Human Dignity And Human Security In Times Of Terrorism 9462653542, 9789462653542, 119374346X, 9789462653559

Table of contents :
Terrorism and the Pursuit of Human Dignity......Page 5
Contents......Page 12
List of Editors and Contributors......Page 14
Setting the (Conceptual) Scene......Page 16
Abstract......Page 17
Articles, Books and Other Documents......Page 25
Abstract......Page 26
2.1 A Story About Human Dignity......Page 27
2.2 Dignity as ‘Everybody’s Darling’—With a Dark Side......Page 29
2.3 Reflections on Security and Human Security......Page 31
2.4 Words Matter: The Need to Humanise the Discourse......Page 34
Articles, Books and Other Documents......Page 37
Treaties......Page 38
Abstract......Page 39
Articles, Books and Other Documents......Page 43
Legislation......Page 44
Actors, Operations and Measures......Page 45
Abstract......Page 46
4.1 The Background to Human Security and the Significance of Place......Page 47
4.2 Choice of Jurisdiction......Page 51
4.3 Rendition......Page 54
4.4 Nationality......Page 58
4.5 Exclusion from Territory......Page 62
4.6 Conclusions......Page 67
Articles, Books and Other Documents......Page 68
Case Law......Page 73
Treaties......Page 76
Abstract......Page 77
5.1 Introduction......Page 78
5.2 The Basic Facts Behind the Abu Zubaydah Case......Page 81
5.3.1 “High Value Detainees”, Commodification and Human Worth......Page 84
5.3.2 Dehumanisation and the Indignity of Torture......Page 85
5.3.3 Life, Liberty and Dispensable Beings......Page 90
5.3.4 Civil Death and Disappearance......Page 92
5.3.5 Autonomy, Agency and the Social Dimension of Dignity......Page 93
5.3.6 Reparation, Restoration or Revictimisation?......Page 95
5.3.7 Accountability and Dignity......Page 98
5.4 Conclusion......Page 100
Articles, Books and Other Documents......Page 101
Case Law......Page 104
Treaties......Page 105
Abstract......Page 107
6.1 Introduction......Page 108
6.2 Right to Life and the Margin of Appreciation......Page 110
6.3 Right to Life, Margin of Appreciation and Anti-Terrorist Operations......Page 114
6.3.1 Article 2 Obligations in Anti-Terrorist Operations......Page 115
6.3.2 Margin of Appreciation and Preventive Obligations......Page 116
6.3.3 Margin of Appreciation and Operational Obligations......Page 118
6.3.4 Margin of Appreciation and Procedural Obligations......Page 121
6.4 A Critique of the Application of the Margin of Appreciation to Article 2 Cases in the Context of Terrorism: Where Do We Stand?......Page 123
6.5 Whose Security Interests Should the Margin of Appreciation Serve?......Page 125
6.6 Conclusion......Page 127
Articles, Books and Other Documents......Page 128
Case Law......Page 130
Treaties......Page 131
Abstract......Page 132
7.1 Introduction......Page 133
7.2 Security, Dignity, and the Counterterrorist State......Page 135
7.3 Human Rights, Intelligence Cooperation and State Responsibility......Page 138
7.4.1 The Concept of International Legal Accountability......Page 144
7.4.2.1 Detention Accountability: The Inter-American Commission on Human Rights on Guantánamo......Page 146
7.4.2.2 Rendition Accountability: United Nations Complaint Mechanisms......Page 149
7.4.2.3 Intelligence Cooperation Accountability: the European Court of Human Rights on Black Sites and Rendition......Page 151
7.5 Concluding Remarks......Page 154
Articles, Books and Other Documents......Page 156
Legislation......Page 159
Treaties......Page 160
Abstract......Page 161
8.1 Introduction......Page 162
8.2.1 What is Deprivation of Nationality?......Page 164
8.2.2 The Use of Deprivation of Nationality as a Counter-Terrorism Measure......Page 167
8.3 The Far-Reaching Consequences of Denationalisation......Page 170
8.4 The Prohibition of Arbitrary Deprivation of Nationality......Page 174
8.5 The Inherent Inequality of Citizenship Stripping......Page 178
8.6 Final Observations: Questioning the Use of Nationality Deprivation as a Counter-Terrorism Measure......Page 181
Articles, Books and Other Documents......Page 183
Treaties......Page 186
Abstract......Page 188
9.1 Introduction......Page 189
9.2 A Very Short History of Terrorism in China......Page 190
9.3 The Criminal Policy of China’s People’s War on Terror......Page 194
9.4.1 Defining Terrorism and Extremism......Page 199
9.4.2 Criminal and Administrative Penalisation of Terrorist and Extremist Conduct......Page 202
9.4.3 Preventive Measures in the People’s War on Terror......Page 205
9.4.4 Mobilising the Masses......Page 207
9.5 Concluding Remarks......Page 208
Articles, Books and Other Documents......Page 209
Legislation......Page 211
Treaties......Page 212
Abstract......Page 213
10.1 Introduction: An Intense Focus on Priority Policy Concerns and Persons......Page 214
10.2 The Capabilities and Limits of Framing......Page 217
10.3 Foreign Fighting and Categorisation in Alternative Framings......Page 219
10.3.1 Mercenaries, Self-determination and the Commodification of Private Force......Page 220
10.3.2 Foreign Terrorist Fighters and the Power of the Contemporary Counterterrorism Framing......Page 225
10.4 Narrowing the Conversation? Framing and the Categorisation of Individual Fighters......Page 231
10.5 Concluding Reflections: Stepping Back and Slowing Down?......Page 235
Articles, Books and Other Documents......Page 239
Case Law......Page 243
Treaties......Page 244
Criminal Justice Context......Page 245
Abstract......Page 246
11.1 Introduction......Page 247
11.2.1 International Legal Obligations to Criminalise Foreign Fighter Travel......Page 250
11.2.2 The Council of Europe Criminalises Travelling Abroad for Terrorism......Page 254
11.2.3 The Criminalisation of Foreign Fighter Travel by the European Union......Page 256
11.3 The Preventive Turn of European Counter-Terrorism Law and Its Impact on Human Dignity and Human Security......Page 262
11.3.1 Criminalising Foreign Fighter Travel in Order to Prevent Terrorism......Page 263
11.3.2 The Adverse Impact on Human Dignity and Human Security of the New Offence of Travelling Abroad for Terrorism......Page 266
11.4 Conclusion......Page 268
Articles, Books and Other Documents......Page 269
Legislation......Page 271
Treaties......Page 272
Abstract......Page 273
12.1 Introduction: Prevention Versus Reaction—A Shift in Paradigms......Page 274
12.2.1 2002 Framework Decision: Criminalisation Depending Upon the Actions of a Third Actor......Page 276
12.2.2 2008 Framework Decision: A Risk of Harm Suffices......Page 278
12.2.3.1 Overview of Speech-Related Measures......Page 280
12.2.3.2 Article 5 on Public Provocation......Page 281
12.3.1 Belgium: Deletion and Reintroduction of the Causality Requirement......Page 286
12.3.2 The United Kingdom: Mere Recklessness Suffices......Page 287
12.4.1 Subsidiarity: Undermining the Ultima Ratio Principle......Page 289
12.4.2 Proportionality: Questioning the Necessity in a Democratic Society......Page 292
12.4.3 Legality: Abolishing the Use of Vague Language......Page 294
12.5 Conclusion: A Contradiction of the Human Security Paradigm......Page 296
Articles, Books and Other Documents......Page 297
Case Law......Page 301
Treaties......Page 302
Abstract......Page 303
13.1 Introduction......Page 304
13.2 Changes in Terrorist Radicalisation Patterns from 2001 to the Present: Propaganda and Online Recruitment......Page 305
13.3 Comparative Responses to Radicalisation, in Particular, the Criminalisation of “Terrorist Speech”......Page 308
13.3.1 International and Regional Standards with Regard to Terrorist Speech......Page 309
13.3.2 Terrorism Speech-Related Offences at the Domestic Level: Diffusion, Features and Human Rights Concerns......Page 312
13.4 The Intertwinement between Limits to Free Speech and Human Dignity: Criminalising the Humiliation of Victims......Page 315
13.4.1 Case Study on Spain: Humillación de las Víctimas......Page 319
13.4.2 Article 578 of the Spanish Criminal Code and Its Interpretation by Courts......Page 322
13.5 Concluding Remarks: Risk of Misuse of the Humiliation Offence and Potential Mitigations......Page 326
References......Page 330
Legislation......Page 334
Treaties......Page 335
Abstract......Page 336
14.1 Introduction......Page 337
14.2 The Post-9/11 Intelligence Intoxication......Page 341
14.3.1 Secrecy and the Netherlands: A Tale of Precaution......Page 344
14.3.2 Closed Evidence and the United Kingdom: A Long-Term Committed Relationship......Page 349
14.4 Human Dignity and the Rule of Law Post the Normalisation of Secrecy......Page 358
14.5 Conclusion......Page 362
Articles, Books and Other Documents......Page 363
Case Law......Page 366
Legislation......Page 367
Acknowledgements......Page 368
Index......Page 369

Citation preview

Human Dignity and Human Security in Times of Terrorism

Christophe Paulussen Martin Scheinin Editors

Human Dignity and Human Security in Times of Terrorism

Christophe Paulussen Martin Scheinin •

Editors

Human Dignity and Human Security in Times of Terrorism

123

Editors Christophe Paulussen Research Department T.M.C. Asser Instituut The Hague, The Netherlands

Martin Scheinin Department of Law European University Institute Florence, Italy

ISBN 978-94-6265-354-2 ISBN 978-94-6265-355-9 https://doi.org/10.1007/978-94-6265-355-9

(eBook)

Published by T.M.C. ASSER PRESS, The Hague, The Netherlands www.asserpress.nl Produced and distributed for T.M.C. ASSER PRESS by Springer-Verlag Berlin Heidelberg © T.M.C. ASSER PRESS and the authors 2020 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. This T.M.C. ASSER PRESS imprint is published by the registered company Springer-Verlag GmbH, DE part of Springer Nature. The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany

Foreword

Terrorism and the Pursuit of Human Dignity The global anti-terrorism campaign has taken a heavy toll on human rights and has deformed constitutional safeguards around the world. The International Association of Constitutional Law’s Working Group on Constitutional Responses to Terrorism has documented this worrisome side of the anti-terrorism campaign in a series of edited volumes and it is pleased that several of its members could contribute to this book as well, whose initial chapters were discussed during a conference in December 2017 organised by the T.M.C. Asser Instituut’s Research Strand on ‘Human Dignity and Human Security in International Law’ and our own Working Group. In its pages, an exciting roster of authors—organised by a most distinguished team of editors—takes up the urgent question of the role of dignity in the global fight against terrorism. Human dignity places the individual and her rights at the very centre of public concern. The Universal Declaration of Human Rights begins by announcing in Article 1: “All human beings are born free and equal in dignity and rights”.1 The Constitution of the Republic of Germany begins by proclaiming in Article 1: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority”.2 The Israeli Basic Law on Human Dignity and Liberty3 has as its central purpose the protection of both. Throughout the wide range of the world’s constitutions and human rights instruments, human dignity sits like a beacon at the top of the lighthouse—sending its illumination out far and wide from its elevated position. Respect for human dignity—like the beam of the lighthouse—emanates from the place where many legal, ethical and religious traditions converge. 1

UN General Assembly (1948) Universal Declaration of Human Rights, UN Doc. A/RES/217 (III), Article 1. 2 Germany, Grundgesetz für die Bundesrepublik Deutschland [Basic Law of the Republic of Germany], Article 1. 3

Israel,

[Basic Law on Human Dignity and Liberty].

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And yet, as with most concepts that command such widespread agreement, there is substantial disagreement about the meaning of the concept once one attempts to get more precise. Moreover, like the lighthouse beacon, its clarity and usefulness are more apparent from afar than in its immediate environs. In beaming outward from the spot where many different traditions converge, dignity refracts into many component elements. All the more reason for those of us whose scholarship focuses on terrorism to subject dignity to scrutiny. Whose dignity is central in the struggle against terrorism? What collateral damage to dignity can be justified as States serve to protect some people from others? What guidance can the very general and multifaceted idea of dignity provide in thinking about how to keep the struggle against terrorism from destroying the key constitutional structures that provide the possibility for a dignified life? Do terrorists have dignity and to what extent do they retain it after they attack? Do State agents degrade their own dignity by using extraordinary measures to eradicate terrorism? As those questions suggest, and as the chapters in this volume make clear, the place of dignity in thinking about terrorism is far from obvious. In fact, dignity seems to be on all sides of the debate. Of course, those of us who want to ensure that responses to terrorism are kept within constitutional parameters want to fight to protect the dignity of the individual from State intrusion. But the goal of terrorists is to terrorise people, a position from which it is a short slide into rights violations of the sort that human dignity is meant to protect against. And that is true regardless of whether the damage to dignity comes from the State or from non-State actors. Harm to dignity can be caused by terrorists targeting people who are just going about their daily lives—or it can be caused by States using all available measures to find and eliminate terrorists. Dignity counsels, however, that terrorists themselves cannot simply be treated as weapons to be eliminated without more. Even when States are correct about who is a terrorist, failing to recognise the basic dignity of terrorists degrades not only those whose dignity is infringed but also the dignity of those doing the infringing. When States are wrong about who is a terrorist, the harm to all is even greater and even less justifiable. National courts charged with giving concrete meaning to the constitutional idea of dignity in the context of terrorism disagree about who is covered and how dignity must be protected. In German federal constitutional law, dignity is not a right; it is the protected essence of the person that makes her the subject of rights. Dignity, then, can never be balanced against rights. In keeping with the idea that dignity is not a legal right but the crucial reason why rights exist, the German Federal Constitutional Court never bases a decision on dignity alone, but on dignity together with the affected right that dignity is meant to amplify with its presence. When the Federal Constitutional Court held in its 2006 Aviation Security Case4 that the German Government was not permitted to shoot down a hijacked passenger plane in order to save people on the ground in a 9/11-like situation, the Court used a 4

German Constitutional Court, Judgment, 15 February 2006, 115 BVerfGE 118.

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very Kantian conception of dignity that appears both as a shield against State intrusion on dignity and as a rationale for State action to protect it: Human life is the vital basis of human dignity as the essential constitutive principle, and as the supreme value, of the constitution […]. All human beings possess this dignity as persons, irrespective of their qualities, their physical or mental state, their achievements and their social status […]. It cannot be taken away from any human being. What can be violated, however, is the claim to respect which results from it […]. In view of this relation between the right to life and human dignity, the state is prohibited, on the one hand, from encroaching upon the fundamental right to life by measures of its own, thereby violating the ban on the disregard of human dignity. On the other hand, the state is also obliged to protect every human life. This duty of protection demands of the state and its bodies to shield and to promote the life of every individual, which means above all to also protect it from unlawful attacks, and interference, by third parties […]. Also this duty of protection has its foundations in Article 1.1 sentence 2 of the Basic Law, which explicitly obliges the state to respect and protect human dignity […].5

Given this balance, the innocent passengers on a hijacked plane that is itself being used as a weapon—those individuals whose dignity the State has pledged to ensure—could not be sacrificed to save some other (hypothetical) people on the ground. The State is also bound to protect the lives of those innocent people who would be hit by an attacking plane but the State is limited in the measures it may take under such circumstances. In particular, the State may not protect people on the ground by sacrificing the lives of those in the air instrumentally in pursuit of that aim. As the Court argued: A weighing up of lives against lives according to the standard of how many people are possibly affected on the one side and how many on the other side is impermissible. The state may not kill people because they are fewer in number than the ones whom the state hopes to save by their being killed.6

That said, if the hijackers were alone on the plane and the State had them in its sights, the State could kill the hijackers by bringing down the plane because the hijackers’ own actions had changed the balance of calculations: [I]t […] is these people themselves [the hijackers] who, as offenders, have brought about the necessity of state intervention, and […] they can avert such intervention at any time by refraining from realising their criminal plan. […] Their killing can only take place if it can be established with certainty that they will use the aircraft that is under their control to kill people, and if they keep to their plan even though they are aware of the danger to their lives that this involves for them. This reduces the gravity of the encroachment upon their fundamental rights.7

The end result of this case was that the German State was barred from shooting down a passenger plane in a 9/11 scenario unless the hijackers were alone on the plane. Moreover, the invocation of dignity in the opinion brought Article 1 of the 5 6 7

Ibid., paras 119–120. Ibid., para 38. Ibid., para 150.

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German Basic Law to bear on the case. Given that Article 1 can never be amended, the Court’s decision barred the legislature from passing the law again unless the possibility of killing innocent people was completely removed from the law. With this tough decision, the Federal Constitutional Court found a way to reconcile the human dignity of each individual—including the terrorists—with the obligation of the State to protect every person. It did so by emphasising the way that each individual possessed of dignity had the right to chart her own life course and to have that course respected, up to the point where that charted course fundamentally affected the rights of others, whom the State was bound to protect. A different approach was taken by the Israeli Supreme Court which probably has more terrorism cases than any other court in a democracy. In Israeli constitutional law, dignity also has a central place. But dignity in Israeli constitutional law is not the essence of a human person above all balancing calculations. Instead, dignity is treated as a right alongside other rights, subject to direct proportionality assessments. In Israeli constitutional law, dignity may be infringed when the aim of the infringement is justified and the harm done to the dignity of the target of State action is smaller than the benefit that is produced—including the benefit to the dignity of others. In a case decided in the same year as the German Aviation Security Case and with similar principles at stake, the Israeli Supreme Court assessed the legality of the targeted killing of terrorists.8 First the Court established that everyone in the vicinity of a terrorist attack possesses dignity—perpetrators, victims and those caught in the crossfire. Under Israeli constitutional law, terrorists are unlawful combatants who have given up their claim to be protected under the law of war as civilians which does not mean that they have become non-persons: It need not be said that unlawful combatants are not outside the law. They are not outlaws. They too were created by God in His image; even their human dignity should be respected; they too enjoy and are entitled to the protection of customary international law, no matter how minimal this may be.9

However, terrorists give up their claim to State protection by targeting the lives of others: “terrorists who carry out hostilities do not cease to be civilians, but by their actions they have deprived themselves of the benefit of being civilians that grants them protection from military attack”.10 Thus, the outcome in the German and Israeli cases with regard to the constitutionality of attacking terrorists themselves is similar: those who attack innocent people give up the right of security that the State would otherwise owe them and they can become targets of State violence.

8 Supreme Court of Israel (sitting as the High Court), Public Committee against Torture in Israel and Others v Government and Others, Judgment, 14 December 2006, Case No. HCJ 769/02 (2006). 9 Ibid., para 25. 10 Ibid., para 31.

Foreword

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The real difference between the German and Israeli cases, however, can be seen in the way that ‘collateral damage’—to the innocent people in the plane in the German case and to those who are living among the terrorists in the Israeli case—is assessed. In Germany, precisely because of the operation of the principle of human dignity, the State may not instrumentalise the lives of some to save others. But the Israeli Court adopted a different and less categorical method for assessing the constitutional acceptability of collateral damage, turning to a proportionality analysis to assess how the Israeli military should act when targeting terrorists whose elimination would also affect innocent people around them: The test of proportionality stipulates that an attack on innocent civilians is not permitted if the collateral damage to them is not commensurate with the military advantage (in protecting combatants and civilians). In other words, the attack is proportionate if the advantage arising from achieving the proper military objective is commensurate with the damage caused by it to innocent civilians. This is an ethical test. It is based on a balance between conflicting values and interests […]. It is accepted in the national law of many countries. In Israel it constitutes a main normative test for examining government activity in general and army activity in particular.11

In order for the Israeli Court to reason in this way, the dignity of innocent persons cannot act as a complete bar on State infringement, as it did in the German case. Instead the Israeli Court reasoned that dignity must simply become a right like any other—in which the justifiability of the infringement at issue is assessed through an analysis in which the aim to be achieved, the alternative ways of accomplishing that aim and the balancing of the harm caused to some relative to the benefits brought to others, is the final determinant. As the Israeli Court explained in a prior case, quoted in the targeted killing decision: The basic injunction of international humanitarian law applicable in times of combat is that the local inhabitants are “[…] at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof…” […]. What underlies this basic provision is the recognition of the value of man, the sanctity of his life and the fact that he is entitled to liberty […]. His life or his dignity as a human being may not be harmed, and his dignity as a human being must be protected. This basic duty is not absolute. It is subject to “… such measures of control and security in regard to protected persons as may be necessary as a result of the war” […]. These measures may not harm the essence of the rights […]. They must be proportionate […].12

The Israeli Court then went on to provide direction to State officials who would make the calculation of whether killing some innocent people to save others would be proportionate and therefore permissible. Protecting dignity of all concerned at a time of war or in the fight against terrorism is hard. The German Constitutional Court, despite the intuitive appeal of its more absolutist reading of dignity, came in for a great deal of criticism for failing to allow State officials to act to protect those who might be the victims of a terrorist

11 12

Ibid., para 45. Ibid., para 23.

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attack. The Israeli Court, by contrast, gave permission to State officials to kill innocents if their sacrifice saved more lives in the long run and were attacked for that as well. Reasonable courts—as well as reasonable people—may disagree as to which Court gave the better meaning to the idea of dignity and its protection in times of terrorism. For the German Constitutional Court, dignity created an absolute bar on instrumentalising the lives of persons, even when a utilitarian calculation would urge the State to violate the dignity of some to protect the dignity of others. For the Israeli Supreme Court, ruling in a country that has been under a state of emergency since 1948 in a context of permanent war, the protection of dignity was of central importance, but could be balanced against other values and some lives could be sacrificed to save others. As the authors in this volume examine how dignity hangs in the balance when States calculate how to fight terrorism, we see a variety of different perspectives on offer. One would expect no less from a difficult subject like this. But just as the lighthouse sends out a beacon to prevent those at sea from losing their way or crashing onto the rocks, so too this volume of excellent chapters will cast light out on the rough seas of the anti-terrorism campaign, attempting to orient the sailors who traverse those waters by providing illumination and some guidance to prevent them from colliding with barriers that they could easily avoid. Princeton, USA

Prof. Kim Lane Scheppele Professor of Sociology and International Affairs Woodrow Wilson School Princeton University University Center for Human Values Princeton University Chair, Working Group on Constitutional Responses to Terrorism International Association of Constitutional Law Princeton University e-mail: [email protected]

Foreword

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References Articles, Books and Other Documents UN General Assembly (1948) Universal Declaration of Human Rights, UN Doc. A/RES/217 (III)

Case Law German Constitutional Court, Judgment, 15 February 2006, 115 BVerfGE 118 Supreme Court of Israel (sitting as the High Court), Public Committee against Torture in Israel and Others v Government and Others, Judgment, 14 December 2006, Case No. HCJ 769/02 (2006)

Legislation Germany, Grundgesetz für die Bundesrepublik Deutschland [Basic Law of the Republic of Germany] [Basic Law on Human Dignity and Liberty] Israel,

Contents

Part I

Setting the (Conceptual) Scene

1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Christophe Paulussen and Martin Scheinin

2

Human Dignity, Human Security, Terrorism and Counter-Terrorism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Martin Scheinin

3

Restoring Trust in the Rule of Law . . . . . . . . . . . . . . . . . . . . . . . . Ernst Hirsch Ballin

Part II

3

13 27

Actors, Operations and Measures

4

Exporting Human Security in the Cause of Counter-Terrorism . . . Clive Walker

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5

Dignity Denied: A Case Study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Helen Duffy

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6

Human Security Versus National Security in Anti-Terrorist Operations: Whose Security Does the Margin of Appreciation Serve? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sofia Galani

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Remedying Violations of Human Dignity and Security: State Accountability for Counterterrorism Intelligence Cooperation . . . . 123 Sophie Duroy

8

Stripped of Citizenship, Stripped of Dignity? A Critical Exploration of Nationality Deprivation as a Counter-Terrorism Measure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Sangita Jaghai and Laura van Waas

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9

Contents

‘Killing Rats in the Street’ for the Paramount Human Right of Security: The Law and Policy of China’s People’s War on Terror . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Daniel Sprick

10 Framing Foreign Fighting: Exploring the Scope of Prevention and the Categorisation of Fighters in International Law . . . . . . . . 207 Marnie Lloydd Part III

Criminal Justice Context

11 Criminalising Foreign Fighter Travel in Order to Prevent Terrorism in Europe: An Illegitimate Assault on Human Dignity? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241 Tarik Gherbaoui 12 Incitement to Terrorism: The Nexus Between Causality and Intent and the Question of Legitimacy—A Case Study of the European Union, Belgium and the United Kingdom . . . . . . . 269 Stéphanie De Coensel 13 Humiliation of Terrorism Victims: Is Human Dignity Becoming a ‘National Security Tool’? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299 Arianna Vedaschi 14 The Normalisation of Secrecy in the United Kingdom and the Netherlands: Individuals, the Courts and the Counter-Terrorism Framework . . . . . . . . . . . . . . . . . . . . . 333 Rumyana van Ark (née Grozdanova) and Charlotte Renckens Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367

List of Editors and Contributors*0

About the Editors Christophe Paulussen T.M.C. Asser Instituut, The Hague, The Netherlands Martin Scheinin European University Institute, Florence, Italy

Contributors Stéphanie De Coensel Department of Criminology, Criminal Law, and Social Law, Ghent University, Ghent, Belgium Helen Duffy Leiden University, Leiden, The Netherlands Sophie Duroy Department of Law, European University Institute, Florence, Italy Sofia Galani University of Bristol, Bristol, UK Tarik Gherbaoui Department of Law, European University Institute, Florence, Italy Ernst Hirsch Ballin T.M.C. Asser Instituut, The Hague, The Netherlands Sangita Jaghai Tilburg Law School, Tilburg, The Netherlands Marnie Lloydd Melbourne Law School, Laureate Program in International Law, University of Melbourne, Melbourne, Australia Christophe Paulussen T.M.C. Asser Instituut, The Hague, The Netherlands Charlotte Renckens University of Amsterdam, Amsterdam, The Netherlands

0

* The full information on every editor and/or contributor is included at the end of the chapter they contributed to.

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List of Editors and Contributors

Martin Scheinin European University Institute, Florence, Italy Daniel Sprick University of Cologne, Cologne, Germany Rumyana van Ark (née Grozdanova) T.M.C. Asser Instituut, The Hague, The Netherlands Laura van Waas Tilburg Law School, Tilburg, The Netherlands Arianna Vedaschi Bocconi University, Milan, Italy Clive Walker Universities of Leeds, Leeds, UK

Part I

Setting the (Conceptual) Scene

Chapter 1

Introduction Christophe Paulussen and Martin Scheinin

Contents References ..................................................................................................................................

11

Abstract In this introductory chapter, the topic of the book—human dignity and human security in times of terrorism—is contextualised, the individual chapters are presented and a number of people are thanked for their contribution in making this book a reality. Keywords Human dignity Counter-terrorism Trust





Human security
Human rights
Terrorism


It appears that terrorism is on the retreat. For example, according to the Global Terrorism Index 2018, “the total number of deaths from terrorism [in 2017] declined for the third consecutive year”1 to 18,814,2 a substantial drop when compared to the devastating year 2014, when 32,685 terrorism deaths were recorded.3 Mainly because of the collapse of the Islamic State, Iraq even saw a 56 percent improvement in 2017 (4,271 deaths) vis-à-vis 2016 (9,783).4

1 2 3 4

Institute for Economics & Peace 2018, p 12. Ibid. Ibid. Ibid., pp 2 and 12.

C. Paulussen (&) T.M.C. Asser Instituut, The Hague, The Netherlands e-mail: [email protected] M. Scheinin European University Institute, Florence, Italy e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 C. Paulussen and M. Scheinin (eds.), Human Dignity and Human Security in Times of Terrorism, https://doi.org/10.1007/978-94-6265-355-9_1

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C. Paulussen and M. Scheinin

However, if we zoom out, it becomes clear that terrorism, despite the drop we are currently witnessing, should still be considered a serious and widespread phenomenon: in 2017, the number of terrorism deaths was still almost three times the number as recorded in 20015 and also in 2017, “67 countries experienced at least one death from terrorism, which is the second highest number of countries recording one death in the past twenty years.”6 Whereas the impact of terrorism in Western countries is incomparable when looking at the situation in for instance Iraq, Afghanistan, Nigeria, Syria and Pakistan,7 also the former countries have had their fair share of terrorism activity. This terrorism threat, overlapping with the phenomenon of foreign fighters, who have travelled en masse and from all over the world to the conflict in Syria and Iraq, has led to what Amnesty International, focusing on Europe, has called the “fast-expanding security state”8 and the “disturbing ‘Orwellian’ trend”,9 as a result of which “[t]he boundaries between the powers of the state and the rights of individuals are being redrawn and Europe’s human rights framework, which was so carefully constructed after the Second World War, is being rapidly dismantled.”10 Also the United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, warned in March 2015 more generally, not limiting himself to Europe: I come to you at what may prove to be a turning-point in our young and troubled century. There is real danger that in their reaction to extremist violence, opinion-leaders and decision-makers will lose their grasp of the deeper principles that underpin the system for global security which States built 70 years ago to ward off the horror of war. […] Terrorist attacks cannot destroy the values on which our societies are grounded—but laws and policies can.11

And despite different views on its exact meaning, one of these values is human dignity, which underpins the entire human rights regime.12 At the same time, human dignity and human rights more generally are often ‘balanced’ against security thinking, even though security and human rights, as has been explained elsewhere, cannot be weighed against each other.13 One proposed solution to this 5

Ibid., p 12. Ibid. But do note that this is a decrease compared to the situation in 2016 (79 countries). See ibid. 7 These are the five countries most impacted by terrorism in 2017 according to the Global Terrorism Index 2018. See Institute for Economics & Peace 2018, pp 19–23. 8 Amnesty International (2017) Dangerously Disproportionate. The Ever-Expanding Security State in Europe. https://www.amnesty.org/en/latest/campaigns/2017/01/dangerouslydisproportionate/. Accessed 1 August 2019. 9 Ibid. 10 Ibid. 11 UN Office of the High Commissioner for Human Rights (2015) Opening Statement, Item 2, High Commissioner’s Annual Report. https://www.ohchr.org/EN/NewsEvents/Pages/ DisplayNews.aspx?NewsID=15642. Accessed 1 August 2019. 12 Chapter 2 ‘Human Dignity, Human Security, Terrorism and Counter-Terrorism’. 13 Paulussen 2016, pp 25–26. 6

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seeming tension is to adopt a framework of human security, as suggested by Martin Scheinin in the chapter that follows this introduction:14 In order to resist the pull of securitisation as a proposed panacea to the threat of terrorism, that unfortunately often turns out to be ineffective or even counterproductive in practice, the human rights discourse needs to dig deeper and not only reject the false metaphor of ‘balancing’ between security and human rights, but also to contribute to the understanding of what security, public security and national security mean. A human rights approach to security would then call for the humanisation of the security discourse by asking how can better security be delivered to the population as a whole. As a terminological shift, the notion of ‘human security’ needs to be introduced to make it clear that legitimate security interests, even when serving as justification for limitations upon human rights, must be proven to serve ordinary people and their interests.15

Taking the above context into account, this book will critically analyse human dignity and human security challenges in the lead-up, and in the responses, to current forms of terrorism. It aims to map how human dignity and human security can be secured and how law can constitute a source of trust at a time when Europe and the rest of the world continue to be plagued by terrorist attacks. This book is divided in three parts. Part I sets the (conceptual) scene and includes this introduction and two smaller chapters authored by Martin Scheinin and Ernst Hirsch Ballin. In his chapter ‘Human Dignity, Human Security, Terrorism and Counter-Terrorism’, Scheinin kicks off the discussion by delving into the notions of (human) dignity and (human) security and by suggesting that “a human rights approach to combating terrorism emphasises both human dignity and human security as the proper way to frame the discourse.”16 The chapter then continues to address the two notions central to this book and discusses their relevance in the fight against terrorism, ending by linking these also to the definition of terrorism.17 In doing so, Scheinin relies upon Immanuel Kant’s appeal to reason and his categorical imperative that any rational person must never treat another human being as a mere means but always also as an end.18 In the next chapter, ‘Restoring Trust in the Rule of Law’, Hirsch Ballin observes that people trust in the rule of law for establishing the conditions for a peaceful cohabitation, but that the goal of terrorism is to undermine that trust.19 Echoing the words of Zeid Ra’ad Al Hussein mentioned above, he warns that the responses to terrorism often reveal that terrorists succeed, with “politicians vehemently opposing terrorism giv[ing] up the inclusive ideal of a rule of law that applies to everyone, regardless of origin, nationality or beliefs.”20 14 15 16 17 18 19 20

Chapter 2 ‘Human Dignity, Human Security, Terrorism and Counter-Terrorism’. Ibid. Ibid., Abstract. Ibid. Ibid. Chapter 3 ‘Restoring Trust in the Rule of Law’, Abstract. Ibid.

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After having set the (conceptual) scene, the book then turns to Part II, which contains seven chapters addressing various actors, operations and measures of interest in our current times of terrorism. The first chapter of this part is authored by Clive Walker and is called ‘Exporting Human Security in the Cause of Counter-Terrorism’. Walker notes that the difference between the relatively high standards of human security that can be anticipated in most Western jurisdictions and those prevailing elsewhere “encourage a form of arbitrage whereby terrorism suspects together with their human security attributes are exported to the countries with lesser standards.”21 He then provides an overview of several of such ‘exporting’ mechanisms, some of which are addressed in greater detail later in the book, including rendition and deprivation of nationality. According to Walker, an analysis of these measures demonstrates “the centrality of place and movement within counter-terrorism and the continued prevalence of executive measures within counter-terrorism, despite a rhetorical emphasis upon criminalisation”.22 He also notes that the measures have had many implications for human security, often traducing the concept’s universality as a value regardless of geographical place or personal profile.23 After this, Helen Duffy shows the reader in the clearest way possible that human dignity is not only interesting from a more conceptual, academic point of view, but also has practical and profound ramifications for actual people in real life. In her chapter ‘Dignity Denied: A Case Study’, Duffy examines the foundational nature of human dignity in the international human rights regime, as well as its evident subjugation in much counter-terrorism practice in recent years, as epitomised by the astounding and Kafkaesque case study of Duffy’s client and rendition and torture victim Abu Zubaydah.24 Duffy not only explores how human dignity was and still is deeply challenged by the extraordinary rendition and torture programme and the on-going arbitrary detention at Guantánamo, but also considers the role of reparation and accountability in its restoration.25 According to Duffy, “[t]his extreme case invites us to reflect on the more pervasive neglect of human dignity in counter-terrorism practice and the long-term implications of its demise in the name of human security.”26 In the subsequent chapter, entitled ‘Human Security Versus National Security in Anti-Terrorist Operations: Whose Security Does the Margin of Appreciation Serve?’, Sofia Galani discusses how the European Court of Human Rights has used the margin of appreciation when examining the protection of the right to life in the

21 22 23 24 25 26

Chapter 4 ‘Exporting Human Security in the Cause of Counter-Terrorism’, Abstract. Ibid. Ibid. Chapter 5 ‘Dignity Denied: A Case Study’, Abstract. Ibid. Ibid.

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context of terrorism.27 She argues that “national security cannot be a ground for allowing discretion to States in the way they interfere with the right to life and, by increasingly relying on the margin of appreciation, the Court risks blurring the strict standards under which the right to life has to be protected”.28 Therefore, Galani concludes, the Court should keep its supervisory role and examine the means by which States protect the right to life while countering terrorism.29 Sophie Duroy is the author of the next contribution. In her chapter, ‘Remedying Violations of Human Dignity and Security: State Accountability for Counterterrorism Intelligence Cooperation’, Duroy explains that since 9/11, international intelligence cooperation has increased exponentially, but that at the same time, “[t]he interstate system of invocation of responsibility has proven ill-fitted to hold States to account for their wrongful acts in the counterterrorism intelligence cooperation context, leaving States immune and victims without redress.”30 Duffy’s earlier chapter is a stark reminder of that statement. Duroy therefore proposes a new analytical perspective, using the concept of international legal accountability, to examine different ways how States can be held to account for their human rights violations committed in the context of intelligence activities.31 These, in turn, can play a significant role in remedying violations of human dignity and human security, and as such constitute valuable processes for victims of intelligence operations.32 One of the ‘exporting’ mechanisms identified by Walker in the first chapter of the second part of this book was deprivation of nationality. In the following chapter, called ‘Stripped of Citizenship, Stripped of Dignity? A Critical Exploration of Nationality Deprivation as a Counter-Terrorism Measure’, Sangita Jaghai and Laura van Waas delve further into this increasingly used counter-terrorism measure. They explain how citizenship deprivation is different from other counter-terrorism measures, mentioning “the far-reaching consequences denationalisation has for the persons concerned, the specific international norms constraining the use of deprivation of nationality, and the inequality inherent in the implementation of citizenship stripping in practice.”33 Besides clarifying the impact of deprivation of nationality on human dignity and human security, Jaghai and van Waas also assess its effectiveness in protecting national security and countering terrorism.34

Chapter 6 ‘Human Security Versus National Security in Anti-Terrorist Operations: Whose Security Does the Margin of Appreciation Serve?’, Abstract. 28 Ibid. 29 Ibid. 30 Chapter 7 ‘Remedying Violations of Human Dignity and Security: State Accountability for Counterterrorism Intelligence Cooperation’, Abstract. 31 Ibid. 32 Ibid. 33 Chapter 8 ‘Stripped of Citizenship, Stripped of Dignity? A Critical Exploration of Nationality Deprivation as a Counter-Terrorism Measure’, Abstract. 34 Ibid. 27

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Since many of the chapters in this book focus on Western countries, the next contribution provides the reader with a welcome insight into a completely different context. It is authored by Daniel Sprick and entitled ‘‘Killing Rats in the Street’ for the Paramount Human Right of Security: The Law and Policy of China’s People’s War on Terror’. In his chapter, Sprick describes how the 2014 Kunming Railway Station terrorist attack led to the establishment of a comprehensive political-legal framework for the fight against terrorism under the slogan of a ‘People’s War on Terror’.35 Whereas it has a strong criminal justice component, Sprick explains that this framework protrudes into other areas of social management as well, mainly targeting the Muslim minority in Xinjiang.36 He concludes that “China’s approach evidently follows the logic of a disproportionate demarcation between ‘them’ and ‘us’, between the ‘friend’ and the ‘enemy’, between ‘the terrorists’ and ‘the people’ and thereby clearly advocates national security at the expense of personal dignity.”37 Having provided the reader with a case study that is quite different from the rest of the book, also the subsequent chapter forces the reader to think out of the box when discussing the otherwise well-known topic of foreign (terrorist) fighters. In her chapter ‘Framing Foreign Fighting: Exploring the Scope of Prevention and the Categorisation of Fighters in International Law’, Marnie Lloydd explores the scope of a broader range of foreign fighting, going beyond the counter-terrorism context. According to Lloydd, “the intense focus on the individual might have certain disabling effects on our understanding of broader aspects surrounding foreign fighting, individual solidarity with armed causes, and international law relevant to the protection of human dignity.”38 She therefore wonders whether our focus should be re-directed to States and more fundamental principles of State relations and the non-toleration of harm.39 The last part of this book contains four chapters specifically focusing on the criminal law context when dealing with contemporary human dignity and human security challenges in the context of countering terrorism, taking into account international, European and national perspectives. The first chapter of this part is written by Tarik Gherbaoui and is called ‘Criminalising Foreign Fighter Travel in Order to Prevent Terrorism in Europe: An Illegitimate Assault on Human Dignity?’. In his contribution, Gherbaoui critically assesses the new offence of ‘travelling abroad for terrorism’ in the European counter-terrorism context.40 He argues that “[t]he actus reus (travelling to another Chapter 9 ‘‘Killing Rats in the Street’ for the Paramount Human Right of Security: The Law and Policy of China’s People’s War on Terror’, Abstract. 36 Ibid. 37 Ibid. 38 Chapter 10 ‘Framing Foreign Fighting: Exploring the Scope of Prevention and the Categorisation of Fighters in International Law’, Abstract. 39 Ibid. 40 Chapter 11 ‘Criminalising Foreign Fighter Travel in Order to Prevent Terrorism in Europe: An Illegitimate Assault on Human Dignity?’, Abstract. 35

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State) of the offence is defined so broadly that successful prosecution hinges on proving the mens rea (the terrorist purpose) of the suspected foreign fighter”,41 but that the legal uncertainties related to the definition of terrorism taint the mens rea.42 According to Gherbaoui, suspected foreign fighters are seen as a risk to be prevented—rather than as individuals who need to be brought to justice under the rule of law—and thus not treated as ends in themselves, echoing Immanuel Kant’s categorical imperative as explained earlier by Scheinin.43 Gherbaoui concludes that the preventive turn of the criminal law in the foreign fighter context not only disregards the human dignity of suspected foreign fighters, hereby referring to the concept of Feindstrafrecht (enemy criminal law) that was also alluded to in Sprick’s chapter, but also constitutes a counterproductive method to ensure human security.44 After this, the book turns to the topical subject of incitement. In her contribution ‘Incitement to Terrorism: The Nexus Between Causality and Intent and the Question of Legitimacy—A Case Study of the European Union, Belgium and the United Kingdom’, Stéphanie De Coensel explains that legislators increasingly resort to speech-restricting measures.45 De Coensel subjects the criminal policies of incitement to terrorism of the EU, Belgium and the United Kingdom to a legitimacy test, hereby using the three main principles of criminal law, namely subsidiarity, proportionality and legality, as the theoretical backbone of her research.46 De Coensel finds that “by lowering or eliminating certain constitutive elements, and by introducing vague language, these principles have come under pressure”47 and that “[i]n order to safeguard the fundamental values of democracy and the requirements of the rule of law, a criminalisation of speech must always entail a strong nexus between an objective imminent danger and a subjective intention.”48 The next chapter builds on the previous one, addressing another but under-explored aspect in the context of freedom of expression. In her chapter ‘Humiliation of Terrorism Victims: Is Human Dignity Becoming a ‘National Security Tool’?’, Arianna Vedaschi examines how a few selected Western European countries deal, from a legal point of view, with the humiliation of terrorism victims.49 In Spain for example, glorification offences encompass expressly the humiliation and contempt of victims of terrorism and/or their families. Vedaschi 41

Ibid. Ibid. 43 Ibid. 44 Ibid. 45 Chapter 12 ‘Incitement to Terrorism: The Nexus Between Causality and Intent and the Question of Legitimacy—A Case Study of the European Union, Belgium and the United Kingdom’, Abstract. 46 Ibid. 47 Ibid. 48 Ibid. 49 Chapter 13 ‘Humiliation of Terrorism Victims: Is Human Dignity Becoming a ‘National Security Tool’?’, Abstract. 42

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notes that these limitations of speech aim to protect the dignity of the victims, but at the same time also pave the way for potential abuses.50 Vedaschi’s research “aims to draw some guidelines in order to avoid such abuses and maintain limitations to freedom of expression within the constraints of the rule of law, whose essence should not be reshaped by the need to fight terrorism.”51 The final chapter of this part and this book looks into the question how courts, the ultimate assessors of the legality of many of the measures discussed in this book, handle the issue of secret evidence. In their chapter ‘The Normalisation of Secrecy in the United Kingdom and the Netherlands: Individuals, the Courts and the Counter-Terrorism Framework’, Rumyana van Ark (née Grozdanova) and Charlotte Renckens observe an entrenched ‘information intoxication’ of security agencies, which has resulted not only in operational changes within the intelligence community but also to procedural shifts within national courts, such as the so-called conditional inclusion of intelligence within court proceedings models.52 Van Ark and Renckens, who provide a thorough comparative analysis of the situation in the United Kingdom and the Netherlands, subsequently engage in a critical reflection “on whether—and if yes, how—the respect and protection of individual rights and human dignity within the United Kingdom and the Netherlands has changed since the introduction of these models.”53 The editors would like to thank first and foremost all the authors of this book, for their in-depth research and thought-provoking insights. We are thrilled that we could secure such a ‘dream team’ of established names and upcoming talent in this fast-changing and exciting field of law. Moreover, we are pleased and honoured that Professor Kim Lane Scheppele was willing to write the foreword to this book. The editors are also grateful to all the speakers, moderators and participants of the December 2017 Conference on the same topic—organised by the T.M.C. Asser Instituut’s Research Strand ‘Human Dignity and Human Security in International and European Law’ and the International Association of Constitutional Law’s Research Group ‘Constitutional Responses to Terrorism’ and co-funded by the Municipality of The Hague—during which initial drafts of the chapters were presented and discussed. In addition, the editors would like to thank Frank Bakker and Kiki van Gurp from T.M.C. Asser Press, for their trust and dedication. And last but definitely not least, our editorial assistant Kilian Roithmaier should be praised for his arduous but crucial work in making sure that all the chapters were put in the required format. We hope that this book will not only inspire academics—through further theorisation on the sometimes elusive but important concepts of human dignity and human security—but also practitioners working in the field of countering terrorism;

50

Ibid. Ibid. 52 Chapter 14 ‘The Normalisation of Secrecy in the UK and the Netherlands: Individuals, the Courts and the Counter-Terrorism Framework’, Abstract. 53 Ibid. 51

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that these chapters may convince them (even more) that following a human rights approach will be indispensable in securing human dignity and human security for all. Even—or we should say: especially—in times of terrorism.

References Articles, Books and Other Documents Institute for Economics & Peace (2018) Global Terrorism Index 2018: Measuring the impact of terrorism. http://visionofhumanity.org/app/uploads/2018/12/Global-Terrorism-Index-2018-1. pdf. Accessed 1 August 2019 Paulussen C (2016) Repressing the Foreign Fighters Phenomenon and Terrorism in Western Europe: Towards an Effective Response Based on Human Rights. International Centre for Counter-Terrorism—The Hague. https://icct.nl/wp-content/uploads/2016/11/ICCT-PaulussenRule-of-Law-Nov2016-1.pdf. Accessed 1 August 2019

Dr. Christophe Paulussen LL.M. M.Phil. is a Senior Researcher at the T.M.C. Asser Instituut and coordinator of its research strand ‘Human Dignity and Human Security in International and European Law’, coordinator of the inter-faculty research platform ‘International Humanitarian and Criminal Law Platform’ and Research Fellow at the International Centre for Counter-Terrorism— The Hague. Christophe is also Editor-in-Chief of Security and Human Rights (Brill), Managing Editor of the Yearbook of International Humanitarian Law (T.M.C. Asser Press), member of the Executive Board of the Royal Netherlands Society of International Law and Chair of the Jury of the J.P.A. François Prize (Royal Netherlands Society of International Law). Prof. Martin Scheinin is, since 2008, Professor of International Law and Human Rights at the European University Institute (Florence, Italy). In 2005–2011 he was the first United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. He has also served as member of the United Nations Human Rights Committee that monitors state compliance with the International Covenant on Civil and Political Rights (1997–2004) as well as President of the International Association of Constitutional Law (2010–2014). In 1993–2008 he was Professor in his native Finland, at the University of Helsinki and Åbo Akademi University.

Chapter 2

Human Dignity, Human Security, Terrorism and Counter-Terrorism Martin Scheinin

Contents 2.1 A Story About Human Dignity......................................................................................... 2.2 Dignity as ‘Everybody’s Darling’—With a Dark Side .................................................... 2.3 Reflections on Security and Human Security ................................................................... 2.4 Words Matter: The Need to Humanise the Discourse ..................................................... References ..................................................................................................................................

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Abstract At least participants of the human rights discourse intuitively tend to think about human dignity when hearing the word ‘dignity’, but about national or public security when hearing a reference to ‘security’. Thereby dignity tends to have a positive connotation in human rights circles, while security may primarily be seen as a threat to the full enjoyment of human rights. A closer look into the two notions will, however, reveal that both dignity and security will require a nuanced treatment when addressed in a human rights perspective. In this brief chapter it is suggested that a human rights approach to combating terrorism emphasises both human dignity and human security as the proper way to frame the discourse. The chapter will address these two concepts and discuss their relevance in the fight against terrorism, ending by linking the two notions also to the definition of terrorism. Here, the author relies upon Immanuel Kant’s appeal to reason and his formulation of the categorical imperative as a maxim that any rational person must never treat another human being as mere means but always also as an end.




Keywords Human dignity Human rights Counter-terrorism Categorical imperative





Human security
Terrorism


M. Scheinin (&) European University Institute, Florence, Italy e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 C. Paulussen and M. Scheinin (eds.), Human Dignity and Human Security in Times of Terrorism, https://doi.org/10.1007/978-94-6265-355-9_2

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2.1

M. Scheinin

A Story About Human Dignity

The inviolability of human dignity is a foundational underlying value for the regime of human rights as legal norms. We will find references to human dignity for instance in the Preambles and some Articles of the 1948 Universal Declaration of Human Rights,1 the twin Covenants of 1966,2 and the 2000/2007 Charter of Fundamental Rights of the European Union.3 All these references give the impression of being declaratory or aspirational in nature, and none of them seeks to define human dignity. This is quite understandable if human dignity is primarily understood as an underlying moral value that provides justification to the elevation of some rights as so fundamental that they deserve to be protected as legally binding human rights. What is capable of defining human rights need not necessarily be defined, at least not in human rights treaties. In 2002, when I was a member of the United Nations (UN) Human Rights Committee acting under the International Covenant on Civil and Political Rights (ICCPR), I quite unexpectedly experienced a situation where 18 independent human rights experts from all continents were trying to agree what human dignity actually means and requires, in the context of a specific individual case. The case of Manuel Wackenheim v France was about the practice of dwarf tossing, a form of entertainment where customers in a discotheque are throwing a small-sized human

The Preamble of the Universal Declaration of Human Rights (UDHR) refers to the “inherent dignity […] of all members of the human family” and to “the dignity and worth of the human person”. Article 1 declares that all human beings “are born free and equal in dignity and rights”, while Article 22 guarantees economic, social and cultural rights “indispensable for his dignity” and Article 23 on the right to work promises remuneration that ensures “an existence worthy of human dignity”. UN General Assembly (1948) Universal Declaration of Human Rights, UN Doc. A/RES/217 (III), Preamble and Articles 1, 22 and 23. 2 The Preambles of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and International Covenant on Civil and Political Rights (ICCPR) repeat verbatim the above-quoted references to dignity in the UDHR Preamble. Further, Article 10(1) of the ICCPR prescribes that all persons deprived of their liberty “shall be treated with humanity and with respect for the inherent dignity of the human person” while Article 13(1) of the ICESCR requires that education shall be directed to the full development of the human personality “and the sense of its dignity”. International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR), Preamble and Article 10(1); International Covenant on Economic, Social and Cultural Rights, opened for signature 19 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (ICESCR), Preamble and Article 13(1). 3 Notably, the European Convention on Human Rights does not contain references to human dignity. See European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953). In contrast, the Preamble of the EU Charter refers to “human dignity” and, quite remarkably, the status of human dignity was elevated in the drafting process so that Article 1 carries the title “Human dignity” and opens the whole Charter with the phrase “Human dignity is inviolable”, replicating Article 1 of the 1949 German Constitution. There is also a reference to dignity in Article 31 on conditions of work. Charter of Fundamental Rights of the European Union, proclaimed 12 December 2007, 326 OJ C 391 (entered into force 1 December 2009), Articles 1 and 31. 1

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being across the air.4 The human rights case came from the person who had been tossed, and who wanted to continue to be tossed in order to make his living. He claimed violations of multiple ICCPR provisions and also that a dwarf tossing ban imposed by the French authorities constituted “an affront to his dignity”,5 despite the fact that when upholding the ban, the French Council of State (Conseil d’État) had explicitly and repeatedly stated that the practice of dwarf tossing itself “affronted human dignity”.6 The Human Rights Committee chose to focus on the strong non-discrimination provision in Article 26 of the ICCPR and concluded that there had been no violation. For our purposes, the key sentence in the Committee’s Final Views reads: The Committee considers that the State party has demonstrated, in the present case, that the ban on dwarf tossing as practised by the author did not constitute an abusive measure but was necessary in order to protect public order, which brings into play considerations of human dignity that are compatible with the objectives of the Covenant.7

As just seen, the complainant, the State Party and the Committee all referred to human dignity. The Committee’s conclusion, cited above, may be read as an expression of deference in respect of the State Party’s presumed right to judge what human dignity means. Taking into account that the Human Rights Committee generally has avoided adopting a doctrine of a margin of appreciation in matters concerning the interpretation of the ICCPR,8 it is however justified to infer that the Committee actually sided with the State Party’s substantive understanding of human dignity. The Committee was unanimous in its conclusion. As its deliberations in individual cases take place in restricted session behind closed doors, I will not say much more about the exchanges between the 18 independent experts than that there was a discussion on whether to refer to human dignity and whether to spell out how the Committee understands the concept and its application in the case at hand. The wording, as adopted, represents an affirmative decision on the former part of the question and a negative decision on the latter. Having been present in the room, I will only add that there was a discussion between two understandings of human dignity, namely one emphasising the autonomy of the person, one’s individual self-determination closely related to the liberty of the person, and another understanding that primarily focuses on the inviolability of human dignity and therefore

4

CCPR, Manuel Wackenheim v France, Views, 15 July 2002, Communication No. 854/1999 (Wackenheim). 5 Ibid., para 3. 6 Ibid., paras 2.5 and 2.6. 7 Ibid., para 7.4. 8 See CCPR, Ilmari Länsman et al. v Finland, Views, 26 October 1994, Communication No. 511/ 1992 (Ilmari Länsman), para 9.4: “[a] State may understandably wish to encourage development or allow economic activity by enterprises. The scope of its freedom to do so is not to be assessed by reference to a margin of appreciation, but by reference to the obligations it has undertaken in article 27”.

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allows for some degree of paternalism from the side of the State or society in protecting absolute human rights even against the consent of the individual. According to the latter emphasis, human dignity can sometimes serve as a justification for not allowing individuals freely to engage in practices that would violate their inalienable human rights. While the Committee did not make an explicit choice between dignity as autonomy and dignity as a limit to consent, Wackenheim’s own understanding of human dignity had to yield to the Conseil d’État’s understanding.9 The lesson that can be drawn from the story is that there are diverging interpretations of what human dignity means but those differences do not prevent the operation of human dignity as an underlying value in the interpretation and application of human rights law. It has probably been a wise decision not to include human dignity as a separate human right in main human rights treaties. Nevertheless, human dignity may operate as a consideration in the application of human rights law, also at the global level. Even if there may not be agreement concerning what human dignity means, references to it are able to provide support to the universality of human rights, despite differences between legal and cultural traditions. While the invocation of human dignity may not on its own determine the outcome of a ‘hard case’, it does sensitise all adjudicators or other participants of the discourse to the need to think carefully about what the all-things-considered answer under human rights law will be. Universal human rights should be understood as being founded upon the respect for human dignity, irrespective of the fact that there may not be a universally approved definition of the concept of human dignity itself.

2.2

Dignity as ‘Everybody’s Darling’—With a Dark Side

In societal discussion, including the human rights discourse, the notion of ‘dignity’ intuitively has a strong positive connotation. Here, my claim is that this is because today, in the post-World-War-Two era, we instinctively understand ‘dignity’ as a shorthand reference to ‘human dignity’. In passing, and before moving to the notions of ‘security’ and ‘human security’, it is however worth mentioning that also ‘dignity’ has a dark side in a longer historical perspective which may also have contemporary ramifications. For that reason, it is important that the human rights discourse continues primarily to refer to the concept of ‘human dignity’.

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This reading of the Committee’s Views gets support from an obiter dictum in Wackenheim, above n 4, para 7.5: “[t]he Committee is aware of the fact that there are other activities which are not banned but which might possibly be banned on the basis of grounds similar to those which justify the ban on dwarf tossing.” This statement can be read as an affirmation of the position that the protection of human dignity sometimes justifies paternalistic measures that trump the autonomy of the person.

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References to ‘dignity’ were made by the Nazis in Hitler’s Germany10 or by the Fascists in Mussolini’s Italy.11 Today, President Donald Trump12 or Prime Minister Viktor Orbán13 may use the notion of ‘dignity’ to evoke emotions and to seek the creation of unity among a target group defined as ‘us’, often contrasted against some other group of ‘them’ who would not be members of a ‘nation’ or other group of people who in part base their sense of entitlement to something that carries ‘dignity’. References to ‘dignity’ should not be automatically taken as referring to human dignity or even as being compatible with human rights. Also a race, or a nation, or a State, may be claimed to possess dignity, to the effect of compromising the rights of real human beings. Dignity is one of those words that even today may be utilised in what András Sajó calls the ‘politics of emotions’, the systematic manipulation of people’s sentiments through carefully designed populist rhetoric.14 These examples of manipulative or morally corrupt invocations of the emotive notion of dignity serve here as a demonstration of the continuing need to use the notion of ‘human dignity’ in the human rights discourse. They also have prepared the reader for what comes next, namely an emphasis of the need for a similar analytical approach to the use of the notion of ‘security’ in the human rights discourse.

10

In 1934 more than a million Nazi officials swore an oath of loyalty to Hitler. On that occasion Rudolf Hess gave a speech over the radio where he referred to a Reich led by men who desire, instead of merely peace, “peace in dignity and honour”. See Calvin College German Propaganda Archive (1998) The Oath to Adolf Hitler. https://research.calvin.edu/german-propaganda-archive/ hess1.htm. Accessed 22 July 2019. 11 In a 1942 speech to the Chamber of Fasci and Corporations Mussolini proclaimed that Italians carried the greatest portion of the blood of the ancient Romans and invoked the notions of duty, honour and dignity. See Ibiblio (1997) Benito Mussolini, Premier of Italy Speech to the Chamber of Fasci and Corporations. http://www.ibiblio.org/pha/policy/1942/421202a.html. Accessed 22 July 2019. 12 In June 2017 Donald Trump signed an Executive Order concerning poorly paid apprenticeship programmes and legitimised it as a celebration of the “dignity of work”. See Fortune (2017) President Trump Signs Executive Order to Double Funds for Apprenticeships. http://fortune.com/ 2017/06/15/donald-trump-executive-order-apprenticeship-programs/. Accessed 22 July 2019. 13 In May 2018, upon swearing the prime-ministerial oath of office for his fourth consecutive term, Orbán said: “[w]e must have the confidence and dignity of a country which knows that the Hungarians have given more to the world than they have taken from it.” See Visegrad Post (2018) Viktor Orbán’s full speech for the beginning of his fourth mandate. https://visegradpost.com/en/ 2018/05/12/viktor-orbans-full-speech-for-the-beginning-of-his-fourth-mandate/. Accessed 22 July 2019. In fairness, it should be emphasised that even the notion of ‘human dignity’ is open to abuse, if for instance an authoritarian leader seeks to qualify the concept with problematic connotations. In another speech in the same month (May 2018) Orbán said: “[w]e are building a Christian democracy […]. An old-style Christian democracy rooted in European traditions, where human dignity is paramount and there is a separation of powers. […] We will defend Christian culture and will not surrender the country to aliens.” See Reuters (2018) Hungary PM Orban vows tougher laws on migration, names new deputy PMs. https://www.reuters.com/article/us-hungarygovernment-orban/hungary-pm-orban-vows-tougher-laws-on-migration-names-new-deputy-pmsidUSKBN1I50GP. Accessed 22 July 2019. 14 See Sajó 2004, 2011.

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Reflections on Security and Human Security

To many a human rights lawyer, the invocation of the notion of ‘security’ carries a negative connotation, suggesting a foundation in moral values very different from human dignity. In the human rights discourse we tend to think of arguments based on security as part of a phenomenon of securitisation, a negative trend of overreaches by law enforcement, intelligence and military authorities, with real or potential negative impact upon the enjoyment of human rights. On the basis of human rights treaties, a more nuanced, and balanced, assessment is needed. True, security, in the form of public security or national security, appears as a legitimate aim that justifies restrictions upon some human rights. But there is also an underdeveloped ‘right to security’, as well as a social rights counterpart, the more well-established ‘right to social security’. In textual terms, the situation is not so different from references to human dignity. We find references to security in specific Articles of the 1948 Universal Declaration of Human Rights,15 and again in both of the twin Covenants of 1966.16 As one should not be misled by the intuitive appeal of ‘dignity’ but instead insist on the notion of ‘human dignity’ in the human rights discourse, one should also not reject human-rights-conform usages of ‘security’. The right to the security of the human person, closely associated with the right to the liberty of person, as well as the right to social security, are worth attention and respect, and can contribute to the humanisation of the security discourse. Perhaps more importantly, human rights law can and must engage in the application of those clauses on permissible restrictions to human rights that engage the notion of ‘national security’. Much of the controversy related to the phenomenon of securitisation can be resolved through insisting on an analytical and rigorous doctrine on permissible restrictions17 that accepts the invocation of public or national security as a legitimate aim but only as a

15

UN General Assembly (1948) Universal Declaration of Human Rights, UN Doc. A/RES/217 (III), Article 3: “[e]veryone has the right to life, liberty and security of person”; Article 22: “[e] veryone, as a member of society, has the right to social security […]”, specified in Article 25 as “the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.” 16 In the ICESCR, above n 2, security appears both as a right and as a justification for restrictions on rights. See Articles 9 and 10 (the right to social security) versus Article 8 (national security as a legitimation for restrictions on trade union rights). Likewise, ICCPR, above n 2, Article 9 enshrines “the right to liberty and security of person” which has given rise to some limited case law (e.g. CCPR, William Eduardo Delgado Páez v Colombia, Views, 12 July 1990, Communication No. 195/1985), whereas national security appears as a basis for permissible restrictions of the rights guaranteed in Articles 12, 13, 14, 19, 21 and 22. 17 As an example from my own work as UN Special Rapporteur on human rights and counter-terrorism, reference is made to the 2009 report on the right to privacy in the counter-terrorism context where an effort towards an analytically rigorous test for permissible limitations was developed. See UN General Assembly (2009) Human Rights Council: Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, UN Doc. A/HRC/13/37, paras 14–19.

