Beyond the Law of the Enemy
Recovering from the Failures of the Global War on Terrorism through Law (*)

Matteo Tondini (**)


The article attempts to illustrate the poor effects of the application of a 'law of the enemy' on a global scale, in order to neutralise or prosecute individuals suspected of being involved in terrorist activities. In this respect, the clear failures of the Global War on Terrorism (GWOT) show the need for a change of course, since they are probably due to the pure ideological basis of such a 'war'. Indeed, the GWOT has not only failed in defeating international terrorism, but it has also generated an increasing resentment against the US and its allies. Such consequences clearly indicate that international terrorism must return as being considered a mere criminal phenomenon, to be tackled by judicial means.

1. Introduction

War is neither the aim nor the purpose nor even the very content of politics. But as an ever present possibility it is the leading presupposition which determines in a characteristic way human action and thinking and thereby creates a specifically political behaviour.
Carl Schmitt (1)

The 9/11 terrorist attacks caused a clear involution of criminal law on a global scale. The first legal consequence of the post-9/11 so-called Global War on Terrorism (GWOT) is in fact the worldwide prosecution of terrorist suspects under criminal statutes especially designed to tackle the phenomenon. Labelled as 'enemies', terrorist suspects may be either killed or prosecuted before courts or even before special military bodies. Such individuals are thus no longer regarded as enjoying a protected status under international and domestic law, but are merely portrayed as competitors to be defeated. On the domestic stage, this widespread criminalization is confirmed by the wave of measures, restricting civil liberties, adopted by western countries in response to the terrorist threat. Conversely, year by year, month by month, a new trend seems to arise, due to the failures reported in the GWOT. The scarce outcome of the wars in Iraq and Afghanistan, the growing rate of terrorist attacks in the world, coupled with the low number of convictions by domestic courts and, above all, the lack of a political solution to this global crisis after the evident breakdown of the military option, suggest a radical change or a return to the situation ex ante.

The article attempts to study these issues by briefly analysing the meaning and the legal consequences of the GWOT at the international and domestic level. The first part illustrates the theory of the so-called 'criminal law of the enemy', followed by a paragraph that shows how such theory may explain the use by governments of special measures in order to fight international terrorism. There then follows a study of the limited results achieved by the GWOT, which precedes some conclusive remarks on the need to opt for non-ideological choices in order to succeed in the struggle against this criminal phenomenon.

2. The Law of the Enemy

The theory of criminal law in legal systems governed by the rule of law is characterised by both the principles of legality and non-retroactivity, as well as the prohibition of vagueness in criminal statutes. (2) Criminal law defines specific conducts as offences and provides corresponding penalties, which in turn have to be proportionate to the seriousness of the crimes committed, i.e. to the harm posed or the 'legal goods' offended. Constitutional limits guarantee that criminal offences created by statute correspond to the fundamental principles and rules of the legal system in force. However, it is not seldom that criminal law is used for symbolic impact. In such cases, the relationship between the concrete harm posed by the conduct concerned and the punishment provided by law is disproportionate, as for instance in the case of instigation (apologie) to commit serious crimes (e.g. genocide), or incitement to anti-social behaviours (e.g. racial and religious hatred (3)). In addition, such a 'symbolic' criminal law (4) is not simply directed towards the punishment of a single unlawful act, but mainly towards a specific perpetrator of a crime. The latter in the end is punished for not taking part in the social identity which characterizes the society as a whole. Yet, the stiff criminalisation of such conducts is rooted in the legal values of a political community. As a consequence, within the members of such community arises an expectation of punishment, to which the political leadership has to give a prompt and firm response in order to gain public consensus. (5) This model of criminalisation for symbolic purposes applies to different situations: e.g. it is commonly diffused in post-conflict 'transitional justice' periods, (6) though it also practically affects traditional Islamic societies (7), business criminal law, (8) and even law provisions on human biotechnology, (9) whereas the violation of the rules concerned is perceived as indispensable for the socio-economic system to sustain. As was sharply noted, 'it is because [someone] is guilty of transgressing a taboo that the criminal must be punished [...] Taboos thus create order.' (10) In this respect, criminal law becomes a powerful tool to protect society by normalising, separating or even eliminating those whose status is judged 'abnormal'. When taken to the extreme, sociological templates are used to portray potential adversaries of the political community. This happens when the reason of state (raison d'état) clashes with the rule of law (raison juridique), i.e. '[i]n time of war or other public emergency threatening the life of the nation.' (11) Moreover, since the enemy's representation is subject to the current political situation (the enemy of today is not necessarily the enemy of tomorrow), (12) the list of potential enemies must be updated in order to comply with the political interests of the state.

In such situations, historically, the US common-law doctrine have developed a branch of law called the 'law of the enemy'. (13) Here, the 'enemy' is deprived of his constitutional rights for violating the law of war: sabotages, (14) slaughters, (15) insurrections, (16) attacks after the official end of hostilities, (17) and violations of Executive military orders, (18) have been repressed through extrajudicial bodies applying pure non-statutory criminal law. Ordinary courts have limited the judicial review of such cases to the legal sufficiency of the charges: they have not pronounced on the merits or on the reliability of evidentiary findings, practically giving a high level of deference to political determinations. (19) In time of war, acting pre-emptively, restrictive measures have been also imposed by both British and US Executives against enemy nationals, presumed to be potentially dangerous as saboteurs or spies, and also their property. (20) However, formal nationality alone was a poor indicator of the potential danger posed by such individuals. While 'this observation led Britain to intern fewer people, it led Americans in the opposite direction [...] The concept of an enemy race thus became a substitute for the concept of an enemy nationality.' (21) An example is offered, during the World War II, by the Latin American governments' practice of abducting citizens of Japanese origin and then turning them over to US authorities. The latter could either intern them or even exchange them with US citizens interned in Japan. (22) Still in Latin American countries (particularly in Colombia), martial courts were initially used in the 'sixties and 'seventies to try members of anti-government guerrilla movements, though afterwards such tribunals also started to condemn civilians who did not have anything to do with the armed conflict taking place. (23)

The presence of either individuals who do not pose any threat to the society or persons who are instead perceived as being a source of harm, creates a de facto subdivision in the applicable criminal law. Functionalist legal scholars like the German Günther Jakobs theorize the existence of both a criminal law applied to 'ordinary' citizens (Bürgerstrafrecht) and a 'criminal law of the enemy' (Feindstrafrecht), specifically designed to neutralize potential public enemies. (24) The main features of such a theory have been recently evoked (and heavily criticized) by the Spanish Supreme Court in a case concerning international terrorism: (25) a) the defendant is criminalized solely for the potential threat posed by his/her status of terrorist; b) the due process guarantees are limited or cancelled; c) the penalties are so severe and disproportionate such that they 'lie outside the call for reflection, moderation and control, typical of the rule of law and more concretely the criminal law.' (26) Since it is a type of law specifically intended to neutralize enemies, once they are identified, the punishment intervenes pre-emptively. Such penalties mostly concern deportation or solitary/secret confinement (27) (incommunicado) and might even have no fixed term.

