Chapter
3.1 UNSC resolutions dealing with terrorism
3.2 UN counter-terrorism instruments
4 Regional developments in counter-terrorism cooperation
4.4 Middle East and North Africa (MENA)
4.6 The Western Hemisphere
5 Major challenges to effective and appropriate international cooperation in criminal matters
5.1 Intelligence cooperation
5.2 Preventive counter-terrorism practices and the abuse of the principle of non-refoulement
5.3 Challenges in MLA and extradition in counter-terrorism cases
3 Terrorist crimes and the aut dedere aut judicare obligation
2 The approach in the current anti-terrorism conventions
2.2 The definitional dilemma
2.3 The framework of modern multilateral prohibitions
3 The benefits of an integrated framework
4 Recommendations for reinforcing aut dedere aut judicare
4.1 Recommitment to unqualified universal state jurisdiction
4.2 Resisting efforts to commingle criminal regimes
4.3 Drafting of a new diplomatic protocol to ensure due process protections
4 The need for a multilateral cooperative framework for mutual legal assistance
1 The ‘status quo’ for international cooperation in information and evidence gathering
1.2 Mechanisms for gathering evidence and information in criminal cases
1.2.1 Police-to-police channels
1.2.2 Prosecutorial and judicial cooperation
1.3 Limitations and the need for formal mutual assistance
2 The existing network for mutual assistance in criminal matters
2.1 The European Convention
2.4 The Commonwealth Scheme
2.5 The penal law conventions
2.6 The counter-terrorism conventions
2.7 UN Security Council Resolution 1373
2.8 Mutual recognition in the European Union
3 Analysis of existing network
3.1 Scope of existing network
3.1.1 The ‘regional’ instruments
3.1.2 The penal law conventions
3.1.3 The terrorism conventions
3.1.4 Bilateral instruments and national law
3.2 Effectiveness of existing network
3.2.1 Ratification and accession
3.2.2 Adoption of national laws
3.3 The quality of the content of existing instruments
3.3.2 Developments in the content
3.3.3 Specific forms of cooperation
4 Lack of treaty basis as an impediment to cooperation
5 The necessity for treaty-based assistance
6 General conclusions and recommendations
6.2 Effectiveness in practice
6.3 Quality of assistance
5 The role of regional organizations in promoting cooperation on counter-terrorism matters: the European and the African institutions in a comparative perspective