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point of departure for the proper assessment of the permissibility of the restriction: is the legitimate aim invoked actually served by the proposed restriction? Can that actual benefit towards the legitimate aim be proven, quantified or measured? If so, is it proportionate when compared against the negative impact upon human rights? And has it been proven that no measure with equal security benefit but less severe human rights impact exists? Only by going through these analytical steps will it be possible to determine that the proposed measure is necessary in a democratic society. Such an approach will also result in the rejection of an abstract ‘balancing’ between security and human rights. There are ways of improving security that avoid or at least minimise any restrictions upon human rights. They are to be preferred over the blunt approach of seeing ‘balancing’ as a choice of the security of many being a higher value than the rights of few. But that will not be enough. In order to resist the pull of securitisation as a proposed panacea to the threat of terrorism, that unfortunately often turns out to be ineffective or even counterproductive in practice, the human rights discourse needs to dig deeper and not only reject the false metaphor of ‘balancing’ between security and human rights, but also to contribute to the understanding of what security, public security and national security mean. A human rights approach to security would then call for the humanisation of the security discourse by asking how can better security be delivered to the population as a whole. As a terminological shift, the notion of ‘human security’ needs to be introduced to make it clear that legitimate security interests, even when serving as justification for limitations upon human rights, must be proven to serve ordinary people and their interests. Much of the seeming tension between security and rights can be resolved if a framework of human security is adopted. The notion of human security is primarily known from the discourse of international politics, not human rights law. As the UN Charter affords a prime place to the role of the UN and the powers of its Security Council in protecting international peace and security, even by military means if necessary, the promoters of the notion of human security have sought to shift the goalposts by giving more attention to an understanding of security that requires so much else than just military intervention. Hence, ‘human security’ was proclaimed18 as a concept in the 2005 World Summit 18

Some years earlier, the notion of human security gained public awareness thanks to an initiative introduced by the Japanese government, a Commission on Human Security, co-chaired by Sadako Ogata and Amartya Sen. Their report Human Security Now (Commission on Human Security 2003) introduces, on page 5, the notion as follows: In a world of growing interdependence and transnational issues, reverting to unilateralism and a narrow interpretation of state security cannot be the answer. The United Nations stands as the best and only option available to preserve international peace and stability as well as to protect people, regardless of race, religion, gender or political opinion. The issue is how to make the United Nations and other regional security organizations more effective in preventing and controlling threats and protecting people, and how to complement state security with human security at the community, national and international levels.

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outcome document, together with some other important new directions such as an emphasis on the ‘responsibility to protect’ concept and the creation of the Human Rights Council. This is how the outcome document, adopted in the form of a UN General Assembly resolution, opened a discourse concerning human security: We stress the right of people to live in freedom and dignity, free from poverty and despair. We recognize that all individuals, in particular vulnerable people, are entitled to freedom from fear and freedom from want, with an equal opportunity to enjoy all their rights and fully develop their human potential. To this end, we commit ourselves to discussing and defining the notion of human security in the General Assembly.19

Further work on “discussing and defining the notion of human security” has been conducted, inter alia, through reports of the Secretary-General and a 2012 General Assembly Resolution where a paragraph on elements of a definition of the notion opens with the following three main items: [A] common understanding on the notion of human security includes the following: (a) The right of people to live in freedom and dignity, free from poverty and despair. All individuals, in particular vulnerable people, are entitled to freedom from fear and freedom from want, with an equal opportunity to enjoy all their rights and fully develop their human potential; (b) Human security calls for people-centred, comprehensive, context-specific and prevention-oriented responses that strengthen the protection and empowerment of all people and all communities; (c) Human security recognizes the interlinkages between peace, development and human rights, and equally considers civil, political, economic, social and cultural rights.20

Human rights law has engaged in dismissing the securitisation of the discourse on countering terrorism, including by rejecting the false metaphor of abstract ‘balancing’ which in practice results in narrowly understood security measures trumping human rights considerations, and instead calling for a rigorous analytical assessment of the permissibility of any restrictions upon human rights introduced with reference to the, as such legitimate, aim of national or public security. Here it is suggested that by promoting and developing the notion of human security it is possible to do more, namely shift the understanding of security by humanising the counter-terrorism discourse. This is not new. In fact, the 2006 UN Global Counter-Terrorism Strategy should be read as being based on a human rights approach. This is reflected in its four-pillar structure where paradigmatic counter-terrorism measures by law enforcement, intelligence and military authorities are only one of the four pillars

19

UN General Assembly (2005) Resolution adopted by the General Assembly on 16 September 2005, UN Doc. A/RES/60/1, para 143. 20 The paragraph goes on to sub-paragraph h, with much emphasis on national sovereignty. UN General Assembly (2012) Resolution adopted by the General Assembly on 10 September 2012, UN Doc. A/RES/66/290, para 3. See, also, UN General Assembly (2012) Follow-up to General Assembly resolution 64/291 on human security: Report of the Secretary-General, UN Doc. A/66/ 763 (2012), para 36 where a list of twelve elements of the concept is presented.

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(Pillar II) while the three others are about addressing conditions conducive to the spread of terrorism (Pillar I), internationally coordinated capacity-building (Pillar III) and human rights and rule of law as the fundamental basis of the fight against terrorism (Pillar IV). Of particular value in this context is Pillar I on addressing and eliminating “conditions conducive” (i.e. ‘root causes’ to use another vocabulary) that can be seen as a relatively early affirmation and application of the human security approach. The list of such conditions conducive includes some choices that can be seen as reflecting political compromises but it also has a sound core reflecting strategic thinking based on human security: We resolve to undertake the following measures aimed at addressing the conditions conducive to the spread of terrorism, including but not limited to prolonged unresolved conflicts, dehumanization of victims of terrorism in all its forms and manifestations, lack of the rule of law and violations of human rights, ethnic, national and religious discrimination, political exclusion, socio-economic marginalization and lack of good governance, while recognizing that none of these conditions can excuse or justify acts of terrorism.21

2.4

Words Matter: The Need to Humanise the Discourse

This primarily conceptual chapter has sought to demonstrate that words matter. Words such as dignity, security or terrorism are catchy, emotive and even mobilising. But as mere words they can be used, misused or abused. For a human-rights-based approach to the fight against terrorism it is important to humanize both the discussion on security and any reference to dignity. Promoting a discourse that uses the terms human security and human dignity is one way to take further the humanization of the language and ultimately the policies and decisions that are made. Such an approach will also help in achieving more clarity in the discussion about terrorism, another notion that is at the same time important and ambiguous. The international community has failed in its efforts to find a general and universally accepted definition of terrorism. Good definitions do exist in some international treaties and UN Security Council resolutions, and they were relied upon in crafting the ‘Best Practice’ definition of terrorism presented to the Human Rights Council in 2011 by this author as UN Special Rapporteur on human rights and counter-terrorism.22 Nevertheless, governments and other actors keep unilaterally stretching or bypassing existing efforts to define terrorism, and even court practice is astonishingly incoherent if not outright opportunistic. All too often, terrorism is 21 Plan of Action in UN General Assembly (2006) Resolution adopted by the General Assembly on 8 September 2006, UN Doc. A/RES/60/288, Annex, Section I, para 1. 22 UN General Assembly (2010) Human Rights Council: Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin. Ten areas of best practices in countering terrorism, UN Doc. A/HRC/16/51, Best Practice No. 7:

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treated as a ‘crime of association’ where one person is prosecuted and convicted of terrorism because who she or (usually) he is, while another person would be addressed under laws related to ordinary crime for identical actions. For the understanding of what distinguishes terrorism from other forms of political violence or from ordinary crime it is useful also here to invoke the concepts of human dignity and human security. Terrorism is an affront to human dignity because it entails the instrumentalisation of other, innocent, human beings, often referred to as ‘bystanders’ or ‘civilians’. A terrorist reduces human beings to mere means and thereby dehumanises the victims and violates their human dignity. Therefore, terrorism is incompatible with that version of Immanuel Kant’s categorical imperative that prohibits a rational person from ever treating another person as mere means towards one’s own ends.23 This disregarding of the categorical imperative is present in terrorist attacks against places of worship or airplanes or schools that are attacked simply because there are many people there who can be instrumentalised towards the perpetrator’s ends, be it publicity, revenge, creation of fear or something else. The same goes for hostage-taking as a specific form of terrorism, literally entailing the transformation of a human being into a bargaining chip and hence plainly an instrument in an effort to compel a Government to do something or to refrain from doing something.24 Terrorism is also an antithesis of human security as it tears down the societal infrastructure and social fabric that are in place to provide a protective environment for the peaceful ordinary lives of ordinary people. By doing so, acts of terrorism generate an atmosphere of fear and may intentionally seek to ‘terrorise’ the population.25 Again, ordinary people—members of the general population or a segment of it—are reduced to a means in the furtherance of whatever ends the terrorists may be pursuing.

Terrorism means an action or attempted action where: 1. The action: (a) Constituted the intentional taking of hostages; or (b) Is intended to cause death or serious bodily injury to one or more members of the general population or segments of it; or (c) Involved lethal or serious physical violence against one or more members of the general population or segments of it; and 2. The action is done or attempted with the intention of: (a) Provoking a state of terror in the general public or a segment of it; or (b) Compelling a Government or international organization to do or abstain from doing something; and 3. The action corresponds to: (a) The definition of a serious offence in national law, enacted for the purpose of complying with international conventions and protocols relating to terrorism or with resolutions of the Security Council relating to terrorism; or (b) All elements of a serious crime defined by national law. “For all rational beings come under the law that each of them must treat itself and all others never merely as means, but in every case at the same time as ends in themselves.” Kant 1987, p 62 (emphasis in original). 24 This element of “compelling” a Government or an international organisation into doing something or refraining from something is one of the two alternative intent elements of many existing definitions of terrorism. 25 This element of “terrorising”, in turn, is the second alternative intent element in many good definitions of terrorism. 23

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Tragically, one of the wrong responses by States to terrorism has been to replicate the same moral wrong, in contravention of Kant’s categorical imperative. The United States’ infamous programme of secret detention, extraordinary detention and indefinite detention without trial entailed the instrumentalisation of some human beings to mere means in the hope of being able to deliver some benefit towards a selfishly understood end of ‘security’. Persons were detained, and often also ill-treated, not towards their prosecution and trial but because they were presumed to be in possession of some valuable information that might be of use in the reduction of the terrorist threat in the future. Primarily the torturers wanted names of potential future terrorists who remained at large. Ultimately it did not matter whether the person held actually had committed any acts of terrorism—it was sufficient that he (again, usually ‘he’) could be assumed to be in possession of information.26 The person was treated as mere means, not as an end.27 This was an affront to the human dignity of the detainees and incompatible with Kant’s categorical imperative.28 The fact that video images of Abu Ghraib and Guantánamo became the most efficient recruitment tools for terrorist organisations at the same time demonstrates how the programme catastrophically misconstrued its proclaimed end, namely security. What was falsely legitimised as a measure in the furtherance of ‘security’ generated new and serious threats to the security of Americans and everybody else. While countries in the Islamic world carry the heaviest death toll from terrorism, lives and human security are affected in all parts of the world.29 A holistic understanding of the need to comprehend human security

26

Reference is made to the (redacted version of the) Report of the Senate Select Committee on Intelligence on the Central Intelligence Agency's Detention and Interrogation Program (Senate Select Committee on Intelligence 2014) and to my blog post (Scheinin 2014) where I as a particularly shocking example cited from the Senate Select Committee on Intelligence Report, page 46 a cable from one of the CIA secret detention sites to CIA headquarters where the administrators of the torture clinically reported: Our goal was to reach the stage where we have broken any will or ability of subject to resist or deny providing us information (intelligence) to which he had access. We additionally sought to bring subject to the point that we confidently assess that he does not/not possess undisclosed threat information, or intelligence that could prevent a terrorist event. 27

This is the same logic as was applied in the seventeenth century witch hunts in Europe: suspected witches were treated as means, because by torturing them one would obtain new names of possible witches so that the vicious circle of torture and executions could continue. For a contemporaneous critique of the witch hunts, see von Langenfeld 2003. 28 I have made earlier the point that for this reason the post-9/11 backlash in human rights protections was not only a negation of the achievements of the UDHR era but an effort to turn back the clock by 200 years, to pre-Kantian times. See Scheinin 2018, p 595. 29 As one source, reference is made to the Global Terrorism Index according to which deaths from terrorism have tripled from 2001 (the year of 9/11) to almost 19,000 deaths in 2017 (showing a clear decline since the worst year 2014 when there were about 33,000 deaths). In 2017, 69% of the deaths occurred in five countries (Afghanistan, Iraq, Nigeria, Somalia, Syria). See Institute for Economics & Peace 2018.

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would have called for a radically different approach where treating all detainees humanely and towards the end of enabling a fair trial, with full respect for their human dignity is one small but important element in a human-rights compatible strategic vision of counter-terrorism aimed at delivering human security to all, and everywhere. In closing this brief chapter, I want to encourage the reader to keep in mind the themes outlined here when reading the detailed and thoughtful contributions by our excellent group of authors.

References Articles, Books and Other Documents Commission on Human Security (2003) Human Security Now. https://reliefweb.int/sites/ reliefweb.int/files/resources/91BAEEDBA50C6907C1256D19006A9353-chs-security-may03. pdf. Accessed 22 July 2019 Institute for Economics & Peace (2018) Global Terrorism Index 2018: Measuring the impact of terrorism. http://visionofhumanity.org/app/uploads/2018/12/Global-Terrorism-Index-2018-1. pdf. Accessed 22 July 2019 Kant I (1987) Fundamental Principles of the Metaphysics of Morals (transl. Abbott TK). Prometheus Books, New York Sajó A (2004) Militant Democracy. Eleven International Publishing, The Hague Sajó A (2011) Constitutional Sentiments. Yale University Press, New Haven Scheinin M (2014) Five Torturous Steps to Hell. Just Security. https://www.justsecurity.org/ 18290/torturous-steps-hell/. Accessed 22 July 2019 Scheinin M (2018) Terrorism. In: Moeckli D, Shah S, Sivakumaran S (eds) International Human Rights Law, 3rd edn. Oxford University Press, Oxford, pp 583–601 Senate Select Committee on Intelligence (2014) Central Intelligence Agency’s Detention and Interrogation Program. https://www.intelligence.senate.gov/sites/default/files/publications/ CRPT-113srpt288.pdf. Accessed 22 July 2019 UN General Assembly (1948) Universal Declaration of Human Rights, UN Doc. A/RES/217 (III) UN General Assembly (2005) Resolution adopted by the General Assembly on 16 September 2005, UN Doc. A/RES/60/1 UN General Assembly (2009) Human Rights Council: Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, UN Doc. A/HRC/13/37 UN General Assembly (2010) Human Rights Council: Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin. Ten areas of best practices in countering terrorism, UN Doc. A/HRC/16/51 UN General Assembly (2012) Resolution adopted by the General Assembly on 10 September 2012, UN Doc. A/RES/66/290 UN General Assembly (2012) Follow-up to General Assembly resolution 64/291 on human security: Report of the Secretary-General, UN Doc. A/66/763 (2012) Von Langenfeld FS (2003) Cautio Criminalis, or a Book on Witch Trials (transl. Hellyer M). University of Virginia Press, Charlottesville/London

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Case Law CCPR, William Eduardo Delgado Páez v Colombia, Views, 12 July 1990, Communication No. 195/1985 CCPR, Ilmari Länsman et al. v Finland, Views, 26 October 1994, Communication No. 511/1992 CCPR, Manuel Wackenheim v France, Views, 15 July 2002, Communication No. 854/1999

Treaties Charter of Fundamental Rights of the European Union, proclaimed 12 December 2007, 326 OJ C 391 (entered into force 1 December 2009) European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953) International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) International Covenant on Economic, Social and Cultural Rights, opened for signature 19 December 1966, 993 UNTS 3 (entered into force 3 January 1976)

Prof. Martin Scheinin is, since 2008, Professor of International Law and Human Rights at the European University Institute (Florence, Italy). In 2005–2011 he was the first United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. He has also served as member of the United Nations Human Rights Committee that monitors state compliance with the International Covenant on Civil and Political Rights (1997–2004) as well as President of the International Association of Constitutional Law (2010–2014). In 1993–2008 he was Professor in his native Finland, at the University of Helsinki and Åbo Akademi University.

Chapter 3

Restoring Trust in the Rule of Law Ernst Hirsch Ballin

Abstract Developed societies include large numbers of people who do not know, let alone trust, each other personally. People trust in the rule of law instead for establishing the conditions for a peaceful cohabitation. The goal of terrorism however is to undermine trust in the rule of law. Terrorist attacks destruct the idea that people coming from different backgrounds can share the public sphere of a democracy under the rule of law. The responses to terrorism often reveal that terrorists succeed: politicians vehemently opposing terrorism give up the inclusive ideal of a rule of law that applies to everyone, regardless of origin, nationality or beliefs.




Keywords Trust Rule of law Culture essentialism


Terrorism
Counterterrorism
Inclusiveness


Citizens must be confident that they will not be confronted with State power beyond the limits set by legislation based on a sufficient constitutional legitimation. As the bedrock of trust in interpersonal relations, the rule of law and democratic control are intimately connected with each other. The first time I dealt with the subject ‘trust in the rule of law’ was when I started my academic work at Tilburg University, back in 1981.1 I discussed this subject as a feature of the constitutional arrangements. At that time, the full recognition of the legality principle was not yet an established viewpoint in Dutch constitutional theory. Some scholars still surmised that the Government had a residual power to regulate the behaviour of the citizens. Now, this is almost completely a problem of the past. The actual challenges of trust in the rule of law are different. They arise

1

Hirsch Ballin 1982.

E. Hirsch Ballin (&) T.M.C. Asser Instituut, The Hague, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 C. Paulussen and M. Scheinin (eds.), Human Dignity and Human Security in Times of Terrorism, https://doi.org/10.1007/978-94-6265-355-9_3

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from behaviour that presents itself as an outright denial of the validity of the constitutional order and the rule of law based on it, like terrorist acts.2 In that respect organised terrorism is different from crimes such as fraud, theft, and manslaughter. The grave crimes that law enforcement services usually have to deal with do not amount to a full denial of the legal order. The perpetrators try to circumvent the rules, or breach the law at a specific point, but may nevertheless be happy with the rule of law when they go out for shopping. Terrorism, at least ideologically motivated all-out terrorism as we have seen it since the beginning of this century, is different: different both in its goals and in its methods, which determine each other. Its goal is to undermine trust in the rule of law in a way that is decisive for the future of the affected societies. And that might happen, regrettably, partly because some political responses to terrorism, while presenting themselves as firmly opposed to terrorism, actually give way to a destruction of trust in the rule of law. That happens when they, on their turn, also renounce the common pedigree of democracy and rule of law, arguing that the war against terrorism requires exceptional measures. At this point, I want to go one step further, beyond sharing these cumbersome observations with you. Over the years, I have experienced and learned that trust in the rule of law involves more than the rational acceptance of the constitutional principles that were my subject in 1981. The German historian Ute Frevertz has demonstrated that trust has a rational and an emotional dimension.3 It depends on societal, political and economic constellations and is in so far historically contingent. Places and neighbourhoods develop their own conventions of trust and distrust. But that all does not mean that it is necessarily irrational. Trust can be reinforced by trust-promoting behaviour, for instance at the level of a society by law enforcement, and at the individual level by reciprocal recognition and confirmation.4 At the intersection of personal experience and societal processes, we can identify the importance of the law. People who know each other personally, may trust or distrust each other because of their own experiences. Closed communities with firmly maintained codes of conduct and set of beliefs might come close to that; they view each other as ‘one family’ and sometimes identify themselves as the descendants of single progenitor. Developed societies however are different. They may include communities which share a single cultural, religious or ethnic denominator with each other, but

The European Union Directive on combating terrorism defines the aim of terrorist crimes as “(a) seriously intimidating a population; (b) unduly compelling a government or an international organisation to perform or abstain from performing any act; [or] (c) seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.” European Union, Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA, Article 3(2). 3 Frevertz 2013, Chapter 1. 4 The notion of mental disorder of frustration resulting from lack of confirmation was developed by the Dutch psychiatrist Dr. Anna Terruwe. See Baars and Terruwe 2002. 2

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their boundaries are not impermeable. Ancient tribes not only fought wars with each other, but they also traded goods and intermingled culturally and sexually. The Romans had their own Roman law, based on the disputable idea that their State was that of the Populus Romanus. Nevertheless, they understood very well that trading with other nations requires a legal framework that they could share with the ‘barbaric nations’: that was called the ius gentium.5 It is the law that allows people to live together without knowing each other in person. The law as an abstract system of rules establishes the conditions under which people in large societies can live together in peace. This is not because they all have personal trust in each other (which is obviously impossible to establish) but because they trust that living up to the rules is what normally can be expected and will be approved—and also that contraventions can and will be disapproved or retaliated. This embryonic rule of law was and is the condition for any sustainable society that is too large to know each other personally. In the course of history, albeit with setbacks like nineteenth century and contemporary nationalism,6 ever more societies have transformed into legal communities of law-based trust. Human rights recognise the principle that every human being is equal in dignity and therefore deserves the same protection. The recognition of human rights and the constitutional setup of democracies based on equal citizenship create the context for mutual trust in the rule of law. But that is not easy, and certainly not uncontested. It has even never been uncontested, because of the simple fact that the behaviour of people with the same habits and forms of expression is more easily recognised as trustworthy than that of strangers. Accepting otherness appears to be difficult for many. Rationally everything may be well-considered, but strengthening the emotional side is hard work for leaders and educators. Amartya Sen, in the sharp analyses of his book Identity and Violence, has explained how easy it is to persuade people to the view that they—their religion, their people, their race—are superior and that they deserve to have the upper hand.7 It has time and again resulted in the denial of equality before the law, in discrimination, and ultimately in warfare, expulsions and/or genocide. After the Second World War and especially after the end of the Cold War, many people in the West believed that the ideologies of group-supremacy were declining and would eventually fade away, making room for a world of cooperative individuals, based on the rationality of the rules. But trust can be undermined by the real-life experience of disappointment. The widespread individual and collective disappointment by the losers in the free market economy,8 and by populations that were exploited or humiliated, created sentiments of anger and fear. Dominique

5 6 7 8

Lesaffer 2009, p 89. Hobsbawm 1992. Sen 2006. Rodrik 2015.

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Moïsi identified such emotions as the source of tensions within and between nations.9 In this context, reborn nationalisms and religious fundamentalisms came to the forefront. What they have in common is their self-understanding as a collectivity that is singular and supreme in its mission. Their identity must not be put on an equal footing with other identities or beliefs, and therefore it is legitimate—or even their historic mission—to reject equality before the law. Andreas Reckwitz calls their view on their own culture as culture essentialism (Kulturessentialismus).10 Ideologies of group supremacy based on a religious or ethnic identifier complete this ill-fated process. They are the ‘true believers’, the ‘true Finns’, or whatsoever. All these culture-essentialists recreate their foundational narratives, either vindicating a religious obligation to impose their will on others, or re-inventing a glorious phase in national history that should serve as the model forever. Collectivised hubris and lust for power can then seduce people to view the other and the other group as the enemy. One of the most devastating offshoots of aggressive culture-essentialism is international terrorism, most recognisable in a number of movements that claim to be representatives of the ‘true Islam’, like Al-Qa’ida and Da’esh. M. Cherif Bassiouni, the internationally acclaimed scholar who died in September 2017, himself a man of faith, accurately demonstrated that their claim to the multifaceted notion of jihad is misleading and wrong: “jihad”, he wrote, “in the name of the propagation of the faith can no longer be sustained in an era where freedom of religion, practice, thought, and speech are internationally guaranteed human rights.”11 In 2014, leading Muslim scholars explained in a lengthy, accurately documented open letter to the self-proclaimed caliph of Da’esh that his violent quasi-religious views and practices were, as a matter of fact, heretic.12 But these movements are usually immune to voices that challenge their understandings. The methods of international terrorism are effectively directed against the foundations of societies based on trust in the rule of law. Bombing, shooting and car attacks on innocent people instil fear, fear that goes widely above the statistical risk. In this way they undermine effectively the expectation that everybody, to some extent even wrongdoers, fits this behaviour into a commonly accepted framework. Such terrorist attacks intendedly destruct trust, and also appear to delegitimise the very idea that people coming from different ideological, cultural and religious backgrounds can share the public sphere of a democracy under the rule of law. The preferred places for these attacks are streets, concert halls, airports, which have a negative symbolic meaning: these are the places that, in the words of Walter Siebel,

9

Moïsi 2009. Reckwitz 2017. 11 Cherif Bassiouni 2010, p 37. 12 Letter to Al-Baghdadi (2014) Open letter to Dr. Ibrahim Awwad Al-Badri, alias ‘Abu BakhrAl-Baghdadi’, and to the fighters and followers of the self-declared ‘Islamic State’. http://www. lettertobaghdadi.com. Accessed 4 September 2018. 10

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serve as urban spaces of transition (Übergangsräume) in which people from different origins and identities connect.13 With their attacks directed against places of encounter where people used to feel protected by the law, terrorists are indeed able to instil fear. More worrying is their secondary success. Once trust in the law is battered, the door is open for political views that, while vehemently opposing such violent fundamentalists, mirror their culture essentialism: on their turn, populist politicians reject the idea of a free public space for all under the rule of law, and advocate an inward-looking nationalistic ideology. Thus, they undermine the idea of inclusive citizenship for all, even explicitly when they propose to exclude immigrants as much as possible from the nationality of their country of permanent residence. In effect, they paradoxically send out a message of confirmation to the terrorists that indeed a ‘clash of civilisations’ unfolds. Implicitly, they confirm the cultural-essentialist view of their enemy, while embracing a view that organises allegiance between people with a pretended home-grown national identity. The importance of confirming and strengthening trust in the rule of law could have been overlooked, until recently. Restoring trust is needed more than before. The best possible, principled but also practical response to terrorism as well as to non-violent centrifugal forces can be clear: do not give up promoting the inclusive ideal of a constitution and the rule of law for all.

References Articles, Books and Other Documents Baars CW, Terruwe AA (2002) Healing the Unaffirmed: Recognizing Emotional Deprivation Disorder, revised and updated edn. Alba House, New York Cherif Bassiouni M (2010) Evolving Approaches to Jihad: From Self-Defense to Revolutionary and Regime-Change Political Violence. In: Cherif Bassiouni M, Guellali A (eds) Jihad and its Challenges to International and Domestic Law. T.M.C. Asser Press, The Hague, pp 11–38 Frevertz U (2013) Vertrauensfragen: Eine Obsession der Moderne [Matters of Trust: An Obsession of Modernity]. C.H. Beck, München Hirsch Ballin EMH (1982) Vertrouwen op het recht. Over de plaats van de wet in de rechtsorde [Trusting the law. On the position of statutes in the legal order]. Samsom, Alphen aan den Rijn Hobsbawm EJ (1992) Nations and Nationalism since 1780: Programme, Myth, Reality. Cambridge University Press, Cambridge Lesaffer R (2009) European Legal History: A Cultural and Political Perspective. Cambridge University Press, Cambridge Moïsi D (2009) The Geopolitics of Emotion: How Cultures of Fear, Humiliation, and Hope are Reshaping the World. Doubleday, New York Reckwitz A (2017) Die Gesellschaft der Singularitäten. Zum Strukturwandel der Moderne [The Society of Uniquenesses: On the Structural Transformation of Modernity]. Suhrkamp, Berlin

13

Siebel 2015, pp 391 ff.

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Rodrik D (2015) Economics Rules: The Rights and Wrongs of the Dismal Science. W.W. Norton & Company, New York/London Sen A (2006) Identity and Violence: The Illusion of Destiny. W.W. Norton & Company, New York/London Siebel W (2015) Die Kultur der Stadt [The Culture of the City]. Suhrkamp, Berlin

Legislation European Union, Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/ JHA and amending Council Decision 2005/671/JHA

Prof. Ernst Hirsch Ballin (1950, LL.M. University of Amsterdam 1974, Doctorate University of Amsterdam 1979) is at present Distinguished University Professor at Tilburg University and, as Professor of Human Rights Law at the University of Amsterdam, the President of the T.M.C. Asser Instituut. He is a member of the Royal Netherlands Academy of Science, the Scientific Council for Government Policy and the Advisory Council on International Affairs (Netherlands Ministry of Foreign Affairs). His previous positions include 1989–1994 and 2006–2010 Minister of Justice of the Netherlands, and 2000–2006 Member of the Council of State, 2003–2006 presiding the Judicial Division.

Part II

Actors, Operations and Measures

Chapter 4

Exporting Human Security in the Cause of Counter-Terrorism Clive Walker

Contents 4.1 The Background to Human Security and the Significance of Place................................ 4.2 Choice of Jurisdiction........................................................................................................ 4.3 Rendition............................................................................................................................ 4.4 Nationality ......................................................................................................................... 4.5 Exclusion from Territory................................................................................................... 4.6 Conclusions........................................................................................................................ References ..................................................................................................................................

36 40 43 47 51 56 57

Abstract Relatively high standards of human security can be anticipated in most Western jurisdictions. However, differentials between such standards and those prevailing elsewhere (including in Middle Eastern and North African jurisdictions) encourage a form of arbitrage whereby terrorism suspects together with their human security attributes are exported to the countries with lesser standards. This traffic in terrorism suspects can be achieved by an ever-expanding list of mechanisms, including (1) the choice of jurisdiction, most starkly illustrated by the creation of the Guantánamo regime; (2) rendition, including regular deportation and extradition (perhaps with assurances) or irregular and often illegal formats; (3) denial of nationality and even deprivation of conferred citizenship; and (4) exclusion from territory not only of foreigners who seek asylum or a more temporary safe site from which to voice opinions but also of citizens. Analysis of these measures suggests a number of themes to be explored, such as the centrality of place and movement within counter-terrorism and the continued prevalence of executive measures within counter-terrorism, despite a rhetorical emphasis upon criminalisation. The adaptation

C. Walker (&) Universities of Leeds, Leeds, UK e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 C. Paulussen and M. Scheinin (eds.), Human Dignity and Human Security in Times of Terrorism, https://doi.org/10.1007/978-94-6265-355-9_4

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of immigration-type measures to aliens and citizens has had many implications for human security and has often traduced its universality as a value regardless of geographical place or personal profile. Keywords Counter-terrorism Citizenship Exclusion




4.1


Jurisdiction
Rendition
Nationality


The Background to Human Security and the Significance of Place

Human security is not a term commonly used in domestic legal systems but is prominent now in international relations and to some extent in the softer realms of international law.1 Though precise definition is absent, two aspects are recurrent. First, human security places individuals’ interests rather than State interests at the heart of security debates.2 By emphasising the security of individuals and communities, rather than States, human security implies a further commitment to an inclusive, global assessment of security.3 This approach seeks to resolve the commonplace balancing of individual rights against security, by conceiving rights as complementary to security. Second, human security ventures beyond technical, physical, and legal freedoms (including human rights) into the broader freedoms from fear and want as articulated by the United States (US) President Roosevelt in 19414 and later stated in the Preamble of the Universal Declaration of Human Rights of 1948.5 The human security paradigm has been criticised for its indistinct yet Promethean tendencies.6 Therefore, an emphasis on its characteristic of universalism in the ascription of individual human value, a value shared with cosmopolitanism, will be adopted here.7 Given that this chapter deals with the export of human subjects, whether that treatment infringes universal values becomes a crucial issue. Are the subjects of export on the basis of terrorism risk to be treated the same as everyone else—‘everyone’ here meaning the citizens of a given polity—or as a second-class ‘other’8 whose wrongful treatment can still incur a price worth paying for the security of a majority population?

1 MacFarlane 2006. For more information on the concept of human security, see Chap. 2 ‘Human Dignity, Human Security, Terrorism and Counter-Terrorism’. 2 See Kaldor 2007; Tadjbakhsh and Chenoy 2007; Pash 2007; Zwitter 2010. 3 UK Cabinet Office 2009, para 3.4. 4 Roosevelt 1941. 5 UN General Assembly (1948) Universal Declaration of Human Rights, UN Doc. A/RES/217 (III). 6 Paris 2001; Newman 2016. 7 See Walker 2011a. 8 See Macklin 2007; Forcese 2010.

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Much of the early focus in counter-terrorism activity after 9/11 was upon foreigners as being exceptionally dangerous and second-class. That was indeed the fate in the United Kingdom (UK) of 17 foreign terror suspects under Part IV of the Anti-terrorism, Crime and Security Act 2001,9 which allowed for the detention without trial of deportable asylum-seekers. On the face of it, a more direct challenge to the value of cosmopolitan liberty could hardly be conceived—both liberty and equality were negated by Part IV. However, this damning verdict should be qualified by two provisos. The first is that the policy did reflect an unwillingness to resort to even worse tactics—by means of irregular rendition to return foreign terror suspects to their homelands which were likely to inflict torture.10 The second proviso is that Part IV was later condemned as incompatible with the Human Rights Act 199811 by the judicial House of Lords.12 The selective othering in Part IV was deemed discriminatory and even ineffective, given that the existence of what might be called ‘neighbour terrorism’ could not be ignored, as became evident after 7/7.13 This condemnation of Part IV very much reflected a cosmopolitan concern for according human security to all categories of person, even alien terror suspects. So, detention without trial was replaced by executive administrative orders which came to be applied much more to citizens than to non-citizens.14 In so far as one can claim that equality of pain represents a cosmopolitan distribution, then there has been an improvement. An even more explicit recognition of ‘neighbour terrorism’ is the emphasis on the element of ‘Prevent’ within the UK’s CONTEST strategy.15 Our would-be ‘neighbour terrorists’ must be dissuaded from dangerous activities, since they cannot be detained for ever or shown the exit door of deportation.16 Under the contemporary phase of counter-terrorism, the emphasis is on place and movement rather than category of person, with special emphasis on places of transition, including virtual modes of interaction and communication. Place is highlighted not as a source of refuge (which is routinely denied) but as a source of vulnerability to be securitised (such as public spaces) or as a source of surveillance or control to be exploited for security purposes. The national external border still figures as a prime site in all of these discourses.17 This emphasis on place in

9 United Kingdom, Anti-terrorism, Crime and Security Act 2001 (Anti-terrorism, Crime and Security Act 2001). 10 ECtHR, Chahal v The United Kingdom, Grand Chamber Judgment, 15 November 1996, Application No. 22414/93 (Chahal 1996). 11 United Kingdom, Human Rights Act 1998. 12 UK House of Lords, A v Secretary of State for the Home Department, Opinions of the Lords of Appeal for Judgment in the Cause, 16 December 2004, [2004] UKHL 56. 13 Walker 2008. 14 See Walker 2011b, Chapter 7. 15 UK Home Office 2006. See further UK Home Office 2011; Walker and Rehman 2012; Barrett 2016. 16 See Walker 2009. 17 See Macklin 2001; Mitsilegas 2015; Barker 2017; Hu 2017; Wadhia 2017.

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counter-terrorism has many implications for human security both when the risk is internalised and externalised. The main interest of this chapter lies in the externalisation of risk, but the importance of internal place remains vital, such as in debates about relocation as a power under executive administrative orders.18 The Macdonald Review in 2011 found that relocation was too “thoroughly offensive” to remain part of executive-based counter-terrorism controls in the UK,19 and so the device was dropped from the Terrorism Prevention and Investigation Measures Act 2011.20 However, reflecting subsequent disquiet expressed by security authorities, the Independent Reviewer of Terrorism Legislation accepted in 2014 that location restraints should be restored.21 Reinstatement was achieved by Section 16 of the Counter-Terrorism and Security Act 2015.22 According to Mrs. Justice Elisabeth Laing in Secretary of State for the Home Department v LF,23 “a relocation requirement is the best way of disrupting […] extremist activities” even though its damage to human security in terms of “anguish and upset” was evident.24 Turning back to external-facing aspects of the emphasis on place, recently, there has been an increasing emphasis on foreign place and foreign travel arising from the foreign terrorist fighter (FTF) phenomenon. Whether involving citizens or aliens, transit, relocation, and return are accentuated. In all cases, the increased exportation of terrorism suspects incurs costs to human security—of the suspects themselves, of their families, of the communities from which they are taken, and of the communities to which they are supplanted. Given these costs, there are strong reasons not to externalise terrorism risk, and those reasons are both practical and principled. As for practical reasons, the externalisation of one’s enemies was viewed as dangerous tactic by the Newton Committee in 2004: Seeking to deport terrorist suspects does not seem to us to be a satisfactory response, given the risk of exporting terrorism. If people in the UK are contributing to the terrorist effort here or abroad, they should be dealt with here. While deporting such people might free up British police, intelligence, security and prison service resources, it would not necessarily reduce the threat to British interests abroad, or make the world a safer place more generally. Indeed, there is a risk that the suspects might even return without the authorities being aware of it.25

18

See Boutin 2016. Macdonald 2011. 20 United Kingdom, Terrorism Prevention and Investigation Measures Act 2011. 21 See Anderson 2014, paras 4.48–52, 6.19–27. 22 United Kingdom, Counter-Terrorism and Security Act 2015. 23 UK High Court, Secretary of State for the Home Department v LF, Judgment, 30 October 2017, [2017] EWHC 2685 (Admin), para 126. 24 Ibid., para 255. 25 Privy Councillor Review Committee 2003, para 195. 19

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Later, the Government promised “we shall not use the powers to export risk”.26 One detriment of terrorism risk exportation is that those abroad may be enabled to plot more easily against the home territory. Such a threat must then be countered, by drastic options such as drone strikes against citizens located abroad.27 The second detriment is the ‘receiving’ State’s reduced ability to manage the risk of violent extremists who have managed to leave or even been deported from the UK, to the detriment of the human security of citizens, residents or visitors within the foreign country in which they now reside. This willingness to sacrifice human security abroad for the sake of human security at home reflects a failure to recognise the universal equivalence of human security. A sense of the second problem can be gained through the attack which killed 38 in total, of whom 30 were British, near Sousse in Tunisia on 26 June 2015. A Tunisian student, Seifeddine Rezgui (who was not a UK deportee or an FTF), carried out the attack on behalf of Islamic State with inspiration from Saifallah Ben Hassine, who lived in Britain in the late 1990s and became a follower of Abu Qatada.28 Following the attack, President Essebsi removed from office the provincial Governor of Sousse and at least five senior police officers.29 On 7 August 2015, Law 26 of 2015 on combating terrorism and money laundering was passed, itself another impact on human security.30 Nevertheless, Tunisia lacks sufficient policing and intelligence structures or programmes for the control or rehabilitation of returning FTFs or deported terrorist suspects.31 Even more deficient conditions pertain in countries such as Afghanistan, Libya, or Somalia.32 In summary, despite the arguments against exporting terrorism risk, that practice is attained by an ever-expanding list of mechanisms, as invoked by an 26

UK House of Commons (2005) House of Commons Standing Committee E Column 271, 25 October 2005, Tony McNulty. 27 See UK House of Commons (2010) Hansard (House of Commons) Volume 599 Column 25, 7 September 2015, David Cameron; UN Security Council (2015) Letter dated 7 September 2015 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the President of the Security Council, UN Doc. S/2015/688; UK Joint Committee on Human Rights 2016a and UK Joint Committee on Human Rights 2016b; UK Intelligence and Security Committee 2017. 28 See His Honour Judge Loraine-Smith in the 2017 Tunisia Inquest Verdict. Turner C (2015) Tunisia attack: gunman’s links to Britain. https://www.telegraph.co.uk/news/uknews/terrorism-inthe-uk/11707325/Tunisia-beach-massacre-gunmans-links-to-Britain.html. Accessed 26 July 2019. 29 Harley N (2005) Tunisia sacks governor and police over terror attacks. http://www.telegraph. co.uk/news/worldnews/africaandindianocean/tunisia/11718571/Tunisia-sacks-governor-andpolice-over-terror-attacks.html. Accessed 26 July 2019. 30 For some context as regards Tunisia’s security responses, see UN General Assembly (2010) Human Rights Council: Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, UN Doc. A/ HRC/16/51/Add.2 and UN General Assembly (2012) Human Rights Council: Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, UN Doc. A/HRC/20/14/Add.1. 31 See Mishali-Ram 2018. 32 See Fund for Peace (2019) Fragile State Index. http://fundforpeace.org/fsi/. Accessed 26 July 2019.

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ever-expanding list of jurisdictions. The following export measures might be analysed according to their effectiveness and legitimacy: (1) choice of jurisdiction; (2) rendition; (3) denial of nationality and deprivation of citizenship; and (4) exclusion from territory. This agenda is not comprehensive and does not include, for instance, the excesses of organisational banning orders33 or sanctions lists34 which disproportionately affect émigré groups and aliens. Finally, it should be noted that most examples are taken from the UK because: its output is prolific; it is well-documented; and it operates as a rule-giver for the world in counterterrorism.35

4.2

Choice of Jurisdiction

The export of human security by choice of jurisdiction can most starkly be illustrated by the creation of the Guantánamo regime. The rationale behind the Authorization for Use of Military Force36 is to place US counter-terrorism within a militarised37 and externalised jurisdiction. At the same time, the expectation that the militarised detentions and commissions would fall into an externalised “legal black hole”38 and would marginalise the domestic legal system39 was not entirely realised, not least because of restraints eventually imposed by the US Supreme Court.40 The ineffectiveness of this system within counter-terrorism strategy is also apparent. By 19 January 2017, out of 780 detainees, 731 had been released without trial,41 8 convicted, and 7 awaited charges,42 though it might be positively claimed that the recidivism rate is modest.43 As for legitimacy, for those sent to

33

See Finch 2002; Sentas 2016. See CJEU, Council of the European Union v Liberation Tigers of Tamil Eelam (LTTE), Grand Chamber Judgment, 26 July 2017, Case No. C-599/14 P; CJEU, Council of the European Union v Hamas, Grand Chamber Judgment, 26 July 2017, Case No. C 79/15 P. 35 See Roach 2011. 36 US Senate and House of Representative 2001. 37 See Brooks 2016. 38 Steyn 2004. 39 See Murray 2014; Duffy 2015; Bradley and Goldsmith 2016. 40 US Supreme Court, Hamdi v Rumsfeld, Decision, 27 June 2004, Case No. 03–6696; US Supreme Court, Rasul v Bush, Decision, 27 June 2004, Case No. 03–334; US Supreme Court, Hamdan v Rumsfeld, Decision, 29 June 2006, Case No. 05-184; US Supreme Court, Boumediene v Bush, Decision, 11 June 2008, Case No. 06-1195; Elsea 2014. 41 US Department of Defense (2017) Detainee Transfers Announced. https://www.defense.gov/ News/News-Releases/News-Release-View/Article/1054644/detainee-transfers-announced/source/ GovDelivery/. Accessed 26 July 2019. 42 Human Rights Watch (2017) Guantanamo: Facts and Figures. https://www.hrw.org/videophotos/interactive/2017/03/30/guantanamo-facts-and-figures. Accessed 26 July 2019. 43 US Director of National Intelligence 2017. 34

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Guantánamo, only aliens can qualify as enemy unprivileged belligerents under the Military Commissions Act 2009,44 and the regime is questionable in international law.45 The effects of the harsh conditions and dysfunctional procedures on the human security and human rights of inmates, some of whom have no prospect of release,46 have been, and continue to be, dire.47 For its part, the UK Government has rejected the ‘war on terror’ paradigm, which is said to have given “ammunition to America’s enemies, and pause to America’s friends” as well as being “misleading and mistaken”.48 The language of ‘counter-insurgency’ is preferred for overseas armed operations.49 Nevertheless, the UK authorities have faced a modified controversy about choice of jurisdiction (in common with other Western States), namely, how far should its military excursions be subject to not only regular international humanitarian law (IHL—the potential applicability of which is not denied) but also international human rights law (IHRL). The question is important since commitment of British armed forces to the conflicts in Afghanistan and Iraq has been deeper than for any other country except the US. These overseas operations have inevitably involved use of lethal force and the incarceration of ‘the enemy’. It is therefore important to plot whether the value of human security has been safeguarded despite these most adverse of circumstances. In response, the potential costs to human security from externalising counterterrorism in Afghanistan and Iraq have been limited by national and international courts which have asserted that the standards of IHRL can apply to conflict zones abroad alongside IHL. This recognition was accorded to military internees in Iraq in the case of Abdul Razzaq Ali Al-Jedda, who was detained without trial for three years at the Shaibah Base near Basrah following his visit to Iraq in 2004.50 The verdict of the European Court of Human Rights (ECtHR) allows an abdication from Article 5 standards but on the explicit condition of clear United Nations (UN) authority to override European Convention on Human Rights (ECHR) requirements. In consequence, the British authorities could not unilaterally establish any detention regime equivalent to Guantánamo Bay but must act within one (or more) international law regime or another—UN resolutions, the ECHR, or the laws of war. The case of Yunus Rahmatullah51 imposed further accountability regarding 44

United States, Military Commissions Act of 2009. See especially UN Economic and Social Council (2006) Situation of detainees at Guantánamo Bay, UN Doc. E/CN.4/2006/120; Rona 2007. 46 Guantánamo Review Task Force 2010. 47 See Worthington 2007. 48 Donohue 2008, p 2. 49 UK Home Office 2009, para 7.16. 50 UK House of Lords, R (Al-Jedda) v Secretary of State for Defence, Opinions of the Lords of Appeal for Judgment in the Cause, 12 December 2007, [2007] UKHL 58; ECtHR, Al-Jedda v The United Kingdom, Judgment, 7 July 2011, Application No. 27021/08. 51 UK Supreme Court, Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah, Judgment, 31 October 2012, [2012] UKSC 48. For subsequent civil actions, see UK Supreme Court, 45

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the transfer of prisoners by the British Army in Iraq to other authorities with lower standards of human security. Next, the extension of IHRL has been applied to the use of force wherever there is effective control of territory, and once again the ECtHR went further than the House of Lords in Al-Skeini, which concerned six deaths in Iraq, including Baha Mousa, who succumbed to physical injuries consistent with severe assaults while held in British military custody.52 The death required a full investigation in compliance with Article 2 of the ECHR, and the ECtHR decided that the UK Government’s human rights obligations can exceptionally extend beyond the territorial UK to overseas situations in which British officials exercise “control and authority” over foreign nationals, including not just military base areas but potentially the whole of southern Iraq. In the meantime, the UK Government set up several public inquiries into alleged abuses: the Aitken Report,53 the Baha Mousa Inquiry,54as well as the al Sweady Inquiry,55 plus the Iraq Historic Allegations Team (IHAT), reporting to the Iraq Historic Allegations Panel.56 Following the emergence of allegations of fraudulent claimants and lawyers,57 the Secretary of State for Defence announced that the IHAT would close on 30 June 2017 and the remaining investigations would be transferred to the Service Police Legacy Investigations.58 Around 3,400 allegations of unlawful killings and ill treatment were received by the IHAT; 70% were sifted out and never reached full investigation.59 In this way, the principle of human security as a universalist value has conduced to addressing deficiencies even in external conflict situations. The resultant insertion of IHRL has provided symbiotically a reciprocal firmer footing for broader advocacy around human security. To expect that common humanity will always prevail successfully in conflict situations is a forlorn fantasy. Nevertheless, humanity to aliens has not been entirely ‘othered’ as with the Guantánamo Belhaj v Straw and others; Rahmatullah (No 1) v Ministry of Defence, Judgment, 17 January 2017, [2017] UKSC 3 (Belhaj and Rahmatullah (No 1) 2017); UK Supreme Court, Rahmatullah (No 2) v Ministry of Defence; Mohammed v Ministry of Defence, Judgment, 17 January 2017, [2017] UKSC 1. 52 UK House of Lords, R (Al-Skeini) v Secretary of State for Defence, Opinions of the Lords of Appeal for Judgment in the Cause, 13 June 2007, [2007] UKHL 26; ECtHR, Al-Skeini v The United Kingdom, Grand Chamber Judgment, 7 July 2011, Application No. 55721/07. 53 UK Ministry of Defence 2008. 54 UK Ministry of Defence 2010. See Walker 2013a. 55 Forbes 2014. 56 UK House of Commons (2010) Hansard (House of Commons) Volume 517 Column 27WS, 1 November 2010. 57 See House of Commons Defence Committee 2017; UK Joint Committee on Human Rights 2017. 58 UK Government (2017) Service Police Legacy Investigations. https://www.gov.uk/guidance/ service-police-legacy-investigations. Accessed 26 July 2019. 59 UK Government (2013) IHAT work completed. https://www.gov.uk/government/publications/ ihat-work-completed. Accessed 26 July 2019; UK Government (2019) Iraq Historic Allegations Team (IHAT). https://www.gov.uk/government/groups/iraq-historic-allegations-team-ihat. Accessed 26 July 2019.

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experiment. The UK Government certainly views these developments as discomforting and in 2016 announced a presumption to derogate from the ECHR in future conflicts.60 Political fragility and the difficulty of formulating the legislative terms have curtailed progress on the proposal. The result is that the interaction between human security and human rights remains productive.61

4.3

Rendition

This chapter will distinguish between regular and irregular rendition. Irregular formats of rendition amount to a threat to human security through externalising terrorism risk.62 Often arising from operations incited by the US authorities,63 objections have been repeatedly and prominently sustained before the ECtHR in cases such as El-Masri v FYR Macedonia,64 Al Nashiri v Poland,65 Husayn (Abu Zubaydah) v Poland,66 Nasr and Ghali v Italy,67 Abu Zubaydah v Lithuania,68 and Al Nashiri v Romania.69 Responsibility is thus ascribed under Article 3 of the ECHR for allowing a person to pass into foreign hands where wrongful treatment has predictably occurred. As far as the UK Government is concerned, it does not officially endorse any policy of extra-legal rendition, but it has been tempted into some irregular rendition operations which have been challenged in two rounds of litigation as follows. First, the Gibson Report in 2013 identified potential examples of collusion in the US programme of detentions and interrogations.70 These had resulted in payments of large amounts of compensation to 16 claimants, following the threat of legal

60

UK House of Commons (2016) Hansard (House of Commons) Volume 615 Columns 3-4WS, 10 October 2016, Michael Fallon. 61 Compare Howard-Hassmann 2012. 62 See Rendition Research Team (2019) The Rendition Project. http://www.therenditionproject. org.uk. Accessed 26 July 2019; All Party Parliamentary Group on Extraordinary Rendition (2019) The All-Party Parliamentary Group on Extraordinary Rendition. http://www.extraordinary rendition.org. Accessed 26 July 2019; Cobain 2012; Fabbrini 2014. 63 Grey 2006; Lau 2016. 64 ECtHR, El-Masri v The Former Yugoslav Republic of Macedonia, Grand Chamber Judgment, 13 December 2012, Application No. 39639/09. 65 ECtHR, Al-Nashiri v Poland, Judgment, 24 July 2014, Application No. 28761/11. 66 ECtHR, Husayn (Abu Zubaydah) v Poland, Judgment, 24 July 2014, Application No. 7511/13. For more information on and an analysis of the case of Abu Zubaydah, see Chap. 5 ‘Dignity Denied: A Case Study’. 67 ECtHR, Nasr and Ghali v Italy, Judgment, 23 February 2016, Application No. 44883/09. 68 ECtHR, Abu Zubaydah v Lithuania, Judgment, 31 May 2018, Application No. 46454/11. 69 ECtHR, Al-Nashiri v Romania, Judgment, 31 May 2018, Application No. 33234/12. 70 Gibson 2013. See also UK Intelligence and Security Committee 2005; UK Government 2005a; UK Intelligence and Security Committee 2007; UK Government 2007.

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action by 12 of them.71 The most notorious litigant was Binyam Mohamed.72 His civil action in the UK73 sought discovery of documents relating to his treatment by British and US agents in Guantánamo and Morocco.74 The High Court ordered disclosure, judging that the US threats to withhold security cooperation were empty. The Court of Appeal endorsed this assessment, relying on the further factor that a US Federal Court had already granted disclosure to the claimant, and it also rejected that the ‘control principle’ was an immutable legal requirement.75 Legislation in the form of the Justice and Security Act 201376 flowed from this litigation to allow for Closed Material Procedures in civil cases. However, police inquiries (Operation Lydd) did not produce any prosecution, and the UK Government refused to establish another inquiry into the collusion in torture allegations.77 A second round of litigation in connection with the irregular rendition of Libyans has followed. First, Abdel Hakim Belhaj and his wife, Fatima Boudchar,78 brought a civil claim that the UK agencies colluded in their illegal rendition to Libya in 2004, overcoming arguments of State immunity or act of State. Consequences for international relations might feed into these arguments, but human security must also be considered. The other pending Libyan case is Kamoka 71

UK House of Commons (2010) Hansard (House of Commons) Volume 518 Column 752, 10 November 2010, Kenneth Clarke. 72 UK Court of Appeal, R (Binyam Mohamed) v Secretary of State for the Foreign & Commonwealth Office, Judgment, 10 February 2010, [2010] EWCA Civ 65. See UK Joint Committee on Human Rights 2009; UK Government 2009. 73 Compare the US State secrets doctrine in US Ninth Circuit Court of Appeal, Binyam Mohamed v Jeppesen Dataplan, Inc., Decision, 8 September 2010, Case No. 08-15693. 74 UK High Court, R (Binyam Mohamed) v Secretary of State for the Foreign & Commonwealth Office, Judgment, 21 August 2008, [2008] EWHC 2048 (admin); UK High Court, R (Binyam Mohamed) v Secretary of State for the Foreign & Commonwealth Office, Judgment, 27 August 2008, [2008] EWHC 2100; UK High Court, R (Binyam Mohamed) v Secretary of State for the Foreign & Commonwealth Office, Judgment, 22 October 2008, [2008] EWHC 2519; UK High Court, R (Binyam Mohamed) v Secretary of State for the Foreign & Commonwealth Office, Judgment, 16 October 2009, [2009] EWHC 2549; UK High Court, R (Binyam Mohamed) v Secretary of State for the Foreign & Commonwealth Office, Judgment, 29 November 2009, [2009] EWHC 2973 (Admin); UK High Court, R (Binyam Mohamed) v Secretary of State for the Foreign & Commonwealth Office, Judgment, 4 February 2009, [2009] EWHC 152 (Admin). See Tomkins 2011. 75 UK Court of Appeal, R (Binyam Mohamed) v Secretary of State for the Foreign & Commonwealth Office, Judgment, 10 February 2010, [2010] EWCA Civ 65. 76 United Kingdom, Justice and Security Act 2013. See Walker 2015. 77 UK House of Commons (2016) Hansard (House of Commons) Volume 612 Column 291, 29 June 2016. 78 UK High Court, Belhaj v Secretary of State for Justice, Judgment, 20 December 2013, [2013] EWHC 4111 (QB); UK Court of Appeal, Belhaj and Boudchar v Straw, Judgment, 30 October 2014, [2014] EWCA Civ 1394; Belhaj and Rahmatullah (No 1) 2017, above n 51; UK High Court, Belhaj and Bouchar v Director of Public Prosecutions, Judgment, 1 December 2017, [2017] EWHC 3056 (Admin) (Belhaj and Bouchar 2017); UK High Court, Belhaj and Bouchar v Director of Public Prosecutions, Judgment, 15 March 2018, [2018] EWHC 513 (Admin); UK High Court, Belhaj and Bouchar v Director of Public Prosecutions and Others, Judgment, 15 March 2018, [2018] EWHC 514 (Admin).

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and others v Security Service.79 The appellants were Libyans associated with the Libyan Islamic Fighting Group (LIFG), opposed to the regime of Colonel Gadhafi, and had sought asylum in the UK. They were convicted of terrorist financing offences in 2007 and were subjected to control orders or detained pending deportation which was to be considered on the basis of a Memorandum of Understanding (MOU) with Libya which gave assurances about safety on return. The Special Immigration Appeals Commission (SIAC) had concluded that some of the claimants were a danger to national security but that they would not be safe on return to Libya, notwithstanding the MOU. After the fall of Gadhafi in 2011, documents obtained from the Libyan intelligence service allegedly revealed the complicity of the UK security services in extraordinary rendition and torture by the Libyan and US State security agencies. The deportations did not go ahead, and the claimants argued that such collusion made the deportation proceedings unlawful as based on assurances known to be worthless. The litigation overcame a challenge based on abuse of process arising from the undermining of previous decisions of SIAC (regarding deportation) and the High Court (regarding control orders). Because the decisions of SIAC had not been taken against all claimants and because both involved closed proceedings, the private law action could not be depicted as a collateral attack on prior decisions. Aspects of this litigation were settled in 2018, with a full apology to Belhaj and his wife and the payment of compensation to the latter.80 However, the judicial proceedings in relation to the DPP’s decision not to prosecute Sir Mark Allen (MI6) for complicity in torture remain in play.81 These verdicts on illegitimate rendition have shown due attention to human security, by the Courts, if not the Executive, and have ruled out the export of human security by irregular rendition. But this verdict on illegitimate rendition cannot rule out regular deportations and extraditions. In turn, regular rendition (by deportation or extradition) has run into controversy over whether diplomatic assurances should help them along the way.82 The device of assurances does not wholly dispel all potential perils to human security. First, the transfer of arrangements into the diplomatic sphere means that “[t]he tender arts of negotiation and compromise that characterize diplomacy can undermine straightforward and assertive human rights protection”.83 Second, the very process of agreement-formation betrays the contradictory tacit admission that there is a real risk of ill-treatment which is being condoned.84 Third, given that there 79

UK Court of Appeal, Kamoka and others v Security Service, Judgment, 25 October 2017, [2017] EWCA Civ 1665. 80 UK House of Commons (2018) Hansard (House of Commons) Volume 640 Column 926, 10 May 2018. 81 See Belhaj and Bouchar 2017, above n 78; UK Supreme Court, Belhaj v Director of Public Prosecutions and another, Judgment, 4 July 2018, [2018] UKSC 33. 82 Anderson 2017. 83 Human Rights Watch 2005, p 19. 84 See UN Economic and Social Council (2005) Commission on Human Rights: Protection of human rights and fundamental freedoms while countering terrorism, UN Doc. E/CN.4/2005/103, paras 56, 61.

