German Perspectives on the Right to Life and Human Dignity in the 'War on Terror'

Abstract

The purpose of this article is to examine, from a comparative perspective, how security concerns have limited three distinct human rights in Germany and Australia: the right to a fair trial, the right to life and the right to human dignity. Since human rights are rarely absolute, the war on terror has required legislatures and courts to determine the reasonable limits and qualifications to these rights. The German approach diverges from Australia in relation to the paramount constitutional status of the right to human dignity. Consequently, this German hierarchy of rights produces different outcomes in relation to the range and scope of permissible counter-terrorism measures. This is apparent in the ruling of the German Constitutional Court which declared void legislative powers authorizing the use of lethal force against hijacked aircraft. Similar powers inserted into the Defence Act 1903 (Cth) would not be amenable to similar challenge on grounds that they violate the right to human dignity. Notwithstanding these legal differences, the German authorities have sought to overcome these constitutional inhibitions by resort to untested doctrines such as the suprastatutory state of emergency, suggesting the difference between the two systems is not as marked as it first appears.