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.