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is a record of torture in the receiving State, one might infer that a culture or sub-culture of torture might subvert any intended protections.85 The linked fourth point against assurances is that it is not obvious what accountability arises for breaches of promises. The sending State may, of course, refuse to render any more prisoners, which may become an irritant to the receiving State. But one senses that the annoyance of the sending State in being unable to remit future troublemakers will be the greater. Despite these caveats, the device of diplomatic assurances should not be discarded, since the device is not contrary to international law.86 Its basic legality has been underwritten by the ECtHR in Othman v United Kingdom in 2012.87 Its decision demonstrated that assurances could suffice to lower the risk of torture under Article 3 of the ECHR even in the case of a receiving country where there was “disturbing” evidence attesting to systemic torture.88 At the same time, the decision was adverse in relation to Article 6 of the ECHR, since insufficient safeguards had been put in place to stop the “flagrant breach” through the use in court of evidence obtained by torture. The Othman decision might be described as legally pragmatic rather than dogmatic but can be supported as good for human security. Since human security demands progressive cooperation between nations, as reflected by the United Nations itself, assurances may serve important policy goals of education and standard-setting for foreign relations between States. They are signals that even suspected citizens are not to be denied meaningful international legal protection. Next, a form of resolution is offered not only for suspects left in limbo (and it is notable that even Othman eventually tired of the legal circus and agreed to leave for Jordan) but also for the victims of terrorism who were awaiting a trial of his alleged crimes (for which he was twice acquitted in Jordan). Finally, the process of transparent judicial assessment of assurances is preferable to efforts by executive officers to railroad rendition, as might be illustrated by the case of Youssef v Home Office in 2004.89 The officials’ hesitation about pursuing deportation to Egypt any further because of the risk of torture was not matched by the attitude of Prime Minister Tony Blair, whose Private Secretary told the Home Office in 2004: The Prime Minister thinks we are in danger of being excessive in our demands of the Egyptians in return for agreeing to the deportation of the four Islamic Jihad members. He questions why we need all the assurances proposed by FCO [Foreign and Commonwealth

85

Chahal 1996, above n 10, para 103. Anderson 2017, Part II. 87 ECtHR, Othman (Abu Qatada) v The United Kingdom, Grand Chamber Judgment, 17 January 2012, Application No. 8139/09 (Othman case). See Michaelsen 2012, 2013; Guiffré 2013. 88 Othman case, above n 87, paras 107, 191. 89 UK High Court, Youssef v Home Office, Judgment, 30 July 2004, [2004] EWHC 1884 (QB) (Youssef 2004), para 78. See further UK High Court, MM v Secretary of State for the Home Department, Judgment, 3 December 2015, [2015] EWHC 3513 (Admin); UK Supreme Court, Youssef v Secretary of State for Foreign and Commonwealth Affairs, Judgment, 27 January 2016, [2016] UKSC 3; UK Upper Tribunal (Immigration and Asylum Chamber), Youssef v Secretary of State for the Home Department, Decision, 11 March 2016, [2016] UKUT 137 (IAC). 86

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Office] and Home Office Legal Advisers. There is no obvious reason why British Officials need to have access to Egyptian nationals held in prison in Egypt, or why the four should have access to a UK-based lawyer.90

That cavalier attitude about exporting human security has been held in check,91 with just 12 removals under assurances from 2001 to 2014 from the UK.92 The MOU with Jordan might be described as the ‘Rolls Royce’ of MOUs, and few other arrangements are likely to be invested with so much care and attention. Still, assurances can play a significant role in counter-terrorism, especially in prominent and otherwise intractable cases which befit the political and legal cost and effort, but rendition will be delivered effectively and legitimately in international law only if laborious care is taken.93 Human security demands no less.

4.4

Nationality

Externalisation has next been implemented through the denial of conferment, or withdrawal, of nationality.94 Both measures affect civic and private human security. The denial of conferment of citizenship by naturalisation under Section 6 and Schedule 1 of the British Nationality Act 1981,95 is allowed on the grounds that the Secretary of State is not satisfied of “good character”,96 as inserted by Section 58 of the Immigration, Asylum and Nationality Act 2006.97 Cases are frequent (around 60 at any time),98 but ECHR Article 6 rights are very limited since the grant of citizenship is not a right.99

90

Youssef 2004, above n 89, para 18. See especially UK House of Lords, RB (Algeria) v Secretary of State for the Home Department; U (Algeria) v Secretary of State for the Home Department; Othman v Secretary of State for the Home Department, Opinions of the Lords of Appeal for Judgment in the Cause, 18 February 2009, [2009] UKHL 10 (RB (Algeria)). 92 See UK Home Office 2014a. 9 out of 12 DWAs have been with Algeria. 93 Compare International Commission of Jurists 2017. 94 Walker 2007; Fripp 2015. 95 United Kingdom, British Nationality Act 1981 (British Nationality Act). 96 See Home Office 2017b. 97 United Kingdom, Immigration, Asylum and Nationality Act 2006. Some exceptions derive from the Convention on the Reduction of Statelessness, opened for signature 4 December 1954, 989 UNTS 175 (entered into force 13 December 1975) or under the British Nationality Act 1981, above, n 95, Section 4B. 98 See UK Government 2012, p 2: in 2011, national security considerations affected 27 civil claims and over 60 judicial reviews concerning citizenship and naturalisation. 99 See UK Court of Appeal, Secretary of State for the Home Department v AHK, Judgment 2 April 2009, [2009] EWCA Civ 287 (AHK 2009); ECtHR, Karassev v Switzerland, Decision as to the Admissibility, 12 January 1999, Application No. 31414/96. 91

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Regarding deprivation,100 a policy of olden origins,101 nationality has been revived as a weapon against terror suspects with foreign origins.102 There was already a power of deprivation when a person obtained citizenship status through registration or naturalisation, and the Home Secretary is satisfied that this status was obtained by fraud, false representation or the concealment of any material fact (Section 40(3) of the British Nationality Act 1981). Deprivation of citizenship is permissible even if the person would be left stateless. Next, Sections 56 and 57 of the Immigration, Asylum and Nationality Act 2006 allow for the deprivation of British nationality (or rights of abode) on the further ground that it is conducive to the “public good”. The measure is translated into the British Nationality Act 1981 (Section 40(2) and (4)) along with the requirement that deprivation would not make the person stateless. “Public good” replaces the previous narrower criterion in Section 40 that the applicant had done something which was “seriously prejudicial to the vital interests of the United Kingdom”. Since there is no intention to create statelessness contrary to international obligations,103 this measure will inevitably impinge against persons of minority racial or ethnic origins who have dual nationality.104 The charge of discrimination is countered by Section 44, to the effect that “[a]ny discretion vested by or under this Act […] shall be exercised without regard to the race, colour or religion of any person who may be affected by its exercise.”105 This proviso does not, however, address the full gamut of Article 14 of the ECHR, which also includes within its concerns “national or social origin, association with a national minority”. These amended provisions arose after David Hicks, an Australian citizen who, some three years after he was detained at Guantánamo Bay, had sought British citizenship. He applied in the hope that the Foreign and Commonwealth Office would lobby for his release, in line with its treatment of other British citizens.106 The Court of Appeal accepted that the previous version of Section 40 did contemplate circumstances in 100 See Sawyer 2013; Macklin 2014; Spiro 2014; Gibney 2014; Herzog 2015; Macklin and Bauböck 2015; Mantu 2015. 101 Outlawry has a very long history in common law. It was abolished by United Kingdom, Criminal Code (Indictable Offences) Bill 1879, but ‘fugitation’ remained in force in Scotland until December 1949: United Kingdom, Criminal Justice (Scotland) Act 1949, Section 15. Compare Pillai and Williams 2017. 102 For more information on nationality deprivation as a counter-terrorism measure, see Chap. 8 ‘Stripped of Citizenship, Stripped of Dignity? A Critical Exploration of Nationality Deprivation as a Counter-Terrorism Measure’. 103 UK House of Commons (2014) Hansard (House of Commons) Volume 574 Column 1049, 30 January 2014, Theresa May. See further Convention relating to the Status of Stateless Persons, opened for signature 28 September 1954, 360 UNTS 117 (entered into force 6 June 1960), Article 8(1). 104 UK Joint Committee on Human Rights 2005, para 163; UK Government 2005b, p 17. 105 UK Government 2005b, p 17. 106 See UK Court of Appeal, R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs, Judgment, 6 November 2002, [2002] EWCA Civ 1598. Of the nine released, three had dual nationality but no steps were taken to remove it. Ibid., para 13.

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which conduct before grant of citizenship could provide grounds for revocation of citizenship but then concluded that Hick’s conduct in Afghanistan during 2000 and 2001 could not constitute disloyalty towards the UK, at a time when Hicks owed no duty of allegiance.107 The Secretary of State would have to conduct an assessment after he became a citizen. This evaluation was subsequently undertaken, resulting in the predictable decision to divest citizenship on grounds of national security, reportedly based on admissions of consorting with terrorists made by Hicks to MI6 officers visiting Guantánamo in 2003.108 Further changes have been made by the Immigration Act 2014,109 which amended the British Nationality Act 1981 by inserting new Subsection 40(4A). This power allows the Home Secretary to deprive a person of British citizenship obtained through naturalisation when the Home Secretary considers that deprivation is conducive to the public good because the person has conducted him or herself in a manner which is “seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory”, and the Home Secretary has reasonable grounds to believe, where statelessness is created, that the person is able to become a national of another country.110 The amendment responded to the failure to deprive an Iraqi born, naturalised British citizen, Hilal al Jedda (the same person subject to detention litigation), of his British citizenship because it rendered him stateless.111 However, by the time of the Supreme Court hearings, the Home Office had discovered that al Jedda’s Iraqi passport had been used several times to travel. Furthermore, the Iraqi Government had confirmed that it regarded him as a citizen. So, on the basis of the same laws as applying to the original (rejected) deprivation, the Home Office issued another deprivation order. SIAC decided as a preliminary issue that this second deprivation order did not create statelessness contrary to Section 40(4).112 The then Independent Reviewer of Terrorism Legislation, David Anderson, examined this third mode of deprivation, though no cases have arisen.113 But deprivation otherwise arose 36 times from 2010 to 2015, a large increase in usage.114 Deprivation powers have been often applied against FTFs before they

107 UK Court of Appeal, Secretary of State for the Home Department v Hicks, Judgment, 12 April 2006, [2006] EWCA Civ 400. 108 The Guardian (2007) Reid revoked citizenship of Guantánamo detainee. https://www. theguardian.com/uk/2007/jan/11/world.politics. Accessed 29 July 2019. 109 United Kingdom, Immigration Act 2014. 110 See UK Joint Committee on Human Rights 2014. 111 UK Supreme Court, Secretary of State for the Home Department v Al Jedda, Judgment, 9 October 2013, [2013] UKSC 62. 112 UK Special Immigration Appeals Commission, Al Jedda v Secretary of State for the Home Department, Judgment, 18 July 2014, Case No. SC/66/2008. 113 Anderson 2016a. 114 McGuinness and Gower 2017, p 10.

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return in order to prevent return and limit litigation,115 especially as only a gist of reasons has to be imparted.116 Citizenship is an important gateway to human security. The refusal to grant it to embedded asylum seekers or the expatriation of dual citizen terrorism suspects has severe detriments for human security. The communities of émigrés most at risk will perceive it as operating at the edges of legitimacy to the detriment of their trust in State agencies. The device can redound to the detriment of the reputation of the UK Government and to the enjoyment of human security within foreign States, as illustrated finally by the capture by non-State allies of the US in Syria of Alex Kotey and El Shafee El Sheikh (two of the notorious ‘Beatles’ group who were involved in prisoner atrocities).117 It is reported that they have been divested of British citizenship, and the Defence Secretary, Gavin Williamson, says they should never come back to the UK.118 A junior Defence Minister, Tobias Ellwood, even suggested trial by the International Criminal Court,119 which would signal to the world an abject failure by a responsible government to undertake action. This ongoing quandary shows that the policy of deprivation of citizenship appears irresponsible to allies, creates an unfair and unmanageable burden for weaker States,120 and disregards the interests of victims.

115 UK Court of Appeal, L1 v Secretary of State for the Home Department, Judgment, 3 December 2015, [2015] EWCA Civ 1410; UK Special Immigration Appeals Commission, M2 v Secretary of State for the Home Department, Judgment, 22 December 2015, Case No. SC/124/ 2015; UK Court of Appeal, Hashi v Secretary of State for the Home Department, Judgment, 17 November 2016, [2016] EWCA Civ 1136; UK Court of Appeal, SI v Secretary of State for the Home Department, Judgment, 16 June 2016, [2016] EWCA Civ 560; ECtHR, K2 v The United Kingdom, Decision, 7 February 2017, Application No. 42387/13; ECtHR, G1 v The United Kingdom, Application No. 42387/13 (pending). 116 UK Special Immigration Appeals Commission, LZ v Secretary of State for the Home Department, Judgment, 31 May 2017, Case No. SC/123/2-13. 117 The Times (2018) 10 February 2018, p 5. 118 Dearden L (2018) UK Government does not want captured Isis ‘Beatles’ returned to Britain for trial, says Gavin Williamson. https://www.independent.co.uk/news/uk/home-news/isis-beatlesuk-return-trial-gavin-williamson-defence-secretary-government-alexanda-kotey-el-shafeea8209741.html. Accessed 26 July 2019. 119 BBC News (2018) Islamic State ‘Beatles’ duo ‘should be tried at The Hague’. http://www.bbc. co.uk/news/uk-43014215. Accessed 26 July 2019. 120 Aine Davis, associated with the same group that brutalised and beheaded western hostages in Syria, was convicted in Turkey of membership of Islamic State and jailed for just seven and a half years in 2017. See BBC News (2017) Aine Davis guilty of being senior Islamic State member. http://www.bbc.co.uk/news/uk-39824266. Accessed 26 July 2019.

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Exclusion from Territory

The next measure affecting human security involves the exclusion of those already present or the refusal to admit those who seek entry, methods which primarily affect foreigners who claim asylum or a safe site from which to voice opinions. Various measures can then address terrorism risk.121 First, Section 8B of the Immigration Act 1971122 (inserted by Section 8 of the Immigration and Asylum Act 1999123) specifies refusal of entry of ‘excluded persons’, including persons listed pursuant to UN or EU sanctions against Al-Qa’ida or the Taliban.124 Second, deportation will arise automatically following imprisonment for at least twelve months under Section 32 of the UK Borders Act 2007125 unless in breach of fundamental rights under Section 33.126 With the rise of criminalisation as a prime counter-terrorism policy,127 this power has been used against foreign terrorist convicts, with destabilising human security consequences. An example is Abdullah Ibrahim El Faisal (also known as Trevor Forrest), who was convicted in the UK in 2004 of incitement to murder and racial hatred.128 He was deported in 2007, presumably to his home country, Jamaica. However, he was next heard of in Kenya in 2010 where the authorities sought to deport him to the Gambia (his last transit point).129 He was at some stage sent back to Jamaica, whose inability to control him can be judged by his listing by the US Department of Treasury as a Specially Designated Global Terrorist in 2017 for support of ISIS.130 Third, discretionary deportation on grounds of national security is allowed under Section 3(5)(a) of the Immigration Act 1971 where “conducive to the public

121

See UK Home Office 2017a. See Gower 2016. United Kingdom, Immigration Act 1971. 123 United Kingdom, Immigration and Asylum Act 1999 (Immigration and Asylum Act 1999). 124 United Kingdom, The Immigration (Designation of Travel Bans) Order 2000, SI 2000 No. 2724 (as amended by SI 2001 No. 2377 and SI 2003 No. 3285). 125 United Kingdom, Borders Act 2007. 126 For Irish nationals, see UK House of Commons (2007) Hansard (House of Commons) Volume 457 Column 3WS, 19 February 2007; UK Border Agency 2008, para 12.3.1. 127 See Walker 2013b. 128 UK Court of Appeal, R v El-Faisal, Judgment, 4 March 2004, [2004] EWCA Crim 456. 129 See CNN (2010) Kenya deports Jamaican-born Muslim cleric. http://edition.cnn.com/2010/ WORLD/africa/01/07/kenya.cleric.deportation/index.html. Accessed 26 July 2019; Capital News (2010) Faisal: Now lawyer turns to courts. https://www.capitalfm.co.ke/news/2010/01/faisal-nowlawyer-turns-to-courts. Accessed 26 July 2019. 130 US Department of the Treasury (2017) Treasury Sanctions Jamaica-based ISIS Recruiter for Terror Support. https://www.treasury.gov/press-center/press-releases/Pages/sm0231.aspx?src=ilaw. Accessed 26 July 2019. 122

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good”.131 Minimal rights to due process normally apply,132 but these powers are more curtailed for non-British European Union (EU) State citizens who qualify for free movement as workers or other protected categories under the Citizens Directive.133 This aspect of enforced exit has been furthered by changes in a consultation document issued by the Home Office in August 2005, Exclusion or Deportation from the UK on Non-Conducive Grounds.134 The grounds of ‘not conducive to the public good’ were extended to illustrative ‘unacceptable behaviours’ which included fomenting, justifying, or glorifying terrorism. A total of 22 persons were initially put on the exclusions list,135 though names and totals have since been withheld.136 Persons affected include anti-Muslim137 and anti-Semitic138 ‘preachers of hate’ and persons allegedly linked to terrorists groups. The highest profile casualty was Geert Wilders, who successfully overturned his ban in 2009.139 In R (Lord Carlile) v Secretary of State for the Home Department,140 the exclusion of Maryam Rajavi, the leader of the People’s Mujahidin Organisation of Iran, was upheld.

131

For a successful challenge by a former terrorist, see UK Special Immigration Appeals Commission, T v Secretary of State for the Home Department, Judgment 22 March 2010, Case No. SC/31/2005. 132 ECtHR, Maaouia v France, Judgment, 5 October 2000, Application No. 39652/98 (Maaouia 2000); RB (Algeria), above n 91. 133 European Union, Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/ EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC; as implemented by United Kingdom, The Immigration (European Economic Area) Regulations 2006, SI 2006 No. 1003. See CJEU, Rutili v Minister for the Interior, Judgment, 28 October 1975, [1975] ECR 1219; UK Court of Appeal, ZZ v Secretary of State for the Home Department, Judgment, 19 April 2011, [2011] EWCA Civ 440; CJEU, ZZ v Secretary of State for the Home Department, Grand Chamber Judgment, 4 June 2013, Case No. C-300/11; UK Court of Appeal, ZZ v Secretary of State for the Home Department, Judgment, 24 January 2014, [2014] EWCA Civ 7; UK Court of Appeal, ZZ v Secretary of State for the Home Department, Judgment, 03 March 2017, [2017] EWCA Civ 133. 134 For the latest version, see UK Parliament 2015. 135 The Times (2009) 6 May 2009, p 5. 136 UK House of Commons (2014). Hansard (House of Commons) Volume 578 Columns 299-300WH, 2 April 2014. 137 UK Court of Appeal, R (Geller) v Secretary of State for the Home Department, Judgment, 5 February 2015, [2015] EWCA Civ 45. 138 UK Court of Appeal, R (Naik) v Secretary of State for the Home Department, Judgment, 19 December 2011, [2011] EWCA Civ 1546. 139 UK Asylum and Immigration Tribunal, GW v Immigration Officer, Heathrow, Determination, 12 October 2009, [2009] UKAIT 00050. 140 UK Supreme Court, R (Lord Carlile) v Secretary of State for the Home Department, Judgment, 12 November 2014, [2014] UKSC 60.

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Deportation has also been made more attainable by reducing the viability of claims to asylum.141 First, Section 7 of the Immigration, Asylum and Nationality Act 2006 provides that in national security deportations any appeal should be mounted only after the individual has been removed.142 Second, Section 54 of the Immigration, Asylum and Nationality Act 2006 seeks to ensure such claims to asylum can be more readily denied by reference to Article 1F of the 1951 Geneva Convention relating to the Status of Refugees.143 Its terms are to be interpreted under Section 54 of the Immigration, Asylum and Nationality Act 2006 as including acts of committing, preparing or instigating terrorism (whether or not the acts amount to an actual or inchoate crime) and acts of encouraging or inducing others to commit, prepare or instigate terrorism. The term was interpreted in KK144 as not applying to every terrorism-related crime within UK law but as referring to acts which are the subject of intense disapproval by the governing body of the entire international community. It followed in MH (Syria) that involvement in political and humanitarian work for the Kurdistan Workers’ Party (commonly known as PKK) did not fall within Article 1F.145 In R (JS) (Sri Lanka),146 an asylum claim by a long-term officer of the Liberation Tigers of Tamil Eelam, mere membership was not sufficient under Article 1F. The quest for nationality and asylum status has also been discouraged by some of the ancillary appurtenances which are applied pending resolution of status. Such appurtenances can include limits on welfare support, restricted employment, and even detention.147 Particular controversy was caused by the policy after 2 September 2011 which was to grant discretionary leave for 6 months at a time with restrictions on employment, residence, and education—‘Restricted Leave to Remain’. This uncertain status was held to be irrational in the case of MS v Secretary of State for the Home Department.148 MS, an alleged Sikh extremist, was refused asylum under Article 1F but could not be deported on safety grounds. MS had lived without any conditions for nine years, had been in the UK for 20 years, during which he was married and had three children. The policy was upheld as lawful and was not in breach of Article 8. The grant of indefinite leave to remain

141 See also the travel restrictions in Immigration and Asylum Act 1999, above n 123, Sections 18 and 19, Part II; Anti-terrorism, Crime and Security Act 2001, above n 9, Section 119; United Kingdom, The Schedule 7 to the Terrorism Act 2000 (Information) Order 2002, SI 2002 No. 1945. 142 See UK Joint Committee on Human Rights 2005, para 185; UK Government 2005b, p 21. 143 Convention relating to the Status of Refugees, opened for signature 22 April 1954, 189 UNTS 138 (entered into force 22 April 1954). 144 UK Immigration Appeal Tribunal, Anonymous KK v Secretary for the Home Department, Determination, 7 May 2004, [2004] UKIAT 101. 145 AHK 2009, above n 99. 146 UK Supreme Court, R (JS) (Sri Lanka) v Secretary of State for the Home Department, Judgment, 17 March 2010, [2010] UKSC 15. 147 UK Court of Appeal, R (Idira) v Secretary of State for the Home Department, Judgment, 20 November 2015, [2015] EWCA Civ 1187. 148 UK Court of Appeal, MS v Secretary of State for the Home Department, Judgment, 31 July 2017, [2017] EWCA Civ 1190.

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should be exceptional for persons guilty of Article 1F conduct; the UK had international obligations to prevent the UK becoming a safe haven for such persons. However, the proportionality of applying it to MS, where there was no foreseeable likelihood of removal and no risk to national security, was doubted. By the time of that judgment (July 2017), a new policy had been put in place in March 2017; it allows indefinite leave after five years but subject to a ‘safe country review’.149 This experience of honing nationality and asylum laws to implement counterterrorism cannot be so easily applied to one’s own citizens. There are rules against creating statelessness. In addition, under Article 12(4) of the UN International Covenant on Civil and Political Rights:150 “[n]o one shall be arbitrarily deprived of the right to enter his own country.”151 Enforced exile was condemned when used by the German Democratic Republic against Wolf Biermann or by the Soviet Union against Aleksandr Solzhenitsyn.152 Yet, the UK Government has adapted exclusion as one reaction to the FTF phenomenon. Part I of the Counter-Terrorism and Security Act 2015 is designed to prevent FTFs from travelling abroad to engage in hostilities in Iraq and Syria, as well as to manage those British FTFs who seek to return home.153 As for the outgoers, their travel documents can be seized under Section 1 when a constable has reasonable grounds to suspect that a person is attempting to leave the UK for the purposes of involvement in terrorism-related activity abroad.154 In order to retain any travel document, the constable must seek further authorisations,155 and after 14 days, the travel documents must be returned, unless further extension of the retention period is approved by a judicial authority (meaning a designated District Judge (Magistrates’ Courts), a Scottish Sheriff, or in Northern Ireland, a County Court Judge or a District Judge (Magistrates’ Courts)) and must be granted (for up to 30 days in total) if satisfied that the investigation is being conducted diligently and expeditiously but without regard to the merits of the case.156 On balance, Section 1 can provide a proportionate response to suspicions about terrorism, especially when children are involved, provided intervention is convincingly related

149

UK Home Office 2016, pp 8, 11. International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976). 151 UN Human Rights Committee (1999) General Comment No. 27: Article 12 (Freedom of Movement), UN Doc. CCPR/C/21/Rev.1/Add.9. 152 See Wolf Biermann (2019) Vita. http://wolf-biermann.de/vita. Accessed 26 July 2019; The Bukovsky Archives (2019) KGB memorandum. Andropov to Brezhnev on possibility of using Willy Brandt to help expel Solzhenitsyn from USSR to FRG, after his declarations in Solzhenitsyn’s defence. https://bukovsky-archive.com/2016/07/05/7-february-1974-350-a-ov/. Accessed 26 July 2019. 153 See Blackbourn and Walker 2016. 154 See further Counter-Terrorism and Security Act 2015, above n 22, Schedule 1, paras 2, 15; United Kingdom, The Counter-Terrorism and Security Act 2015 (Code of Practice for Officers exercising functions under Schedule 1) Regulations 2015, SI 2015 No. 217; UK Home Office 2014b. 155 See Counter-Terrorism and Security Act 2015, above n 22, Schedule 1, paras 4–6. 156 Ibid., para 8. 150

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to terrorism related activity. The lack of formality and full judicial review under Section 1 does not help to ensure this essential attribute. Alongside powers to interdict suspected outgoing FTFs, the Counter-Terrorism and Security Act 2015 equally seeks to interdict incoming FTFs with a system of Temporary Exclusion Orders (TEOs) in Sections 2–15 and Schedules 2–4. TEOs embody a mode of regulated re-entry and residence rather than some variant of exile. By Section 2(2), the Secretary of State may impose a TEO but only after a court has given prior permission or, if the case is urgent, with subsequent referral and permission under Sections 3 and 4. In scrutinising a request for permission, the court applies judicial review principles as to whether the decision is “obviously flawed” (Section 3(2) and (5)). By Section 5, a person subject to a TEO will be given a permit to return to the UK on specified conditions, including the time slot for return and the travel arrangements. The management of the returnee does not end at the border: by Section 9, obligations can be imposed after return. Several practical difficulties stand in the way of effective enforcement. Many FTFs will return on the terms of the sending State by way of deportation. In addition, TEOs represent a disincentive to return at all and thereby encourage the adoption of terrorism as a way of life. On 29 May 2017, the then Home Secretary, Amber Rudd, revealed that the power had been used for the first time157 and a total of nine orders were issued in 2017.158 Some hanker after even sterner exclusionary responses. The then Defence Secretary, Gavin Williamson, stated that, “I do not believe that any terrorist, whether they come from this country or any other, should ever be allowed back into this country.”159 The idea is that they would be dealt with militarily rather than judicially because “[q]uite simply, my view is a dead terrorist can’t cause any harm to Britain.”160 Even more forthright was Rory Stewart, then Minister for international development: the “only way” to deal with British IS fighters in Syria is “in almost every case” to kill them.161 Verily, it has come to pass. The UK Government killed in drone strikes on 21 August 2015 Reyaad Khan (the main target) and Ruhul Amin.162 157

Walker P (2017) Rudd admits anti-terror exclusion powers used only once since 2015. https:// www.theguardian.com/uk-news/2017/may/29/uk-used-anti-terror-exclusion-powers-once-since2015-amber-rudd-admits. Accessed 31 July 2019. 158 UK Government 2018, p 26. 159 Daily Mail (2017) Defence Secretary is accused of dreaming up a Netflix-style plot by threatening to ‘eliminate’ UK jihadis before they can return to Britain. https://www.dailymail.co. uk/news/article-5153613/Gavin-Williamson-Brits-fighting-be.html. Accessed 26 July 2019. 160 Ibid. 161 BBC News (2017) British IS fighters ‘must be killed’, minister says. http://www.bbc.co.uk/ news/uk-politics-41717394. Accessed 26 July 2019. 162 See UK House of Commons (2015) Hansard (House of Commons) Volume 599 Column 25, 7 September 2015, David Cameron; UN Security Council (2015) Letter dated 7 September 2015 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the President of the Security Council, UN Doc. S/2015/688; UK Joint Committee on Human Rights 2016a; UK Government 2016; UK Intelligence and Security Committee 2017; UK Upper Tribunal (Immigration and Asylum Chamber), Corderoy v Information Commissioner, Decision, 14 December 2017, [2017] UKUT 495 (AAC).

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However, drone strikes against UK targets are still rare.163 Furthermore, only 24 percent of returning FTFs are prosecuted,164 a point reinforced by the Independent Reviewer of Terrorism Legislation, Max Hill QC: [W]e should be looking towards reintegration and moving away from any notion that we’re going to lose a generation due to this travel. […] But […] for those who travelled […] and who return in a state of utter disillusionment […] we have to leave space for those individuals to be diverted away from the criminal courts.165

The latest UK legislative measures to criminalise mere presence in ‘designated areas’ associated with terrorism, with proof of action causing harm, move in the opposite direction to diversion and will be more likely to catch feckless jihadi brides than wicked jihadi fighters.166

4.6

Conclusions

The following themes emerge from this survey. First is the centrality of place and movement within counter-terrorism. This characteristic has grown as the authorities moved away from the model of the alien terrorism perpetrator of 9/11 towards the ‘neighbour terrorists’ of 16/3 (Madrid) and 7/7 (London). There has followed the adaptation of immigration-type measures to citizens and also the responses to FTFs who amalgamate ‘home’ and ‘away’ characteristics. Second, the actual responses still embody considerable reliance on executive measures within counter-terrorism, despite a rhetorical emphasis upon criminalisation. Consequences relate to secrecy and lower due process standards. The third point concerns the complexity of policy and how it reaches out into areas beyond counter-terrorism. This trend reflects not so much ‘normalisation’, which is the usual accusation, but ‘weaponisation’. The notion of ‘weaponisation’ builds on the fact that containment or risk management167 are increasingly objectives of ‘normal law’. The fourth point is that the continuing linkage between terrorism and place and movement demands counter-reactions which embody appropriate safeguards—accountability and the observance of rights. Unfortunately, such protection is often

163

In June 2017, Sally Jones and her son were killed by a US drone. See Anderson 2016b, Annex 2: Foreign Terrorist Fighters and UK Counter Terrorism Laws (Guest Chapter by Prof Emeritus Clive Walker Q.C. (Hon)). 165 Independent Reviewer of Terrorism Legislation (2017) My interview on the Today programme on Thursday 19th October. https://terrorismlegislationreviewer.independent.gov.uk/myinterview-on-the-today-programme-on-thursday-19th-october/. Accessed 26 July 2019. 166 See United Kingdom, Counter-Terrorism and Border Security Act 2019, Section 4. Compare Australia, Criminal Code 1995, Section 119.2 (“Declared Areas”); as considered by Australian Government 2017; Australian Parliamentary Joint Committee on Intelligence and Security 2018. 167 See Macklin 2012. 164

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weakened. In terms of political accountability, immigrants and aliens are marginalised constituencies.168 Even in rights discourse, they can be second class customers.169 There is also no abundance of sympathy for terrorism suspects, whether aliens or not. Two more optimistic points remain. Fifth, the concept of human security, and especially its universality as a value, regardless of place or person, has been valuable in applying rigorous and more visible scrutiny to countervailing exclusive demands for State security170 and for fostering more concrete human rights claims and protections. Sixth, the author argued in 2007171 that, for foreign political activism, “[t]he stance of tolerance is on the wane. The London attacks of July 2005 have triggered a political epiphany in the form of a fundamental revaluation of the dangers of jihadism at home and a decisive policy switch away from ‘Londonistan’.” Since 2007, there are no evident signs of the return of tolerance for aliens, but the rise of ‘neighbour terrorists’ has given pause for thought about devising more empathetic alternatives to policies which have affronted the human security of aliens.

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UK Court of Appeal, R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs, Judgment, 6 November 2002, [2002] EWCA Civ 1598 UK Court of Appeal, R v El-Faisal, Judgment, 4 March 2004, [2004] EWCA Crim 456 UK Court of Appeal, Secretary of State for the Home Department v Hicks, Judgment, 12 April 2006, [2006] EWCA Civ 400 UK Court of Appeal, Secretary of State for the Home Department v AHK, Judgment 2 April 2009, [2009] EWCA Civ 287 UK Court of Appeal, R (Binyam Mohamed) v Secretary of State for the Foreign & Commonwealth Office, Judgment, 10 February 2010, [2010] EWCA Civ 65 UK Court of Appeal, ZZ v Secretary of State for the Home Department, Judgment, 19 April 2011, [2011] EWCA Civ 440 UK Court of Appeal, R (Naik) v Secretary of State for the Home Department, Judgment, 19 December 2011, [2011] EWCA Civ 1546 UK Court of Appeal, Belhaj and Bouchar v Straw, Judgment, 30 October 2014, [2014] EWCA Civ 1394 UK Court of Appeal, ZZ v Secretary of State for the Home Department, Judgment, 24 January 2014, [2014] EWCA Civ 7 UK Court of Appeal, R (Geller) v Secretary of State for the Home Department, Judgment, 5 February 2015, [2015] EWCA Civ 45 UK Court of Appeal, R (Idira) v Secretary of State for the Home Department, Judgment, 20 November 2015, [2015] EWCA Civ 1187 UK Court of Appeal, L1 v Secretary of State for the Home Department, Judgment, 3 December 2015, [2015] EWCA Civ 1410 UK Court of Appeal, SI v Secretary of State for the Home Department, Judgment, 16 June 2016, [2016] EWCA Civ 560 UK Court of Appeal, Hashi v Secretary of State for the Home Department, Judgment, 17 November 2016, [2016] EWCA Civ 1136 UK Court of Appeal, ZZ v Secretary of State for the Home Department, Judgment, 03 March 2017, [2017] EWCA Civ 133 UK Court of Appeal, Kamoka and others v Security Service, Judgment, 25 October 2017, [2017] EWCA Civ 1665 UK Court of Appeal, MS v Secretary of State for the Home Department, Judgment, 31 July 2017, [2017] EWCA Civ 1190 UK High Court, Youssef v Home Office, Judgment, 30 July 2004, [2004] EWHC 1884 (QB) UK High Court, R (Binyam Mohamed) v Secretary of State for the Foreign & Commonwealth Office, Judgment, 21 August 2008, [2008] EWHC 2048 (admin) UK High Court, R (Binyam Mohamed) v Secretary of State for the Foreign & Commonwealth Office, Judgment, 27 August 2008, [2008] EWHC 2100 UK High Court, R (Binyam Mohamed) v Secretary of State for the Foreign & Commonwealth Office, Judgment, 22 October 2008, [2008] EWHC 2519 UK High Court, R (Binyam Mohamed) v Secretary of State for the Foreign & Commonwealth Office, Judgment, 4 February 2009, [2009] EWHC 152 (Admin) UK High Court, R (Binyam Mohamed) v Secretary of State for the Foreign & Commonwealth Office, Judgment, 29 November 2009, [2009] EWHC 2973 (Admin) UK High Court, Belhaj v Secretary of State for Justice, Judgment, 20 December 2013, [2013] EWHC 4111 (QB) UK High Court, MM v Secretary of State for the Home Department, Judgment, 3 December 2015, [2015] EWHC 3513 (Admin) UK High Court, Secretary of State for the Home Department v LF, Judgment, 30 October 2017, [2017] EWHC 2685 (Admin) UK High Court, Belhaj and Bouchar v Director of Public Prosecutions, Judgment, 1 December 2017, [2017] EWHC 3056 (Admin) UK High Court, Belhaj and Bouchar v Director of Public Prosecutions, Judgment, 15 March 2018, [2018] EWHC 513 (Admin)

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UK High Court, Belhaj and Bouchar v Director of Public Prosecutions and Others, Judgment, 15 March 2018, [2018] EWHC 514 (Admin) UK High Court, R (Binyam Mohamed) v Secretary of State for the Foreign & Commonwealth Office, Judgment, 16 October 2009, [2009] EWHC 2549 UK House of Lords, A v Secretary of State for the Home Department, Opinions of the Lords of Appeal for Judgment in the Cause, 16 December 2004, [2004] UKHL 56 UK House of Lords, R (Al-Skeini) v Secretary of State for Defence, Opinions of the Lords of Appeal for Judgment in the Cause, 13 June 2007, [2007] UKHL 26 UK House of Lords, R (Al-Jedda) v Secretary of State for Defence, Opinions of the Lords of Appeal for Judgment in the Cause, 12 December 2007, [2007] UKHL 58 UK House of Lords, RB (Algeria) v Secretary of State for the Home Department; U (Algeria) v Secretary of State for the Home Department; Othman v Secretary of State for the Home Department, Opinions of the Lords of Appeal for Judgment in the Cause, 18 February 2009, [2009] UKHL 10 UK Immigration Appeal Tribunal, KK v Secretary for the Home Department, Determination, 7 May 2004, [2004] UKIAT 101 UK Special Immigration Appeals Commission, T v Secretary of State for the Home Department, Judgment 22 March 2010, Case No. SC/31/2005 UK Special Immigration Appeals Commission, Al Jedda v Secretary of State for the Home Department, Judgment, 18 July 2014, Case No. SC/66/2008 UK Special Immigration Appeals Commission, M2 v Secretary of State for the Home Department, Judgment, 22 December 2015, Case No. SC/124/2015 UK Special Immigration Appeals Commission, LZ v Secretary of State for the Home Department, Judgment, 31 May 2017, Case No. SC/123/2-13 UK Supreme Court, R (JS) (Sri Lanka) v Secretary of State for the Home Department, Judgment, 17 March 2010, [2010] UKSC 15 UK Supreme Court, Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah, Judgment, 31 October 2012, [2012] UKSC 48 UK Supreme Court, Secretary of State for the Home Department v Al Jedda, Judgment, 9 October 2013, [2013] UKSC 62 UK Supreme Court, R (Lord Carlile) v Secretary of State for the Home Department, Judgment, 12 November 2014, [2014] UKSC 60 UK Supreme Court, Youssef v Secretary of State for Foreign and Commonwealth Affairs, Judgment, 27 January 2016, [2016] UKSC 3 UK Supreme Court, Belhaj v Straw and others; Rahmatullah (No 1) v Ministry of Defence, Judgment, 17 January 2017, [2017] UKSC 3 UK Supreme Court, Rahmatullah (No 2) v Ministry of Defence; Mohammed v Ministry of Defence, Judgment, 17 January 2017, [2017] UKSC 1 UK Supreme Court, Belhaj v Director of Public Prosecutions and another, Judgment, 4 July 2018, [2018] UKSC 33 UK Upper Tribunal (Immigration and Asylum Chamber), Youssef v Secretary of State for the Home Department, Decision, 11 March 2016, [2016] UKUT 137 (IAC) UK Upper Tribunal (Immigration and Asylum Chamber), Corderoy v Information Commissioner, Decision, 14 December 2017, [2017] UKUT 495 (AAC) US Ninth Circuit Court of Appeal, Binyam Mohamed v Jeppesen Dataplan, Inc., Decision, 8 September 2010, Case No. No. 08-15693 US Supreme Court, Hamdi v Rumsfeld, Decision, 27 June 2004, Case No. 03–6696 US Supreme Court, Rasul v Bush, Decision, 27 June 2004, Case No. 03–334 US Supreme Court, Hamdan v Rumsfeld, Decision, 29 June 2006, Case No. 05-184 US Supreme Court, Boumediene v Bush, Decision, 11 June 2008, Case No. 06-1195

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Legislation Australia, Criminal Code 1995 European Union, Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/ EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC United Kingdom, Criminal Code (Indictable Offences) Bill 1879 United Kingdom, Immigration Act 1971 United Kingdom, Criminal Justice (Scotland) Act 1949 United Kingdom, British Nationality Act 1981 United Kingdom, Human Rights Act 1998 United Kingdom, Immigration and Asylum Act 1999 United Kingdom, The Immigration (Designation of Travel Bans) Order 2000, SI 2000 No. 2724 (as amended by SI 2001 No. 2377 and SI 2003 No. 3285) United Kingdom, Anti-terrorism, Crime and Security Act 2001 United Kingdom, The Schedule 7 to the Terrorism Act 2000 (Information) Order 2002, SI 2002 No. 1945 United Kingdom, Immigration, Asylum and Nationality Act 2006 United Kingdom, The Immigration (European Economic Area) Regulations 2006, SI 2006 No. 1003 United Kingdom, Borders Act 2007 United Kingdom, Terrorism Prevention and Investigation Measures Act 2011 United Kingdom, Justice and Security Act 2013 United Kingdom, Immigration Act 2014 United Kingdom, Counter-Terrorism and Security Act 2015 United Kingdom, The Counter-Terrorism and Security Act 2015 (Code of Practice for Officers exercising functions under Schedule 1) Regulations 2015, SI 2015 No. 217 United Kingdom, Counter-Terrorism and Border Security Act 2019 United States, Military Commissions Act of 2009

Treaties Convention on the Reduction of Statelessness, opened for signature 4 December 1954, 989 UNTS 175 (entered into force 13 December 1975) Convention relating to the Status of Refugees, opened for signature 22 April 1954, 189 UNTS 138 (entered into force 22 April 1954) Convention relating to the Status of Stateless Persons, opened for signature 28 September 1954, 360 UNTS 117 (entered into force 6 June 1960) International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

Prof. Clive Walker is Professor Emeritus of Criminal Justice Studies at the School of Law, University of Leeds. He has written extensively on terrorism issues, with works including Terrorism and the Law (Oxford University Press, 2011), The Anti‐Terrorism Legislation (3rd ed, Oxford University Press, 2014), the Routledge Handbook of Law and Terrorism (Routledge, 2015) and the Handbook of Criminal and Terrorism Financing Law (Palgrave Macmillan, 2018). He was appointed in 2010 by the United Kingdom Home Office as Senior Adviser to the Independent Reviewer of Terrorism Legislation. He became a Queen’s Counsel (Hons) in 2016.

Chapter 5

Dignity Denied: A Case Study Helen Duffy

Contents 5.1 Introduction........................................................................................................................ 5.2 The Basic Facts Behind the Abu Zubaydah Case............................................................ 5.3 The Faces of Human Dignity and Extraordinary Rendition ............................................ 5.3.1 “High Value Detainees”, Commodification and Human Worth ........................... 5.3.2 Dehumanisation and the Indignity of Torture ....................................................... 5.3.3 Life, Liberty and Dispensable Beings.................................................................... 5.3.4 Civil Death and Disappearance.............................................................................. 5.3.5 Autonomy, Agency and the Social Dimension of Dignity ................................... 5.3.6 Reparation, Restoration or Revictimisation?.......................................................... 5.3.7 Accountability and Dignity .................................................................................... 5.4 Conclusion ......................................................................................................................... References ..................................................................................................................................

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Abstract Human dignity is foundational in the international human rights regime. It lays claim to multiple roles within the international political and legal order—the source or rationale of human rights, a goal of the Charter of the United Nations, the ‘ultimate value’ or ‘cornerstone’ of the international legal order, a right in itself and intimately interlinked with an array of other rights, with assessments of the impact of violations and the nature of reparation. The subjugation of human dignity is evident in much counter-terrorism practice in recent years, and epitomised by the case of rendition and torture victim Zayn al Abideen Mohammed al Hussein (Abu Zubaydah). By reference to diverse philosophical conceptions of dignity and its legal manifestations, this chapter explores the multiple dimensions of human dignity that were and are challenged in deep-rooted and wide-ranging ways by the extraordinary rendition and torture programme and on-going arbitrary detention at

H. Duffy (&) Human Rights in Practice, The Hague, The Netherlands e-mail: [email protected] H. Duffy Leiden University, Leiden, The Netherlands © T.M.C. ASSER PRESS and the authors 2020 C. Paulussen and M. Scheinin (eds.), Human Dignity and Human Security in Times of Terrorism, https://doi.org/10.1007/978-94-6265-355-9_5

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Guantánamo. These include the commodification of ‘high value detainees’, the centrality of dehumanisation, treating lives and liberty as dispensable, ‘civil death,’ and the link between the denial of autonomy, agency and the social dimensions of dignity. It considers in turn the role of reparation and accountability in the restoration of dignity. This extreme case invites us to reflect on the more pervasive neglect of human dignity in counter-terrorism practice and the long-term implications of its demise in the name of human security.

















Keywords Dignity Counter-terrorism Rendition Torture Guantánamo Indefinite detention Reparation Accountability Secret detention Enforced disappearance Abu Zubayda




5.1










Introduction

Human dignity lays claim to multiple roles within the international political and legal order. It is cited as the source of or rationale for human rights, as reflected in the Universal Declaration’s opening lines that rights are based on “the inherent dignity […] of all members of the human family”,1 or the Vienna Declaration of the World Human Rights Conference statement that they “derive from the dignity and worth inherent in the human person.”2 Dignity is conversely described as a goal of the United Nations (UN) system, as reflected in the Preamble of the UN Charter establishing as one of the purposes of the UN “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person”.3 Scholars have correspondingly characterised dignity as the “essential”4 or “foundational concept”5 of the global human rights regime and as “anchoring human rights”,6 while some go so far as to call it “the ‘ultimate value’ that gives coherence to human rights”7 and the “cornerstone of the international legal order.”8 A vast body of literature reveals the diversity of philosophical conceptions of dignity (from the Latin dignitas or ‘worth’) and its own worth.9 As will be seen, whether dignity is an inherent value, something only valuable if exercised, or an 1 UN General Assembly (1948) Universal Declaration of Human Rights, UN Doc. A/RES/217 (III), Preamble. 2 UN General Assembly (1993) Vienna Declaration and Programme of Action adopted by The World Conference on Human Rights, UN Doc. A/CONF.157/23. 3 Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945), Preamble. 4 Killmister 2016, p 1087. 5 Donnelly 2009, p 3; Luban 2009, p 212; Killmister 2016, p 1087. 6 Luban 2009, p 212; Valentini 2017, p 863. 7 Hasson 2003, p 83. 8 Arieli 2002, p 1. 9 Some of this is set out in Donnelly 2009, p 10, and elsewhere in this chapter.

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aspiration, is the subject of intense analysis and dispute. In the international legal order there is no doubt that the development of the concept has been modest,10 and its legal status and normative content remain controversial. For some, indeterminacy renders the concept “vacuous”11 while others emphasise similar characteristics as demonstrative of its multi-faceted and “dynamic” nature.12 Despite debates as to its nature, the prevalence of the use of the concept is indisputable, so much so that it has also been suggested that human dignity is so widely and firmly enshrined as to represent a general principle of international law.13 Its legal manifestations are certainly reflected across the spectrum of international, regional, general and thematic treaties, as well as national constitutions.14 International and regional human rights treaties either specifically enshrine a right to human dignity or, more commonly, reflect in varying ways the close link between dignity and the full range of civil, political, economic, social and cultural human rights.15 Its relationship with many other rights and principles is captured in Foster’s statement that “if you dig deep enough through other principles, you eventually hit dignity”.16 Although the European Convention on Human Rights

10

Petersen 2012, para 37. Bagaric and Allen 2006. 12 See discussion in Straight 2017. 13 Petersen 2012, paras 20–22, on dignity playing dual roles in international law; as a justification for the human rights regime, as well as particular rights, and as a general principle. 14 Botha 2009, p 171, notes “‘[h]uman dignity’ has become an integral part of the vocabulary of comparative constitutionalism.” 15 E.g. UN General Assembly (2000) Millennium Declaration, Resolution 55/2, UN Doc. A/RES/ 55/2; International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR); International Covenant on Economic, Social and Cultural Rights, opened for signature 19 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (ICESCR). The ICCPR and the ICESCR follow the lead of UN General Assembly (1948) Universal Declaration of Human Rights, UN Doc. A/RES/217 (III) in recognising the “inherent dignity” of human beings in each’s respective Preamble. Dignity is also referenced in the substantive articles, e.g. Article 1 of the Universal Declaration of Human Rights, which recognises that “[a]ll human beings are born free and equal in dignity and rights”, and Article 10 of the ICCPR which guarantees that all persons deprived of liberty will be “treated with humanity and with respect for the inherent dignity of the human person”. By contrast Article 5 of the African Charter on Human and Peoples’ Rights, opened for signature 27 June 1981, 1520 UNTS 217 (entered into force 21 October 1986) (ACHPR) guarantees respect for dignity as such, while the Article 11 of the American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS 123 (entered into force 18 July 1978) (ACHR) refers to it in other provisions, e.g. on prisoners’ rights, labour rights and the right to have honour and dignity recognised. See also Protocol No. 13 to the European Convention on Human Rights concerning the Abolition of the Death Penalty in All Circumstances, opened for signature 3 May 2002, ETS 187 (entered into force 1 July 2003). 16 Foster 2011, p 61. 11

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makes no explicit reference to dignity,17 the European Court of Human Rights (ECtHR) has stated that “the very essence of the Convention is respect for human dignity and human freedom”.18 Human rights jurisprudence across systems frequently refers to human dignity as at the core of the absolute right to freedom from torture and other cruel, inhuman or degrading treatment or punishment. However it is also increasingly recognised as an element of most other rights.19 The UN Human Rights Committee recently included the right to life within the group of rights interwoven with dignity, by referring to “the right to a dignified life.”20 Dignity likewise features increasingly in claims in relation to economic and social rights,21 development, migration or climate justice.22 Across the field of human rights practice, it plays a prominent role in explaining and evaluating the nature, extent and gravity of harm caused by violations of a range of rights.23 Beyond international human rights law (IHRL) the fact that “committing outrages upon personal dignity, in particular humiliating and degrading treatment”,24 are violations of humanitarian law, and war crimes,25

17 European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953) (ECHR). 18 ECtHR, Abu Zubaydah v Lithuania, Judgment, 31 May 2018, Application No. 46454/11 (Zubaydah 2018), para 664 citing ECtHR, Pretty v The United Kingdom, Judgment, 29 April 2002, Application No. 2346/02, para 65. 19 According to Antoine Buyse, the ECtHR has referred to dignity in 876 cases, mostly arising in relation to the right to life, the prohibition of torture and the prohibition of slavery and servitude, but also private life, corporal punishment, extended divorce proceedings and the death of a foetus. See Buyse 2016. 20 UN Human Rights Committee (2018) General comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the right to life, UN Doc. CCPR/C/GC/36. This is reflected in the jurisprudence of the Inter-American system and Indian Supreme Court for example. 21 Gearty 2013; Goldewijk et al. 2002. For an example of dignity within economic and social rights litigation in South Africa, see South African Constitutional Court, Minister of Health and Others v Treatment Action Campaign and Others, Judgment, 5 July 2002, Case No. CCT 8/02. 22 E.g. UN Secretary-General 2014. 23 E.g. Killmister 2016, p 1087, on dignity as a justification for the human rights regime generally, and as a way to describe the harm of particular human rights violations. Petersen 2012, para 16, suggests that the references to dignity by the ECtHR are used to highlight the gravity of the violation, rather than using dignity as a clearly defined legal concept. Nevertheless, the Chamber in ECtHR, Tyrer v The United Kingdom, Judgment, 25 April 1978, Application No. 5856/72, para 33 stated that in relation to the prohibition on torture and inhuman and degrading treatment, “one of the main purposes of Article 3 […] [is] to protect […] a person’s dignity and physical integrity”. 24 Rome Statute of the International Criminal Court, opened for signature 17 July 19998, 2187 UNTS 90 (entered into force 1 July 2002), Articles 8(2)(b)(xxi) and 8(2)(c)(ii). 25 Common Article 3 of the Geneva Conventions. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950); Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949,

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reflects the universal and fundamental nature of the rights and obligations at stake.26 It follows that the international legal system not only reflects the importance of norms derived from or reflective of human dignity, but seeks to give them meaningful effect through State and individual responsibility. In this vein the ‘practice of human rights’ has been described as “providing a powerful mechanism to realize in the social world the underlying dignity of the person”.27 Despite conceptual differences, there appears to be “overlapping consensus on the central importance of human dignity”28 in law and philosophy. However, as is often the case in this field, theory stands in sharp contrast to practice, particularly in the security and counter-terrorism context. The targeting and subjugation of human dignity is evident in much counter-terrorism practice in recent years, and epitomised in the case of one of the author’s clients, rendition and torture victim Zayn al Abideen Mohammed al Hussein (Abu Zubaydah). This short chapter explores multiple dimensions of the concept of dignity, and how it is challenged in deep-rooted and wide-ranging ways by his case. It seeks to encourage reflection on the nature and impact of the violations he has suffered as a victim of the extraordinary rendition and torture programme and continues to endure today in on-going arbitrary detention in Guantánamo. This extreme example invites us to reflect on the more pervasive neglect of human dignity in counter-terrorism practice and the implications of its demise in the name of human security.

5.2

The Basic Facts Behind the Abu Zubaydah Case

Abu Zubaydah was the first so-called ‘high value detainee’ secretly detained and tortured by the United States Central Intelligence Agency (CIA) in the extraordinary rendition programme introduced in the aftermath of the 9/11 attacks.29 The programme was authorised on 17 September 2001, when President Bush sent a 12-page directive, or Presidential Memorandum of Notice, to the Director of the CIA and members of the National Security Council authorising the capture of 75 UNTS 135 (entered into force 21 October 1950); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950). 26 Rosen relies on the protection of dignity within the Geneva Conventions to suggest that the obligation to respect the dignity of others and to have one’s own dignity respected is a right in and of itself. See Rosen 2012, p 60. 27 Donnelly 2009, p 11. 28 Luban 2009: “the world’s nations have reached an overlapping consensus on the central importance of human dignity, in which each culture and subculture may tell its own story about what human dignity is and where it comes from.” 29 US Senate Select Committee on Intelligence 2014; ECtHR, Husayn (Abu Zubaydah) v Poland, Judgment, 24 July 2014, Application No. 7511/13 (Zubaydah 2014); Zubaydah 2018, above n 18. For an overview of the legal issues from the rendition programme, see Duffy 2015, Chapter 10.

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suspected members of Al Qaeda and creation of detention facilities outside the United States (US). The overarching purpose was unfettered intelligence gathering beyond legal or political oversight. As expressed by Dick Cheney in a speech the day before the memo was signed, intelligence agencies had to be able to “work sort of on the dark side […] [and] we need to make certain that we have not tied the hands, if you will, of our intelligence communities in terms of accomplishing their mission”.30 Internal memos following his capture reflect the rationale for his secret offshore detention. The fact that clandestine detention on foreign soil would avoid the role of the International Committee of the Red Cross (ICRC) and prevent access to judicial review in US courts were key considerations.31 Alternatives were ruled out, such as Guantánamo due to “possible loss of control to US military and/or FBI”,32 and ships beyond territorial waters or military bases abroad due to the attention they may generate, “as captured terrorists may be held days, months or years [and] likelihood of exposure will grow over time.”33 So it was decided to embark on a coordinated secret detention and interrogation programme that would unfold at CIA-run ‘black sites’ across the globe. Many States and non-State actors actively cooperated in what Senator Dick Marty, Rapporteur of the Parliamentary Assembly of the Council of Europe has described as a “global spider’s web”34 of complicity in torture and secret detention. A key characteristic of the design and modus operandi of the programme was the determination to maintain absolute secrecy. Clandestine CIA secret prisons (or ‘black sites’) operated short term and rotated, with cyclical closures when information concerning their existence began to emerge. Detainees were moved on repeatedly, disorientating them and ensuring they could not be traced. Rendition flights operated through multiple complex networks of ‘front companies’ and agents, flight plans were falsified and normal airport registration, logs and customs controls were withdrawn. After the fact, information has continued to be suppressed, whether through the use of State secrecy or national security laws to obstruct judicial and parliamentary proceedings in the US and other States, censoring references to the rendition programme from military commission proceedings, “enormous pressure”35 being brought to bear on other States and courts by the

30

Interview with US Vice-President Cheney on Meet the Press (16 September 2001). See Human Rights Watch 2005, p 9. 31 US Senate Select Committee on Intelligence 2014, p 22. 32 Ibid. 33 Ibid., p 12. 34 Council of Europe Parliamentary Assembly 2007, Draft Resolution, para 1. 35 Thomas Hammarberg quoted in RT News (2011) Who takes the rap for rendition? https://www.rt.com/news/hammarberg-cia-prisons-guantanamo-861/. Accessed 13 December 2018.

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US, or the “systematic cover-up” by many other States.36 Excessive restrictions continue to be imposed on individuals subject to the programme that remain in detention at Guantánamo, including Abu Zubaydah, as demonstrated in an overreaching Court Order rendering any comment from or information concerning the detainees “presumptively classified”.37 Juxtaposed alongside this secrecy is the remarkable uncovering of facts to date. Gradually over time, information has come to light from multiple sources: journalists, non-governmental organisations, determined investigators, inside sources, memoires and book tours,38 international, national and regional enquiries, UN experts and Special Rapporteurs, national and regional courts and amateur plane spotters. Of particular informational value perhaps was the US Senate Intelligence Committee enquiry, with unprecedented access to internal CIA files, culminating in a lengthy report of which a redacted 524-page summary was made public on 9 December 2014, revealing a wealth of official documentation and putting the facts beyond plausible dispute.39 Litigation has also played a role in catalysing access to information, on the national and international levels.40 Several ECtHR judgments, including two brought on behalf of our client Abu Zubaydah against Poland and Lithuania (finalised in 2015 and 2018 respectively), serve to draw together and lend judicial authority to publicly available information on the programme.41 The net result is a remarkable body of irrefutable evidence, including internal memoranda, authorisations and reports, about the nature of the programme, its purpose, enabling contexts and contributors, its victims and multiple perpetrators. Extensive evidence exists of the horrendous litany of torture and other violations committed against Abu Zubaydah,42 only some of which is highlighted below. His secret detention involved the collaboration of numerous States: detained in Pakistan in March 2002, he was taken to CIA black sites in Thailand, Poland, Guantánamo,

36 Council of Europe Parliamentary Assembly 2007, paras 179, 186. Thomas Hammarberg noted the rendition programme had been “carefully and deliberately covered up” by many other States. See CBS News (2011) Rights Chief: Europe “Complicit” in US Torture. https://www.cbsnews. com/news/rights-chief-europe-complicit-in-us-torture//. Accessed 13 December 2018. 37 Currier 2012. 38 E.g. two individuals involved in the programme have published books: Jose A. Rodriguez Jnr. Hard Measures in 2012 (Rodriguez toured internationally promoting the book) and James Mitchell Enhanced Interrogation in 2016. As one commentator noted “we don’t put torturers on trial, we put them on book tours.” Pierce C (2012) Waterboards, Drones, and the Drones Who Love Them. https://www.esquire.com/news-politics/politics/a13865/jose-rodriguez-cia-book-8484289/. Accessed 18 December 2018. 39 US Senate Select Committee on Intelligence 2014. See also supplementary information in Raphael et al. 2019. 40 Duffy 2018, Chapter 7. 41 Zubaydah 2014, above n 29; Zubaydah 2018, above n 18. The author represented Abu Zubaydah in ECtHR proceedings. 42 As the first victim of rendition programme, copious information documents his torture, the lies and misinformation shared about and Abu Zubaydah’s treatment therein, some of which is noted in this brief chapter. See the US Senate Select Committee on Intelligence 2014, which had 1,001 references to him.

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Morocco, Lithuania and Afghanistan, before being transferred back to Guantánamo in 2006, following the closure of the CIA detention sites “due to press disclosures, reduced cooperation from other nations, and legal and oversight concerns.”43 Multiple other States contributed, directly and indirectly, to rendition in many ways;44 one illustration appears in the findings of a United Kingdom (UK) parliamentary enquiry on UK cooperation and the subsequent decision to refer the matter to the prosecuting authorities.45 Abu Zubaydah has been held in arbitrary detention in Guantánamo since the last black site closed in 2006, with no habeas review, charge or trial. He is slated as a so-called ‘forever prisoner’. Dignity, the denial of dignity, and attempts at its restoration, are at the heart of his case.

5.3

The Faces of Human Dignity and Extraordinary Rendition

Reflections on the relevance of human dignity and Abu Zubaydah’s case can be considered under seven overlapping categories.

5.3.1

“High Value Detainees”, Commodification and Human Worth

Abu Zubaydah was the first of the ‘high value detainees’ (HVDs) taken into CIA custody. As reflected in the HVD epithet, people were classified, and their treatment determined, according to (what transpired to be often erroneous) beliefs as to the intelligence they possessed. They were treated as commodities, reduced to their perceived instrumental value. That intelligence had to be extracted, without limits and without regard to the human cost. The notion that the ‘value’ of the human being could be reduced in this way is antithetical to the notion of human dignity as reflected across human rights law and philosophical doctrine. It clashes with the ‘inherent value’ or worth of the human being, referenced across international law, including the Universal Declaration of

43

Abu Zubaydah 2018, above n 18, para 84; Duffy 2015, Chapter 10. See Duffy 2015, Chapter 10 for a breakdown of forms of responsibility and legal issues arising. 45 Bowcott O (2019) Police investigating role of UK officers in torture of al-Qaida suspect. https:// www.theguardian.com/law/2019/mar/31/police-investigating-role-of-uk-officers-in-torture-of-alqaida-suspect. Accessed 10 May 2019. Raphael et al. 2019, pp 41–43. 44

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Human Rights46 or the ICCPR.47 Writing in 1785, Immanuel Kant, often considered the father of human rights and of the classical theory of dignity,48 described people as “ends in themselves not simply a means to an end.”49 It was on this basis that Martin Scheinin, the first Special Rapporteur on counter-terrorism and human rights, warned with some force that practices such as rendition threatened to turn the clock back “not only sixty years to before the UN Charter, but two hundred years, to a pre-Kantian era.”50 In the same vein, the German Constitutional Court has noted that human dignity is offended when people are treated as “the mere tools of the state”, including through degrading punishments.51 Theories of dignity have in turn emphasised that human worth is not quantifiable —it has no “price”.52 Sadly, in practice it did. Alongside the commodification of detainees was the enrichment of many States and individuals, as reflected in the payment of millions of dollars to cooperative States, and to the consultant psychologists who designed the CIA’s torture techniques.53

5.3.2

Dehumanisation and the Indignity of Torture

Torture has also been described as the “ultimate violation” of human dignity.54 The absolute prohibition on torture and other, cruel, inhuman or degrading treatment or punishment embodies law’s respect for the inviolability of that dignity, which is not

46 47 48 49

Above n 1. Above n 15. Wolbert 2007, p 167; Killmister 2016, p 1088. Kant 1999, p 148 stating that human beings existe comme fin en soi, et non pas simplement comme moyen dont telle ou telle volonté puisse user à son gré; dans toutes ses actions, aussi bien dans celles qui le concernent lui-même que dans celles qui concernent d’autres êtres raisonnables, il doit toujours être considéré en même temps comme fin” [exists as an end in themselves, and not simply as a means by which this or that can be pursued; in all his actions, both in those concerning himself and in those concerning other reasonable beings, he must always be considered at the same time as an end].

