Cover

Contents

Notes on contributors

Foreword

Acknowledgements

Abbreviations

Table of Cases

Permanent Court of International Justice and ICJ

United Nations treaty bodies

International criminal courts and tribunals

Regional courts

Domestic courts

Arbitral tribunals

Table of Treaties and Un Resolutions

Treaties

Universal

Regional

General Assembly

1 The fragmented international legal response to terrorism

1 Introduction

2 Terrorism as an international matter

2.1 The transformation and variegation of terrorism

2.2 Terrorism as a threat

3 Terrorism and international governance

3.1 The Security Council’s design of a counter-terrorism architecture

3.2 A reduced role for international criminal courts

4 The non-existent special regime of international terrorism law

5 The challenges – structure of the book

Part 1 Improving international cooperation in the investigation and prosecution of terrorist acts

2 A snapshot of international criminal justice cooperation against terrorism since 9/11

1 Introduction

2 The importance of criminal justice responses to terrorism

2.1 Terrorism: a global problem requiring domestic criminal justice responses

2.2 International cooperation is central to any effective criminal justice approach

3 International developments in counter-terrorism cooperation

3.1 UNSC resolutions dealing with terrorism

3.2 UN counter-terrorism instruments

4 Regional developments in counter-terrorism cooperation

4.1 Europe

4.2 Africa

4.3 Central Asia

4.4 Middle East and North Africa (MENA)

4.5 South-East Asia

4.6 The Western Hemisphere

4.7 Interpol

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

6 Conclusion

3 Terrorist crimes and the aut dedere aut judicare obligation

1 Introduction

2 The approach in the current anti-terrorism conventions

2.1 The 1937 Convention

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

5 Conclusion

4 The need for a multilateral cooperative framework for mutual legal assistance

1 The ‘status quo’ for international cooperation in information and evidence gathering

1.1 Introduction

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

2.2 Bilateral treaties

2.3 Regional schemes

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

2.9 National law

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

3.1.5 Summary

3.2 Effectiveness of existing network

3.2.1 Ratification and accession

3.2.2 Adoption of national laws

3.2.3 Use in practice

3.2.4 Conclusions

3.3 The quality of the content of existing instruments

3.3.1 General content

3.3.2 Developments in the content

3.3.3 Specific forms of cooperation

3.3.4 Counter-terrorism

4 Lack of treaty basis as an impediment to cooperation

5 The necessity for treaty-based assistance

6 General conclusions and recommendations

6.1 Scope

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

1 Introduction

2 Terrorism threat perceptions in Europe and Africa

2.1 European perceptions

2.2 African perceptions

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

5.1 Recommendations

5.2 Conclusion

6 Lessons of the European Arrest Warrant

1 Introduction

2 Dual criminality

2.1 Non-list offences

2.2 List offences

2.3 State practice

3 The speciality rule

3.1 The speciality rule and the EAW

4 Refusal grounds

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

6.1 Speciality rule

6.2 Political offence and anti-discrimination clause

6.3 Human rights

6.4 Dual criminality

7 Intelligence cooperation versus evidence collection and dissemination

1 Introduction

2 Development of intelligence

3 Sources of intelligence

3.1 Communications intelligence

3.2 Covert surveillance

3.3 Human intelligence

3.4 Financial intelligence

3.5 Intelligence held by other agencies, national or foreign

3.6 Open source

4 Handling of intelligence

5 Human rights considerations

6 Conclusion and recommendations

8 International cooperation in counteracting terrorist financing

1 Questions of finance

2 An existing infrastructure

3 A personal experience

4 The two strands

5 The response of the international community

6 Criminalization of financing of terrorist acts

7 The ‘offence’

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?

16 Conclusions

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

5 Recommendations

11 Self-defence against terrorists: the meaning of armed attack

1 Introduction

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 Recommendations

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

5 Future steps

12 Anticipatory self-defence against terrorists

1 Introduction

2 Anticipatory self-defence

2.1 Imminence

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

4 Conclusions

13 The necessity and proportionality of anti-terrorist self-defence

1 Introduction

2 Clarifying the ‘necessity test’ and the ‘proportionality equation’

2.1 Necessity and proportionality

2.2 Necessity

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 Proportionality

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 Case studies

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

1 Introduction

2 Definitions

3 Terrorism and armed conflict

4 The effect of 9/11

5 The ongoing legal debate

6 Transnational armed conflicts

7 Lebanon

8 Armed conflict vs. law enforcement

9 Conclusions

15 Extraterritorial application of the rights to life and personal liberty, including habeas corpus, during situations of armed conflict

1 Introduction

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 The right to life

5.1 Situations of international armed conflict

5.2 Occupation

5.3 Situations of non-international armed conflict

6 The right to liberty and habeas corpus

6.1 Situations of international armed conflict

6.2 Occupation

6.3 Situations of non-international armed conflict

7 Conclusion

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?

1.3.2 Fora and remedies?

1.3.3 Actors and accountability

1.3.4 Clarify for the person on the ground?

1.3.5 The rule of law

2 Approaches to co-application: harmonious interpretation, lex specialis and beyond

2.1 Harmonious interpretation

2.2 Interpretative tool

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?

4.2 Targeted killing?

4.3 Investigation and reparation?

5 Conclusion

Conclusions and recommendations

17 The legal regime governing treatment and procedural guarantees for persons detained in the fight against terrorism

1 Introduction

2 Treatment of persons detained in the fight against terrorism

2.1 Preliminary remarks

2.2 Torture

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 Practical challenges

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

3.2.5 End of internment

4 Conclusion

18 The legal regime governing the use of lethal force in the fight against terrorism

1 Introduction

1.1 Legality of using force in territory of another state

1.2 The right to life of the individual concerned

1.3 Two legal regimes

2 Current legal position

2.1 Guiding principle

2.2 LOAC

2.2.1 International armed conflict

2.2.2 NIACs

2.2.3 Mixed conflict

2.3 Law enforcement

2.3.1 Extraterritorial application of human rights conventions41

2.3.2 Customary international law

2.4 Summary

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

3.5 Proportionality

4 Recommendations

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

3.2 Practical challenges

4 Recommendations

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

1 Introduction

2 The blurring between the notion of international terrorism and armed conflict

3 The interplay between the international and domestic notions of terrorism

4 Conclusions

21 All necessary measures? Reconciling international legal regimes governing peace and security, and the protection of persons, in the realm of counter-terrorism

1 Introduction

2 Current legal position

2.1 The UN Charter

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

2.2 Treaty law

2.3 Recent jurisprudence

2.3.1 Behrami/Saramati – 2007 (ECtHR)

2.3.2 Al-Jedda – 2007 (UK HL)

2.3.3 Kadi – 2008 (ECJ)

2.3.4 Sayadi – 2008 (UNHRC)

2.3.5 Al-Jedda – 2011 (ECtHR)

2.4 Overview

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

Introduction

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

Armed attack

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

Index