A recent op-ed in the Wall Street Journal, titled, “Europe to Terrorists: It’s No More Monsieur Nice Guy,” praised the robustness of the recent European approach to counterterrorism, outlining how tactics that would have been politically inconceivable a few years ago are now being implemented. Of this new approach, the author, Thomas Hegghammer, writes,
We should not exaggerate its repressive character. Torture and other egregious practices aren’t on the table, and the hard measures have been accompanied by many soft programs to prevent and mitigate violent extremism.
While European governments deserve credit for taking steps to keep their populations secure, the piece overlooks a crucial and deleterious effect of European regional and national counterterrorism strategies. In their counter-terrorism approaches, European governments are on a fast-track to eroding civil liberties and human rights over the long term.
In this analysis, “soft” and “hard” approaches to countering terrorism are not useful binaries to work with conceptually or practically. Hard measures, which include strong criminal justice responses (deprivations of liberty, strict liability and extended sentences) but also reach to cover illegal and illegitimate means to counter-terrorism (e.g. torture, rendition, extra-judicial execution), have garnered highly negative responses for countries, including the United States, and in general, countries now avoid claiming that such measures are in common use, or lawful. This is not to say that “hard” CT measures are no longer deployed, but rather that countries have moved away from publicly endorsing them.
Instead, as exemplified by what one might call a European approach to counterterrorism, a multitude of strategies, mechanisms and legal tactics are being used today to address the terrorism challenges on the continent and beyond. On their face, these measures appear less threatening to human rights, less corrosive to the rule of law, broadly sympathetic to civil society engagement, aware of community sensitivities, and unlikely to garner serious human rights challenges. But, that broad brush does not take into account the cumulative effect of sustained degrading of human rights norms as produced by the new regulatory matrix. And, it fails to pull together the collective effect that the many measures that regulate terrorism (including freedom of movement, assembly, freedom of expression, privacy) have when operating in tandem. More than that, the drip-drip effect of building a complex counterterrorism architecture at the regional and national level is under-appreciated. The lack of a full-scale, once-off assault on human rights and civil liberties has inured many to the collective effects of pedantic but consistent limitations on the protection of rights, all in the name of advancing security. The costs of the slow decline in human rights protection are substantive and consequential.
A couple of illustrations to underscore the challenge:
The European Union’s counterterrorism directive, which was adopted in March 2017, emerged from a highly attenuated legislative process in which many of the usual process requirements were fast-tracked or differentially implemented. As is often the case, the imperative necessity of security was used to justify the abandonment of regular regulatory process, including the checks and balances intended to encourage the integration of democratic, transparent and human rights-compliant outcomes. The E.U. directive on terrorism has shaped national policies in ways that have essentially created a “one-size-fits-all” solution, shaped by U.N. Security Council mandates, often with limited regard to the downstream consequences of regulation. Multiple NGOs have warned that the overly broad language of the E.U. directive could lead to criminalizing public protests and other peaceful acts, the suppression of freedom of expression, including of dissenting political views. There is also a real risk that, at the national level, the directive will be applied and implemented in a way that discriminates against vulnerable and marginalized ethnic and religious communities.
In terms of “soft” approaches, data collection has become a frontline activity for European countries. This includes traditionally conceived national security collection as augmented by technology enablers and expanded legal powers. In parallel, via policies of countering and preventing violent extremism, data collection by local bodies including educational, health, youth other community focal points has become the frontline of information gathering for states. Sharing of and access to data across the panoply of security services, police, military, local authorities and numerous agencies is gathering pace in multiple countries with unmistakable effects on the protection of rights and the rule of law. Data collection, retention, sharing and analysis might appear innocuous on its face, but its recent expansion opens up a myriad of rights-related concerns. In many countries, where data collection is primarily undertaken by intelligence services, and oversight is limited or absent. Despite privacy protections afforded by the GDPR/police directive, there is insufficient oversight as data used in national security contexts is largely exempted from both.
So, privacy and protection of data is under-regulated, and the basis upon which data is shared — both within a government and also with foreign partners — has consistently lacked the necessary appreciation for the rights of the individuals on whom data is held. Bearing in mind, in the terrorism context, that data collection often catches a wide swathe of persons, including family members, members of religious communities (mosques primarily), and community associations. Its scope is wide, far-reaching and legally consequential. Data collection is not static and the real-life consequences are many, including surveillance (often unknown to the subject), employment and labor implications, limitations or restrictions on travel, and scrutiny or freezing of access to funds for individuals and families. Few positive and human rights-compliant practices exist to remove individuals from terrorism databases, thereby creating the possibility of life-long suspicion lingering in a highly consequential regulatory space. If data collection is a ‘soft’ approach it is neither harmless nor cost-free for individuals.