Therefore, the theory of the criminal law of the enemy presupposes the existence of a well-defined political community to draw on, which in turn would be united in refusing and contrasting the 'enemy.' Such a community has to rally around a few single values which are seemingly put at risk by the 'enemy'. In this respect, the rise of a global society, or at least the assumption of its existence, shift the issue to a higher stage. (28) The accused individuals would be thus convicted according to supranational rules or decisions and before international or domestic bodies (judicial or not), enforcing such supranational determinations. Moreover, while at national level the decision over the status of enemy is a prerogative of the Executive and can be thus regarded as a mere political assessment, (29) on the international level, at least a supranational authority, in charge of such allegations, would be required for this criminal law system to operate. Therefore, as a global society calls for a global criminal law, (30) a 'global law of the enemy' requires the existence of enemies of the global society. (31) Nevertheless, this shift also implies a further mixing of the concepts of war and peace. Just as the existence of a criminal law of the enemy entails a state of emergency (and vice versa) at the domestic level, a law of the enemy at the international stage implies a planetary state of emergency. The 'enemy' is no more a traditional international actor, recognised by the international (political) community (a state or a legitimate armed group), but a single individual or organization challenging the only possible global order. This worldwide state of emergency would allow profound derogations in the application of human rights law: as a result, the use of force against alleged individuals would practically result in the overlapping between the law of armed conflict and this risk-based criminal law. (32) However, while traditionally military means are used to stop the enemy at the border, this pre-emptive penal law would rather attempt to individuate and neutralise the enemy within the state's boundaries. (33)

3. The War on Terror and the Birth of a Global Public Enemy

Bearing in mind this theoretical construction, it appears rather easy to affirm that the GWOT, waged by the US after the 9/11 terrorist attacks, is prima facie a form of law of the enemy on a global scale. (34) First of all, it blurs the boundaries between peace and war, as the state of war on the external level couples with an inner state of peace. (35) It also militarises domestic criminal law, which becomes a mere tool to neutralise the terrorist enemy. (36) War becomes a criminal punishment as terrorism turns into a war crime to be contrasted with 'all necessary and appropriate force', (37) including the denial of those guarantees provided by both human rights law and international humanitarian law, (38) the use of torture, (39) the abduction and indefinite confinement of suspects (so-called 'extraordinary renditions'). (40) In sum, the general distinction between war and 'ordinary' crimes is abandoned in favour of a third hybrid model based on 'noncriminal detention' (41) of terrorist suspects. This novel criminal law system was defended by the US Administration's lawyers and surprisingly gained the approval of some prominent law professors. (42) Indeed, framing the logic of the fight against terrorism in terms of us vs. them implies that the terrorist enemy is, by definition, a non-national. (43) This might explain why, at least initially, international terrorism has been fought with the legal tools provided by immigration law. (44) The reality ends when it is ideologically read under the Schmittian lens of the couple friend/foe. This might be misleading as proven e.g. by the July 2005 terrorist attacks in the UK or the recent foiled plot to explode the JFK Airport in New York, all carried out by home-grown terrorist cells. (45) The discriminatory character of new antiterrorism laws was also established by the House of Lords in a 2004 ruling. (46)

The same rationale of eliminating potential opponents who rise to the status of enemies of the whole international society, is at the basis of the latest US-led military interventions in Afghanistan and Iraq. Besides, the strategy of preventive war, as highlighted in the 2002 US National Security Strategy, (47) resembles on the international level a national criminal law to be applied to foreign aliens, suspected of being members of terrorist organizations, (48) as both of them merely rely on the logic of pre-emption. (49) However, this trend may be regarded as having started even before, with the end of the cold war and the birth of armed conflicts initiated on the basis of moral and ethic reasons, under a bellum iustum perspective. (50) Nevertheless, the war in Iraq may be considered as the culminating point of such a trend: once the weapons of mass destruction, which constituted the original casus belli, have not been found, the whole Saddam Hussein's regime has been criminalised through the creation of a Special Tribunal which

'reproduces the logic of stigmatization and vengeance that presided over the Nuremberg Trial. The lawlessness and lack of legitimate power in Iraq, brought about by the war, are such that the trial risks turning into a circus, with overtones of propaganda. It might end up serving the objectives of hiding the victors' misdeeds, dehumanizing the enemy and legitimizing its treatment as an enemy of humanity'. (51)

On the other hand, the Taliban regime in Afghanistan had been considered unlawful by the international community since the 'nineties, through the non-recognition by the overwhelming majority of the UN member states, as well as the adoption of several Security Council Resolutions, establishing a kind of embargo against the regime as well as third parties linked with it. (52)

The second macro-effect of the GWOT is that 'terrorism' becomes the global public enemy number one. Indeed, assuming that the entire international community is rallied around the new Leviathan, being the US, an attack on it amounts to an aggression towards the only existing and legitimate political community. As a consequence, the enemies of the US become the enemies of the whole international society, under the logic of being 'either with us or with the terrorists'. (53) According to this dichotomist policy, the US has elaborated a financial sanctioning regime under which, for instance, bank accounts of foreign banks in the US may be blocked if the countries of origin refuse to cooperate in blocking accounts in their own territory, generating a form of indirect jurisdiction abroad. (54) In this regard, notwithstanding the long lasting liberal tradition and respect for the rule of law, the vast majority of countries allied to the US have deeply contributed in the GWOT. Apart from sending national contingents to participate in US-led military interventions abroad, immediately after the 9/11 attacks most of the US Allies passed anti-terrorist laws restricting civil liberties (55) and generally aided the US in carrying out unlawful practices, as the above-mentioned 'extraordinary renditions'. (56) In general, such anti-terrorist laws, on the one hand strengthen the police powers held by governments, (57) on the other hand often provide for deportation (58) and extrajudicial detention measures (59) for terrorist suspects. In order to prosecute individuals suspected of being terrorists or of supporting, sustaining, promoting terrorist activities or organisations, states have been obliged to either adopt new criminal provisions punishing specific acts, (60) or otherwise merely refer to blacklists compiled domestically (61) or by international organisations, as the UN (62) or the EU. (63) In the latter case, critics argue that simply proscribing certain individuals or organisations may be operationally useless. In the first instance, such tool would be only reactive and would lead to unpredictable results, with some groups being proscribed and others not. Secondly, an organisation could avoid proscription by simply changing its name. (64) Although governments attempt to tackle the problem by reviewing the blacklists periodically, (65) this does not solve the issue of a general definition of the count of international terrorism. Moreover, it risks creating a carte blanche for governments to surreptitiously legislate in criminal law matters, by simply amending the lists. (66) However, the practice of blacklisting suspected organisations or individuals is the only feasible option to fill this normative gap on the definition of international terrorism. While it seems relatively easy to prosecute at the domestic level individuals attempting to carry out an attack against state institutions, it has proved rather difficult to legally establish the prosecution of the same individuals planning acts of violence against third states. This is primarily due to the lack of a single global order, universally recognised by all states, which would constitute the authentic 'legal good', put at risk by international terrorism. Such considerations may explain why numerous countries, instead of trying foreign suspects themselves, opt for deporting them to their countries of origin, despite the risk of torture: (67) 'It is much easier to deport non-citizens on "national security" grounds than it is to convict them on criminal charges associated with terrorism'. (68) As a result, on the one hand, blacklists 'create' de facto international terrorism, while on the other hand they represent the only effective tool to fight it. The same rationale applies to criminal proceedings governed by the use of classified evidence and lack of judicial guarantees for the defendant, whereas simple intelligence information may be used as legal proof against terrorist suspects, without their origin being disclosed in courtrooms. (69) With regard to this, the recent adoption of the Military Commissions Act 2006 (hereafter MCA) has left the situation unchanged, since 'The MCA still leaves the door open for admissible evidence to be obtained through varying degrees of coercion prohibited by the Geneva Conventions and gives the [P]resident the discretion and power to approve some problematic interrogation methods based on his own interpretation of Geneva Convention obligations.' (70) On the British front, in 2005, a ruling of the House of Lords (reversing the judgement of a Court of Appeal) was necessary to finally clarify the prohibition for domestic courts to consider evidence potentially collected through torture. (71) Such practices evidently cast a shadow on the effectiveness of judicial investigations in verifying the initial allegations 'beyond a reasonable doubt'. As was argued by a scholar: 'we are not only afraid of terrorism; we need to believe in it.' (72) In other words, within a fragmented global society, only a blacklist may represent the Grundnorm of international terrorism as a legal concept. Once again, the confusion generated by the couple enemy/criminal grants political authorities the power to extend criminal liability to specific individuals, without referring to general criteria. (73) Carl Schmitt's lesson on war and enmity seems evocative in this respect:

