Abstract

The primary unyielding endeavour of this paper, as shall be seen, was to bring together two complementary lenses on how democracies confront terrorism: on one hand the law’s restraints and on the other, the imperatives of state security. On the legal side, we see that Hamdan v Rumsfeld (2006) forced a sober reckoning in the United States about military commissions and Guantánamo: the Supreme Court made plain that even those accused of membership of al-Qaeda remain entitled to the basic guarantees of the rule of law and to minimum standards of international humanitarian law. On the security side, we shall see that the 26/11 Mumbai attacks — a coordinated three-day onslaught that scarred India’s civic life and tested its sovereignty — demonstrate the devastation that non-state actors can wreak on open societies. The trial of Ajmal Kasab, the single surviving attacker, crystallised a difficult question for policy and law alike: when do acts of terrorism amount to a form of warfare against the state, and what punitive and preventative measures are proportionate and effective? Taken together, these cases expose a stark dilemma for democracies: how to keep people safe and deliver justice without ever legitimising those who traffic in violence. We, irrevocably and irreplaceably contend that abandoning legal safeguards or bowing to coercion are both false choices — neither secures the public in the long run. Lasting security, in our view, rests on three pillars: a disciplined legal architecture that yields defensible verdicts, decisive and proportionate state action to prevent further harm, and an unambiguous refusal to recognise or reward those who target the innocent.

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