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Syllabus TERROR, COUNTER-TERROR AND HUMAN RIGHTS - 62544
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Last update 01-10-2017
HU Credits: 2

Degree/Cycle: 1st degree (Bachelor)

Responsible Department: law

Semester: 2nd Semester

Teaching Languages: English

Campus: Mt. Scopus

Course/Module Coordinator: Dr. Myriam Feinberg

Coordinator Email: myriam.ap@gmail.com

Coordinator Office Hours:

Teaching Staff:
Dr. Myriam Feinberg

Course/Module description:
Terrorism measures affected states long before the 9/11 attacks and counterterrorism measures have existed both domestically and at the international level. However, the need for increased counter-terrorism measures and the legitimacy of such measures received renewed attention after the attacks and in particular how they affect human rights.
A number of international organisations addressed the threat and the UN Security Council in particular obligated all states to adopt counter-terrorism measures and it established a special counter-terrorism sub-committee. Many states enacted new legislation and sometimes adopted exceptional measures. The term “war against terror” was used by the United States but it exposed deep disagreement over the appropriate legal and political framework for counter-terrorism actions because of its impact on human rights: terrorism threatens the most fundamental human rights, including the right to life. States therefore have an obligation to protect their citizens from acts of terrorism but they must do so without violating other rights, such as as privacy, liberty, freedom of speech, etc.
This module deals with the challenges that both international law and domestic legal systems face in countering terrorism. After reviewing the difficulties in adopting an accepted international definition of “terrorism’, the module discusses the various legal and political questions that arise in the fight against terrorism, including the legal regime that applies to action against suspected terrorists, state liability for terrorism, the use of force against suspected terrorists, international criminal liability for acts of terrorism, the detention of suspected terrorists and restrictions on freedom of expression and political organization. The fundamental question of the module is to what extent counter-terrorism measures are compatible with international human rights norms.
The following syllabus may be subject to changes and updates.

Course/Module aims:

Learning outcomes - On successful completion of this module, students should be able to:
- be familiar with the issues that arise in dealing with terrorism in a manner that is compatible with universal human rights norms.
- be able to discuss and analyze legal issues connected with the terrorism, counter-terrorism and human rights.

Attendance requirements(%):
Students who miss three or more classes will not be entitled to credit

Teaching arrangement and method of instruction: Discussion based on reading materials before class

Course/Module Content:
Class 1 Definition of Terrorism; protection of human rights; need for special norms
Reference reading
UN Convention on Financing of Terrorism, article 2
OAU Convention on the Prevention and Combating of Terrorism, article 1
OIC Convention on Combating International Terrorism, articles 1 and 2
EU Framework Decision 13 June 2002, article 1
Special Tribunal for Lebanon, Interlocutory Decision of 16 February 2011, paras.83-113.
Required reading:
EJP Report, Chapter 1: Human Rights versus Security in Assessing Damage, Urging Action, pp. 16-25; 124-136
Recommended:
Ben Saul, ‘The Emerging International Law of Terrorism’ (2010) Indian Yearbook of International Law and Policy, 169

Class 2 Which legal regime?
Reference reading
Human Rights Committee, General Comment no. 29
Human Rights Committee, General Comment no. 31
EJP, paras. 49-66
US memoranda on application of Geneva Conventions to detainees in Afghanistan
US Supreme Court, Hamdan v. Rumsfeld (2006), Court’s view on application of Geneva
Conventions to detainees of al-Qaeda
French Declaration of Emergency
ISIS in the US: Which Legal Regime Applies? Just Security
Harold Koh, Lecture at 2010 Meeting of ASIL, pp. 10-17
Required reading
Kretzmer, Which legal regime applies to use of force?
Myriam Feinberg, The Legality of the International Coalition against ISIS, the Fluidity of International Law, Justice Magazine, 2016

Class 3 Criminalization of terror
Reference readings:
ICTY, Galić case, Appeals Chamber, paras. 79-109
Special Tribunal for Lebanon, Interlocutory decision on the Applicable Law, 16 February 2011, para. 83-113
IACHR, Castillo Petruzzi v. Peru, paras. 113-122
Recommended:
Ben Saul, Criminality and Terrorism, in De Frias, Samuel and White, 133-170.

