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A War on Terror?: the European Stance on a New Threat, Changing

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A War on Terror?: the European Stance on a New Threat, Changing ?A War on Terror Marianne Wade • Almir Maljević Editors A War on Terror? The European Stance on a New Threat, Changing Laws and Human Rights Implications Editors Marianne Wade Almir Maljević Max Planck Institute for Foreign University of Sarajevo and International Criminal Law Sarajevo Freiburg, Germany Bosnia-Herzegovina [email protected] [email protected] ISBN 978-0-387-89290-0 e-ISBN 978-0-387-89291-7 DOI 10.1007/978-0-387-89291-7 Springer New York Dordrecht Heidelberg London Library of Congress Control Number: 2009930643 © Springer Science+Business Media, LLC 2010 All rights reserved. This work may not be translated or copied in whole or in part without the written permission of the publisher (Springer Science+Business Media, LLC, 233 Spring Street, New York, NY 10013, USA), except for brief excerpts in connection with reviews or scholarly analysis. Use in connec- tion with any form of information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed is forbidden. The use in this publication of trade names, trademarks, service marks, and similar terms, even if they are not identified as such, is not to be taken as an expression of opinion as to whether or not they are subject to proprietary rights. Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com) For all those who suffer because of terrorism including those who face the terror of anti- terrorist measures For H.W.R. in memoria And for Noodle: may all those who face dark nights be blessed with such a bright light Contents Introduction..................................................................................................... 1 Marianne Wade and Almir Maljević Part I A New Threat 1 International Terrorism – German Police Perspective: The Current Threat Environment and Counterstrategies from the German Police Perspective....................................................... 11 Jürgen Stock and Annette L. Herz 2 Terrorism and the Internet: New Threats Posed by Cyberterrorism and Terrorist Use of the Internet............................ 51 Phillip W. Brunst Part II The International Front 3 The Role of the United Nations in the Prevention and Repression of International Terrorism............................................ 81 Paul J. Rabbat 4 The European Union as an Actor in the Fight Against Terrorism....... 107 Thomas Wahl 5 Instruments of International Law: Against Terrorist Use of the Internet..................................................................................... 171 Ulrich Sieber 6 Victims of Terrorism Policies: Should Victims of Terrorism Be Treated Differently?...................................................... 221 Hans-Jörg Albrecht and Michael Kilchling vii viii Contents Part III The Law Between War and Crime 7 Anti-terrorism Related Criminal Law Reforms and Human Rights in Slovenia.............................................................. 245 Damjan Korošec and Sabina Zgaga 8 Extraordinary Renditions – Shadow Proceedings, Human Rights, and “the Algerian six”: The War on Terror in Bosnia and Herzegovina................................... 261 Almir Maljević 9 Terrorist Attacks: Criminal Prosecution or National Defence?............................................................................... 277 Wolfgang Hetzer 10 The Evolution of the Antiterror Legal and Institutional Framework in Croatia.............................................. 305 Davor Derenčinović 11 Muslims Communities and Counterterrorism: The Dynamics of Exclusion and Possibilities of Inclusion.................. 321 Tufyal Choudhury Part IV Disappearing Rights 12 Control Orders: Borders to the Freedom of Movement or Moving the Borders of Freedom?............................. 349 Susanne Forster 13 Telephone-Tap Evidence and Administrative Detention in the UK................................................................................ 373 John R. Spencer 14 Fighting Terrorism – the Unprincipled Approach: the UK, the War on Terror and Criminal Law.................................... 401 Marianne Wade 15 Balancing Liberty and Security? A Legal Analysis of UK Anti-Terrorist Legislation........................................................... 429 Tony Smith 16 Limiting Fundamental Rights in the Fight Against Terrorism in Spain............................................... 443 Víctor Moreno Catena and Mariangeles Catalina Benavente Contents ix 17 The Fight Against Terrorism and Human Rights: The French Perspective.......................................................................... 467 Olivier Cahn 18 The Secret Service’s Influence on Criminal Proceedings.................... 