears to be that Al Qaeda, particularly in the aftermath of 11 September 2001, operates as a loose network of independent cells, with a diminished centralized command structure. See Chesney & Goldsmith, supra note 37, at 2109.Google Scholar

³⁹ Burke argues that Al Qaeda seeks not to conquest, but to beat back western crusades from Islamic territory. Nevertheless, Wedgwood describes Al Qaeda's methods as shifting from pogrom to extermination of western peoples. See Ruth Wedgwood, Al Qaeda, Military Commissions, and American Self-Defense, 117 Political Science Quarterly 357 (2002). This is corroborated by the severity of the attacks of 11 September 2001, which undermines the now-defunct idea that terrorist groups would limit the magnitude of their attacks in order to prevent would-be sympathizers to their cause from becoming disenfranchised. See Chesney & Goldsmith, supra note 37, at 1094.Google Scholar

⁴⁰ As described by UN Secretary General Ban ki-moon: Bin Laden's death is ‘watershed moment’ says Ban Ki Moon (sic), BBC News, May 2, 2011, available at: http://www.bbc.co.uk/news/world-us-canada-13260609 (last accessed: 27 September 2011).Google Scholar

⁴¹ Jansen, Michael, Zawahiri announced by Al Qaeda as successor to late Bin Laden, Irish Times, Jun. 17, 2011, available at: http://www.irishtimes.com/search/archive.html?rm=listresults&filter=dateasc&keywords=Zawahiri+announced+by+AlQaeda+as+successor+to+late+Bin+Laden&daterange=&day1=1&mon1=1&vear1=1859&day2=1&mon2=1&vear2=1859 (last accessed: 27 September 2011). See also President Barack Obama's indications that the war on terror is likely to continue: CNNPolitics, Statement from President Obama on death of Osama bin Laden, Cnn, May 2, 2011, available at: http://articles.cnn.com/2011-05-02/politics/statement.obama_1_qaeda-bin-terrorist-attacks?_s=PM:POLITICS (last accessed: 27 September 2011).Google Scholar

⁴² See generally, Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (1988).Google Scholar

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⁴⁴ See the above discussion at note 8.Google Scholar

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⁵³ Cohen, Jean, Whose Sovereignty? Empire or International Law? 18 Ethics and International Affairs 1 (2004).Google Scholar

⁵⁴ Korematsu v. United States, 323 U.S. 214 (1933).Google Scholar

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⁶⁰ Commentators such as Ackerman envisage a role for the legislature in determining the existence of an emergency. However, these models often leave it to the executive to make the initial declaration, which is subsequently scrutinized by the legislature. For Ackerman, each subsequent renewal of a declaration of emergency would require an increasing majority. See Ackerman, Bruce, The Emergency Constitution, 113 Yale L.J. 1029 (2004).Google Scholar

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⁶³ Londras, Fiona de & Davis, Fergal, Controlling the Executive in Times of Terrorism: Competing Perspectives on Effective Oversight Mechanisms, 30 Oxford Journal of Legal Studies 19 (2010).Google Scholar

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⁶⁷ Council of Europe, Preparatory Work on Article 15 of the European Convention on Human Rights 5 (1956). The British submission that there should be a derogation clause was seen to be an almost “textual reproduction” of Article 4 of the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter “ICCPR”].Google Scholar

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⁶⁹ Article 15 of the ECHR also recognizes that some rights, such as the right to life (article 2) and the right to be free from torture or cruel and inhumane punishment (article 3) may not be deviated from, even during a state of emergency. See ECHR, supra note 1.Google Scholar

⁷⁰ Hartman, Joan, Derogation from Human Rights Treaties in Public Emergencies 22 Harv. In'tl L. J. 5 (1981)Google Scholar

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⁷⁸ Ireland v the United Kingdom, Judgment of 18 January 1978, 25 Eur. Ct. H.R. (ser. A, 1978).Google Scholar

⁷⁹ The Siracusa Principles have attempted to shed some light on the equivalent phrase contained in Article 4 of the ICCPR, declaring that in order for conditions to amount to a threat to the life of the nation, they must constitute a situation of exceptional and actual or imminent danger. See The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights 7 Human Rights Quarterly 3,7 (1985). Similarly, the Paris Minimum Standards outline that “public emergency” means “an exceptional situation of crisis or public danger, actual or imminent, which affects the whole population, or the whole population of the area to which the declaration applies and constitutes a threat to the organized life of the community of which the state is composed.” See Lillich, supra note 25, at 1073.Google Scholar

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⁹⁹ O'Boyle, Michael, Emergency Situations and the Protection of Human Rights A Model Derogation Provision For a Northern Ireland Bill of Rights, 28 Northern Ireland Legal Quarterly 160, 182 (1977).Google Scholar

¹⁰⁰ A discussion of this case may be found at Gross & Ní Aoláin, supra note 10 at 273-276.Google Scholar

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¹⁰⁴ This is essentially the theory propounded by Nomi Claire Lazar in supra note 8.Google Scholar

¹⁰⁵ See Ashworth, Andrew, Crime, Community and Creeping Consequentialism, Criminal Law Review 220 (1996).Google Scholar

¹⁰⁶ Brannigan and McBride v. the United Kingdom, 258 Eur. Ct. H.R. (ser. A, 1993).Google Scholar

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¹¹¹ Ignatieff argues that the state's politicians have an incentive to prefer a strong executive response, given the political gain this can incur and conversely, the adverse consequences of the public perceiving politicians to be under reacting to a terrorist threat. See Michael Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror 58 (2005); Cole, David, Enemy Aliens, 54 Stan. L. Rev. 953, 955 (2002).Google Scholar

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¹¹⁴ As per the UN Human Rights Committee's General Comment on Article 4, a discussion of which can be found at: Sarah Joseph, Human Rights Committee: General Comment 29, 2 Human Rights law Review 81, 82 (2002).Google Scholar