Class 4 International Regime
Reference reading
UN General Assembly Global Counterterrorism Strategy, 2006
UN Security Council Resolution 1373 (2001)
UN Security Council Resolution 1540 (2004)
UN Security Council Resolution 2178 (2014)
UN Security Council Resolution 2249 (2015)
UN Security Council Resolution 2253 (2015)
UN Security Council Resolutions 1267 (1999)
UN SC Al Qaeda Sanctions Committee
Inter American Convention Against Terrorism
OAU Convention on the Prevention and Combating of Terrorism
Council of Europe Convention on the Suppression of Terrorism
EU Framework Decisions 2002, 2008.
Tagayeva and others v Russia, ECHR 2017
Recommended:
Myriam Feinberg, Sovereignty in the Age of Global Terrorism, Brill 2016, p25-35 and 81-88
Case C‑158/14 European Court of Justice, 14th March 2017

Class 5 International Demands and Human Rights
Reference reading:
Kadi case ECJ 2008, paras. 280- 314;
Kadi case 2013
Human Rights Committee, Communication 1472/2006, Sayadi and Vinck v. Belgium
HM Treasury v Ahmed [2010] UK Supreme Court
Al-Dulimi and Montana Management v. Switzerland 2013 and 2016
Nada v. Switzerland 2010
Al-Jedda v. UK, 2011
Recommended reading:
Myriam Feinberg, ‘International Counterterrorism – National Security and Human Rights: Conflicts of Norms or Checks and Balances?’
International Journal of Human Rights, Special Issue, Volume 19, Number 4, 2015.



Class 6 Interrogation of suspected terrorists
Reference reading
UN Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment
Supreme Court of Israel, HCJ 5100/94, PCATI v. State of Israel
Ireland v UK (ECHR) 1978
Gafgen v Germany (ECHR) 2010
Recommended
David Kretzmer, Torture, prohibition of, in Max Planck Encyclopedia of Public International Law

Class 7 Interrogation of suspected terrorists – extraordinary renditions (2)
Reference reading:
Committee against Torture, Agiza v. Sweden
ECtHR Chahal v. UK
ECtHR, Othman v. UK, from §187
ECtHR, El Masri v. The Former Yugoslav Republic of Macedonia, §221
ECtHR, Al Nashiri v. Poland
ECtHR, Aswat v. UK
Recommended reading:
Silvia Borelli, ‘Extraordinary Rendition, Counter-Terrorism, and International Law’, in B. Saul (ed.), Research Handbook on Terrorism and International Law (Edward Elgar, 2014), pp. 361–378

Class 8 Detention
Reference reading:
ECHR Al-Jedda v UK
House of Lords, A and others v. Secretary of State for Home Department
Marab v. Military Commander
Human Rights Committee, General Comment no. 35 on Article 9 of ICCPR
Hamdan v Rumsfeld
Boumediene v Bush
Recommended:
Yuval Shany, A Human Rights Perspective to Global Battlefield Detention: Time to
Reconsider Indefinite Detention, 2017

Class 9 Use of lethal force against suspected terrorists
Reference
HCJ 769/02, PCATI v. Government of Israel, in Judgments of the Supreme Court of Israel: Fighting Terrorism within the Law (3)
ECtHR, Finogenov v. Russia, from §198
Harold Koh on Lawfulness of Killing Bin Laden, Opinio Juris
2010 Report by Philip Alston on extrajudicial killings
Recommended
Robert McCorquodale ‘Human Rights and the Targeting by Drones’, Opinio Juris
David Kretzmer, Targeted Killings, EJIL 2005

Class 10 Incitement to Terrorism and Freedom of Expression
Reference reading:
UNSC Res. 1624 (2005)
Council of Europe Convention on the Prevention of Terror, article 5
Human Rights Committee, General Comment no. 34
ECHR, Leroy v. France
ECHR, Batasuna v. Spain
Recommended:
Yael Ronen, Incitement to Terrorist Acts under International Law

Class 11 Due Process and Fair Trial
Assigned readings:
IACHR, Castillo Petruzzi case, paras. 123-134
Memorandum, Legality of the Use of Military Commissions to Try Terrorists
CRS, The Military Commissions Act of 2009: Overview and Legal Issues
EJP Report, pages 60, 136-158.
ZZ v. Secretary of State for the Home Department (European General Court, 2012)
ECtHR, Ibrahim and others v. UK
ECtHR, Günes v. Turkey
Recommended:
Judge Robert Spano, ‘Fair trial rights And terrorism: bright-Line rules or flexible procedural Safeguards?’

