GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2020

Status

Accepted

Abstract

How far can law go to prevent violent acts of terrorism from happening? This Article examines the response by a number of Western democratic States to that question. These States have enacted special legal mechanisms that can be called ‘anti-terrorist pre-crime measures.’ Anti-terrorist pre-crime measures, or ATPCMs for short, are conditions or restrictions imposed on a person by law enforcement authorities as the outcome of a legal process set up to identify and neutralize potential sources of terrorist activity before it occurs. The issue is whether the ATCPMs regimes in existence today comply with the corresponding States’ international obligations under human rights law because, by virtue of their preventative mission, these regimes operate outside, or on the fringes of, the ordinary criminal justice systems in the democratic societies that deploy them. Despite the operation of ATPCMs regimes in robust democracies like the United Kingdom, Canada, Australia and, potentially, the United States, they surprisingly have not been the subject of recent international scrutiny or systematic comparative study. This Article fills both gaps. On the one hand, it documents how the national legal frameworks in the aforementioned countries design and deploy anti-terrorist pre-crime measures, as well as how those measures function in practice. On the other, the Article canvasses the relevant international legal framework to identify not just which human rights are implicated by the operation of ATPCMs regimes, but also how those rights are impacted by it. The Article then applies this normative framework to the domestic counter-terrorism initiatives studied to ascertain how, and the extent to which, the respective ATPCMs regimes can be said to comply with human rights law. Significant insights can be derived from this exercise for other countries like the United States that authorize or contemplate implementing ATPCMs.

GW Paper Series

2020-50

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