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COUNTER-TERRORISM
International Law and Practice
This page intentionally left blank
COUNTER-
TERRORISM
International Law and Practice

Edited by
Ana María Salinas de Frías,
Katja LH Samuel, and Nigel D White

1
 1
Great Clarendon Street, Oxford ox2 6dp
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CPI Group (UK) Ltd, Croydon, CR0 4YY

ISBN 978–0–19–960892–8

1 3 5 7 9 10 8 6 4 2
 FOREWORD

I am pleased to serve as an honorary co-chair of the World Justice Project (WJP), a

multinational, multidisciplinary, independent initiative to strengthen the rule of
law at the local, national, regional, and international levels. This book is the first
significant output of a WJP project examining what the rule of law means in the
context of counter-terrorism.
In defining ‘the rule of law’, the WJP has developed a working definition premised
on four universal principles: first, that governments and their officials and agents
are accountable under the law; second, that laws are clear, publicized, stable, and
fair, and protect fundamental rights, including the security of persons and prop-
erty; third, the process by which the laws are enacted, administered and enforced is
accessible, fair, and efficient; and finally, that access to justice is provided by com-
petent, independent, and ethical adjudicators, attorneys or representatives and
judicial officers who are of sufficient number, have adequate resources, and reflect
the makeup of the communities they serve. These principles are believed to repre-
sent the minimum baseline necessary for fair, effective, and rule of law compliant
systems, whether at the governmental or institutional levels.
Additionally, there are a number of other, more specific, legal principles which
counter-terrorist responses must embrace if they are to be lawful, legitimate, and in
accordance with the rule of law. These form the basis of the current project. As the
Berlin Declaration on Upholding Human Rights and the Rule of Law in Combating
Terrorism of the International Commission of Jurists stated in 2004:
In adopting measures aimed at suppressing acts of terrorism, states must adhere strictly
to the rule of law, including the core principles of criminal and international law and
specific standards and obligations of international human rights law, refugee law and,
where applicable, humanitarian law. These principles, standards and obligations define
the boundaries of permissible and legitimate state action against terrorism. The odious
nature of terrorist acts cannot serve as a basis or pretext for states to disregard their
international obligations, in particular in the protection of fundamental human
rights.

The contributors to this volume focus on some of the most pressing and challenging
issues faced by governments and intergovernmental organizations in interpreting,
applying, and upholding these key principles in their counter-terrorist legislation,
policies, and responses. Its starting premise is both pragmatic and practical in
recognizing the realities and difficult choices that need to be made under the guise

v
 Foreword

of the security imperative, whilst exploring how these may be met in a rule of law
compliant manner, which is the overarching theme of the book. Such an approach
is crucial in the context of counter-terrorism where, all too often, there is a ‘perva-
sive security-oriented discourse [which] promotes the sacrifice of fundamental
rights and freedoms in the name of eradicating terrorism. [However], [t]here is
no conflict between the duty of states to protect the rights of persons threatened
by terrorism and their responsibility to ensure that protecting security does not
undermine other rights’ (Berlin Declaration 2004).
One particular and troubling trend, which has been especially prevalent since the
terrorist attacks of 11 September 2001 (9/11), is what the International Commission
of Jurists described as the ‘normalization of the exceptional’ in its 2009 Report
‘Assessing Damage: Urging Action’. Governments are increasingly seeking to justify
the erosion of key rule of law principles on the basis of the exceptionality of the
particular terrorist threats which they are facing, even though applicable legal prin-
ciples, especially those of human rights and international humanitarian law, already
reflect and provide for exceptional security-related circumstances. Such a pervasive
security-orientated discourse often risks hard won fundamental rights and
freedoms in the name of tackling terrorism.
There has been a subtle, but profound shift in post 9/11 security discourse in many
parts of the world. This has sometimes resulted in the utilization of Orwellian
euphemisms, for example ‘coercive interrogation’, in an attempt to hide or justify
torture, cruel and inhuman treatment; or ‘extraordinary rendition’ to disguise the
reality of kidnapping suspected terrorists for the purpose of torture in an overseas
jurisdiction. It is especially concerning when established liberal democracies seek
openly to justify such departures from human rights norms, not least in terms of the
exceptionality of the terrorist threat.
The Club of Madrid is one of the WJP’s founding partner organizations. Its mem-
bership of over 80 democratic former Heads of State and Government from
56 countries, of which I am a member, is committed to strengthening democratic
values worldwide. It is especially encouraging to see that the current project is
developing key issues discussed during the International Summit on Democracy,
Terrorism and Security which the Club of Madrid convened in Madrid in March
2005, on the anniversary of the 2004 Madrid terrorist attacks. In particular, the
Summit was concerned with building a common agenda on how the community of
democratic nations may confront terrorism while preserving their commitments to
civil liberties and fundamental rights in the most effective manner possible.
As this book makes clear, much work remains to be done to ensure that human
rights standards are fully embedded within legislative, policy, and security decisions
and practice. Without this, approaches to counter-terrorism may continue signifi-
cantly to undermine rule of law principles and international legal standards which

