Creating legal blackholes? Terrorism and detention without trial: towards a changing rule in international law?

Kunschak, Martin

Creating legal blackholes? Terrorism and detention without trial: towards a changing rule in international law?

Master Thesis

2014-07-30

Publisher

University of Cape Town

Department

Department of Public Law

Faculty

Faculty of Law

Abstract

Hardly any attention has been paid to another important aspect touching on general international law and international human rights law in particular: What is the effect of counter-terrorist actions on existing rules of human rights law when these actions violate these norms? Could they possibly create a new rule? The thesis will look at this neglected aspect of the 'war on terrorism' with focus on the troublesome practice of designating persons terrorists and detaining them without trial. A look at the current state of international law reveals that such detention without trial is prohibited under human rights law and humanitarian law. Nevertheless, states across the world have adopted this 'crown jewel of [e]mergency measures'. The question of how states justify their approach in order to get around the prohibition arises. And could the practice together with its justification provide the basis for the emergence of a new rule of international law? The approach taken in this thesis will firstly establish the existing rules, secondly examine state practice in contravention of the existing rules and thirdly analyse the effect of this contravention on the existing rules.

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