Counter-Terrorism

International Law and Practice

Edited by Ana María Salinas de Frías, Katja Samuel, and Nigel White

Comprehensive analysis of the rule of law framework applicable to counter-terrorism responses (international human rights, humanitarian, criminal, and refugee/asylum law), including its strengths, lacunae, pressure points, and interrelationship between its legal principles
Examines the tensions between the security imperative and complying with the rule of law that underpin governmental and institutional policies and practices
Truly multinational, multidisciplinary coverage drawing upon global expertise from those with legal practitioner, judicial, policy-making, military, policing, civil society, academic and institutional experience
Makes many recommendations and identifies examples of best practice aimed at strengthening the current rule of law framework

Counter-Terrorism

International Law and Practice

Edited by Ana María Salinas de Frías, Katja Samuel, and Nigel White

Description

The responses of governments and international institutions to terrorism raise some of the most controversial issues of the twenty-first century. In particular, attempts to balance the desire to achieve security with the safeguarding of human rights and other aspects of the rule of law have proved to be highly contentious.

This book is unique, not only in terms of its multinational, multidisciplinary nature, but also due to its truly comprehensive approach. It reviews, and examines, the interrelationship between the four principal elements of the international rule of law framework (international human rights, humanitarian, criminal, and refugee/asylum law) within in which counter-terrorism responses should occur.

It focuses primarily on some of the most pressing, emerging, and/or under-researched issues and tensions. These include policy choices associated with meeting security imperatives; the tensions between the criminal justice, or preventive, approach to counter-terrorism and the military approach; the identification of lacunae within existing legal frameworks; and tensions between executive, judicial, and legislative responses. These matters are examined at the national, regional, and international levels.

The book addresses a wide spectrum of issues, including analysis of key legal principles; emergency and executive measures; radicalization; governmental and institutional impunity; classification, administration and treatment of battlefield detainees; the use of lethal force ; forms of, and treatment in, detention;non-refoulement; diplomatic assurances; interrogation versus torture; extraordinary rendition; discrimination; justice and reparations for victims of terrorist attacks and security responses; (mis)use of military courts, commissions, and immigration tribunals; judicial and institutional developed and emerging rule of law norms on terrorism; non-judicial oversight by means of democratic accountability; and the identification and analysis of best practices, including inter-regional judicial and other forms of cooperation, and developed practices for the handling and use of sensitive information.

Drawing together an impressive spectrum of legal and non-legal, national and institutional, practitioner, policy, and academic expertise, this book is an essential and comprehensive reference work on counter-terrorism policy, practice, and law-making.

