Post 9/11 and the State of Permanent Legal Emergency: Security and Human Rights in Countering Terrorism

ISBN-13: 9789400740617 / Angielski / Twarda / 2012 / 350 str.

Aniceto Masferrer

Opis

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 are balanced or not with the liberty and freedom of the citizens of the state.

Spis treści

Contributors.- About the Contributors.- Introduction: Security, Criminal Justice and Human Rights in Countering Terrorism in the Post 9/11 Era; Aniceto Masferrer.- Part I State Power and Legal Responses from an Historical Perspective.- Chapter 1 The State Power and the Limits of the Principle of Sovereignty: An Historical Approach: Aniceto Masferrer   and Juan A. Obarrio.- Chapter 2 Legal Concepts of Terrorism as Political Crime and International Criminal Law in 18th and 19th Century Europe; Karl Härter.-  Part II Defining Terrorism.-  Chapter 3 Civilising the Exception: Universally Defining Terrorism; by Ben Saul.-  Chapter 4 Terrorism: Limits between Crime and War. The Fallacy of the Slogan ‘War on Terror’; Mariona Llobet.-  Part III Keeping Counter-Terrorism Within The Criminal Law Justice? .-  Chapter 5 The Impact of Contemporary Security Agendas against Terrorism on the Substantive Criminal Law;  Clive Walker.-  Chapter 6 The War on Terror and Crusading Judges: Re-establishing the Primacy of the Criminal Justice System; Francesca M. Galli.-  Chapter 7 Secret Evidence and its Alternatives;  Kent Roach.-  Chapter 8 Evolution of British Law on Terrorism: From Ulster to Global Terrorism (1970-2010); Leandro Martínez-Peñas & Manuela Fernández-Rodríguez.-  Chapter 9 Australian Responses to 9/11: New World Legal Hybrids? Simon Bronitt & Susan Donkin.-  Chapter 10 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.-  Chapter 11 The U.S. Response to Cuban and Puerto Rican Right-Wing Terrorism in the pre and post 9/11 Era José M. Atiles-Osoria.-  Part  IV Counter-Terrorism from an International-Law Perspective.-  Chapter 12 Permanent Legal Emergencies and the Derogation Clause in International Human Rights Treaties: A Contradiction?; Christopher Michaelsen.-  Chapter 13 National Self-Defence in the Age of Terrorism: Immediacy and State Attribution; Mark Kielsgard.

Blurb

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.