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- Preliminary Material
- Foreword
- Preface and Acknowledgments
- Editorial Note
- Table of Contents
- List of Contributors
- List of Abbreviations
- Table of Cases
- Table of Treaties and Other Instruments
- International
- Regional
- Central Africa Economic and Monetary Community (CEMAC)
- Commonwealth of Independent States (CIS)
- Council of Europe
- Economic Community of West African States (ECOWAS)
- European Union
- Inter-American System (Inter-American Commission on Human Rights (IACHR), Inter-American Court of Human Rights (IACtHR), and Organization of American States (OAS))
- Inter-Governmental Authority on Development (IGAD)
- League of Arab States
- North Atlantic Treaty Organization (NATO)
- Organisation of African Unity (OAU)/African Union (AU)
- Organization of Islamic Cooperation (formerly Organization of the Islamic Conference) (OIC)
- South Asian Association for Regional Cooperation (SAARC)
- Southern African Development Community (SADC)
- National
- Main Text
- 1 Introduction
- Part I Counter-terrorism and The Rule of Law Framework
- 2 The Rule of Law Framework and its Lacunae
- 1 Introduction
- 2 Normative Lacunae
- 3 Interpretative Lacunae
- 4 Policy Created Lacunae
- 5 Conclusion and Recommendations
- 3 The United Nations and Counter-Terrorism
- 1 Introduction
- 2 The Cold War and the Establishment of Multilateralism
- 3 The UN and The ‘War on Terror’
- 4 The UN and State Sponsored Terrorism
- 5 From Criminal Justice to Collective Security: Non-State Actors and Terrorism
- 6 The Role of the Security Council
- 7 The UN and the Right of Self-Defence
- 8 The Role of the General Assembly in Achieving a Consensual Legal Framework
- 9 Conclusions and Recommendations
- 4 Counter-Terrorism and the Rule of Law
- 5 States’ Obligations under International Refugee Law and Counter-Terrorism Responses
- 6 Criminality and Terrorism
- 1 Introduction
- 2 The Purpose and Promise of Criminal Law Controls on Terrorism
- 3 International and Transnational Criminal Law
- 4 Regional Criminal Law
- 5 Criminal Procedure and Terrorism
- 6 Criminal and Non-Criminal Controls on Terrorism
- 7 Conclusion and Recommendations
- 7 Armed Conflict and Terrorism
- 1 Introduction
- 2 The Law Governing Armed Conflict
- 3 The Law Governing Acts of Terrorism
- 4 The UN Draft Comprehensive Convention on International Terrorism
- 5 Political Definitions of Terrorism
- 6 Political and Practical Reasons for not Blurring Armed Conflict and Terrorism
- 7 The Legal Classificiation of the ‘Global War on Terrorism’
- 8 Conclusions
- 8 Executive Power and the Use of the State of Emergency
- 1 Introduction
- 2 The Legal Framework of the State in the Fight Against Terrorism
- 3 The Setting-Up and Implementation of Counter-Terrorism Policies by the Executive
- 4. The Setting-Up of Counter-Terrorism Policies and the Judiciary: is there Room for its Participation?
- 5 General Assessment and Conclusions
- 9 Impunity and the Emerging Patterns of International Justice
- 10 Beyond Radicalization
- 2 The Rule of Law Framework and its Lacunae
- Part II Multidisciplinary Perspectives On The Rule Of Law In Action
- 11 The Role of the Lawyer in Shaping Responses to the Security Imperative
- 1 Introduction
- 2 The Role of the Legal Adviser at the Governmental Level
- 3 The Role of the Legal Adviser at the International Level
- 3.1 The Role of the International Legal Adviser in the Process of Establishing Norms
- 3.2 The Role of the International Legal Adviser in the Administrative Process of the Organization
- 3.3 The Role of the International Legal Adviser in Assisting Committees and Conferences in the Process of Negotiating International Treaties
- 3.4 The Role of the International Legal Adviser in Relation to the Policy-Maker
- 4 Common Elements
- 5 Conclusions
- 12 Counter-Terrorism Policy-Making from the Perspective of a Diplomat
- 13 Counter-Terrorism Policing and the Rule of Law
- 1 Introduction
- 2 Context
- 3 The Development of the Role of the Police in Countering Terrorism
- 4 Does the Security Imperative Defeat the Rule of Law?