50

Scheinin 2010, p 600. German Constitutional Court, Judgment, 21.06.1977, 45 BVerfGE 187 (Life Imprisonment case) cited in Kommers 1997, p 308. 52 Wolbert 2007, p 167. 53 US Senate Select Committee on Intelligence 2014, p 16. The Salim civil litigation in the US provided details in relation to the psychologists Jessen and Mitchell alleged to have contributed to the design of the enhanced interrogation techniques. See also decisions of US Ninth Circuit Court of Appeal, Husayn v Mitchell and Jessen, Opinion, 18 September 2019, Case No. 18-35218, denying state secrecy as a basis to preclude Mitchell and Jessen being subpoenaed. 54 Killmister 2016, p 1088; Ignatieff 2004, p 140. 51

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capable of being ‘weighed’ or ‘waived’.55 Across the domestic law of liberal democracies and international law, the absolute nature of the prohibition is firmly established, even in situations “where the law is at its most forceful and its subjects at their most vulnerable.”56 This is reflected in human rights treaties and consistent jurisprudence of human rights courts and bodies; there can be no derogation, no excuse for torture or ill-treatment, no justification or balancing.57 An ample body of treaty law and jurisprudence also highlights the elements of torture, which include the infliction of serious physical or psychological pain and suffering, taking into account context and individual circumstances in determining when the threshold of torture has been passed.58 It is often characterised by the helplessness or vulnerability of the victim, and domination of the torturer.59 In its effects, it has been noted that torture debases, and has a profound psychological impact, on the tortured, and the torturer.60 Torture has also been described as a means of “dismantling […] a person’s identity and humanity”.61 As such, it is closely linked to dehumanisation—a defining characteristic of the rendition programme. In language that aptly captures this, Abu Zubaydah was described by a former interrogator as the human “guinea pig”62 for the programme—as the person for whom the CIA’s ‘enhanced interrogation techniques’ were designed and on whom their limits were tested. Notorious photographs of detainees in dog collars give graphic illustration to testimonies and reports of detainees being deliberately “treated like an animal”.63 Political posturing explicitly referring to suspected terrorists as “animals” may contribute to this

55 Wolbert 2007, p 173 suggests that it is not possible to weigh the idea of human dignity against something else, and on this basis the prohibition against torture could not be waived in the event of an emergency. 56 Waldron 2005, pp 1727, 1739. 57 Ibid., pp 1745–1746. 58 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987); ICCPR, above n 15, Article 7; ACHR, above n 15, Article 5(2); ACHPR, above n 15, Article 5; ECHR, above n 17, Article 3. 59 Luban 2009, pp 449–450. 60 See, e.g., US Senate Select Committee on Intelligence 2014, p 4; DePillis L (2014) This is how it feels to torture. https://www.washingtonpost.com/news/storyline/wp/2014/12/11/this-is-how-itfeels-to-torture/?utm_term=.107477c8fb0f. Accessed 18 December 2018. 61 Center for Victims of Torture 2015. 62 Leopold J (2010) Torture Diaries, Drawings and the Special Prosecutor. https://truthout.org/ articles/torture-diaries-drawings-and-the-special-prosecutor/. Accessed 13 December 2018. 63 This appeared in relation to Department of Defense and CIA detention. See, e.g., US Senate Committee on Armed Services 2008, which reflects Department of Defense memos recording detainees being forced to “bark and perform dog tricks”, a training which recommended “stripping the individual, having the guards address the individual as if that person were an ‘animal’”.

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process of dehumanisation.64 This reflects a broader phenomenon of ‘otherisation’—classifying as ‘enemies’, ‘the dangerous other,’ and linking with underlying discrimination in the counter-terrorism context—that in turn facilitates torture.65 The ICRC among others has described the rendition programme as “clearly designed to undermine human dignity and to create a sense of futility by inducing, in many cases, severe physical and mental pain and suffering”.66 It did so in a variety of ways, employing a panoply of forms of torture. While the secret nature of the detention has itself been found to constitute torture, as recognised by the UN Human Rights Committee,67 and the Working Group on Enforced or Involuntary Disappearances,68 and denial of all of the procedural safeguards against torture and other, cruel, inhuman or degrading treatment or punishment (such as access to courts, lawyers, doctors and others) themselves constituted violations, it was the treatment of individuals during detention and interrogation that stands out as deliberately targeting human dignity. The ECtHR found there was “no room for speculation”69 that even the “standard conditions of detention” and “standard conditions of transfer” of the rendition programme violated States’ obligations in respect of torture or cruel, inhuman, or degrading treatment under Article 3 of the ECHR.70 Detainees were stripped, hooded, shackled, diapered and denied toilet facilities, and transferred in contorted, painful, semi-reclined positions or strapped to boards. At the site they were shaved, and subject to solitary confinement in cells designed for sensory deprivation and enhanced vulnerability, such as round the clock bright light, white noise, often

64 E.g. President Trump was criticised for his reference to terrorist suspects (following the London 2018 attacks) as “animals”. For recent justifications of torture within the US administration, see, e.g., UNC School of Law Human Rights Policy Lab 2017. 65 UNC School of Law Human Rights Policy Lab 2017 emphasises islamophobia as a crucial dimension of the rendition programme and post-9/11 abuse in the counter-terrorism context. See also Duffy 2015, Chapter 7. 66 ICRC 2007, p 26. 67 See CCPR, María del Carmen Almeida de Quinteros et al. v Uruguay, Views, 15 October 1982, Communication No. 107/1981 (Quinteros), para 14. See also CCPR, El-Megreisi v Libyan Arab Jamahiriya, Views, 24 March 1994, Communication No. 440/1990, paras 2.1–2.5; CCPR, Mojica v Dominican Republic, Views, 10 August 1994, Communication No. 449/1991, para 5.7; IACtHR, Velásquez Rodríguez Case, Judgment, 29 July 1988, IACtHR Series C No 4, para 187. 68 See UN Economic and Social Council (1983) Report of the Working Group on Enforced or Involuntary Disappearances, UN Doc. E/CN.4/1983/14, para 131 which notes that “the very fact of being detained as a disappeared person, isolated from one’s family for a long period is certainly a violation of the right to humane conditions of detention and has been represented to the Group as torture.” 69 Zubaydah 2018, above n 18, para 552. 70 Ibid., paras 549, 640.

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extreme cold and forced nudity to “wear them down physically and psychologically”.71 The prominent role for psychologists in the elaboration and application of ‘enhanced interrogation techniques’72 led to an intricate menu of three categories of physical and psychological torture techniques designed to exploit fears and maximise vulnerabilities.73 The first category of ‘conditioning techniques’, “to demonstrate the detainee has no control over his basic human needs”, included forced nudity, sleep deprivation (authorised for up to 11 consecutive days), dietary manipulation (denying solid food, using rectal feeding) and constant loud music to enhance the “sense of hopelessness”.74 The second, ‘corrective techniques’, involved various forms of hitting and grabbing to shock the detainee and make clear there were no limits to what the captors could do. The third, the ‘coercive techniques’, were more intense. They included ‘walling’ (cables describe Zubaydah being slammed repeatedly into concrete walls); ‘the box’ (Zubaydah “spent a total of 266 hours (11 days and 2 hours) in the large (coffin size) confinement box”75); the exploitation of fears (in Zubaydah’s case insects were put in the box with him on account of a phobia); ice-cold water dousing; stress positions, ‘wall standing’, shackling in extreme positions (which were described as “self-limiting” as muscles gave in) and hanging; and waterboarding (described by a medical officer present as “near drownings”76 and which according to the Senate Report induced convulsions, vomiting, and involuntary leg, chest, and arm spasms in Abu Zubaydah as he became “completely unresponsive, with bubbles rising through his open, full mouth”).77 During one early period of captivity, the CIA subjected Zubaydah to these enhanced interrogation techniques on a near 24-hour-per-day basis.78

71 US Senate Select Committee on Intelligence 2014, pp 4, 40; US Central Intelligence Agency 2003; US Department of Justice Office of Legal Counsel 2004. See also reports by Jessen cited in Siems L (2017) Inside the CIA’s black site torture room. https://www.theguardian.com/us-news/ ng-interactive/2017/oct/09/cia-torture-black-site-enhanced-interrogation. Accessed 13 May 2019. 72 Ibid. At first the use of ‘enhanced interrogation techniques’ on Abu Zubaydah and others were authorised orally, but on 1 August 2002, the US Department of Justice issued a memorandum, authorising in writing the use of ten identified ‘enhanced interrogation techniques’, and provided general guidelines for determining the lawfulness of additional enhanced interrogation techniques. See US Department of Justice Office of the Assistant Attorney General 2002, Part III. 73 US Department of Justice Office of the Principal Deputy Assistant Attorney General 2005, pp 12–14. 74 US Senate Select Committee on Intelligence 2014, p 29. 75 The quote continues “[…] and 29 hours in a small confinement box, which had a width of 21 inches, a depth of 2.5 feet, and a height of 2.5 feet. […] The CIA interrogators told Abu Zubaydah that the only way he would leave the facility was in the coffin-shaped confinement box.” Ibid., p 42. 76 US Senate Select Committee on Intelligence 2014, p 86. 77 Ibid., p 3. 78 Ibid., p 40.

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For all the gravity of the approved ‘enhanced interrogation techniques’, the Senate Report describes torture of detainees, including Abu Zubaydah, as “brutal and far worse”79 than had been previously disclosed in the memoranda. Moreover, it is clear from the nature of the torture methods employed in the rendition programme, such as extensive forced nudity, treatment counter-indicated by religious belief and sexual violence, that they were designed specifically to target the dignity of the human being. Unsurprisingly ‘humiliation’ features large in detainee testimony.80 Forcing detainees to stand on injured limbs or the deliberate withholding of medical care as an interrogation technique show particular cruelty and intent to maximise pain and suffering.81 Threats to rape family members, mock executions and Russian roulette, rectal feeding using “the largest […] tube we had”82 indicate the depths to which those involved in the programme stooped to debase their victims. The ‘torture playlist’, featuring Barney the Purple Dinosaur’s ‘I love you, you love me, we are a happy family’ or Spears’ ‘Hit me baby one more time’ reveal the elements in a sinister game of torture, fear, cruelty and humiliation. If judged by the desire to render human beings vulnerable and desperate, to break their will, it could be said that the programme succeeded.83 Acute levels of distress, physical and emotional breakdowns, and lasting harm are documented, while records show men so broken by prolonged torture that they would walk to the waterboard themselves when instructed.84 The information-gathering or preventive impact of the programme is a different matter. Notably interrogators came to the conclusion that it was highly unlikely that Abu Zubaydah had the information that had been claimed, and even that his mistreatment was counter-productive, but despite repeatedly making this clear to headquarters, they were instructed to continue.85 More broadly, the Senate Report concludes that the so-called ‘enhanced interrogation’ did not lead to actionable intelligence and were “not an effective

79

Ibid., p 3. E.g. Al Asad 2011, para 14. 81 E.g. ibid., footnote 584: “Abu Zubaydah’s treatment also included, for example, sexual violence […] and the deliberate withholding of medical treatment leading to permanent physical damage as an interrogation tactic.” 82 Ibid., p 100. 83 Descriptions in exchanges between guards and psychologists noted as a matter of fact that after a certain point “all of the prisoners shake” at the Afghan site which did not seem to be consider unusual. See Siems L (2017) Inside the CIA’s black site torture room. https://www.theguardian. com/us-news/ng-interactive/2017/oct/09/cia-torture-black-site-enhanced-interrogation. Accessed 13 May 2019. The same psychologists extolled the virtues of the programme and the enhanced interrogation techniques. See, e.g., Director of Central Intelligence 2016. 84 US Central Intelligence Agency 2002, p 41: e.g. “[a]t the onset of involuntary stomach and leg spasms, subject was again elevated to clear his airway, which was followed by hysterical pleas. Subject was distressed to the level that he was unable to effectively communicate or adequately engage the team.” 85 US Senate Select Committee on Intelligence 2014, p 42. He was reportedly cooperative when detained, and interrogators assessed it was their “collective preliminary assessment” that he had no additional information; the cable exchange shows despite growing concerns that it was “highly 80

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means of obtaining accurate information”.86 Even judged by its own myopic intelligence gathering goals, the trade-off between dignity and security does not appear to have paid off.

5.3.3

Life, Liberty and Dispensable Beings

Linked to commodification is the treatment of human beings as essentially disposable. Cables from the first black site where Zubaydah was held reveal sober instructions “in the event that he dies [as] we need to be prepared to act accordingly, keeping in mind the liaison equities involving our hosts”.87 The risk to his life is clear from the Senate Report passages recording how he had lost consciousness through persistent waterboarding and had to be resuscitated.88 Indeed other victims fared less well, such as the tragic case of Gul Rahman, who died of hypothermia in an Afghan CIA black site.89 Others became so “hopeless and helpless” they tried to take their own lives.90 Death is not the only way in which lives were bargained with and discarded. Prior to the torture of Abu Zubaydah, CIA officials sought assurances from CIA headquarters: “especially in light of the planned psychological pressure techniques to be implemented, we need to get reasonable assurances that [Abu Zubaydah] will remain in isolation and incommunicado for the remainder of his life”.91 It cites also the reply cable: [Abu Zubaydah] will never be placed in a situation where he has any significant contact with others and/or has the opportunity to be released. While it is difficult to discuss specifics at this point, all major players are in concurrence that [Abu Zubaydah] should remain incommunicado for the remainder of his life.92

This chilling commitment sadly corresponds to the reality of what has happened since. Abu Zubaydah has been held in arbitrary detention for nearly 17 years. He has not had the opportunity to challenge his detention before any court, there are no charges against him and no prospect of trial or release, all on the supposed basis that unlikely” he had any information, they were repeatedly told to continue. This in turn was based on erroneous information that he was trained to resist interrogation. 86 US Senate Select Committee on Intelligence 2014, p 2. This contributes to the Committee’s first finding that “based on a review of CIA interrogation records […] the use of the CIA’s enhanced interrogation techniques was not an effective means of obtaining accurate information.” 87 US Senate Select Committee on Intelligence 2014, p 34. 88 Ibid., refers to “bubbles rising through his open, full mouth.” 89 US Senate Select Committee on Intelligence 2014, p 54. 90 E.g. Suleiman Abdullah whose suicide attempt is recorded in these terms in Raphael et al. 2019, p 21. 91 The Senate Report cites also the reply cable: US Senate Select Committee on Intelligence 2014, p 35. 92 Ibid.

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they are “not feasible”. The US dropped allegations that he was “the number 3 in al Qaeda” once he got access to a lawyer, and the Government now acknowledges he was not even a member of al Qaeda, backed up by the Security Council decision to delist him from the sanctions regime on the same basis. But asserting broad ‘law of war’ authority, in relation to an endless war on terrorism of amorphous scope, they nonetheless assert the right to detain him for life—a ‘forever prisoner’ without charge or trial. The evolution of human rights law to recognise that the imposition of a life sentence without parole itself violates human dignity provides a striking parallel.93 As Luban notes, in assuming that a prisoner is not capable of redemption, stripping him or her of any opportunity for personal development, life imprisonment without parole amounts to complete subordination of the person and an assault on dignity.94 In this vein, the concept of dignity played a significant role in the German Constitutional Court’s 1977 Life Imprisonment case,95 in which the Court noted that “the state strikes at the very heart of human dignity if it treats the prisoner without regard to the development of his personality and strips him of all hope of ever earning his freedom”.96 While life imprisonment was not found per se unconstitutional, the prisoner’s individual circumstances, and capacity for rehabilitation and resocialisation, did have to be taken into account for the principles of human dignity and the rule of law to be respected.97 These findings were reiterated in the subsequent 1986 War Criminal case, in which the Constitutional Court held that regardless of the gravity of a prisoner’s crime, dignity requires some realistic hope of regaining freedom.98 These decisions were referred to more recently by the ECtHR which, in a line of cases, has followed the lead of some States in the Inter-American system and found life imprisonment with no prospect for parole to be contrary to the requirements of respect for dignity in IHRL.99

93

Note how the associated debate has focused on dignity. See, e.g., De Beco 2005, p 414. Luban 2009, pp 447–448. 95 Life Imprisonment case, above n 51, cited in Kommers 1997, pp 305–311. 96 Kommers 1997, p 309. 97 Ibid., p 310. 98 German Constitutional Court, Judgment, 24.04.1986, 72 BVerfGE 105 cited in Kommers 1997, pp 311–312. 99 ECtHR, Vinter and Others v The United Kingdom, Grand Chamber Judgment, 9 July 2013, Application Nos. 66069/09, 130/10, 3896/10, paras 15–28, 110, 113; ECtHR, Kafkaris v Cyprus, Grand Chamber Judgment, 12 February 2008, Application No. 21906/04, para 97. See also ECtHR, Trabelsi v Belgium, Judgment, 4 September 2014, Application No. 140/10, paras 112– 115, 137, stating that “the imposition of an irreducible life sentence” may violate Article 3 of the ECHR, depending upon “whether a life prisoner can be said to have any prospect of release” including processes to establish whether “progress had been made towards rehabilitation”. See also IACtHR, Mendoza et al. v Argentina, Judgment, 14 May 2013, IACtHR Series C No. 260, para 315 where the Inter-American Court of Human Rights found the imposition of life imprisonment on juveniles to constitute a breach of the ACHR, noting State responsibility for “restoring human dignity”. Life imprisonment is prohibited in several constitutions, including in Latin America, reflected in e.g. the Inter-American Convention on Extradition, opened for signature 25 February 94

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This rationale applies a fortiori in this context where individuals like Zubaydah can be designated ‘forever’ prisoners, absent any charge, trial or due process whatsoever.

5.3.4

Civil Death and Disappearance

While dignity is at the core of IHRL, the rendition programme represents the jettisoning of the framework of rights and law entirely. It violates many rights—not only torture noted above, but also the right to equality, family life, private life, liberty, fair trial, non-refoulement, various economic and social rights and the right to a remedy. Beyond particular violations, it represents the negation of rights and the denial of the individual as a legal subject. The fact that the right to recognition as a person before the law, and to equality before the law, are both linked to human dignity, has been upheld by courts around the globe in recent years.100 In its essential design and purpose, the rendition programme was about holding individuals beyond law’s reach. As the ECtHR concluded the Abu Zubaydah litigation in 2018, “the whole purpose of the programme was to remove persons from any legal protection”.101 It is the removal from the protection of the law that has led to the characterisation of rendition as enforced disappearance of persons.102 As the UN Declaration on the Protection of all Persons from Enforced Disappearance reflects, “any act of enforced disappearance is an offence to human dignity.”103 In

1981, OASTS 60 (entered into force 28 March 1992), Article 9. For an analysis, see, e.g., Public International Law & Policy Group Netherlands 2016; Valeska and Fraser 2015, p 551. 100 E.g. in the context of the equality rights, gender recognition has been recognised as, inter alia, about dignity, while discrimination, in some circumstances, as a factor leading to treatment being considered per se degrading. 101 Zubaydah 2018, above n 18, para 656. 102 The International Convention for the Protection of All Persons from Enforced Disappearance, opened for signature 20 December 2006, 2716 UNTS 3, (entered into force 23 December 2010) defines disappearance as “the arrest, detention, abduction or any other form of deprivation of liberty committed by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.” See e.g. UN General Assembly (2010) Human Rights Council: Joint study on global practices in relation to secret detention in the context of countering terrorism of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak; the Working Group on Arbitrary Detention represented by its Vice-chair, Shaheen Sardar Ali; and the Working Group on Enforced or Involuntary Disappearances represented by its Chair, Jeremy Sarkin, UN Doc. A/HRC/13/42, para 28: “[e]very instance of secret detention also amounts to a case of enforced disappearance”. Zubaydah 2018, above n 18, para 656. 103 UN General Assembly (1992) Declaration on the Protection of all Persons from Enforced Disappearance, UN Doc. A/RES/47/133, Article 1.

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this respect it should be recalled that rendition made victims not only of the individuals detained, but also their family members.104 The disappearance of a close relative with no information provided to the family, nor an effective investigation, has long been found to amount to cruel, inhuman, or degrading treatment.105 By reference to a moving target of nonspecific allegations, as to Abu Zubaydah and the abstract danger to security he is deemed to represent, with no way to defend himself or to pursue his freedom, his captors seek to justify the obliteration of his legal rights for life. The scenario has shades of the inquisitorial concept of ‘civil death’ where individuals through their conduct were deemed to lose all civil rights; they could be wronged or even killed by others with impunity, as they were ‘outside the law’. The rejection of this notion, and with it the assertion of individuals as subjects of law, not its mere objects, was a defining feature of enlightenment legal thinkers such as Cesare Beccaria’s famous treatise On Crimes and Punishment in 1764.106 One’s status as a legal subject, like one’s humanity, cannot be forfeited, even if (unlike in his case) the individual had been found guilty of serious crimes that deserved punishment within the law. As the German Constitutional Court recalled “dignity is not at the disposal of the individual”, or the State.107 The idea of forfeiture of rights and being placed beyond the law runs counter to the most basic principles of human dignity, legality and universality underpinning the international legal framework.

5.3.5

Autonomy, Agency and the Social Dimension of Dignity

For many philosophers, the concept of dignity is closely linked to autonomy and agency, which are particularly worthy of reflection in this context. Kantian thought starts with the assumption of human beings’ autonomy. ‘Free will’ is essential precisely as human dignity is related to human agency—the ability to make choices and exercise a degree of control over one’s own life and actions. Chen Bo states that 104 ICRC 2007. See, e.g., Quinteros, above n 67, para 14; ECtHR, Varnava and Others v Turkey, Grand Chamber Judgment, 18 September 2009, Application Nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90, 16073/90, paras 200–202; ECtHR, Tanis and Others v Turkey, Judgment, 2 August 2005, Application No. 65899/01, para 219; ECtHR, Cyprus v Turkey, Grand Chamber Judgment, 10 May 2001, Application No. 25781/94, paras 155– 8; ECtHR, Kurt v Turkey, Judgment, 25 May 1998, Application No. 15/1997/799/1002, para 134; Human Rights Chamber for Bosnia and Herzegovina, Avdo and Esma Palić v Republika Srpska, Decision on Admissibility and Merits, 11 January 2001, Case No. CH/99/3196, paras 79–80. 105 See, e.g., ECtHR, Bazorkina v Russia, Judgment, 27 July 2006, Application No. 69481/01. See also ICRC 2007. 106 Beccaria 1986, who rejected the idea of criminal justice that treated human beings as objects and as sources of information. See above Sect. 5.3.3 on the related issue of the commodification of the individual. 107 Klein 2002, p 148.

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“[t]he evolution of the concept of dignity in so-called Western countries is based on the premise that human beings have agency.”108 Beitz in turn cites torture as the paradigm of a victim being precluded from exercising such agency, in the sense that “[t]he victim’s capacity for self-direction is, so to speak, enlisted by the torturer and turned against [him or] her”.109 Several authors emphasise our relationship to others and to society as fundamental to our humanity, and our dignity. For example Joseph Chan emphasises the somewhat neglected social dimensions of dignity.110 It has likewise been suggested that “dignity is not felt unless it is recognized by other people; it is an inherently social and, indeed, political phenomenon.”111 Only by interacting with others can we develop our personality, and—depending on one’s point of view—see our dignity reflected, affirmed or realised. Through for example the exercise of freedom of expression and religion other rights and interests of social beings can be given effect. The case of Abu Zubaydah is a striking example of how the autonomy and agency of a human being can be eviscerated. Most obvious is the rendition programme’s careful design to ensure that detainees were entirely at the mercy of their captors, reflected in the official documentation of the programme. Complete isolation, sensory manipulation and control were essential tactics of choice: from prolonged, round the clock solitary confinement described as “imperative […] as part of psychological warfare”,112 shackling or confinement in small boxes where detainees could not move, to smaller details such as guards at all times communicating with hand signals and wearing “black balaclavas to keep Abu Zubaydah from seeing the security guards as individuals who he may attempt to establish a relationship or dialogue with.”113 The serious impact of no communication with the world, other detainees or guards, sometimes for months or years, has been well-documented.114 In the current Kafkaesque situation in which Abu Zubaydah finds himself, he continues to be denied the most basic elements of autonomy and agency, to a degree antithetical to human dignity. Although the detention conditions have

108

Bo 2014, p 3. Beitz 2013, p 289. 110 The Confucian view of human persons as capable of realising ‘Ren’, the highest Confucian moral ideal, means certain ability or disposition to care for and sympathise with others. See Chan 2014, p 118. See also Killmister 2016, pp 1087–1101. 111 Fukuyama F (2012) The Drive for Dignity. https://foreignpolicy.com/2012/01/12/the-drivefor-dignity/. Accessed 13 December 2018. 112 Raphael et al., p 79. 113 Reflected in CIA cables setting out the detention and interrogation in detail. See US Senate Select Committee on Intelligence 2014, p 28. 114 The negative effects of solitary confinement are well documented, and such confinement on a prolonged basis amounts to torture. Numerous reports record the long-term psychological impact of the rendition programme on victims. See, e.g., International Bar Association 2009, para 1.29; American Psychological Association 2007; Weissman et al. 2017, p 7. 109

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improved over time, his communication with the outside world remains extremely limited, through periodic visits from security cleared counsel. He has no opportunity to know allegations against him and to challenge them, no opportunity to secure his release through trial or parole. He is completely disempowered by the arbitrariness of the detention regime. The powerlessness is perhaps epitomised by the judicial ruling that all information from or about Abu Zubaydah is “presumptively classified”, curtailing communication with the outside world. For this reason the ECtHR judgment against Poland endorses the description of him as “a man deprived of his voice.”115 Being silenced is especially excruciating alongside his public vilification—the falsehoods consistently pandered as to his supposed role in al Qaeda and information provided by him under torture, both of which were repudiated by the Senate Select Committee Intelligence report.116 It is exacerbated by the selective leaking of incriminating diary entries of a young man, while his attempts to release the diaries more fully have been blocked. On-going legal challenges have had limited success in enabling his art work, and that of other detainees, to be released. There is no plausible national security justification for refusing to allow the world to see the Guantánamo detainees’ art or hear their poetry. But in the taking away of peoples’ voices and expression, they are more deeply controlled and punished, deprived in another way of their dignity and their humanity. They are left with no way to meaningfully challenge the allegations and aspersions against them, in a court of law or of public opinion. As detainees are denied the opportunity to express themselves, we are all denied the possibility to move beyond the monstrous caricatures of dangerous ‘animals’, the “worst of the worst”,117 that purport to justify the unjustifiable.

5.3.6

Reparation, Restoration or Revictimisation?

Many States, individuals and non-State actors bear responsibility for violations associated with the rendition programme and Guantánamo. Approximately 54 115

Zubaydah 2014, above n 29, para 80. The US Senate Select Committee on Intelligence lays bare the deliberate and repeated efforts by US Government officials to mislead the public and various oversight bodies about Abu Zubaydah. The CIA provided inaccurate information to the Office of Legal Counsel on Abu Zubaydah’s status within al-Qaeda, its certainty that Abu Zubaydah was withholding information. CIA reports acknowledge also that he was “miscast” as a senior terror leader and that claims about his involvement with al Qaeda were “inaccurate”. US Senate Select Committee on Intelligence 2014, pp 5, 21. See also “misconceptions” about Abu Zubaydah as a senior al Qaeda lieutenant. Ibid., pp 466, 410: “Abu Zubaydah was not a member of al Qaeda”. 117 E.g. Former Vice President Cheney described prisoners this way. See NBC News (2009) Cheney: Gitmo Holds “Worst of the Worst”: Former Vice President Says Killing Suspects was Only Other Option. www.nbcnews.com/id/31052241/ns/world_news-terrorism/t/cheney-gitmoholds-worst-worst/#.XBOpbmhKg2w. Accessed 13 December 2018. 116

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States cooperated in diverse ways—in the establishment of ‘black sites’; by allowing staging and stopover of rendition aircraft; by providing intelligence that led to capture and detention; or through other cooperation with the US authorities.118 They were supported by a complex network of non-State actors, and high level officials across the globe. Global responsibility is not, however, matched by global efforts at redress, which in turn has implications for individuals directly affected and the rule of law. Responses to rendition may represent a reassertion, or a further erosion, of human dignity. One of the goals of reparation, as understood in international law and practice, is restorative. It may seek to put the individual back in the situation he or she was in prior to the violations or—through acknowledgment, apology, compensation or otherwise—redress the harm suffered. Attacks on human dignity do not lend themselves to straightforward restitution, but the reparation and accountability can and should go some way towards restoring the dignity of survivors of torture. One feature of the current landscape that stands out as particularly insidious is the refusal of many States to provide simple recognition to victims that they have had their rights violated. As facts have come to light, deniability has been rendered implausible. Passing recognition—such as Obama’s jaunty reflection that “we tortured some folks”119—fall far short of the individualised acknowledgment that might constitute meaningful reparation. Practice in relation to apologies is particularly sparse and noteworthy. Despite being an aspect of reparation increasingly emphasised by victims, including in litigation claims, with a few exceptions (notably Canada following the Maher Arar enquiry and Omar Khadr litigation) States have refused to apologise.120 Instead, ex gratia payments and settlements have been offered in several States (including Australia and the UK), often explicitly without recognition of wrong-doing or apology. An interesting example arose in the UK where the Belhaj family refused a substantial financial offer of settlement, but offered to settle for three pounds (one for each rendered victim), and an apology— indicative of the symbolic restorative value of the latter. The State refused for years, in favour of pursuing costly litigation it could not win; eventually, a rare but important apology was forthcoming as part of a negotiated settlement seven years later.121 The basis for the aversion to acknowledgment and apology is a matter of speculation. But shadows emerge of unprincipled distinctions between ‘deserving’ 118

Open Society Justice Initiative 2003; Duffy 2015, Chapter 10. Lewis P (2014) Obama admits CIA “tortured some folks” but stands by Brennan over spying. www.theguardian.com/world/2014/aug/01/obama-cia-torture-some-folks-brennan-spying. Accessed 13 December 2018. 120 Duffy 2018, Chapter 7, p 157. 121 See, e.g., The Guardian (2019) UK spent £11m of public money fighting Libya rendition case: Figures show vast sums spent resisting apology demands over rendition of Libyan dissidents. https://www.theguardian.com/world/2019/apr/24/uk-public-money-fighting-libya-rendition-caseabdel-hakim-belhaj-fatima-boudchar. Accessed 29 July 2019. 119

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victims—such as victims of other crimes, including terrorism, who have quite rightly been the focal point of attention in recent years—and other, somehow suspect victim groups. To deny rights on this basis reflects what Stanley Cohen identified as “implicatory denial.”122 Dubious or even discriminatory distinctions, and value judgments as to human worth that underpin them, are antithetical to basic principles of human rights, and can only compound the original violation. This political context makes access to courts especially important. The right to present and articulate demands has been associated with some conceptions of dignity. Joel Feinberg goes so far as to say that dignity “may simply be the recognizable capacity to assert claims”.123 Osvaldo Guariglia writes of dignity as entailing “equal possibilities […] to exercise rights and articulate reasoned demands”.124 Exercising the right to state one’s case and pursue action can be empowering for victims turned complainants and may be a key goal in strategic litigation in this field. Judgments in turn may serve to validate experiences, acknowledge the individual as a human being who has been wronged, offering vindication or other form of reparation.125 The right to bring such claims, part of the right to a remedy and reparation, is firmly established in international law. Yet, in practice access to justice is extremely elusive for rendition victims. Myriad obstacles include State secrecy or immunities in US courts which have prevented cases being heard at all, underscoring the victims’ powerlessness and the refusal to hear and to dignify their experience. There have been a few narrow gaps through which cases have begun to squeeze, such as the cases against the psychologists who designed the CIA’s torture techniques which were not subject to State secrecy and proceeded, giving rise to a host of new information, though they were ultimately settled.126 Abu Zubaydah has still had no meaningful opportunity to seek legal protection before domestic courts in the US or elsewhere.127 Impediments in a number of States in turn make international and transnational action more potentially important. In the Abu Zubaydah case, the first access to a

122

Poynting 2016, p 208 referring to ECtHR, Babar Ahmad and Others v The United Kingdom, Judgment, 10 April 2012, Application Nos. 24027/07, 11949/08, 36742/08, 66911/09, 67354/09, and failure to address his alleged torture as implicatory denial. 123 Feinberg 1966, p 143. 124 “[I]guales posibilidades para alcanzar una capacidad madura que le permita hacer uso de sus derechos y articular argumentativamente sus demandas.” Guariglia 1994, p 186 (translation by the author). 125 On the various impacts of human rights litigation, see Duffy 2018, Chapters 3 and 4, and, in the counter-terrorism context, Chapter 7, pp 157–165. 126 For a detailed account of the Salim case against Mitchell and Jessen, see American Civil Liberties Union (2017) Salim v Mitchell – lawsuit against psychologists behind CIA torture program. https://www.aclu.org/cases/salim-v-mitchell-lawsuit-against-psychologists-behind-ciatorture-program. Accessed 13 December 2018. See for a brief discussion Duffy 2018, Chapter 7. 127 See Sect. 5.3.7: the only legal avenue he has been able to access thus far has been international human rights litigation.

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court at all, and judicial recognition of violations, was before the ECtHR. The Court found in his favour in two cases—against Poland which was the first of the European States to host a secret black site on its territory, and Lithuania which was the last. The impact of those judgments should not be overstated. They will not impact directly on the ongoing deprivation of liberty and dignity discussed in this chapter. He could not state his case or present an affidavit to the Court due to the excessive secrecy regime. No-one has been held to account as a result. But the unusually long and detailed judgments of the ECtHR at least recognise his extreme suffering, the multiple violation of his rights, and the responsibility of the States involved. Both judgments ordered the payment of symbolically large damages awards. Although not the subject of the applications, the Court took the unusual step of lambasting his detention in Guantánamo as a “flagrant denial of justice”,128 and “anathema to the rule of law.” Of potential future significance, the Lithuania judgment recognises that States which share responsibility for contributing to on-going violations also share responsibility to take steps to bring them to an end; in this case Lithuania was required to make representations in respect of Abu Zubaydah’s ongoing denial of justice in Guantánamo.129 The judgment called for investigation and accountability.

5.3.7

Accountability and Dignity

The rendition programme involved serious crimes under national and international law: torture, enforced disappearance of persons and severe deprivation of liberty which, given their systematicity, would amount to crimes against humanity. These crimes fall within the jurisdiction of many States around the world.130 One of the purposes of the European Court cases referred to above was to catalyse accountability in participating States. The ECtHR found violations of the duties to investigate, to meet the right to truth belonging to individuals and society, and to submit for prosecution those responsible. However, to date impunity remains the norm. In the US, there has been no meaningful commitment to criminal investigation, as Obama famously committed to “look forward as opposed to looking back”.131 Elsewhere, a series of trials in absentia in Italy resulted in convictions including of CIA operatives, but also pardons. Numerous other States purport to be investigating (albeit with questionable effectiveness), including Poland and Lithuania where the ECtHR judgment 128

Zubaydah 2014, above n 29, paras 552–559. For a fuller discussion of impact, see Duffy 2018, Chapter 7. 130 Duffy 2015, Chapter 10. It also potentially falls within the jurisdiction of the ICC if domestic options continue to fail. 131 See, e.g., Duffy 2014, p 328; Johnston D, C Savage (2004) Obama Reluctant to Look Into Bush Programs. www.nytimes.com/2009/01/12/us/politics/12inquire.html?pagewanted=all&_r=0. Accessed 13 December 2018. 129

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provides a tool to pressure for accountability.132 The obstacles facing investigators and prosecutors are many and varied, however, including State secrecy,133 and the politicisation of justice, from within their own States and beyond. While some momentum has gathered, the fact remains that only one person has been imprisoned in relation to the torture and rendition, namely John Kiriakou, the CIA agent, punished for making public information on the programme.134 The importance of impunity for our topic can be viewed in various dimensions. Among them, the role guarantees of impunity played in creating an enabling environment for torture is worthy of note, as laid bare in the memoranda and CIA cables preceding the torture of Abu Zubaydah. The Department of Justice legal advice provided reassurance sought by interrogators and others they would not be held to account, based on spurious interpretations of crimes and defences.135 As noted, perpetrators sought assurances that Abu Zubaydah would remain incommunicado for life, apparently mindful of their own vulnerability “in light of the planned psychological pressure techniques to be implemented.”136 Conversely, accountability would be the antidote to that enabling environment, providing the promise of a future where such impunity could not be guaranteed. Accountability also reasserts the relevance and force of the rule of law—that no one is above the law, and no one beneath it. Criminal law recognises the gravity of wrongs and underscores the agreements society has forged with itself as to lines across which we will not cross, to remain true to our own values as a society, or a global community, including at their core the dignity and inviolability of the person. It is relevant in turn to insisting on a rule of law approach to counter-terrorism in the future, which as the UN counter-terrorism strategy underscores is integral to effectiveness and to security in the longer-term.137 Pursuing investigation, truth, accountability and non-repetition are also important parts of the process of reparation for victims and survivors discussed above. Accountability processes have the potential to validate their experience, and acknowledge the egregious nature of the crimes committed against them, their impact and wrongfulness and that they matter. It represents the implementation of 132

The cases are subject to supervision by the Council of Europe Committee of Ministers, which has called on both States to report on measures of investigation, accountability and outreach to the US. 133 The Parliamentary Assembly of the Council of Europe has acknowledged the “intolerable impediment to the independence of justice” in relation to the trial of the kidnappers of Abu Omar, that has been hindered by the obstacle of State secrecy. Council of Europe Parliamentary Assembly 2007, Draft Resolution, para 14. 134 The New York Times (2012) No Penalty for Torture. www.nytimes.com/2012/09/05/opinion/ no-penalty-for-torture.html. Accessed 13 December 2018. 135 E.g. indicating that “a defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering”, albeit it in discredited legal advice entirely alien to international law standards. US Department of Justice Office of the Assistant Attorney General 2002, p 4. 136 US Senate Select Committee on Intelligence 2014, p 35. 137 UN General Assembly (2006) The United Nations Global Counter-Terrorism Strategy, UN Doc. A/RES/60/288, pp 2, 4, 9.

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States’ obligations and victims’ legal rights, reasserting their legal status as subjects (not objects) of law, as agents, rights-bearers and human beings. Legal processes are part of a much bigger struggle to tell the real human stories behind the labels and euphemisms of enemy combatants, HVDs and enhanced interrogation. Though practice to date falls far short of this goal, reparation and accountability can contribute to the humanisation of those dehumanised by the rendition programme and on-going violations.

5.4

Conclusion

Whatever our conception of human dignity, the rendition programme and on-going negation of Abu Zubaydah’s rights represent multi-dimensional violations, that go to the core values of our international system. While it may be open to dispute whether states can in fact deprive human beings of their dignity,138 they can certainly deny and attack that dignity, as epitomised by the Abu Zubaydah case. By recognizing the multiple ways in which his dignity has been undermined, and his life effectively bargained away, we can appreciate more fully the nature and profound impact of the wrongs inflicted on him and other victims of Guantánamo, the rendition programme and the surrounding denial of justice. Responses to his torture, rendition and on-going ‘flagrant denial of justice’ can in turn play a restorative role. As the ECtHR indicated, the shared responsibility of many for the violations should now translate into shared responsibility for bringing them to an end, and restoring Zubaydah’s legal personhood, within a framework of law in which his right to a “life with dignity”139 can be respected. The full implications of the sort of dehumanisation his case represents remain uncertain. It has been noted that torture debases, and has a profound psychological impact, on the tortured, and the torturer.140 Its impact spreads outwards to others, to the quality of the societies we live in, the values and the rule of law that protect us all.141 Many have voiced concerns as to long term security implications of discarding human dignity and of injustice—the counter-productivity of abusive

138 So far as dignity reflects the inherent value of human life, there is a debate among moral philosophers, sometimes reflected in judgments and legal argument, as to whether states can really deprive someone of dignity. See, e.g., the controversial comments of J. Clarence Thomas that “[t] he government cannot bestow dignity, and it cannot take it away” (US Supreme Court, Obergefell v Hodges, Decision, 26 June 2015, Case No. 14-556, Dissenting Opinion of Justice Thomas, p 15). 139 UN Human Rights Committee (2018) General comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the right to life, UN Doc. CCPR/C/GC/36. 140 See, e.g., US Senate Select Committee on Intelligence 2014, p 4; DePillis L (2014) This is how it feels to torture. https://www.washingtonpost.com/news/storyline/wp/2014/12/11/this-ishow-it-feels-to-torture/?utm_term=.107477c8fb0f. Accessed 18 December 2018. 141 See, e.g., discussion with Juan Mendez and Keith Carmichael in Mbe VS (2012) Torture. https://thoughteconomics.com/torture/. Accessed 29 July 2019.

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anti-terrorism measures such as the extraordinary rendition programme and Guantánamo arbitrary detention.142 Human dignity has been central to the development of philosophical conceptions of rights, political limits on State power and the establishment of an international legal order charged with giving rights meaningful effect. The ‘rendition programme’ epitomises the selectivity and exceptionalism that purports to put some people or places beyond the reach of rights and law. It joins the ranks of historical examples where dehumanisation, demonisation and classification of the ‘other’ as unworthy of protection have enabled the most egregious atrocities. The shift to focus on universal human rights and the development of the UN Charter was in part a reaction to these wrongs. The rendition programme contributes to the recurring lessons of history as to the cost of privileging perceptions of security over our shared dignity and humanity, but it is still not clear if we are willing to learn. Acknowledgements I am very grateful to Human Rights in Practice Research Assistant Taylor Woodcock for her help with the preparation of this chapter, and to my late father-in-law, philosopher Osvaldo Guariglia, whose presence I felt (and counsel I missed) while writing.

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ECtHR, Tanis and Others v Turkey, Judgment, 2 August 2005, Application No. 65899/01 ECtHR, Bazorkina v Russia, Judgment, 27 July 2006, Application No. 69481/01 ECtHR, Kafkaris v Cyprus, Grand Chamber Judgment, 12 February 2008, Application No. 21906/ 04 ECtHR, Varnava and Others v Turkey, Grand Chamber Judgment, 18 September 2009, Application Nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90, 16073/90 ECtHR, Babar Ahmad and Others v The United Kingdom, Judgment, 10 April 2012, Application Nos. 24027/07, 11949/08, 36742/08, 66911/09, 67354/09 ECtHR, Vinter and Others v The United Kingdom, Grand Chamber Judgment, 9 July 2013, Application Nos. 66069/09, 130/10, 3896/10 ECtHR, Husayn (Abu Zubaydah) v Poland, Judgment, 24 July 2014, Application No. 7511/13 ECtHR, Trabelsi v Belgium, Judgment, 4 September 2014, Application No. 140/10 ECtHR, Abu Zubaydah v Lithuania, Judgment, 31 May 2018, Application No. 46454/11 German Constitutional Court, Judgment, 21.06.1977, 45 BVerfGE 187 German Constitutional Court, Judgment, 24.04.1986, 72 BVerfGE 105 Human Rights Chamber for Bosnia and Herzegovina, Avdo and Esma Palić v Republika Srpska, Decision on Admissibility and Merits, 11 January 2001, Case No. CH/99/3196 IACtHR, Velasquez Rodriguez v Honduras, Judgment, 29 July 1988, IACtHR Series C No. 4 IACtHR, Mendoza et al. v Argentina, Judgment, 14 May 2013, IACtHR Series C No. 260 South African Constitutional Court, Minister of Health and Others v Treatment Action Campaign and Others, Judgment, 5 July 2002, Case No. CCT 8/02 US Ninth Circuit Court of Appeal, Husayn v Mitchell and Jessen, Opinion, 18 September 2019, Case No. 18-35218 US Supreme Court, Obergefell v Hodges, Decision, 26 June 2015, Case No. 14-556

Treaties African Charter on Human and Peoples’ Rights, opened for signature 27 June 1981, 1520 UNTS 217 (entered into force 21 October 1986) American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS 123 (entered into force 18 July 1978) Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953) Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) Inter-American Convention on Extradition, opened for signature 25 February 1981, OASTS 60 (entered into force 28 March 1992) International Convention for the Protection of All Persons from Enforced Disappearance, opened for signature 20 December 2006, 2716 UNTS 3 (entered into force 23 December 2010)

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International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) International Covenant on Economic, Social and Cultural Rights, opened for signature 19 December 1966, 993 UNTS 3 (entered into force 3 January 1976) Protocol No. 13 to the European Convention on Human Rights concerning the Abolition of the Death Penalty in All Circumstances, opened for signature 3 May 2002, ETS 187 (entered into force 1 July 2003) Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002)

Prof. Helen Duffy runs ‘Human Rights in Practice’, an international legal practice specialising in strategic human rights litigation before national, regional and international courts and bodies. Abu Zubaydah is one of her clients. She is also Geiskes Professor of Human Rights and Humanitarian Law at the University of Leiden. She was previously Legal Director of INTERIGHTS, Legal Officer in the Prosecutor’s Office at the International Criminal Tribunal for the former Yugoslavia, Counsel to Human Rights Watch, Legal Director of the Centro para Accion Legal en Derechos Humanos Guatemala, Assistant Secretary to the ‘Arms for Iraq’ inquiry, and lawyer in the UK Government Legal Service. Her publications include The ‘War on Terror’ and the Framework of International law (2nd edn. Cambridge University Press, 2015) and Strategic Human Rights Litigation: Understanding and Maximising Impact (Hart Publishing, 2018).

Chapter 6

Human Security Versus National Security in Anti-Terrorist Operations: Whose Security Does the Margin of Appreciation Serve? Sofia Galani

Contents 6.1 Introduction........................................................................................................................ 98 6.2 Right to Life and the Margin of Appreciation ................................................................. 100 6.3 Right to Life, Margin of Appreciation and Anti-Terrorist Operations ............................ 104 6.3.1 Article 2 Obligations in Anti-Terrorist Operations................................................ 105 6.3.2 Margin of Appreciation and Preventive Obligations............................................. 106 6.3.3 Margin of Appreciation and Operational Obligations ........................................... 108 6.3.4 Margin of Appreciation and Procedural Obligations............................................. 111 6.4 A Critique of the Application of the Margin of Appreciation to Article 2 Cases in the Context of Terrorism: Where Do We Stand? ........................................................ 113 6.5 Whose Security Interests Should the Margin of Appreciation Serve? ............................ 115 6.6 Conclusion ......................................................................................................................... 117 References .................................................................................................................................. 118

Abstract This chapter will discuss how the European Court of Human Rights (the Court) has used the margin of appreciation when examining the protection of the right to life in the context of terrorism. It will explain that because of the adverse impact terrorism has on human and national security, there have been challenges in the way these two can be reconciled. However, this chapter will argue that the security debate has detracted from the impact terrorism and counter-terrorism operations have on the human rights of the victims of terrorism. It will submit that national security cannot be a ground for allowing discretion to States in the way they interfere with the right to life and, by increasingly relying on the margin of appreciation, the Court risks blurring the strict standards under which the right to S. Galani (&) University of Bristol, Bristol, UK e-mail: sofi[email protected] © T.M.C. ASSER PRESS and the authors 2020 C. Paulussen and M. Scheinin (eds.), Human Dignity and Human Security in Times of Terrorism, https://doi.org/10.1007/978-94-6265-355-9_6

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life has to be protected. Indeed, the Court should retain its supervisory role and scrutinise the means States choose to protect the right to life in the fight against terrorism.











Keywords Terrorism Counter-terrorism operations Human security National security Margin of appreciation Right to life Victims of terrorism European Court of Human Rights




6.1







Introduction

Terrorist attacks threaten both the security of individuals and States. In response, States adopt counter-terrorism policies aimed at protecting theirs and their citizens’ security. However, achieving the protection of both is not an easy task and States often prioritise the protection of national security at the expense of human security. This has prompted the security discourse and the question how States could balance the different security interests while countering terrorism.1 The development of the concept of human security, which became prevalent in the context of terrorism, was aimed at emphasising the needs of individuals against the traditional emphasis placed on national security, which encompasses the notion of “military defence of State interests and territory.”2 This chapter, however, will argue that the security debate has detracted from the importance of safeguarding human rights, especially the human rights of the victims of terrorism, which, although directly affected by counter-terrorism policies, are often overlooked both in theory and practice.3 This chapter will focus on the protection of the right to life during anti-terrorist operations and will examine how the right to life and national security can be reconciled. To that end, this chapter will examine the long-standing jurisprudence of the European Court of Human Rights (the Court) on the compliance of anti-terrorist operations with Article 2 (right to life) of the European Convention of

1

Ashworth 2007, pp 203–210. Roland 2001, p 87. For more information on the concept of human security, see Chap. 1 ‘Introduction’. 3 UN General Assembly (2012) Human Rights Council Advisory Committee: Human rights and issues related to terrorist hostage-taking, UN Doc. A/HRC/AC/10/2; UN General Assembly (2012) Human Rights Council: Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Emmerson, UN Doc. A/HRC/20/14. For a comprehensive account of the human rights of the victims of terrorism, see Galani 2019. See also Scheinin 2013, pp 584–586. 2

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Human Rights (the Convention).4 The relevant case law shows that the Court has reiterated that States remain bound by their substantive and procedural obligations under Article 2 of the Convention, but has also adopted a cautious approach in an effort to not place an unreasonable burden on States that could weaken their national security. The latter point becomes evident if one considers the increasing reliance of the Court on the margin of appreciation when it comes to the assessment of the protection of the right to life in the context of terrorism. The complexity and expansion of the margin of appreciation in Article 2 cases will be discussed and it will be shown that the extreme circumstances of terrorist attacks and the threats posed to the security of citizens and States have prompted the Court to shift from strictly protecting the right to life towards granting States a margin of appreciation when countering terrorist attacks.5 Considering these developments, this chapter will submit that although the Court should not be criticised for being pragmatic, there can be no balancing exercise between the protection of the right to life and national security. It is argued that scrutinising the operational aspects of anti-terrorist operations, during which the right to life comes under extreme pressure, remains significant and national security cannot be treated as a ground for restricting the right to life. Indeed, the latter’s protection should remain the main aim States seek to achieve while enjoying some freedom in choosing the right means of protecting the right to life.6 To elaborate on these issues, this chapter will proceed in three main parts. Section 6.2 will provide a brief overview of the margin of appreciation and its use in Article 2 cases. Section 6.3 will discuss the substantive and procedural obligations of States under Article 2 of the Convention and provide an in-depth assessment of the use of the margin of appreciation in evaluating the standards States have to meet in order to protect or lawfully restrict the right to life during anti-terrorist operations. The last part will explain how the right to life should be protected and assessed to maximise its protection without undermining the national security of States in the fight against terrorism.

4

European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953) (ECHR). ECtHR, McCann and Others v The United Kingdom, Judgment, 27 September 1995, Application No. 18984/91 (McCann); ECtHR, Makaratzis v Greece, Judgment, 20 December 2004, Application No. 50385/99; ECtHR, Isayeva, Yusupova and Bazayeva v Russia, Judgment, 24 February 2005, Application Nos. 57947/00, 57948/00, 57949/00 (Isayeva, Yusupova and Bazayeva); ECtHR, Isayeva v Russia, Judgment, 6 June 2007, Application No. 57950/00 (Isayeva); ECtHR, Finogenov and Others v Russia, Judgment, 4 June 2012, Application Nos. 18299/03, 27311/030 (Finogenov); ECtHR, Armani Da Silva v The United Kingdom, Grand Chamber Judgment, 30 March 2016, Application No. 5878/08 (Armani Da Silva); ECtHR, Tagayeva and Others v Russia, Judgment, 13 April 2017, Application Nos. 26562/07, 14755/08, 49339/08, 49380/08, 51313/08, 14755/08, 21294/11, 37096/11 (Tagayeva). 5 Greer 2000; Kratochvil 2011, pp 324–327. 6 Shany 2005, p 917; Kratochvil 2011, pp 333–334.

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Right to Life and the Margin of Appreciation

Discussing the margin of appreciation together with the right to life is somewhat unusual because the problematic nature of the doctrine does not fit with the strict terms under which the right to life is protected by the Convention.7 This, however, has not prevented the Court from expanding the use of the margin of appreciation to Article 2 cases. Closely monitoring the use of the margin of appreciation in relation to Article 2 cases is of the utmost importance for at least two reasons. First, the right to life is ranked as one of the most fundamental provisions of the Convention, from which no derogation is permitted, and which can be lawfully restricted only if the strict standards of Article 2(2) are met.8 Second, it is during emergencies and extreme circumstances, such as terrorist attacks, in which States might seek to restrict human rights, including the right to life, and a high level of scrutiny is therefore needed.9 For these reasons, this section will discuss both the nature of the margin of appreciation and the right to life and will explain why the vague nature of the doctrine of the margin of appreciation can weaken the protection of the right to life. The margin of appreciation is a judicial concept of ‘self-restraint’, long-embedded in the jurisprudence of the Court.10 Despite its expansive use by the Court and its endorsement by States, capturing its nature and application remains challenging.11 While extensive research has been undertaken to deconstruct its meaning and use in the Court’s case law,12 the margin of appreciation remains “casuistic, uneven and largely unpredictable.”13 Generally, the margin of appreciation is an expression of deference by the Court in the form of latitude governments and competent authorities enjoy in applying the provisions of the Convention.14 When the Court does not defer, it might use the doctrine to review the balance of rights and collective interests or the means States choose to fulfil their positive obligations.15

7 8

Skinner 2014. McCann, above n 4, para 147. ECHR, above n 4, Article 2(2) states that: Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.

9

Gross and Ní Aoláin 2001, pp 627–644. McGoldrick 2016, pp 22–23. 11 Ibid. 12 Yourow 1996. 13 Greer 2000, p 5. 14 Arai-Takahashi 2002, p 2; Benvenisti 1999, p 843. 15 Greer 2000, p 15. 10

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The doctrine was first used in the form of deference in the Court’s jurisprudence on Article 15 of the Convention and emergency situations, and the Court noted: [H]aving regard to the high responsibility which a government has to its people to protect them against any threat to the life of the nation, it is evident that a certain discretion—a certain margin of appreciation—must be left to the government in determining whether there exists a public emergency which threatens the life of the nation and which must be dealt with by exceptional measures derogating from its normal obligations under the Convention.16

In addition to public emergencies, cultural diversity and diverse moral convictions across the Council of Europe Member States also justify the use of the margin of appreciation.17 This can be seen in Articles 8–11 cases in which conflicts of rights and interests are all too common.18 Paragraph 2 of Articles 8–11 contains various grounds on which these rights can be restricted, including public safety and/ or national security.19 This means that the nature of these rights allows States to lawfully interfere with them on the ground of public safety and/or national security, but the Court retains its supervisory power to review whether a fair balance has been struck.20 The expansive and unclear use of the margin of appreciation, however, has been the subject of heated debate. While some argue that the margin of appreciation is justified on the basis of the principle of subsidiarity,21 others criticise the Court for over-relying on a vague doctrine that erodes the Court’s judicial supervisory role in protecting human rights.22 The last point becomes more problematic, if one considers the introduction of the margin of appreciation in Article 2 cases. The right to life is considered the

16 European Commission of Human Rights, Lawless v Ireland, Report, 19 December 1959, Application No. 332/57, p 85. The doctrine has seen been used in all Article 15 cases. See Gross and Ní Aoláin 2001, p 632. 17 Benvenisti 1999, pp 846–847; Mahoney 1990. 18 See, e.g., ECtHR, Dudgeon v The United Kingdom, Judgment, 22 October 1987, Application No. 7525/76 (concerning private life and homosexual sexual activities); ECtHR, Eweida and Others v The United Kingdom, Judgment, 15 January 2013, Application Nos. 48420/10, 59842/10, 51671/10, 36516/10 (concerning the right to religion and wearing of religious symbols at work); ECtHR, Handyside v The United Kingdom, Judgment, 7 December 1976, Application No. 5493/72 (concerning freedom of expression and protection of children); ECtHR, Evans v The United Kingdom, Grand Chamber Judgment, 7 March 2006, Application No. 6339/05 (concerning private life and right and use of frozen embryos); ECtHR, United Communist Party of Turkey and Others v Turkey, Judgment, 25 May 1998, Application No. 20/1997/804/1007 (concerning the right to assembly and national security). 19 National security is not a ground on which the right one has to manifest their religion can be limited under Article 9(2). 20 Legg 2012, pp 200–218, argues that it is the nature of a right that dictates the scope of the margin of appreciation. 21 Carozza 2003, p 40. 22 O’Donnell 1982; Letsas 2006.

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“supreme right” of the human being23 and its importance is highlighted both by the strict terms under which it is protected by the Convention and the Court’s jurisprudence. In McCann v The United Kingdom, the Court stated that Article 2 “ranks as one of the most fundamental provisions in the Convention—indeed one which, in peacetime, admits of no derogation under Article 15” and “[t]ogether with Article 3 […] of the Convention, it also enshrines one of the basic values of […] democratic societies.”24 Article 2(2) also underlines the importance attached to the right to life by stating that “[n]o one shall be deprived of his life intentionally” and explicitly outlining the situations in which life can be lawfully deprived by the use of force which must be “absolutely necessary”. Unlike Articles 8–11, the Convention makes no provision for restricting the right to life on the ground of public safety, national security or any of the other grounds found in Paragraph 2 of Articles 8–11.25 The Court has explicitly highlighted the difference between the nature of the right to life and the rights protected under Articles 8–11 by stating that “a stricter and more compelling test of necessity must be employed from that normally applicable when determining whether State action is ‘necessary in a democratic society’ under para 2 of Articles 8–11.”26 Despite the strict terms used to construe the right to life and its lawful deprivation under the Convention, either implicitly or explicitly the Court started relying on the margin of appreciation deferring to States both in the way they interfere with and protect the right to life. Allowing States discretion with regard to the question when life begins or when life should end is an example, but appears less problematic because of the moral, religious and philosophical issues that surround these questions. For example, in Vo v France, the Court rejected the applicant’s argument that her foetus’s right to life had been violated when the doctor negligently terminated her pregnancy.27 According to the Court, “the diversity of views on the point at which life begins, of legal cultures and of national standards of protection” meant that States have been left with considerable discretion in the matter.28 The question whether the right to life entails the right to die has been equally controversial. Although no explicit reference was made to the margin of appreciation in Pretty v The United Kingdom, in which the question arose, the Court concluded that the right to life does not entail the right to die allowing States to decide and adopt their own policies on euthanasia and assisted suicide.29

23

UN Human Rights Committee (2018) General comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the right to life, UN Doc. CCPR/C/GC/36, para 2. 24 McCann, above n 4, para 147. 25 Greer 2000, p 27. 26 McCann, above n 4, para 149; Legg 2012, pp 205–207. 27 ECtHR, Vo v France, Judgment, 8 July 2004, Application No. 53924/00. 28 Ibid., para 82. 29 ECtHR, Pretty v The United Kingdom, Judgment, 29 April 2002, Application No. 2346/02, paras 38–41.

