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 13: Detention in extremis

Clive Walker

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


One of the most acute legal controversies since 9/11 has concerned the framing of terrorism as either a war or a crime. The leading proponent of the war model was US President George W Bush, who asserted that ‘it is not enough to serve our enemies with legal papers’. A militaristic approach was rolled out in pursuance of ‘the first war of the twenty-first century’. As noted in Chapter 1, the ‘war on terror’ rhetoric has now been toned down following the election of President Obama, but the substance of the dispute endures. The US government still detains 166 suspects in Guantánamo Bay, several of whom face the prospect of punishment by judgment of a military commission, while suspected terrorists still at large are increasingly targeted by unmanned aerial vehicles (drones). There are hardliners on both sides of the boundary. Powerful polities have long sought to exercise hegemonic control over the depiction of emergencies. In response to the Irish Republican hunger strikes of 1981, Prime Minister Margaret Thatcher retorted that ‘Crime is crime is crime. It is not political’. The more common mantra, indicating moral relativism, is ‘One man’s terrorist is another man’s freedom fighter.’ The prevalent European response to terrorism is a model of ‘accommodation’ within criminal justice. Taking the United Kingdom as a leading example of this accommodation, the then Home Officer Minister, Tony McNulty, stated in 2008 that ‘prosecution is – first, second and third – the government’s preferred approach when dealing with suspected terrorists’.

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