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 3: The fragility of fundamental rights in the origins of modern constitutionalism

Aniceto Masferrer

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


The terrorist attacks on the 11th of September 2001, followed by those that took place in Madrid in 2004 and London in 2005, opened up a debate about the difficulty of maintaining a suitable balance between the need for security and the defence of human rights in the context of the fight against terrorism in democratic States. This debate has focused on the question of the degree to which democratic States are justified in restricting or even violating the fundamental rights and liberties of individuals in order to guarantee national security. The abuses committed in Guantánamo, the military interventions in Afghanistan and Iraq, and the promulgation, in a number of States, of legislation designed to establish a series of preventative measures and to punish acts of terror- ism, following the passing of Resolution 1373 by the United Nations Security Council, have all posed serious and complex questions to scholars in a range of disciplines, particularly those of Law, Philosophy and Political Science. More importantly, one may wonder whether reasonable boundaries may be set up here between individual rights and collective security, as well as internal boundaries within rights on a scale of fundamentalism. In principle (though perhaps only purely theoretically), there is a general consensus that human rights constitute a limit to State action, a boundary that States must not cross, however fine and laudable the ends they seek to pursue might be.

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