Counter-Terrorism, Human Rights and the Rule of Law

Counter-Terrorism, Human Rights and the Rule of Law

Crossing Legal Boundaries in Defence of the State

Edited by Aniceto Masferrer and Clive Walker

The initial responses to 9/11 engaged categorical questions about ‘war’, ‘terrorism’, and ‘crime’. Now the implementation of counter-terrorism law is infused with dichotomies – typically depicted as the struggle between security and human rights, but explored more exactingly in this book as traversing boundaries around the roles of lawyers, courts, and crimes; the relationships between police, military, and security agencies; and the interplay of international and national enforcement. The contributors to this book explore how developments in counter-terrorism have resulted in pressures to cross important ethical, legal and organizational boundaries. They identify new tensions and critique the often unwanted outcomes within common law, civil law, and international legal systems.

Chapter 1: Countering terrorism and crossing legal boundaries

Aniceto Masferrer and Clive Walker

Subjects: law - academic, criminal law and justice, human rights, terrorism and security law


The decennium of counter-terrorism legal responses since 9/11 provides a suitable waypoint at which to take stock. Those terrorist attacks in the United States, followed by atrocities such as the Madrid train bombings of March 2004, and the July 2005 killings in London have profoundly altered and reshaped the priorities of legal systems around the world. The ‘new’ terrorism has even been perceived at times as threatening the lives of democratic nations, resulting in a declaration of ‘the war on terror’ by US President George W Bush and the lodging of a notice of derogation from the right to liberty by the United Kingdom. The depth of the crisis is revealed by the fact that the US war on terror persists today in law and action. The label has fallen from favour and has narrowed in focus, but military action beyond the bounds of recognised international humanitarian law is palpable in the forms of military detention and trials at Guantánamo Bay and an increasing reliance on lethal force against the enemies of the state as delivered from unmanned aerial vehicles (drones). The United Kingdom’s derogation notice was withdrawn in 2005, but its government recently claimed that conditions justify its resurrection, and, in the meantime, special measures like executive control orders and Terrorism Prevention and Investigation Measures are applied. Though the United States is an outlier amongst Western states because of the dominance of its military response, almost all other jurisdictions have taken heed of the United Nations calls for action against terrorism by proliferating counter-terrorism laws.