Murphy on Counter-Terrorism and Rule of Law

EU Counter-Terrorism & the Rule of Law in a Post-‘War on Terror’ World

Cian C. Murphy

King's College London - School of Law



EUROPEAN AND UNITED STATES COUNTER-TERRORISM POLICIES, THE RULE OF LAW AND HUMAN RIGHTS, M. Schenin, ed., 2011

Abstract:     
It is clear that the ‘war on terror’ has had a detrimental effect on the rule of law. In the United States, the attempts by the Bush administration to step outside the legal constraints of the Constitution by declaring an ‘exception’ have been well documented.1 The EU has no coercive power of its own but relies on its Member States to enforce EU law. While less naked in its exercise of power, EU counter- terrorism should not be underestimated. Its effects are less overt and thus more difficult to counteract. Two broad trends can be discerned in post-September 11 EU counter-terrorism: accelerated cooperation and a shift towards pre-emption. Certain proposals, such as the European Arrest Warrant, were brought to the top of the legislative agenda. However, September 11 was not merely catalytic. There has been a shift towards pre-emption in the EU that echoes the shift in US counter-terrorism. Pre-emption involves taking intrusive action against potential threats based on, at best, mere suspicion. It is evident in policy documents such as the Action Plan on Combating Terrorism, in the preambles to various legislative acts and in the operative text of those acts. EU counter-terrorism seeks to eradicate any space in which violent politics could develop. Key enactments put in place the common European crime of terrorism, systems of targeted sanctions and financial, travel and telecommunications surveillance. Though the targets of EU counter-terrorism are those who incite, finance, support and carry out acts of terrorism, the entire population is affected by the law. The EU did not adopt the rhetoric of a ‘war on terror’ – yet many of the danger posed by US counter-terrorism in that state can also be seen in the EU. In particular EU counter-terrorism has seen the centralisation of power and the adoption of legal acts to the detriment of the rule of law and fundamental rights.

Number of Pages in PDF File: 8

Keywords: European Union, counter-terrorism, rule of law, war on terror, war on terrorism

 

Full text available at:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1958335