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 7: Terrorism and crimes against humanity

Crossing Legal Boundaries in Defence of the State

Jon-Mirena Landa Gorostiza


Many leading scholars describe the counter-terrorism policy in Spain as an instance of the so-called ‘criminal law for the enemy’. Such an expression stresses the general tendency in this field to go beyond the limits of the normal pattern of both legislation and law enforcement. The result is a radical withdrawal of guarantees and the suspension of fundamental principles which should be imperative in every democracy. From another point of view we could describe the situation related to counter-terrorism policy as one where the standards of International Human Rights Law or International Humanitarian Law should be without exception taken into account in order to fix the scope of the crimes, the criminal procedure, and the conditions of serving penalties. The response to terrorism should be limited according to these standards, especially human rights standards, if we want to remain under the rule of law recognised by civilised nations. In short, under the rule of human rights there is not any ‘enemy’ who deserves exceptional treatment. Therefore, to label the Spanish counter-terrorism policy as a ‘criminal law for the enemy’ implies a critical approach that attempts to highlight some excesses and to make proposals in order to compensate the lack of safeguards in the field. In this regard, there is a crucial aspect that deserves closer attention due to its potential for rendering criminal law policy as contrary to human rights standards

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