- 5 Intelligence Agencies and the Police—A Critical Partnership
- 6 International Law Enforcement Cooperation
- 7 Policing Counter-Terrorism Tools and the Rule of Law
- 8 Key Rule of Law Recommendations for Counter-Terrorism Policing
- 14 Intelligence and Counter-Terrorism
- 1 Introduction
- 2 Intelligence, Human Rights, and the Rule of Law
- 3 Ensuring Human Rights in the Intelligence Cycle
- 4 Ensuring Effective Oversight
- 5 Ensuring Legal Accountability
- 6 Conclusions and Recommendations: Towards a Human Rights and Accountability Agenda?
- 6.1 Comprehensive Review and Stocktaking
- 6.2 Guidelines and Standards for Intelligence Accountability
- 6.3 Human Rights Training and Policy Dialogues
- 6.4 Separation of Intelligence Gathering and Law Enforcement
- 6.5 Upgrading Oversight Structures
- 6.6 Rule of Law Compliant Intelligence Cooperation
- 6.7 No Tolerance for Torture and Other Crimes under International Law
- 6.8 State Secrecy and Impediments to Accountability
- 6.9 Primacy of the Criminal Justice Response
- 6.10 International Accountability
- 15 The Military and the Role of Law in Countering Terrorism
- 16 Fair Process and the Security Council
- 11 The Role of the Lawyer in Shaping Responses to the Security Imperative
- Part III Counter-terrorism In Practice
- 17 Classification, Administration, and Treatment of Battlefield Detainees
- 1 Introduction
- 2 Competing Paradigms
- 3 Northern Ireland: A Case Study
- 4 Classification Challenges
- 5 Administration and Treatment Challenges
- 6 Conclusions and Recommendations
- 18 Detention as a Response to Terrorism
- 19 Treatment in Detention
- 1 Introduction
- 2 Key Issues in the Treatment of Detained Persons
- 3 Legal Safeguards Against Ill Treatment
- 4 Conclusions and Recommendations
- 20 Torture, Interrogation, Counter-Terrorism, and the Rule of Law
- 21 ‘Extraordinary Rendition’
- 1 Introduction
- 2 Factual Overview
- 3 Legal Regimes Applicable to Extraordinary Rendition
- 3.1 Inter-State Obligations under Public International Law
- 3.2 International Humanitarian Law
- 3.3 Human Rights Law
- 4 State Responsibility in International Law
- 4.1 Positive Obligations to Prevent and Protect against Serious Human Rights Violations, including to Criminalize, Investigate, Prosecute, and Provide Redress
- 4.2 Responsibility of Third States for Aiding and Assisting, Directing or Controlling, or Coercing
- 4.3 Broader Obligations in Face of Serious Breach of Peremptory Norms
- 5 Individual Criminal Responsibility
- 6 Types of Conduct Incurring State and Individual Responsibility
- 7 Elusive Truth and Justice: Challenges to Litigating Extraordinary Rendition
- 8 Conclusions and Recommendations
- 22 Reconciling National Security and Non-Refoulement : Exceptions, Exclusion, and Diplomatic Assurances
- 23 Anti-Terrorism Laws, Terrorist Profiling, and the Right to Non-Discrimination
- 1 Introduction
- 2 The Right to Equality and Non-Discrimination
- 2.1 Sources of the Right to Equality and Non-Discrimination
- 2.2 Scope of the Right to Equality and Non-Discrimination
- 2.3 Prohibited Grounds of Distinction
- 2.4 Direct and Indirect Discrimination
- 2.5 Justified and Unjustified Distinctions
- 2.6 The Right to Non-Discrimination in States of Emergency
- 2.7 The Right to Non-Discrimination in Situations of Armed Conflict
- 3 Discriminatory Anti-Terrorism Laws
- 4 Terrorist Profiling
- 5 Conclusion
- 24 Use of Lethal Force against Suspected Terrorists
- 1 Introduction
- 2 Use of Force in the Territory of Another State
- 3 Right to Life of Suspected Terrorists
- 4 Concluding Comments: Lethal Force and the Rule of Law
- Epilogue
- 17 Classification, Administration, and Treatment of Battlefield Detainees
- Part IV Judicial Responses
- 25 The ‘Push-Pull’ of the Law of War: The Rule of Law and Military Commissions
- 26 The Role of Military Courts in a Counter-Terrorism Framework: Trends in International Human Rights Jurisprudence and Practice
- 1 Introduction
- 2 The United Nations Human Rights System
- 3 The European Human Rights System
- 4 The Inter-American Human Rights System
- 5 Conclusions and Recommendations
- 27 Restricted Immigration Procedures in National Security Cases and the Rule of Law: An Uncomfortable Relationship
