Senior judicial figures have also acknowledged the importance of human rights values in combating terrorism. For example, US Supreme Court Justice Sandra Day O’Connor, commented in 2004: It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.10 In 2002, the Council of Europe Secretary General, Walter Schwimmer, pointed out: The temptation for governments and parliaments in countries suffering from terrorist action is to fight fire with fire, setting aside the legal safeguards that exist in a democratic state. But let us be clear about this: while the State has the right to employ its full arsenal of legal weapons to repress and prevent terrorist activities, it may not use indiscriminate measures which would only undermine the fundamental values they seek to protect. For a State to react in such a way would be to fall into the trap set by terrorism for democracy and the rule of law. It is precisely in situations of crisis, such as those brought about by terrorism, that respect for human rights is even more important and that even greater vigilance is called for.11 What is terrorism? Although the international community has adopted a number of international treaties that are designed to combat specific types of terrorism, such as the hijacking of aircraft, at the UN level to date there has been no agreement on a definition of terrorism.12 There is no settled definition of terrorism in international law, despite many attempts to achieve one by intergovernmental organizations, governments, and academics.13 One International Court of Justice judge has observed, “terrorism is a term without any legal significance. It is merely a convenient way of alluding to activities, whether of States or individuals, widely disapproved of and in which either the methods used are unlawful, or the targets protected, or both.”14 However, as such, much is at stake in the definition of terrorism.15 To call an act terrorism is to assert not just that it possesses certain characteristics, but that it is wrong. To define an act as a terrorist act also has significant consequences with regard to co-operation between states, such as intelligence sharing, mutual legal assistance, asset freezing and confiscation and extradition. 10 US Supreme Court, Hamdi v. Rumsfeld, (03-6696) 542 U.S. 507 (2004), Opinion of O’Connor, J. also at http://www. supremecourtus.gov/opinions/03pdf/03-6696.pdf. 11 Preface to the CoE Guidelines on human rights and the fight against terrorism, (Council of Europe Publishing, Strasbourg, June 2004). 12 The Rome Statute of the International Criminal Court does not contain express reference to acts of terrorism, despite a number of proposals in earlier drafts. However the Statute does apply to and define a number of crimes including crimes against humanity and other offences that can include acts of terrorism. Terrorist acts can, in certain circumstances, constitute crimes against humanity. For details and further references, see A. Cassese, International criminal law (Oxford, 2003), pp. 120-132. 13 Although see the core elements agreed in the Declaration on Measures to Eliminate International Terrorism, in the annex to UN General Assembly Resolution A/RES/49/60, 9 December 1994. The Declaration states (para. 3) that terrorism includes “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes.” 14 R. Higgins, The general international law of terrorism, in R Higgins, M. Flory, (Eds.), Terrorism and international law (London, 1997), p. 24. 15 S. Marks, A. Clapham, International Human Rights Lexicon (Oxford, 2005), p. 345. 22 Countering Terrorism, Protecting Human Rights