2 Terrorism threat perceptions in Europe and Africa
3 Salient activities of ROs in promoting counter-terrorism cooperation
3.1 Norms and standards setting
3.1.1 Development of European counter-terrorism norms41
3.1.2 Development of African counter-terrorism norms
3.2 Coordination and the promotion of a cohesive regional approach
3.2.1 Counter-terrorism coordination within Europe
3.2.2 Counter-terrorism coordination within Africa
3.3 Delivery of technical assistance
3.3.1 European counter-terrorism technical assistance delivery
3.2.2 African counter-terrorism technical assistance delivery
3.4 Promoting human rights in counter-terrorism
3.4.1 Measures taken in Europe to ensure human rights in counter-terrorism
3.4.2 Measures taken in Africa to promote human rights in counter-terrorism
3.5 Cooperation with the United Nations
4 An appraisal of ROs’ efforts to promote cooperation on counter-terrorism matters
5 Conclusion and recommendations for strengthening ROs’ capacity
6 Lessons of the European Arrest Warrant
3.1 The speciality rule and the EAW
4.1 The political offence exception
4.1.1 Political offence exception and the EAW
4.2 The anti-discrimination clause
5 Human rights protection
5.1 The Soering and Cenaj decisions
5.2 The Stapleton decision
5.3 Convictions in absentia
6 Legal challenges and outstanding legal issues
6.2 Political offence and anti-discrimination clause
7 Intelligence cooperation versus evidence collection and dissemination
2 Development of intelligence
3 Sources of intelligence
3.1 Communications intelligence
3.4 Financial intelligence
3.5 Intelligence held by other agencies, national or foreign
4 Handling of intelligence
5 Human rights considerations
6 Conclusion and recommendations
8 International cooperation in counteracting terrorist financing
2 An existing infrastructure
5 The response of the international community
6 Criminalization of financing of terrorist acts
8 Security Council resolutions
9 Freezing the assets of terrorists and terrorist organizations
10 The United Nations Global Counter-Terrorism Strategy
11 The United Kingdom’s strategy
12 The challenge in Europe to the SCR regime
13 Creation of the Office of Ombudsperson
14 The Financial Action Task Force
15 A possible fresh approach to tackling terrorist financing?
Part II The use of force against terrorists
9 The international regulation of the use of force: the politics of interpretative method
1 How method bears on normative outcomes: a divided interpretative community
2 The UN Charter as beginning and end of inquiry?
3 Is there a customary law on the use of force?
4 The old controversy: words or deeds?
5 The relationship between the law of the Charter and customary law
6 Fall-back theories and their relevance to the debate
7 The definitional conundrum: use of force and its next of kin
8 Legal qualification and its consequences: the problem of mischaracterization
9 Necessity between primary and secondary norms
10 The use of different axiological categories: legality vs. legitimacy
11 Conclusion: interpretative method and societal consensus
10 The role of the UN Security Council in relation to the use of force against terrorists
1 The Security Council’s powers: evolving practice in the field of counter-terrorism
2 Security Council action in the field of counter-terrorism
3 The Security Council and the use of force
4 The relationship between the Security Council and regional organizations
11 Self-defence against terrorists: the meaning of armed attack
2 The current legal position
2.1 The source of the attack
2.1.1 States vs. non-state actors
2.1.2 Geographical source
2.2 The target of the attack
2.3 The scale of the attack
2.4 The military nature of the attack
2.5 Attribution of armed attacks and the targets of self-defence
2.5.1 Military responses against so-called harbouring states
2.5.2 Military responses against terrorist groups irrespective of host state so-called harbouring
3 Practical challenges and outstanding legal issues
3.1 Outstanding legal issues
3.2 Practical challenges to determining an armed attack
3.2.1 Locating the source of the attack
3.2.2 The threshold question
3.2.3 Managing the attribution question
4.1 Question 1: Targets of attacks
4.2 Question 2: Scale and their indicia
4.3 Question 3: Computer-based attacks
4.4 Questions 4 and 5: Criteria for self-defence against the terrorist groups and against the state on whose territory terrorists operate where those acts are not attributable to the state
12 Anticipatory self-defence against terrorists
2 Anticipatory self-defence
3 Anticipatory self-defence against non-state actors in the territory of another state: military measures in response to terrorist attacks
3.1 Threats from non-state actors
3.2 Anticipatory force against imminent attacks
13 The necessity and proportionality of anti-terrorist self-defence
2 Clarifying the ‘necessity test’ and the ‘proportionality equation’
2.1 Necessity and proportionality
2.2.1 Necessity and the functions of self-defence
2.2.2 Necessity as ‘absence of reasonable alternatives’
2.2.3 The alleged temporal dimension of necessity (‘imminence’/‘immediacy’)
2.2.4 Interim conclusions
2.3.1 The proportionality equation
2.3.2 Factors relevant to the assessment of proportionality
2.3.3 Interim conclusions
3 The necessity and proportionality of self-defence against terrorists
3.1.1 Turkey – Kurds – Iraq (2007–8)
3.1.2 Israel – Hezbollah – Lebanon (2006)
3.1.3 United States – Afghanistan – Sudan (1998)
3.2 The necessity of anti-terrorist self-defence
3.2.1 The functions of self-defence
3.2.2 Security Council action
3.2.3 Responses by the host state
3.2.4 Non-forcible measures
3.2.5 Interim conclusions
3.3 The proportionality of anti-terrorist self-defence
3.3.1 A prospective–qualitative approach
3.3.2 Self-defence as a right to use force against terrorists
3.3.3 The assessment of the terrorist threat
3.3.4 The scale of the permissible force against terrorists
3.3.5 Limitation of collateral damage as the key concern
3.3.6 The limited relevance of geographical limitations
3.3.7 Interim conclusions
4 Conclusions and recommendations
PART III Intersection between international human rights
14 Armed conflict and terrorist organizations
3 Terrorism and armed conflict
5 The ongoing legal debate
6 Transnational armed conflicts
8 Armed conflict vs. law enforcement
15 Extraterritorial application of the rights to life and personal liberty, including habeas corpus, during situations of armed conflict
