The Abuse of Executive Powers: What Remedies?
Christian J. Tams
University of Glasgow, School of Law
June 3, 2009
COUNTERTERRORISM: DEMOCRACY'S CHALLENGE, Bianchi & Keller, Oxford, 2008
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.
Number of Pages in PDF File: 23
Keywords: counter-terrorism, Guantanamo, right to remedy, human rights, state immunity, compensation for human rights abuses
Date posted: August 5, 2009