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The Abuse of Executive Powers: What Remedies?

COUNTERTERRORISM: DEMOCRACY'S CHALLENGE, Bianchi & Keller, Oxford, 2008

23 Pages Posted: 5 Aug 2009  

Christian J. Tams

University of Glasgow, School of Law

Date Written: June 3, 2009

Abstract

This paper addresses remedies available to victims of illegal counter-terrorist measures adopted by States. It focuses on judicial remedies and outlines the legal parameters governing recourse to three types of institutions: (i) national courts of the State responsible for the violation; (ii) national courts of other States; and (iii) international (quasi-)judicial bodies, notably human rights courts. It shows that in proceedings before their national courts, States responsible for violations have frequently ignored the victims' human rights to remedies (whether in the form of apologies, compensation or criminal prosecution of perpetrators). Proceedings before foreign national courts, in turn, face considerable obstacles, notably issues of jurisdiction and immunity. While these do not arise in international proceedings, these proceedings are typically dependent on the prior exhaustion of local remedies; what is more, they are time-consuming and often do not lead to binding legal decisions. As a consequence, most victims of human rights abuses committed as part of counter-terrorist operations have not been able to obtain any remedy. This worrying tendency reflects the limited acceptance, in practice, of the international right to a remedy.

Keywords: counter-terrorism, Guantanamo, right to remedy, human rights, state immunity, compensation for human rights abuses

Suggested Citation

Tams, Christian J., The Abuse of Executive Powers: What Remedies? (June 3, 2009). COUNTERTERRORISM: DEMOCRACY'S CHALLENGE, Bianchi & Keller, Oxford, 2008. Available at SSRN: https://ssrn.com/abstract=1413967

Christian J. Tams (Contact Author)

University of Glasgow, School of Law ( email )

Stair Building
5 - 8 The Square
Glasgow, Scotland G12 8QQ
United Kingdom

HOME PAGE: http://www.gla.ac.uk/schools/law/staff/christiantams/

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