Marianne Wade Almir Maljević Editors. A War on Terror? The European Stance on a New Threat, Changing Laws and Human Rights Implications

Transcription

1 A War on Terror?

2 Marianne Wade Almir Maljević Editors A War on Terror? The European Stance on a New Threat, Changing Laws and Human Rights Implications

3 Editors Marianne Wade Max Planck Institute for Foreign and International Criminal Law Freiburg, Germany Almir Maljević University of Sarajevo Sarajevo Bosnia-Herzegovina ISBN e-isbn DOI / Springer New York Dordrecht Heidelberg London Library of Congress Control Number: 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 connection 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 (

4 For all those who suffer because of terrorism including those who face the terror of antiterrorist measures For H.W.R. in memoria And for Noodle: may all those who face dark nights be blessed with such a bright light

5 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 Jürgen Stock and Annette L. Herz 2 Terrorism and the Internet: New Threats Posed by Cyberterrorism and Terrorist Use of the Internet Phillip W. Brunst Part II The International Front 3 The Role of the United Nations in the Prevention and Repression of International Terrorism Paul J. Rabbat 4 The European Union as an Actor in the Fight Against Terrorism Thomas Wahl 5 Instruments of International Law: Against Terrorist Use of the Internet Ulrich Sieber 6 Victims of Terrorism Policies: Should Victims of Terrorism Be Treated Differently? Hans-Jörg Albrecht and Michael Kilchling vii

6 viii Contents Part III The Law Between War and Crime 7 Anti-terrorism Related Criminal Law Reforms and Human Rights in Slovenia Damjan Korošec and Sabina Zgaga 8 Extraordinary Renditions Shadow Proceedings, Human Rights, and the Algerian six : The War on Terror in Bosnia and Herzegovina Almir Maljević 9 Terrorist Attacks: Criminal Prosecution or National Defence? Wolfgang Hetzer 10 The Evolution of the Antiterror Legal and Institutional Framework in Croatia Davor Derenčinović 11 Muslims Communities and Counterterrorism: The Dynamics of Exclusion and Possibilities of Inclusion Tufyal Choudhury Part IV Disappearing Rights 12 Control Orders: Borders to the Freedom of Movement or Moving the Borders of Freedom? Susanne Forster 13 Telephone-Tap Evidence and Administrative Detention in the UK John R. Spencer 14 Fighting Terrorism the Unprincipled Approach: the UK, the War on Terror and Criminal Law Marianne Wade 15 Balancing Liberty and Security? A Legal Analysis of UK Anti-Terrorist Legislation Tony Smith 16 Limiting Fundamental Rights in the Fight Against Terrorism in Spain Víctor Moreno Catena and Mariangeles Catalina Benavente

7 Contents ix 17 The Fight Against Terrorism and Human Rights: The French Perspective Olivier Cahn 18 The Secret Service s Influence on Criminal Proceedings Marc Engelhart Index

8 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 permanent 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 systems 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, judicial 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 restriction of fundamental rights in the fight against terrorism. xi

9 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, international 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 Germanqualified 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 2005, she has been the Assistant to the Managing Board of the Bundeskriminalamt in Wiesbaden, Germany. Her research projects and publications are on the subjects of trafficking in human beings, criminal investigation methods as well as criminal policy. Wolfgang Hetzer was the Head of Unit at the Federal Chancellor s Office between 2000 and Since 2002, he has been the Head of Unit of the Intelligence: Strategic Assessment & Analysis in the European Anti-Fraud Office (OLAF). He is the author of numerous publications on organised crime, money laundering, economic law, police law, secret services and European criminal law.

10 Contributors xiii Michael Kilchling is a senior researcher in the Department of Criminology at the Max Planck Institute for Foreign and International Criminal Law in Freiburg, Germany. His main research interests include organized crime, money laundering and the financing of terrorism, confiscation and asset recovery, penal sanctions and sanctioning systems, victim/offender mediation and other forms of restorative justice, victimology and juvenile justice. He lectures on criminal law, criminology and penology at the Faculty of Law at the University of Freiburg, and as guest lecturer abroad. He has been a member of several international expert groups such as the Crime Proofing Steering Group of the EU Commission, DG Justice and Home Affairs, and the Group of Specialists on Assistance to Victims and Prevention of Victimisation at the Council of Europe, which prepared Recommendation R(2006)8 on Assistance to Crime Victims. In December 2005, he worked at the International Monetary Fund in Washington, DC, as a visiting expert on European legislation on asset confiscation. Currently, he is a member of the informal working group of the European Commission on seizure, confiscation, freezing and asset recovery. Further information is available at home/kilchling.htm. Damjan Korošec is a Professor of Criminal Law in the Faculty of Law at the University of Ljubljana in Slovenia. He has held a scholarship of the Alexander von Humboldt Foundation for research in Germany (at the Max Planck Institute for International and Foreign Criminal Law in Freiburg, ) in the field of International Criminal Law and several Research Scholarships of the Max Planck Society in Germany. Almir Maljević is a Senior Lecturer of Criminal Law in the Faculty of Criminal Justice Sciences at the University of Sarajevo and an Associate Researcher at the Max Planck Institute for Foreign and International Criminal Law. He is co-editor of the Cross-Border-Crime Colloquium Series as well as the Victimologist. His research interests include criminal collectives and conspiracy, organised criminal activities, police corruption, money laundering and juvenile delinquency. Víctor Moreno Catena is a Professor of Procedural Law and the Director of the Alonso Martinez University Institute for Justice and Litigation at the Carlos III University in Madrid. He is also a standing member of the Spanish General Codification Commission. He is currently working on the reform of the Spanish Criminal Procedure Code and is the head researcher of a Science and Technology Department grant-maintained team that is working on the restriction of freedom rights in trials for terrorism. Paul J. Rabbat holds an LL.B. from the Université de Montréal as well as an LL.M. in International Criminal Law from the University of Sussex. From 2005 to 2008, he worked at the Max Planck Institute for Foreign and International Criminal Law in Freiburg, Germany where he was Head of Section for International Criminal Law. During this period, he also lectured at the Law Faculty of the University of Mannheim.