505 Marc Engelhart Index ................................................................................................................ 549 Contributors Hans-Jörg Albrecht is currently Director at the Max Planck Institute for Foreign and International Criminal Law in Freiburg, Germany and teaches criminal law, criminal justice and criminology at the University of Freiburg. Furthermore, he is a guest professor at the Center for Criminal Law and Criminal Justice at the China University of Political Science and Law, Beijing, Law Faculty of Hainan University, Law Faculty of Renmin University of China, Beijing, Law Faculty of Wuhan University and Law Faculty of Beijing Normal University. He has life membership at the Clare Hall College at Cambridge University, and professorship and perma- nent faculty membership at the Faculty of Law of Qom High Education Center in Teheran, Iran. His research interests include sentencing theory, juvenile crime, drug policies, environmental crime and organized crime, evaluation research and sys- tems of criminal sanctions. Dr. Phillip W. Brunst is a Senior Researcher at the Max Planck Institute for Foreign and International Criminal Law in Freiburg, Germany where he heads the information law and legal informatics section. In recent research projects, Phillip has analysed the balancing act of the right to anonymity in the Internet and its effects on effective prosecution, the dangers of cyberterrorism and various forms of transborder cyber crime as well as international instruments against them. Olivier Cahn is a Lecturer in the School of Law at the University of Cergy-Pontoise and a Fellow of Canterbury Christ Church University (UK) and the University Robert Schuman, Strasbourg. He is also a Researcher at the Centre de Droit Pénal of the University of Cergy-Pontoise as well as an Associate Researcher at the Centre de Recherches et d’Etudes sur les Droits Fondamentaux at the University of Paris Ouest - Nanterre La Défense. His research interests include the treatment of juveniles, judi- cial co-operation in the EU and British anti-terrorism law. Mariangeles Catalina Benavente is an Assistant in the Procedural Law Department and member of the Alonso Martinez University Institute for Justice and Litigatio at the Carlos III University in Madrid. Her current research is focused on the restric- tion of fundamental rights in the fight against terrorism. xi xii Contributors Tufyal Choudhury is a Lecturer in the Law School of Durham University in England and a Research Associate at the Oxford University Centre on Migration Policy and Society. He is also a senior policy advisor to the Open Society Institute’s Muslims in EU Cities Project and was commissioned by the UK government for a report on Muslim Identity Politics and Radicalisation. Davor Derenčinović is an Associate Professor of Criminal Law in the Faculty of Law at the University of Zagreb. He is a former Fulbright post-doctoral researcher and lecturer at the International Human Rights Law Institute at DePaul University in Chicago, IL. Currently, he is the Secretary General of the Croatian Academy of Legal Sciences, a member of the Parliamentary Committee for Legislation (Croatian Parliament), and Head of the National Delegation in European Committee for Legal Co-operation (Council of Europe – CDCJ). He is the author of ten books and more than 50 articles on various topics of substantive criminal law and international criminal law. Marc Engelhart is a Researcher at the Max Planck Institute for Foreign and International Criminal Law in Freiburg, Germany where he is also working on his doctoral thesis. He obtained his law degree from the University of Freiburg in 2003 after studying in Freiburg and Edinburgh. In 2005, he passed his second state examination in law after working inter alia for the Federal Ministry of Justice in Berlin. His research interests are in the areas of criminal procedure law, interna- tional and economic criminal law. Susanne Forster is the Head of Section for the United Kingdom and the Republic of Ireland at the Max Planck Institute for Foreign and International Criminal Law in Freiburg, Germany. Since she joined the Institute in 2005, she has contributed to several projects on comparative criminal law. Furthermore, she is pursuing doctoral research on the UK’s anti-terrorism legislation and its impact on human rights. She is a German- qualified lawyer and received her LL.M. from the University of Edinburgh. Annette L. Herz studied law at the University of Heidelberg in Germany and the University of Bordeaux in France. In 2001, she received a Master of Law Degree (LL.M.) from the University of Edinburgh in Scotland. From 2002 to 2005, she was a research assistant at the Max Planck Institute for Foreign and International Criminal Law in Freiburg, Germany. Since
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