Post 9/11 and the State of Permanent Legal Emergency: Security and Human Rights in Countering Terrorism (Ius Gentium: Comparative Perspectives on Law and Justice, 14)

Annotation The terrorist attacks occurred in the United States on 11 September 2001 have profoundly altered and reshaped the priorities of criminal justice systems around the world. Atrocities like the 9/11 attacks, the Madrid train bombings of March 2003, and the terrorist act to the United Kingdom of July 2005 threatened the life of democratic nations. The volume explores the response of democratic nation-states to the problems of terrorism and counter-terrorism within the framework of the Rule of Law. One of the primary subjects of study is the ways in which the interests of the state (security from external threats, the maintenance of civil peace, and the promotion of the commonwealth) are balanced or not with the liberty and freedom of the citizens of the state. The distinctive aspect of this focus is that it brings a historical, political, philosophical and comparative approach to the contemporary shape and purposes of the criminal justice systems around the world The terrorist attacks which occurred in the United States on 11 September 2001 have profoundly altered and reshaped the priorities of criminal justice systems around the world. Atrocities like the 9/11 attacks, the Madrid train bombings of March 2004, and the terrorist act to the United Kingdom of July 2005 threatened the life of democratic nations as well as its residents. This book is devoted to exploring a problem which has been recurrent at times of crisis and must be constantly deliberately as new threats emerge: the necessity of limiting State power to protect individuals, including non-citizens. Accordingly, it is important to recognize human rights which exist prior to the State. These pre-political or natural rights lie beyond the siren song of sovereignty and are not negotiable whether through legislation, executive power (or otherwise). Protecting these rights, as conceived in law, curtails the excessive exercise of State power. The recognition of the pre-political character of human rights poses objective limits both to the State itself and to the exercise of State authority, precluding in the 9/11 era for all States sooner or later (later for the militarily mighty) counter terrorism tactics which involve unending and capricious derogations from rights or even the setting aside of non-derogable rights. In countering terrorism, the State is not allowed to exercise unrestrained power.¡ It may not rely on a supposed national or popular sovereignty or even on the legitimacy of the democratic process. While establishing limits on State power and lawmaking may not completely resolve the complex relationship between national security and the protection of fundamental rights, it may moderate the State's often excessive utilitarian approach which, focusing more on the quantum than on quod, ignores the pre-political dimension of human rights and trivializes - if not ignores - the dignity of each human being, leaving him/her unprotected from the absolute power of Leviathan Introduction: Security, Criminal Justice And Human Rights In Countering Terrorism In The Post 9/11 Era / Aniceto Masferrer -- The State Power And The Limits Of The Principle Of Sovereignty: An Historical Approach / Aniceto Masferrer And Juan A. Obarrio -- Legal Concepts Of Terrorism As Political Crime And International Criminal Law In 18th And 19th Century Europe / Karl Härter -- Civilising The Exception: Universally Defining Terrorism / Ben Saul -- Terrorism: Limits Between Crime And War. The Fallacy Of The Slogan 'war On Terror' / Mariona Llobet -- The Impact Of Contemporary Security Agendas Against Terrorism On The Substantive Criminal Law / Clive Walker -- The War On Terror And Crusading Judges: Re-establishing The Primacy Of The Criminal Justice System / Francesca Galli -- Secret Evidence And Its Alternatives / Kent Roach -- Evolution Of British Law On Terrorism: From Ulster To Global Terrorism (1970-2010) / Leandro Martínez-peñas And Manuela Fernández-rodríguez -- Australian Responses To 9/11: New World Legal Hybrids? / Simon Bronitt And Susan Donkin -- Democratic States' Response To Terrorism: A Comparative Reflection On The Perceived Role Of The Judiciary In The Protection Of Human Rights And Civil Liberties / Marinella Marmo -- The U.s. Response To Cuban And Puerto Rican Right-wing Terrorism In The Pre And Post 9/11 Era / José M. Atiles-osoria -- Permanent Legal Emergencies And The Derogation Clause In International Human Rights Treaties: A Contradiction? / Christopher Michaelsen -- National Self-defence In The Age Of Terrorism: Immediacy And State Attribution / Mark D. Kielsgard. Aniceto Masferrer, Editor. Includes Bibliographical References. Front Matter....Pages i-x Introduction: Security, Criminal Justice and Human Rights in Countering Terrorism in the Post 9/11 Era....Pages 1-11 Front Matter....Pages 13-13 The State Power and the Limits of the Principle of Sovereignty: An Historical Approach....Pages 15-51 Legal Concepts of Terrorism as Political Crime and International Criminal Law in Eighteenth and Nineteenth Century Europe....Pages 53-75 Front Matter....Pages 77-77 Civilising the Exception: Universally Defining Terrorism....Pages 79-100 Terrorism: Limits Between Crime and War. The Fallacy of the Slogan ‘War on Terror’....Pages 101-117 Front Matter....Pages 119-119 The Impact of Contemporary Security Agendas Against Terrorism on the Substantive Criminal Law....Pages 121-152 The War on Terror and Crusading Judges: Re-establishing the Primacy of the Criminal Justice System....Pages 153-177 Secret Evidence and Its Alternatives....Pages 179-200 Evolution of British Law on Terrorism: From Ulster to Global Terrorism (1970–2010)....Pages 201-222 Australian Responses to 9/11: New World Legal Hybrids?....Pages 223-239 Democratic States’ Response to Terrorism: A Comparative Reflection on the Perceived Role of the Judiciary in the Protection of Human Rights and Civil Liberties....Pages 241-257 The U.S. Response to Cuban and Puerto Rican Right-Wing Terrorism in the Pre and Post 9/11 Era....Pages 259-284 Front Matter....Pages 285-285 Permanent Legal Emergencies and the Derogation Clause in International Human Rights Treaties: A Contradiction?....Pages 287-314 National Self-Defence in the Age of Terrorism: Immediacy and State Attribution....Pages 315-343 Back Matter....Pages 345-348