The dark side of counter-terrorism: the argument for a more enlightened approach based on a constitutional law paradigm

Does the fight against international terrorism legitimize Governments to overextend their powers, hiding their actions behind the curtain of secrecy? Are we at war against terrorists, thus needing to implement counter-terrorist policy through a ‘war model’, or is it better to stand for a ‘criminal law model’, implying a stronger respect for constitutional and legal principles? What is the role of courts in these challenging times? By trying to give an answer to these questions, this chapter aims at addressing the issue of balancing security and freedoms, focusing on two controversial counter-terrorist measures: targeted killings (TKs) and extraordinary renditions (ERs). An historical overview on these measures is instrumental to a more conscious assessment of their employment in contemporary counter-terrorism operations and of their dangerous implications on fundamental rights. Reference to lawsuits filed before national and supranational courts to challenge the use of both practices is provided, as well. TKs and ERs are analysed – within the fight against international terrorism – in light of the “criminal law model” and the “war paradigm”. This leads to the conclusion that the use of such practices is neither compliant with one model nor with the other. In fact, in both cases, guarantees provided, respectively, by general criminal law and by the laws of war are widely disregarded. As a consequence, a change of paradigm is desirable. In particular, the underlying idea of this chapter is that “mature” democracies should primarily rely on their constitutional guarantees and criminal law systems to combat international terrorism. In doing so, however, they should improve mutual trust and cooperation and exploit the potentiality of key international bodies, such as the UN.