Class 12 Film
Documentary

Class 13 Israeli Laws and Bills on Terrorism
Reading to be updated closer to the time

Required Reading:
Class 1 Definition of Terrorism; protection of human rights; need for special norms
Assigned readings:
EJP Report, Chapter 1: Human Rights versus Security in Assessing Damage, Urging
Action, pp. 16-25; 124-136
UN Convention on Financing of Terrorism, article 2
OAU Convention on the Prevention and Combating of Terrorism, article 1
OIC Convention on Combating International Terrorism, articles 1 and 2
EU Framework Decision 13 June 2002, article 1
Special Tribunal for Lebanon, Interlocutory Decision of 16 February 2011, paras.
83-113.
Recommended:
Ben Saul, ‘The Emerging International Law of Terrorism’ (2010) Indian Yearbook of International Law and Policy, 169

Class 2 Which legal regime?
Assigned readings:
Human Rights Committee, General Comment no. 29
Human Rights Committee, General Comment no. 31
EPJ, paras. 49-66
US memoranda on application of Geneva Conventions to detainees in Afghanistan
US Supreme Court, Hamdan v. Rumsfeld (2006), Court’s view on application of Geneva
Conventions to detainees of al-Qaeda
French Declaration of Emergency
ISIS in the US: Which Legal Regime Applies? Just Security
Recommended:
Harold Koh, Lecture at 2010 Meeting of ASIL, pp. 10-17
Kretzmer, Which legal regime applies to use of force?

Class 3 Criminalization of terror
Assigned readings:
ICTY, Galić case, Appeals Chamber, paras. 79-109
Special Tribunal for Lebanon, Interlocutory decision on the Applicable Law, 16 February
2011, from para. 83
IACHR, Castillo Petruzzi v. Peru, paras. 113-122
Recommended:
Ben Saul, Criminality and Terrorism, in De Frias, Samuel and White, 133-170.
Jelena Pejic, Armed Conflict and Terrorism: There is a (Big) Difference, ibid., 171,
173-180

Class 4 International Regime
Assigned readings:
UN Security Council Resolution 1373 (2001)
UN Security Council Resolution 1540 (2004)
UN Security Council Resolution 2178 (2014)
UN Security Council Resolution 2249 (2015)
EJIL Talk on UNSC Res 2249
UN Security Council Resolutions 1267 (1999) and 1333 ((2001)
UN SC Al Qaeda Sanctions Committee
Inter American Convention Against Terrorism
OAU Convention on the Prevention and Combating of Terrorism
Council of Europe Convention on the Suppression of Terrorism
EU Framework Decisions 2002, 2008.
Recommended:
Myriam Feinberg, ‘International Counterterrorism – National Security and Human Rights: Conflicts of Norms or Checks and Balances?’ International Journal of Human Rights, Special Issue, Volume 19, Number 4, 2015.
C.H Powell, ‘The United Nations Security Council, Terrorism and the Rule of Law’, in
Global Anti-Terrorism Law and Policy, Second ed., (CUP, 2010), 19–43.

Class 5 International Demands and Human Rights
Assigned readings:
Kadi case ECJ 2008, paras. 280- 314;
Kadi case 2010
Kadi case 2013
Human Rights Committee, Communication 1472/2006, Sayadi and Vinck v. Belgium
ASIL Insight on Kadi and the future of UNSC Sanctions
A, K, M, Q & G v HM Treasury; Hay v HM Treasury (2010) UKSC 2
Al-Dulimi and Montana Management v. Switzerland
Myriam Feinberg, Sovereignty in the Age of Global Terrorism: the Role of International Organisations, (Brill, 2016), chapter 10 and 12.

Class 6 Interrogation of suspected terrorists
Assigned readings:
UN Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading
Treatment or Punishment
David Kretzmer, Torture, prohibition of, in Max Planck Encyclopedia of Public
International Law
Supreme Court of Israel, HCJ 5100/94, PCATI v. State of Israel
David Kretzmer, “The torture debate: Israel and beyond” in Downes, Rock,
AI on Irish application to reopen torture case
Shue, Torture in Dreamland: Disposing of the Ticking Bomb
Recommended
Jean Maria Arrigo, “Torture, Terrorism and the State: A Refutation of the Ticking-Bomb
Argument” 23 Journal of Applied Philosophy 355-373 (2006)
Jessica Wolfendale,”Training Torturers: A Critique of the “Ticking Bomb” Argument”, 32
Social Theory and Practice 269-288 (2006)