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While these questions might justify some discretion, the increasing use of the margin of appreciation in cases that involve an assessment of deprivation of life resulting from the use of force both in the context of a State’s negative obligations (to refrain from killing an individual) and positive obligations (to protect an individual against unlawful violence by another individual) under Article 2 has become a cause of concern.30 The case law of the Court shows that the unpredictability and extreme circumstances under which an incident unfolds might justify a less strict assessment of the obligations of States under Article 2. The effort of the Court to not place disproportionate burdens on States when protecting the right to life was first discussed in Osman v The United Kingdom, which involved a set of unfortunate circumstances that led to the injury of a pupil and the killing of his father by his school teacher despite a series of clear warning signs that the pupil and his family were at risk.31 The Court established that a State will be in breach of its obligation to prevent loss of life, if it is established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an individual by the criminal acts of another individual and failed to take measures that, judged reasonably, might have been expected to avoid that risk.32 However, the Court noted that not every risk to life can impose an obligation on a State to act to prevent from materialising this risk, and due consideration has to be given to “the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources.”33 Given the qualified nature of the positive obligations of States under Article 2, it is not surprising that the Court does not indicate the measures States should choose to protect the right to life. This approach signifies the unwillingness of the Court to place a disproportionate burden on States even if that equals to lessening the standards of protecting the right to life. Relaxing the standards for the protection of the right to life because of the lack of foreseeability or complexity of an incident becomes more problematic when it comes to the assessment of the ‘absolute necessity’ test in cases concerning deprivation of life. In Giuiliani and Gaggio v Italy, in which the legality of the police operations that resulted in the death of a demonstrator on the fringes of the G8 summit in Genoa in July 2001 was examined, the Court paid considerable attention to the scale and complexity of the police operation in question.34 It was noted that 18,000 police officers were deployed for the demonstrations and not all of them were expected to have lengthy training for dealing with such emergencies, and “[t]o hold otherwise

30

Mowbray 2004. ECtHR, Osman v The United Kingdom, Grand Chamber Judgment, 28 October 1998, Application No. 23452/94. 32 Ibid., para 116. 33 Ibid. 34 ECtHR, Giuliani and Gaggio v Italy, Grand Chamber Judgment, 24 March 2011, Application No. 23458/02 (Giuliani and Gaggio). 31

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would be to impose a disproportionate and unrealistic obligation on the State.”35 To decide on whether a violation took place under the substantive limb of Article 2, consideration was also given to the timing of the fatal shooting which took place during an unexpected eruption of violence that the law-enforcement agent could not have foreseen.36 In light of these considerations, the Court concluded that there had been no substantive breach of Article 2.37 This finding, however, was not without strong dissent. Seven dissenting Judges argued that high-risk international events and large-scale demonstrations demand high standards of responsibility on behalf of a State.38 For the dissenting Judges, it was hard to accept that the State was unaware of the dangers of organising such a high-profile event or of the frequency of demonstrations in a globalised world and, as a result, the State was under a clear duty to act responsibly and safeguard the right to life under the Convention.39 The level of protection accorded to the right to life and the level of scrutiny the obligations of States under Article 2 are subject to appear dependent on how far the Court is prepared to go while considering the scale, complexity, and predictability of an incident. Contrary to the strict terms used to define the right to life and the well-defined circumstances in which deprivation of life is permitted under Article 2, “the Court is prepared to distinguish among types of threat and reduce its standards —or increase State leeway—based on the scale, complexity and foreseeability of the incident in question.”40 Giving leeway to States in protecting the right to life can erode the Article 2 standards and weaken the protection of the right to life and suggests that desperate times might call for desperate solutions—an approach that becomes more pervasive in terrorism-related contexts, which will be the focus of the following section.

6.3

Right to Life, Margin of Appreciation and Anti-Terrorist Operations

By definition, terrorist attacks are aimed at causing death or serious bodily injury compelling a State to do or abstain from doing a particular act.41 This means that terrorist acts directly affect the right to life but may also pose a threat to the constitutional structures and public order in a State. In response, States might use

35

Ibid., paras 255–258. Ibid., para 254. 37 Ibid., para 262. 38 Ibid., Joint Partly Dissenting Opinion of Judges Rozakis, Tulkens, Zupancic, Gyulumyan, Ziemele, Kalaydjieva and Karakas, para 2. 39 Ibid. See also Skinner 2010, pp 85–93; Skinner 2011, pp 568–579. 40 Skinner 2014, p 34. 41 See the UN working definition of terrorism in UN Security Council (2004) Resolution 1566 (2004), UN Doc. S/RES/1566, para 3. 36

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force but unlike routine police operations or killings by individuals, anti-terrorist operations are much more complex and can have a severe and extensive impact on the right to life. This makes the supervisory role of the Court more challenging as it has to safeguard the right to life without losing sight of a State’s efforts to protect national security against terrorists. Bearing in mind these challenges, the Court has established that States remain bound by their Article 2 obligations in the fight against terrorism, but the level of scrutiny employed to assess these obligations varies. The different ways the margin of appreciation has been applied to Article 2 in the context of terrorism and the problems associated with this approach are discussed in this section.

6.3.1

Article 2 Obligations in Anti-Terrorist Operations

Over the years, the Court has examined numerous Article 2 cases brought by victims of terrorist attacks, terrorist suspects or their families.42 While the focus of this chapter is on the impact anti-terrorist operations have on the right to life of the victims of terrorism, the following discussion will be informed by cases brought before the Court by terrorist suspects as well. Cases brought by terrorist suspects have led the Court to develop an important body of case law and principles regarding the use of lethal force and procedural obligations of States under Article 2 that are also relevant and applicable to the victims of terrorism whose lives are at risk during anti-terrorist operations. In addition, the Court has established that States have preventive obligations under Article 2 in the fight against terrorism. More specifically, through its case law, the Court has now established a clear set of substantive and procedural obligations that bind States at three different levels. Before a terrorist attack takes place, a State has to take all reasonable measures to prevent the attack or minimise the loss of life of such an attack.43 States also have to accurately plan and control an operation and have evacuation plans and medical assistance in place.44 During the operation, States are permitted to use force only as a last resort and only to protect innocent lives against unlawful violence.45 Additional precautions must be taken for the incidental loss of life to be minimised.46 In the aftermath of an operation, States remain bound by their procedural 42

ECtHR 2019. Tagayeva, above n 4, paras 481–493. 44 McCann, above n 4, paras 146–150, 194; ECtHR, Andronicou and Constantinou v Cyprus, Judgment, 9 October 1997, Application No. 86/1996/705/897, paras 171, 181, 186, 192, 193 (Andronicou and Constantinou); ECtHR, Hugh Jordan v The United Kingdom, Judgment, 4 August 2001, Application No. 24746/94, paras 102–104. 45 Finogenov, above n 4, paras 263–266. 46 Isayeva, Yusupova and Bazayeva, above n 4, para 191; Isayeva, above n 4, para 5; Finogenov, above n 4, para 171. 43

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duties, which can be discharged only when an effective and independent investigation into the loss of life takes place, and, if appropriate, when those responsible are punished.47 The reaffirmation of the Article 2 obligations of States under the extreme circumstances of a terrorist attack is commendable. The Court has appeared determined to not absolve States from their Convention duties and has obliged them to respond to terrorism giving due consideration to the right to life. Nevertheless, the level of protection afforded to the right to life may vary across the different cases or even across the different Article 2 obligations in the same case. The close examination of the Court’s case law on Article 2 and anti-terrorist operations below will show that the Court applies a different level of scrutiny to preventive, operational and procedural obligations of States that is usually dictated by the extremity, rarity or unpredictability of the circumstances of a case.

6.3.2

Margin of Appreciation and Preventive Obligations

Tagayeva and Others v Russia is the first case in which the Court found a State in breach of Article 2 for failing to take reasonable measures to prevent a terrorist attack.48 The case concerned the taking of 1,100 people, including 800 children, hostage by Chechen separatists in the Beslan School No. 1, and the subsequent military operation of the Russian forces during which more than 330 people lost their lives (including over 180 children) and over 750 people were injured. The Court unanimously agreed with the applicants that Russia knew or ought to have known of an imminent attack, and the lack of reasonable measures to avert or minimise the losses of such an attack constituted a breach of Article 2.49 To reach this conclusion, the Court did not hesitate to scrutinise information available to the Ministry of Interior and other federal authorities from covert resources and intelligence operations. According to the Court, the Russian authorities had relatively specific advance information regarding the nature, geographical location and imminence of a potential attack. Consequently, the authorities were found to have a sufficient degree of control over the situation at least in the days leading to the attack and were expected to take appropriate measures to prevent the attack. Despite the sensitive national security information that this assessment involved and the challenges of accurately predicting an attack, the Court did not afford any margin of appreciation to the State. This finding is worth noting as the collection and processing of sensitive national security information has often been used in defence of 47

Armani Da Silva, above n 4, para 240. Tagayeva, above n 4, paras 481–493. Although not a Grand Chamber case, the case has now become final and is included in the list of cases selected for publication in Reports of Judgments and Decisions 2017. See ECtHR (2017) Key Cases 2017. www.echr.coe.int/Documents/Cases_ list_2017_ENG.pdf. Accessed 29 August 2018. 49 Tagayeva, above n 4, paras 492–493. 48

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States interfering with Convention rights.50 In this case, the Court seems to have pushed to the opposite direction requiring States to make good use of this information to protect the right to life instead of deferring to their intelligence and surveillance activities. This finding, however, is somewhat different from the Court’s earlier finding in Finogenov and Others v Russia. This case also involved the taking of hostages by Chechen fighters in the Dubrovka Theatre, Moscow. In this case, the Court found no failures on behalf of the Russian authorities to prevent the attack stating that “[a]lthough hostage taking has, sadly, been a widespread phenomenon in recent years, the magnitude of the crisis of 23–26 October 2002 exceeded everything known before and made that situation truly exceptional”.51 The unpredictability of the hostage-taking made the Court defer to the Russian authorities and to the way they handled the situation in the days preceding the attack. The different findings in these two cases beg the question how the preventive obligations of States are to be evaluated. On the one hand, the Court does not seem willing to defer to national security intelligence activities when the right to life is at risk. On the other hand, the unpredictability of a terrorist attack might be used as a defence for the lack of preparedness to avert an attack or minimise the loss of life of such an attack. To resolve this issue, this chapter submits that the increasing terrorist attacks within and beyond the borders of the Council of Europe Member States cannot justify their treatment as truly exceptional anymore.52 In light of the extensive intelligence operations and covert surveillance, it is also hard to argue that terrorist attacks come ‘as a surprise’ for States.53 This chapter therefore argues that, to give full effect to the preventive duty of States under Article 2, the Court should retain its supervisory role in reviewing the information available to a State prior to a terrorist attack. This is not to say that States should be held accountable for failing to prevent every terrorist attack, but they should be held responsible for failing to act upon the information available to them that could help them reasonably prepare for an attack.

50

ECtHR, Klass and Others v Germany, Judgment, 6 September 1978, Application No. 5029/7; ECtHR, Leander v Sweden, Judgment, 26 March 1987, Application No. 9248/81; ECtHR, Kennedy v The United Kingdom, Judgment, 18 May 2010, Application No. 26839/05. Violations of Article 8 were found in ECtHR, Roman Zakharov v Russia, Grand Chamber Judgment, 4 December 2015, Application No. 47143/06 and ECtHR, Szabó and Vissy v Hungary, Judgment, 12 January 2016, Application No. 37138/14, which concerned extensive surveillance systems. 51 Finogenov, above n 4, para 213 (emphasis added). 52 BBC News (2017) Who was behind the jihadist attacks on Europe and North America? http:// www.bbc.co.uk/news/world-40000952. Accessed 29 August 2018. 53 Finogenov, above n 4, para 213.

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Margin of Appreciation and Operational Obligations

The obligation of States to accurately plan and control an anti-terrorist operation is long-standing and has been developed to include different elements of an operation, such as the coordination efforts at the planning stage, the choice of ammunition, evacuation plans, medical preparedness and first aid response. The different elements, however, have been subjected to various degrees of scrutiny by the Court veiling the protection of the right to life and the ‘absolute necessity’ test in a cloud of mystery. For almost two decades, the McCann interpretation of the ‘absolute necessity’ test left no doubt as to the strict limitations applied to deprivation of life under Article 2(2). McCann was the first case to be heard by the Court on lethal force and “created a sea change in the way in which the Court interpreted Article 2.”54 The case concerned the killing of three terrorist suspects by members of the security forces sent to Gibraltar to thwart a terrorist attack by the Irish Republican Army (IRA). In assessing the standards with which States have to comply under Article 2 (2), the Court argued that the most careful scrutiny is needed, and consideration must be given not only to whether the use of force “was strictly proportionate to the aim of protecting persons against unlawful violence but also [to] whether the anti-terrorist operation was planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to lethal force.”55 These strict requirements led the Court to conclude that the United Kingdom (UK) was in breach of its Article 2 obligations. Although the Court was convinced that the agents who shot the suspects “honestly believed” that their act was “absolutely necessary” to prevent the suspects from detonating a bomb and causing serious loss of life, the UK was criticised for failing to plan and control the operation in a manner that could have minimised the use of force.56 It is the belief of this author that this was a well thought out and balanced approach. The reason is that the Court did not try to substitute the decision making of agents acting in the heat of the moment to avert an honestly perceived danger to theirs or other people’s lives with their own assessment, while at the same time it ensured that States remain bound to take all reasonable precautions to minimise the use of force when planning and conducting an anti-terrorist operation.57 This approach has been consistently used over the years and was, more recently, reaffirmed in Armani Da Silva v The United Kingdom. This case also concerned the killing of a terrorist suspect by police officers during an anti-terrorist operation in the aftermath of the 7/7 bombings in London. In Armani Da Silva, the Court reiterated that a violation of Article 2 cannot be found if a State agent honestly and genuinely believed that the use of

54 55 56 57

Chevalier-Watts 2010, p 302. McCann, above n 4, paras 150, 194. Ibid., para 117. Chevalier-Watts 2010, pp 303–304.

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force was necessary in self-defence or in defence of the lives of others.58 This, however, does not release States from their obligation to accurately plan and control an anti-terrorist operation. Sadly, the Court took a U-turn in Finogenov and “[broke] with nearly 20 years of Article 2 case law on lethal force and upset an apparent doctrinal consensus.”59 For the first time, the Court granted States an explicit margin of appreciation for “the strategic political choices […], which were not within the Court’s realm” as well as for some of the “military and technical” aspects of an operation.60 This means that States enjoy a certain margin of appreciation in some cases for some aspects of its operation, while others can be brought under stricter scrutiny. More specifically, in Finogenov the Court did not agree with the applicants’ submission that Russia breached Article 2 because it failed to minimise recourse to lethal force by failing to conduct professional negotiations or to consider possible monetary or other concessions to terrorists.61 The judgment reads that these matters are “far beyond the competence of this Court, which is not in a position to indicate to member states the best policy in dealing with a crisis of this kind”.62 Given the highly political and contentious nature of negotiations and concession policies in the context of terrorism, it is not hard to see why the Court opted not to provide clear-cut answers to whether States have to negotiate with terrorists.63 However, the decision of the Court suggests that States enjoy a margin of appreciation on any matter considered ‘political’, regardless of its direct impact on the right to life.64 In this case, for example, the Court completely ignored the poor handling of the negotiation requests from the hostage-takers as well as the adverse impact the lack of negotiations had on the conditions of hostages’ captivity and the subsequent poor planning of the operation.65 The Court took a stricter approach when asked to examine whether the gas used to render the hostage-takers unconscious, but resulted in the death of more than 100 hostages, was compatible with Article 2(2). To examine this issue, the Court referred back to the ‘absolute necessity’ test and reiterated that the phases of an operation that are within the authorities’ control and are not affected by serious time constraints shall be subjected to closer scrutiny.66 The same strict approach was adopted when the Court examined the planning of the medical assistance and evacuation. Given that these issues were not seen as political and fell

58 Armani Da Silva, above n 4, paras 245–248. The same test has been used in a non-terrorist context. See, Andronicou and Constantinou, above n 44, para 192; Giuliani and Gaggio, above n 34, para 189. 59 Skinner 2014, p 35. 60 Finogenov, above n 4, para 215. 61 Ibid., para 213. 62 Ibid. 63 Faure 2015, pp 129–145; Toros 2008, pp 407–426. 64 Finogenov, above n 4, para 243; Andronicou and Constantinou, above n 44, para 98. 65 Galani 2019, pp 162–165. 66 Finogenov, above n 4, paras 210, 214–215.

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within the State’s control, a higher standard of scrutiny for their compatibility with Article 2(2) was employed.67 Despite the large scale of the operation and the large number of hostages, the Court concluded that the planning of this part of the operation was not spontaneous and did not come as a surprise to the authorities.68 The Russian authorities should have expected that a large number of people would be in need of medical assistance following the use of the poisonous gas and as a result, the many flaws in the evacuation plan and coordination of the medical services constituted a breach of Article 2. The many different levels of scrutiny employed for the various aspects of planning and controlling the operation has created a whole new scrutiny matrix. Apart from refusing to engage with what the Court sees as ‘political choices’, the level of scrutiny that the other parts of the operation are subjected to depend on the time a State has to prepare in response to an attack and the control a State has over the different parts of an operation. The inconsistencies in assessing the Article 2 standards become more evident, if one examines Tagayeva and Others v Russia. As noted earlier, the explicit margin of appreciation the Court granted to States in Finogenov was justified on the truly exceptional and unprecedented circumstances of the case. However, the Court was soon to realise that large-scale terrorist attacks cannot be considered exceptional anymore. In Tagayeva, in which the Court had to examine a much larger terrorist attack involving more victims and a much more complex military operation, no reference to the margin of appreciation was made. Given the similarities between the Beslan school and Moscow theatre sieges, an explicit reference to the margin of appreciation on the basis of exceptionalism could not be justified. A closer reading of the judgment, however, shows that one way or another the Court did rely on the margin of appreciation. The Court again deferred in relation to decisions considered ‘political’. The Court stated that it cannot question “negotiations with the terrorists, the distribution of responsibility between officials for different aspects of the operation [and] the general choice of strategy to pursue.”69 Despite the direct bearing that these decisions had on the right to life of hostages, the Court chose not to examine them. In addition to the margin of appreciation States enjoy in the way they handle the political aspects of an anti-terrorist operation, the Court relied on another form of the doctrine of the margin of appreciation in this case. While the Court reiterated that States remain under the obligation to take all feasible precautions to avoid or minimise loss of life, certain freedom in choosing the means and methods of achieving this aim is to be given to States.70 In this way, the Court offered some leeway to the competent authorities to choose the means in fulfilling their obligation to protect the right to life.71 In this case, the Court did not focus on the choice of the planning decisions and type of weapons per se, but rather on

67 68 69 70 71

Ibid., para 243. Ibid. Tagayeva, above n 4, para 571. Ibid., para 573. Shany 2005, p 917; Kratochvil 2011, pp 333–334.

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whether these were appropriate means of protecting the right to life. This shows that in anti-terrorist operations States retain some flexibility in planning and controlling an anti-terrorist operation so long as they can fulfil their Article 2 obligations. Despite the flexibility accorded to Russia, the finding of a breach of Article 2 because of Russia’s failure to plan and control the operation with a view to minimising loss of life was influenced by another factor not previously considered in the Court’s case law. This is the sequence of failures by the Russian authorities to comply with their Article 2 obligations. The finding that Russia breached its preventive duties also led to a finding that Russia failed to accurately plan and control the operation.72 Having found that the competent authorities failed to act upon the information they had and prepare for a possible attack led to the conclusion that the coordination efforts and handling of the attack were seriously flawed and thus unable to minimise loss of life. The failures at the initial stage of the operation were also found to have “direct relevance” to the choice of the type of weapons employed during the operation.73 According to the Court, the lack of coordination and planning allowed the massive use of indiscriminate weapons by the officers in charge that resulted in the killing of hostages.74 What the discussion of the case law shows is that there are different standards States have to meet to protect the right to life while planning and controlling anti-terrorist operations. The Court moved from the ‘absolute necessity’ test to an explicit margin of appreciation in the form of deference followed by a form of freedom in the choice of means of fulfilling positive obligations under the Convention. The challenges States face in the fight against terrorism have made the Court oscillate between strictly safeguarding the right to life and allowing flexibility to States when dealing with extreme security threats. The outcome, however, of this approach is that the protection of the right to life and deprivation thereof have become somewhat vague.

6.3.4

Margin of Appreciation and Procedural Obligations

Contrary to the occasionally flexible approach the Court has adopted in interpreting the operational aspects of a State’s response to a terrorist attack, a much stricter assessment is used for the procedural duty of States under Article 2. Given that the use of force is almost unavoidable during anti-terrorist operations, the Court has reinforced the obligation of States to investigate loss of life. In McCann, the Court established that “the general legal prohibition of arbitrary killing by the agents of the State would be ineffective, in practice, if there existed no procedure for

72 73 74

Tagayeva, above n 4, para 572. Ibid., para 603. Ibid., para 609.

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reviewing the lawfulness of the use of lethal force by State authorities”.75 Over the years, the Court developed clear-cut criteria with which a State has to comply to discharge its procedural duty under Article 2. To do so, a State has to ensure that those who conduct the review are independent; that the investigation is adequate in that it is capable of determining whether the use of force was justified in the circumstances, of identifying and, if appropriate, punishing those responsible; that all relevant facts are subjected to thorough, objective and impartial analysis; that the investigation is accessible to all victims and the public; and that the investigation is conducted promptly and without any unreasonable delays.76 The different parts of the investigative procedure, however, have been subjected to different levels of scrutiny. The Court has established that the obligation of States to investigate deprivation of life is not an obligation of result, but of means.77 This shows that the Court will scrutinise each step taken by a State to determine whether the force used was justified in the circumstances and to establish the cause of death.78 The strict review of the procedural limb of Article 2 demands States to take “whatever reasonable steps they can to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of the clinical findings, including the cause of death.”79 Despite the challenges a State might experience in collecting this evidence, the Court has made it clear that they do not release States from their procedural duty even in difficult security conditions and in large-scale operations.80 For example, both in Finogenov and Tagayeva the Court found Russia in breach of its procedural obligations because of the flawed investigations.81 Unlike the margin of appreciation and flexibility the Court granted to Russia for their substantive duties under Article 2 due to the exceptional circumstances of the cases, the Court found no mitigating circumstances that could justify the failure of Russia to conduct effective and independent investigations into the killings of the hostages. While the Court acknowledged the challenges of the fight against terrorism and the difficulties in establishing the cause of death of hundreds of victims, this was not enough to justify the lack of an effective and independent investigation into the anti-terrorist operations. The requirement of identifying and punishing those responsible, on the other hand, is subjected to less scrutiny. In Armani Da Silva, in which the applicant

75

McCann, above n 4, para 161. Armani Da Silva, above n 4, para 240. 77 ECtHR, Nachova and Others v Bulgaria, Judgment, 26 February 2004, Application No. 43577/ 98 (Nachova); ECtHR, Jaloud v The Netherlands, Grand Chamber Judgment, 20 November 2014, Application No. 47708/08, para 186. 78 Armani Da Silva, above n 4, para 233. 79 Ibid. 80 Nachova, above n 77, para 164. 81 Finogenov, above n 4, para 279; Tagayeva, above n 4, para 497. 76

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argued that the UK was in breach of Article 2 because the agents who shot an innocent civilian dead during an anti-terrorist operation were not punished, the Court considered that States should be accorded a certain margin of appreciation in setting the threshold evidential test.82 It was noted that there are numerous factors that a State has to consider when deciding whether to prosecute a State agent, such as the interests of the victims and the public interest.83 It was also suggested that the threshold evidential test has to be viewed in the context of each State’s criminal justice system which are fundamentally different across the Council of Europe Member States.84 Given the extensive investigation into the fatal shooting and the lack of consensus on the threshold evidential test, the Court was satisfied that the UK had discharged its procedural duty under Article 2. The interpretation of the procedural limb of Article 2 also shows that different levels of review will be used. The steps taken by a State to investigate the use of force and establish the cause of death are subjected to stringent review, but they do not always have to lead to the punishment of those responsible. The Court has given a margin of appreciation to States with reference to the threshold evidential test and punishment of State agents justified by a number of reasons, including the diverse criminal legal systems across the Council of Europe countries. This seems to be in line with the decision of the Court to not hold accountable State agents who used lethal force, if they honestly and genuinely believed that this was necessary to avert a risk to their lives or the lives of others.85 Wherever the use of force is unavoidable for the protection of life against unlawful violence, the Court does not insist on the punishment of the State agents who participated in the operation. However, the Court is not willing to excuse States for failing to do everything in their power to establish the timeline of events, whether the use of lethal force was absolutely necessary and the cause of death even if the large-scale nature of an operation, the sensitive security information involved, and the extreme circumstances of a case make effective and independent investigations almost impossible.

6.4

A Critique of the Application of the Margin of Appreciation to Article 2 Cases in the Context of Terrorism: Where Do We Stand?

As a non-derogable right, the right to life continues to apply during anti-terrorist operations. In line with the distinct position of the right to life in the Convention, the Court has reinforced that States remain bound by their substantive and procedural obligations in the fight against terrorism. What is problematic, however, are 82 83 84 85

Armani Da Silva, above n 5, para 265. Ibid., para 268. Ibid., paras 269–270. See the discussion above, in Sect. 6.3.3.

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the many different levels of scrutiny the Court employs to assess when a State complies with Article 2. The obligation of a State to prevent a terrorist attack has only been examined twice, but the Court seems to have taken a strict approach that requires States to act upon information available from intelligence operations to take reasonable measures to prevent an attack or at least to minimise loss of life of such an attack. Despite the inherent difficulties in predicting an attack and the secrecy required in the handling of security information, the Court appears determined to scrutinise the responses of States and to hold them accountable for failing to act upon available information for preventing loss of life. Unlike the strict approach taken for the preventive obligations of States under Article 2, the increasing body of case law involving the planning and control of anti-terrorist operations has led to the development of different standards that States have to comply with during an anti-terrorist operation suggesting that the right to life might also be subjected to different levels of protection. The position of the Court remained clear for almost 20 years following the ‘absolute necessity’ test in McCann. Over the years, however, the margin of appreciation started featuring in Article 2 cases. In Finogenov, the Court marked an unnecessary departure from the ‘absolute necessity’ test granting an explicit margin of appreciation to States for certain aspects of the planning and control of an operation that might not fall within the Court’s expertise to examine. Other aspects of an anti-terrorist operation might also be subjected to less scrutiny, if the facts of a case suggest that a situation was beyond the control of a State. The explicit margin of appreciation granted to States in Finogenov was qualified in Tagayeva in which no reference to the doctrine was made. The Court, however, again deferred to certain aspects of the anti-terrorist operation or granted some freedom to the competent authorities in choosing the means and methods of protecting the right to life. Assessing how the right to life is protected or when deprivation of life is permitted during anti-terrorist operations does not appear to rely on a specific test or a set of criteria but is mostly based on the factual circumstances of each case. The Court considers the unpredictability, the exceptional circumstances and complexities of an operation and accordingly decides whether a State complies with Article 2 or not. With reference to the procedural duty of States to investigate loss of life, the Court has strict expectations from States in terms of the efforts required to collect evidence and establish whether the use of force was necessary or not. No serious consideration is given to the challenges a State faces during the investigation of a terrorist attack or an anti-terrorist operation, and although the obligation is one of means not of result, the Court has made it clear that it expects States to take all reasonable steps available to them to fulfil their procedural duty under Article 2. The Court has appeared willing to only grant a margin of appreciation to States regarding the threshold evidential test and punishment of those responsible for killings during an anti-terrorist operation. The overall approach of the Court on the scrutiny of the substantive and procedural obligations of States under Article 2 is characterised by inconsistencies and

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ad hockery.86 The Court uses the margin of appreciation in some, but not all, cases and for some, but not all, aspects of an anti-terrorist operation without always making clear what dictates and justifies the use of the margin of appreciation. This approach is problematic for at least two reasons. It is during the conduct of an anti-terrorist operation that force is employed, and this means that stricter scrutiny is needed for the acts of State agents that might cause loss of life. In addition, although the Article 2 obligations are considered separately, they are interlinked. Tagayeva has shown that the failure of a State to prevent a terrorist attack might also lead to the failure of the State to plan and control an operation accurately that will probably result in excessive use of lethal force and might consequently complicate the effectiveness of an investigation. This means that the Court allows States discretion in the planning and control of the operation using the preventive and investigative stages as a ‘safety net’ that can strictly safeguard the right to life before an attack, by preventing the loss of life in the first place, or after an attack by rectifying the loss, by investigating the errors and, if appropriate, by punishing those responsible. This suggests that “a relaxation of the absolute necessity in one respect will be matched with enhanced scrutiny with regard to others”.87 This chapter, however, insists on the importance of scrutinising the operational aspects of anti-terrorist operations during which the right to life comes under extreme pressure because of the use of lethal force. It argues that by allowing States leeway on the ground of the challenging circumstances of each situation can blur the standards States have to meet under Article 2 when countering terrorism and weaken the protection of the right to life.

6.5

Whose Security Interests Should the Margin of Appreciation Serve?

The expansive use of the margin of appreciation in the interpretation of all Articles of the Convention, including Article 2, makes it difficult to support anything that will turn the tide. Given that the Court has already used the margin of appreciation to assess the substantive and procedural obligations of States under Article 2 in anti-terrorist operations, any further diversions will only cause more confusion and legal uncertainty in the understanding of Article 2. This section will therefore suggest how the Court could safeguard the right to life in anti-terrorist operations without further complicating the assessment of the Article 2 standards. As already explained, the Court introduced the margin of appreciation in Article 2 cases in an effort to not impose unreasonable burdens on States. The concern of the Court to be pragmatic with States dealing with unpredictable and challenging circumstances and to not interfere with national security decisions and 86 87

Kratochvil 2011, pp 351–352. Skinner 2014, p 35.

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sovereignty matters became more evident when its case law on the anti-terrorist operations was examined. Admittedly, national security is a legitimate aim that might justify necessary and proportionate restrictions on rights protected under Articles 8–11.88 National security interests become more prevalent in the terrorism debate, and the fight against terrorism has been considered a legitimate aim for imposing restrictions on human rights. Unlike Articles 8–11, however, the right to life does not allow for limitations on the basis of national security.89 This means that the Court cannot embark on a balancing exercise seeking to strike a fair balance between the right to life and national security as would normally do for the rights protected under Articles 8–11. The security rhetoric, however, has become particularly relevant in the context of terrorism and has given rise to the question how to balance human and national security. This chapter argues that it is rather counter-productive to examine the protection of the right to life through the security debate and any suggestions of balancing the conflicting security interests under Article 2 could further undermine its protection. The reason is that both human and national security lack a clear definition.90 It is therefore difficult to balance conflicting interests, unless we are able to understand their meaning.91 One way to deal with this problem would be to seek to define human security through the right to life. More specifically, regardless of whether it is the life of the nation, the society as a whole or specific individuals, “the referent for security and security policy is ultimately the individual.”92 The right to life therefore should encompass human security.93 In addition, national security should be better exemplified and defined. While both the Court and States refer to national security, there seems to be no common understanding of what the latter actually means. The best way to define national security is by calling on States to flesh out its meaning, “because it is precisely the authorities that have a tremendous information advantage regarding the real scope and nature of security threats over most others involved in that discourse.”94 Better understanding human and national security could permit the Court to protect the right to life without undermining the counter-terrorism efforts of States. This can happen by relying on the ‘choice of means’ form of the margin of appreciation.95 By agreeing that the right to life encompasses human security, States have a clearly defined right to protect, while also enjoying some freedom in choosing the means of protecting this right. The positive obligations under Article 2 therefore could be considered “result-oriented norms that are indifferent to the way in which a desired object is

88 89 90 91 92 93 94 95

Cameron 2000, pp 39–73. Chevalier-Watts 2010, p 302; Legg 2012, p 203; van Kempen 2013, p 13; Ashworth 2007. Lazarus 2015; Howard-Hassmann 2012. Lazarus 2015, p 439. Van Kempen 2013, p 15; Turner 2017, pp 48–53. Van Kempen 2013, pp 1–23. Ibid., p 16. See the discussion above, in Sect. 6.3.3.

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attained, provided that its eventual attainment is ensured.”96 As a result, States can have discretion in the choice of means of responding to a terrorist attack, while the Court retains its supervisory powers to examine whether these means were appropriate for protecting the right to life.97 This chapter submits that the ‘choice of means’ form of the margin of appreciation can successfully protect the right to life in anti-terrorist operations without placing unreasonable burdens on States whose national security is under threat. As stated above, the Court has already relied on the margin of appreciation while examining the protection of the right to life in anti-terrorist operations and the security rhetoric also demands that human security is balanced with national security. Ignoring the developing approach of the Court and existing debate would further convolute the understanding of the restrictions allowed under Article 2 of the Convention. It is therefore concluded that by imposing on States a clear-cut obligation to protect the right to life without expecting them to standardise the procedures and practices of doing so can promote the protection of the right to life without undermining national security.98

6.6

Conclusion

This chapter provided an in-depth study of the use of margin of appreciation in Article 2 cases in the context of terrorism. It showed that the increasing body of case law on the right to life and anti-terrorist operations has had two inconsistent outcomes. On the one hand, the Court developed clear-cut substantive and procedural obligations under Article 2 that continue to bind States in the fight against terrorism. On the other hand, the extreme circumstances under which terrorist attacks unfold and the serious risks they pose to national security have made the Court occasionally deferential towards States. The discussion of the Court’s case law showed that the standards that States have to meet to respect and protect the right to life are now shrouded in mystery because of the different levels of scrutiny employed by the Court depending on the various circumstances of each case. The rarity, unpredictability and exceptionalism of the circumstances of each terrorist attack and anti-terrorist operation are factors that might raise or reduce the threshold States have to meet to comply with Article 2. On the basis of this approach, States might be more flexible and successful in dealing with terrorist threats, but the right to life becomes open to subjective interpretations that could eventually erode the essence of the most fundamental right protected by the Convention. To avoid taking one step forward and two steps back, this chapter suggested that the Court should

96

Shany 2005, p 917. See the discussion above, in Sect. 6.3.3. 98 McGoldrick 2016, p 37; Hutchinson 1999, pp 644–647. For a different approach, see Greer 2010, pp 8–9. 97

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not be embroiled in the ‘security debate’, but rather allow States some discretion in choosing the most practicable means that could safeguard the right to life without undermining their national security interests. In any case, it is important that the Court remains a guardian of the most fundamental right even if its protection requires the examination of challenging and extreme circumstances. The protection of the Court is mostly needed in emergencies and extreme circumstances that might prompt States to restrict human rights, including the right to life, and this requires the Court to live up to its duty to exercise effective and meaningful supervision rather than relying on the problematic doctrine of the margin of appreciation restricting its own supervisory role.99 Acknowledgements I would like to thank the T.M.C. Asser Instituut and the Minerva Center for the Rule of Law under Extreme Conditions, Faculty of Law and Department of Geography and Environmental Studies, University of Haifa, for giving me the opportunity to present earlier versions of this chapter. I am also grateful to Prof. David Kretzmer for his thoughtful comments on my work.

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Gross O, Ní Aoláin F (2001) From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights. Human Rights Quarterly 23(3):625–649 Howard-Hassmann RE (2012) Human Security: Undermining Human Rights? Human Rights Quarterly 34(1):88–112 Hutchinson MR (1999) The Margin of Appreciation Doctrine in the European Court of Human Rights. International & Comparative Law Quarterly 48(3):638–650 Kratochvil J (2011) The Inflation of the Margin of Appreciation by the European Court of Human Rights. Netherlands Quarterly of Human Rights 29(3):324–357 Lazarus L (2015) The Right to Security. In: Cruft R, Liao M, Renzo M (eds) Philosophical Foundations of Human Rights. Oxford University Press, Oxford, pp 423–441 Legg A (2012) The Margin of Appreciation in International Human Rights Law: Deference and Proportionality. Oxford University Press, Oxford Letsas G (2006) Two Concepts of the Margin of Appreciation. Oxford Journal of Legal Studies 26(4):705–732 Mahoney P (1990) Judicial Activism and Judicial Restraint in the European Court of Human Rights: Two Sides of the Same Coin. Human Rights Law Journal 11(1):57–88 McGoldrick D (2016) A Defence of the Margin of Appreciation and an Argument for Its Application by the Human Rights Committee. International & Comparative Law Quarterly 65(1):21–60 Mowbray AR (2004) The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights. Hart Publishing, Oxford O’Donnell TA (1982) The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights. Human Rights Quarterly 4(4): 474–496 Roland P (2001) Human Security: Paradigm Shift or Hot Air? International Security 26(2):87–102 Scheinin M (2013) Counter-Terrorism and Human Rights. In: Sheeran S, Rodley N (eds) The Routledge Handbook of International Human Rights Law. Routledge, Oxford, pp 581–596 Shany Y (2005) Toward a General Margin of Appreciation Doctrine in International Law? European Journal of International Law 16(5):907–940 Skinner S (2010) Giuliani and Gaggio v Italy: The Context of Violence, the Right to Life and Democratic Values. European Human Rights Law Review 1:85–93 Skinner S (2011) The Right to Life, Democracy and State Responsibility in ‘Urban Guerilla’ Conflict: The European Court of Human Rights Grand Chamber Judgment in Giuliani and Gaggio v Italy. Human Rights Law Review 11(3):567–577 Skinner S (2014) Deference, Proportionality and the Margin of Appreciation in Lethal Force Case Law under Article 2 ECHR. European Human Rights Law Review 14(1):32–38 Toros H (2008) ‘We Don’t Negotiate with Terrorists!’: Legitimacy and Complexity in Terrorist Conflicts. Security Dialogue 39(4):407–426 Turner I (2017) A Positive, Communitarian Right to Security in the Age of Super-Terrorism. Democracy and Security 13(1):46–70 UN General Assembly (2012) Human Rights Council Advisory Committee: Human rights and issues related to terrorist hostage-taking, UN Doc. A/HRC/AC/10/2 UN General Assembly (2012) Human Rights Council: Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Emmerson, UN Doc. A/HRC/20/14 UN Human Rights Committee (2018) General comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on the right to life, UN Doc. CCPR/C/GC/36 UN Security Council (2004), Resolution 1566 (2004), UN Doc. S/RES/1566 Van Kempen PH (2013) Four Concepts of Security—A Human Rights Perspective. Human Rights Law Review 13(1):1–23 Yourow HC (1996) The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence. Kluwer Law International, The Hague/Boston/London

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Case Law ECtHR, Handyside v The United Kingdom, Judgment, 7 December 1976, Application No. 5493/72 ECtHR, Klass and Others v Germany, Judgment, 6 September 1978, Application No. 5029/7 ECtHR, Leander v Sweden, Judgment, 26 March 1987, Application No. 9248/81 ECtHR, Dudgeon v The United Kingdom, Judgment, 22 October 1987, Application No. 7525/76 ECtHR, McCann and Others v The United Kingdom, Judgment, 27 September 1995, Application No. 18984/91 ECtHR, Andronicou and Constantinou v Cyprus, Judgment, 9 October 1997, Application No. 86/ 1996/705/897 ECtHR, United Communist Party of Turkey and Others v Turkey, Judgment, 25 May 1998, Application No. 20/1997/804/1007 ECtHR, Osman v The United Kingdom, Grand Chamber Judgment, 28 October 1998, Application No. 23452/94 ECtHR, Hugh Jordan v The United Kingdom, Judgment, 4 August 2001, Application No. 24746/ 94 ECtHR, Pretty v The United Kingdom, Judgment, 29 April 2002, Application No. 2346/02 ECtHR, Nachova and Others v Bulgaria, Judgment, 26 February 2004, Application No. 43577/98 ECtHR, Vo v France, Judgment, 8 July 2004, Application No. 53924/00 ECtHR, Makaratzis v Greece, Judgment, 20 December 2004, Application No. 50385/99 ECtHR, Isayeva, Yusupova and Bazayeva v Russia, Judgment, 24 February 2005, Application Nos. 57947/00, 57948/00, 57949/00 ECtHR, Evans v The United Kingdom, Grand Chamber Judgment, 7 March 2006, Application No. 6339/05 ECtHR, Isayeva v Russia, Judgment, 6 June 2007, Application No. 57950/00 ECtHR, Kennedy v The United Kingdom, Judgment, 18 May 2010, Application No. 26839/05 ECtHR, Giuliani and Gaggio v Italy, Grand Chamber Judgment, 24 March 2011, Application No. 23458/02 ECtHR, Finogenov and Others v Russia, Judgment, 4 June 2012, Application Nos. 18299/03, 27311/030 ECtHR, Eweida and Others v The United Kingdom, Judgment, 15 January 2013, Application Nos. 48420/10, 59842/10, 51671/10, 36516/10 ECtHR, Jaloud v The Netherlands, Grand Chamber Judgment, 20 November 2014, Application No. 47708/08 ECtHR, Roman Zakharov v Russia, Grand Chamber Judgment, 4 December 2015, Application No. 47143/06 ECtHR, Szabó and Vissy v Hungary, Judgment, 12 January 2016, Application No. 37138/14 ECtHR, Armani Da Silva v The United Kingdom, Grand Chamber Judgment, 30 March 2016, Application No. 5878/08 ECtHR, Tagayeva and Others v Russia, Judgment, 13 April 2017, Application Nos. 26562/07, 14755/08, 49339/08, 49380/08, 51313/08, 14755/08, 21294/11, 37096/11 European Commission of Human Rights, Lawless v Ireland, Report, 19 December 1959, Application No. 332/57

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Treaties European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953)

Dr. Sofia Galani LL.B. LL.M. FHEA is a Lecturer in Law at the University of Bristol. Her research interests are on terrorism, human rights, maritime security, and the law of the sea and she has published in these areas. Her monograph entitled Hostages and Human Rights: Towards a Victim-Centred Approach? is due to be published by Cambridge University Press. Sofia has been providing legal advice to the Global Maritime Crime Programme of the United Nations Office on Drugs and Crime. She is the Editor of the ‘Case and Commentary’ Section of the European Human Rights Law Review.

Chapter 7

Remedying Violations of Human Dignity and Security: State Accountability for Counterterrorism Intelligence Cooperation Sophie Duroy Freedom is the non-negotiable demand of human dignity; the birthright of every person—in every civilization.a George W. Bush

Contents 7.1 7.2 7.3 7.4

Introduction........................................................................................................................ Security, Dignity, and the Counterterrorist State.............................................................. Human Rights, Intelligence Cooperation and State Responsibility ................................. Protecting Human Security, Restoring Human Dignity: State Accountability in International Forums ..................................................................................................... 7.4.1 The Concept of International Legal Accountability .............................................. 7.4.2 International Practice .............................................................................................. 7.5 Concluding Remarks ......................................................................................................... References ..................................................................................................................................

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Abstract International intelligence cooperation, an essential tool to counter terrorist threats, has increased exponentially since the attacks of 11 September 2001 (9/11). At the same time, the means and methods employed post-9/11 have resulted in serious violations of international human rights law. The interstate system of invocation of responsibility has proven ill-fitted to hold States to account for their wrongful acts in the counterterrorism intelligence cooperation context, leaving States immune and victims without redress. This chapter therefore proposes a new a

The White House 2002.

S. Duroy (&) Department of Law, European University Institute, Florence, Italy e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 C. Paulussen and M. Scheinin (eds.), Human Dignity and Human Security in Times of Terrorism, https://doi.org/10.1007/978-94-6265-355-9_7

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analytical perspective, using the concept of international legal accountability as a tool to examine the various alternative ways in which States are being held to account for their intelligence activities in breach of international human rights law. The analysis also shows that alternative forms of State accountability play a significant role in remedying violations of human dignity and human security, making them valuable processes for victims of intelligence operations.




Keywords State responsibility Intelligence cooperation Remedy Human security Human dignity




7.1





Accountability


Introduction

After the attacks of 11 September 2001 (9/11), State practice changed, but the law did not. Sources of international law and their applicability remained the same before and after 9/11; States’ counterterrorism policies were still bound by the same international rules and standards as the Executive’s other fields of action. Yet, in the wake of what was perceived as a massive failure in intelligence gathering (9/11) and following claims for increased executive powers to face the ‘new’ transnational and globalised terrorist threat, intelligence agencies worldwide have gained, de facto or de jure, more powers and missions than ever before (for example law enforcement, interrogation, detention, use of force). Intelligence cooperation has been encouraged, even made binding by United Nations (UN) Security Council Resolution 1373,1 and operations and exchanges of information with foreign partners have increased exponentially. National security has thus been invoked as a blanket justification for enhanced executive power, alongside limited oversight and review by other State organs. Indeed, in the meantime, formal accountability and/or oversight mechanisms of executive acts, and particularly of intelligence activities, have stayed tied to the domestic level and have rarely seen their competence evolve to match this power increase. It is an undisputed reality that States must collect and exchange intelligence to protect their populations against terrorism and other threats to national security. Yet, the necessity of intelligence cooperation does not erase the fact that certain of the means and methods adopted in recent decades, and particularly since 9/11, are problematic from a legal (not to mention ethical) perspective. For preventative and intelligence gathering purposes, intelligence cooperation has given rise to gross human rights violations, including violations of the prohibitions of torture, arbitrary

1

UN Security Council (2001) Resolution 1373 (2001), UN Doc. S/RES/1373, paras 2(b), 2(e) and 3.

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detention and enforced disappearance, routine extra-judicial killings, overwhelming privacy violations and a host of other wrongful acts.2 Domestic bodies in charge of overseeing and holding intelligence agencies to account have been confronted with doctrines of State secrecy and national security, immunities, statutes of limitation and the general lack of transparency surrounding intelligence activities. They have consequently proven highly ineffective to prevent and remedy abuses of power and breaches of international law.3 International intelligence cooperation is posing further challenges to national oversight mechanisms due to their lack of capacity to oversee the actions of foreign intelligence agencies and intelligence operations abroad, and due to the extensive use of the third-party (or ‘operator control’) rule preventing disclosure of foreign intelligence information, including to oversight bodies in most jurisdictions.4 The binding effect of States’ international obligations on their intelligence services is self-evident. As organs of the State, intelligence agencies must behave in accordance with the international obligations binding the State, whatever their origin and character.5 Since their acts will normally be attributed to the State, any breach of an international obligation by a State’s intelligence agency will trigger the State’s responsibility for an internationally wrongful act. Yet, the mere engagement of international responsibility cannot in and of itself provide redress to victims: the State needs to be held to account for the violations of victims’ rights. However, approaching accountability according to the horizontal interstate perspective featured in the law of State responsibility is of little use in human rights law, and even more so when intelligence cooperation is concerned. Indeed, States have no (political, economic, or other) interest in holding their intelligence partners to account for wrongs that did not directly injure them and which they believe enhanced their national security. In practice, and particularly when the primary norms infringed

For an account of the practices used by the CIA and its partners in the ‘global war on terror’, see US Senate Select Committee on Intelligence 2014. For reading keys, see Black and Raphael 2015. 3 On this topic, see in particular Council of Europe Parliamentary Assembly 2011; UN General Assembly (2009), Human Rights Council: Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, UN Doc. A/HRC/10/3; UN General Assembly (2010) Human Rights Council: Joint study on global practices in relation to secret detention in the context of countering terrorism of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak; the Working Group on Arbitrary Detention represented by its Vice-chair, Shaheen Sardar Ali; and the Working Group on Enforced or Involuntary Disappearances represented by its Chair, Jeremy Sarkin, UN Doc. A/HRC/13/42. Apart from a very partial success in Italy, no judicial investigation has led to a final judgment at the national level providing full redress to the victims, and no person directly involved in these operations has served any sentence. 4 On this issue, see Forcese 2011. 5 International Law Commission (2001) Draft Articles on Responsibility of States for International Wrongful Acts. In: UN General Assembly (2001) International Law Commission: Report on the Work of its Fifty-third Session, UN Doc. A/56/10, pp 76–143 (ASR), Articles 4 and 12. 2

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protect non-State actors, the Responsibility of States for Internationally Wrongful Acts regime of invocation of State responsibility “provides accountability only to the extent that states are entitled to invoke them.”6 A broader and more flexible conceptualisation of accountability is therefore required to effectively address and remedy the wrongful conduct of States in the context of counterterrorism intelligence activities and cooperation, taking into account the role played by non-State actors in holding States to account. This chapter brings a new perspective to the analysis of remedies in the ‘global war on terror’ by considering how different forms of international legal accountability can help remedy violations of human dignity and human security, insofar as they involve concrete consequences to the engagement of State responsibility. While inevitably premised on the prior establishment of State responsibility for an internationally wrongful act, the conceptualisation of international legal accountability adopted for this analysis refers to all relations, arrangements and regimes of State accountability shaped by international law. The question this chapter addresses can therefore be formulated as follows: how can State accountability assist in remedying violations of human dignity and human security resulting from counterterrorism intelligence operations? The chapter begins with outlining some of the human security and human dignity issues raised by post-9/11 counterterrorism intelligence operations (Sect. 7.2). Section 7.3 proceeds with a short sketch of the rules of State responsibility as relevant to the context and examines the challenges posed to victims of human rights violations in securing State accountability under this interstate framework. Section 7.4 examines other forms of international legal accountability and provides an analysis of international practice in the ‘global war on terror’. Section 7.5 then offers some concluding remarks on issues of shared accountability.

7.2

Security, Dignity, and the Counterterrorist State

Human security is originally conceived as the security of the person in detention against State power.7 This legal notion stems from the Magna Carta8 and the right to habeas corpus. The introduction of the ‘right to liberty and security of the person’ in international Conventions9 and its subsequent interpretation by 6

Brunnée 2005, p 30. Nowak 2005, paras 214–215; Schabas 2015, paras 228–229. 8 Clause 39. 9 E.g. European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953) (ECHR), Article 5(1); International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR), Article 9(1); American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS 123 (entered into force 18 July 1978) (ACHR), Article 7(1); African Charter on Human and 7

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international institutions somewhat broadened this notion to include the personal security of non-detained persons, including through positive obligations of the State to prevent interference with their physical integrity by private persons.10 The notion of human security, originally introduced by political scientists, is closely related to this legal interpretation and refers to the general security of the person against all sorts of threats, including but not limited to State power.11 This means that the State is not recognised as an impartial guardian of individuals’ security, as the counterterrorism security discourse seeks to imply, but as a subjective party that forms integral part of the security threat. This assumption is at the core of international human rights law (IHRL), which main purpose is the protection of the individual against negative interference with her rights by the State. Human rights and human security therefore have in common that the individual is regarded as the principal referent for security.12 The main flaw of the counterterrorism discourse is the implication that the threat from terrorist attacks is on balance with the threat from the State, so that when one raises, the other diminishes. On the contrary, the terrorist threat to security complements and may even enhance State threats to individual security when, as is the case in many countries since 9/11, the government is granted additional powers to deal with the terrorist threat. As emphasised by Locke already in 1689, the very means given to the State to combat our enemies (the terrorists) may very well be used by the government to combat its enemies (political opposition, minorities, etc.).13 The increased exercise of State power to enhance national security therefore does not do much in favour of human security, but has the potential to (and in fact does) infringe greatly on (at least some) individuals’ security.14 Of course, the positive obligations of the State to secure the human rights of individuals within its jurisdiction against interference by private parties (for example terrorists) have been recognised generally in respect of many rights.15 Yet, it would be absurd to infer from the existence of such positive obligations that, to realise them, the negative obligations of the State not to violate those rights should themselves be diminished. What this means concretely is that counterterrorism policies, i.e. enhanced State

People’s Rights, opened for signature 27 June 1981 1520 UNTS 217 (entered into force 21 October 1986), Article 6. 10 UN Human Rights Committee (2014) General comment No. 35: Article 9 (Liberty and security of person), UN Doc. CCPR/C/GC/35, para 9; CCPR, Delgado Paez v Columbia, Views, 12 July 1990, Communication No. 195/1985, para 5.5. The ECtHR and IACtHR have yet to rule on the notion of ‘security of the person’ independently of the right to liberty, but use the notion of due diligence or positive obligations under other provisions to address interpersonal violence. 11 For a summary of the definitions and influences in political sciences, see Roznai 2015, pp 2–3. 12 Van Kempen 2013, p 10; Newman 2001. 13 Locke 1689, Chapter 6, Section 93. 14 Van Kempen 2013, p 11. 15 E.g. ECtHR, Osman v The United Kingdom, Grand Chamber Judgment, 28 October 1998, Application No. 23452/94 (Osman case), para 116; IACtHR, Velasquez Rodriguez v Honduras, Judgment, 29 July 1988, IACtHR Series C No. 4, paras 172–175.

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powers to combat the terrorist threat, cannot legitimately have for aim or effect to reduce human security, i.e. the security of the individual against State power and other threats. From the perspective of human security therefore, national security cannot legitimately take precedence. A reduction in liberty is achieved by enhancing the power of the State, so that the accrued power capacity can be used to combat terrorism and make its population, or more likely the nation, more secure—but its people less free.16 Proponents of a balancing approach between security and liberty therefore often emphasise the ‘social good’ aspect of security: ‘we’ accept to be a bit less free for ‘us’ to be a bit more secure. This balancing discourse has been at the core of the counterterrorism approach post-9/11. However, it fails to take into account that what is at stake is an interpersonal trade-off, that ‘we’ and ‘us’ often are not the same subjects and what is happening really is “a trade-off of the liberty of a few for the sake of the enhanced security of some and the diminished security of others.”17 The sense of aspirational security justifying such talk about trade-offs is security against violent attacks, as well as freedom from care, anxiety or apprehension of such attacks.18 When in fear of an attack, citizens expect their government to act and respond to the threat. The more unusual or drastic the response, the stronger its psychological reassurance on the population.19 The risk of a violent attack from a terrorist organisation could well still be the same,20 but national security will have profited in the trade-off: the position of governmental institutions is now more secure and governmental powers have increased. However, this does not mean that individuals’ security has benefited in any way from this governmental exercise of power. Quite the opposite, for the benefit of such psychological reassurance, civil liberties may have been traded-off, the rule of law undermined, and security as a social good damaged.21 If we assume that liberty is the ultimate goal of human security—in that individuals are only free to enjoy their rights when they are secure that the State will not arbitrarily and unnecessarily interfere with them—then it becomes clear that any talk about trade-offs can only have at its core national security, i.e. the security of governmental institutions. The universality of human rights is based on the notion of human dignity: each individual, by virtue of her human nature, is a rights-holder and thus entitled to the protection of the law and to be considered, in the Kantian terminology, as an end in herself. Each and every individual is thereby entitled to expect security of her 16

Waldron 2010, pp 35–36. Ibid., p 146. See also Luban 2014 and Cole 2003. 18 See the Oxford English Dictionary’s definition of security: “1. The state of being free from danger or threat” and “1.3 The state of feeling safe, stable, and free from fear or anxiety”. Lexico (2019) Definition of security in English. https://en.oxforddictionaries.com/definition/security. Accessed 4 October 2018. 19 Waldron 2010, p 45. 20 As Waldron puts it, “an enhanced ability to combat terrorism is not the same as an actual diminution of the terrorist threat” (Ibid., p 44). 21 Ibid., p 45. 17

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rights. As Jeremy Waldron eloquently writes, human rights are therefore “supposed to restrict trade-offs of some people’s liberty and well-being for the sake of others’. They are not supposed to be traded off themselves.”22 Yet, the counterterrorism approach adopted by a majority of States post-9/11 rests on these trade-off discourses. The consequence is that targets of the counterterrorism measures adopted in the wake of 9/11 have not been made more secure as a result of governments’ response to the terrorist threat. Rather, they were, and some still are, terrorised by the State itself. Some were also used for the alleged (security) benefit of others, the ‘general population’. In that sense, the violation of their dignity on top of their security is salient: victims of intelligence operations such as the United States Central Intelligence Agency (CIA) rendition, detention and interrogation programme were reduced to mere means, potential sources of information, to a sole end, intelligence gathering.23 They were tortured not because of a strong presumption of guilt but because of a presumption of knowledge of information. Their only value in the eyes of the State was in terms of potential intelligence, not of human life. This blatant disregard for their dignity has given rise to the violation of their security and is embodied in the breach of several core norms of IHRL binding all States. The next section endeavours to list the main ways in which State responsibility is engaged for counterterrorism intelligence cooperation, a staple of the ‘global war on terror’.

7.3

Human Rights, Intelligence Cooperation and State Responsibility

The customary law of State responsibility is codified in the International Law Commission (ILC) Draft Articles on the Responsibility of States for Internationally Wrongful Acts (ASR) of 2001.24 Article 1 of the ASR provides that “[e]very internationally wrongful act of a State entails the international responsibility of that State”, while Part One of the ASR specifies the framework conditions for an internationally wrongful act to be characterised. Two separate cumulative conditions are necessary: a breach of the State’s international obligations; and attribution to the State of the conduct at the origin of the breach. The breach of a State’s primary obligations is a question of fact: is the conduct of the State incompatible 22

Ibid., p 13 (emphasis in original). See UN Economic and Social Council (2006) Commission on Human Rights: Situation of detainees at Guantánamo Bay, UN Doc. E/CN.4/2006/120, para 23, on Guantánamo: “the objective of the ongoing detention is not primarily to prevent combatants from taking up arms against the United States again, but to obtain information and gather intelligence on the Al-Qaida network”. See also Scheinin 2017, p 595: “suspected terrorists—or even persons only suspected of knowing something of relevance—are reduced to mere means when they are tortured to extract information, without any intention to bring them before a court for their possible crimes”. 24 ASR, above n 5. 23

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with one or several of the international obligations binding that State? When it comes to conduct of States’ intelligence agencies, security services or law enforcement forces, attribution is straightforward under Article 4 of the ASR as they are organs of the State. In that context, issues of attribution will only arise when conduct by one State’s organs may be attributed to another State because of the control and direction the latter exercises on the former.25 The CIA rendition, retention and interrogation programme provides an emblematic case study of counterterrorism intelligence cooperation pushed to its furthest, highlighting the “systemic inadequacies of the accountability structure over intelligence agencies.”26 It has been described as “straightforwardly and self-evidently a violation of many human rights”,27 making it impossible for the international community to ignore further the pressing need to start holding States to account for their intelligence operations.28 The programme was highly classified, held outside the United States (US) and was designed to place detainee interrogations beyond the reach of the law. It entailed the abduction and disappearance of detainees and their extra-legal transfer on secret flights to undisclosed locations, followed by their incommunicado detention, interrogation, torture and abuse at the hands of the CIA or of other States’ intelligence services. Victims who survived torture29 were eventually transferred into US military custody at Guantánamo Bay, into another State’s custody, or released. The very existence of the programme depended on close (secret) cooperation of the US with its usual allies30 as well as with unusual intelligence partners, including States with a known record of gross human rights violations. Although the extent of collaboration from individual States is not fully uncovered yet, it is alleged that around 50 States31 have participated in the programme in one way or another, and

25

However, ibid., Article 19 makes it clear that acting under the influence of direction, control or coercion of another State does not constitute an excuse or a circumstance precluding wrongfulness in and of itself, so that the directed or coerced State can still incur primary responsibility for its wrongful act. More generally, see below on issues of shared responsibility in intelligence cooperation. 26 Staberock 2012, p 352. 27 Duffy 2015, p 802. 28 The renewed interest for the issue of democratic oversight and accountability of intelligence services, observable through the high number of reports and research articles on the topic in the last 15 years, is possibly one of the most significant policy changes stemming from the publicity of the CIA-led programme. 29 At least one detainee (Gul Rahman) died in CIA custody as a result of torture. Another CIA detainee, Ibn Sheikh al-Libi, was killed in Libyan custody after being rendered to Libya by the CIA. 30 Council of Europe Parliamentary Assembly 2007 emphasises the vital role played by the NATO framework in authorising and preserving secrecy around the CIA-led programme. See below, Sect. 7.4.2.1. 31 The exact number is the object of debate: UN General Assembly (2010) Human Rights Council: Joint study on global practices in relation to secret detention in the context of countering terrorism of the Special Rapporteur on the promotion and protection of human rights and

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131 individual victims have been identified.32 Some of the States involved have participated in the arrest, detention and transfer of individuals into CIA custody.33 Others have hosted ‘CIA black sites’ on their territory,34 yet others are alleged to have received custody of detainees from the US for interrogation purposes,35 and a large number of States have allowed CIA rendition flights to refuel or stop at their airports or military bases, sometimes with detainees on board.36 Finally, many States are also alleged to have provided intelligence for the programme, to have sent agents to obtain intelligence directly from CIA detainees and/or to have relied on intelligence extracted through it.37 As a general guideline, States can be held responsible for the breach of an obligation to respect (negative obligations), to protect (positive obligations, including due diligence), for their aid and assistance to the commission of a

fundamental freedoms while countering terrorism, Martin Scheinin; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak; the Working Group on Arbitrary Detention represented by its Vice-chair, Shaheen Sardar Ali; and the Working Group on Enforced or Involuntary Disappearances represented by its Chair, Jeremy Sarkin, UN Doc. A/HRC/13/42 identified 44; Open Society Justice Initiative 2013 identified 54; Raphael et al. 2016 identified 65 countries involved in known rendition operations through the mapping of rendition flights and 17 more linked to suspicious circuits. 32 For prisoners’ details, see Rendition Research Team (2019) The Rendition Project: Prisoners. https://www.therenditionproject.org.uk/prisoners/index.html. Accessed 4 July 2019. 33 UN General Assembly (2010) Human Rights Council: Joint study on global practices in relation to secret detention in the context of countering terrorism of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak; the Working Group on Arbitrary Detention represented by its Vice-chair, Shaheen Sardar Ali; and the Working Group on Enforced or Involuntary Disappearances represented by its Chair, Jeremy Sarkin, UN Doc. A/HRC/13/42; UN General Assembly (2009), Human Rights Council: Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, UN Doc. A/HRC/10/3. 34 Black sites were used for the incommunicado interrogation and detention of CIA detainees and were found in Afghanistan, Guantánamo Bay, Lithuania, Morocco, Poland, Romania and Thailand. See generally Black and Raphael 2015. For an account of European States’ involvement, see also Council of Europe Parliamentary Assembly 2006, 2007, 2011. 35 Jordan, Egypt, Morocco, the Syrian Arab Republic, Pakistan, Ethiopia and Djibouti are known to have received detainees from the US for the purpose of using interrogation techniques amounting to torture. See UN General Assembly (2010) Human Rights Council: Joint study on global practices in relation to secret detention in the context of countering terrorism of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak; the Working Group on Arbitrary Detention represented by its Vice-chair, Shaheen Sardar Ali; and the Working Group on Enforced or Involuntary Disappearances represented by its Chair, Jeremy Sarkin, UN Doc. A/HRC/13/42. 36 See Council of Europe Parliamentary Assembly 2006, 2007; Raphael et al. 2016. 37 See UN General Assembly (2009), Human Rights Council: Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, UN Doc. A/HRC/10/3, paras 51–57.