vi
 Foreword

have been carefully developed over decades. The current project and its editorial
team, in partnership with Nottingham and Málaga Universities, the Club of
Madrid, Dr Silvia Casale, and an impressive group of distinguished contributors
are to be commended for making the case so clearly for why human rights and the
rule of law matter as much today as they ever have.
Mary Robinson
December 2010

vii
This page intentionally left blank
 PREFACE AND ACKNOWLEDGMENTS

The idea for this project was conceived during the World Justice Forum I in Vienna
in July 2008. The World Justice Project (WJP) is a multinational, multidisciplinary,
politically independent, initiative which aims to strengthen the rule of law world-
wide. Currently it is engaged in 16 legal and non-legal disciplines, in approximately
50 nations (http://www.worldjusticeproject.org/). During the Forum, a collabora-
tive project was initiated between Dr Katja Samuel and Professor Nigel White
(University of Nottingham, UK), the Club of Madrid and its former Secretary-
General, Fernando Perpiñá-Robert (80 former heads of state from more than
56 democratic countries committed to furthering democratic values worldwide),
and Dr Silvia Casale (formerly President of the Committee for the Prevention of
Torture (Council of Europe) and UN Subcommittee on Prevention of Torture),
later joined by Professor Ana María Salinas de Frías (University of Málaga, Spain).
The overarching aim of the project has been to examine what the rule of law means
in the specific context of counter-terrorism, under the overall umbrella of the WJP.
More specifically, it examines and reaffirms key legal principles which make up the
international rule of law framework for tackling terrorism (international human
rights, humanitarian, refugee, and criminal law); considers recent institutional and
state practices in relation to them; and seeks to be solution-orientated as to how
legitimate counter-terrorism security imperatives may be accommodated within,
rather than erode, these principles, including through the making of concrete rec-
ommendations. As such, in addition to its strong academic content, its practical
nature—which draws upon diverse expertise and insights from around the world—is
expected to appeal especially to governmental and institutional counter-terrorism
policy-makers and practitioners.
As a project, we have taken great care to ensure that a work of this size and effort
does not merely reiterate what has gone before, but rather genuinely contributes to
understanding terrorism and to formulating policy responses to it. With this in
mind, two workshops—involving approximately 40 experts from diverse states,
international organizations, and professional perspectives (including four Members
of the Club of Madrid: former President of Ireland, Mary Robinson; former Prime
Minister of Romania, Petre Roman; former President of Mauritius, Cassam Uteem;
and former Prime Minister of Latvia, Valdis Birkavs)—were held during June 2009
in order to set the framework of key questions and issues for further exploration.
One was hosted by Sheffield University, UK; and the other by the Club of Madrid

ix
 Preface and Acknowledgments

in Santander, Spain. Since these initial formative workshops, over 40 multinational,

