This chapter explores the lawful contours of a growing phenomenon – the administration of criminal justice by non-state armed groups in territories under their control. It highlights a steadily... Show moreThis chapter explores the lawful contours of a growing phenomenon – the administration of criminal justice by non-state armed groups in territories under their control. It highlights a steadily mounting body of international practice recognizing the lawfulness of the ‘de facto’ processes as dependent on how – rather than by whom – justice is administered and considers the conditions that international law places on such justice. These include the core standards of independence and impartiality, fair trial guarantees, respect for the principle of legality and the nature of the crimes, which pose myriad challenges in practice in the context of de facto justice. Among others, the chapter flags the particular implications of increased resort by non-state actors (like states) to broad terrorism-related crimes as a basis for prosecution. Finally, as meeting the standards required of de facto justice will generally depend on external support, the chapter questions whether under international law states can – or in certain circumstances should – cooperate with or recognize such processes consistently with international law. In an area of dynamic legal and practical development, the chapter reveals a landscape that is evolving to meet the realities of the changing nature of non-state actors’ exercise of power and control, but where tensions, uncertainties and paradoxes remain. Show less
The thesis analyses international law and practice in relation to terrorism and counter-terrorism in the post 9/11 environment. It finds terrorism to be a term of acute and wide-ranging political... Show moreThe thesis analyses international law and practice in relation to terrorism and counter-terrorism in the post 9/11 environment. It finds terrorism to be a term of acute and wide-ranging political significance yet one which is not defined under generally accepted treaty or customary international law. Despite this, a detailed international legal framework existed before 9/11 but has been supplemented since then, that provide the parameters for state responses to international terrorism. The thesis explores the proliferation of counter-terrorism practice on national, regional and international levels since 9/11 alongside this framework. Many particular responses and the legal issues they give rise to are explored, including Guantanamo and other examples of arbitrary detention, extraordinary renditions, targeted killings, terrorism trials, the erosion of safeguards against torture, sanctions regimes, surveillance pr actices, the prohibition on ‘association’ and the increasingly ‘preventive’ role of criminal law. It is suggested that this practice does not reveal seismic Grotian moments of international legal transformation, gaping holes in international protection or the need for new law. It does however reveal certain characteristics as regards the approach to the legal framework, which include extreme selectivity of application, a spreading ‘exceptionalism,’ distorted ‘purposive’ legal interpretations, excessive secrecy, arbitrariness and a lack of accountability. Evolving international reactions, including judicial reactions, have been and will continue to be critical to the ultimate impact of the ‘war on terror’ on international standards. The study questions the long term implications of the ‘war on terror’ for states and individuals responsible, for third states and for the international rule of law Show less