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wrongful act (Article 16 of the ASR), or for the breach of a secondary obligation in respect of peremptory norms of international law as provided under Article 41 of the ASR. In addition, an internationally wrongful act can be committed in a variety of ways, including direct commission, aid and assistance, support, inaction, acquiescence, or wilful blindness.38 On the basis of now openly available data,39 State responsibility for participation in the CIA programme can be rather straightforwardly established with regard to most of the conducts adopted by the US and foreign States. Some relatively ‘passive’ forms of cooperation have nevertheless raised complicated legal questions. For the most part, State responsibility is made dependent upon the level of knowledge of the State, which is a question of fact. For instance, allowing CIA rendition aircrafts to stop and refuel on a State’s territory is not a wrongful act unless the territorial State had some knowledge about the CIA programme and the presence of detainees on board.40 Intelligence sharing also raises remarkable legal issues regarding the absolute prohibition of torture. The prohibition is recognised as jus cogens, a peremptory norm of international law suffering no derogation for any purpose.41 The UN Convention Against Torture (CAT)42 further imposes on State Parties direct positive obligations to investigate and punish, in their territory and jurisdiction, participation and complicity in torture,43 in addition to ensuring that such acts are criminalised under domestic law44 and that each State Party has taken effective measures to prevent them.45

38

ASR, above n 5, Articles 12, 16 and 41. See generally US Senate Select Committee on Intelligence 2014; Raphael et al. 2019; Council of Europe Parliamentary Assembly 2006, 2007, 2011; UN General Assembly (2010) Human Rights Council: Joint study on global practices in relation to secret detention in the context of countering terrorism of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak; the Working Group on Arbitrary Detention represented by its Vice-chair, Shaheen Sardar Ali; and the Working Group on Enforced or Involuntary Disappearances represented by its Chair, Jeremy Sarkin, UN Doc. A/HRC/13/42. 40 Under ASR, above n 5, Article 16, constructive knowledge of the programme would be deemed enough. See Moynihan 2018. The key test in IHRL is whether the State exercised ‘due diligence’ to prevent its territory from being used to commit human rights violations, and, in case of breach, diligence to then investigate, prosecute and provide redress accordingly. See Osman case, above n 15. 41 ASR, above n 5, Commentary to Article 26, para 5 and Commentary to Article 40, para 5; ICJ, Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment, 20 July 2012, [2012] ICJ Rep 422 para 99. 42 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (CAT). 43 Ibid., Articles 12 and 13. 44 Ibid., Article 4. 45 Ibid., Article 2. 39

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In intelligence cooperation, State responsibility for an internationally wrongful act relating to the prohibition of torture may arise straightforwardly for actions by foreign intelligence agencies on a State’s own territory,46 for refoulement to torture,47 or from the lack of effective domestic investigation and remedies for allegations of torture by a State official—even when committed abroad.48 Slightly more indirectly, it may also arise from the receipt and use of intelligence obtained through torture, in court49 or by the Executive,50 and from the interrogation of detainees abroad where there exists a serious risk that they are being tortured in detention. While international intelligence cooperation is undoubtedly subject to the law of State responsibility, the rules of invocation of State responsibility are ill-fitted in the intelligence cooperation context. This is mainly due to a practical issue: States are expected to hold each other to account under Part Three of the ASR. The interstate, horizontal forms of accountability embodied in the ASR therefore suffer from a 46

ECtHR, Al-Nashiri v Poland, Judgment, 24 July 2014, Application No. 28761/11 (Al-Nashiri 2014); ECtHR, Husayn (Abu Zubaydah) v Poland, Judgment, 24 July 2014, Application No. 7511/ 13 (Abu Zubaydah 2014); ECtHR, Al-Nashiri v Romania, Judgment, 31 May 2018, Application No. 33234/12 (Al-Nashiri 2018); ECtHR, Abu Zubaydah v Lithuania, Judgment, 31 May 2018, Application No. 46454/11 (Abu Zubaydah 2018). 47 ECtHR, El-Masri v The Former Yugoslav Republic of Macedonia, Grand Chamber Judgment, 13 December 2012, Application No. 39639/09 (El-Masri case); ECtHR, Nasr and Ghali v Italy, Judgment, 23 February 2016, Application No. 44883/09 (Nasr and Ghali case); CCPR, Mohammed Alzery v Sweden, Views, 10 November 2016, Communication No. 1416/2005 (Alzery case). 48 CAT, above n 42, Articles 4–9. States are “accountable for violations of rights under the [ICCPR] which [their] agents commit upon the territory of another State”. CCPR, López-Burgos v Uruguay, Views, 29 July 1981, Communication No. 52/1979. By analogy with procedural obligations under the right to life: ECtHR, Jaloud v The Netherlands, Grand Chamber Judgment, 20 November 2014, Application No. 47708/08. In addition, a State’s failure to investigate, criminally prosecute or allow civil proceedings—or efforts to block or hinder such proceedings—relating to allegations of torture or other forms of ill-treatment constitutes de facto denial of an effective remedy. UN Committee against Torture (2012) General comment No. 3 (2012): Implementation of article 14 by States parties, UN Doc. CAT/C/GC/3. 49 CAT, above n 42, Article 15. 50 Some authors argue that actionable use of intelligence obtained through torture creates a market for such intelligence and goes against the spirit of the CAT. See Scheinin and Vermeulen 2011. This position is also supported UN General Assembly (2014) Human Rights Council: Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, UN Doc. A/HRC/25/60; International Commission of Jurists 2009, para 85; UN General Assembly (2009), Human Rights Council: Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, UN Doc. A/HRC/10/3, para 20. See also UK House of Lords, A and Others v Secretary of State for the Home Department (2004); A and others v Secretary of State for the Home Department (Conjoined Appeals), Opinions of the Lords of Appeal for Judgment in the Cause, 8 December 2005, [2005] UKHL 71, p 30, where the House of Lords approvingly quoted McNally JA in S v Nkomo 1989: “[i]t does not seem to me that one can condemn torture while making use of the mute confession resulting from torture, because the effect is to encourage torture”.

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serious lacuna stemming from the fact that States are not equally powerful, so that it is highly unlikely that a small, weak State will be able or willing to hold a more powerful one to account. In the intelligence cooperation context, the costs of holding another State to account are so high that no State will do so (and has so far done so) for fear of losing its reputation as a reliable intelligence partner, and of ultimately putting its national security in jeopardy.51 As Sir Stephen Lander, former Director General of the United Kingdom Security Service (1996–2002), puts it, “[c]ollaboration is not an end in itself. It is utility that drives collaboration.”52 In the post-9/11 context, utility also seemed to call for collusion between States to evade oversight and review, and international pressures to frustrate accountability processes (whether at domestic or international level) have been solidly documented.53 Regardless of active collusion efforts, when national security is at stake, all actions are driven by national interest. As a result, if calling another State to account increases the risk of endangering a State’s own national security through consequences such as the interruption of intelligence sharing or backlash from terrorist groups, the State will refrain from doing so. The balancing discourse is salient here too: preserving national security means avoiding all kinds of oversight, review and accountability of the means used to do so, even when those means constitute serious violations of IHRL.54 This is just the next logical step after balancing respect for human rights with national security: we now turn to balancing accountability and redress for human rights violations with national security. A move beyond the horizontal interstate system of invocation of responsibility embodied in the ASR is thus necessary to hold States to account in the intelligence cooperation context. The concept of international legal accountability then operates as a tool allowing us to understand and assess the current state and functioning of the international legal order when it comes to holding States to account and remedying human rights violations resulting from counterterrorism intelligence operations and particularly cooperation.

51

Wills and Born 2011. See also the statement by UK High Court, R (Binyam Mohamed) v Secretary of State for the Foreign & Commonwealth Office), Judgment, 4 February 2009, [2009] EWHC 152 (Admin), paras 69–70. 52 Lander 2009, p 142. 53 An emblematic example is the cooperation framework established by the classified NATO agreement of 4 October 2001, in effect making NATO “a platform from which the United States obtained the essential permissions and protections it required to launch CIA covert action in the war on terror”. Council of Europe Parliamentary Assembly 2007, para 90. See also US refusal of cooperation (often accompanied by threats of cessation of intelligence cooperation) with investigations in the UK, Canada, Italy, Germany and before the ECtHR; and European States failure to cooperate with supra-national investigations. Documented in Council of Europe Parliamentary Assembly 2006, 2007, 2011. Analysed in Born and Wills 2011, p 210. 54 Notwithstanding the fact that counterterrorism policies in breach of human rights law have been widely demonstrated as ineffective, and torture has been time and again shown to yield no reliable intelligence. See Rejali 2009.

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Protecting Human Security, Restoring Human Dignity: State Accountability in International Forums

The present section defines the concept of international legal accountability in relation to the law of State responsibility and assesses how it is used to remedy violations of human dignity and security in international practice post-9/11.

7.4.1

The Concept of International Legal Accountability

As the previous Sect. 7.3 concluded, a State can be responsible for an internationally wrongful act without being held accountable for it. However, international legal responsibility is a prerequisite for international legal accountability. Building upon Mark Bovens’55 and Jutta Brunnée’s56 definitions of accountability, this chapter defines international legal accountability as the process by which a State legally justifies its performance vis-à-vis other international actors, in which an assessment or judgment of that performance against international legal standards is rendered, and through which consequences can be imposed if the State fails to live up to international legal standards. As such, accountability is premised upon the engagement of international responsibility with its two constitutive elements of breach and attribution. While certain accountability mechanisms at the international level are not based upon formal invocation of State responsibility and establishing State responsibility is not their primary aim—reporting mechanisms are for example more geared towards improving implementation and compliance with States’ obligations—the determination of responsibility is still part of their task, and this is one of the elements that makes them accountability mechanisms. In its most basic form, accountability is conceived as a tool to hold power wielders to account and control how they exercise such power.57 As Sect. 7.2 emphasised, IHRL was originally developed to secure (protect) the individual against State power. Accountability of States for their human rights performances therefore aims to restrain the power the State can exercise over the individuals within its jurisdiction, according to the IHRL standards the State consented to be bound by. International legal accountability is only concerned with the consequences for the State of the engagement of its international responsibility.

“Accountability is a relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgment, and the actor may face consequences”. Bovens 2007, p 450. 56 “International legal accountability involves the legal justification of an international actor’s performance vis-à-vis others, the assessment or judgment of that performance against international legal standards, and the possible imposition of consequences if the actors fails to live up to applicable legal standards”. Brunnée 2005, p 24. 57 Schedler 1999. 55

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Nevertheless, a process of accountability based upon the establishment of State responsibility for breach of its human rights obligations can often, through the consequences imposed on the State, assist in remedying the human rights violations suffered by the victim. It should also be noted that consequences are not necessarily brought upon by the accountability mechanism itself but can be reputational and result simply from the publicity of its decision. While in general public international law States are the primary account-holders (as the concept of ‘injured State’ in the ASR demonstrates), in IHRL the individual victim becomes the account-holder. This is one of the main reasons why the horizontal, direct, interstate forms of accountability embodied in the ASR are generally ill-fitted in IHRL. The relative lack of individual standing in the international legal order, and especially the lack of power of the individual relative to the State have led to the emergence of new forms of State accountability using international forums as accountability mechanisms (mediated accountability), and to other actors than the individual being allowed to hold States accountable for human rights violations on behalf of the individual victim (surrogate accountability).58 Third-party forums are particularly useful given the limitations imposed by the rules on invocation of responsibility under the ASR: while not displacing them entirely, they allow States and other actors to hold a State to account using the legal authority of the forum—to which the State consented—thereby circumventing power imbalances and/or lack of international standing. In mediated accountability processes, non-State account-holders are nevertheless still highly restricted due to procedural requirements. Especially in complaint procedures, international accountability mechanisms have rules regarding locus standi, competence ratione personae and ratione materiae, in addition to admissibility requirements such as the exhaustion of domestic remedies. Indeed, in IHRL, as in other fields of international law, the presumption is that domestic legal systems provide an effective remedy for violations of individuals’ rights. It is only when domestic remedies are exhausted, or when they are neither available nor effective, that there is an internationally wrongful act opening the possibility to invoke the responsibility of the State.59 However, the de facto situation of secrecy, immunities and deference to the Executive by domestic judicial organs in the counterterrorism context60 means that local remedies are seldom available or effective, so that this bar to the invocation of State responsibility is usually easily disposed with. In addition, this rule of admissibility of individual complaints does not bar processes of accountability arising from the proprio motu investigation of a situation by the forum, from referral by other States or certain non-State actors, and nor does it bar ex ante processes of accountability such as precautionary or interim measures. 58

Both terms are borrowed from Rubenstein 2007. ASR, above n 5, Article 44. See also e.g. ECHR, above n 9, Article 35(1); ICCPR, above n 9, Article 41(1)(c); ACHR, above n 9, Article 46(1)(a). For a discussion on the substantive or procedural character of this rule, see Crawford and Grant 2007. 60 Council of Europe Parliamentary Assembly 2011; Council of Europe Venice Commission 2015. 59

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International Practice

The following subsections analyse the extent to which selected international legal accountability processes have participated to remedying violations of human security and dignity in the post-9/11 counterterrorism context. 7.4.2.1

Detention Accountability: The Inter-American Commission on Human Rights on Guantánamo

The Inter-American Commission on Human Rights (IACHR) was the first international institution to explicitly call upon the US to respect Guantánamo Bay detainees’ human rights in March 2002, two months after the first prisoners were transferred there from US detention sites overseas. The Commission has made use of all the powers granted to it under the Organization of American States (OAS) Charter and its Rules of Procedure to monitor the detainees’ situation at Guantánamo Bay. This includes in particular its power to examine communications submitted to it and any other available information, to address the government of any member state not a Party to the Convention for information deemed pertinent by this Commission, and to make recommendations to it, when it finds this appropriate, in order to bring about more effective observance of fundamental human rights.61

In addition, although the US has not ratified the American Convention on Human Rights, and not consented to the Inter-American Court of Human Rights’ (IACtHR) jurisdiction, the Commission has jurisdiction to hear individual petitions alleging violations of the American Declaration of the Rights and Duties of Man (American Declaration)62 if the respondent State consents to its jurisdiction in each individual case. Throughout the years, the Commission’s attempts to hold the US to account for the continued extra-judicial detention, mistreatment and lack of due process afforded to Guantánamo Bay detainees have taken several forms. Precautionary measures63 have been granted with regards to “detainees held by the United States

61 OAS General Assembly (1979) Statute of the Inter-American Commission on Human Rights, Resolution No. 447, Article 20(b). 62 American Declaration of the Rights and Duties of Man, opened for signature April 1948, 1 Annals of the OAS 130 (entered into force 2 May 1948). 63 The authority of the IACHR to issue precautionary measures in respect of Member States of the OAS is provided for under Article 25 of the Commission’s Rules of Procedure. The Commission has affirmed at several occasions the “international obligation that [OAS] member States have to comply with precautionary measures issued by the Inter-American Commission on Human Rights”. IACHR (2005) Resolution No. 1/05, para 1.

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at Guantánamo Bay” since 2002 and extended and amplified several times since then as new information came to light and detainees’ situations evolved.64 Precautionary measures have also been granted individually in favour of Omar Khadr (2006), Djamel Ameziane (2008), Moath al-Alwi (2015) and Mustafa Adam Al-Hawsawi (2015). The case of Djamel Ameziane was declared admissible in 2012,65 and the hearing on the merits took place on 7 September 2017.66 In addition, the US also consented to the Commission’s jurisdiction in former CIA detainee Khaled El-Masri’s case, which was declared admissible in 2016.67 Through press releases, the Commission has expressed its concerns, given publicity to the situation and repeatedly called for the closure of the site. Since 2007, it has also unsuccessfully but repeatedly sought unconditional consent from the US to conduct a visit.68 The Commission has issued several resolutions— binding on the US as an OAS Member State—urging the US to give effect to the precautionary measures and indicating that its failure to do so had resulted in irreparable prejudice to the detainees’ rights.69 Finally, in a 2015 report,70 the Commission provided an extensive legal analysis of the various documented violations of detainees’ rights under the American Declaration.71 At several occasions in the report the Commission determined that there had been a violation of a provision of the Declaration, as well as of various international obligations of the US.72 Where appropriate, the Commission cited similar findings of violations by

64 For an early account of the role played by precautionary measures in the Guantánamo Bay situation, see Tittemore 2006. On IACHR precautionary measures generally, see Rodríguez-Pinzón 2013. 65 IACHR, Djamel Ameziane v United States, Report on Admissibility, 20 March 2012, Petition No. 900-08. 66 164th Extraordinary Period of Sessions of the IACHR, Mexico. 67 IACHR, Khaled El-Masri v United States, Report on Admissibility, 15 April 2016, Petition No. 419-08. 68 See OAS (2019) Decisions regarding the US Detention Center in Guantanamo. https://www.oas.org/en/iachr/pdl/decisions/Guantanamo.asp#Visita. Accessed 4 October 2018, Section ‘Requests of Permission to Conduct a Visit’. 69 IACHR (2006) Resolution No. 2/06 on Guantanamo Bay Precautionary Measures; IACHR (2006) Resolution No. 2/11 regarding the Situation of the Detainees at Guantanamo Bay, United States: MC 259-02. 70 IACHR 2015. 71 On the legal value accorded to the Declaration, see IACtHR, Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion, 14 July 1989, IACtHR Series A No. 10, para 45, stating that “the American Declaration is for [OAS Member States] a source of international obligations related to the Charter of the Organization”. 72 E.g. IACHR 2015, para 96: “the indefinite detention of persons still held at Guantánamo without charge after more than a decade, mainly for the purpose of obtaining intelligence, constitutes a serious violation of their right to personal liberty guaranteed under Article I of the American Declaration”.

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competent bodies under the CAT73 and the International Covenant on Civil and Political Rights (ICCPR)74—both binding on the US. While there still has yet to be a formal judicial determination of US responsibility for acts related to Guantánamo Bay, the Commission has not shied away from asserting US responsibility for violations of the American Declaration, and from demanding that the US Government takes steps to remedy its wrongful conduct. Although the Commission’s jurisdiction is not compulsory, the process in front of the Commission nevertheless qualifies as an international legal accountability mechanism. As a Member State of the OAS, the relationship between the US and the Commission is well established and gives rise to the US obligation to justify its conduct with regards to rights guaranteed by the American Declaration. There are several hearings and submission opportunities before decisions are issued, allowing for oral and written exchanges between the US and the Commission. Finally, the Commission can make use of its powers under the OAS Charter and its Rules of Procedure to impose consequences on the US, in the form of precautionary measures, decisions, resolutions, reports and publicity, if it judges that the US performance does not meet the standards imposed by the American Declaration. The accountability process in front of the IACHR has resulted in significant and authoritative legal analyses of the issues at stake. It has participated to making facts public and to mobilising public opinion from the start and it probably contributed to the (unheeded) commitment of the Obama Administration to close the detention site. More importantly, it put the US in the position of having to legally defend and justify its policy. The US has suffered consequences as a result of the process. Its domestic jurisprudence and legislation had to be adjusted slightly in response,75 its international reputation and intelligence capacity have been affected by the publicity of the facts, and the accountability process has opened the door to individual petitions by Guantánamo victims, which should lead to further consequences. It remains to be seen what political and legal impact the upcoming development of its jurisprudence on the ‘war on terror’ in the Ameziane and El-Masri cases will have. As the first international quasi-judicial precedent potentially declaring the international responsibility of the US almost 20 years after the beginning of the ‘war on terror’, the decisions of the Commission could be perceived as a more formal and authoritative condemnation. However, it is anything but certain whether this will be enough incentive for the US to finally provide redress to victims. From the victims’ perspective, it is hard to determine what effect, if at all, the IACHR precautionary measures had on the amelioration of detention conditions, determination of legal status or release of certain detainees. In front of the blatant violations of detainees’ security and dignity, it is nevertheless arguable that the

73

Above n 42. Above n 9. 75 United States, Detainee Treatment Act of 2005; US Supreme Court, Hamdan v Rumsfeld, Decision, 29 June 2006, Case No. 05-184; US Supreme Court, Boumediene v Bush, Decision, 11 June 2008, Case No. 06-1195. 74

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active stance taken by the Commission has had the merit of reaffirming that no classification of unlawful combatant or terrorist can deprive detainees of their inherent dignity as human beings, so that they are entitled to all guarantees of the American Declaration and other applicable international standards. Hearings and petitions have given a voice to (former) detainees, their representatives, and have offered an unbiased forum to counter US legal arguments and refute factual allegations. Finally, the legal analysis provided by the Commission, especially in its 2015 report, lays the ground for future international claims to accountability and reparation. The whole process matters for victims because it reasserts the role of the rule of law, it gives detainees a voice, recognises their status as victims and provides credit to their stories and allegations. As such, it assists in their re-humanisation and empowerment, and should be valued if only for that reason. 7.4.2.2

Rendition Accountability: United Nations Complaint Mechanisms

Sweden’s international responsibility has been engaged in relation to two cases of rendition to Egypt at the hands of Swedish security police and US and Egyptian intelligence agents. On 18 December 2001, the same day their asylum requests were denied for national security reasons by the Swedish Ministry of Foreign Affairs, Egyptian nationals Mohamed Alzery76 and Ahmed Agiza were arrested and summarily expelled from Sweden to Egypt aboard a CIA aircraft.77 Their lawyers were not informed, and they were denied any opportunity to challenge the decision. While clearly rendered with the assistance of the CIA, neither Agiza nor Alzery were put in CIA custody and both were primarily wanted by Egyptian intelligence. Their cases are thus ones of counterterrorism intelligence cooperation outside the framework of the CIA-led programme,78 but with striking similarities in the modus operandi. Their summary expulsion together with their mistreatment by US agents at Bromma Airport and subsequent torture while in Egyptian intelligence custody have been the object of Agiza’s and Alzery’s respective complaints against Sweden in front of the UN Committee against Torture (UNCAT) and the UN Human Rights Committee (CCPR). In May 2005, UNCAT concluded that Sweden had violated Articles 3 and 22 of CAT in respect of Agiza’s refoulement to Egypt and the

76

Also known as el-Zery. For a factual summary, see Raphael et al. 2019, p 296. 78 The explanation could however simply be that their arrest and rendition took place three months before the launch of the CIA programme, symbolised by the capture of Abu Zubaydah. 77

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frustration of its right to petition under the Convention.79 The Committee noted in particular that “it was known, or should have been known […] that Egypt resorted to consistent and widespread use of torture against detainees, and that the risk of such treatment was particularly high in the case of detainees held for political and security reasons.”80 In addition, the “procurement of diplomatic assurances which, moreover, provided no mechanism for their enforcement, did not suffice to protect against this manifest risk.”81 Sweden’s international responsibility was engaged only for the wrongful act of refoulement directly committed by Swedish authorities, and the Committee was careful not to address or determine any other issue.82 In November 2006, the CCPR similarly concluded that Sweden had violated Article 7, read alone and in conjunction with Article 2, of the ICCPR and Article 1 of the Optional Protocol to the ICCPR83 in respect of the rendition of Mohamed Alzery.84 Unlike UNCAT, the CCPR also addressed the treatment at Bromma Airport, and made the determination that “the acts complained of, which occurred in the course of performance of official functions in the presence of the State party’s officials and within the State party’s jurisdiction, are properly imputable to the State party itself, in addition to the State on whose behalf the officials were engaged”.85 Stopping short of explicitly declaring the international responsibility of the US (and indeed of naming it in the conclusions) for breach of the international prohibition of torture, the CCPR nevertheless touched upon shared responsibility issues arising from intelligence cooperation, and laid the ground for future findings against the US in separate proceedings.86

79

UNCAT, Ahmed Hussein Mustafa Kamil Agiza v Sweden, Decision, 25 May 2005, Communication No. 233/2003 (Agiza case). 80 Ibid., para 13.4. 81 Ibid. 82 Ibid., para 9.4. 83 Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976). 84 Alzery case, above n 47. 85 Ibid., para 11.6. 86 See the conclusions in UN Human Rights Committee (2006) Consideration of Reports Submitted by States Parties under Article 40 of the Covenant. Concluding observations of the Human Rights Committee: United States of America, UN Doc. CCPR/C/USA/CO/3, para 16: The Committee is concerned that in practice the State party appears to have adopted a policy to remove, or to assist in removing, either from the United States or other States’ territories, suspected terrorists to third countries, for the purpose of detention and interrogation, without the appropriate safeguards to protect them from treatment prohibited by the Covenant. The Committee is also concerned by numerous, well-publicized and documented allegations that persons sent to third countries in this way were indeed detained and interrogated under conditions grossly violating the prohibition contained in article 7, allegations that the State party did not contest. See also paras 20–22.

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The accountability processes in front of UNCAT and the CCPR have resulted in relative redress and reparation for the victims, with the exception of the lack of any criminal investigation.87 As a result of both proceedings, albeit a few years later, Sweden issued compensation to each claimant and repealed the December 2001 governmental decision denying them asylum, offering them a chance to re-apply and have their case determined independently by the migration board. In addition, Sweden has periodically reported to UNCAT about its detention monitoring visits to Agiza, who was not released from Egyptian custody until 2011. In his case, the accountability process could arguably be said to have participated in protecting his security against further action contrary to UNCAT at the hands of Egyptian agents for the remainder of its detention. Agiza has also been granted a permanent residence permit in Sweden in 2012, furthering this end. Since Sweden was only held responsible for refoulement in Agiza’s case, this appears to constitute a rather satisfactory remedy for this wrongful act, but it also leaves a substantial accountability gap regarding its immediate and foreseeable consequences: treatment at Bromma Airport and subsequent arbitrary detention and torture in Egypt. The CCPR decision in Alzery’s case, while maybe less careful in determining the responsibility of an absent third party, has the merit of acknowledging with Sweden’s responsibility for ill-treatment at Bromma Airport that this was not only a case of migration law refoulement. In consequence, Sweden’s accountability is slightly broader, and the violation of Alzery’s dignity committed at Bromma Airport could be said to have been partly remedied through the declaration of responsibility. 7.4.2.3

Intelligence Cooperation Accountability: the European Court of Human Rights on Black Sites and Rendition

Starting in 2012 with the Grand Chamber judgment in El-Masri,88 the European Court of Human Rights (ECtHR) has developed a jurisprudence of holding European States accountable for their cooperation with the CIA in the rendition, detention and interrogation programme. The judgment in El-Masri was the first judicial decision to officially recognise extraordinary rendition events, in addition to being the first judgment holding a State accountable for them. Because it is a court of law, and its jurisdiction is compulsory, State cooperation is not necessary for the ruling to proceed. In addition, the Court’s international character means that it comports several procedural advantages for the claimant. Of particular relevance in intelligence cooperation cases, the State secret privilege does not apply, the Court is not restricted by procedural barriers in the admission of evidence, and it has adopted a practice of shifting the burden of proof onto the State in situations where the

87

A thorough ombudsman investigation was conducted in 2005, but no criminal investigation was opened afterwards. 88 El-Masri case, above n 47.

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respondent State is the only entity with exclusive knowledge of the facts. The ECtHR therefore drew extensively on independent inquiries conducted by supra-national bodies and organisations to establish and corroborate the facts of the CIA-led programme cases, that it left open to the respondent States to rebuke. In the El-Masri case,89 following the rationale of the CCPR decision in Alzery,90 the ECtHR found Macedonia “directly responsible” for El-Masri’s torture by CIA officials at Skopje airport on the basis that its agents “actively facilitated the treatment and then failed to take any measures […] to prevent it from occurring.”91 It also found it responsible for the refoulement of El-Masri to torture as “Macedonian authorities knew or ought to have known, at the relevant time, that there was a real risk of torture.”92 More surprisingly, it found Macedonia responsible for the subsequent arbitrary detention (but not the torture) of El-Masri in CIA site ‘Salt Pit’ in Afghanistan under Article 5 of the European Convention on Human Rights (ECHR).93 The Court adopted here a different approach than regarding refoulement to torture, where the State is only held responsible for its own wrongful conduct: refoulement. The Court therefore held that the Macedonian authorities not only failed to comply with their positive obligation to protect the applicant from being detained in contravention of Article 5 of the Convention, but they actively facilitated his subsequent detention in Afghanistan by handing him over to the CIA, despite the fact that they were aware or ought to have been aware of the risk of that transfer. The Court considers therefore that the responsibility of the respondent State is also engaged in respect of the applicant’s detention between 23 January and 28 May 2004.94

This approach was not pursued in the Al-Nashiri and Abu Zubaydah cases against Poland,95 where Polish responsibility was engaged only for detention on its territory and transfer from its territory (refoulement to arbitrary detention), but not for detention after the applicants were rendered to another detention site. However, in the latter case of Nasr and Ghali, the Court reiterated its finding from El-Masri, and declared Italy responsible for the whole period of detention after Abu Omar was abducted and rendered from Italy to Egypt.96 This departure from Article 1 of the ASR in respect of Article 5 of the ECHR in those two cases seems to only be explainable by the factual differences between those and the Polish cases: in both El-Masri and Nasr and Ghali, the domestic authorities had custody of the applicants and relinquished it to the CIA, while in the Polish cases the domestic

89

For a factual summary, see Raphael et al. 2019, pp 241–242. Alzery case, above n 47, para 11.6. 91 El-Masri case, above n 47, para 211. 92 Ibid., para 218. 93 Above n 9. 94 El-Masri case, above n 47, para 239. 95 Al-Nashiri 2014, above n 46; Abu Zubaydah 2014, above n 46. For more information on the Abu Zubaydah case, see Chap. 5 ‘Dignity Denied: A Case Study’. 96 Nasr and Ghali case, above n 47, para 302. 90

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authorities never came in direct contact with the applicant.97 This differentiated approach has been confirmed in the two most recent cases decided by the Court, against Romania and Lithuania, which both concerned black sites and logically followed the Polish cases approach.98 It should be noted that the Court did not seize this opportunity to issue an independent finding under the “security of the person” fragment of Article 5 of the ECHR. This missed opportunity can be regretted, especially as it would have provided a stronger justification for the extension in time of Macedonia’s and Italy’s responsibility: a continuous breach of their positive and negative obligations to protect and not deliberately endanger the security of the claimants under Article 5 (1) of the ECHR rather than arbitrary deprivation of liberty—which lacked sufficient legal justification regarding attribution. In El-Masri, the ECtHR could not go as far as to hold the US accountable due to obvious jurisdictional limitations, but its account of the facts and the attribution to Macedonia of wrongful conduct committed by CIA agents made clear the role of the US in the violations of El-Masri’s rights.99 It is arguable that, while not holding the US accountable and refraining from naming it as the primary rights violator in the conclusions, the case nevertheless solidly established its international responsibility for the rendition and torture of El-Masri. The Court went further in the cases against Poland, where State responsibility was found for hosting a CIA black site and for generally collaborating with the CIA programmes. There, the Court made an explicit finding of US responsibility for torture in its conclusions,100 and then went on to find Poland responsible for treatment inflicted on the applicants by the CIA, on account of its “acquiescence and connivance”. While this leads the ECtHR to consider the preliminary establishment of US responsibility necessary (and controversially so),101 it also makes it clear that responsibility arises out of intelligence cooperation activities as much as from direct commission of the wrongful acts themselves. In the two most recent cases, the Court reverted to the more cautious approach followed in El-Masri: while finding that the treatment to which the applicants were subjected to amounted to inhuman treatment and despite ample references to it in previous paragraphs, the Court refrained from naming the CIA as the primary rights violator in its conclusions.102 The black sites cases are a striking example of accountability exclusively for intelligence cooperation, with violations established under multiple Convention Articles whilst the respondent States’ authorities were never in contact with the 97

See Council of Europe Parliamentary Assembly 2007, para 198. Al-Nashiri 2018, above n 46; Abu Zubaydah 2018, above n 46. 99 El-Masri case, above n 47, especially para 206. 100 Al-Nashiri 2014, above n 46, para 516; Abu Zubaydah 2014, above n 46, para 511: “the Court concludes that the treatment to which the applicant was subjected by the CIA during his detention in Poland at the relevant time amounted to torture within the meaning of Article 3 of the Convention”. 101 Scheinin 2014. 102 Al-Nashiri 2018, above n 46, para 675; Abu Zubaydah 2018, above n 46, para 640. 98

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applicants. Interestingly, Poland was also found in violation of Article 38 of the ECHR for failure to cooperate with the Court, a statement that the argument of State secrecy, if successful at domestic level, is counter-productive at the international one. In all six cases, the Court found the respondent States responsible for violations of multiple Convention articles and awarded relatively high monetary compensation to the applicants. The extent to which State accountability could help remedy violations of their dignity and security appears however not only dependent on the actual wrongful acts committed by the respondent States but also on the applicants’ present situation. Both Abu Zubaydah and Al-Nashiri are still detained incommunicado103 at Guantánamo Bay with the status of ‘high value detainees’, and no prospect of either release or trial. The judgments of the Court in their cases are not only about Polish, Romanian and Lithuanian responsibility, although an important precedent regarding accountability for intelligence cooperation, but also, and significantly so, about giving them a voice and credit to their stories. However bold the implicit or explicit statements of US responsibility for their torture may appear given the Court’s lack of jurisdiction over the US, they are important because of their situation as forever detainees with no redress avenue in or against the US. Accountability of the three European Governments in Abu Zubaydah and Al-Nashiri’s cases recognises their victim status and their entitlement, as human beings, to have their rights protected by law. This recognition is also about the value of their life, in contrast with their (alleged) intelligence value. On the other hand, the applicants in El-Masri and Nasr and Ghali had been released before the start of the proceedings, and the declarations of State responsibility were matched by satisfactory reparation, in addition to recognition of their victim status and confirmation of their allegations. Practically, the Court could go as far as to hold the respondent States responsible for the totality of their detention since it had an end date. Legally, however, the lack of sufficient or satisfactory justification for attribution of foreign arbitrary detention under Article 5 of the ECHR means that it is doubtful that State accountability on this ground can have any meaningful effect for the victims as the State can only remedy its own wrongful acts.

7.5

Concluding Remarks

This chapter started with the factual observation that there can be responsibility without accountability. Yet, because accountability rests on the engagement of responsibility, access to international forums has proved significant in obtaining While the ‘high value detainees’ currently held at Camp Seven, Guantánamo Bay, do have limited access to lawyers, all their communications are classified, they are held in solitary cells and do not have access to phones or communal activities. IACHR 2015, especially para 122. For a US account of conditions of detention, see US Department of Defense 2009.

103

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declarations of State responsibility, thereby providing a mediated form of State accountability. In addition, while many aspects of the right to a remedy remain out of reach for victims of counterterrorism operations, by giving them a voice, credit to their allegations, and by reaffirming that all human beings deserve the protection of the law and should be valued first and foremost for their human life, international accountability processes in the ‘war on terror’ have re-established the humanity and dignity of victims. State accountability thus has had a significant impact on the restoration of the applicants’ dignity, as well as, in certain situations, on the security of their person. This observation prompts a further question: whether shared accountability is a necessary condition for full satisfaction of the right to a remedy in cooperation contexts. The attempts by several mechanisms to ignore the US role in the violations committed against individual victims,104 or to mention it only as factual background105 while purporting to hold the respondent State accountable for as much of the rendition process as possible under international law—even if that meant departing from the rules of State responsibility as the ECtHR did to hold Macedonia and Italy responsible for Article 5 violations that were not their own— makes this question all the more salient. For the sake of legal certainty, it would have been preferable to acknowledge the ground on which attribution was based. While it is certainly to be applauded that States are held accountable for their participation in the CIA programme, it also gives the impression of a legal stretch to counter the absence of redress avenues against certain States and provide a semblance of remedy at any (legal) cost. The lack of jurisdiction of the ECtHR over the US means that while it could declare the US responsible for the torture and arbitrary detention of Al-Nashiri and Abu Zubaydah in the Polish cases, this had little legal or practical consequences: it could not order their release nor impose any direct consequence on the US. On the other hand, both UNCAT and the CCPR have jurisdiction over the US in its reporting obligations under the relevant conventions, so that shared accountability remained a theoretical possibility, albeit under differentiated proceedings. While this may explain their more careful approaches to US (or indeed Egypt’s) responsibility in the cases against Sweden as a potential indispensable third party which has not consented to their jurisdiction, it may also be the case that both Committees made conscious efforts to avoid addressing the legal issues raised by the complex and elaborate framework of intelligence cooperation in which the acts under scrutiny were taking place. The result, however, is that as responsibility and accountability remain incomplete, so do the remedies for the violations of victims’ dignity and security. Further research on non-complaint mechanisms as accountability forums should help understand how surrogate accountability can help provide the necessary

104

Agiza case, above n 79. Ibid, and to a lesser extent the El-Masri case, above n 47, and the Nasr and Ghali case, above n 47. 105

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oversight over intelligence cooperation when complaint mechanisms remain inaccessible. It is to be hoped in any case that State accountability, whatever its form, will provide ex ante incentives for counterterrorism operations and policies to be more respectful of the rule of law and individual freedom, which even US President George W. Bush considered to be “the non-negotiable demand of human dignity; the birthright of every person—in every civilization.”106

References Articles, Books and Other Documents Aldrich RJ (2009) Global Intelligence Co-operation versus Accountability: New Facets to an Old Problem. Intelligence and National Security 24(1):26–56 Black C, Raphael S (2015) Revealed: The Boom and Bust of the CIA’s Secret Torture Sites. The Bureau of Investigative Journalism. https://www.thebureauinvestigates.com/stories/2015-1014/revealed-the-boom-and-bust-of-the-cias-secret-torture-sites. Accessed 4 October 2018 Bovens M (2007) Analysing and Assessing Accountability: A Conceptual Framework. European Law Journal 13(4):447–468 Brunnée J (2005) International Legal Accountability through the Lens of the Law of State Responsibility. Netherlands Yearbook of International Law 35:21–56 Choi S-W (2010) Fighting Terrorism through the Rule of Law? Journal of Conflict Resolution 54(6):940–966 Cole D (2003) Their Liberties, Our Security: Democracy and Double Standards. International Journal of Legal Information 31:290–311 Council of Europe (2011) Parliamentary Oversight of Security and Intelligence Agencies in the European Union. https://www.europarl.europa.eu/document/activities/cont/201109/ 20110927ATT27674/20110927ATT27674EN.pdf. Accessed 4 July 2019 Council of Europe Parliamentary Assembly (2006) Rapporteur Dick Marty: Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe member states, CoE Doc. 10957 Council of Europe Parliamentary Assembly (2007) Rapporteur Dick Marty: Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report, CoE Doc. 11302 rev. Council of Europe Parliamentary Assembly (2011) Rapporteur Dick Marty: Abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations, CoE Doc. 12714 Council of Europe Venice Commission (2015) Report on the Democratic Oversight of the Security Services, CoE Doc. CDL-AD(2015)010 Crawford JR, Grant TD (2007) Local Remedies, Exhaustion of. MPEPIL. http://opil.ouplaw.com/ view/10.1093/law:epil/9780199231690/law-9780199231690-e59. Accessed 4 October 2018 Duffy H (2015) The ‘War on Terror’ and the Framework of International Law, 2nd edn. Cambridge University Press, Cambridge Duffy H (2017) Detention and Interrogation Abroad: The ‘Extraordinary Rendition’ Programme. In: Nollkaemper A, Plakokefalos I, Schechinger J (eds) The Practice of Shared Responsibility in International Law. Cambridge University Press, Cambridge, pp 89–127

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Forcese C (2011) The collateral casualties of collaboration: The consequences for civil and human rights of transnational intelligence sharing. In: Born H, Leigh I, Wills A (eds) International Intelligence Cooperation and Accountability. Routledge, London, pp 72–97 IACHR (2005) Resolution No. 1/05 IACHR (2006) Resolution No. 2/06 on Guantanamo Bay Precautionary Measures IACHR (2006) Resolution No. 2/11 regarding the Situation of the Detainees at Guantanamo Bay, United States: MC 259-02 IACHR (2015) Towards the Closure of Guantánamo. OAS. https://www.oas.org/en/iachr/reports/ pdfs/Towards-Closure-Guantanamo.pdf. Accessed 3 July 2019 International Commission of Jurists (2009) Assessing Damage, Urging Action: Report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights. International Commission of Jurists, Geneva International Law Commission (2001) Draft Articles on Responsibility of States for International Wrongful Acts. In: UN General Assembly (2001) International Law Commission: Report on the Work of its Fifty-third Session, UN Doc. A/56/10, pp 76–143 Lander S (2009) International intelligence co-operation. In: Andrew C, Aldrich RJ, Wark WK (eds) Secret Intelligence: A Reader. Routledge, London, pp 140–152 Locke J (1689) Two Treatises of Government, II. Cambridge University Press, Cambridge Luban D (2014) Torture, Power, and Law. Cambridge University Press, Cambridge Moynihan H (2018) Aiding and Assisting: the Mental Element under Article 16 of the International Law Commission’s Articles on State Responsibility. International & Comparative Law Quarterly 67(2):455 471 Newman E (2001) Human Security and Constructivism. International Studies Perspectives 2(3):239–251 Nowak M (2005) U.N. Covenant on Civil and Political Rights: CCPR Commentary, 2nd edn. Engel, Kehl am Rhein Nowak M, Charbord A (eds) (2018) Using Human Rights to Counter Terrorism. Edward Elgar Publishing, Cheltenham OAS General Assembly (1979) Statute of the Inter-American Commission on Human Rights, Resolution No. 447 Open Society Justice Initiative (2013) Globalizing Torture: CIA Secret Detention and Extraordinary Rendition. Open Society Foundation. https://www.justiceinitiative.org/uploads/ 655bbd41-082b-4df3-940c-18a3bd9ed956/globalizing-torture-20120205.pdf. Accessed 3 July 2019 Raphael S, Black C, Blakeley R (2019) CIA Torture Unredacted. The Rendition Project. https:// www.therenditionproject.org.uk/documents/RDI/190710-TRP-TBIJ-CIA-Torture-UnredactedFull.pdf. Accessed 19 October 2019 Raphael S, Black C, Blakeley R, Kostas S (2016) Tracking Rendition Aircraft as a Way to Understand CIA Secret Detention and Torture in Europe. The International Journal of Human Rights 20(1):78–103 Rejali D (2009) Torture and Democracy. Princeton University Press, Princeton Rodríguez-Pinzón D (2013) Precautionary Measures of the Inter-American Commission on Human Rights: Legal Status and Importance. Human Rights Brief 20(2) 13–18 Roznai Y (2015) The Insecurity of Human Security. Wisconsin International Law Journal 32(1):95–141 Rubenstein J (2007) Accountability in an Unequal World. The Journal of Politics 69(3):616–632 Schabas WA (2015) The European Convention on Human Rights: A Commentary. Oxford University Press, Oxford Schedler A (1999) Conceptualizing Accountability. In: Schedler A, Diamond L, Plattner MF (eds) The Self-Restraining State: Power and Accountability in New Democracies. Lynne Rienner Publishers, Colorado, pp 13–28 Scheinin M (2014) The ECtHR Finds the US Guilty of Torture—As an Indispensable Third Party? EJIL: Talk! https://www.ejiltalk.org/the-ecthr-finds-the-us-guilty-of-torture-as-an-indispensablethird-party/. Accessed 4 October 2018

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Scheinin M (2017) Terrorism. In: Moeckli D, Shah S, Sivakumaran S (eds) International Human Rights Law, 3rd edn. Oxford University Press, Oxford, pp 580–596 Scheinin M, Vermeulen M (2011) International law: Human rights law and state responsibility. In: Born H, Leigh I, Wills A (eds) International Intelligence Cooperation and Accountability. Routledge, London, pp 252–274 Staberock G (2012) Intelligence and Counter-Terrorism: Towards a Human Rights and Accountability Framework? In: Salinas de Frías AM, Samuel K, White ND (eds) Counter-Terrorism: International Law and Practice. Oxford University Press, Oxford, pp 353–387 The White House (2002) The National Security Strategy of the United States of America. http:// nssarchive.us/NSSR/2002.pdf. Accessed 4 July 2019 Tittemore B (2006) Guantánamo Bay and the Precautionary Measures of the Inter-American Commission on Human Rights: A Case for International Oversight in the Struggle Against Terrorism. Human Rights Law Review 6(2):378–402 UN Committee Against Torture (2006) Consideration of Reports Submitted by State Parties under Article 19 of the Convention. Conclusions and Recommendations: United States of America, UN Doc. CAT/C/USA/CO/2 UN Committee against Torture (2012) General comment No. 3 (2012): Implementation of article 14 by States parties, UN Doc. CAT/C/GC/3 UN Economic and Social Council (2006) Commission on Human Rights: Situation of detainees at Guantánamo Bay, UN Doc. E/CN.4/2006/120 UN General Assembly (2009) Human Rights Council: Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, UN Doc. A/HRC/10/3 UN General Assembly (2010) Human Rights Council: Joint study on global practices in relation to secret detention in the context of countering terrorism of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak; the Working Group on Arbitrary Detention represented by its Vice-chair, Shaheen Sardar Ali; and the Working Group on Enforced or Involuntary Disappearances represented by its Chair, Jeremy Sarkin, UN Doc. A/HRC/13/42 UN General Assembly (2014) Human Rights Council: Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, UN Doc. A/HRC/25/60 UN Human Rights Committee (2006) Consideration of Reports Submitted by States Parties under Article 40 of the Covenant. Concluding observations of the Human Rights Committee: United States of America, UN Doc. CCPR/C/USA/CO/3 UN Human Rights Committee (2014) General comment No. 35: Article 9 (Liberty and security of person), UN Doc. CCPR/C/GC/35 UN Security Council (2001) Resolution 1373 (2001), UN Doc. S/RES/1373 US Department of Defense (2009) Review of Department Compliance with President’s Executive Order on Detainee Conditions of Confinement. https://archive.defense.gov/pubs/pdfs/ REVIEW_OF_DEPARTMENT_COMPLIANCE_WITH_PRESIDENTS_EXECUTIVE_ ORDER_ON_DETAINEE_CONDITIONS_OF_CONFINEMENTa.pdf. Accessed 4 October 2018 US Department of the Army (1992) Field Manual 34–52: Intelligence Interrogation. http://www. fas.org/irp/doddir/army/fm34-52.pdf. Accessed 4 October 2018 US Senate Select Committee on Intelligence (2014) Committee Study of Central Intelligence Agency’s Detention and Interrogation Program. https://fas.org/irp/congress/2014_rpt/ssci-rdi. pdf. Accessed 4 October 2018 Van Kempen PH (2013) Four Concepts of Security—A Human Rights Perspective. Human Rights Law Review 13(1):1–23

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Waldron J (2010) Torture, Terror, and Trade-Offs: Philosophy for the White House. Oxford University Press, Oxford Wills A, Born H (2011) International intelligence cooperation and accountability: Formidable challenges and imperfect solutions. In: Born H, Leigh I, Wills A (eds) International Intelligence Cooperation and Accountability. Routledge, London, pp 277–308

Case Law CCPR, López-Burgos v Uruguay, Views, 29 July 1981, Communication No. 52/1979 CCPR, Delgado Paez v Columbia, Views, 12 July 1990, Communication No. 195/1985 CCPR, Mohammed Alzery v Sweden, Views, 10 November 2016, Communication No. 1416/2005 ECtHR, Osman v The United Kingdom, Grand Chamber Judgment, 28 October 1998, Application No. 23452/94 ECtHR, El-Masri v The Former Yugoslav Republic of Macedonia, Grand Chamber Judgment, 13 December 2012, Application No. 39639/09 ECtHR, Al-Nashiri v Poland, Judgment, 24 July 2014, Application No. 28761/11 ECtHR, Husayn (Abu Zubaydah) v Poland, Judgment, 24 July 2014, Application No. 7511/13 ECtHR, Jaloud v The Netherlands, Grand Chamber Judgment, 20 November 2014, Application No. 47708/08 ECtHR, Nasr and Ghali v Italy, Judgment, 23 February 2016, Application No. 44883/09 ECtHR, Abu Zubaydah v Lithuania, Judgment, 31 May 2018, Application No. 46454/11 ECtHR, Al-Nashiri v Romania, Judgment, 31 May 2018, Application No. 33234/12 IACHR, Djamel Ameziane v United States, Report on Admissibility, 20 March 2012, Petition No. 900-08 IACHR, Khaled El-Masri v United States, Report on Admissibility, 15 April 2016, Petition No. 419-08 IACtHR, Velasquez Rodriguez v Honduras, Judgment, 29 July 1988, IACtHR Series C No. 4 IACtHR, Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion, 14 July 1989, IACtHR Series A No. 10 ICJ, Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment, 20 July 2012, [2012] ICJ Rep 422 UK High Court, R (Binyam Mohamed v Secretary of State for the Foreign & Commonwealth Office, Judgment, 4 February 2009, [2009] EWHC 152 (Admin) UK House of Lords, A and Others v Secretary of State for the Home Department (2004); A and others v Secretary of State for the Home Department (Conjoined Appeals), Opinions of the Lords of Appeal for Judgment in the Cause, 8 December 2005, [2005] UKHL 71 UNCAT, Ahmed Hussein Mustafa Kamil Agiza v Sweden, Decision, 25 May 2005, Communication No. 233/2003 US Supreme Court, Hamdan v Rumsfeld, Decision, 29 June 2006, Case No. 05-184 US Supreme Court, Boumediene v Bush, Decision, 11 June 2008, Case No. 06-1195

Legislation United States, Detainee Treatment Act of 2005

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Treaties African Charter on Human and People’s Rights, opened for signature 27 June 1981 1520 UNTS 217 (entered into force 21 October 1986) American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS 123 (entered into force 18 July 1978) American Declaration of the Rights and Duties of Man, opened for signature April 1948, 1 Annals of the OAS 130 (entered into force 2 May 1948) Charter of the Organisation of American States, opened for signature 30 April 1948, 721 UNTS 324 (entered into force 13 December 1951) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953) International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

Sophie Duroy LL.B. LL.M. is a Ph.D. Researcher in Law at the European University Institute (Florence, Italy). She is working on state responsibility and accountability for human rights violations resulting from intelligence activities. She is an LL.M. graduate (cum laude) in Public International Law from Leiden University and an LL.B. graduate (Hons. 1st) in Law & French Law from the University of Essex and University of Paris West, Nanterre.

Chapter 8

Stripped of Citizenship, Stripped of Dignity? A Critical Exploration of Nationality Deprivation as a Counter-Terrorism Measure Sangita Jaghai and Laura van Waas

Contents 8.1 Introduction........................................................................................................................ 154 8.2 Deprivation of Nationality and Counter-Terrorism .......................................................... 156 8.2.1 What is Deprivation of Nationality? ...................................................................... 156 8.2.2 The Use of Deprivation of Nationality as a Counter-Terrorism Measure ............ 159 8.3 The Far-Reaching Consequences of Denationalisation .................................................... 162 8.4 The Prohibition of Arbitrary Deprivation of Nationality ................................................. 166 8.5 The Inherent Inequality of Citizenship Stripping ............................................................. 170 8.6 Final Observations: Questioning the Use of Nationality Deprivation as a Counter-Terrorism Measure....................................................................................... 173 References .................................................................................................................................. 175

Abstract Gradually, since the terror attacks in New York and London in the early 2000s, deprivation of nationality has come to the fore as a counter-terrorism measure (CT measure). At the same time, the instrumentalised use of nationality deprivation in pursuit of national security goals is a policy that has cropped up in other, arguably very different contexts. This chapter offers a critical exploration of nationality deprivation as a CT measure. It reflects on how citizenship deprivation is distinct as compared to other CT measures, using three different lenses to do so: the far-reaching consequences denationalisation has for the persons concerned, the specific international

S. Jaghai (&)
L. van Waas Tilburg Law School, Tilburg, The Netherlands e-mail: [email protected] L. van Waas Organization Institute on Statelessness and Inclusion, The Hague, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 C. Paulussen and M. Scheinin (eds.), Human Dignity and Human Security in Times of Terrorism, https://doi.org/10.1007/978-94-6265-355-9_8

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norms constraining the use of deprivation of nationality, and the inequality inherent in the implementation of citizenship stripping in practice. This will elucidate the impact of deprivation of nationality on human dignity and human security. Finally, this chapter also touches on a number of important and under-explored questions relating to the extent to which deprivation of nationality can be considered an effective instrument in protecting national security and countering terrorism.










Keywords Citizenship Nationality Deprivation of nationality Counter-terrorism Human rights National security Statelessness Human dignity Human security Foreign terrorist fighters




8.1












Terrorism


Introduction

In November 2017, the world learned that three British aid workers who were in Syria to help internally displaced persons were stripped of their British nationality.1 The United Kingdom (UK) Home Secretary found two of these individuals to pose a threat to the national security of the UK and the third was considered to be involved in terrorism-related activities. The full details of this assessment and the evidence against the men was not released by the British authorities, nor was the case for deprivation brought before a judge before the deprivation order was issued. According to the media, all three men claim to have never fought in Syria and have a demonstrable track record as aid workers, recognised by official charities and humanitarian organisations. While they intended to appeal to have their nationality reinstated, the decision to denationalise these men has left them in limbo, unable to return to their homes in the UK and thereby effectively stranded in Syria. Gradually, since the terror attacks in New York and London in the early 2000s, deprivation of nationality has come to the fore as a counter-terrorism measure (CT measure), deployed by States against both convicted terrorists and (perhaps innocent) people suspected of all sorts of crimes, including terrorism as in the example above. With the imminent fall of the Islamic State (IS) in Syria and Iraq and calls from terrorist leaders for radicalised individuals to build terrorist networks in their home countries, States increasingly fear an influx of returning foreign terrorist fighters (FTFs) who pose a threat to national security. This has offered further incentive to explore and expand the use of deprivation of nationality as a security instrument. In 2017, the Netherlands, Russia, Indonesia and Kazakhstan were among the countries to enact legislation to establish new nationality deprivation procedures—joining a longer list of countries to pass such reforms over the past decade. The power to strip a citizen of his or her nationality in connection to

1

Middle East Eye (2017) Exclusive: British aid workers in Syria stripped of citizenship. http:// www.middleeasteye.net/news/exclusive-british-aid-workers-syria-stripped-citizenship-240907317. Accessed 3 February 2018.

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counter-terrorism has also been put to growing use in practice, not just in the UK, but also elsewhere.2 At the same time, the instrumentalised use of nationality deprivation in pursuit of national security goals is a policy that has cropped up in other, arguably very different contexts. Human rights monitoring groups report that Bahrain denationalised 578 citizens between 2012 and 2017 for behaviour that is deemed harmful to State security.3 This included a number of people who faced terrorism-related charges, but also human rights defenders, political activists, critics of the regime and lawyers. In these cases, the expression of alternative political views was sufficient to be deemed a threat to national security and punished with the same harsh measure as terrorists. In Turkey, following the attempted coup d’état in July 2016, new deprivation powers were enacted, targeting Turkish citizens residing abroad.4 The decrees, issued under state-of-emergency laws in Turkey, empower the Cabinet to revoke citizenship of people under investigation in relation to a list of charges that are considered crimes against Turkey and who fail to respond to summons to return to Turkey. In mid-2017, an initial list of 130 names was published, but many people on the list have been living abroad for decades and fear return, especially in light of the broader political context in Turkey where tens of thousands of people have been arbitrarily arrested and detained in response to the coup attempt, without due process or recourse to justice. These individuals may now find themselves at risk of statelessness. The above examples demonstrate not only the way in which nationality deprivation is increasingly employed as a counter-terrorism measure (CT measure), but also the diverse circumstances in which a person is deemed to be a threat to national security, such that the State considers citizenship stripping to be warranted. They also provide the first hint of the questions that nationality deprivation as a CT measure raises for the protection of both human dignity and human security. While the international human rights system envisions protection of fundamental rights for all human beings—without any distinction on the basis of status, gender, race, ethnicity, sex, colour, and religion—States’ role in protecting and fulfilling these rights for their citizens is significant. Deprivation of nationality breaks the 2

Cases have been reported in the international media in 2017, for example, in relation to Australia and to Denmark. See New York Times (2017) ISIS fighter’s Australian citizenship is revoked under antiterror laws. https://www.nytimes.com/2017/02/13/world/australia/citizenship-isiskhaled-sharrouf.html. Accessed 3 February 2018; Reuters (2017) Danish court strips Islamic State fighter of citizenship. https://www.reuters.com/article/us-denmark-islamic-state/danish-courtstrips-islamic-state-fighter-of-citizenship-idUSKBN1721VF. Accessed 3 February 2018. 3 See, e.g., Amnesty International (2016) Bahrain: Alarming spike in expulsion of citizens arbitrarily stripped of their nationality. https://www.amnesty.org/en/latest/news/2016/03/bahrainalarming-spike-in-expulsion-of-citizens-arbitrarily-stripped-of-their-nationality/. Accessed 4 March 2018; Human Rights Watch, Bahrain (2018) New deportations of nationals. https://www. hrw.org/news/2018/02/04/bahrain-new-deportations-nationals. Accessed 4 March 2018. 4 Reuters (2017) Turkey’s threat over failed coup risks leaving scores stateless: think tank. https:// www.reuters.com/article/us-turkey-security-stateless/turkeys-threat-over-failed-coup-risksleaving-scores-stateless-think-tank-idUSKBN1A21B7. Accessed 4 March 2018.

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citizen-State bond, making it more difficult for people who are no (longer) citizens to enjoy the protection of their, or any, State and creating a context in which human security and human dignity are threatened.5 Against this background, this chapter offers a critical exploration of nationality deprivation as a CT measure. The chapter first sets out what deprivation of nationality is, as well as how and in what circumstances States put this measure to use. Thereafter, at the heart of the chapter is a discussion of how citizenship deprivation is distinct as compared to other CT measures, using three different lenses to do so: the far-reaching consequences denationalisation has for the persons concerned, the specific international norms constraining the use of deprivation of nationality, and the inequality inherent in the implementation of citizenship stripping in practice. This will elucidate the impact of deprivation of nationality on human dignity and human security. Finally, in drawing to a conclusion, the chapter touches on a number of important and under-explored questions in relation to the extent to which deprivation of nationality can be considered an effective instrument in protecting national security and countering terrorism.

8.2

Deprivation of Nationality and Counter-Terrorism

To better understand why deprivation of nationality is a distinct CT measure, it is important to understand what nationality deprivation technically entails and how it is used in a counter-terrorism context. This section first sets out what nationality deprivation is, how it manifests in States’ domestic laws and how States motivate the use of nationality deprivation when targeting their own citizens. Secondly, this section describes how citizenship revocation is increasingly used as a CT measure and addresses some important trends in the use of this instrument.

8.2.1

What is Deprivation of Nationality?

Deprivation of nationality or denationalisation refers to the unilateral act, by a State, of withdrawing a person’s nationality and formally breaking the (legal) bond with that citizen.6 In fact, two different modalities for such non-voluntary withdrawal of nationality can be identified, namely ‘loss’ and ‘deprivation’.7 ‘Loss of nationality’ 5 The link between nationality deprivation and threats to human security and human dignity will be explained in Sect. 8.3. 6 ‘Loss’ and ‘deprivation’ of nationality should not be confused with ‘renunciation’ of nationality where persons voluntarily give up their nationality nor with the cancellation of a passport (i.e. withdrawing a document that serves as proof of a person’s nationality and enables him or her to travel). 7 UN High Commissioner for Refugees 2014.