'The friend, enemy, and combat concepts receive their real meaning precisely because they refer to real possibility of physical killing. War follows from enmity. War is the existential negation of the enemy. It is the most extreme consequence of enmity. It does not have to be common, normal, something ideal or desirable. But it must nevertheless remain a real possibility for as long as the concept of the enemy remains valid.' (74)

Eventually, in order to overcome all the legal problems caused by attempting to prosecute an inherent international criminal phenomenon through single national jurisdictions, terrorist links have been often portrayed as 'conspiracies' before domestic courts. (75) Following the rationale of considering terrorism as a war crime, the crime of conspiracy was acknowledged as being a war crime as well. However, this interpretation was further rejected by the US Supreme Court in the Hamdan case, (76) although the subsequent MCA (re)-inserted conspiracy among the crimes that the 'unlawful enemy combatants' may be charged with, (77) thus practically bypassing the judicial decision in question. (78)

At this point, it is evident how all these measures result in an awkward attempt to fix the shaky foundations of this criminal law theory, frustrated by the impossibility of referring to a single global enemy - subject of international law - to justify a global repression through 'exceptional' judicial and military means. Where both this single 'global public enemy' and this US led 'global political community' really exist, a 'global law of the enemy' would be probably the right tool to deal with international terrorism, just as at the domestic level terrorism is fought through national criminal law and sometimes through the declaration of a state of emergency. However, this idealistic oversimplification of reality clashes with the complexity of a multifaceted transnational phenomenon, (79) since, in the end, criminal law loses its social grounds to become a mere product of ideology, i.e. a useless instrument to order social life. As a result, the concept of war is emphasised solely for domestic consumption, in order to mobilise supporters. (80)

4. The Fall of the Gods: The Failures of GWOT

This special criminal justice system was probably doomed to fall since its establishment, given that, as reported above, it only stands on ideological legal basis. Nevertheless, we have been awaiting for about five years to see the first signs of yielding (81) and about six years to draw up a first assessment. At the time of writing, the failures of the GWOT are pretty evident: the US-led wars, waged after 9/11, have reached a stalemate; the blacklisting practice is increasingly criticised; the judicial results of this worldwide criminal prosecution are fairly poor, and in addition some national legislators are stepping back from passing new ineffective anti-terrorism laws, in favour of a return to an 'ordinary' system of judicial guarantees. Finally, the GWOT has not only failed in defeating international terrorism, (82) but has only achieved the opposite result of generating an increasing resentment against the US and its allies. (83) Within this scenario, national judicial authorities have been often the last line of defence in protecting the rule of law against the overwhelming authority of Executives. (84)

a) The critical situation in Afghanistan and Iraq

Actually, the situation 'on field' in Afghanistan and Iraq is not encouraging: ongoing military operations (85) and a creeping civil war (86) respectively, are seriously putting at risk the stabilization of the two countries. According to reliable sources, following the military intervention in Iraq, there have been around 75,000 civilian losses (87) as well as more than 4,000 Coalition soldiers and 1,000 contractors killed. (88) The political situation is hopeless, as all the ministers from the largest Sunni bloc withdrew from the cabinet during the summer 2007. (89) The difficult situation in the country was lastly portrayed by the Iraq Study Group report, co-chaired by James Baker and Lee Hamilton and released in early December 2006, which augmented pessimism among the public opinion on the final solution of the Iraqi crisis. (90) In Afghanistan, the failure of Coalition forces to neutralize the Taliban and al-Qaeda bases (also located in Pakistan) has made the Afghans sceptical of the guarantees of stability offered by the internationals. (91) The delays in the reconstruction of rural areas and the urgency of international donors to achieve quick results have led in turn to the formation of a 'political enclave' in Kabul, more responsive to international authorities than to society as a whole. (92)

b) Increasing Criticism against Blacklists

The practice of blacklisting individuals and groups allegedly considered 'terrorist', has been recently challenged by two recent decisions of the EC Court of First Instance. (93) In both cases, the applicants challenged their inclusion in the EU anti-terrorism blacklist, compiled after the adoption of the Security Council Resolution 1373 (2001). Deciding on the merits, the Court noted that individuals or groups registered in the '1373 blacklist' are entitled to judicial rights and safeguards, i.e. the right of defence, the right to effective judicial protection, together with the obligation for the European authorities to state reasons on which inclusion in the list is based (as provided in art. 253 of the EC Treaty). (94) The Court also remarked that the decisions, under which the applicants were included in the list, had been adopted in the context of procedures in which the right of defence of the individuals concerned was not observed. As a result, the Court itself was unable to review the lawfulness of those decisions. (95) However, the same Court had previously ruled for the lawfulness of the Community's decisions in cases concerning the freezing of funds of persons and entities linked to Osama bin Laden, Al-Qaeda and the Taliban and individuated by the Sanctions Committee, established pursuant to the Security Council Resolution 1267 (1999). (96) According to the Court, in the latter cases, the EC institutions had merely transposed at Community level binding UN decisions, without the Community institutions having any discretionary power for the re-examination of individual situations. (97)

Indeed, the first criticisms against the '1267 list' initially came just from the UN. The Report of the High-Level Panel, established by the UN Secretary General, noted how the way entities or individuals are included into the list, as well as the absence of review mechanism, raises serious accountability issues and potentially violate fundamental human rights norms and conventions. (98) More recently the same list has been strongly deplored by Senator Dick Marty - Rapporteur of the CoE committee investigating on the 'extraordinary renditions' in Europe - for constituting a 'flagrant injustice to many persons against whom there is no proof of any wrongdoing.' (99) Other censures have been recently expressed by Italian judges and prosecutors in several cases. (100)

c) A few convictions

The most worrying factor which is undermining the criminal side of the GWOT is the low number of convictions for the crime of international terrorism registered worldwide. For instance, in the UK, police authorities revealed that, from 9/11 to June 2006, of the 1,047 people who have been arrested as terrorist suspects, only 158 have been charged with offences under the Terrorism Act 2000. 174 have faced other charges (some involving serious allegations), while 69 have been dealt with under immigration law. As a result, more than 600 individuals, mainly Muslims, have been released without charge. (101) In Italy, until the adoption of the Law No. 155/2005, (102) it seemed almost impossible to charge anyone with the crime of international terrorism. According to the Ministry of Interior, (103) between 2001 and 2005, 203 persons have been arrested and charged with terrorism related offences. However, in the same period, only two defendants had been convicted, (104) while, up until January 2005, on a total of 180 persons arrested for terrorism, there had been only one conviction (by plea) and 54 acquittals. (105) Things improved with the adoption of the new anti-terrorism law, expanding the crime of international terrorism. In late 2006, the anti-terrorism prosecutor of Milan Armando Spataro stated that, since 9/11, 78 individuals had been condemned for terrorism-related offences, while 14 of them had been specifically convicted for the crime of international terrorism. (106) Finally, during the whole 2006, nine defendants were sentenced to jail for the same offence. (107)