- 1 Introduction
- 2 The Emergence of Immigration Procedures as a Tool of Counter-Terrorism
- 3 Triggering the Siac System
- 4 The Siac System
- 5 Procedural Safeguards Arising Under the Echr
- 6 Procedural Safeguards Arising Under Other Echr Provisions
- 7 The Special Position of Matters Regulated By EU Law
- 8 Conclusion and Recommendations
- 28 Human Rights and the Fight against Terrorism: Some Comments on the Case Law of the European Court of Human Rights
- 1 Introduction
- 2 Some Characteristics of the System of the European Convention on Human Rights
- 3 Some Relevant Judgments of the Court Relating to Human Rights and the Fight Against Terrorism
- 3.1 Article 1 (Obligation to Respect Human Rights)
- 3.2 Article 2 (Right to Life)
- 3.2.1 Minimizing Recourse to Lethal Force
- 3.2.2 Imposition of a Death Penalty
- 3.2.3 No Expulsion, Extradition, or Refoulement When There is a Real Risk to Life and Limb: No Lesser Standards for Terrorists
- 3.2.4 The Need to Strictly Apply Interim Measures Ordered by the Court
- 3.2.5 Positive Obligation for the Authorities to Carry out an Immediate, Effective, and Independent Investigation when there is an Arguable Claim that Someone has Died or has been Ill-Treated by State Agents
- 3.3 Article 3 (Prohibition of Torture, Inhuman, or Degrading Treatment or Punishment)
- 3.4 Article 5: Right to Liberty and Security
- 3.5 Articles 6 and 13: Right to a Fair Trial, and Right to an Effective Remedy
- Article 6
- Article 13
- 3.5.1 All ‘Normal’ Rights under Article 6 also Available for Terrorists
- 3.5.2 Terrorist Suspects have the Right to an Effective Remedy under Article 13
- 3.5.3 Disclosure of Material
- 3.5.4 Prohibition to use as Evidence Material which has been Obtained via Torture or Inhuman and Degrading Treatment
- 3.5.5 Extradition and the Possibility of a Flagrant Denial of a Fair Trial
- 4 Conclusion
- 29 The Inter-American Court of Human Rights’ Perspective on Terrorism
- 1 Introduction
- 2 Terrorism and the Inter-American Court of Human Rights’ Legal Framework
- 3 Case Law of the Inter-American Court on the Criminalization of Terrorism
- 4 Extra-Judicial Executions and Terrorism
- 5 Torture and Terrorism
- 6 Forced Disappearances and Terrorism
- 7 Procedural Guarantees and Terrorism
- 8 Self-Amnesty and Terrorism
- 9 Detention and Imprisonment of Persons Prosecuted for Terrorism
- 10 Reparation
- 11 Final Considerations
- 30 The Role and Legal Framework of the Inter-American Commission on Human Rights in Securing Justice for Victims
- 1 Introduction
- 2 An Overview of the Inter-American System
- 3 The Role of the Iachr in Securing Justice for Victims
- 4 The Applicable Rule of Law Framework to Situations of Terrorism
- 5 Concluding Remarks and Recommendations
- 31 Reconciling the Protection of Human Rights and the Fight against Terrorism in Africa
- 1 Introduction
- 2 The Normative Framework of the Fight Against Terrorism
- 3 The Enforcement of the Algiers Convention and its Consequences
- 4 Human Rights Violations
- 4.1 The Right to Life
- 4.2 The Principles of Legality and the Primacy of Law
- 4.3 The Principle of Legality with Respect to Crimes and Offences
- 4.4 Deprivation of Liberty: Police Custody, Detention under Remand, and Administrative Detention
- 4.5 The Right to a Fair Trial
- 4.6 Freedoms of Expression and Information
- 4.7 Right of Asylum and Non-refoulement
- 5 Towards a New Regional Approach to Protecting Human Rights in the African Framework of the Fight Against Terrorism
- 6 The Necessity of Establishing a Common Approach to Protecting Human Rights in the Fight Against Terrorism on the African Continent
- 7 Conclusion and Recommendations
- 32 Terrorism and Counter-Terrorist Responses
- 33 Realizing the Right to Redress for Victims of Terrorist Attacks
- 1 Victims of a Global Phenomenon Need a Global Approach to Redress
- 2 A Comparative Overview of Domestic Legislation
- 2.1 Italian Law on the Compensation of Victims of Terrorism and Similar Crimes
- 2.2 Spanish Law of Solidarity with the Victims of Terrorism
- 2.3 Effects of EU Legislation and Policy on the Adoption of National Compensation Schemes for Crime Victims in European Countries
