Fear’s Legal Dimension: Counterterrorism HEID Summer Programme on International Affairs and Multilateral Governance 23rd June 2008 HEID Summer Programme on International Affairs and Multilateral Governance 23rd June 2008

Regulatory Framework  Anti-terror treaties. The reactive response  International terrorism as crime subject to domestic prosecution  SC’s normative response  Other IL principles and rules  Soft law  Anti-terror treaties. The reactive response  International terrorism as crime subject to domestic prosecution  SC’s normative response  Other IL principles and rules  Soft law

The Definitional Quandary  Baxter: ‘It is very unfortunate that the legal notion of terrorism has been imposed on us. It is imprecise, indeterminate and, most of all, it serves no practical purpose.’  Higgins: ‘Terrorism is a term without legal significance’  GA Res. 49/60  Ad-Hoc Committee GA  SC Res  The real disagreement: armed conflict and occupation  Baxter: ‘It is very unfortunate that the legal notion of terrorism has been imposed on us. It is imprecise, indeterminate and, most of all, it serves no practical purpose.’  Higgins: ‘Terrorism is a term without legal significance’  GA Res. 49/60  Ad-Hoc Committee GA  SC Res  The real disagreement: armed conflict and occupation

Use of force  The obsolescent paradigm of the Charter  Self-defence and non-state actors  SC’s implicit authorization  Striking against terrorist groups in the territory of other states  The twisting and bending of self-defence  The way forward: rethinking the limits to the use of force  The obsolescent paradigm of the Charter  Self-defence and non-state actors  SC’s implicit authorization  Striking against terrorist groups in the territory of other states  The twisting and bending of self-defence  The way forward: rethinking the limits to the use of force

Security Council’s Action  Resolution 1267 and its progeny  The consolidated list  Resolution 1373 and the SC as law- maker  MS’s implementation of SC anti- terror measures  Resolution 1267 and its progeny  The consolidated list  Resolution 1373 and the SC as law- maker  MS’s implementation of SC anti- terror measures

IHL and Terrorism  The applicability of IHL to the war on terror  Status, treatment and detention of terrorist suspects  Suitability of IHL to provide the regulatory framework to combat international terrorism  Asymmetrical warfare  Revision of GCs  The applicability of IHL to the war on terror  Status, treatment and detention of terrorist suspects  Suitability of IHL to provide the regulatory framework to combat international terrorism  Asymmetrical warfare  Revision of GCs

States of emergency  HR derogation clauses and requirements for states of emergency  Factual determination  Proportionality  Temporary character  Non-derogable rights  Procedural obligations  HR derogation clauses and requirements for states of emergency  Factual determination  Proportionality  Temporary character  Non-derogable rights  Procedural obligations

Striking the Balance between Security Concerns and Human Rights  Fear’s legal dimension  The awakening: human rights  Right to fair trial and habeas corpus  Who has the responsibility of striking the balance:  Legislative power  Executive  Judiciary  International law  Fear’s legal dimension  The awakening: human rights  Right to fair trial and habeas corpus  Who has the responsibility of striking the balance:  Legislative power  Executive  Judiciary  International law

Counterterrorism: Democracy’s challenge  Counterterrorism: yet another neologism  The instrumental use of counterterrorism  Encroachment on fundamental rights:  Participation in terrorist groups  Material support  Tapping, living off-terrorism and beyond  Short-circuiting separation of powers:  US  UK  Counterterrorism: yet another neologism  The instrumental use of counterterrorism  Encroachment on fundamental rights:  Participation in terrorist groups  Material support  Tapping, living off-terrorism and beyond  Short-circuiting separation of powers:  US  UK

The apprehension of terrorist suspects and extraordinary renditions  Modalities of apprehension and exercise of jurisdiction: the ‘male captus bene detentus’ doctrine  Rules of international law applicable to forcible abduction  The practice of ‘extraordinary renditions’ and their illegality under international law  The secret flights of the CIA  Modalities of apprehension and exercise of jurisdiction: the ‘male captus bene detentus’ doctrine  Rules of international law applicable to forcible abduction  The practice of ‘extraordinary renditions’ and their illegality under international law  The secret flights of the CIA

Terrorism as an international crime  International Terrorism as Crime against Humanity  Terrorism as War Crime: the Galic case  Is terrorism a distinct international crime?  The consequences of qualifying terrorism as an international crime  International Terrorism as Crime against Humanity  Terrorism as War Crime: the Galic case  Is terrorism a distinct international crime?  The consequences of qualifying terrorism as an international crime

Jurisdictional policies  By whom should terrorist suspects be prosecuted?  The pros and cons of international vs. national prosecution  The ICC’s jurisdiction  Obstacles to national jurisdiction  International judicial cooperation  By whom should terrorist suspects be prosecuted?  The pros and cons of international vs. national prosecution  The ICC’s jurisdiction  Obstacles to national jurisdiction  International judicial cooperation

09/11 Seven years later  The quest for internationally-agreed- upon policies of implementation  The holistic approach: the UN GA global counterterrorism strategy  The different approach between the US and Europe  Cooperation and efficacy  The limits of the law  The quest for internationally-agreed- upon policies of implementation  The holistic approach: the UN GA global counterterrorism strategy  The different approach between the US and Europe  Cooperation and efficacy  The limits of the law