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 12: Cross-border law enforcement in the area of counter-terrorism

Saskia Hufnagel

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


The protection of human rights and the policing of transnational crime – and terrorism in particular – seem to be contradictions that cannot be reconciled. While the police cooperate and exchange information internationally to prevent and investigate terrorist activities, states do not always legitimise their efforts through bilateral and/or multilateral legislation. This lack of legal coordination between states with sometimes considerably different data protection laws, individual rights to procedural fairness, and even physical integrity, could potentially lead to the infringement of such rights if the police cooperate within a legal void. However, it could also be claimed that the regulation of such cooperation leads to police from nations with high human rights standards being bound by rules that prevent cooperation with states with considerably lower human rights parameters, thereby making cooperation close to impossible, albeit that those states are often very relevant to countering terrorism. Furthermore, the potential harmonisation of cooperation mechanisms and procedural requirements could result in settling for the lowest common denominator. It thus seems that legal regulation and legal harmonisation do not necessarily help to maintain the effective policing of terrorism at the same time as the protection of human rights. The present chapter addresses this contradiction from a comparative socio-legal perspective. It assesses whether states prefer to implement binding international, regional and domestic legislation on cross-border policing, even though it might restrict trans-jurisdictional terrorism investigations by creating insurmountable human rights limits or, whether informal police cooperation strategies that occur within a legal void or with little afforded legitimacy and posing a threat to individual human rights are favoured.

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