Articles

• Warbrick, Colin

Abstract

However terrorism is defined, it covers some non-state violence directly or indirectly against state authorities. The authorities against which it is directed will always regard these activities as criminal. Accordingly, one line of response to core terrorism will be through criminal law enforcement. For many reasons, states do not always find that the ‘ordinary’ criminal law and procedure, with their delicate balances between preserving public order and respecting the rights of individuals, allows effective responses to terrorism. Modifications of the law, including special laws justified only on the basis of an exceptional emergency, have been enacted. These laws inevitably interfere with the human rights of individuals. It is for the state to justify these interferences within the scope of its human rights obligations. In Europe, the ratification of the European Convention on Human Rights (ECHR) by practically all European states means that the European Court of Human Rights will have jurisdiction over the striking of a balance between the rights of individuals and the response to terrorism. This ultimate judicial role is important because it means that the European states may not put ‘terrrorists’ beyond the law. Where a state finds the threat to its security so serious that it must resort to a military rather than a police response, international humanitarian law (IHL) may apply but, because of the procedural avenue which the ECHR provides, it is important to stress that IHL does not apply to the exclusion of human rights law. It is suggested in the paper that the insistence on the application and observance of international legal standards of human rights, even if they must be modified in extremis, should be an essential feature of any response to terrorism, even a war against terrorism, which is waged to protect the rule of law. A postscript refers very briefly to part of the judgment of the Court of Appeal of England, which deals with the consequences of the obtaining of information by means of torture, a judgment which seeks to draw a strong line between the international obligations of the state and the interpretation of its national law in the interests of a more effective response to terrorism.