In this chapter I have sought to explore a number of ways in which states have drawn on law or operated outside the international human rights legal framework, in their attempts to address what they perceive as the serious threat of terrorism. The discussion above shows that law has been a central part of that response at the international level and that there have been different forms of regulatory response drawing on law, described as regulation through law, despite the law, and outside the law. The proponents of strong counter-terrorism measures have enlisted the power and legitimacy of international law and legal institutions to legitimate the many new measures adopted, while in other cases they have chosen to disregard the applicability of the law or to deny its relevance or inhibiting effect.

All these types of regulatory activity have drawn ameliorative responses from a range of institutions and organisations whose mandates or missions involve the promotion and protection of human rights at international and national levels. The institutions with a primary responsibility within the international system for the protection of human rights have sought both to arrest the excesses and to reassert the importance of human rights norms and the values they represent. In a very real sense the rule of law and human rights has been fighting back on various fronts, more slowly than the breathless pace of the development of new counter-terrorism laws, policies and programs, but painstakingly reaffirming the importance of human rights standards as goals and means. In this task, NGOs, the media, and parliamentary institutions at the international and national level have been indispensable collaborators in the process.

The strategies adopted by international human rights institutions in responding to the direct and serious encroachments on established human rights norms in the struggle against terrorism have been diverse. Three of them have been the focus of this chapter: mainstreaming, critical engagement and disputation over authoritative interpretation of norms, and fact-finding as a form of ensuring public accountability. The strategies have involved arguing for normative inclusion and the availability of human rights expertise in the specialised counter-terrorism bodies, the reaffirmation of accepted principles of human rights law to the familiar and new situations presented by the phenomenon of terrorism in the modern world, and the use of fact‑finding methods to reveal the nature and extent of infringements states have engaged in and to institute forms of accountability for those actions.

The specific measures adopted have included efforts to ensure the insertion or incorporation of human rights standards and perspectives in the mandates and procedures of the specialised counter-terrorism bodies; the establishment of new mechanisms to engage directly with the counter-terrorism bodies, states and other actors, and to provide political and normative scrutiny of the work of those bodies; and the use of existing bodies and procedures to focus on the human rights implications of states’ legislative and other actions.

In terms of substantive argumentation, one can see at least two fundamental features of the manner in which counter-terrorism measures and the modes for their implementation have been justified and implemented. The first is the construction of the emergency, the crisis, the world that changed forever on 9/11, and the corresponding need to take exceptional measures that would neither be needed nor justified in ‘normal’ times. The second is a mode of implementation that is based on lack of transparency, secrecy, invisibility and very limited opportunity for an external and independent review.

To each of these features, the riposte has come from human rights institutions that the need to confront crises and emergencies is in fact not so unusual and does not require major departures from established principles and approaches. Second, the importance of transparency and accountability have been rearticulated, and the need for them in identifying and remedying violations of international and national law has been vividly underlined by the vigorous efforts of human rights bodies to tear away the veil of secrecy behind which states have sought to conceal them.