However, it is in the US that we find the most surprising results, as both the 'ordinary' criminal law system and that administered through military commissions resulted rather ineffective in convicting indicted persons. With regard to the latter system, so far there has been only one conviction (by plea), (108) while two more cases have been dismissed without prejudice, the defendants being considered mere 'enemy combatants' by the military judge, without being 'unlawful', as requested by the MCA to come within the commissions' jurisdiction. (109) On the other hand, within the 'ordinary' criminal law system, reliable sources (110) report that up until September 2006, of the 510 defendants, initially indicted for terrorism, only 163 were further charged with the same count, leading to the meagre number of 47 convictions (29 percent). At the same time, only four defendants have been convicted of federal crimes of terrorism per se, while no individuals affiliated with radical Islamic groups have been charged with offences related to the possession of non-conventional weapons. Remarkably, the 510 defendants have been charged with a total of 104 different counts: this reflects the absolute difficulty of coming to a single definition of terrorism ex lege. On the other hand, just the poor performances of the new anti-terrorism legislation led the Canadian Parliament to vote on 27 February 2007 against its renewal. (111)

5. Conclusive Remarks: Finding Peace through (Criminal) Law

It seems rather clear by now that misusing and mixing the categories of war and criminal justice has frustrated all the expected results in succeeding over terrorism. The overlap between the international and domestic level has only led to an ideological representation of reality, which both international and criminal law can hardly order. Such an ideological portray also consists in the product of a culture of communication fostering a climate of fear and uncertainty. (112) Nevertheless, it could be rapidly redrawn if only international terrorism returned as being considered a mere criminal phenomenon, (113) not involving authentic international actors (so far called 'terrorist' tout court), like liberation movements and non state organizations exercising quasi-government powers over large portions of territory.

On the contrary, this revival of the 'law of the enemy' on a global scale may only put at risk the effective contrast of terrorism. Besides, as was authoritatively stated, (114) the criminal law system does not distinguish between friends and enemies, but only between innocent and guilty individuals. The end never justifies the means, since the means, i.e. the rules of criminal procedure, preside over the 'judicial truth' and the freedom of individuals, whereas the end does not mean succeeding at all costs over the enemy, but consists in the same 'judicial truth', which is to be achieved through such rules and may be jeopardized by their neglect.


*. This paper is work-in-progress and cannot be cited without the author's written permission.

**. IMT - Lucca Institute for Advanced Studies, Italy. Notes and comments at: m.tondini@imtlucca.it.

1. C. Schmitt, The Concept of the Political 34 (1996) (Chicago/London: University of Chicago Press). Original title: Begriff des Politischen (1932) (Berlin: Duncker und Humblot).

2. See J. Hall, General Principles of Criminal Law (2nd ed., 2005) (Clark, NJ: The Lawbook Exchange), at 35, 39, 58. For a critical appraisal of such principles in a comparative perspective see P. Westen, 'Two Rules of Legality in Criminal Law', 26(3) Law and Philosophy 229 (2007).

3. 'Hate crimes laws re-criminalize or enhance the punishment of an ordinary crime when the criminal's motive manifests a legislatively designated prejudice like racism or anti-Semitism' (J. B. Jacobs and K. Potter, Hate Crimes: Criminal Law & Identity Politics (1998) (Oxford/New York: Oxford University Press), at 6). A current example is offered by the Racial and Religious Hatred Act 2006, extended to England and Wales, under which the mere incitement is punishable by imprisonment for a term up to seven years (see Public Order Act 1986, sec. 29L, as inserted by the Racial and Religious Hatred Act 2006).

4. On 'symbolic' criminal law see J. C. Müller, 'Die Legitimation des Rechtes durch die Erfindung des symbolischen Rechtes', 25(2) Kriminologisches Journal 82 (1993); J. L. Díez Ripollés, 'El derecho penal simbólico y los efectos de la pena', 35(103) Boletín Mexicano de Derecho Comparado 63 (2002).

5. S. S. Beale, 'Federalizing Hate Crimes: Symbolic Politics, Expressive Law, or Tool for Criminal Enforcement?', 80(5) Boston University Law Review 1227 (2000), at 1249-1250.

6. R. Teitel, 'Transitional Jurisprudence, The role of law in political transformation', 106(7) Yale Law Journal 2009 (1997), at 2036.

7. Traditional Islamic law might be represented as the result of a combination between the religious and the legal phenomenon. In such a holistic context, contravening religious provisions means betraying the ethical deal between the individual and the community of believers. Under this concept, for instance, the felony of apostasy represents a challenge to the social order imposed and legitimised by the religion, and for this reason the apostate is put to death (M. Tondini, 'The Role of Italy in Rebuilding the Judicial System in Afghanistan', 45 (1-2) Revue de droit militaire et de droit de la guerre 79 (2006), at 93).

8. R. Hefendehl, 'Enron, WorldCom, and the Consequences: Business Criminal Law Between Doctrinal Requirements and the Hopes of Crime Policy', 8(1) Buffalo Criminal Law Review 51 (2004), at 61.

9. C. M. R. Casabona, 'Human Biotechnology, Transculturality, Globalization and Symbolic (Criminal) Law', in N. Knoepffler, D. Schipanski and S. L. Sorgner (eds.), Human biotechnology as Social Challenge: An Interdisciplinary Introduction to Bioethics 57 (2007) (Aldershot: Ashgate).

10. M. Delmas-Marty, Towards a Truly Common Law: Europe as a Laboratory for Legal Pluralism (2002) (Cambridge: Cambridge University Press), at 10.

11. European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, art. 15.1.

12. A. Aponte, 'Krieg und Politik - Das politische Feindstrafrecht im Alltag', in 7(8-9) Höchstrichterliche Rechtsprechung Strafrecht 297 (2004), at 300.

13. For a brief account of the use of special criminal legislation in the US, see J. A. E. Vervaele, 'The Anti-Terrorist Legislation in the US: Inter Arma Silent Leges?', 13(2) European Journal of Crime, Criminal Law and Criminal Justice 201 (2005), at 208-210.

14. Ex Parte Quirin, 317 U.S. 1. (1942).

15. In Re Yamashita, 327 U.S. 1 (1946).

16. Ex Parte Milligan, 71 U.S. 2 (1866).

17. Johnson v. Eisentrager, 339 U.S. 763 (1950).

18. Korematsu v. United States, 323 U.S. 214 (1944).

19. N. A. Kacprowski, 'Stacking the Deck Against Suspected Terrorists: The Dwindling Procedural Limits on the Government's Power to Indefinitely Detain United States Citizens as Enemy Combatants', 26(3) Seattle University Law Review 651 (2003), at 656, 662.