- 2.4 The ‘September 11th Victim Compensation Fund’ in the US
- 3 The International Legal Framework on Victims’ Redress for Terrorist Crimes
- 4 Conclusions and Recommendations
- Part V Non-Judicial Responses
- 34 Parliamentary Oversight of Counter-Terrorism Policies
- 35 Strengthening Interstate Cooperation
- 1 Introduction: The Role of Eurojust in the Fight against Terrorism
- 2 Exchange of Information, Mutual Legal Assistance, and Mutual Recognition in Criminal Matters
- 2.1 Exchange of Information and Data Protection Rules
- 2.1.1 The Information Provided to Eurojust by the National Authorities of the Member States: the National Correspondents of Terrorism
- 2.1.2 Operational and Strategic Information on Terrorism
- 2.1.3 The Eurojust National Coordination Systems (ENCS)
- 2.1.4 The Facilitation of Exchange of Information between the Judicial Authorities Investigating the Same Terrorist Organization: Coordination Meetings at Eurojust Premises
- 2.1.5 The Protection of Personal Data in Eurojust
- 2.2 European Arrest Warrant (EAW) and Fundamental Rights of the Arrested Person
- 2.3 Investigative Measures and Fundamental Rights of the Suspect
- 2.4 Freezing and Confiscation of Criminal Assets and Fundamental Rights of the Offenders and Third Parties
- 2.1 Exchange of Information and Data Protection Rules
- 3 Eurojust’s Collaboration with the EU’s Stakeholders
- 3.2 European Institutions: European Parliament, European Commission, and the Council of the EU
- 4 Eurojust’s Collaboration With Third Party Countries and International Organizations
- 5 Conclusion and Recommendations
- 36 Criminal Justice Responses to Terrorism in Africa
- 1 Introduction
- 2 Background to the African Union Criminal Justice Responses to Terrorism
- 3 OAU Criminal Justice Responses to Terrorism Prior To 9/11
- 3.1 Response to National Liberation Movements and Development of the Political Exemption Principle
- 3.2 OAU Responses to Post-Colonial Religious Radicalism and al Qaeda
- 3.3 Crafting Cooperation and the Legal Framework of the OAU Criminal Justice Responses
- 3.4 Challenges to the OAU Criminal Justice Response
- 4 9/11 And the Transition from the OAU to the AU: From Theory to Practice
- 5 Strengthening the Regional Regulatory Framework: Key Best Practices of the AU
- 5.1 The Protocol to the OAU Convention on the Prevention and Combating of Terrorism
- 5.2 AU Plan of Action on the Prevention and Combating of Terrorism in Africa
- 5.3 The African Centre for the Study and Research on Terrorism (ACSRT)
- 5.4 AU Anti-Terrorism Model Law and Domestic Enforcement of Regional and International Counter-Terrorism Instruments
- 5.5 The Counter-Terrorism Practices of the Peace and Security Council (PSC)
- 5.6 Norm against the Payment of Ransom and its Implications for Counter-Terrorism
- 6 Counter-Terrorism and its Implications for Human Rights in Africa
- 7 Prosecuting Terrorism in Africa: States’ Compliance with Regional Counter-Terrorism Instruments
- 8 Strengthening the Regional Regulatory Framework: Key Challenges to the AU
- 9 Strengthening the Regional Regulatory Framework: The Development of Sub-Regional Best Practices
- 10 General Recommendations for Strengthening African Union and Sub-Regional Criminal Justice Frameworks
- 11 Conclusion
- 37 Implementing Human Rights and Rule of Law Aspects of the UN Global Counter-Terrorism Strategy
- 1 Introduction
- 2 Pillar IV of the Strategy
- 3 UNODC/TPB’s Experience in Implementing Pillar IV of the Strategy
- 4 Challenges Identified in the Implementation of Technical Assistance Activities on Pillar IV of the Strategy
- 5 Recommendations
- 6 Conclusion
- 38 Conclusion
- 1 Terrorism and Counter-Terrorism
- 2 International Rule of Law
- 3 Benefits of Adherence to the Rule of Law and Consequences of Non-Adherence
- 4 Legal Principles and Framework
- 5 Military Versus Criminal Justice/Preventive Paradigms
- 6 Institutional Framework
- 7 Judicial Mechanisms of Control and Accountability
- 8 Non-Judicial Mechanisms of Control and Accountability
- 9 Final Remarks
- Further Material
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