multidisciplinary experts, drawn from every major region of the world, have con-
tributed their expertise on specific topics to the current volume. Each of these
contributions reflects the overarching theme of this project, namely how legitimate
counter-terrorism security imperatives may be accommodated within, rather than
erode or violate, the applicable international rule of law framework.
Additionally, during the course of the project, members of the project team
have had the opportunity to present to and participate in various important counter-
terrorism initiatives, including the World Justice Forum II (Vienna, November 2009);
workshop on ‘Human Rights and Terrorism’ organized by the Ministry of Foreign
Affairs and Cooperation of Spain and Fundación Valsaín, and hosted by Málaga
University (Málaga, October 2009); and the Council of Europe’s Committee of
Experts on Terrorism (CODEXTER) 19th Meeting (Istanbul, December 2010). We
are most grateful to their respective organizers.
As with any project of this nature, there are many people to thank, without whose
often tireless and sacrificial involvement, support, and encouragement—in so
many different ways—the current publication would not have been possible. First,
we acknowledge the inspiration and both financial and non-financial support
(including through the award of an Opportunity Fund grant) of the WJP (espe-
cially of William H Neukom, and Leila Hanafi) as well as that of Dan Sharp and
Craig Samuel who facilitated our initial participation in this global venture; Venable
LLP, Washington, DC (Sheffield workshop); Gobierno de Cantabria, Cámara
Cantabria, Ayuntamiento de Santander, and Universidad International Menéndez
Pelayo (Santander workshop); and the International Bar Association Foundation,
Inc (editing of this publication). Second, we are of course extremely grateful to each
of our expert contributors to the current volume, who gave freely of their time and
expertise in support of the rule of law, often in the face of considerable work, time,
and personal pressures. Third, we greatly appreciate our ever flexible, diligent, and
cheerful editorial assistants for their sterling work (Joe McIlwraith, Lucy Cole, and
Christy Shucksmith). Fourth, we would like to acknowledge the assistance of our
largely volunteer researchers who gave hours, days, or even weeks of their time to
research diverse rule of law issues (DJ Dore, Morgan Riley, Kelly Stathopoulou,
Stephen van Vulpen, Tessa van der Sande, Miranda Khabazi, Stephen McClean,
Maryam Mir, Melissa Bzowy, Oliver Lowry, Alejandro Salazar-Hinojosa, Isabel A
Flores, Jonathan Hasson, Ruhina Choudhury, Victoria Hunter, Sharifah A Idid,
Salome Ugrekhelidze, Lydia Davies-Bright, Jennifer Lopez, Justin Sellman,
Annamartine Salick, Tim Bass, Marc Sorel, and Sarah Wappett, most of whom
were students of Nottingham, Sheffield, or Georgetown Universities). Next, we
would like to thank the OUP publishing team, for their support of and vision for
this project from its early beginnings, and for guiding us through the publishing
labyrinth (John Louth, Merel Alstein, Anthony Hinton, David Lewis, Jenifer
Payne, and our copy editor, Nicola Freshwater), and for various administrative and

x
 Preface and Acknowledgments

IT support provided during the course of the project by Nottingham and Sheffield
Universities. Lastly, and most certainly not least, we are indebted to our families
and friends for their endless patience, understanding, and support as we immersed
ourselves in the task at hand.
We sincerely hope that the current volume, which represents the efforts of many
over a three year period, might in some way assist those upon whom our national
and international security depends, who are often faced with difficult choices under
extreme pressure, to navigate successfully through the counter-terrorism security
and rule of law quagmire.
Finally, we dedicate this book to the memory of our friend and colleague, the late
Dr James Muiruri, and those whom he represents. James survived the al Qaeda ter-
rorist attack on the US Embassy in his home city of Nairobi, Kenya in 1998, only
to become the victim of a senseless extrajudicial killing by an off-duty policeman in
2009 whilst at home to celebrate his recent success in defending his doctoral thesis
on African regional security. He, like other victims of rule of law violations, is sorely
missed.
Ana María Salinas de Frías, Katja LH Samuel, and Nigel D White, June 2011.
For further information on this initiative, the project team may be contacted as
follows: Ana María Salinas de Frías ([email protected]); Katja Samuel (project man-
ager/co-director: [email protected]); and Nigel White (project co-director:
[email protected]).