Another prong of regulation has been the pursuit of the strict liability model for certain activities deemed criminal through national and supranational regulation. Some European countries have taken the uncompromising position that all foreign-fighters returnees will be subject to criminal charges, detention and trial once back in their home territory. Belgium provides an example of this strict liability model. Individuals are generally charged for travel to join a proscribed organization or for membership of a defined terrorist organization. In parallel, family members are being prosecuted including for example in helping foreign fighters return to their country of nationality (an absolute right on Protocol 4 of the ECHR). In recent times, incarceration periods were short, but this is changing. Some European countries have moved to maximum incarceration periods for persons identified in the categories of travel or membership.
Suffice to say that a number of civil liberties and human rights consequences follow. There would appear to be significant proportionality issues from undeniably harsh penal practices in a world where any offense related to terrorism attracts sizable penal consequences. There is a danger that punishment may not commensurate not only with the crime, but also with the individual’s role in the relevant criminal offense. This may exclude capacity to address the diverse profiles of foreign fighters, including vulnerability on account of age, gender, mental health or intellectual ability, as well as a range of familial or social circumstances that led to travel to join a particular group and engage in violence. Moreover, the possibilities of rehabilitation and reintegration of foreign fighters is virtually meaningless in this model, despite the rhetoric of countries about the value of such policies. In effectiveness terms, the containment and management of prison populations becomes more challenging, as does any meaningful attempt to address de-radicalization in a prison setting. Again, the notion that these constitute “soft” responses is belied by the scale of incarceration combined with the cumulative effect of other measures on the same group of people.
Another clear pattern emerging in Europe is the trend to use administrative law and administrative responses to address terrorism, to complement and/or to replace traditional criminal law responses. The French government’s “Strengthening Homeland Security and the Fight Against Terrorism”( SILT law passed in October 2017) epitomizes the use of this management tool, and has been critiqued for its rule of law deficits, and the lack of fulsome protection for individual rights in the administrative CT model. Administrative measures may appear less cumbersome (e.g. closure of mosques, containment areas for persons as opposed to prison sentences), but in practice the impingement on individual liberty may be experientially equivalent to a prison sentence, and carry equal stigma. The cumulative effect of expanded criminal law regulation being layered with administrative law procedures has created new burdens, disjunctive effects on the protection of individual rights, as well as distinct effects for identifiable minority groups caught in a web of ever-expanding counterterrorism measures.
It is also evident that surveillance has become ubiquitous in many European countries. Public surveillance through CCTV, as well as the expansive monitoring of public (and private) spaces has the nomenclature of a ‘soft’ counterterrorism measure, especially when combined with a strong and attractive rhetoric of community safety. Notably, while public surveillance is technically equal for all, in practice certain communities and certain spaces are more highly policed than others. In this way, the disparate effects of counterterrorism regulation on “suspect”: (read: Muslim) communities is most noticeable. Soft CT hardly captures its effects.
It is also worth noting that the pending EU Regulation on preventing the dissemination of terrorist content, which is focused on regulating the private sector’s tech platforms, engages another set of human rights regulatory challenges. Once again, the wide definitions of terrorism, which seem to many observers to impinge on lawfully protected speech, religious practice and political participation, underscores the permissive environment for definitions of terrorism with significant implications for the protection of human rights. While much is made of the governance obligations of social media and other tech platforms, the corresponding obligations to human rights and rule of law are under-articulated, the mechanisms for remedy under-defined, and the framing of security as overreaching past rights, sets up a form of public debate and regulatory scheme that diminishes human rights protections but in ways that are far more complex to challenge than, by way of illustration, an egregious example of torture. And that is precisely the point: the nature of complex state regulation in counterterrorism — including public-private partnership regulation with security and not rights at its core — is far more difficult to call out than the relative simplicity of egregious violations that shock the conscience. These new forms of regulation also raise profound questions about what constitutes a “state” task (as opposed to a non-state task) and what are the implications of private entities carrying out normative and quasi-enforcement tasks on behalf of or instead of the state.
The cumulative effect of new crimes (e.g. apology for terrorism), new administrative measures being used to fight terrorism, extended and retributive penal policies, deep cooperation within and among intelligence services and the security sector (marked by the absence of robust independent oversight), the snowballing targeting of ethnic and religious communities, all speak to a “hardened,” layered and impenetrable terrain of counterterrorism practice where human rights struggles to be heard, and at best gets a throw-away mention in legislation or policy without meaningful benchmarking, principles or engagement. This underscores the difficulty of the new European counterterrorism terrain and the struggle to hold human rights and security in a meaningful and objective relationship to one another.
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