Crossing Legal Boundaries in Defence of the State
Edited by Aniceto Masferrer and Clive Walker
Chapter 7: Terrorism and crimes against humanity
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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