xi
This page intentionally left blank
 EDITORIAL NOTE

Since the book has been well advanced in its production phase, thereby not per-
mitting any significant changes to its text, there have been a number of important
developments which are noted here and in which light relevant sections of indi-
vidual chapters should be read.
The first are two important judgments of the European Court of Human Rights
(ECtHR) given in the cases of Al-Skeini and others v United Kingdom (App No
55721/07) ECtHR 7 July 2011 and Al-Jedda v United Kingdom (App No 27021/08)
ECtHR 7 July 2011 regarding the extra-territorial jurisdictional reach of the
ECHR.
The case of Al-Skeini concerned the deaths of six Iraqi civilians in Basra in 2003 at
a time when the UK was an occupying power. Previously, the UK House of
Lords had interpreted the extra-territorial jurisdictional reach of the European
Convention on Human Rights (ECHR) in such a way that liability arose in relation
to the death of only one of the civilians, Baha Mousa, who died in the hands
of British servicemen whilst in military detention. The families of the other five
civilians, who had been killed by British soldiers during military operations, com-
plained to the ECtHR that no independent or thorough investigation had been
carried out in relation to the circumstances of their deaths. The ECtHR disagreed
with such a narrow interpretation of the ‘effective control’ test for establishing
jurisdiction under the ECHR in circumstances where civilians had been killed in
the course of the exercise of physical power and control by British soldiers engaged
in security operations, even in a state not party to the ECHR such as Iraq. In doing
so, it reaffirmed its own long standing principles (and clarified confusion regarding
the Convention’s jurisdictional reach post Bankovic and others v Belgium and 16
other Contracting States (App No 52207/99) (2007) 44 EHRR SE5) that liability
under the ECHR for human rights violations is not determined by the physical
location where they occur, but rather by whether the breaches occurred under the
power, authority, and control of a Contracting Party to the ECHR. It further sup-
ported the contention of the victims’ families that no independent and effective
investigation had been carried out by the UK authorities.
Similarly, in Al-Jedda—which involved the indefinite detention without charge of
a dual British/Iraqi citizen in a Basra facility run by British forces—the ECtHR
rejected the approach of the UK House of Lords which in 2007 had held that the
detention of Mr Al-Jedda was lawful because the UK Government had been
authorized so to act by UN Security Council Resolution 1546 (8 June 2004).

xiii
 Editorial Note

Instead, the ECtHR held that the Security Council Resolution did not displace
the UK Government’s obligations to protect the right to liberty under Article 5
ECHR, reflecting its broader interpretative approach to jurisdiction.
Another recent development is the publication of the UK’s Report of the Baha
Mousa Public Inquiry on 8 September (<http://www.bahamousainquiry.org/
report/index.htm> accessed 28 September 2011). The Inquiry was set up by the
British Government to investigate and report on the circumstances surrounding
the death of the Iraqi civilian, Baha Mousa, in 2003 and the treatment of those
detained with him, by British military personnel. The Report was highly critical of
attitudes towards and the treatment of detainees, including the ‘gratuitous violence’
directed towards Baha Mousa which eventually led to his death. Similarly, it criti-
cized the ‘corporate failure’ by the Ministry of Defence to develop or disseminate
clear doctrine and policies regarding the correct handling of prisoners of war, not
least in terms of lawful and unlawful interrogation methods (including details of
the banned ‘five techniques’ of stress positions, deprivation of sleep, food or water,
and hooding). The Report contains 73 recommendations for the UK Ministry of
Defence regarding changes to operating instructions for handling civilian detain-
ees, the role of medical personnel, general and specific training for soldiers, including
tactical questioning and interrogation training. The Inquiry is a recent example
of steps that may be taken to ensure greater rule of law compliance in counter-
terrorism operations, not least in terms of affirming established human rights
norms and prohibited forms of ill treatment; and increased accountability of
Government and its officials and agents, although to date corresponding criminal
liability has only been established in relation to one of the perpetrators of the ill
treatment (Corporal Payne).
In reaction to the Baha Mousa Report, British military doctrine was revised and
re-promulgated by the Ministry of Defence in October 2011 as UK Ministry of
Defence, ‘Joint Doctrine Publication—Captured Persons (CPERS)’ (October
2011) JDP 1–10 (2nd edn). This streamlines and simplifies procedures regarding
all CPERS, retaining the categories of POW, RP (IAC only), internees, and detain-
ees. Article 5 tribunals (IAC only) or analogous tribunals must be convened in all
cases of doubt as to status; the POW Determination of Status Regulations 1958 are
now officially ‘obsolete’, but new regulations to replace them have not yet been
drawn up; all CPERS must at all times be treated consistently with Article 75 API
(see especially Chapter 17).
Finally, in June 2011, the Organization of the Islamic Conference changed its name
to the Organization of Islamic Cooperation, although it has retained its original
abbreviated name form of ‘OIC’. (See ‘Astana Declaration: Peace, Cooperation
and Development’, adopted by the thirty-eighth Session of the OIC Council of
Foreign Ministers (Astana—Republic of Kazakhstan, 28–30 June 2011)).
November 2011

