Table of Contents
In the years since the events of September 2001 shocked the United States (US) and many other states into the adoption of wide-ranging measures to respond to actual and perceived threats of international terrorism, the deployment of law has been a central part of the design and justification of those responses, as well as of attempts to moderate and restrain their excesses. While legal responses at the international and national levels have only been a part of the array of measures adopted, the volume of law-making that has taken place has been remarkable.[1] At the international level the extent of regulatory activity around terrorism has been striking: it includes new regulations for container shipping, civil aviation, financial transactions, customs, immigration and passports, use of the internet, and cyberterrorism, as well as provisions for the designation of many new criminal offences and the establishment of transnational law enforcement cooperation arrangements.
The number of institutions involved in efforts to respond to terrorism is also impressive. Nearly every international or regional institution has been caught up in the regulatory network in one way or another, and many have adopted new programs or considerably expanded existing ones in the area.[2] Much of the activity of these organisations has involved the adoption and implementation of new norms, frequently embodied in new international instruments.
The forms of legal responses seen in the prosecution of the so-called ‘war on terror’ can be broadly seen as falling into two categories: (a) the regulation of terrorism and terrorist activities; and (b) the amelioration of counter-terrorism measures.
The category of regulation of terrorism encompasses those measures relating to the prevention, investigation and punishment of acts relating to terrorism. It includes the development and application of new legal standards and procedures to aid in identifying persons engaged in terrorist acts or acts preparatory to them, and in investigating and prosecuting, or rendering them harmless. It also involves measures to protect infrastructure and particular forms of social activity from terrorist attacks, or at least to attempt to reduce the risk of such acts, to minimise their impact, and to be prepared to cope with the aftermath of terrorist attacks.
The ameliorative category comprises measures that involve efforts to moderate or restrain the excesses of the regulatory measures referred to above, from a number of perspectives, including:
from a human rights or rule of law perspective (challenging many of the measures as unjustifiable limitations on the enjoyment of fundamental human rights and freedoms);
from a regulatory impact perspective (resisting the additional burden in terms of red tape/regulatory impact and additional expense that counter‑terrorism laws and policies may impose);
from an instrumentalist and pragmatic perspective (questioning whether the measures are likely to be effective in reducing the threat of terrorism); and
from other perspectives such as the broader political perspective of questioning whether the allocation of public and private resources to counter‑terrorism and security measures is justifiable in the light of other equally or more pressing social problems.
Many factors have contributed to the speed and vigour with which governments have acted to adopt wide-ranging counter-terrorist measures: powerful political imperatives at the international and national level to respond to attacks and to be seen to provide as high a level of security for their populaces as possible against the perceived threats of serious terrorist attacks; the political and financial incentives offered by the United States; the domestic political expediency of being able to invoke a counter-terrorist discourse to legitimate a policy of political repression of minorities or political opponents; and the reputational advantages of being seen to be ‘robust’ in dealing with terrorists.[3] In justifying these measures, many governments have unapologetically challenged accepted frameworks for the protection of human rights and existing assumptions and interpretations of the limits they impose.
Actions that violate rights and cause immediate (and longer-term) injury to individuals and institutions can be taken very quickly.[4] On the other hand, the (re)assertion of human rights and rule of law values in response to serious violations of human rights, may require time: to establish facts, to hold governments accountable, and to provide reparation to victims.
The development of new structures to pursue the counter-terrorist agenda and to stimulate states to adopt effective measures to achieve specific goals towards that end, have presented critical challenges to human rights norms and institutions. The priorities of counter-terrorism bodies and programs are not the same as those of human rights bodies, and counter-terrorism mandates frequently make no explicit reference to the role that human rights standards might or should play in the struggle against terrorism. The surge of political energy, and financial and other resources devoted to counter-terrorism efforts, and the associated claims to normative priority of the counter-terrorism agenda, have presented human rights institutions and actors with major challenges.
[*] Professor of International Law, Faculty of Law and Australian Human Rights Centre, The University of New South Wales, Sydney, Australia. This research was funded by the ARC Discovery Project DP0451473 ‘Terrorism and the Non-State Actor: the Role of Law in the Search for Security’.
[1] See United Nations Working Group on Arbitrary Detention, Report of the Working Group on Arbitrary Detention, UN Doc E/CN.4/2004/3 (2004), [50].
[2] Eg, the OSCE Action Against Terrorism Unit lists 43 international or regional partner bodies and organisations with which it is cooperating on the subject. The Unit, established in 2002, ‘is the Organization’s focal point for the co-ordination and facilitation of OSCE initiatives and capacity-building programmes relevant to the struggle against terrorism’: <http://www.osce.org/atu/>. The United Nations Counter-Terrorism Implementation Task Force, established in 2005 to coordinate counter-terrorism activities across the UN system, lists 24 parts of the UN system that are members of the Task Force: <http://www.un.org/terrorism/cttaskforce.html>.
[3] See R Foot, ‘Human Rights and Counterterrorism in Global Governance: Reputation and Resistance’ (2005) 11 Global Governance 291, 299‑302.
[4] O Gross and F Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge: Cambridge University Press, 2006) 8.