2 Derogation from human rights treaties
3 Extraterritorial application of human rights law
3.1 International Covenant on Civil and Political Rights
3.2 The European Convention on Human Rights
3.3 The Inter-American human rights instruments
4 The relationship between international human rights and international humanitarian law
5.1 Situations of international armed conflict
5.3 Situations of non-international armed conflict
6 The right to liberty and habeas corpus
6.1 Situations of international armed conflict
6.3 Situations of non-international armed conflict
16 Harmony or conflict? The interplay between human rights and humanitarian law in the fight against terrorism
1 Applicability of IHL/IHRL in situations of armed conflict and the fight against terrorism
1.1 Applicability of IHL?
1.2 Applicability of international human rights law?
1.3 Co-application and clarity: why it matters
1.3.1 Divergent standards?
1.3.3 Actors and accountability
1.3.4 Clarify for the person on the ground?
2 Approaches to co-application: harmonious interpretation, lex specialis and beyond
2.1 Harmonious interpretation
2.3 The ICJ: lex specialis and beyond
2.4 The evolving approach of human rights bodies
3 Lex specialis: assumptions and controversies
4 Examples of issues of interplay and outstanding questions
4.1 Review of lawfulness of detention in non-international armed conflict?
4.3 Investigation and reparation?
Conclusions and recommendations
17 The legal regime governing treatment and procedural guarantees for persons detained in the fight against terrorism
2 Treatment of persons detained in the fight against terrorism
2.2.1 Elements of the definition of torture
2.2.2 The need for a purpose as a constitutive element of torture
2.2.3 Severe physical or mental suffering
2.3 Cruel or inhuman treatment
2.3.1 Serious physical or mental suffering or serious attack on human dignity
2.3.2 Circumstantial criteria
2.4 Outrages upon personal dignity, in particular humiliating and degrading treatment
2.5.1 Solitary confinement
2.5.2 Evidence obtained as a result of torture or ill-treatment
3 Procedural guarantees for persons detained in the fight against terrorism
3.1 Internment in international armed conflict
3.2 Internment in non-international armed conflict
3.2.1 Legal basis for internment in a multinational NIAC
3.2.2 Grounds for internment
3.2.3 The internment review process
3.2.4 Judicial review of internment
18 The legal regime governing the use of lethal force in the fight against terrorism
1.1 Legality of using force in territory of another state
1.2 The right to life of the individual concerned
2.2.1 International armed conflict
2.3.1 Extraterritorial application of human rights conventions41
2.3.2 Customary international law
3 Practical challenges and outstanding legal issues
3.1 Right to life under the two competing regimes
3.2 Armed conflicts under a human rights regime
3.3 Indeterminacy of applicable regime
3.4 ‘Combatants’ in NIACs
19 The legal regime governing transfer of persons in the fight against terrorism
1 Introduction: formal and informal transfer in the context of counter-terrorism
2 Background and current legal position
2.1 Formal and informal transfer
2.2 Current legal position concerning the transfer of terrorists: a minimum standard
2.2.1 Threshold principles
2.2.2 Substantive guarantees: non-refoulement
3 Practical challenges and outstanding legal issues
3.1 Outstanding legal issues
4.1 Recommendations to transferring states
4.2 Recommendations to host states
4.3 Recommendations to third states
20 Terrorism as a crime in international and domestic law: open issues
2 The blurring between the notion of international terrorism and armed conflict
3 The interplay between the international and domestic notions of terrorism
21 All necessary measures? Reconciling international legal regimes governing peace and security, and the protection of persons, in the realm of counter-terrorism
2.1.1 When acting under Chapter VII, the Security Council is not bound by law outside of the Charter
2.1.2 The Security Council may not act in contravention of jus cogens norms
2.1.3 The Security Council should be presumed to act in accordance with international law
2.1.4 The Security Council must respect international law, even when acting under Chapter VII of the Charter
2.3.1 Behrami/Saramati – 2007 (ECtHR)
2.3.2 Al-Jedda – 2007 (UK HL)
2.3.4 Sayadi – 2008 (UNHRC)
2.3.5 Al-Jedda – 2011 (ECtHR)
2.5 The law of responsibility: states and international organizations
3 Practical challenges and outstanding issues
Annex Leiden Policy Recommendations on Counter-Terrorism and International Law
Part I Improving International Cooperation in The Investigation & Prosecution of Terrorist Acts
Aim and scope of the Policy Recommendations
Sufficiency of the existing framework
Strengthen the domestic capacity for investigationand prosecution of terrorist cases
Reinforced domestic systems depend on improvedand appropriate international cooperation
Sharing sensitive information
The importance of regional organizations
Increased use of multidisciplinary fusion centres
International cooperation in countering the financing of terrorism
Specific policy recommendations
Part II The Use of Force Against Terrorists
Aim and scope of the Policy Recommendations
Use of force as measure of last resort
The role of the Security Council
Self-defence requirements
Anticipatory self-defence
Use of force and fragile states
Part III Intersection between International Human Rights
Aim and scope of the Policy Recommendations
Section 1 Applicability of Ihrl and Ihl
Applicability of international human rights law
Applicability of international humanitarian law
Section 2 Interplay of Ihrl and Ihl on Specific Issues Related to the Protection of Persons
Treatment and procedural guarantees for persons detainedin the fight against terrorism
The use of lethal force in the fight against terrorism
Transfer of persons in the fight against terrorism
Section 3 Intersections with Other Legal Frameworks
Obligations regarding peace and security and the protection of persons
Terrorism and criminal justice