20. See M. B. Carroll, 'Legislation on Treatment of Enemy Property', 37(4) American Journal of International Law 611 (1943).

21. M. Kagan, 'Destructive Ambiguity: Enemy Nationals and the Legal Enabling of Ethnic Conflict in the Middle East', 38(2) Columbia Human Rights Law Review 263 (2007), at 275.

22. N. T. Saito, 'Justice Held Hostage: U.S. Disregard for International Law in the World War II Internment of Japanese Peruvians: A Case Study', 40 (1) Boston College Law Review 275 (1998), at 290-297.

23. Aponte, supra note 12, at 299.

24. G. Jakobs, 'Bürgerstrafrecht und Feindstrafrecht', in 5(3) Höchstrichterliche Rechtsprechung Strafrecht 88 (2004); reprinted in 21 Ritsumeikan Law Review 93 (2004). Jakobs' initial work on the concept of the criminal law of the enemy is dated back to 1985 (G. Jakobs, 'Kriminalisierung im Vorfeld einer Rechtsgutverletzung', 97(3) Zeitschrift für die gesamte Strafrechtswissenschaft 751 (1985). Among his most recent contributions on the matter see 'Terroristen als Personen im Recht?', 117(4) Zeitschrift für die gesamte Strafrechtswissenschaft 839 (2005); 'Feindstrafrecht? - Eine Untersuchung zu den Bedingungen von Rechtlichkeit', 7(8-9) Höchstrichterliche Rechtsprechung Strafrecht 289 (2006); with M. Cancio Meliá, Derecho penal del enemigo (2nd ed., 2006) (Madrid: Civitas); 'Diritto penale del nemico? Una analisi sulle condizioni della giuridicità', in A. Gamberini and R. Orlandi (eds.), Delitto politico e diritto penale del nemico 109 (2007) (Bologna: Monduzzi).

25. Tribunal Supremo (Sala de lo Penal) 20 July 2006, Decision No. 829/2006, Case No. 1188/2005.

26. Ibid., para. 6. Author's translation. The original text states: 'que desbordan la idea de ponderación, mesura y límite anudados a la idea de derecho, y más concretamente de derecho penal.'

27. Jakobs, Bürgerstrafrecht, supra note 24, at 90.

28. For a comparative analysis between the rising global civil society and the domestic civil society see B. Bowden 'Civil society, the state and the limits to global civil society', 20(2) Global Society 155 (2006).

29. See on the matter R. Hefendehl, 'Organisierte Kriminalität für ein Feind - oder Täterstrafrecht?', 25(3) Strafverteidiger 156 (2005). See also the House of Lords decision of 16 December 2004 in the case A&X v. Secretary of State for the Home Department, where the Law Lords accept the political nature of the decision on the social dangerousness of individuals, as individuated by the Executive ([2004] UKHL 56, para. 29, reprinted in [2005] Human Rights Law Review 1, at 20).

30. This rationale is also on the basis of Prof. Zolo's criticism of international tribunals and courts: see D. Zolo, 'Peace Through Criminal Law?', 2(3) Journal of International Criminal Justice 727 (2004); Ibid, 'Who is Afraid of Punishing Aggressors?: On the Double-track Approach to International Criminal Justice', 5 Journal of International Criminal Justice (2007) (forthcoming).

31. See on the point e.g. the call for the International Criminal Court to become 'an international forum for the incapacitation of the "enemies of mankind", a sort of sanitary necessity for a more peaceful world' (I. Tallgren, 'The Sensibility and Sense of International Criminal Law', 13(3) European Journal of International Law 561 (2002), at 578).

32. We have already developed the issue of the application of human rights law in times of armed conflict or public emergency in M. Tondini, 'UN Peace Operations: The Last Frontier of the Extraterritorial Application of Human Rights', 44(1-2) Revue de droit militaire et de droit de la guerre 175 (2005), at 179-183.

33. S. Krasmann, 'The Enemy on the Border: Critique of a Programme in Favour of a Preventive State', 9(3) Punishment & Society 301 (2007), at 309.

34. M. Delmas-Marty, 'The Paradigm of the War on Crime: Legitimating Inhuman Treatment?', 5(3) Journal of International Criminal Justice 584 (2007), at 585-586.

35. G. de Vergottini, Guerra e Costituzione. Nuovi conflitti e sfide alla democrazia (2004) (Bologna: Il Mulino), at 99-100.

36. Delmas-Marty, The Paradigm, supra note 34, at 586.

37. This is to paraphrase the text of the US Congress' Authorization for Use of Military Force (S.J. Resolution 23, 18 September 2001, sec. 2(a)), which conferred the war powers to the President. See on the point D. Stoelting, 'Military Commissions and Terrorism', 31(3) Denver Journal of International Law & Policy 427 (2003); C. A. Bradley and J. L. Goldsmith, 'Congressional Authorization and the War on Terrorism', 118(7) Harvard Law Review 2047 (2005).

38. See a contrario the arguments used by the US Supreme Court in the Hamdan case to extend basic humanitarian law guarantees to the prisoners of GWOT (Salim Ahmed Hamdan v. Donald H. Rumsfeld et al., 126 S.Ct. 2749 (2006), para. IV(d)(ii), at 2756-7).

39. See on the matter P. Gaeta, 'May Necessity Be Available as a Defence for Torture in the Interrogation of Suspected Terrorists?', 2(3) Journal of International Criminal Justice 785 (2004); T. Thienel, 'The Admissibility of Evidence Obtained by Torture Under International Law', 17(2) European Journal of International Law 349 (2006).

40. See on the point the recent reports on the 'extraordinary renditions' of terrorist suspects, issued by the Council of Europe and the European Parliament respectively (See CoE Parliamentary Assembly, Secret Detentions and Illegal Transfers of Detainees Involving Council of Europe Member States: Second Report, Doc. 11302 rev., 11 June 2007; European Parliament - Temporary Committee on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners, Report on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners, Doc. A6-9999/2007, 26 January 2007). Among the literature on the matter see D. Weissbrodt and A. Bergquist, 'Extraordinary Rendition: A Human Rights Analysis', 19 Harvard Human Rights Journal 123 (2006); John T. Parry, 'The Shape of Modern Torture: Extraordinary Rendition and Ghost Detainees', 6(2) Melbourne Journal of International Law 516 (2005); M. L. Satterthwaite, 'Rendered Meaningless: Extraordinary Rendition and the Rule of Law', 75 George Washington Law Review (2007) (forthcoming).

41. T. Yin, 'Ending the War on Terrorism One Terrorist at a Time: A Noncriminal Detention Model for Holding and Releasing Guantanamo Bay Detainees', 29(1) Harvard Journal of Law & Public Policy 149 (2006), at 182.

42. The debate is summarised in M. E. O'Connell, 'Enhancing the Status of Non-State Actors Through a Global War on Terror?', 43(2) Columbia Journal of Transnational Law 435 (2005), at 453-455.

43. N. T. Saito, 'Beyond the Citizen/Alien Dichotomy: Liberty, Security, and the Exercise of Plenary Power', 14(2) Temple Political & Civil Rights Law Review 389 (2005), at 390.

