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 11: Erasing the distinction between anti-terrorist and criminal justice measures in Ireland

Dermot PJ Walsh

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


From its establishment in 1922, the Irish state has resorted to exceptional executive and legislative measures to combat actual and perceived threats to its internal security and established political order. In recent years these measures have expanded and deepened in response to perceived threats from violent organised crime and international terrorism. Although they have always entailed gross departures from established human rights and due process norms in Irish criminal justice, little effort was made to ensure that they were deployed only against subversive, terrorist or violent organised crime targets. A combination of loose definition, extensive executive discretion, a compliant judiciary and relatively weak checks and balances has allowed these measures to extend beyond their proclaimed targets, thereby diluting the boundaries between them and the ordinary criminal process. This chapter will highlight the distinctive features of the anti- subversive/terrorist measures and explore how, and the extent to which, they have managed to cross the boundaries between them and regular criminal justice processes applicable to ‘organised’ and ‘ordinary’ crime. This will be followed by a brief outline of the relative failure to match these developments with boundary crossing safeguards against the risk of abuse. First, however, some brief comment will be provided on the political and legal contexts in which these measures were introduced and have since developed. The current Irish State was born out of the 1921 settlement of violent conflict with Britain.

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