Recalibrating ECHR rights and the role of the Human Rights Act post 9/11: reasserting international human rights norms in the “war on terror”?

Abstract

An Extraordinary Threat Requiring Special Measures’ One of the most notable aspects of the ‘war on terror’ post 9/11 has been the shift from a wholly criminal justice response under the Terrorism Act 2000 to the creation of a parallel preventive system running in tandem with the continuing criminal justice one, a system that does not rely on the commission of criminal offences or on adherence to ordinary criminal justice safeguards. Clearly, it is not only in respect of preventive measures that international human rights norms may be downgraded – that is the case in respect of normal criminal justice measures too, but it is in respect of preventive measures that the tension with the rights tends to be at its most severe. The use of such extraordinary measures has been justified by Tony Blair on the basis that ‘the struggle’ against terrorism is ‘a new type of war’, demanding a ‘different attitude to our own interests’.1 The threat of suicide bombing was not a hallmark of previous terrorist conflict; it has been presented, and appears to be publicly perceived, as something peculiarly sinister and more threatening than past forms of terrorist activity,2 perhaps because the would-be bomber has put him or herself outside the realm of rationality and deterrence. The argument then – which Colm O'Cinneide has dubbed the ‘siren song of dreadful necessity’3 – is, paradoxically, that due to the extreme nature of the threat to civilised values, there is a greater need than in the past to abandon human rights standards. This article's concern is with such abandonment in relation to the preventive strategy represented by the use of control orders. The Preventive Strategy The preventive strategy4 adopted in response to the idea of an extreme threat relies on targeting possible terrorist suspects – persons who may in future commit terrorist acts, …