188宝金博页面版

The European Journal of International Law Vol. 15 no.5 © EJIL 2004; all rights reserved...........................................................................................EJIL (2004), Vol. 15 No. 5, 989–1018 doi: 10.1093/ejil/chh506........................................................................................................................................................The European Response to Terrorism in an Age of Human Rights Colin Warbrick* Abstract However terrorism is defined, it covers some non-state violence directly or indirectly againststate authorities. The authorities against which it is directed will always regard theseactivities as criminal. Accordingly, one line of response to core terrorism will be throughcriminal 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 andrespecting the rights of individuals, allows effective responses to terrorism. Modifications ofthe law, including special laws justified only on the basis of an exceptional emergency, havebeen enacted. These laws inevitably interfere with the human rights of individuals. It is forthe state to justify these interferences within the scope of its human rights obligations. InEurope, the ratification of the European Convention on Human Rights (ECHR) bypractically all European states means that the European Court of Human Rights will havejurisdiction over the striking of a balance between the rights of individuals and the responseto terrorism. This ultimate judicial role is important because it means that the Europeanstates may not put ‘terrrorists’ beyond the law. Where a state finds the threat to its securityso serious that it must resort to a military rather than a police response, internationalhumanitarian law (IHL) may apply but, because of the procedural avenue which the ECHRprovides, it is important to stress that IHL does not apply to the exclusion of human rightslaw. It is suggested in the paper that the insistence on the application and observance ofinternational 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 thejudgment of the Court of Appeal of England, which deals with the consequences of theobtaining of information by means of torture, a judgment which seeks to draw a strong linebetween the international obligations of the state and the interpretation of its national law inthe interests of a more effective response to terrorism. * Professor of Law, Durham University.