44. In the US, this approach began in the 'nineties, through the approval of the Antiterrorism and Effective Death Penalty Act of 1996 (P.L. No. 104-132), sec. 411-443, followed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (P.L. No. 104-208), sec. 501-507. Concerning the UK, see the role of the Special Immigration Appeals Commission (SIAC) as judge of appeal in special terrorism trials under sec. 25-27 of the ATCSA.

45. A. Faiola and S. Mufson, 'N.Y. Airport Target of Plot, Officials Say', Washington Post, 3 June 2007, at A01.

46. A&X v. Secretary of State for the Home Department, supra note 29, para. 68, at 44. See on the case S. Shah, 'The UK's Anti-Terror Legislation and the House of Lords: The First Skirmish', 5(2) Human Rights Law Review 403 (2005).

47. The National Security Strategy of the United States of America, Washington DC, September 2002. This document has been recently replaced by the National Security Strategy 2006 (The White House, National Security Strategy of the United States of America, Washington, DC, March 2006).

48. Since 2001, the US adopted several anti-terrorist statutes, which have progressively shaped a renewed and special criminal law system serving as a legal point of reference for the GWOT. The most important may be considered the USA Patriot Act (P.L. No. 107-56), the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) (P.L. No. 108-408), the Detainee Treatment Act 2005 (DTA) (included in the Department of Defense Appropriations Act 2006, P.L. No. 109-148), the USA Patriot Improvement and Reauthorization Act of 2005 (Patriot Act II, P.L. No. 109-177) and the Military Commissions Act of 2006 (P.L. No. 109-366). Among the Presidential Orders may be mentioned the Military Order of 13 November 2001 (Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism) and the Executive Order 13425 of 14 February 2007 (Trial of Alien Unlawful Enemy Combatants by Military Commission).

49. Vervaele, supra note 13, at 252.

50. See on the point A. Burke, 'Just War or Ethical Peace? Moral Discourses of Strategic Violence After 9/11', 80(2) International Affairs 329 (2004), esp. at 349-350.

51. D. Zolo, 'Back to the Nuremberg Paradigm?', 2(2) Journal of International Criminal Justice 313 (2004), at 318.

52. See e.g. UN Doc. S/RES/1267 (1999), 15 October 1999, para. 4.

53. One might refer to the President Bush's famous statement of 20 September 2001: 'Every nation, in every region, now has a decision to make. Either you are with us, or you are with the terrorists' (Address to a Joint Session of Congress and the American People, Washington, D.C.). However, the same statement had been made a few days before by Sen. Hillary Clinton: 'Every nation has to either be with us or against us. Those who harbour terrorists or who finance them are going to pay a price' (New York, 13 September 2001).

54. Vervaele, supra note 13, at 235.

55. The UK adopted the Anti-Terrorism, Crime and Security Act 2001 (ATCSA), the Prevention of Terrorism Act 2005 (PTA), the Racial and Religious Hatred Act 2006, the Terrorism Act 2006, the Immigration, Asylum and Nationality Act 2006 and the Police and Justice Act 2006; Italy passed the Law No. 431 of 14 December 2001, the Law No. 438 of 15 December 2001 and the Law No. 155 of 1 August 2005; Germany issued the Terrorismusbekämpfungsgesetz of 9 January 2002, the Luftsicherheitsgesetz of 14 January 2005 and the Supplement of the Terrorismusbekämpfungsgesetz of 5 January 2007, together with some amendments to the Federal Constitution (Constitutional Reform of 28 August 2006); Canada adopted the Anti-Terrorism Act 2001, the Immigration and Refugee Protection Act 2001 (IRPA) and the Public Safety Act 2002; France passed the Loi relative à la sécurité quotidienne (No. 2001-1062), the Loi du 18 mars 2003 pour la sécurité intérieure (No. 2003-239), the Loi portant adaptation de la justice aux évolutions de la criminalité or Loi Perben (No. 2004-204), the Loi relative à la lutte contre le terrorisme et portant dispositions diverses relatives à la sécurité et aux contrôles frontaliers (No. 2006-64).

56. See on the matter the Council of Europe and the European Parliament reports, quoted supra note 40. As for Italy, see the Abu-Omar case, concerning the kidnapping of an imam in Milan by CIA agents, with the support of Italian secret service officials. See on the case D. L. Altheide, 'The Mass Media, Crime and Terrorism', 4(5) Journal of International Criminal Justice 982 (2006), at 985-986; V. Patané, 'Recent Italian Efforts to Respond to Terrorism at the Legislative Level', 4(5) Journal of International Criminal Justice 1166 (2006), at 1168 (note 5).

57. As for the UK, see the control orders issued by the Secretary of State for the Home Department on the basis of sec. 1 et seq. of the PTA, as well as the interception warrants provided by sec. 32 of the Terrorism Act 2006. Concerning Italy, see the 'preventive' wiretapping powers, as well as the provisional arrest powers contained in the Law No. 155/2005 (art. 4 and art. 13, respectively). Moreover, see the 'investigative hearings' inserted by the Anti-Terrorism Act 2001 into art. 83.28 et seq. of the Canadian criminal code.

58. See Canada: IRPA, art. 44 et seq.; UK: ATCSA, sec. 22; Italy: Law No. 155/2005, art. 3.

59. See IRPA, art. 55 et seq. and art. 83.3(4) of the Canadian criminal code, concerning the arrest without warrant (as provided by the Anti-Terrorism Act 2001). See also ATCSA, sec. 21 et seq. (part IV) and the Terrorism Act 2006, sec. 23-25.

60. Concerning France, see Law No. 2001-1062, art. 33: as for Italy, see Law No. 438/2001, art. 1 and Law No. 155/2005, art. 15 (which amends art. 270 bis and inserts articles 270 ter-sexies into the criminal code).

61. With regard to the UK, see Terrorism Act 2000, sec. 3; ATCSA, sec. 21; Terrorism Act 2006, sec. 21-22. As for the US, see the Executive Order 13224, issued by the President of the United States on the basis, inter alia, of the International Emergency Economic Powers Act (IEEPA - 50 U.S.C. § 1701) and the National Emergencies Act (50 U.S.C. § 1601).

62. See the '1267 list', so-called because of the number of the Security Council Resolution establishing it (UN Doc. S/RES/1267 (1999), 15 October 1999). The list currently includes 362 individuals and 125 companies or organisations. On the other hand, the Security Council Resolution 1373 (UN Doc. S/RES/1373 (2001), 28 September 2001) provides for a general obligation to freeze assets and economic resources of persons and entities suspected of terrorist activities. Unlike resolution 1267 (which concerns exclusively the Taliban, al-Qaeda, as well as persons and groups associated with them), Res. 1373 does not require the Security Council to establish a list. It rather asks member states to take their own actions to freeze assets and economic resources of terrorists groups.

