Comment, Counter-terrorist Operations and the Rule of Law

Abstract

Measures to prevent and punish terrorism must be conducted with respect for human rights. Nonetheless, when counter-terrorism methods shift from law enforcement to transnational armed conflict, the applicability and effect of particular positive human rights norms may change. If European states find it necessary to pursue the military model of counter-terrorism, then European human rights jurisprudence may need to modify its rigid opposition to military trials. The right to take proceedings before a court for determination of the lawfulness of detention provides an important procedural safeguard against torture and disappearance, but in some narrow circumstances derogation from that right may be strictly required by the exigencies of combating terrorism.