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is the term most commonly used to describe its automatic lapse: nationality is revoked if certain conditions set out by law are met, without further intervention by the State. For example, in many nationality laws, provisions on loss of nationality are established for persons who reside abroad for a number of consecutive years8 or who voluntarily acquire another nationality.9 ‘Deprivation’ as a mode distinct from automatic loss describes the non-automatic withdrawal of nationality by an authority—often the Minister of Justice or the Minister of Interior, or a court—that has been empowered to revoke a person’s citizenship should certain circumstances arise. Despite the different processes and situations, loss and deprivation lead to the same outcome: that the individual, who was once a citizen, no longer holds the nationality of the State concerned.10 In this chapter, and in line with international human rights law,11 the term deprivation of nationality is used in its broader sense, to refer to any act of withdrawal of nationality, whatever the modality through which it is achieved. A 1958 survey of domestic legislation conducted by the International Law Commission uncovers that nationality deprivation as an instrument of State policy has a longer history and a wider application than the post-9/11 counter-terrorism context. Withdrawal of nationality was enshrined in the domestic law of almost all States.12 It resulted, amongst others, from a change in personal status (for example marriage), being born a national but born abroad and never residing in the country, illegally crossing frontiers, emigrating, deserting the military, or voting in a foreign election. While these early deprivation grounds are now rare or obsolete in national legislation, many other grounds still exist today. Contemporary deprivation grounds, many of which were also existent 60 years ago, include: when a person joins a foreign military army, renders a service to a foreign State, resides abroad for a certain period of time, voluntarily acquires another nationality, acquires a

8

E.g. United Arab Emirates, Cameroon, Germany, Indonesia, Norway, Lithuania. E.g. Bangladesh, Botswana, Cyprus, the Netherlands, Lao People’s Democratic Republic. 10 Some commentators also identify a third modality of involuntary withdrawal of nationality which is referred to as ‘retroactive non-recognition of acquisition of nationality’ or ‘quasi-loss of nationality’ having retroactive effect to the moment of acquisition of nationality. It differs from the other two modalities in the sense that it nullifies acquisition of nationality and the person concerned, thus, never acquired that nationality. See De Groot 2013, p 2; Manby 2016, p 103. The lack of a legal basis for nationality deprivation would make this arbitrary per definition. See further Sect. 8.2.2 as well as ACtHPR, Anudo Ochieng Anudo v United Republic of Tanzania, Judgment, 22 March 2018, Application No. 012/2015. 11 UN General Assembly (2009) Human Rights Council: Human rights and arbitrary deprivation of nationality. Report of the Secretary-General, UN Doc. A/HRC/13/34, para 23; UN High Commissioner for Refugees 2014, paras 9–10. 12 International Law Commission (1953) Nationality, including Statelessness – National Legislation Concerning Grounds for Deprivation of Nationality – Memorandum Prepared by Mr. Ivan S. Kerno, Expert of the International Law Commission, UN Doc. A/CN.4/66/. 9

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nationality in a fraudulent manner, or commits a serious crime (for example treason, murder, terrorist acts, crimes against the security of the State).13 Thus, while the individual legislation of each State may vary significantly in the number, wording and modalities that it provides for the withdrawal of citizenship, it is a policy that tends to be invoked across a similar range of contexts. Zooming out from these individual circumstances in which nationality deprivation is provided for, a number of common motivations for this instrument can be identified. In general, the grounds for denationalisation relate to one or more of the following notions: protecting national security, lack or loss of allegiance towards the State, lack or loss of the “genuine connection”14 with the country of nationality or to punish disloyal behaviour.15 A State can also bring forward multiple motivations for deprivation, depending on the circumstances of a case. The above deprivation measures all have in common that they are applied on an individual basis, as part of the operation of a country’s nationality law (alongside the clauses for acquisition of nationality). It may nevertheless be that certain citizens are more exposed to the possibility of denationalisation than others. In particular, States’ desire—and now also an international law obligation16—to avoid statelessness has led to restrictions in the applicability of deprivation measures, whereby only individuals who possess another nationality can be stripped of their citizenship. Historically, and today, those who acquired nationality by naturalisation—voluntarily, as an adult—are also more commonly targeted by legislative powers to deprive citizenship.17 While it falls beyond the scope of this chapter to discuss such contexts in detail, it is important to note that the power to deprive citizens of their nationality has also been used notoriously in the form of mass denationalisation, where ethnic and religious minorities were targeted, resulting in egregious violations of human dignity and human security.18 From the German Jews who were deprived of their

13

For an overview of nationality deprivation grounds in nationality laws, see, e.g., European University Institute (2019) Global Citizenship Observatory (GLOBALCIT). http://globalcit.eu/. Accessed 17 July 2019. 14 Nationality has been defined by the International Court of Justice as “a legal bond, having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.” ICJ, Nottebohm (Liechtenstein v Guatemala), Judgment, 6 April 1955, [1955] ICJ Rep 4. 15 See above n 9. 16 Convention on the Reduction of Statelessness, opened for signature 4 December 1954, 989 UNTS 175 (entered into force 13 December 1975) (1961 Convention), Article 8(1). 17 See further European University Institute (2019) Global Citizenship Observatory (GLOBALCIT). http://globalcit.eu/. Accessed 17 July 2019. 18 As will be discussed further in Sect. 8.3, if a person only has one nationality, deprivation results in statelessness, because the person will consequently no longer be “considered as a national by any State under the operation of its law.” This definition of statelessness is set out in the Convention Relating to the Status of Stateless Persons, opened for signature 26 April 1954, 360 UNTS 117 (entered into force 6 June 1960).

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nationality during the Nazi regime in the 1930s,19 to the denationalisation of Kurds in Syria in the 1960s,20 the Rohingya in Myanmar in the 1980s and Dominicans of Haitian descent in the Dominican Republic in 2013,21 these and many more cases of mass denationalisation show the damage this measure can do and continue to present a contemporary challenge today.22 While situations of mass denationalisation have been critically condemned by the international community, less attention is given so far to issues of human security and human dignity regarding denationalisation of (suspected) terrorists which (allegedly) pose a threat to national security. This chapter focuses on precisely this concern.

8.2.2

The Use of Deprivation of Nationality as a Counter-Terrorism Measure

Data gathered on EU States show that between 2001 and 2017, the number of strategies, action plans and CT measures significantly increased, often after a terror attack.23 Indeed, since 9/11, a wide range of policy measures and action plans adopted by States globally to fight the ‘war on terrorism’ have been prompted by the attacks and bombings in New York, Madrid, London, Brussels, Manchester, Paris and Berlin, as well as the rise and fall of IS in Syria and Iraq.24 States have tended to be crisis-driven in their policy response to counter terrorism and continue to establish CT measures with a view to preventing terrorist attacks, by any means. Deprivation of nationality has been one of the CT measures with which States have responded after an attack or a threat. The Indonesian government amended its counter-terrorism law as a response to terrorist attacks in Central Jakarta in 2016 and fears of return of extremists fighting against security forces of the Philippines in Marawi City.25 Also, then French President Hollande proposed a Bill for nationality deprivation following the 2015 Paris attacks, which was not adopted by the

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Fripp 2016, para 1.60. Al Barazi and Tucker 2017, p 87. 21 Blake 2017, pp 102–116. 22 See, e.g., Institute on Statelessness and Inclusion 2014; Amnesty International 2016. 23 European Parliament Policy Department for Citizens’ Rights and Constitutional Affairs 2017, p 31. 24 Early 2018, a study was conducted by the Soufan Center and the Global Strategy Network which concluded that about 5,600 FTFs have returned to their home countries between 2014 and 2017, of whom 1,200 FTFs returned to Europe. One of the reasons for return is that IS has been losing ground and calls upon people to return or stay in their ‘home country’ to plan attacks there. For the entire report, see Barrett 2017. 25 Human Rights Watch (2017) Indonesia: Counterterrorism Law Changes Threaten Rights, Reject proposals to restrict speech, revoke citizenship. https://www.hrw.org/news/2017/07/12/ indonesia-counterterrorism-law-changes-threaten-rights. Accessed 4 March 2018. 20

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Senate.26 This is also the case for increase in use of nationality deprivation in France, the UK, and Indonesia. It has been a tool that politicians seem to increasingly reach out to as a response to new threats or even in order to address individual situations where a person has been identified to be a problem. The UK, for example, amended its deprivation laws in July 2014, while a case concerning a purported British terrorist was pending at the UK Supreme Court (Pham v Secretary of State for the Home Department).27 Pham was a naturalised British citizen, born in Vietnam. According to the national security services, Pham had, among others, received training from Al Qaida. As a result, the Home Secretary revoked his citizenship as his behaviour was deemed seriously prejudicial to the interests of the UK. Pham argued that Vietnam does not recognise him as a Vietnamese national, which was confirmed by the Vietnamese government and he should, therefore, not be denationalised. This argument was also accepted during his appeal at the Special Immigration Appeals Commission, as deprivation of nationality cannot lead to statelessness, limiting the use of this measure. However, in July 2014, the British Nationality Act was amended and gave the Home Secretary the power to deprive a person of British nationality if there are reasonable grounds for believing that the person is able, under the law of a country or territory outside the UK, to become a national of that country.28 The formulation and implementation of nationality deprivation measures differ from one State to another. In some instances, deprivation can result from being criminally convicted for an act of terrorism. This means that sufficient evidence needs to be provided that a person has committed a terrorist offence for a court to take such a decision. However, in the case of FTFs it is challenging for prosecutors to gather sufficient evidence for a person to secure a conviction. Many States therefore circumvent criminal law provisions by establishing administrative law measures on nationality deprivation in this context.29 A State authority (often the Minister of Justice and in some cases the Minister of Interior) has the discretionary power to determine whether a person poses a threat to national security or is engaged in conduct that is prejudicial to the (vital) interests of the State, which can result in denationalisation prior to or without even pursuing the possibility of a criminal conviction. Deprivation as a CT measure regulated in administrative law implies broadly formulated provisions which merely focus on a suspicion (by the relevant authority) that someone is, for instance, involved in an act of terrorism. Very little information 26 Washington Post (2016) French Senate effectively kills controversial nationality law. https:// www.washingtonpost.com/news/worldviews/wp/2016/03/18/french-senate-effectively-killscontroversial-nationality-law/?utm_term=.0fa04858e3b4. Accessed 4 March 2018. 27 UK Supreme Court, Pham v Secretary of State for the Home Department, Judgment, 25 March 2015, [2015] UKSC 19. 28 Anderson 2016. 29 E.g. The Netherlands, Rijkswet op het Nederlanderschap [Dutch Nationality Act], Article 14(2) which co-exists next to The Netherlands, Wetboek van Strafrecht [Criminal Code], Article 134a.

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is made publicly available by States on when certain behaviour leads to suspicion of being involved in terrorism or being a threat to national security, making this a difficult area of policy to monitor. Amnesty International identifies that such broad provisions define the following to be behaviour that is prejudicial to the interests of the State: expressions of terrorism (for example verbal incitement to terrorism, glorification of terrorism), suspected association with a terrorist organisation, suspicion that a person travelled to conflict zones or helped a terrorist organisation in any way.30 This lowers the evidentiary threshold for a citizen to be stripped of his or her nationality.31 On the other hand, like other denationalisation powers, as set out above, the use of nationality deprivation as a CT measure is often restricted in other ways. For many States, a decision to strip a person’s citizenship is dependent on whether a person has another nationality, to prevent statelessness.32 As a result, deprivation of nationality as a CT measure is in many States only applicable to citizens who have more than one nationality. In other countries, only naturalised citizens who have more than one nationality can be subject to this measure.33 Unlike the general application of most CT measures then, nationality deprivation only applies to a specific group of citizens. States that have embraced deprivation of nationality as a CT measure have sought to justify this instrument, even if it focuses only on a specific group of citizens. The States’ policy priority is, for example, to keep FTFs out of the country and pre-empt the risk of terrorist attacks organised by FTFs who have returned (‘returnees’). Neil Basu, Senior National Coordinator for Counterterrorism Policing in the UK was cited in the media as saying that FTFs are denationalised because they operate on a principle that the UK does not want these people back, because of their long-term exposure to extreme ideologies that aim to destroy western society.34 Meanwhile, when the notorious ‘ISIS Beatles’ were stripped of their UK citizenship, Defence Secretary Gavin Williamson stated: “[t]hese people have turned their back on Britain, killed innocents and tried to bring terror to the streets of our country.”35 So, deprivation is motivated as both a preventative measure and one that seeks to punish disloyal citizens, who committed the cruellest acts, in a

30

Amnesty International 2017, p 58. Please note that in many States people have the right to appeal after the decision to deprive a person’s nationality. However, effectiveness of such an appeal may be frustrated by, for example, secret evidence requirements. See ibid. 32 More on the link between deprivation and nationality and statelessness will be explained in Sect. 8.3. 33 Jaghai 2017, pp 14–16. 34 Express (2018) WARNING: UK could be flooded by 100 ISIS jihadis but we are ready, terror officer says. https://www.express.co.uk/news/uk/920162/isis-uk-police-warning-neil-basu-syriairaq-caliphate. Accessed 26 February 2018. 35 Daily Mail (2018) As Britain washes its hands of notorious terror cell, it tells America: YOU put them on trial. http://www.dailymail.co.uk/news/article-5374167/Britain-washes-handsnotorious-terror-cell.html. Accessed 5 March 2018. 31

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harsher manner than provided for in criminal law. This punitive character of deprivation becomes more evident if denationalisation is regulated as a criminal law measure. Russia is one of the few States that requires naturalised citizens to be criminally convicted for an act of terrorism prior to denationalisation.36 Instead of or in addition to a jail sentence, citizenship deprivation becomes a punishment if the judge sees fit. Deprivation of nationality is also seen by States as bound up with the question of allegiance. The bond between a person and a State that is formalised through citizenship comes with an expectation of loyalty by the citizen towards the State. Terrorists’ behaviour fundamentally contrasts with the duty of allegiance— terrorists being loyal to an enemy that aims to destroy the fundamental principles societies are built upon. Terrorists do not share the same morals and values as fellow citizens, resulting in a breach of the citizen-State relationship. By revoking citizenship of ‘bad’ citizens, States also hope to discourage people from becoming involved in terrorism and strengthen (other) citizens’ sense of loyalty. The above shows that a State may, in reality, have different policy ends in mind with a particular deprivation power or act. It also shows that the concept of nationality deprivation transcends the terrorism context, and applies in a variety of contexts worldwide, but both academic and policy debate on this measure has similarly been revived by the CT context. At the same time, little is known about how deprivation of nationality fits in the wider counter-terrorism field. To effectively problematise the use of citizenship stripping from the perspective of human dignity and human security, it is critical to understand what makes this tool distinct from others in the broader arsenal of CT measures invoked by States. In the following sections, three different perspectives are offered on this question of distinctiveness, each providing important insights into the implications of nationality deprivation for the enjoyment of human dignity and protection of human security.

8.3

The Far-Reaching Consequences of Denationalisation

Perhaps the most frequently cited quote on the impact of denationalisation can be credited to the then Chief Justice of the United States Supreme Court, Earl Warren, in the context of a 1958 ruling in which the Court was asked whether Mr. Albert Trop could be deprived of his American citizenship as a punishment for deserting the army. Chief Justice Warren famously described deprivation of nationality as losing “the right to have rights”, setting out his full reasoning against denationalisation, in particular where it results in statelessness, as follows:

36

RT (2017) Putin signs law to strip convicted terrorists of Russian citizenship. https://www.rt. com/news/398046-russia-strips-terrorists-citizenship/. Accessed 5 March 2018.

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[It is] the total destruction of the individual’s status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights and, presumably, as long as he remained in this country, he would enjoy the limited rights of an alien, no country need do so, because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination at any time by reason of deportation. In short, the expatriate has lost the right to have rights […]. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people. He is stateless, a condition deplored in the international community of democracies.37

This compelling framing of the significance of deprivation of nationality is highly instructive in unpacking its far-reaching consequences. In the first place, nationality is appropriately recognised here as more than just the connection between an individual and a particular State, but as the foundation for a person’s status within both “the national and international political community”. Indeed, the legal bond of nationality assures a person of a place and a community in which they are formally recognised as belonging. The withdrawal of nationality then leads to what Hannah Arendt described as “the deprivation of a place in the world which makes opinions significant and actions effective”38 and referred to as “civil death”.39 It extinguishes a key element of a person’s identity.40 A second and related point identified by Chief Justice Warren is the significance of the legal and political status of nationality for the enjoyment of even the most basic rights. Nationality can be understood as an “enabling right”.41 Severing the bond with the State brings an end to eligibility for political rights—such as to stand for or vote in an election. Moreover, without nationality, access to education, healthcare, employment, property ownership, social security, legal remedies and other rights becomes highly problematic. This is evident in international jurisprudence relating to the right to a nationality, in which the finding of a violation of this right is routinely accompanied by the finding of the consequential violation of

37

US Supreme Court, Trop v Dulles, Decision, 31 March 1958, 356 US 86. Arendt 1986, p 296. 39 Ibid, p 302. More recently, the notion of ‘civil death’ was invoked in the context of the large-scale denationalisation of Dominicans of Haitian descent by the Dominican Republic in 2013, where commentators described the act as ‘civil genocide’. See, e.g., The Economist (2013) A storm in Hispaniola. Haiti and the Dominican Republic. https://www.economist.com/news/ americas/21591203-and-no-agreement-how-many-have-been-cut-citizenship-storm-hispaniola. Accessed 5 March 2018. 40 See, e.g., IACtHR, Expelled Dominicans and Haitians v Dominican Republic, Judgment, 28 August 2014, Case No. 282, para 274. 41 See Recalde Vela 2017, p 131. 38

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various other human rights.42 Therefore, in terms of its impact on human dignity and human security, the spill-over effects of the act of deprivation of nationality can be extensive. It is not the enjoyment of one right that is implicated, but the enjoyment of many.43 Thirdly, Chief Justice Warren points to the “fate of ever-increasing fear and distress” which would result from the withdrawal of nationality. This observation is vital to appraising the measure through the lens of human dignity. The loss of status and of place, as well as the loss of rights, has an unquestionably deep impact on the human experience. This fact has also been recognised in related jurisprudence before international bodies, such as in the case brought by Amnesty International against Zambia in the 1990s in response to the arbitrary removal of citizenship and deportation of two prominent political figures, William Steven Banda and John Luson Chinula: “by forcing Banda and Chinula to live as stateless persons under degrading conditions, the Government of Zambia has deprived them of their family and is depriving their families of the men’s support, and this constitutes a violation of the dignity of a human being.”44 The insecurity generated by deprivation of nationality is aggravated by the nature of this deprivation as a permanent act. In contrast to a temporary suspension of rights, such as the right to free movement or to liberty through the confiscation of a passport or the imposition of a period of imprisonment, the permanence of deprivation of nationality has caused it to be likened to “a life sentence without the possibility of parole and the death penalty, and neither of these is a default or predominant form of punishment in democracies.”45 In appraising the use of nationality deprivation as a CT measure then, the significant and prospectively permanent implications for the ability to live a dignified existence cannot be ignored. Finally, in his appraisal of the implications of deprivation of nationality, Chief Justice Warren draws attention to the connection between this measure and the phenomena of banishment and of statelessness, which he describes respectively as “universally decried by civilised people” and “a condition deplored in the international community of democracies”. Once more, subsequent international jurisprudence has support this concern, as in the case of John K. Modise who was simultaneously rendered stateless and exiled from Botswana:

42

See, e.g., ACERWC, Institute for Human Rights and Development in Africa and the Open Society Justice Initiative (on behalf of Children of Nubian Descent in Kenya) v The Government of Kenya, Decision, 22 March 2011, Case No. Com/002/2009; IACtHR, Yean and Bosico Children v Dominican Republic, Judgment, 8 September 2005, Case No. 130. 43 For a discussion of deprivation of nationality as a form of persecution, see Fripp 2016. 44 ACmHPR, Amnesty International v Zambia, Decision, 5 May 1999, Case No. 212/98, para 58. 45 Cohen 2016, p 256. See also Jayaraman 2016, p 213.

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The complainant was deported four times to South Africa, and on all of these occasions, he was rejected. He was forced to live for eight years in the ‘homeland’ of Bophuthatswana, and then for another seven years in ‘no man’s land’, a border strip between the former South African Homeland of Bophuthatswana and Botswana. These acts exposed him to personal suffering and indignity in violation of the right to freedom from cruel, inhuman or degrading treatment.46

Contemporary trends in respect of the use of citizenship stripping as a CT measure show the reality of this challenge to human dignity and human security today. Practice shows that States are eagerly embracing deprivation of nationality specifically as a tool through which to achieve banishment, with citizens targeted for denationalisation while they are abroad and as a basis on which to subsequently deny re-entry to the country.47 Moreover, political debates and law reform initiatives have shown how tenuous the commitment to the avoidance of statelessness has become in this context. For example, the UK (re)introduced the power to render a naturalised citizen stateless if he or she has “engaged in conduct seriously prejudicial to the UK’s vital interests” in 2014,48 and the safeguards against statelessness which are provided for in the 1961 United Nations (UN) Convention on the Reduction of Statelessness (1961 Convention)49 have come under fire from politicians in Denmark and Australia.50 Thus, while democratic values and international law standards are directed towards countering the use of banishment and the occurrence of statelessness, as set out below, the instrumentalisation of citizenship stripping as a CT measure is placing this principled approach under grave strain—and with it the commitment to human dignity and human security.51

46

ACmHPR, John K. Modise v Botswana, Decision, 6 November 2000, Case No. 97/93_14AR, para 92. 47 In the Netherlands, for example, deprivation of nationality can be accompanied by a ‘Declaration of Undesirability’ (Ongewenstverklaring) which bars the now non-national from re-entry to Dutch territory. 48 United Kingdom, British Nationality Act 1981, as amended on 28 July 2014, Section 40(2). 49 Above n 16. 50 Ersbøll 2017; The Australian (2016) Citizenship loss provisions need expansion to counter terrorist threat. https://www.theaustralian.com.au/opinion/citizenship-loss-provisions-needexpansion-to-counter-terrorist-threat/news-story/dd5e21a2e031f045da70f949982f408f. Accessed 3 March 2018. 51 For more on the connection between statelessness and human (in)security, see Manly and van Waas 2010, pp 49–81. This book chapter relates to statelessness and human security more generally, derived from Sokoloff and Lewis 2005, p 3.

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The Prohibition of Arbitrary Deprivation of Nationality

International law recognises the regulation of nationality as a prerogative of State sovereignty, but has come to impose important limits on the freedom of States to determine the conditions for acquisition and withdrawal of nationality.52 Central to this evolution was the recognition of the right to a nationality as a fundamental human right and the inclusion of the prohibition of arbitrary deprivation of nationality in Article 15 of the Universal Declaration of Human Rights.53 The lesson that had been inherited from the period before and during the Second World War was that deprivation of nationality could be used to persecute entire communities, leaving millions of people stateless, and that allowing States free reign to determine who should not or would no longer be a citizen was fraught with problems. The deprivation legislation established by Nazi Germany contributed to the persecution of thousands of Jews and the denationalisation laws of the former Soviet Union were adopted to realise ‘nativisation’ by stripping Soviet nationality of millions of Russians.54 States therefore agreed to establish a range of international principles to ensure human dignity and human security, including in regulating nationality matters. Central among these are the principle of non-discrimination, the prohibition of arbitrary deprivation of nationality, and the (general) prohibition of statelessness. Each of these principles will be discussed separately below. The principle of non-discrimination is integrated as an important element in many human rights law instruments, and also applies to nationality matters.55 The UN Human Rights Council (HRC) stresses that arbitrary deprivation of nationality, especially on discriminatory grounds such as “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status, including disability”, is a violation of human rights and fundamental 52

Convention on Certain Questions Relating to the Conflict of Nationality Law, opened for signature 12 April 1930, 179 LNTS 89 (entered into force 1 July 1937), Article 1; PCJI, Advisory Opinion No. 4, Nationality Decrees in Tunis and Morocco, Advisory Opinion, 7 February 1923, PCIJ Series B No. 4; International Law Commission (1999) Report of the Commission to the General Assembly on the work of its fifty-first session, 1999 Yearbook of the International Law Commission II(2), UN Doc. A/CN.4/SER.A/1999/Add.l (Part 2), p 24. 53 UN General Assembly (1948) Universal Declaration of Human Rights, UN Doc. A/RES/ 217 (III). 54 Bauböck 2002, p 128; Adjami and Harrington 2008, pp 93–109. 55 International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976), Article 2; International Covenant on Economic, Social and Cultural Rights, opened for signature 19 December 1966, 993 UNTS 3 (entered into force 3 January 1976), Article 2; Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008), Article 3; Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (Rights of the Child Convention), Article 2; Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 1 March 1980, 1249 UNTS 13 (entered into force 3 September 1981), Articles 2 and 3.

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freedoms.56 The principle of non-discrimination is acknowledged as part of international customary law, and some even argue that it is part of international jus cogens norms.57 More specifically then, any measure leading to deprivation of nationality cannot be discriminatory under international law. The 1961 Convention prohibits deprivation of nationality on the basis of racial, ethnic, religious or political grounds.58 Also, the Convention on the Elimination of Racial Discrimination sets out that deprivation of nationality on the basis of race, colour, descent, or national or ethnic origin is a violation of the Convention.59 Deprivation of nationality is arbitrary under international law if it is discriminatory. The prohibition of arbitrary deprivation of nationality is not only enshrined in the Universal Declaration of Human Rights, it can also be found in Article 18(1)(a) of the Convention on the Rights of Persons with Disabilities,60 Article 20(3) of the American Convention on Human Rights,61 Article 4(c) of the European Convention on Nationality,62 Article 29(1) of the Arab Charter on Human Rights,63 Article 18 of the Association of Southeast Asian Nations Human Rights Declaration,64 and Article 24(2) of the Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms.65 In addition to being non-discriminatory, any situation of withdrawal of nationality must meet the following components in order to pass the test associated with the prohibition of arbitrary deprivation of nationality: 1. 2. 3. 4. 5.

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have a firm legal basis; meet due process guarantees; have a legitimate purpose; be the least intrusive means; and be proportionate.

UN General Assembly (2016) Human Rights Council: Resolution adopted by the Human Rights Council on 30 June 2016. Human rights and arbitrary deprivation of nationality, UN Doc. A/HRC/RES/32/5, para 4. 57 ICJ, South West Africa Cases (Liberia and Ethiopia v South Africa), Judgment, 21 December 1962, [1962] ICJR Rep 319. 58 1961 Convention, above n 16, Article 9. 59 International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969), Article 5. 60 Above n 55. 61 American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS 123 (entered into force 18 July 1978) (American Convention). 62 European Convention on Nationality, opened for signature 6 November 1997, ETS 166 (entered into force 1 March 2000). 63 Arab Charter on Human Rights, opened for signature 22 May 2004, 12 IHR Rep 893 (entered into force 15 March 2008). 64 Association of Southeast Asian Nations 2009. 65 Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms, opened for signature 26 May 1995, 1819 UNTS 57 (entered into force 11 August 1998).

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This test is cumulative,66 meaning that if even just one of the conditions is not met, the deprivation of nationality is deemed arbitrary (and thus prohibited). In the first place, the withdrawal of nationality needs to have a firm basis in national law. This means that provisions on nationality deprivation must be clearly enshrined in domestic legislation and must be predictable. Deprivation may not be subject to analogical interpretation (i.e. applied to facts of a case or situation which are not evidently covered by the wording of the provisions concerned). This also means, as discussed in Sect. 8.2.1, that retroactive application of deprivation provisions cannot take place, nor may a provision regarding the acquisition of nationality be retroactively repealed or restricted.67 Secondly, due process guarantees mean that an effective remedy must be offered in case of violations of the right to a nationality. This includes that decisions on withdrawal of nationality must be open to effective administrative or judicial review. Such a review can take place by an assigned court or other independent body.68 Some States ensure the right to appeal in any type of nationality withdrawal and others do not provide a(n) (effective) right to appeal to such a decision but give all the power to the executive body. In the context of terrorism, review of a decision to withdraw nationality can take place as part of the criminal law procedure and must comply with safeguards for appeal set out in criminal law. When deprivation of nationality is implemented as an administrative measure, appeal should take place within a time span after a decision. Procedural safeguards include ensuring that decisions are taken within a reasonable time and that fees relating to, for instance, appeals proceedings, do not form an obstacle to the right to be heard. The European Court of Human Rights has also held that, as a matter of due process, authorities must act “diligently and swiftly”.69 Further, the person concerned should continue to enjoy his or her nationality—and related rights—until a final decision on nationality withdrawal has been made. In case a wrongful decision was made regarding deprivation, the State is obliged to restore, to the extent possible, the situation existing before the violation occurred.70 Thirdly, deprivation of nationality should have a legitimate purpose that is “consistent with international law and, in particular, the objectives of international

66 UN General Assembly (2013) Human Rights Council: Human rights and arbitrary deprivation of nationality. Report of the Secretary- General, UN Doc. A/HRC/25/28. 67 UN High Commissioner for Refugees 2014; Involuntary Loss of European Citizenship Project 2015. 68 UN General Assembly (2009) Human Rights Council: Human rights and arbitrary deprivation of nationality. Report of the Secretary-General, UN Doc. A/HRC/13/34, para 43. 69 ECtHR, Ramadan v Malta, Judgment, 21 June 2016, Application No. 76136/12, para 88; ECtHR, K2 v United Kingdom, Decision, 7 February 2017, Application No. 42387/13, para 53. 70 See UN General Assembly (2009) Human Rights Council: Human rights and arbitrary deprivation of nationality. Report of the Secretary-General, UN Doc. A/HRC/13/34, para 46; Rights of the Child Convention, above n 55, Article 8. Note that where a person’s dependents are also affected by the loss or deprivation of nationality, the restoration of nationality must similarly be extended to them.

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human rights law.”71 This is quite broad in wording, but would seem to rule out the use of deprivation of nationality as an instrument against individuals as a response to their legitimate exercise of rights and freedoms—such as the freedom of expression.72 Only the European Convention on Nationality has specified general circumstances under which nationality can be deprived, including if a person is in voluntary service in a foreign military force or if the person’s conduct is seriously prejudicial to the vital interests of the State.73 The 1961 Convention also regulates that State Parties can revoke citizenship of people if they, at the time of accession, declared that they would maintain any of the following grounds in national legislation: if a person renders a service to or receives emoluments from another State, has conducted himself seriously prejudicial to the vital interests of the State or if the person has taken an oath or formal declaration of allegiance towards another State.74 According to the fourth criteria, deprivation must also “be the least intrusive instrument of those that might achieve the desired result.”75 In order to assess whether deprivation is the least intrusive means to reach the intended goals, a two-step test should be passed. Firstly, is deprivation of nationality the least intrusive way in which the State can achieve its goal, or are other measures available that would be less impactful in terms of the rights and freedoms of the person concerned? Secondly, is there a link between the instrument and the purpose which it seeks to achieve? In the terrorism context this means looking at what goal the deprivation of nationality seeks to achieve, for example whether it is to protect society by deterring people from committing terrorist acts or to punish the person concerned. To demonstrate that nationality deprivation is the least intrusive means to reach its purpose, due consideration must therefore be given to whether nationality deprivation can be understood to be an effective CT measure at all. The concluding section of this chapter comes back to this challenging question. The final step in the arbitrariness test is to assess if nationality deprivation is proportionate. This “requires balancing the impact on the rights of the individual and the proven benefit for the interest of the state.”76 Elements for consideration include: – – – –

71

the gravity of the act for which a person is denationalised; the strength of the connection between the person concerned and the State; when the act was committed (i.e. how long ago was the act committed); the consequences of deprivation of nationality for the individual concerned but also for family members. This includes the consequences for the person and his

UN High Commissioner for Refugees 2014, para 19. Recall the example of Bahrain discussed in Sect. 8.1. 73 European Convention on Nationality, above n 62, Article 7. 74 1961 Convention, above n 16, Article 8. 75 UN General Assembly (2009) Human Rights Council: Human rights and arbitrary deprivation of nationality. Report of the Secretary-General, UN Doc. A/HRC/13/34, para 25. 76 UN High Commissioner for Refugees 2014, para 20. 72

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or her family if deprivation of nationality would result into statelessness or if it affects the person’s right to reside in the country.77 Though not an absolute prohibition, statelessness needs to be avoided in the context of the withdrawal of nationality. A general principle to avoid statelessness can be found in human rights law and in the 1961 Convention.78 The context of statelessness weighs into a number of the considerations of the arbitrariness test, but in particular the proportionality question. According to the Tunis Conclusions:79 “deprivation that result[s] in statelessness will generally be arbitrary because the impact on the individual far outweighs the interests the state seeks to protect” and the “narrow set of exceptions” where deprivation of nationality can result into statelessness “are to be interpreted in a restrictive manner.”80

8.5

The Inherent Inequality of Citizenship Stripping

The above sections have demonstrated that nationality deprivation can have particularly far-reaching consequences for an individual’s rights and freedoms, and that States must be mindful of specific international standards designed to prevent abuse of power to cast out citizens from their societies. Yet, a similar assessment could be made of other CT measures and in fact, across the board, “human rights constitute an elemental and immutable constraint on how anti-terrorism is conducted.”81 Nevertheless, by introducing a third—and related—lens through which to evaluate nationality deprivation as a counter-terrorism tool, the distinctiveness of this measure comes more strongly to the fore. This section discusses how denationalisation is distinct because of an inherent problem of inequality: it is a measure that 77 See further Brandvoll 2014. See also CJEU, Tjebbes and Others v Minister van Buitenlandse Zaken, Grand Chamber Judgment, 12 March 2019, Case C-221/17, paras 39–40. In this case, the Court ruled that EU law does not preclude the loss of nationality of a Member State and consequently the loss of EU citizenship, where the genuine link between the individual concerned and the Member State is durably interrupted. However, the principle of proportionality requires an individual examination of the consequences of that loss for the persons concerned, and if relevant, for that of the members of his or her family, from the point of view of EU law. 78 1961 Convention, above n 16, Articles 7 and 8; Rights of the Child Convention, above n 55, Article 8; American Convention, above n 61, Article 20; European Convention on Nationality, above n 62, Article 7(3). 79 UN High Commissioner for Refugees 2014. The Tunis Conclusions result from a series of expert meetings on statelessness convened by the Office of the United Nations High Commissioner for Refugees (UNHCR). The Tunis Conclusions specifically focus on interpreting Articles 5 to 9 of the 1961 Convention and the safeguards contained therein for avoiding statelessness resulting from loss and deprivation of nationality. Thirty-three participants from eighteen countries with experience in government, NGOs, academia, the judiciary, the legal profession and international organisations contributed to the debate and conclusions. 80 UN High Commissioner for Refugees 2014, para 23. 81 University of Ottawa Faculty of Law 2007, Introduction.

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is commonly limited in its applicability to a relatively small segment of the population of a State. Indeed, domestic law, State practice and even international norms reveal that nationality deprivation often does not and seemingly cannot be applied equally to all. As mentioned in Sect. 8.2.1, in many States, the power to deprive a citizen of his or her nationality can only be invoked against persons who acquired that nationality by naturalisation. If States conceive of naturalisation—traditionally a voluntary act of transfer of allegiance, performed by an adult and commonly accompanied by an oath—as a form of contract, then an individual who subsequently engages in terrorist activity, may be viewed as violating the terms (i.e. duties) of that contract, justifying its extinguishment. On the other hand, States appear to understand the nature of citizenship by birth, or by ‘origin’, differently and as less contingent. As such, this latter category of citizens may be immune to nationality deprivation, or at least subjected to fewer grounds for denationalisation. Commentators have criticised this approach on the basis that “no empirical evidence has been proffered to show that naturalised citizens pose a greater threat to security than do those who are citizens by birth.”82 More fundamentally, however, the implication that the nationality regimes of these States fail to effectuate citizenship as an equal and equalising legal status has received heavy criticism from citizenship scholars, who recall: The status of citizenship, as the grounding principle of state membership, simply ought to be a status which admits of no gradations or rankings. Citizenship worth its name entails equal standing among the members of the political community. The British government admitted as much when it abandoned making naturalized citizens uniquely vulnerable to denationalisation in 2002 to avoid ‘second class citizens’.83

The upshot of the unequal position that naturalised citizens often encounter under nationality deprivation regimes is that, as a CT measure, its scope of application is limited to a (small) subset of a country’s citizenry. The same conclusion is reached when looking at the second predominant form of inequality that is commonly found in deprivation provisions: application that is restricted to dual nationals also targets only a (small) minority group within any State’s overall population. That a person who holds no other nationality should be spared from denationalisation is a product of the onus on States to avoid statelessness. This approach is thereby endorsed—even mandated—by international law standards relating to the prevention of statelessness and is widely hailed as an appropriate ‘safeguard’ for States to maintain. While it is true that a mono national is in a different situation than a dual national and this may warrant different treatment, “the effects can be particularly perverse for dual citizens [because] each of the two states involved has an incentive to act first so that the other state becomes responsible.”84 If such policies generate a race-to-the-bottom, the implication for 82 83 84

Zedner 2016, p 236. Gibney 2011, p 19. See further Macklin 2015, pp 1–6. Bauböck 2015, p 28.

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human security and human dignity is significant. So too is the assumption that the ‘other’ nationality that a person is left with following deprivation of nationality as a CT measure is one that reflects a genuine link or will afford rights and protection.85 This is notwithstanding the practical problems associated with applying deprivation powers only where a citizen also holds another nationality, which necessitates the establishment of that other citizenship. Moreover, a measure that targets only dual nationals will disproportionately affect people who hold the nationality of a country which does not allow for the possibility of renunciation—i.e. who cannot choose the route of mono-citizenship. This effect is strengthened where a State has placed restrictions on the possession of dual nationality, exceptionally allowing it for an individual who is not able to renounce his or her other nationality. What is, on the face of it, an objective criterion—the possession of dual nationality—is likely to lead to indirect discrimination, for instance on the ground of national or social origin. It follows from the above that nationality deprivation is a CT measure that is inherently uneven in its scope, and the targeting of naturalised and/or dual nationals also raises a major challenge in terms of its non-discriminatory application. Many, indeed most citizens, cannot be subjected to denationalisation, even if they commit the kind of terrorist atrocity that has prompted the expansion of these powers. A case in point of the limited utility of this measure relates to 200 former IS fighters who reportedly seek to return to the UK.86 It has been pointed out that a third of this group cannot be subjected to deprivation of nationality by virtue of the lack of a second citizenship.87 It has been suggested that the UK can and already does use another CT measure at its disposal to prevent the re-entry of these individuals, namely passport cancellation, which has less far-reaching consequences than nationality deprivation; and that these individuals would be captured and prosecuted for their crimes, should they attempt to re-enter the UK. The usefulness of the possibility of invoking denationalisation as a tool against any of this group, especially if a significant number are exempt from the measure, can therefore be questioned. The discriminatory effect of new deprivation powers has raised great concern among commentators. In respect of the UK, it was noted that “while official statements note that this policy is applied to all forms of terrorism and all forms of extremism, the powers have so far been used almost exclusively against British

85

See further Gibney 2011. The Times (2018) 200 ISIS fighters who came from the UK cannot return. https://www. thetimes.co.uk/article/200-isis-fighters-who-came-from-uk-cannot-return-wrg8lvpjd. Accessed 8 March 2018. 87 Note that not all of the others are UK citizens to begin with—there are also foreign nationals within this group who formerly resided in the UK. Also, citizenship deprivation is made conditional on “reasonable ground for believing that the person is able, under the law of a country or territory outside the UK, to become a national of such country or territory.” See Anderson 2016, p 3. 86

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Muslim men.”88 In the Netherlands, the commentary to the law reform bill presented to parliament in 2014 to expand nationality deprivation powers explicitly stated that only citizens supporting ISIS and Al Qaida would be deprived of nationality, while those involved with the FARC, PKK or Tamil Tigers would not.89 Such qualifications of the intended use of denationalisation will strengthen the discriminatory effect of the law. Moreover, in the Netherlands and elsewhere, the population that holds naturalised citizenship or dual nationality is naturally composed of people with a particular national or ethnic origin—the largest group of dual nationals are Dutch-Moroccan. This creates something of a statistical inevitability that nationality deprivation measures will disproportionately affect such groups, growing the risk of indirect discrimination. In fact, reflecting more generally on the impact of the expanded use of nationality deprivation in a national security context in different countries, the conclusion has been drawn that this leads to a “two tiered system that allows states to discriminate against citizens based on their ethnicity, race, and religion.”90 Such minorities are relegated to a category of “‘Tolerated Citizens’: contingently accepted but needing to constantly prove their belonging to the community of value through speaking out and condemning terrorism.”91 Even those who are not and never will be deprived of their nationality are implicated in this context due to their membership of a group that continues to be ‘othered’, whereby the measure of belonging is not whether a person has secured nationality, but something far harder to grasp and easier for populist or nationalist narratives to exploit. Not only does this have adverse consequences for the human dignity of those whose ‘true’ citizenship is questioned, but the net result may be the degradation of the very values that a State seeks to protect from attack by terrorists, leading to greater human insecurity overall. Thus, when it comes to nationality deprivation as a CT measure, the inequality problem arguably poses the greatest challenge to both the legitimacy and the utility—or even advisability—of this tool.

8.6

Final Observations: Questioning the Use of Nationality Deprivation as a Counter-Terrorism Measure

Through an exploration of the distinctive features of deprivation of nationality as a CT measure, this chapter has unpacked a number of the challenges it poses to human security and human dignity. Not only does nationality deprivation implicate particular international norms that were developed in response to the abuse of power by States to cast out members of their own citizenry, but it has far-reaching 88 89 90 91

Choudhury 2017, p 240. Van der Steur 2014, p 5. Discussed in van Waas 2016. Aiena 2014, p 18. Choudhury 2017, p 240.

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and likely permanent consequences that have caused the measure to be likened to ‘civil death’. Whereas other CT measures can be withdrawn (e.g. re-opening a bank account, stopping surveillance or ending detention) it is nearly impossible for a person to re-acquire nationality or acquire another nationality after being convicted for terrorism by a court or deemed to be a threat to national security by a State authority. Ostensibly more worrying still, from a human security perspective, is the manner in which the restricted applicability of nationality deprivation as a CT measure engenders not only inequality, but ‘othering’ that can damage social cohesion. As Amnesty International commented in the context of the Netherlands: “nationality stripping measures in the context of counter-terrorism initiatives can be divisive, and buy into and promote false and xenophobic narratives.”92 In drawing this chapter to a close, it is important not only to understand this distinctiveness of deprivation of nationality as compared to other CT measures, as a means of appropriately contextualising and evaluating this instrument, but also to pause at the deeper question of whether it is an effective instrument at all in the counter-terrorism context. Commentators overwhelmingly argue that it is the wrong tool for the job. A review of contemporary academic literature uncovers a wealth of scholarship on the effectiveness question, whereby the principal arguments put forward in response to the growing use of nationality deprivation as a CT measure are: 1. deprivation of nationality does not work as a deterrent for terrorist activity; 2. deprivation of nationality does not reduce or remove the threat of a terrorist attack; 3. deprivation of nationality does not help to bring terrorists to justice; and 4. deprivation of nationality does not help to protect the democratic values that terrorism aims to upset.93 There is no evidence that deprivation actually deters a potential terrorist any more or better than a criminal conviction or imprisonment. While some commentators suggest that this is not a reason to discount the use of deprivation as one of a range of CT measures, others have observed that citizenship stripping will do nothing to decrease a person’s ability to plan and commit terrorist atrocities. A person can still pose a risk to national and—in fact—global security when deprived of nationality, but not of his or her liberty. Denaturalisation could render individuals vulnerable and more susceptible to recruitment by terrorist organisations, particularly if the result is to leave them stranded in unstable States or conflict zones.94 Other alternatives could be more effective such as withdrawing passports to impose travel bans, having a no-fly list, closely monitoring suspects, imprisonment and potential rehabilitation.

92 93 94

Amnesty International 2017, p 8. See, e.g., the debate between scholars Macklin and Bauböck in Macklin and Bauböck 2015. See, e.g., de Groot and Vonk 2015, p 51; van Kuijck 2015, p 47.

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Further, deprivation of nationality does not help in bringing terrorists to justice. To the contrary, denationalisation might make it harder for the home State to eventually capture and hold accountable a suspected terrorist. A suspected foreign fighter, having learned of his or her denationalisation, might never attempt to return to his home State. Also, to strip individuals of citizenship in order to deport them from the territory or to prohibit their return arguably constitutes a failure of responsibility by the State to prosecute those who contravene national or international law.95 Depriving terrorists of their citizenship is a policy that seems to have significant symbolic appeal and visibility, plus it is relatively cheap (unlike, for instance, bolstering national security services, monitoring or detaining people). Hence, “when politicians are called upon to appear tough on terror, they may be tempted to expand the scope of application of the existing denationalisation provisions or to diminish the procedural safeguards provided therein in order to facilitate decision-making.”96 As this chapter has shown, it is not a measure to be taken lightly, given the role of citizenship as a keystone in democratic society. In the words of Matthew Gibney, history teaches us to be mindful of where we might “end up if we try to pierce even a small—liberal size—hole into citizenship to punish terrorists”.97 There is no clear evidence of the value of nationality deprivation as a CT measure in terms of its actual contribution to greater national security, but what is clear is that it can have a severe and lasting impact on human dignity, as well as a knock-on effect on human security through its implications for the integrity of the whole regime of citizenship.

References Articles, Books and Other Documents Adjami M, Harrington J (2008) The Scope and Content of Article 15 of the Universal Declaration of Human Rights. Refugee Survey Quarterly 27(3):93–109 Aiena C (2014) Stripping of Nationality as a Weapon of Political Suppression: The Cases of Bahrain, United Kingdom, United Arab Emirates and Kuwait. Islamic Human Rights Commission, Wembley Al Barazi, Z, Tucker J (2017) Challenging the disunity of statelessness in the Middle East and North Africa. In: Bloom T, Tonkiss K, Cole P (eds) Understanding Statelessness. Routledge, London/New York, pp 87–101 Amnesty International (2016) Arbitrary Deprivation of Citizenship. https://www.amnesty.org/ download/Documents/POL4073492017ENGLISH.pdf. Accessed 4 March 2018

95 96 97

Bauböck and Paskalev 2015, p 16; Zedner 2016, p 236. Cloots 2017, p 89. Gibney 2015, p 41.

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Amnesty International (2017) Dangerously Disproportionate: The Ever-Expanding Security State in Europe. https://www.amnesty.org/download/documents/eur0153422017english.pdf. Accessed 8 March 2018 Anderson D (2016) Citizenship Removal Resulting in Statelessness. First Report of the Independent Reviewer on the Operation of the Power to Remove Citizenship Obtained by Naturalization from Persons who have no Other Citizenship. https://www.gov.uk/government/ uploads/system/uploads/attachment_data/file/518120/David_Anderson_QC_-_ CITIZENSHIP_REMOVAL__web_.pdf. Accessed 29 September 2018 Arendt H (1986) The Origins of Totalitarianism. Andre Deutsch, London Association of Southeast Asian Nations (2009) ASEAN Human Rights Declaration. https://www. asean.org/storage/images/ASEAN_RTK_2014/6_AHRD_Booklet.pdf. Accessed 17 July 2019 Barrett B (2017) Beyond the Caliphate: Foreign Fighters and the Threat of Returnees. The Soufan Center. https://thesoufancenter.org/wp-content/uploads/2017/11/Beyond-the-Caliphate-ForeignFighters-and-the-Threat-of-Returnees-TSC-Report-October-2017-v3.pdf. Accessed 4 September 2018 Bauböck R (2002), Transnational Citizenship. Membership and Rights in International Migration. Edward Elgar, Cheltenham Bauböck R (2015) Whose bad guys are terrorists? In: Macklin A, Bauböck R (eds) The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship? European University Institute Working Papers RSCAS 2015/14. http://cadmus.eui.eu/bitstream/handle/1814/34617/ RSCAS_2015_14.pdf?sequence=1. Accessed 17 July 2019, pp 27–30 Bauböck R, Paskalev V (2015) Cutting Genuine Links: A Normative Analysis of Citizenship Deprivation. Georgetown Immigration Law Journal 30(1):47–104 Blake J (2017) Race-based statelessness in the Dominican Republic. In: Bloom T, Tonkiss K, Cole P (eds) Understanding Statelessness. Routledge, London/New York, pp 102–116 Brandvoll J (2014) Deprivation of nationality. In: Edwards A, van Waas L (eds) Nationality and Statelessness under International Law. Cambridge University Press, Cambridge Choudhury T (2017) The radicalisation of citizenship deprivation. Critical Social Policy 37(2):225–244 Cloots E (2017) The Legal Limits of Citizenship Deprivation as a Counterterror Strategy. European Public Law 23(1):57–92 Cohen E (2016) When Democracies Denationalize: The Epistemological Case against Revoking Citizenship. Ethics & International Affairs 30(2):253–259 De Groot R (2013) Survey on Rules on Loss of Nationality in International Treaties and Case Law. CEPS Paper in Liberty and Security in Europe No. 57. https://www.ceps.eu/wp-content/ uploads/2013/08/No%2057%20Loss%20of%20Nationality%20ILEC.pdf. Accessed 17 July 2019 De Groot R, Vonk O (2015) De ontneming van het Nederlanderschap wegens jihadistische activiteiten [The deprivation of Dutch nationality due to jihadist activities]. Tijdschrift voor Religie, Recht en Beleid 6(1):34–53 Ersbøll E (2017) Stateless persons’ entitlement to citizenship and Denmark’s call for dilution of state obligations. European Network on Statelessness. https://www.statelessness.eu/blog/ stateless-persons-entitlement-citizenship-and-denmark-s-call-dilution-state-obligations. Accessed 3 March 2018 European Parliament Policy Department for Citizens’ Rights and Constitutional Affairs (2017) The European Union’s Policies on Counter-Terrorism: Relevance, Coherence and Effectiveness. http://www.europarl.europa.eu/RegData/etudes/STUD/2017/583124/IPOL_STU(2017) 583124_EN.pdf. Accessed 8 March 2018 Fripp E (2016) Nationality and Statelessness in the International Law of Refugee Status. Hart Publishing, London Gibney MJ (2011) Should citizenship be conditional? Denationalisation and liberal principles. Refugee Studies Centre Working Paper Series No. 75. https://www.rsc.ox.ac.uk/files/files-1/ wp75-should-citizenship-be-conditional-2011.pdf. Accessed 17 July 2019

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Gibney MJ (2015) Beware states piercing holes into citizenship. In: Macklin A, Bauböck R (eds) The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship? EUI Working Papers RSCAS 2015/14. http://cadmus.eui.eu/bitstream/handle/1814/34617/ RSCAS_2015_14.pdf?sequence=1. Accessed 17 July 2019, pp 39–42 Institute on Statelessness and Inclusion (2014) The World’s Stateless. Wolf Legal Publishers, Oisterwijk International Law Commission (1953) Nationality, including Statelessness – National Legislation Concerning Grounds for Deprivation of Nationality – Memorandum Prepared by Mr. Ivan S. Kerno, Expert of the International Law Commission, UN Doc. A/CN.4/66/ International Law Commission (1999) Report of the Commission to the General Assembly on the work of its fifty-first session, 1999 Yearbook of the International Law Commission II(2), UN Doc. A/CN.4/SER.A/1999/Add.l (Part 2) Involuntary Loss of European Citizenship Project (2015) Guidelines Involuntary Loss of European citizenship. http://www.ilecproject.eu/sites/default/files/GUIDELINES%20INVOLUNTARY %20LOSS%20OF%20EUROPEAN%20CITIZENSHIP%20.pdf. Accessed 5 March 2018 Jaghai S (2017) Citizenship deprivation, (non)discrimination and statelessness: A case study of the Netherlands. Institute on Statelessness and Inclusion Statelessness Working Paper Series No. 2017/07. http://www.institutesi.org/WP2017_07.pdf. Accessed 17 July 2019 Jayaraman S (2016) International Terrorism and Statelessness: Revoking the Citizenship of ISIL Foreign Fighters. Chicago Journal of International Law 17(1):178–216 Macklin A (2015) Kick-off contribution. In: Macklin A, Bauböck R (eds) The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship? EUI Working Papers RSCAS 2015/14. http://cadmus.eui.eu/bitstream/handle/1814/34617/RSCAS_2015_14. pdf?sequence=1. Accessed 17 July 2019, pp 1–6 Macklin A, Bauböck R (2015) (eds) The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship? EUI Working Papers RSCAS 2015/14. http://cadmus.eui.eu/ bitstream/handle/1814/34617/RSCAS_2015_14.pdf?sequence=1. Accessed 17 July 2019 Manby B (2016) Citizenship Law in Africa: A Comparative Study, 3rd edn. African Minds/Open Society Foundations, New York Manly M, van Waas L (2010) The value of the human security framework in addressing statelessness. In: Edwards A, Ferstman C (eds) Human Security and Non-Citizens: Law, Policy and International Affairs. Cambridge University Press, Cambridge, pp 49–81 Recalde Vela MJ (2017) An interview with Benyam Dawit Mezmur, Chairperson of the United Nations Committee on the Rights of the Child. In: van Waas L, de Chickera A (eds) The World’s Stateless: Children. Wolf Legal Publishers, Oisterwijk, pp 130–139 Sokoloff C, Lewis R (2005) Denial of Citizenship: A Challenge to Human Security. European Policy Centre Issue Paper 28. https://www.files.ethz.ch/isn/10916/doc_10947_290_en.pdf. Accessed 17 July 2019 University of Ottawa Faculty of Law (2007) Ottawa Principles on Anti-terrorism and Human Rights. http://aix1.uottawa.ca/*cforcese/hrat/principles.pdf. Accessed 17 July 2019 UN General Assembly (1948) Universal Declaration of Human Rights, UN Doc. A/RES/217 (III) UN General Assembly (2009) Human Rights Council: Human rights and arbitrary deprivation of nationality. Report of the Secretary-General, UN Doc. A/HRC/13/34 UN General Assembly (2013) Human Rights Council: Human rights and arbitrary deprivation of nationality. Report of the Secretary-General, UN Doc. A/HRC/25/28 UN General Assembly (2016) Human Rights Council: Resolution adopted by the Human Rights Council on 30 June 2016. Human rights and arbitrary deprivation of nationality, UN Doc. A/ HRC/RES/32/5 UN High Commissioner for Refugees (2014) Expert Meeting: Interpreting the 1961 Statelessness Convention and Avoiding Statelessness resulting from Loss and Deprivation of Nationality. https://www.refworld.org/pdfid/533a754b4.pdf. Accessed 17 July 2019 Van der Steur GA (2014) Dutch Minister of Security and Justice: Memorie van Toelichting op Wijziging van de Rijkswet op het Nederlanderschap in verband met het intrekken van het Nederlanderschap in het belang van de nationale veiligheid [Commentary to the bill for the

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amendment of the Dutch Nationality Act with respect to the withdrawal of Dutch nationality in the interests of national security]. Tweede Kamer der Staten-Generaal. https://zoek. officielebekendmakingen.nl/kst-34356-3.pdf. Accessed 17 July 2019 Van Kuijck CIA (2015) Terrorism, Foreign Fighters and Deprivation of Nationality. LLM Thesis, Tilburg University (on file with authors) Van Waas L (2016) Foreign Fighters and the Deprivation of Nationality: National Practices and International Law Implications. In: de Guttry A, Capone F, Paulussen C (eds) Foreign Fighters under International Law and Beyond. T.M.C. Asser Press, The Hague, pp 469–487 Zedner L (2016) Citizenship Deprivation, Security and Human Rights. European Journal of Migration and Law 18(2):1–17

Case Law ACERWC, Institute for Human Rights and Development in Africa and the Open Society Justice Initiative (on behalf of Children of Nubian Descent in Kenya) v The Government of Kenya, Decision, 22 March 2011, Case No. Com/002/2009 ACmHPR, Amnesty International v Zambia, Decision, 5 May 1999, Case No. 212/98 ACmHPR, John K. Modise v Botswana, Decision, 6 November 2000, Case No. 97/93_14AR ACtHPR, Anudo Ochieng Anudo v United Republic of Tanzania, Judgment, 22 March 2018, Application No. 012/2015 CJEU, Tjebbes and Others v Minister van Buitenlandse Zaken, Grand Chamber Judgment, 12 March 2019, Case C-221/17 ECtHR, Ramadan v Malta, Judgment, 21 June 2016, Application No. 76136/12 ECtHR, K2 v United Kingdom, Decision, 7 February 2017, Application No. 42387/13 IACtHR, Expelled Dominicans and Haitians v Dominican Republic, Judgment, 28 August 2014, Case No. 282 IACtHR, Yean and Bosico Children v Dominican Republic, Judgment, 8 September 2005, Case No. 130 ICJ, South West Africa Cases (Liberia and Ethiopia v South Africa), Judgment, 21 December 1962, [1962] ICJR Rep 319 ICJ, Nottebohm (Liechtenstein v Guatemala), Judgment, 6 April 1955, [1955] ICJ Rep 4 PCJI, Advisory Opinion No. 4, Nationality Decrees in Tunis and Morocco, Advisory Opinion, 7 February 1923, PCIJ Series B No. 4 UK Supreme Court, Pham v Secretary of State for the Home Department, Judgment, 25 March 2015, [2015] UKSC 19 US Supreme Court, Trop v Dulles, Decision, 31 March 1958, 356 US 86

Legislation The Netherlands, Rijkswet op het Nederlanderschap [Dutch Nationality Act] The Netherlands, Wetboek van Strafrecht [Criminal Code] United Kingdom, British Nationality Act 1981, as amended on 28 July 2014

Treaties Arab Charter on Human Rights, opened for signature 22 May 2004, 12 IHR Rep 893 (entered into force 15 March 2008)

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Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms, opened for signature 26 May 1995, 1819 UNTS 57 (entered into force 11 August 1998) Convention on Certain Questions Relating to the Conflict of Nationality Law, opened for signature 12 April 1930, 179 LNTS 89 (entered into force 1 July 1937) Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 1 March 1980, 1249 UNTS 13 (entered into force 3 September 1981) Convention on the Reduction of Statelessness, opened for signature 4 December 1954, 989 UNTS 175 (entered into force 13 December 1975) Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) Convention Relating to the Status of Stateless Persons, opened for signature 26 April 1954, 360 UNTS 117 (entered into force 6 June 1960) European Convention on Nationality, opened for signature 6 November 1997, ETS 166 (entered into force 1 March 2000) International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) International Covenant on Economic, Social and Cultural Rights, opened for signature 19 December 1966, 993 UNTS 3 (entered into force 3 January 1976)

Sangita Jaghai Bajulaiye LL.M. is a Ph.D. Candidate at Tilburg Law School and a Researcher at the Institute on Statelessness and Inclusion. Her Ph.D. research and research at the Institute both focus on (arbitrary) deprivation of nationality. At the Institute on Statelessness and Inclusion she also coordinates human rights engagement activities. She is one of the Faces of Science appointed by the Royal Netherlands Academy of Arts and Sciences (KNAW). Dr. Laura van Waas is a founder and Co-Director of the Institute on Statelessness and Inclusion, as well as Assistant Professor at Tilburg Law School. In more than a decade of working on statelessness, Laura has carried out a wide array of research and teaching projects, both within academia and for the United Nations Refugee Agency. She has conducted studies for, among others, Plan International, the Office of the United Nations High Commissioner for Human Rights, the Open Society Foundations, the Women’s Refugee Commission, the United States Department of State, the European Parliament and the Norwegian Refugee Council.

Chapter 9

‘Killing Rats in the Street’ for the Paramount Human Right of Security: The Law and Policy of China’s People’s War on Terror Daniel Sprick

Contents 9.1 9.2 9.3 9.4

Introduction........................................................................................................................ A Very Short History of Terrorism in China ................................................................... The Criminal Policy of China’s People’s War on Terror ................................................ Counterterrorism Legislation............................................................................................. 9.4.1 Defining Terrorism and Extremism........................................................................ 9.4.2 Criminal and Administrative Penalisation of Terrorist and Extremist Conduct................................................................................................................... 9.4.3 Preventive Measures in the People’s War on Terror ............................................ 9.4.4 Mobilising the Masses............................................................................................ 9.5 Concluding Remarks ......................................................................................................... References ..................................................................................................................................

182 183 187 192 192 195 198 200 201 202

Abstract In the aftermath of China’s severest terrorist attack on the Kunming railway station in March 2014, a comprehensive political-legal framework for the fight against terrorism was established under the slogan of a People’s War on Terror (反恐人民战争). This approach must first and foremost be understood as a ‘strike-hard’ (yanda [严打]) campaign within the criminal justice system, but it also protrudes into other areas of social management and especially uses multiple repressive practices against the Muslim minority in Xinjiang. Even non-threatening religious behaviour is thereby targeted as a breeding ground of extremism, which shall be eradicated by specialised de-extremisation statutes. For the purpose of

D. Sprick (&) University of Cologne, Cologne, Germany e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 C. Paulussen and M. Scheinin (eds.), Human Dignity and Human Security in Times of Terrorism, https://doi.org/10.1007/978-94-6265-355-9_9

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safeguarding the majority’s security, China is weaponising its law for the suppression of terrorism but is at the same time sacrificing the dignity of one of its religious minorities. China’s approach evidently follows the logic of a disproportionate demarcation between ‘them’ and ‘us’, between the ‘friend’ and the ‘enemy’, between ‘the terrorists’ and ‘the people’ and thereby clearly advocates national security at the expense of personal dignity.