63. As for the implementation of the SC Res. 1373 (2001) within the EU territory, see the Common Position 2001/931/CFSP on the application of specific measures to combat terrorism (OJ 2001 L 344, at 93, lastly amended by Common Position 2007/448/CFSP - OJ 2007 L 169, at 69) as well as the Council Regulation (EC) No. 2580/2001 and the Council Decision 2001/927/EC on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2001 L 344, at 70 and 83), amended at last by Council Decision 2007/445/EC (OJ 2007 L. 169, at 58). The text of the SC Res. 1267 (1999), as progressively amended by Resolutions 1333 (2000), 1390 (2002), 1452 (2002), 1455 (2003), 1526 (2004), 1617 (2005), 1735 (2006) included a blacklist which has been implemented within the EU by a number of Common Positions and Regulations, taking into account further amendments of the list. They include, inter alia, Common Positions 1999/727/CFSP (OJ 1999 L 294, at 1) and 2002/402/CFSP (OJ 2002 L 139, at 4), as lastly amended by Common Position 2003/140/CFSP (OJ 2003 L 35, at 62), as well as Council Regulation (EC) No. 881/2002 (OJ 2002 L 139, at 9), amended at last by Commission Regulation (EC) No. 1025/2007 (OJ 2007 L 231, at 4). See on the topic I. Cameron, 'European Union Anti-Terrorist Blacklisting', 3(2) Human Rights Law Review 225 (2003), at 227-228, and generally T. Andersson, I. Cameron and K. Nordback, 'EU Blacklisting: The Renaissance of Imperial Power, but on a Global Scale', 14(2) European Business Law Review 111 (2003).

64. F. Davis, 'The Fight Against global Terrorism - How Can the Law Respond to "New" Terrorism?', in D. Lewis (ed.), Global Governance and the Quest for Justice 21 (2006) (Oxford/Portland: Hart Publishing), at 31-32.

65. See for instance the amendment powers granted to the Secretary of State for the Home Department under the Terrorism Act 2006, sec. 22.

66. See the famous statement by judge O'Connor in the Hamdi case, decided by the Supreme Court: 'A state of war is not a blank check for the President when it comes to the rights of the Nation's citizens' (542 U.S. 507, at 536). Concerning Italy, see Corte di Cassazione, Sez. I pen., 19 September 2006, Decision No. 30824 (reprinted in [2006] Diritto e giustizia 82) and Sez. I pen., 17 January 2007, No. 1072, on the prohibition for the judge to consider the sole inscription of individuals or organisations in a blacklist as the legal proof of their guilt.

67. Delmas-Marty, The Paradigm, supra note 34, at 594.

68. N. T. Saito, 'Symbolism Under Siege: Japanese American Redress and the "Racing" of Arab Americans as "Terrorists"', 8(1) Asian Law Journal 1 (2001), at 17.

69. For the use of classified evidence in US terrorism trials (before the adoption of the MCA 2006) see Vervaele, supra note 13, at 239-240.

70. J. M. Beard, 'The Geneva Boomerang: The Military Commissions Act of 2006 and U.S. Counterterror Operations', 101(1) American Journal of International Law 56 (2007), at 58. The MCA prevents military commissions from considering testimony obtained through interrogation methods that amount to cruel, inhuman, or degrading treatment. However, such prohibition is limited to acts performed after the adoption of the Detainee Treatment Act of 2005 (P. L. No. 109-148), namely 30 December 2005 (MCA, sec. 3; 10 U.S.C. § 948r (d)). As for other evidence collected through coercive interrogation methods that fall short of cruel, inhuman, or degrading treatment, their use in criminal proceedings is still allowed. Moreover, under Section 6(a) of the MCA the US President retains the power 'to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.' (see note 20). Eventually, on 20 July 2007 the US President issued a new Executive Order on the Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency.

71. A and Others v. Secretary of State for the Home Department, [2005] UKHL 71, paras 51-52 (per Lord Bingham of Cornhill), paras 70-79 (per Lord Nicholls of Birkenhead); paras 86-97 (per Lord Hoffmann); paras 110-114 (per Lord Hope of Craighead), paras 137-138 (per Lord Rodger of Earlsferry); paras 148-150 (per Lord Carswell), paras 164-165 (per Lord Brown of Eaton-under-Heywood), reprinted in [2006] Human Rights Law Review 6, at 119). See on the point T. Thienel, 'The Admissibility of Evidence Obtained by Torture Under International Law', 17(2) European Journal of International Law 349 (2006), at 350. Remarkably, the Law Lords' decision provides that the information gathered through torture or cruel, inhuman, or degrading treatment may be lawfully collected by the Government.

72. G. P. Fletcher, 'The Indefinable Concept of Terrorism', 4(5) Journal of International Criminal Justice 894 (2006), at 895.

73. As was argued by Kenneth Anderson, 'the determination that someone is an enemy of the United States, and therefore subject to this forum for trying their alleged criminality - is a political, not a judicial, decision. Judges determine who is guilty of a crime. Political authorities determine the identity of our nation's enemies.' (K. Anderson, 'What to do with Bin Laden and Al Qaeda Terrorists?: A Qualified Defense of Military Commissions and United States Policy on Detainees at Guantanamo Bay Naval Base', 25(2) Harvard Journal of Law & Public Policy 591 (2002), at 634).

74. Schmitt, supra note 1, at 33.

75. A. Fichtelberg, 'Conspiracy And International Criminal Justice', 17(2) Criminal Law Forum 149 (2006), at 160-161. For a definition of the crime of conspiracy in common law systems see J. R. Acker, W. A. Logan and D. C. Brody, Criminal Law 570 (2001) (Gaithersburg, MA: Aspen Publishers).

76. See Hamdan, supra note 38, at 2785.

77. See 10 U.S.C. § 950v (b) (28).

78. See on the point Beard, supra note 70, at 60-61.

79. L. Ferrajoli, 'Il "diritto penale del nemico" e la dissoluzione del diritto penale', 2006(4) Questione giustizia 797, at 811.

80. A. M. Slaughter, 'Beware the Trumpets of War: A Response to Kenneth Anderson', 25(3) Harvard Journal of Law & Public Policy 965 (2002), at 972.

81. We have already attempted to give a preliminary assessment on the failures of GWOT in M. Tondini, 'Il diritto del nemico. Se la guerra diventa ideologia', 2007(1) Diritto pubblico comparato ed europeo 244.

82. At the time of writing, there is clear evidence of a tremendous increase in terrorist attacks worldwide. Among independent reports see P. Bergen and P. Cruickshank, 'The Iraq Effect: The War in Iraq and its Impact on the War on Terrorism', NYU School of Law - Center on Law and Security, February 2007. According to the report, 'globally there was a 607 percent rise in the average yearly incidence of attacks [...] and a 237 percent rise in the average fatality rate.' Even excluding terrorist attacks that occurred in both Afghanistan and Iraq, 'there has still been a significant rise in jihadist terrorism elsewhere - a 35 percent increase in the number of jihadist terrorist attacks outside of Afghanistan and Iraq, from 27.6 to 37 a year, with a 12 percent rise in fatalities from 496 to 554 per year' (p. 2). On the other hand, we know that the same US authorities are aware of the phenomenon. Initial attempts to forge data on global terrorism (see B. Krueger and D. D. Laitin, '"Misunderestimating" Terrorism', 83(5) Foreign Affairs 8 (2004)) further led the US Department of State to abort the publication of the 'Patterns of Global Terrorism' annual reports, replaced by the 'Country Reports on Terrorism'. Nevertheless, according to the 2006 Report:

'Approximately 14,000 terrorist attacks occurred in various countries during 2006, resulting in over 20,000 deaths. Compared to 2005, attacks rose by 3,000, a 25 percent increase in 2006 while deaths rose by 5,800, a 40 percent increase. [...] Of the 14,000 reported attacks, 45 percent - about 6600 - of them occurred in Iraq where approximately 13,000 fatalities - 65 percent of the worldwide total - were reported for 2006. Violence against non-combatants in eastern and sub-Saharan Africa [...] rose 65 percent in 2006, rising to 420 from the approximately 253 attacks reported for 2005. The 749 attacks in Afghanistan during 2006 are over 50 percent more than the 491 attacks reported for 2005 as fighting intensified during the past year.' (see National Counterterrorism Center: Annex of Statistical Information).