11 xiv Contributors In September 2008, following the completion of his contribution to this book, he accepted a position as Associate Terrorism Prevention Expert at the Terrorism Prevention Branch of United Nations Office on Drugs and Crime in Vienna. Ulrich Sieber is Director at the Max Planck Institute for Foreign and International Criminal Law in Freiburg, Germany, an honorary professor and faculty member at the law faculties of the Albert Ludwigs University of Freiburg and the Ludwig Maximilian University of Munich, as well as guest professor at the Renmin University of Beijing, the Beijing Normal University and the University of Wuhan in China. He is the president of the German Association for European Criminal Law, the speaker of the International Max Planck Research School for Comparative Criminal Law in Freiburg, a member of the board of directors of the International Association of Penal Law (AIDP) and vice-president of the Association Internationale pour la Défence Sociale. His main areas of research deal with the changing face of crime, criminal law and legal policy in today s global risk society. His major project areas are comparative criminal law and European criminal law, especially with respect to organized crime, terrorism, economic crime and cybercrime. For more details and publications, see Tony Smith is a Pro Vice-Chancellor (Government Relations) and Dean of Law at the Victoria University of Wellington as well as the Director of the NZ Centre for Public Law. Previously, he was a Cambridge University Professor of Criminal and Public Law and a Fellow of Gonville and Caius College. He is the author or joint author of numerous books and articles. He was a Member of the International Panel of Advisers in the Appeal of Abdulbasset Al Megrahi (Lockerbie) at Camp Zeist, Holland. He is on the Editorial Boards of the journals, Criminal Law Review, Cambridge Law Journal and Journal of Financial Crime. He is also a barrister and Honorary Bencher of the Middle Temple. John R. Spencer is a Professor of Law at the University of Cambridge. His interests include criminal law, criminal evidence and comparative criminal procedure. He is a QC (honoris causa), an Academic Bencher of the Inner Temple, and holds an Honorary Degree from the University of Poitiers. Jürgen Stock is Deputy Head of Section at the Bundeskriminalamt (BKA - German Federal Police) and a visiting professor for criminology and criminal science at the School of Law of the Julius Liebig University in Giessen. He has had a full professorship since February 1998 and was the founding rector of the Police College for Higher Professional Training in Saxony-Anhalt. Since November 2007, he has been the elected Vice-President for Europe on the Executive Committee of ICPO- Interpol. He is a member of the Institute for Criminology at the Justus Liebig University in Giessen, a member of the American Society of Criminology and the European Society of Criminology and a member of the managing board of the New Criminological Society. He has lectured and has carried out research in the United States and the Middle East and is the recipient of research prizes from the University

12 Contributors xv of Giessen and the Police Management Academy in Muenster. He is also the author of numerous publications on the subjects of criminology, criminal proceedings and police science. Marianne Wade is a senior researcher at the Max Planck Institute for Foreign and International Criminal Law where she works in the European Criminal Law Section. Her work focuses on structural development of a European criminal justice system, the potential of a European public prosecutor as well as of the supranational law as a whole. She has previously completed a comparative study on the role of prosecution services in national criminal justice systems alongside projects concerning terrorism and surveillance. Thomas Wahl joined the European Criminal Law Section of the Max Planck Institute for Foreign and International Criminal Law in Freiburg, Germany in Since October 2005, he has been Head of the Department. The general focus of his research is on dealing with the legal instruments adopted at the level of the European Union and the Council of Europe, especially those which harmonise criminal law, foster mutual cooperation between law enforcement authorities and establish the central players responsible for the deduction, investigation, prosecution and prevention of crime. At present, his main fields of research concentrate on mutual legal assistance in criminal matters, data protection in police and judicial co-operation in Europe and terrorism-related aspects of the European Union. Sabina Zgaga studied law at the Faculty of Law at the University of Ljubljana in Slovenia. She served her apprenticeship at the High Court of Ljubljana. Currently, she is a Ph.D. student and works as a research assistant at the Chair for Criminal Law at the Faculty of Law at the University of Ljubljana in the field of international criminal law, substantive criminal law and criminal procedure.