xiv
 TABLE OF CONTENTS

Editorial Note xiii

List of Contributors xix
List of Abbreviations xxix
Table of Cases xxxix
Table of Treaties and Other Instruments lix

1. Introduction 1
Katja LH Samuel and Nigel D White

PART I COUNTER-TERRORISM AND THE RULE OF

LAW FRAMEWORK
2. The Rule of Law Framework and its Lacunae: Normative,
Interpretative, and/or Policy Created? 14
Katja LH Samuel
3. The United Nations and Counter-Terrorism: Multilateral and
Executive Law-Making 54
Nigel D White
4. Counter-Terrorism and the Rule of Law: Issues of Judicial Control 83
Allan Rosas
5. States’ Obligations under International Refugee Law and
Counter-Terrorism Responses 111
Ana María Salinas de Frías
6. Criminality and Terrorism 133
Ben Saul
7. Armed Conflict and Terrorism: There is a (Big) Difference 171
Jelena Pejic
8. Executive Power and the Use of the State of Emergency 205
César Landa
9. Impunity and the Emerging Patterns of International Justice 232
Tassaduq Hussein Jillani

xv
 Table of Contents

10. Beyond Radicalization: Towards an Integrated Anti-Violence

Rule of Law Strategy 255
Colm Campbell

PART II MULTIDISCIPLINARY PERSPECTIVES ON

THE RULE OF LAW IN ACTION
11. The Role of the Lawyer in Shaping Responses to the
Security Imperative 284
Hans Corell
12. Counter-Terrorism Policy-Making from the Perspective
of a Diplomat 302
Fernando Perpiñá-Robert
13. Counter-Terrorism Policing and the Rule of Law:
The Best of Friends 323
Keith Weston
14. Intelligence and Counter-Terrorism: Towards a Human Rights and
Accountability Framework? 351
Gerald Staberock
15. The Military and the Role of Law in Countering Terrorism 388
Thomas R Mockaitis, Charles Tucker Jr, and Augustus Invictus
16. Fair Process and the Security Council: A Case for the Office of the
Ombudsperson 409
Kimberly Prost

PART III COUNTER-TERRORISM IN PRACTICE

17. Classification, Administration, and Treatment of
Battlefield Detainees 426
David Turns
18. Detention as a Response to Terrorism 457
Nigel S Rodley
19. Treatment in Detention 483
Silvia Casale
20. Torture, Interrogation, Counter-Terrorism, and the Rule of Law 515
Richard Pregent
21. ‘Extraordinary Rendition’: A Challenge for the Rule of Law 539
Helen Duffy and Stephen A Kostas
22. Reconciling National Security and Non-Refoulement:
Exceptions, Exclusion, and Diplomatic Assurances 579
Cornelis (Kees) Wouters
xvi
 Table of Contents

23. Anti-Terrorism Laws, Terrorist Profiling, and the Right to

Non-Discrimination 596
Daniel Moeckli
24. Use of Lethal Force against Suspected Terrorists 618
David Kretzmer

