Counter-Terrorism, Human Rights and the Rule of Law
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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.
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Chapter 5: Terrorism as a criminal offence

Crossing Legal Boundaries in Defence of the State

Manuel Cancio Meliá and Anneke Petzsche


Terrorism is one of the biggest problems and challenges a society can face. Its importance is not to be underestimated as it has a huge social, psychological and political influence. Even though there have been some positive developments in recent times concerning this phenomenon – like the declaration of a definitive end to the armed activities by the Basque separatist group ETA (Euskadi ta Askatasuna) in October 2011 – terrorism in all its facets still poses a huge problem. Not only societies and politicians struggle with how to deal with terrorism, criminal doctrine and law also face a special challenge. Therefore, one might rephrase the first sentence of this paper as follows: terrorism is one of the biggest problems and challenges criminal law can face, especially a criminal law code that strives to be governed by the rule of law’s demands for formal certainty and substantive fairness and equality. To illustrate this point one only has to examine current anti-terrorism laws in Europe. Relevant case studies include those of the UK and Spain. In the UK, the Terrorism Act 2006 (TA 2006) introduced new offences that have remained controversial ever since. To name but two, especially problematic are section 1 of the TA 2006 that criminalises ‘encouragement of terrorism’ and section 5 that criminalises the ‘preparation of terrorist acts’. The former – which includes inter alia the concept of the ‘glorification’ of terrorism5 – has been criticised mainly because of its uncertainty and its tendencies to undermine freedom of expression.

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