Research Handbooks in International Law series
Edited by Ben Saul
Chapter 24: Terrorism prosecutions and the right to a fair trial
In the aftermath of 9/11, the legal niceties of trial processes were not at a premium. The tone was set by US President George W Bush, who announced a ‘war on terror’ and asserted a state of exceptionalism where ‘it is not enough to serve our enemies with legal papers’. Many countries followed suit, participating in military action in Afghanistan and Iraq and constructing extraordinary legislative counter-terrorism codes. Taking the United Kingdom as a leading trend-setter, its immediate reactions involved military mobilisation abroad and executive legal action at home. Yet, with the passage of time, the US has become an outlier in its favouring of executive action. Elsewhere, prosecution has staged a comeback in counterterrorism, though whether this revival has incurred some costs must also be considered, given the common perception that national security and due process do not mix. The first part of this chapter will seek to explain the persistence of the criminal justice paradigm in counter-terrorism, considering also whether its revival is normatively beneficial. The second part will probe the extent to which the adapted delivery of criminal justice within counter-terrorism can remain true to international law standards. The third part will reflect upon the future trends and implications to date.
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