83. Data on worldwide increasing anti-Americanism are reported in Pew Research Center, Trends 2005, Washington, DC, 2005, at 105. In 2004, a survey conducted in Saudi Arabia, Egypt, Jordan, Lebanon, Morocco and the United Arab Emirates revealed an impressive anti-Americanism resentment, fuelled by the war in Iraq (see D. Linzer, 'Poll Shows Growing Arab Rancor at U.S.', Washington Post, 23 July 2004, at A26).

84. Canada offers a remarkable example of such protective trend. See on the point the decisions of the Supreme Court of Canada in Suresh v. Canada, 11 January 2002 [2002] S.C.C. 1 (on the definition of the crime of terrorism); R. v. Mentuck, 15 November 2001, [2001] S.C.C. 76 (on the obligation for the police to disclose its operational techniques); Vancouver Sun (Re), 23 June 2004, [2004] S.C.C. 43 (on the open court principle); Application under s. 83.28 of the Criminal Code (Re), 23 June 2004, [2004] S.C.C. 42 (exhorting federal courts to cautiously apply the new anti-terrorism legislation); Charkaoui v. Canada, 23 February 2007, [2007] S.C.C. 9 (on the unconstitutionality of the so-called 'security certificates', on the basis of which a foreign national could be arrested pending deportation).

85. G. Jones, 'Averting Failure in Afghanistan', 48(1) Survival 111 (2006), at 116.

86. T. Dodge, 'The Causes of US Failure in Iraq', 49(1) Survival 85 (2007), at 89. See also on the point K. M. Pollack, 'The Seven Deadly Sins of Failure in Iraq: A Retrospective Analysis of the Reconstruction', 10(4) Middle East Review of International Affairs 1 (2006).

87. See the Iraq Body Count database.

88. See the Iraq Coalition Casualty Count database.

89. M. Greenwell, '3 Secular Iraqis in Cabinet to Formally Resign', Washington Post, 25 August 2007, at A12.

90. See Dodge, supra note 86, at 85.

91. B. R. Rubin and H. Hamidzada, 'From Bonn to London: Governance Challenges and the Future of Statebuilding in Afghanistan', 14(1) International Peacekeeping 8 (2007), at 16.

92. J. Goodhand, 'Afghanistan in Central Asia', in M. C. Pugh, N. Cooper and J. Goodhand, War Economies in a Regional Context: Challenges of Transformation 45 (2004) (Boulder, CO: Lynne Rienner), at 76.

93. See Organisation des Modjahedines du peuple d'Iran v. Council of the European Union, Case No. T-228/02, 12 December 2006 (hereafter OMPI); Sison v. Council of the European Union and Stichting Al-Aqsa v. Council of the European Union, Cases No. T-47/03 and T-327/03, 11 July 2007 (hereafter Al-Aqsa), The Court of Justice of the European Communities.

94. OMPI, paras 108-110; Al-Aqsa, paras 155-157.

95. OMPI, para. 172; Al-Aqsa, para. 242.

96. As for the differences between the obligations imposed on UN member states by SC Res. 1267 (1999) and SC Res. 1373 (2002), see supra note 62.

97. OMPI, para. 100; Yusuf v. Council of the European Union, Case No. T-306/01, 21 September 2005, para. 328; Kadi v. Council of the European Union, Case No. T-315/01, 21 September 2005, para. 258; Ayadi v. Council of the European Union, Case No. T-253/02, 12 June 2006, para. 116; Hassan v. Council of the European Union, Case No. T-49/04, 12 July 2006, para. 92, The Court of Justice of the European Communities.

98. A More Secure World: Our Shared Responsibility, Report of the High-Level Panel on Threats, Challenges and Change, UN Doc. A/59/565, 2 December 2004, para. 152.

99. CoE Parliamentary Assembly - Committee on Legal Affairs and Human Rights, UN Security Council black lists, AS/Jur (2007) 14, 19 March 2007, para. 16.

100. See the cases listed supra note 66. In a motion to dismiss, issued in a case concerning the freezing of funds belonging to two bankers whose names were included in the '1267 list', three magistrates of the Procura della Repubblica in Milan stated that blacklists are the product of 'decisions adopted exclusively on the basis of suspects and subsequent political choices, although taken by qualified international institutions' (L. Ferrarella, '"Solo politica": i pm bocciano le "black list" di ONU e UE', Corriere della Sera, 24 July 2007, at 17. Author's translation).

101. I. Wilkinson, N. Britten and J. Steele, 'Fugitive Briton arrested in Pakistan over jet bomb plot', Telegraph, 12 August 2006.

102. See supra note 55.

103. Ministero dell'Interno, Rapporto sullo stato della sicurezza in Italia, August 2005, at 60.

104. C. Bonini and G. D'Avanzo, Il mercato della paura: La guerra al terrorismo islamico nel grande inganno italiano 47 (2006) (Torino: Einaudi).

105. P. Biondani and L. Ferrarella, 'Arrestati in 180, solo una condanna per la Jihad', Corriere della Sera, 2 February 2005, at 5.

106. D. Stasio, '"Già 78 condanne per terrorismo islamico"', Sole 24 ore, 18 October 2006, at 13.

107. Ministero dell'Interno, Rapporto sulla criminalità in Italia, 20 June 2007, at 392.

108. This is the case of the Australian David Hicks, who was captured in Afghanistan and sentenced to nine months in jail, to be served in Australia. Remarkably, contrary to his earlier allegations, in the plea deal Hicks declared he had not been treated illegally by US officials.

109. United States of America v. Omar Ahmed Khadr, Order on Jurisdiction, 4 June 2007; United States of America v. Salim Ahmed Hamdan, Decision and Order - Motion to Dismiss for Lack of Jurisdiction, 4 June 2007.

110. New York University School of Law, Center on Law and Security, Terrorist Trial Report Card: U.S. Edition.

111. R. Gillies, 'Canada's House Scraps Terrorism Measures', Washington Post, 28 February, 2007.

112. See gen. G. Mythen and S. Walklate, 'Communicating the Terrorist Risk: Harnessing a Culture of Fear?', 2(2) Crime, Media, Culture 123 (2006). Concerning the way communication spreads a culture of fear and enmity, see the results of the recent report of the Pew Research Center on global trends (Pew Research Center, Global Opinion Trends 2002-2007, 24 July 2007. According to the report, only 5 percent of US citizens nowadays name Al-Qaeda among the greatest threats to the US, while 44 percent say Iran presents a major threat to their country (at 47-48). This might be the result of the ongoing anti-Iran political campaign launched by the US Administration and echoed by the media.

113. See Slaughter, supra note 80, at 971; O'Connell, supra note 42, at 456-457.

114. Ferrajoli, supra note 79, at 812.