ISIS: A Constitutional Challenge?

The BBC continues to focus on the developing influence of extremism into the traditional Western lifestyle. However, there has been little or no discussion of the legal-political response to the challenges that facing terrorism brings. Terrorism was originally a tool of the State. During the 1793-4 Reign of Terror in the post-Revolutionary France of the 18th century, terror was used as a method of ensuring a political end. Much has changed in the way that we conceive terrorism. Primarily it is used by non-State actors. On the other hand, the fundamental political drive of terrorists seems to remain true. It remains a political object, even where it is founded on religion. This highlights the problem. Something which is, at heart, political, is difficult to combat because it necessarily interacts with freedom of religion and freedom of speech (two separate rights under the European Convention on Human Rights, arts. 9 and 10 respectively). There are two options open to States: either to qualify human rights, or to disapprove of the method of expression of human rights in a particular way. In fact, this distinction seems arbitrary, because in regulating how human rights need to be expressed, it seems that they are being qualified through the back door. To fight terrorism, Western States must bite the bullet of constitutional change and be ready to qualify human rights.

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