Catching terrorists between war and peace: do the rights to liberty, fair trial and humane treatment differ during responses to contemporary terrorism above or below the armed conflict threshold?

[摘要] States may avoid categorising responses to terrorism as armed conflict and yet still use lethal force, administrative detention and other tactics or procedures more usually associated with armed conflict. States are then potentially able to derogate from certain liberty and fair trial norms under the human rights treaties that some suggest are irreducible if international humanitarian law is applicable. States may also interpret the requirement of humane treatment in line with what may appear to be a lower standard of treatment required by certain of the human rights treaties. This thesis examines whether the fundamental rights to liberty, fair trial and humane treatment differ during responses to contemporary terrorism above or below the armed conflict threshold. The thesis concludes that there is little difference between the two regimes of international humanitarian law and human rights law in relation to the irreducible core of these fundamental rights and so it may not be important, in these respects at least, to be clear whether or not an armed conflict exists in legal terms. However, for these fundamental rights, States parties to any of the regional human rights treaties are increasingly unlikely to be able to claim a lack of jurisdiction and so a rights vacuum for those they would call terrorists during extra-territorial operations.

[发布机构] University:University of Birmingham;Department:Birmingham Law School

[关键词] H Social Sciences;HV Social pathology. Social and public welfare