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15 - Human rights and counter-terrorism

Ilias Bantekas
Affiliation:
Brunel University
Lutz Oette
Affiliation:
School of Oriental and African Studies, University of London
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Summary

Introduction

The purpose of this chapter is not to describe the terrorist phenomenon, but rather to analyse the range of responses to it and their compliance with human rights law. This analysis necessarily takes into consideration the legal nature of terrorism under international law and its rapid transformations in the aftermath of the terrorist attacks against the USA on 11 September 2001 (9/11). It is as a direct result of this transformation that the international legal framework on terrorism gave way to a model whose chief proponents endeavoured to locate it as far as possible beyond the ambit of the rule of law and the reach of the judiciary. Although this position was essentially posited by the direct victim of the 9/11 attacks, the United States of America, it was also widely shared by other nations, democratic and otherwise. The subsequent practice of these nations has given rise to a barrage of litigation worldwide and the submission of reports by UN rapporteurs and NGOs condemning the limitation and outright violation of human rights under the guise of counter-terrorism. The essential nature of the argument between the two sides may be expressed with the following question. Does the real and imminent threat posed by terrorism justify exceptional measures the effect of which is to deny fundamental rights to suspected terrorists? The answer to this question is not a simple one. No doubt, governments, whether unilaterally or jointly, must take appropriate intelligence and law-enforcement measures in order to protect their people. The clandestine nature of terrorism renders this task all the more difficult. Yet, if in the name of counter-terrorism states are allowed to violate fundamental human rights with impunity they can turn out to pose a larger risk for all peoples, especially long term, than the terrorists themselves. Although the terrorist phenomenon is a real challenge to our established perceptions of justice and rights, one has to think of the adverse consequences accruing to societies from an exceptional deviation as to the treatment of terrorists.

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Publisher: Cambridge University Press
Print publication year: 2013

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References

Ashby Wilson, R. (ed.), Human Rights in the War on Terror (Cambridge University Press, 2005).
Doswald-Beck, L., Human Rights in Times of Conflict and Terrorism (Oxford University Press, 2011).
Farer, T., ‘Un-just War against Terrorism and the Struggle to Appropriate Human Rights’, HRQ 30 (2008), 356.
Fitzpatrick, J., ‘The War against Terrorism and Human Rights’, EJIL 14 (2003), 241.
Gearty, C., Essays on Human Rights and Terrorism: Comparative Approaches to Civil Liberties in Asia, the EU and North America (London: Cameron May, 2008).
Joseph, S., ‘Rendering Terrorists and the Convention against Torture’, HRLR 5 (2005), 339.
Koh, H. H., ‘The Case against Military Commissions’, AJIL 96 (2002), 337.
de Londras, F., ‘Can Counter-terrorist Internment ever be Legitimate?’ HRQ 33 (2011), 593.Google Scholar
Meron, T., ‘When do Acts of Terrorism Violate Human Rights?’ Israeli Yearbook of Human Rights 29 (1989), 271.
Moeckli, D., Human Rights and Non-Discrimination on the War on Terror (Oxford University Press, 2008).
Pejic, J., ‘Terrorist Acts and Groups: a Role for International Law?’ BYIL 75 (2005), 71.
Rehman, J., ‘Islam, War on Terror and the Future of Muslim Communities in the United Kingdom: Dilemmas of Multiculturalism’, HRQ 29 (2007), 831.
Saul, B., Defining Terrorism in International Law (Oxford University Press, 2008).
Sottiaux, S., Terrorism and the Limitation of Rights: The ECHR and the US Constitution (Oxford: Hart, 2008).
Stubbins-Bates, E. (ed.), Terrorism and International Law: Accountability, Remedies and Reform (Oxford University Press, 2011).
Warbrick, C., ‘The European Response to Terrorism in an Age of Human Rights’, EJIL 15 (2004), 989.
Kadi and Al Barakaat International Foundation v. Council of the European Union [2008]
M and Others v. HM Treasury, ECJ judgment (29 April 2010)
Duffy, H., The War on Terror and the Framework of International Law (Cambridge University Press, 2005), 17–45
Bantekas, I., International Criminal Law (Oxford: Hart, 2010), 263–4
Yin, T., ‘Boumediene and Lawfare’, University of Richmond Law Review (U. Rich. L. Rev.) 43 (2009), 865 Google Scholar
Gallagher, K., ‘Universal Jurisdiction in Practice: Efforts to Hold Donald Rumsfeld and Other High-level United States Officials Accountable for Torture’, JICJ 7 (2009), 1087 Google Scholar
Herri Batasuna and Batasuna v. Spain, ECtHR judgment (30 June 2009)
Hachette Filippachi Associés v. France (2009) 49 EHRR 23
Higgins, R., ‘Derogations under Human Rights Treaties’, BYIL 48 (1976–77), 281 Google Scholar
Lawless v. UK (No. 3), (1961)
Aksoy v. Turkey, (1997)
Bates, E., ‘A Public Emergency Threatening the Life of the Nation? The United Kingdom’s Derogation of 18 December 2001 from the European Convention on Human Rights’, BYIL 76 (2005), 245 Google Scholar
Brannigan and McBride v. UK, (1993)
Chahal v. UK, (1997)
Nachova and Others v. Bulgaria, (2006)
Kretzmer, D., ‘Targeted Killing of Suspected Terrorists: Extra-judicial Executions or Legitimate Means of Defence?EJIL 16 (2005), 171 Google Scholar
Public Committee against Torture in Israel et al. v. The Government of Israel, Judgment (11 December 2006)
Milanovic, M., ‘Lessons for Human Rights and Humanitarian Law in the War on Terror: Comparing Hamdan and Israeli Targeted Killings case’, IRRC 89 (2007), 373 Google Scholar
Brogan and Others v. UK (1988)
Cruz Varas and Others v. Sweden (1991)
Suresh v. Canada (Minister of Citizenship and Immigration) (2003)
Bennett v. Horseferry Road Magistrates’ Court [1993]
Choo, A., ‘Halting Criminal Proceedings: the Abuse of Process Revisited’, Criminal Law Review [1985]
Wallace, D. A., ‘Torture v. the Basic Principles of the US Military’, JICJ 6 (2008), 309 Google Scholar
Steyn, J., ‘Guantánamo Bay: the Legal Black Hole’, ICLQ 53 (2004), 1 Google Scholar
Peirce, G., Dispatches from the Darkside (London: Verso, 2010), 18
Sunday Times Online (12 February 2010)
Binyam Mohamed and Others v. Jeppesen Dataplan Inc., Ninth Circuit judgment (6 September 2010), 13556–7

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