Counter-Terrorism

International Law and Practice

Edited by Ana María Salinas de Frías, Katja Samuel, and Nigel White

Foreword: Mary Robinson
Introduction
1:Introduction, Katja L H Samuel and Nigel D White
Part I: Counter-Terrorism And The Rule Of Law Framework
2:The Rule of Law Framework and its Lacunae: Normative, Interpretative, and/or Policy Created?, Katja L H Samuel
3:The United Nations and Counter-Terrorism: Multilateral and Executive Law-Making, Nigel D White
4:Counter-Terrorism and the Rule of Law: Issues of Judicial Control, Allan Rosas
5:States' Obligations under International Refugee Law and Counter-Terrorism Responses, Ana María Salinas de Frías
6:Criminality and Terrorism, Ben Saul
7:Armed Conflict and Terrorism: There is a (Big) Difference, Jelena Pejic
8:Executive Power and the Use of the State of Emergency, César Landa
9:Impunity and the Emerging Patterns of International Justice, Tassaduq Hussein Jillani
10:Beyond Radicalization: Towards an Integrated Anti-Violence Rule of Law Strategy, Colm Campbell
Part II: Multi-Disciplinary Perspectives On The Rule Of Law In Action
11:The Role of the Lawyer in Shaping Responses to the Security Imperative, Hans Corell
12:Counter-Terrorism Policy-Making from the Perspective of a Diplomat, Fernando Perpiñá-Robert
13:Counter-Terrorism Policing and the Rule of Law: The Best of Friends, Keith Weston
14:Intelligence and Counter-Terrorism: Towards a Human Rights and Accountability Framework?, Gerald Staberock
15:The Military and the Role of Law in Counter-Terrorism, Thomas R Mockaitis, Charles Tucker Jr, and Augustus Invictus
16:Fair Process and the Security Council: A Case for the Office of the Ombudsperson, Kimberly Prost
Part III: Counter-Terrorism In Practice
17:Classification, Administration, and Treatment of Battlefield Detainees, David Turns
18:Detention as a Response to Terrorism, Nigel S Rodley
19:Treatment in Detention, Silvia Casale
20:Torture, Interrogation, Counter-Terrorism, and the Rule of Law, Richard Pregent
21:'Extraordinary Rendition': a Challenge for the Rule of Law, Helen Duffy and Steve Kostas
22:Reconciling National Security and Non-Refoulement: Exceptions, Exclusion, and Diplomatic Assurances, Cornelis (Kees) Wouters
23:Anti-Terrorism Laws, Terrorist Profiling, and the Right to Non-Discrimination, Daniel Moeckli
24:Use of Lethal Force against Suspected Terrorists, David Kretzmer
Part IV: Judicial Responses
25:The 'Push-Pull' of the Law of War: the Rule of Law and Military Commissions, Chris Kannady, Peter Masciola, and Michel Paradis
26:The Role of Military Courts in a Counter-Terrorism Framework: Trends in International Human Rights Jurisprudence and Practice, Claudia Martin
27:Restricted Immigration Procedures in National Security Cases and the Rule of Law: an Uncomfortable Relationship, Nuala Mole
28:Human Rights and the Fight against Terrorism: Some Comments on the Case Law of the European Court of Human Rights, Egbert Myjer
29:The Inter-American Court of Human Rights' Perspective on Terrorism, Sergio García Ramírez
30:The Role and Legal Framework of the Inter-American Commission on Human Rights in Securing Justice for Victims, Christina Cerna
31:Reconciling the Protection of Human Rights and the Fight against Terrorism in Africa, Ibrahima Kane
32:Terrorism and Counter-Terrorist Responses: The Role of International Criminal Jurisdictions, Rod Rastan and Olympia Bekou
33:Realizing the Right to Redress for Victims of Terrorist Attacks, Ilaria Bottigliero
Part V: Non-Judicial Responses
34:Parliamentary Oversight of Counter-Terrorism Policies, Jarmo Oikarinen
35:Strengthening Interstate Cooperation: The Eurojust Experience, Michèle Coninsx
36:Criminal Justice Responses to Terrorism in Africa: The Role of the African Union and Sub-Regional Organizations, Martin A Ewi and Anton du Plessis
37:Implementing Human Rights and Rule of Law Aspects of the UN Global Counter-Terrorism Strategy - the UNODC/TPB Experience, Nicole El Khoury
Conclusion
38:Conclusion
Bibliography
Index

Counter-Terrorism

International Law and Practice

Edited by Ana María Salinas de Frías, Katja Samuel, and Nigel White

Author Information

Edited by Ana María Salinas de Frías, Professor of Public International Law, Universidad de Málaga, Katja Samuel, Barrister, and Nigel White, Professor of Public International Law, University of Nottingham

Professor Nigel White is Professor of Public International Law, Nottingham University, UK, and is a leading expert in security and armed conflict, international institutional, peacekeeping, and arms control law. He has authored and edited a significant number of publications on these issues, most recently Democracy Goes to War: British Military Deployment under International Law (OUP, 2009); is the co-editor in chief of the Journal of Conflict and Security Law; and is the editor of the UK module of the International Law in the Domestic Courts database for the UK.

Dr Katja Samuel is a barrister specializing in security and armed conflict, international human rights and criminal law. With military, practitioner, civil society , and academic experience, she focuses in particular on counter-terrorism matters; most recently co-edited Counter-Terrorism and International Law (Ashgate, 2011) with Nigel White; is currently authoring a monograph on The OIC, the UN and Counter-Terrorism Law-Making: Conflicting or Cooperative Legal Orders (Hart, 2012); and co-directs the current Rule of Law and Counter-Terrorism project together with Nigel White at Nottingham University, under the umbrella of a multinational, multidisciplinary initiative to strengthen the rule of law worldwide called the World Justice Project.

Professor Ana María Salinas de Frías, Professor of Public International Law at Malága University, Spain has recently completed a two year secondment as Legal Advisor to the Directorate General of Legal Advice and Public International Law at the Council of Europe, including on anti-terrorism matters. She specializes in, and has published extensively on, human rights, European Community, and immigration matters.

