Legal Conceptions of National Security Relevant to Counter-Terrorism and Human Rights Law and Policy

Abstract

The event of 9/11 ushered in some critical national security questions. One of such question, is on how to effectively counter terrorism without the flagrant violation of human rights. No doubt, issues bothering on ‘terrorism’ and ‘counterterrorism’ are national security issues. Hence, this research examines the attitude of the European Court of Human Right towards the issues of national security and human rights in the fight against terrorism. This is carried out by evaluating the laws of the ECHR. Accordingly, this work sets out to critically review and ultimately revise existing legal/judicial conceptions of “national security”. Hence, the overall purpose of this work is to carry out an exhaustive search for the formulation of a comprehensive definition of national security against the background of counterterrorism. To further illustrate the practicality of such a definition in the “fight against terrorism”, a theory will be propounded in this work. Through the ECHR case law, this study will expose the impunity with which sovereign states violate the principles of the rule of law while countering terrorism. Also, this work argues the issue of the absolute nature of Article 3 of the ECHR with special reference to deportation in the fight against terrorism. It highlights the challenges sovereign states face when deporting persons whom they consider threats to others and to the nation. This research contends with the trade-off of rights of a single individual (article 3 ECHR right of a terrorist/terrorist suspect whose activities has the potential to threaten national security) as opposed to the right to life of many innocent civilians. This work makes a case for the adoption of a comprehensive definition of national security which could serve as a model for policy makers to adopt in the formulation and implementation of counterterrorism measures.