Edited by Ben Saul
Chapter 30: Judicial supervision of anti-terrorism laws in comparative democracies
This chapter discusses the judicial supervision of counter-terrorism laws. Judicial supervision is informed by international law, especially those provisions of international human rights law guaranteeing fair trials, governing the legality of detention, and providing for effective remedies for rights violations. More generally, however, how states organize the functions of judges and courts involved in anti-terrorism measures is a matter of national choice and not international law. This chapter samples democracies to identify common features of judicial supervision of anti-terrorism laws and practices. ‘Supervision’ in this context shall mean both oversight and review. ‘Judicial oversight’ constitutes advance approval of counter-terrorism actions by the state. ‘Judicial review’, in comparison, is an ex post facto assessment of the actions of the state. Since many of the precise matters examined by judges in their oversight or review functions are discussed elsewhere in this book, this chapter canvasses more generally the nature of the judicial office and the precise substantive functions of judges in counterterrorism procedures. It then focuses in more detail on common dilemmas associated with judicial supervision in the counter-terrorism area.
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