Contributors:

Other Contributors

Olympia Bekou (Greece) - Associate Professor, and Head of the International Criminal Justice Unit of the Human Rights Law Centre, School of Law, Nottingham University
Ilaria Bottigliero (Italy)- Senior Researcher, International Development Law Organization, - Rome
Colm Campbell (Northern Ireland) - Director of the Transitional Justice Institute, - Ulster University
Silvia Casale (UK) - adviser to Council of Europe>'s National Preventive Mechanism against Torture (formerly President of the CPT and UNSPT monitoring teams)
Christina M Cerna (USA/Nicaragua) - Principal Human Rights Specialist, Inter-American Commission on Human Rights
Michèle Coninsx (Belgium) - Vice President, Eurojust and Chair of its Counter-Terrorism Team
Hans Corell (Sweden) - formerly Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations; - currently Chairman of the Board of Trustees of the Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Lund University, - Sweden
Helen Duffy (UK) - Litigation Director, Interights
Martin Ewi (Cameroon) - Senior Researcher, Institute for Security Studies, Pretoria
Sergio García Ramírez (Mexico) - former President of the Inter-American Court of Human Rights-; now Professor at the Universidad Autónoma of Mexico
Augustus Invictus (USA) - Fellow, International Human Rights Law Institute, De Paul's University
Tassaduq Hussein Jillani (Pakistan) - Justice of the Supreme Court of Pakistan (suspended when martial law was declared in 2007, and subsequently reinstated in 2009 following the restoration of democracy)
Ibrahima Kane (Senegal) - head of the African Union Advocacy Programme, Open Society Initiative for East Africa
Chris Kannady (USA)- judge advocate, US Marine Corps; (including defence of Guantanamo Bay detainees)
Nicole el Khoury (Lebanon) - terrorism prevention expert, UN Office on Drugs and Crime (Terrorism Prevention Branch), Vienna
Steve Kostas (USA) - lawyer on Security and Rule of Law program, Interights
David Kretzmer (Israel) - Professor Emeritus of International Law, Hebrew University, - Jerusalem
César Landa (Peru) - recent President of the Constitutional Court of Peru; former Deputy Minister of Justice and ad hoc Judge to the Inter-American Court of Human Rights; currently Professor of Constitutional Law, Pontificia Universidad Catolica, Lima
Claudia Martin (Argentina/USA) - Co-Director, Academy on Human Rights and Humanitarian Law, and Professorial Lecturer, American University Washington College of Law
Peter Masciola (USA) - judge advocate, US Air Force-Air National Guard reserves; recently Chief Defense Counsel, Office of Military Commissions, Guantanamo Bay
Thomas R Mockaitis (USA) - Professor of History, DePaul University Daniel Moeckli (Switzerland) - Oberassistent in Public Law, Zurich University
Nuala Mole (UK) - Director, AIRE Centre
Egbert Myjer (The Netherlands) - judge, European Court of Human Rights
Jarmo Oikarinen (Finland) - policy analyst, Policy Department for EU external relations, EU Parliament
Michel Paradis (USA) - adjunct professor, Georgetown University Law School; - defense counsel, US Department of Defense, Office of Military Commissions
Jelena Pejic (Serbia) - Legal Adviser, International Committee of the Red Cross
Fernando Perpiñá-Robert (Spain)- Spanish diplomat; recent Secretary-General, Club of Madrid (membership of 75 former heads of state from over 50 democratic countries)
Anton du Plessis (South Africa) - head of the International Crime in Africa Programme, Institute for Security Studies, Pretoria
Richard Pregent (USA)- judge advocate, US Army (including recent Chief of the International and Operational Law Division, US Army's Office of The Judge Advocate General)
Kim Prost (Canada) - Ombudsperson the Security Council Al Qaida/Taliban Sanctions Committee
Rod Rastan (UK/Iran) - Legal Adviser, Office of the Prosecutor, International Criminal Court
Nigel Rodley (UK) - Professor of Law and Chair of the Human Rights Centre, Essex University of Essex; Vice-Chair of the UN Human Rights Committee
Allan Rosas (Finland) - judge, Court of Justice of the European Union
Ben Saul (Australia) - Co-Director, Sydney Centre for International Law, University of Sydney
Gerald Staberock (Germany) - Deputy Secretary General of the World Organisation Against Torture (OMCT), Geneva
Charles Tucker- Jr (USA) - international human rights, governance and rule of law practitioner, including formerly with the US Army and De Paul's University
David Turns (UK)- Senior Lecturer in International Laws of Armed Conflict, Defence Academy of the UK (Cranfield University)
Kees Wouters (The Netherlands) - senior refugee law advisor, Division of International Protection, UN High Commissioner for Refugees

Counter-Terrorism

International Law and Practice

Edited by Ana María Salinas de Frías, Katja Samuel, and Nigel White

Reviews and Awards

"A valuable comprehensive reference resource that brings together leading experts on the spectrum of legal issues involved in formulating and applying counter-terrorism policies domestically and internationally." - Joshua Sinai, Perspectives on Terrorism