Fear’s Legal Dimension: Counterterrorism

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

2. 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

3. 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. 1566 • The real disagreement: armed conflict and occupation

4. 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

5. 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

6. 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

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

8. 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

9. 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

10. 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

11. 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

12. Jurisdictionalpolicies • 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

13. 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