The role of the domestic and international law in enabling and constraining internment: A case study of Northern Ireland during ‘the Troubles’ and Guantánamo Bay during the ‘War on Terror’

When States are confronted with a terrorist attack that threatens the life of the nation, they typically react by adopting emergency legislation to enable the use of counter-terrorism tactics. While there is extensive literature on this topic, little has been written about the precise role that domestic law and international human rights law play in both enabling and constraining such tactics. This thesis investigates how the law and courts (including quasi-judicial bodies) have at once enabled and constrained counter-terrorism tactics, using a comparison of internment in Northern Ireland during ‘The Trouble’ (a period in time when international human rights law was a newly emerging body of law) and Guantánamo Bay in the context of the present day Global War on Terror (with international human rights law now a well-established area of law with a broad range of treaties and case law). These two case studies were selected due to the similarities between them in terms of the counter-terrorism tactics and used the alleged human rights violations, despite the differences in terms of temporal scope, geographic location, and the state of development of international human rights law. Ultimately, this thesis shows that despite the considerable enabling function of the law, in the form of deference to the executive by courts and legislatures, as well as sovereignty deference mechanisms built into the very fabric of human rights law, the law also constrains the nature and extent of counter-terrorism tactics. This study not only adds to the literature on States’ obligations to protect the general public and national security in response to a terrorist threat but develops the idea of a civil liberties and human rights duty to protect suspected terrorists. Finally, it explores the role and limits of the law in finding a durable solution to the vexed problem of terrorism.

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University of Galway

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Attribution-NonCommercial-NoDerivatives 4.0 International

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University of Galway Theses (PhD Theses)