Chapter

Limits of Fundamental Rights in the Face of Terrorism

Christina Eckes

in EU Counter-Terrorist Policies and Fundamental Rights

Published in print December 2009 | ISBN: 9780199573769
Published online May 2010 | e-ISBN: 9780191722158 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199573769.003.0004

Series: Oxford Studies in European Law

 Limits of Fundamental Rights in the Face of Terrorism

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This chapter considers to what extent terrorism could justify exceptional restrictions on ordinary principles and rights. It seeks to identify how the European Court of Human Rights (ECtHR) and a selection of national courts assess whether restrictions on fundamental rights can be justified in the fight against terrorism. Particular attention is paid to the non-disclosure of information to those affected by counter-terrorist measures. The structure of the chapter is as follows. Section 1 addresses the duty of the state to protect its citizens from terrorist attacks. Section 2 examines to what extent terrorism is an emergency situation justifying a derogation from well-established human rights standards. Section 3 examines the case-law of the ECtHR in which the Court considered whether and to what extent security considerations can justify restricting Convention rights. Section 4 turns to the UK House of Lords. In the UK, counter-terrorist measures, such as the indefinite detention of foreigners, control orders, and the admissibility of third party torture evidence have been challenged as to their compatibility with the 1998 Human Rights Act and the European Convention on Human Rights (ECHR). The House of Lords has given several principled rulings on what cannot be compromised even under the threat of terrible atrocities. Section 5 analyzes the case-law of the US courts and of the Supreme Court of Israel. The US courts, including the Supreme Court, have ruled in a series of cases on whether the detainees at Guantanamo Bay can rely on the right of habeas corpus. Finally, the US Supreme Court of Israel has more often been asked to rule on the legality of counter-terrorist measures. In a ruling on ‘preventive strikes’ or ‘targeted killings’, the Court considered whether the political question doctrine might apply to counterterrorist policies.

Keywords: Human Rights; European Convention; counter-terrorism; House of Lords; US courts; Israel

Chapter.  16472 words. 

Subjects: Human Rights and Immigration

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