Preventive Counter-terrorism and International Law

Abstract

Counter-terrorism, to be effective, has to have a strong preventive element—the aim being to stop an attack long before it is launched, and thereby to reduce the fear, as well as effects, of terrorism. This has not only led to early arrest but also to redefinitions of terrorism to more comprehensively cover planning and preparation, as well as incitement. It has also led to argument that lethal force can be used preventively or pre-emptively against suspected terrorists/terrorist groups; as well as preventive detention and other means of control such as control orders and other targeted measures; and what may be called preventive interrogation, intelligence and law enforcement techniques. But what is the meaning and scope of ‘prevention’ and ‘preventive’ responses permissible within international law? How do the applicable legal principles relate and intersect, and with what implications for state practices and policies? With the understandable need to prevent terrorist atrocities pulling governments in one direction, do the requirements of international law pull in the other? Or does the international legal framework provide for (some) preventive action in the fact of terrorist threats, and, if so, what are the limitations on the discretion of states?