34 Report of the Eminent Jurists Panel on terrorism, counter-terrorism and human rights • the dangers of combating an ideology rather than clearly prescribed criminalised behaviour; and, it illustrates; • how easily human rights protections can become subordinated to an allencompassing notion of national security. People may disagree about the short-term consequences of the “dirty war” in Argentina; presumably there are still military personnel or others who believe that such a response was necessary at the time. In the long term, however, this sad period of history has left a legacy of thousands of victims, many of whom continue to fight against impunity; it has entailed a long struggle to re-establish the rule of law; and it has left serious societal divisions. 3.2 Military and special courts The militarised response to terrorism in the past has led to the adoption of parallel justice systems – for example, the creation of military or special courts to try those accused of terrorist offences. In most instances, this approach led to serious violations of the right to a fair trial, and departed from accepted legal procedures and safeguards. Typically, such courts lacked independence and impartiality, as well as exhibiting other shortcomings, such as limits on access to lawyers and witnesses.41 The long-standing State security and military courts in many countries of the Middle East illustrate the problems special courts can create.42 The State Security Court in Turkey (abolished in May 2004) also had many procedural shortcomings criticised in various rulings of the European Court of Human Rights, most notably in the case of Abdullah Öcalan, the leader of the Kurdistan Workers Party (PKK).43 As their name suggests, such courts tend to see their role as enforcing “State security” rather than adjudicating impartially between State and citizens. In many countries, pre-existing regimes of martial law, or states of siege, provided for the trial of civilians by military courts. In other countries, emergency laws transferred jurisdiction to try certain terrorist or subversive offences from civilian to military courts. In yet other countries, to allow for looser evidentiary rules and the curtailing of defence rights, the laws established specialised civilian or ad hoc courts to try suspected “subversives”. The case of Peru is an interesting case-study of turning the court system into an arm of a repressive State. President Alberto Fujimori instituted a “self-coup” in 1992 and governed with military support. Anti-terrorism decrees were issued and in military courts (prosecuting crimes such as “treason against the fatherland” – i.e., an aggravated form of terrorism), and civilian courts (prosecuting the offence of terrorism), judges, prosecutors and witnesses were “faceless,” and could be heard only via a 41 International Commission of Jurists, States of Emergency: Their Impact on Human Rights, Geneva, 1983. 42 See summary of the EJP Middle East Hearing. 43 ECtHR, Grand Chamber Judgment of 12 May 2005, Öcalan v. Turkey, Application No. 46221/99.