Class 7 Interrogation of suspected terrorists – extraordinary renditions (2)
Assigned readings:
Committee against Torture, Agiza v. Sweden
ECtHR, Othman v. UK
ECtHR, El Masri v. The Former Yugoslav Republic of Macedonia
ECtHR, Al Nashiri v. Poland
ECtHR, Aswat v. UK
US Senate Report on CIA Interrogations
Silvia Borelli, ‘Extraordinary Rendition, Counter-Terrorism, and International Law’, in B. Saul (ed.), Research Handbook on Terrorism and International Law (Edward Elgar, 2014), pp. 361–378 (pre-publication version available at ssrn.com/abstract&eq;2432083)

Class 8 Detention
Assigned readings:
Third Geneva Convention, Articles 2, 3, 4, 5
House of Lords, A and others v. Secretary of State for Home Department
ECHR, Al-Jedda v. U.K.
Rasul v. Bush, 542 U.S. 466 (2004)
Hamdan v. Rumsfeld, 548 U.S. 557 (2006), 566-572, 613-625 (UCMJ), 625-633 (Geneva Conventions)
Boumediene v. Bush, 553 U.S. 723, 732-739, 753-755, 764-773, 779-795, 799-808, 816-831 (2008)
Israel Emergency (Detention) Law, 1979
Human Rights Committee, General Comment no. 35 on Article 9 of ICCPR
Recommended
David Cole, “Out of the Shadows: Preventive Detention, Suspected Terrorists, and War”

Class 9 Use of lethal force against suspected terrorists
Assigned readings:
Kretzmer, “Targeted Killing of Suspected Terrorists: Extra-judicial Executions of
Legitimate Means of Self-Defence”
HCJ 769/02, PCATI v. Government of Israel, in Judgments of the Supreme Court of
Israel: Fighting Terrorism within the Law (3)
Mary Ellen O’Connell, “Unlawful Killing with Combat Drones: A Case Study of Pakistan,
2004-2009”
ECtHR, Finogenov v. Russia
Harold Koh on Lawfulness of Killing Bin Laden
Department of Justice White Paper
Special Rapporteur of Counter-Terrorism, Report 2014
Recommended:
Robert McCorquodale ‘Human Rights and the Targeting by Drones’, Opinio Juris
Report of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions,
(2013)
Geneva Academy of International Humanitarian Law and Human Rights, Expert
Meeting on the Right to Life in Armed Conflict and Situation of Occupation
(2005), available at http://www.adh-geneve.ch/pdfs/3rapport_droit_vie.pdf

Class 10 Incitement to Terrorism and Freedom of Expression
Assigned readings:
UNSC Res. 1624 (2005)
Council of Europe Convention on the Prevention of Terror, article 5
Human Rights Committee, General Comment no. 34
ECHR, Leroy v. France
ECHR, Batasuna v. Spain
Yaël Ronen, Incitement to Terrorist Acts and International Law
Recommended:
De Brabandere, The Regulation of Incitement to Terrorism in International Law
Daphne Barak-Erez and David Scharia, “Freedom of Speech, Support for Terrorism,
and the Challenge of Global Constitutional Law” (2012) 2 Harvard National Security
Journal 1.
Class 11 Due Process and Fair Trial
Assigned readings:
IACHR, Castillo Petruzzi case, paras. 123-134
Memorandum, Legality of the Use of Military Commissions to Try Terrorists
CRS, The Military Commissions Act of 2009: Overview and Legal Issues
EJP Report, pages 60, 136-158.
ZZ v. Secretary of State for the Home Department (European General Court, 2012)
ECtHR, Ibrahim and others v. UK
ECtHR, Günes v. Turkey
Recommended:
Judge Robert Spano, ‘Fair trial rights And terrorism: bright-Line rules or flexible procedural Safeguards?’

Class 12 Film

Class 13 Israeli Laws and Bills on Terrorism
Reading to be updated closer to the time

Additional Reading Material:
Appears in syllabus

Course/Module evaluation:
End of year written/oral examination 100 %
Presentation 0 %
Participation in Tutorials 0 %
Project work 0 %
Assignments 0 %
Reports 0 %
Research project 0 %
Quizzes 0 %
Other 0 %

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For further information, please visit the site of the Dean of Students Office.
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