PART IV JUDICIAL RESPONSES

25. The ‘Push-Pull’ of the Law of War: The Rule of Law and
Military Commissions 656
Christopher Kannady, Peter Masciola, and Michel Paradis
26. The Role of Military Courts in a Counter-Terrorism
Framework: Trends in International Human Rights
Jurisprudence and Practice 689
Claudia Martin
27. Restricted Immigration Procedures in National Security
Cases and the Rule of Law: An Uncomfortable Relationship 724
Nuala Mole
28. Human Rights and the Fight against Terrorism: Some Comments
on the Case Law of the European Court of Human Rights 759
Egbert Myjer
29. The Inter-American Court of Human Rights’ Perspective
on Terrorism 785
Sergio García Ramírez
30. The Role and Legal Framework of the Inter-American
Commission on Human Rights in Securing Justice for Victims 811
Christina M Cerna
31. Reconciling the Protection of Human Rights and the
Fight against Terrorism in Africa 838
Ibrahima Kane
32. Terrorism and Counter-Terrorist Responses: The Role of
International Criminal Jurisdictions 873
Rod Rastan and Olympia Bekou
33. Realizing the Right to Redress for Victims of Terrorist Attacks 908
Ilaria Bottigliero

PART V NON-JUDICIAL RESPONSES

34. Parliamentary Oversight of Counter-Terrorism Policies 936
Jarmo Oikarinen

xvii
 Table of Contents

35. Strengthening Interstate Cooperation: The Eurojust Experience 965

Michèle Coninsx
36. Criminal Justice Responses to Terrorism in Africa:
The Role of the African Union and Sub-Regional Organizations 990
Martin A Ewi and Anton du Plessis
37. Implementing Human Rights and Rule of Law Aspects of the UN
Global Counter-Terrorism Strategy: The UNODC/TPB Experience 1027
Nicole El Khoury
38. Conclusion 1044

Bibliography 1085
Index 1135

xviii
 LIST OF CONTRIBUTORS

Dr Olympia Bekou (Greece) is Associate Professor at Nottingham University, and

Head of the International Criminal Justice Unit of its Human Rights Law Centre.
A qualified lawyer, she specializes in international criminal law. Dr Bekou has pro-
vided research and capacity building support to 63 states, through intensive training
to more than 75 international government officials, and drafting assistance to
Samoa (with legislation enacted in November 2007) and Jamaica. She has also
undertaken capacity building missions to Africa. She is responsible for the National
Implementing Legislation Database of the International Criminal Court’s Legal
Tools Project and has researched and taught extensively worldwide.
Dr Ilaria Bottigliero (Italy), PhD in International Law (Geneva), Diplôme d’Études
Supérieures (Geneva), Laurea in Political Sciences (Rome), is Senior Researcher at
the International Development Law Organization (IDLO). Prior to joining the
IDLO, she was Lecturer and researcher at the Raoul Wallenberg Institute and at
the Lund University Faculty of Law, Sweden. Dr Bottigliero was also Lecturer at the
Chinese University of Hong Kong and at the Hong Kong University Faculty of
Law. She is the author of Redress for Victims of Crimes under International Law
(Martinus Nijhoff, 2004), and of several scholarly publications on victims’ rights
and international criminal justice.
Professor Colm Campbell (Northern Ireland) is a founding director of the
Transitional Justice Institute, Ulster University. He has held Senior Research
Fellowships from the British Academy, the Leverhulme Trust, and Jesus College
Oxford (when visiting). Formerly, he served as Professor of Law at the National
University of Ireland, Galway, and as the Human Rights Centre’s director at Queen’s
University Belfast. Professor Campbell holds degrees from the National University
of Ireland (BCL), and from Queen’s University Belfast (PhD). Published outputs
include an OUP monograph, and a multiplicity of academic articles in such journals
as Modern Law Review, and International and Comparative Law Quarterly.
Dr Silvia Casale (United Kingdom) is a criminologist who has worked as Sentence
Review Commissioner (Northern Ireland, 1998–ongoing, review of terrorist cases);
a Member of the Parole Board for England and Wales; and as an independent con-
sultant to HM Prisons since 1984. She has extensive experience of treatment in
detention and on matters relating to the use of torture, in particular as the first and
recent Chairperson of the UN Subcommittee on Prevention of Torture (2007–
2009); UK member of the European Committee for the Prevention of Torture

xix
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