Keywords China People’s War on Terror campaign Uyghur minority




9.1


Extremism
Xinjiang
Strike-hard

Introduction

On 23 May 2014, China declared a People’s War on Terror (反恐人民战争).1 This idiosyncratic phrase is an amalgam of a guerrilla warfare tactic during the Chinese civil war in the 1930s and 1940s, which had been labelled as a People’s War by Mao Zedong and the infamous dictum of a War on Terror after 9/11 coined by the Bush administration. These allusions are far from coincidental and are meant to describe a unique Chinese approach in the fight against terror while associating it with a global current in the aspiration to create international legitimacy. The trigger for this declaration was a terrorist attack, which had occurred just five weeks earlier in Kunming, Yunnan. The Chinese public was deeply shocked by this event and by the unsettling details of this attack. A group of eight Uyghurs had travelled thousands of kilometres from their home province Xinjiang around China and tried to leave China with the purpose of joining the jihad in Syria. After failing to cross the border into Hong Kong, they diverted their point of exit to the south-eastern border. On their way through Yunnan, the police arrested three of them in Kunming. The remaining five decided to wage jihad right there and then, armed themselves with axes and long bladed knives or swords and attacked the Kunming train station. They killed 31 and wounded 141 before they could be stopped by armed police forces with deadly force. Just one female perpetrator survived this attack. Not only the brutality but also the fact that this group could have resorted to violence anywhere in China on their voyage, would they have felt cornered before, shaped the public’s perception on the need to substantially tighten security measures regarding the domestic terrorist threat.2 After the Kunming attack, the Chinese regime took immediate steps to alter and enhance its counter-terrorism approach.3 It did so by its classical means of criminal 1

Legal Daily (2014) Fankong bujin shi zhengfu he gongan de shiqing (反恐不仅是政府和公安 的事情) [Counterterrorism is not just an issue of the government and the police]. 27 May 2014, p 5. 2 On the media coverage and the public perception, see Liu et al. 2014. 3 It is noteworthy that another attack closer to the nerve centre of Chinese politics may have already set this development in motion. On 23 October 2013, a small tank truck broke through the

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justice response, that is the proclamation of a new criminal policy and reforming the law. The declaration of China’s People’s War on Terror in 2014 is a classic example of a ‘strike-hard’ (yanda [严打]) campaign for the suppression of criminal activities,4 which then was complemented by the enactment of the People’s Republic of China (PRC) first comprehensive Counter-Terrorism Law in 2016.5 It is this law and its accompanying implementation measures which brought forth China’s massive use of ‘re-education camps’ for even non-threatening expressions of Muslim ethno-religious culture.6 This chapter discusses the role of the law in the criminal policy of China’s People’s War on Terror and asks specifically how the law and China’s justice system is utilised to serve this counter-terrorism approach. My objective is to demonstrate that China’s approach evidently follows the logic of a disproportionate demarcation between ‘them’ and ‘us’, between the ‘friend’ and the ‘enemy’, between ‘the terrorists’ and ‘the people’ and thereby clearly advocates national security at the expense of personal dignity. In the following Sect. 9.2, I will cursory summarise the development of terrorist events in China in their socio-cultural context. In Sect. 9.3, I will provide an analysis of the concept of China’s People’s War on Terror and its genesis. This is followed by an overview of recent and relevant legislative measures in the field of counter-terrorism in Sect. 9.4. In this section, I will discuss the legal definitions of terrorism and extremism, the broadened scope of criminalising acts and advocacy of terrorism or extremism, the newly established preventive measures and the mobilisation of the masses prescribed by law before offering concluding remarks.

9.2

A Very Short History of Terrorism in China

While the Kunming attack may have been a catalytic event in the perception of terrorism in China and certainly induced a sense of urgency to improve counterterrorism measures in the Chinese public, the issue of terrorism is not new to the Chinese regime. While it is geographically almost completely confined to the North-Western barricades on Tiananmen Square, the following explosion killed five and injured 38. It appears however that inter alia the highly symbolised setting of this attack, Tiananmen Square as the locus classicus of politically induced violence in China, did not remotely shock the general populace as much as the Kunming attack so that this event was rather framed as an issue of national security than a matter of terrorism. See, e.g., Beijing Daily (2013) Yanli daji baoli kongbu fanzui – jianjue weihu shoudu anquan wending (严厉打击暴力恐怖犯罪 坚决维护首都安全稳定) [Severely striking violent terrorist crimes – Firmly safeguarding the security and stability of the capital]. http://opinion.people.com.cn/n/2013/1031/c1003-23381427.html. Accessed 25 January 2018. 4 Trevaskes 2016, pp 299–301. 5 China, Zhonghua renmin gongheguo fan kongbu zhuyi fa (中华人民共和国反恐怖主义法) [Counter-Terrorism Law of the PRC]. The Law entered into force 1 January 2016. 6 UN Committee on the Elimination of Racial Discrimination (2018) Concluding observations on the combined fourteenth to seventeenth periodic reports of China (including Hong Kong, China and Macao, China), UN Doc. CERD/C/CHN/CO/14-17, p 7.

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province of Xinjiang and is currently almost exclusively associated with the Muslim minority of the Uyghurs, there had been distinctive shifts in the evolution and perception of terrorism in China. These shifts had been regularly brought forth by international developments, even though Chinese terrorism has to be considered entirely homegrown and until recently mainly domestic in its strategy while apparently only maintaining loose connections with international terrorist networks.7 Originally, in the 1950s, the term terrorism (kongbu zhuyi [恐怖主义]) was reserved in the PRC’s official rhetoric for Mao’s nemesis, which had been the Nationalist Party and its paramount leader Jiang Jieshi who had established a republican government on Taiwan.8 After the death of these archenemies, in the 1980s, the term was not necessarily associated anymore with domestic political violence stemming from China’s revolutionary past but rather frequently used to describe terrorism abroad or international terrorism in general before it was then applied to domestic terrorism in the 1990s. The form of terrorism China is facing today has its provenance in a separatist movement in Xinjiang, which has probably been nascent since the Qing-Empires conquest of the region in the late eighteenth century.9 But its most immediate origin can probably be traced back to the subsequent defeat of the Soviet Union in Afghanistan and the collapse of the Soviet Empire. The latter bequeathed several independent central Asian States that not only shared a border but also the religion and the general ethnicity with the Uyghurs in Xinjiang, which certainly instilled a yearning for self-determination in Xinjiang as well.10 The specific causes of the first outbreak of separatist violence in the early 1990s and especially the bloody insurgency at the city of Baren in 1990 are probably a smorgasbord of political opportunity and resistance against paternalistic policies. A crumbling Soviet Union and massive political dissent on Tiananmen Square in 1989 may have also been perceived in China’s far North-West as a window of opportunity for political change and a certain vulnerability of the hegemonic socialist rule.11 Furthermore, the precursor of the Tiananmen-Movement, the ousting of the reformist Secretary General of the Chinese Communist Party (CCP) in 1987, Hu Yaobang, and his death in 1989, had also an impact on the Central Government’s policy towards its ethnic minorities so that greater autonomy within the PRC became more and more unlikely.12 Additionally, the Xinjiang Production and Construction Corps (Xinjiang shengchan jianshe bingtuan [新疆生产建设兵团]), which is a paramilitary unit mainly operating State farms and maintaining a parallel administration and even

7

On this issue, especially Cunningham 2012, pp 20–29. See, e.g., People’s Daily (1955) Taiwan renmin tonghen Jiang zei kongbu tongzhi kewang zaori jiefang (台湾人民痛恨蒋贼恐怖统治渴望早日解放) [The people of Taiwan loathes the terrorist regime of the treasonous Jiang and longs for its speedy liberation]. 25 October, p 1. 9 A short outline of the history of Chinese rule is given by Dillon 2004, pp 17–22. 10 Tschantret 2016, p 7. 11 Potter 2013, p 72. 12 Dillon 2004, pp 36–37. 8

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justice system13 and probably the PRC’s most effective tool in securing economic and political dominance of a Han population in Xinjiang, underwent a revival in the 1980s and 1990s, so that a bigger influx of Han population into this system was certainly perceived by the Uyghurs as a further attempt to colonise Xinjiang.14 The traditional dictum is that the population of the PRC is comprised of a family of 56 ethnic groups, which are headed by the Han as big brothers whose superior position in the strict hierarchy of a Chinese family legitimises their leadership over the less civilised younger brothers and sisters of other ethnicities.15 At this point, religion was probably not an independent source for radicalisation but rather a marker for a government whose communist foundation produced a repressive or at least suspicious regime for the administration of religion. It is however noteworthy that some links to radical Islamist forces in Afghanistan may have developed in the mid-1990s.16 In the following, separatist violence was always quelled with severe and pervasive repression that not only targeted violent crimes but also any kind of advocacy for an autonomous ethnic identity. While these measures secured relatively long stretches without substantial insurgencies, overwhelmingly repressive policies created ‘tipping points’ and led to eruptions of violence at politically opportune times. One of those moments was reached in 1996 and 1997 when a string of bombings and assassinations rocked Xinjiang and culminated in the violent and deadly crackdown of a series of demonstrations in Yining.17 The most immediate cause for this outbreak of violence was a reaction to a new ‘strike hard’ campaign-style administration of criminal justice in 1996 and 1997 that was intended to fight serious crimes especially in the field of organised crime,18 but in Xinjiang it was aimed predominantly at political crimes19 so that many Uyghurs with associations to separatist movements faced arrests, speedy trials and harsh punishments.20 A similar development can be seen in the wake of violent riots that broke out in 2009 in Urumpi, the capital of Xinjiang. After 9/11, China utilised the international wave of counterterrorism legislation for the purpose of broadening the relevant provisions in its Criminal Law in December 2001, which gave the Chinese authorities ample grounds for harsh convictions of Uyghur separatists.21 The reaction to these measures was however significantly delayed and produced a higher level of counter-violence by bombing, knife attacks and riots only after

13 14 15 16 17 18 19 20 21

A very short overview of this entirely understudied issue is given by Yu 2012, pp 88–89. Bovingdon 2010, pp 59–61. Finley 2013, p 2. Wayne 2009, p 250. Several reports of this event are recounted by Dillon 2004, pp 92–98. Trevaskes 2007, pp 88–89. Bovingdon 2010, pp 53–54. Dillon 2004, pp 84–92. Clarke 2010, pp 549–551.

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China’s concerns of terrorist attacks during the 2008 Olympics in Beijing led to a further increased show of force and more aggressive policing in Xinjiang.22 It may also be argued that the Olympics were seen as a possibility to inflict the greatest possible harm on the Chinese State so that not the repressive State but the political opportunity of international attention spurred this wave of separatist and terrorist violence in China.23 Furthermore, after this tidal point, China was not able to suppress terrorist attacks in the same way it did after 1990 or 1997 so that the terrorist threat never subsided after 2008 and culminated in the attack on Tiananmen Square in October 2013 and the Kunming attack in March 2014. Additionally, it appears that terrorist tactics have adapted over time so that suicide attacks and attacks against civilians are now far more common and are more likely to lead to more fatalities than the terrorist attacks before 2008.24 Even the international dimension may have significantly shifted in the last years. While links between Uyghur separatists and al-Qaeda or the Taliban can be considered “circumstantial and fragmentary”,25 The Islamic State may have (had) a bigger appeal, which can at least be derived from the numerous deportations of Uyghurs from Thailand who allegedly tried to join their estimated 2000 compatriots in their jihadi quest in Syria and Iraq.26 Nevertheless, the core issue of terrorism in China is hardly a religious war27 but rather a violent dissent against a dominant majority population that is threatening the identity of an ethnic minority. Tschantret summarises: “[t]errorism in Xinjiang is […] best viewed as the most radical segment of the Uyghur separatist movement, which itself is merely a subset of widespread Uyghur resistance that engages in less extreme—and generally nonviolent—forms of dissent.”28 The marginalisation and subsequent radicalisation of Uyghurs stems from pervasive efforts of assimilation or acculturation into the unitary Chinese State as envisioned by the PRC’s leadership. As the control and regulation of religion is just one of many factors in this process, so are repressive policies towards minority culture and languages.29 The most decisive cause for grievance in the Uyghur community is the steady influx of internal Chinese (Han) migrants who seek and (frequently) achieve economic prosperity while the local population seems to just tangentially benefit even from development programs that are specifically designed to boost economic growth in

22

Cunningham 2012, pp 35–36. Tschantret 2016, p 11. 24 Ibid., pp 13–14. 25 Clarke 2008, p 294. Indications for closer links to al-Qaeda are reported by Pokalova 2013, p 290. 26 See, e.g., Holms O (2015) Thailand forcibly sends nearly 100 Uighur Muslims back to China. https://www.theguardian.com/world/2015/jul/09/thailand-forcibly-sends-nearly-100-uighurmuslims-back-to-china. Accessed 31 January 2018; Lin 2016, p 489. 27 Cunningham 2012, p 27. 28 Tschantret 2016, p 4. 29 Clarke 2007, pp 332–333. 23

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Xinjiang.30 Accordingly, Yin Weiwen found in a quantitative study that the probability of a terrorist attack is significantly higher in areas of economic growth without distributional equality and more likely perpetrated by locals.31 On the whole, several conditions that are conducive to and the structural context of violent extremism, such as the lack of socioeconomic opportunities, marginalisation and discrimination, repressive policies and a prolonged and unresolved conflict, as identified by the UN General Assembly,32 may have accumulated in Xinjiang and therefore foster more violence. China’s apparent practice of detaining “large numbers of ethnic Uighurs and other Muslim minorities, held incommunicado and often for long periods, without being charged or tried, under the pretext of countering religious extremism”,33 is also certainly highly conducive for further violent extremism in Xinjiang.

9.3

The Criminal Policy of China’s People’s War on Terror

The PRC has a long tradition of suppressing crime and deviant behaviour by means of criminal policy campaigns. Since the early 1980s, China has conducted numerous anti-crime campaigns on a national and local level. The most notorious of these campaigns are the national yanda-campaigns [严打运动] between 1981 and 2003, which were following a rationale of swift and harsh punishments. During the campaigns, police, prosecutors and judges were urged to expedite the investigations and follow a summary procedure in criminal cases.34 Furthermore, in a yandacampaign, the sentencing system was adapted so that the scope of crimes and the qualification of the seriousness of crimes were widened, which led to far more and harsher punishments.35 China’s People’s War on Terror is first and foremost one of those (specialised) anti-crime campaigns of a swift and harsh administration of criminal justice. The stage for the launch of this campaign was set by a visit of Xi Jinping in Xinjiang between 27 April and 30 April 2014 that ended with a major policy note entitled Creating a more and more beautiful, motherland’s Xinjiang,36 which laid out the 30

Ibid., pp 334–335. Yin 2017, p 43. 32 UN General Assembly (2015) Plan of Action to Prevent Violent Extremism, UN Doc. A/70/ 674, pp 7–8. 33 UN Committee on the Elimination of Racial Discrimination (2018) Concluding observations on the combined fourteenth to seventeenth periodic reports of China (including Hong Kong, China and Macao, China), UN Doc. CERD/C/CHN/CO/14-17, p 7 (italics added). 34 Trevaskes 2007, pp 128–130. 35 Li 1994, pp 35–36. 36 Xinjiang Daily (2014) Xinjiang chuanda guanche Xi Jinping zong shuji shicha Xinjiang shi de zhongyao jianghua jingshen (新疆传达贯彻习近平总书记视察新疆时的重要讲话精神) 31

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concept of China’s People’s War on Terror. The actual start of the anti-terrorism campaign was declared on 23 May 201437 and found its most immediate legal formalisation in a Notice on the harsh fight against violent terrorism according to law promulgated by the Supreme People’s Court (SPC), the Supreme People’s Procuratorate (SPP) and the Police Department of Xinjiang on 25 May 2014.38 This Notice inter alia specifically targets, in Article 2, the production, publication or dissemination of propaganda material for terrorism or religious extremism, which was at the time not yet explicitly sanctioned by the criminal law39 and therefore provides a good example for the broadened concept of (criminal) law during a Chinese anti-crime campaign.40 The highest legitimisation was given to this campaign on 26 May 2014 when the Politburo of the Central Committee of the Chinese Communist Party (CPC) declared that “the harsh fight against violent terrorist activities is at the focus of the current struggle and [that] the pervasive spread of the influence of religious extremism and violent terrorism must be curtailed.”41 It is therefore most evident that China’s War on Terror is not just a campaign against violent terrorism but fights also against religious extremism, which is obviously identified as the main source for terrorism while this is again explicitly seen within the context of a long and complex fight against separatism in Xinjiang.42 Originally, the campaign was planned for just one year,43 but it evidently has been maintained as a general criminal policy, at least for Xinjiang.44 While statistics on China’s War

[Xinjiang conveys the implementation of the essentials of a core speech delivered during the inspection tour through Xinjiang by Xi Jinping]. http://cpc.people.com.cn/n/2014/0505/c6438724977111.html. Accessed 23 January 2018. 37 Legal Daily (2014) Fankong bujin shi zhengfu he gongan de shiqing (反恐不仅是政府和公安 的事情) [Counterterrorism is not just an issue of the government and the police]. 27 May 2014, p 5. 38 Sina.com (2014) Guanyu yifa yanli daji baoli kongbu huodong de tongzhi (关于依法严厉打击 暴力恐怖活动的通告) [Notice on the harsh fight against violent terrorism according to law]. http://news.sina.com.cn/c/2014-05-25/055630225847.shtml. Accessed 12 January 2018. 39 This became a crime in the revision of the Chinese Criminal Law in 2015. See Sect. 9.4. 40 Article 5 of the Notice 2014 gives another interesting example of campaign-style policing in China: perpetrators were given until 30 May 2014 to voluntarily surrender to the police, which would warrant a more lenient punishment. 41 Legal Daily (2014) Yanjiu jin yi bu tuijin Xinjiang shehui wending he changzhi jiuan gongzuo (研究进一步推进新疆社会稳定和长治久安工作) [Study on further promoting social stability in Xinjiang and efforts for long-term peace and stability]. 27 May 2014, p 1. 42 Ibid. 43 Legal Daily (2014) Shixian changzhi jiuan - jianshe meihao Xinjiang (实现长治久安-建设美 好新疆) [Realising long-term peace and stability - creating a beautiful Xinjiang]. 28 May 2014, p 2. 44 Xinjiang Daily (2018) Yi Xi Jinping tongzhi wie hexin de dang zhongyang zhi Jiang fang lüe shi Xi Jinping xin shidai Zhongguo tese shehuizhuyide zhongyao zucheng bufen (以习近平同志 为核心的党中央治疆方略是习近平新时代中国特色社会主义思想的重要组成部分) [With comrade Xi Jinping in the centre, the Party’s central governance strategy for Xinjiang is an important integral part of the socialist ideology with Chinese characteristics in the new era of Xi Jinping]. http://wap.xjdaily.com/xjrb/20180117/96645.html. Accessed 28 January 2018.

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on Terror are scarce and most likely unreliable, it was however reported that the anti-crime campaign did not fail to produce tangible results. In May and June 2014 alone, the police smashed 32 terrorist groups, arrested 380 suspects and raided 21 unspecified institutions of religious learning45 and on 16 June 2014 the SPC approved 13 death penalties from three different courts in Xinjiang in seven separate cases of violent terrorism.46 Anti-crime campaigns in China are always defined by their respective rhetoric so that an outright War on Terror signals the utmost importance and severity of this campaign. Trevaskes ascertains: “[p]olitico-legal discourse is not merely vacuous rhetoric used as a smokescreen to conceal human rights abuses; it enables politico-legal authorities in Beijing to adapt to social stability threats and to communicate these adaptations to local authorities through the intensity of the political language used.”47 Even though the American jargon may have paved the way for a militarised vernacular of criminal justice, especially in the realm of terrorism, it is still uncommon for China to associate warfare with the suppression of crimes and reveals the supreme intensity of the People’s War on Terror, which the Chinese leadership wanted to communicate to its law enforcement. Xi Jinping is quoted early on with the phrase that “[terrorism] must be struck early, struck when it is small, struck when it sprouts; [it must be] devastatingly hit with the force of an ear-numbing thunder and an iron grip.”48 Trevaskes points out that China fell back on “(Mao-inspired) Deng Xiaoping-era phrases that aim at dehumanizing criminals.”49 Probably the most extreme of these phrases is directly derived from Mao Zedong and calls for violent terrorists to become like “rats running across the street with everyone yelling: Kill them! Kill them!”.50 Furthermore, the concept of a Chinese People’s War on Terror reaches deeper in the Maoist vault of Chinese politics. As briefly mentioned above, a People’s War on Terror indicates its theoretical foundation of a military strategy under Mao Zedong.51 The link between the twentieth century wartime People’s War and today’s People’s War on Terror is described as the asymmetry between the enemies. The superior military strength of the different enemy forces that the CCP had to face in the 1930s and 1940s, just like the clandestine strategy of violent terrorism today,

45

Ren 2015, p 17. Legal Daily (2014) Yancheng baokong – sifa liangjian (严惩暴恐 - 司法亮剑) [Harshly punishing violent terrorism – the judiciary pulls out its sword]. 17 June 2014, p 1. 47 Trevaskes 2016, p 300. 48 Eastern Daily (2014) Xi Jinping: Dahao fankong renmin zhanzheng (习近平:打好反恐人民战 争) [Xi Jinping: Waging the People’s War on Terror properly]. 4 May 20014, p 1. 49 Trevaskes 2016, p 305. 50 Xia 2016, p 21. The translation of “Guojie laoshu, renren han da” (过街老鼠, 人人喊打) is taken from Mao Zedong (Zedong 1965, p 53). Like so many quotes, this phrase was here completely decontextualised and ascribed a new connotation. Originally, it was not directed against some kind of external enemy but against a certain working style within the party that had led to an empty phraseology in the writing of many party members. 51 On the Maoist concept of a People’s War, see Powell 1967, pp 16–18. 46

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requires a novel strategy that draws on capacities beyond the sheer military force.52 This capacity is seen in the ‘mobilisation of the masses’ in the fight against the ‘common enemy’, that is now religious extremism and terrorism.53 In an approach that is regarded to be based on dialectic materialism, it is acknowledged that the masses are on the one hand most vulnerable and affected by terrorism but that they are on the other hand also the most fundamental and the most reliable force to combat terrorism.54 In order to deploy these forces, the People’s War on Terror aims at raising awareness of terrorism and the terrorist threat in every realm of society and doing so not only in Xinjiang but in every Chinese province.55 In the following, education campaigns on terrorism became ubiquitous across China and promoted practices and procedures on the proper behaviour in cases of terrorist attacks and also on the need to be vigilant in recognising activities that may be associated with terrorism and the right conduct after observing suspicious behaviour, which was fairly comprehensively laid out in free copies of the revised Citizens’ Handbook on Guarding against Terrorist Attacks published by the Ministry of Public Security (MPS).56 Becoming mobilised was not just a civic duty, but it was also incentivised so that several local governments established programmes that reward information on terrorist activities.57 In Xinjiang, a province-wide programme started in 2016 and rewards credible information with up to 5,000,000 Chinese Yuan (Renminbi; RMB) or so-called political incentives, which are professional promotions, preferential treatment with regard to admissions into schools, universities or even the military, legal assistance, or chengbao-contracts58 for land-use rights.59

52

Guo 2017, pp 63–64. Legal Daily (2014) Yancheng baokong – sifa liangjian (严惩暴恐 - 司法亮剑) [Harshly punishing violent terrorism – the judiciary pulls out its sword]. 17 June 2014, p 1. 54 Wang 2016, p 149. 55 Guo 2017, pp 64–65. 56 Gongmin fangfan kongbu xiji shouce [(公民防范恐怖袭击手册)]. See Chinese Ministry of Public Security 2008. 57 E.g. Jiangsu Provincial Government, Jiangsu sheng qunzhong jubao baoli kongbu fanzui xiansuo jiangli banfa (江苏省群众举报暴力恐怖犯罪线索奖励办法) [Measures of Jiangsu on rewards for leads on violent terrorism reported by the masses]. Adopted and entered into force 4 July 2014. 58 In the Chinese system of public ownership over the entire land, these contracts are used for the distribution of collectively owned farmland in the villages. 59 Juyghur Autonomous Region of Xinjiang Government, Xinjiang Weiwuer Zizhiqu qunzhong jubao she baokong fanzui xiansuo jiangli banfa (新疆维吾尔自治区群众举报涉暴恐犯罪线索 奖励办法) [Measures of the Uyghur Autonomous Region of Xinjiang on rewards for leads on violent terrorism reported by the masses], Article 6. Adopted and entered into force 11 April 2016. 53

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While the People’s War on Terror should not be confined to Xinjiang and many academics warned against discriminatory practices and general suspicions against religious or ethnic groups,60 it was made abundantly clear that the Uyghurs were particularly called upon to engage in this campaign.61 The slogan of the ‘Five Keys’ was coined to identify five specific problems and their solution in the areas of ideology, culture, customs, religion, and terrorism. While the latter shall be handled within the legal domain, the first four problems shall be addressed primarily through self-reflection and renunciation by recognising the vicious intent of religious extremism, by advancing to a secular and modern society, by eradicating the poisonous influence of religious extremism on the customs, and by strictly adhering to lawful practices of religion.62 Religion is here identified as the principal arena of political or ideological efforts to suppress terrorism. But, self-regulated lustration did obviously not produce the expected results so that not only terrorist activities but also religious extremism became a subject of legal coercion. In 2017, Xinjiang enacted De-Extremisation Regulations,63 which is using an ‘open’ enumeration to exemplify extremist behaviour and calls for comprehensive educative measures in every realm of society.64 Furthermore, Article 4 of these Regulations reads: “De-Extremisation has to uphold the Party’s general guidelines of religious work, uphold the sinicisation65 of religion, further follow the path of the rule of law, and actively guide religion to adapt to the socialist society.” It may be inferred from this junction of State law and party policy that China’s People’s War on Terror now formalises a renewed socialist suspicion against ‘foreign’ religion and religious freedom that disguises its repressive character behind a security law that aims at eradicating the basis for violent terrorism.

60 Legal Daily (2014) Fankong bujin shi zhengfu he gongan de shiqing (反恐不仅是政府和公安 的事情) [Counterterrorism is not just an issue of the government and the police]. 27 May 2014, p 5. 61 People.cn (2014) Rang dongtu baokong fenzi baochang guojia de tiequan (让东突暴恐分子饱 尝国家的铁拳) [Let the violent terrorists of the East Turkestan Movement fully enjoy the iron fist of the state]. http://opinion.people.com.cn/n/2014/0303/c1003-24508453.html. Accessed 2 February 2018. 62 Wang and Dan 2016, pp 23–24. 63 Xinjiang Uygur Autonomous Region Government, Xinjiang Weiwuer Zizhiqu qu jiduanhua tiaoli (新疆维吾尔自治区去极端化条例) [Xinjiang Uygur Autonomous Region De-Extremisation Regulations] (De-Extremisation Regulations). Adopted on 29 March 2017, entered into force on 1 April 2017. 64 For a further discussion of this normative document see below, Sect. 9.4. 65 汉化 (italics added). This vague concept alludes to the process of foreigners or entire foreign societies completely immersing themselves in the Chinese culture and adopting a Chinese way of life and mentality.

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Counterterrorism Legislation

Immediately after the Kunming attack, several deputies of China’s National People’s Congress voiced their concern that the Chinese counterterrorism framework was inadequately equipped for an effective fight against terrorism. While some argued that the scope of the criminal law should be significantly broadened, others advocated that an independent counterterrorism law is needed to encompass issues that are not necessarily directly linked with the administration of criminal justice.66 Consequently, China commenced in the aftermath of the Kunming attack to completely overhaul its counterterrorism legislation. This included primarily the Criminal Law, which was ultimately amended in August 2015,67 and the newly adopted Counter-Terrorism Law (CTL), which came into effect on 1 January 2016. Beside these national laws, two provincial regulations for Xinjiang are also important components of China’s legal regime for the suppression of terrorism. The latter are the De-Extremisation Regulations mentioned above and an Implementation Measure of the CTL for the Autonomous Region of Xinjiang (Xinjiang Implementation Measures)68 enacted in August 2016. This system of legislation is clearly aimed at severely tightening China’s regime for the suppression of terrorism and follows the rationale of the People’s War on Terror as it also calls for a comprehensive mobilisation of the masses in the fight against terrorism. In this context, the Chinese counterterrorism laws must be understood as a means to perpetuate a strike-hard campaign that grants ample powers to the security forces and targets a specific ethnic minority.

9.4.1

Defining Terrorism and Extremism

A core issue in the Chinese debates on the establishment of a comprehensive legal framework for the suppression of terrorism was the task of finding an appropriate definition for terrorism. A key aspect in this regard was the question if such a definition should be limited to acts of terrorism or if it should also include a mindset 66 Zhang Lulu (2014) Renda daibiao jianyi yong falü wuqi daji kongbu zhuyi fanzui (人大代表建 议用法律武器打击恐怖主义犯罪) [Deputies of the NPC propose to use the law as a weapon in fighting terrorist crimes]. http://www.npc.gov.cn/npc/xinwen/2014-03/12/content_1853033.htm. Accessed 12 February 2018. 67 China, Zhonghua Renmin Gongheguo xingfa xiuzheng an (jiu) (中华人民共和国刑法修正案 (九)) [Revision of the Criminal Law of the People’s Republic of China (9)]. 68 Xinjiang Uygur Autonomous Region Government, Xinjiang Weiwuer Zizhiqu shishi “Zhonghua Renmin Gongheguo fan kongbu zhuyi fa” banfa (新疆维吾尔自治区实施《中华人 民共和国反恐怖主义法》办法) [Measures for the Implementation of the “Anti-Terrorism Law of the People’s Republic of China” in Xinjiang Uygur Autonomous Region] (Xinjiang Implementation Measures). Adopted 29 July 2016, entered into force 1 August 2016.

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that could bring forth terrorist acts. While Article 120 of the Chinese Criminal Law originally spoke of terrorist activities69 and thereby clearly limited its scope to concrete acts of terrorism, the amendment of 2015 introduced the crimes of ‘propagating terrorism’ (Article 120c), ‘forcing others to wear clothes or symbols that propagate terrorism’ (Article 120e), and ‘illegal possession of materials that propagate terrorism’ (Articles 120f) without, however, providing a definition of terrorism. The following discussion on this issue was shaped by the early drafts of the CTL, which had already been published in late 2014. The first draft of this law defined terrorism as “thought, speech, or acts, which attempt to elicit panic in society, influence State policies, create ethnic hatred, subvert State power, or split the State through violence, destruction, intimidation, or other methods.”70 This approach to include the conduct of ‘thinking’ in the legal definition of terrorism was immediately heavily criticised as unenforceable and simply wrong so that the Law Committee of the National People’s Congress (NPC) proposed another definition in a draft issued in February 2015: terrorism as used in this law refers to any advocacy or act, which causes panic in society, endangers public security or compels State organs or international organisations by means such as violence, destruction or threat.71 By omitting ‘thinking’ and ‘attempt’ from the definition, the NPC acknowledged that its first draft was far too wide and would have opened the gate for an unfathomable array of terrorism charges. Liu Renwen furthermore asserts that ‘influencing State policies’ was considered too broad and that issues like ethnic hatred and separatism were dropped from the definition because this contravened the official policy not to stress the direct connection between certain minorities and terrorism.72 He also notes that ‘advocacy’ (zhuzhang) [主张] is a vague concept that could still easily be understood as ‘thinking’ (sixiang) [思想] and ‘speech’ (yanlun) [言论] so that he sees this definition still in blatant disregard of the principle that only an act is punishable by law whereas mere thinking cannot be punished.73 While a high-ranking police official explained that ‘advocacy’ only describes a structured dissemination of terrorist thought, Zhao Bingzhi and Niu Zhongzhi dismiss this explanation as implausible and criticise the approach to criminalise thinking as barbaric and dictatorial.74 Despite this harsh criticism, the final text of the CTL upheld the possible terrorist conduct of ‘advocacy and acts’. The definition now also encompasses the destruction of personal property as a possible result of terrorism and added another layer of subjective motivation for terrorism without limiting the origin of such motivation. Article 3 of the CTL now defines terrorism

69

Kongbu huodong [(恐怖活动)]. On the understanding of this term in China, see Sect. 9.4.2. Lang 2016, pp. 19. An unofficial translation can be found at China Law Translate (2014) Counter-terrorism Law (Initial Draft). https://www.chinalawtranslate.com/ctldraft/?lang=en. Accessed 27 February 2018. 71 Su 2016, p 20. 72 Liu 2015, p 171. 73 Ibid. 74 Zhao and Niu 2017, pp 2–3. 70

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as any advocacy or act that, by means such as violence, destruction or threat, causes panic in the society, endangers public security or infringes upon personal or property rights or compels State organs or international organisations, with the purpose of realising political, ideological or other goals.75 The first draft of the CTL also provided a definition of extremism that singled out “distorted religious teachings and the dissemination of religious extremism” as main type of extremism, which may also take other forms of “thinking, speech or acts,” which advocate violence, hatred of the society, or opposition to humankind.76 Even though several deputies of the NPC noted that aspects of the law should avoid linking religion or certain ethnic groups with terrorism,77 the final version of the CTL still follows such an approach. Article 4(2) exemplifies only “distorted religious teachings” as one of the possible forms of extremism that “incite hatred or discrimination and promote violence” and therefore need to be fought by the State as an “ideological basis of terrorism”. While commentators assert that the extremist conduct in this definition is limited to ‘objective acts’ and does not entail ‘thinking’,78 the local legislator in Xinjiang chose another approach. In its De-Extremisation Regulations the local People’s Congress defines in Article 3(1) as the task of this legislation to “eliminate speech and acts, which are influenced by extremism and embellish extreme religious concepts and which are interfering with the daily production or life.” In the following definition of extremism in Article 3(2), these Regulations use an amalgam of the CTL’s definition of terrorism and extremism: “[a]ccording to these Regulations, extremism refers to any advocacy or act, which e.g. incites hatred or discrimination and promotes violence by using distorted religious teachings or other means.” Following this definition, extremist conduct includes not only acts but also the subjective layer of ‘advocacy’ that was already harshly criticised by the Chinese academia in the definition of terrorism discussed above. Furthermore, neither the results of extremism nor the means of extremism are limited by this definition so that it is almost impossible to exclude any conduct from the scope of this definition. While it may only apply to one province in China, Xinjiang is the core battleground in the People’s War on Terror so that the vagueness of this definition gives authorities ample grounds to arbitrarily pursue their task of ‘de-extremisation’ in their fight against terrorism.

75 The accompanying report of the NPC’s Law Committee ascertains that this definition takes the Shanghai Convention on Combating Terrorism, Separatism and Extremism, opened for signature 15 June 2001, International Instruments Related to the Prevention and Suppression of International Terrorism, United Nations, New York, pp 232–240 (entered into force 29 March 2003) and the UN General Assembly (1994) Measures to Eliminate International Terrorism, UN Doc. A/RES/49/ 60) as reference. See Su 2016, p 23. 76 Full text of this draft is available at National People’s Congress of the People’s Republic of China (2014) Fan kongbu zhuyi fa (cao’an) quanwen (反恐怖主义法(草案)全文) [Full Text of Anti-Terrorism Law (Draft)]. http://www.npc.gov.cn/npc/xinwen/lfgz/flca/2014-11/03/content_ 1885027.htm. Accessed 23 February 2018. 77 Su 2016, p 22. 78 Yang and Pei 2016, p 9.

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Criminal and Administrative Penalisation of Terrorist and Extremist Conduct

A key element of every strike-hard campaign, like the People’s War on Terror, is a legislative effort to revise and tighten punishments for the respective targeted conduct. In this context, it is important to notice that China’s approach to penology has two distinctive but interconnected strains. While the Criminal Law and its punishments rely on court decisions, administrative punishment, which are mainly administrative fines or detention of up to 15 days, are decided upon and carried out by the police. Both systems can be regularly applied to the same (prohibited) conduct, while the blurry demarcation between the two shall be based on a material assessment of the degree of social harmfulness of the conduct. As a result of this vague delineation, the law enforcement is frequently overburdened with the task to decide if for example a public disturbance already warrants a criminal punishment or if it is a minor transgression that should only be punished by administrative detention.79 It is this unclear delineation that is substantially effected by a strike-hard campaign for that the threshold of criminal liability can be significantly lowered by considering more degrees of prohibited conduct socially harmful. During a strike-hard campaign, like the People’s War on Terror, conduct is more likely to be handled within the Criminal Law even though it would have normally just been sanctioned by administrative punishment. Until its revision in 2015, the Criminal Law only provided one Article on terrorism, which was the crime of organising, leading or participating in a terrorist organisation.80 The delineation between a terrorist organisation and other crime groups was more or less tautological as a terrorist organisation was simply understood as an organisation for terrorist activities.81 The latter was addressed in a decision of the Standing Committee of the NPC in 2011 which defined terrorist activities as any act that causes or intends to cause death or personal injury, serious loss of property, destruction of public installations, or disturbs the social order or other acts that are seriously harming the society by violence, destruction, threat, or other means with the purpose to cause social panic, endanger the public security or compelling the state or an international organisation and any other act that through instigating, financing or in other ways supports the above-mentioned activities.82

79

Wu 2008, pp 85–86. China, Zhonghua renmin gongheguo xingfa (中华人民共和国刑法) [Criminal Law of the People’s Republic], Article 120 (CL). 81 On this issue, see, e.g., Zhang and Wang 2006, pp 86–90. 82 China, Quanguo renda changweihui guanyu jiaqiang fan kongbugongzuo youguan wenti de jueding (全国人大常委会关于加强反恐怖工作有关问题的决定) [Decision of the Standing Committee of the NPC on the Issue of Strengthening the Counter-Terrorism Work], Article 2. Adopted and entered into force 29 October 2011. 80

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Even though China’s Criminal Law solely focused on terrorist organisations before 2015, it should not be overlooked that China’s arsenal of combating social disturbances and political opposition is equipped with such broad crimes like the incitement to (non-violently) subvert the State power or topple the socialist system by spreading rumours, which is punished in serious cases with at least five years imprisonment83 so that a wide array of terrorist-related conduct was punishable before 2015 even without a specific provision. In the Chinese context of a deep connection between violent separatism and terrorism, the crime of splitting the State or inciting to split the State84 could easily be used to penalise various conducts in the realm of Uyghur terrorism. It is therefore not surprising that an early step to adapt China’s Criminal Law to the newly perceived threat of terrorism after the Kunming attack was a jointly issued opinion of the SPC, SPP and MPS in September 2014 on the handling of cases of terrorism and religious extremism.85 According to this document, violent terrorist crimes and the propagation of terrorism or religious extremism that is conducted within an organisational structure has to be handled according to the provision on organising, leading and participating in a terrorist organisation, whereas any other kind of dissemination of extremist religious thinking and terrorist propaganda should be handled according to the crime of splitting or inciting to split the State.86 The revision of the Criminal Law in 2015 introduced five new provisions on terrorism and extremism. Generally speaking, the scope of crimes was broadened and punishments were tightened. For example, Article 120b now stipulates that even planning terrorist activities is punished in serious cases with at least five years of imprisonment. Furthermore, the Criminal Law now also encompasses the crime of using extremism to obstruct the implementation of law, which punishes inciting or compelling the “masses” to for instance defy national marriage laws.87 While the law carefully avoids speaking of religious extremism, it is utterly clear that this provision especially aims at suppressing religious norms that may be in contradiction with national laws.88 As mentioned above, the revision of 2015 also introduced special provisions on the propagation of terrorist or extremist thought,89 and even the mere possession of propaganda material is now punishable by law if the possessor is aware of its propagandistic content.90 Hu Sha characterises the latter as the introduction of Feindstrafrecht in China that may be suitable for warfare but wrongly criminalises conduct, which is not immediately endangering the society and violates basic achievements of China’s criminal justice system like

83 84 85 86 87 88 89 90

CL, above n 80, Article 105(2). Ibid., Article 103. Supreme People’s Court et al. 2014. Ibid., Article 2(1), Article (3). CL, above n 80, Article 120d. Lu and Wu 2015, p 38. CL, above n 80, Article, 120c and Article 120e. Ibid., Article 120f.

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the principle of equality before the law.91 It is probably this provision that most aptly depicts China’s approach to counterterrorism in the criminal law, which must be understood as a perpetuated strike-hard campaign under the shibboleth of a People’s War on Terror. Conduct that is related to terrorism or extremism but stays below the threshold of a criminal prosecution may be sanctioned by administrative punishments. A plethora of such measures can be found in the CTL, the Xinjiang Implementation Measures and the De-Extremisation Regulations. At times, the prohibited conduct is not clearly discernible from a crime stipulated in the criminal law and must be subsumed on the aforementioned principle to delineate criminal and administrative punishments. For example, the CTL prescribes detention of 10 to 15 days and a fine of up to 10,000 RMB for producing, disseminating or storing material that is promoting terrorism or extremism.92 Within the context of the People’s War on Terror, it should be expected that this provision is only applicable for the smallest transgressions. While the Criminal Law does not explicitly codify a crime of religious extremism, there is a wide array of administrative punishments for such a conduct. The CTL, for instance, provides a punishment of five to 15 days and a fine of up to 10,000 RMB for compelling another person to participate in religious activities or for the interference in the personal relationship of another person with a person of another faith.93 While these provisions still entail some element of force and could apply to any religion, the Xinjiang Implementation Measures, inter alia, also punish the organisation of religious activities for minors or the distortion and generalisation of the Islam concept of halal.94 Xinjiang’s De-Extremisation Regulations furthermore prohibit wearing a face veil, growing an “irregular” (fei zhengchang [非正 常]) beard and picking a name that conveys religious fervour.95 These repressive measures evidently indicate that China’s People’s War on Terror is not only targeting violent terrorism but also aims at the oppression of certain Muslim practices that are considered religious extremism. It is once again the unheard critique of the Chinese academics that warn against this approach and ascertain that criminological data does not support a direct link between Islam and religious extremism or terrorism and that criminalising religious practice, which is neither compelling nor harming others, is counterproductive for the prevention of extremism or terrorism.96

91 92 93 94 95 96

Hu 2017, pp 34–36. CTL, above n 5, Article 80(2). Ibid., Article 81(1) and Article 81(3). Xinjiang Implementation Measures, above n 68, Article 51(2) and Article 51(4). De-Extremisation Regulations, above n 63, Article 9. Zhao 2016, pp 289–298.

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Preventive Measures in the People’s War on Terror

The potential gravity of terrorist crimes entices legislators frequently to establish preventive measures within the criminal justice system that may promise greater security but may also bend or even violate principles of due process and of the protection of personal dignity. China’s CTL and its accompanying legislation for Xinjiang follows such an approach. The CTL allows the police to conduct a risk assessment of a terrorist suspect and issue certain restrictive measures for said suspect. These measures may entail restrictions on the mobility of the suspect for that a designated area may not be left without the approval of the police,97 or that the suspect must hand over his or her passport,98 or that he or she may be restricted from using certain means of transportation.99 Furthermore, the police can prohibit any kind of communication with specific persons,100 the participation in specific activities101 and order that the suspect has to report on his or her activities on a regular basis.102 Additionally, the security forces are authorised to electronically monitor the suspect’s compliance with these restrictive measures.103 A late draft of the CTL established that these measures, which exceed the scope of the pre-arrest compulsory measures in the Criminal Procedure Law,104 have to be approved by a relevant police department at above the county-level,105 which may limit their arbitrary use to a certain degree. Additionally, a time limit of three months was introduced for these measures during the legislative process, which is considered a core element in balancing the need for security and the protection of human rights.106 But it needs to be stressed that these measures are not reviewed externally by the procuratorates or the courts and are therefore at the total discretion of the police, which can employ these measures at the very beginning of their investigations into suspected terrorist conduct. Another powerful tool is the establishment of so-called educative measures, which enhanced the police’s ability to exercise control, on the one hand, over anyone who came into contact with terrorist or extremist propaganda and, on the other hand, over anyone who had already been sanctioned by criminal or administrative punishment. One of these tools is called ‘assisted education’ 97

CTL, above n 5, Article 53(1). Ibid., Article 53(6). 99 Ibid., Article 53(3). 100 Ibid., Article 53(4). 101 Ibid., Article 53(2). 102 Ibid., Article 53(5). 103 CTL, above n 5, Article 53(2). 104 China, Zhonghua renmin gongheguo xingshi susongfa (中华人民共和国刑事诉讼法) [Criminal Procedure Law of the PRC], Article 69. Adopted 14 March 2012, entered into force 1 January 2013. 105 Su 2016, p. 22; CTL, above n 5, Article 53(1). 106 Ibid., Article 53(1). 98

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(bangjiao [帮教]), which is required to be conducted if anyone is instigated, coerced or induced to participate in terrorist or extremist activities or has already participated in terrorist or extremist activities but the circumstances are not serious enough to constitute a crime (but serious enough to be sanctioned by administrative punishment).107 The CTL is silent on the specifics of this ‘assisted education’ but the Xinjiang Implementation Measures indicate that this mechanism is coupled with a ‘rule of law education’ (fazhi jiaoyu [法治教育])108 and the De-Extremisation Regulations again joins this kind of education with a ‘criticising education’ (piping jiaoyu [批评教育]).109 Neither time limits nor administrative details of these educative measures are specified so that it may be suspected that these aspects are at the sole discretion of the relevant police forces, which might be tempted to use these measures to re-establish a new kind of the previously abolished system of police-run ‘re-education through labour’110 camps that apparently have already re-emerged in Xinjiang and may be holding up to one million persons.111 The specific content of these education measures can be inferred from the Xinjiang Implementation Measures, which stipulate that this education shall include knowledge of the legal system, of thought and morality, of mental health, of modern culture and of the sciences as well as the ‘correct religious beliefs’ (zongjiao zhengxin [宗教正信]) and include vocational training.112 This provision also applies to educative measures in prison, which would explain the extensiveness of this list, and it also applies to the so called ‘education at a designated place’ (anzhi jiaoyu [安置教育]). The latter is reserved for persons who have been convicted of a terrorist or extremist crime and who are about to be released from prison.113 Six months before the term of imprisonment ends,114 the prison shall submit an assessment of the social dangerousness of the respective convict to the relevant Intermediate People’s Court, which then can order ‘education at a designated place’. The Provincial Government shall provide facilities for this education that has to be reviewed once a year but has no time limit so that this system gives authorities the possibility to prolong a prison sentence for a terrorist or extremist crime indefinitely.115 In the Chinese academic world, it is well acknowledged that

107

Ibid., Article 29(1). Xinjiang Implementation Measures, above n 68, Article 28. 109 De-Extremisation Regulations, above n 63, Article 46. 110 On this system, see Jiang 2016, pp 45–78. 111 Tom Phillips (2018) China ‘holding at least 120,000 Uighurs in re-education camps’. https:// www.theguardian.com/world/2018/jan/25/at-least-120000-muslim-uighurs-held-in-chinese-reeducation-camps-report. Accessed 3 February 2018; Committee on the Elimination of Racial Discrimination (2018) Concluding observations on the combined fourteenth to seventeenth periodic reports of China (including Hong Kong, China and Macao, China), UN Doc. CERD/C/CHN/ CO/14-17, p 7. 112 Xinjiang Implementation Measures, above n 68, Article 43. 113 CTL, above n 5, Article 30(1). 114 Xinjiang Implementation Measures, above n 68, Article 41. 115 CTL, above n 5, Article 30(3). 108

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this mechanism may be very useful in preventing recidivist terrorist crimes, but it is at the same time characterised as a double-edged sword that may cause more harm than good if it is arbitrarily used and not strictly controlled by the courts so that the vague legal provision on this measures should be substantially amended.116

9.4.4

Mobilising the Masses

A foundational aspect of the People’s War on Terror is the mobilisation of the masses, which means that the general populace shall be the main force in the fight against terrorism and extremism. Accordingly, the CTL is not only a penal law but encompasses also a wide array of measures that could be categorised as instruments of a social management system. In the section on the general principles of the CTL, it is expressively stipulated that all relevant government departments shall establish mechanisms for the purpose of jointly conducting counterterrorism work together with village committees, neighbourhood committees, enterprises, and social organisations.117 Furthermore, every person has the legal duty to support and cooperate with counterterrorism measures and to report on suspected terrorist activities,118 while the latter should even warrant a reward,119 which is implemented through local legislation.120 A key aspect in this regard is raising awareness and educating the public on terrorism, on extremism and on counterterrorism measures,121 which shall not only be undertaken by the security forces and the various institutions of education, but which shall also be conducted through the media, at the workplace and, especially with regard to extremism, even within the family.122 In Xinjiang, special attention is thereby given to the administration of religious institutions, which shall safeguard that religious institutions are spreading the “correct belief among the masses”123 and that the religious teachings are in conformity with “the requirements of progress and modernity”.124 The masses shall also act as first responders wherever terrorism or extremism may foster. Hence, the above-mentioned “assisted education” shall not only be provided by the security forces, but it shall also be jointly conducted with the relevant village or neighbourhood committees, the workplace or the place of

116

Xu 2017, p 29. CTL, above n 5, Article 8(3). 118 Ibid., Article 9. 119 Ibid., Article 10. 120 See Sect. 9.3. 121 CTL, above n 5, Article 17. 122 Xinjiang Implementation Measures, above n 68, Article 17. De-Extremisation Regulations, above n 63, Articles 30–44. 123 Xinjiang Implementation Measures, above n 68, Article 18. 124 De-Extremisation Regulations, above n 63, Article 35. 117

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education and even the family members.125 Engaging the general public on this level in the counterterrorism work may have a detrimental effect on social cohesion as it may lead to general suspicion and ultimately to discrimination against certain ethnic groups and religious beliefs so that Chinese criminologists stress the importance of due process, the principle of equality and religious freedom, even in times of a growing domestic terrorist threat.126

9.5

Concluding Remarks

China’s People’s War on Terror started out as temporary ‘strike-hard’ campaign in 2014, but it has since been perpetuated by legislative measures like the amendment of the criminal law and the enactment of the CTL and its Xinjiang Implementation Measures. Harsh criminal punishments for the mere possession of propagandistic material and the broad authority given to the police through the ability to impose strict pre-trial compulsory measures and administrative punishments for such vague conduct as ‘generalising the concept of halal’ exhibit this development. Furthermore, the widely discretionary educative measures, which could easily be abused as a repressive tool of ethnic discrimination and segregation, may allow the security forces to put the wheel of history in reverse and re-establish police-run institutions for the oppression of perceived deviant behaviour like the just recently abolished laojiao-system, which previously gave the police the power to send persons for up to three years in labour camps without trial on various grounds. The extent to which religious practices, like the choosing of a name or the length of a beard, are penalised under the auspices of de-extremisation and the martial rhetoric of equating terrorists with vermin that needs to be crushed in the gutter demonstrate China’s counter-terrorism approach that follows the Maoist rationale of a clear demarcation between the people and its enemies. In this regard, it is quite telling that the harsh critique of the Chinese academia on the relevant legislation went mostly unheard, but it was able to change the draft law in one decisive point: while the first draft provided that internet service providers had always to file their cryptography schemes with the police127 so that the police would have immediate access to every encrypted communication in China, the CTL stipulates that access and decryption has to be provided to the security organs just during the course of an investigation into terrorist activities.128 This revision more or less insulated the majority society from the strictness of the counter-terrorism measures and was 125

CTL, above n 5, Article 29; Xinjiang Implementation Measures, above n 68, Article 38. Huang and Liu 2017, pp 34–35. 127 National People’s Congress of the People’s Republic of China (2014) Fan kongbu zhuyi fa (cao’an) quanwen (反恐怖主义法(草案)全文) [Full Text of Anti-Terrorism Law (Draft)]. http:// www.npc.gov.cn/npc/xinwen/lfgz/flca/2014-11/03/content_1885027.htm. Accessed 23 February 2018, Article 16(1). 128 CTL, above n 5, Article 18. 126

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widely heralded as improving the balance between security and human rights in the CTL drafting process.129 An overall assessment of China’s People’s War on Terror must however come to the conclusion that China’s approach is best summed up by a regime-loyal Uyghur commentator who noted in the Chinese journal Human Rights that security is the paramount human right and China’s use of the law as a weapon in fighting violent terrorism is nothing less but the protection of human rights.130 While the extensive security measures of China’s counterterrorism work may reduce the immediate terrorist threat, the perpetuated strike-hard campaign of China’s People’s War on Terror may very well also further perpetuate the unresolved conflict of Uyghur separatism and therefore nurse the breeding ground for China’s domestic terrorism.

References Articles, Books and Other Documents Bovingdon G (2010) The Uyghurs: Strangers in Their Own Land. Columbia University Press, New York Chinese Ministry of Public Security (2008) Gongmin fangfan kongbu xiji shouce (公民防范恐怖 袭击手册) [Citizens’ Handbook on Guarding against Terrorist Attacks]. http://www.gov.cn/ fwxx/content_1051949.htm. Accessed 26 July 2019 Clarke M (2007) China’s Internal Security Dilemma and the “Great Western Development”: The Dynamics of Integration, Ethnic Nationalism and Terrorism in Xinjiang. Asian Studies Review 31(3):323–342 Clarke M (2008) China’s ‘War on Terror’ in Xinjiang: Human Security and the Causes of Violent Uyghur Separatism. Terrorism and Political Violence 20(2):271–301 Clarke M (2010) Widening the net: China’s anti-terror laws and human rights in the Xinjiang Uyghur Autonomous Region. The International Journal of Human Rights 14(4):542–558 Cunningham CP (2012) Counterterrorism in Xinjiang: The ETIM, China, and the Uyghurs. International Journal on World Peace 29(3):7–50 Dillon M (2004) Xinjiang―China’s Muslim Far Northwest. Routledge Curzon, London/New York Finley JS (2013) The Art of Symbolic Resistance: Uyghur Identities and Uyghur-Han Relations in Contemporary Xinjiang. Brill, Leiden Guo Y (2017) Lun fankong renmin zhanzheng (论反恐怖人民战争) [On the People’s War on Terror]. China Military Science 1:60–67 Hu S (2017) Lun woguo daizou kongbu zhuyi wupin fanzuihua de genju ji moshi (论我国持有恐 怖主义物品犯罪化的根据及模式) [Basis and Method of Criminalising the Possession of Terrorist Materials in China]. Fanzui yanjiu 3:31–41

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Huang S, Liu M (2017) ‘Quanmin fankong’ de jiazhi dingwei yu shijian nanti (‘全民反恐’的价值 定位与实践难题) [Evaluation and Practical Problems of the ‘Counter-Terrorism Nation’]. Journal of Henan University 6:28–35. Jiang S (2016) Punishment without Trial: The Past, Present and Future of Reeducation through Labor in China. Peking University Law Journal 1:45–78. Lang S (2016) Guanyu ‘Zhonghua renmin gongheguo fan kongbu zhuyi fa (cao’an)’ de shuoming (关于‘中华人民共和国反恐怖主义法(草案)’的说明) [Explanation of the ‘Draft Counterterrorism Law of the People’s Republic of China’]. Gazette of the NPC 1:18–20 Li X (1994) Lun xingfa jieshie de yuanze (论刑法解释的原则) [On the Principles of interpretation of the criminal law]. Falü kexue 6:34–38 Lin C (2016) The ISIS Challenge to China’s Silk Road and Prospect for Counter-Terrorism Cooperation. Liberty University Law Review 11(2):487–524 Liu M, Liu A, Duan Y (2014) She kong tufa shijian baodao zhong de wangluo yulun daoxiang ji she jingqing fenxi—Yi Kunming “3
01” shijian wei li (涉恐突发事件报道中的网络舆论导 向及涉警舆情分析—以昆明“3
01”事件为例) [Analysis of the trends in the public opinion on the internet regarding police reports after breaking news on terror—The example of Kunming 3/01]. Journal of the Xinjiang Police Academy 34(2):9–12 Liu R (2015) Kongbu zhuyi yu xingfa guifan (恐怖主义与刑法规范) [Terrorism within the Rules of the Criminal Law]. Zhongguo falü pinglun 2:168–174 Lu Y, Wu Y (2015) Jiduan zhuyi fanzui bianxi (极端主义犯罪辨析) [Analysis of Extremist Crimes]. Journal of Southwest University of Political Science and Law 2:34–46 Pokalova E (2013) Authoritarian regimes against terrorism: lessons from China. Critical Studies on Terrorism 6(2):279–298 Potter PBK (2013) Terrorism in China. Growing Threats with Global Implications. Strategic Studies Quarterly 7:70–92 Powell RL (1967) Communist China’s Military Doctrines. Research Analysis Corporation, McLean Ren K (2015) Dangqian baoli kongbu huodong fanzui de neihan, tedian yu zhencha fangkong duice (当前暴力恐怖活动犯罪的内涵、特点与侦查防控对策) [Content and characteristics of current crimes of violent terrorist activities and investigative countermeasures]. Journal of Guizhou Police Officer Vocational College 3:14–22 Su Z (2016) Quanguo renmin daibiao dahui falü weiyuanhui guanyu ‘Zhonghua renmin gongheguo fan kongbu zhuyi fa (cao’an)’ xiugai qingkuang de huibao (全国人民代表大会法 律委员会关于‘中华人民共和国反恐怖主义法(草案)’修改情况的回报) [Report of the Law Committee of the NPC on the revision of the ‘Draft Counterterrorism Law of the People’s Republic of China’]. Gazette of the National People’s Congress 1:20–22 Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security (2014) Guanyu banli baoli kongbu he zongjiao jiduan xingshi anjian shiyong falü ruogan wenti de yijian (关于办理暴力恐怖和宗教极端刑事案件适用法律若干问题的意见) [Opinion on Several Issues concerning the Application of Law in Handling of Criminal Cases of Violent Terrorism and Religious Extremism] Trevaskes S (2007) Courts and Criminal Justice in Contemporary China. Lexington Books, Lanham Trevaskes S (2016) Using Mao to Package Criminal Justice Discourse in 21st-century China. China Quarterly 226:299–318 Tschantret J (2016) Repression, opportunity, and innovation: The evolution of terrorism in Xinjiang, China. Terrorism and Political Violence 1:1–20 Tuerxun G (2014) Lun Zhongguo de fan kongbu douzheng yu renquan baozhang (论中国的反恐 怖斗争与人权保障) [On China’s Fight against Terror and the Protection of Human Rights]. Human Rights 5:33–34 UN Committee on the Elimination of Racial Discrimination (2018) Concluding observations on the combined fourteenth to seventeenth periodic reports of China (including Hong Kong, China and Macao, China), UN Doc. CERD/C/CHN/CO/14-17

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UN General Assembly (1994) Measures to Eliminate International Terrorism, UN Doc. A/RES/49/ 60 UN General Assembly (2015) Plan of Action to Prevent Violent Extremism, UN Doc. A/70/674 Wang D, Dan S (2016) Fankong yanjiu yu Xinjiang moshi (反恐研究与新疆模式) [Studying counterterrorism and the Xinjiang model]. Qingbao Zazhi 35:20–26 Wang K (2016) Cong “Fan kongbu zhuyi fa” jiedu quanmin fankong (从“反恐怖主义法“解读全 民反恐) [Decoding counterterrorism of the whole people from the “Counterterrorism Law”]. Fazhi bolan 2:149–150 Wayne MI (2009) Inside China’s War on Terrorism. Journal of Contemporary China 18(59):249– 261 Wu X (2008) Zhian guanli chufa fa yu xingfa de waizai chongtu yu neizai xietiao (治安管理处罚 法与刑法的外在冲突与内在协调) [External Conflict and Internal Coordination of the Administrative Punishment Law and the Criminal Law]. Shenzhen daxue xuebao 6:82–87 Xia W (2016) Lun Xi Jinping de zhi Jiang sixiang (论习近平的治疆思想) [On Xi Jinping’s governance approach to Xinjiang]. Journal of Xinjiang Normal University 37:18–25 Xu C (2017) ‘Fan kongbu zhuyi fa’ zhong anzhi jiaoyu de xingzhi bianxi yu zhidu goujian (‘反恐 怖主义法’ 中安置教育的性质辨析与制度构建) [Analysis of the Nature of the Education at a Designated Place in the ‘Counter-Terrorism Law’ and the Establishment of its System]. Faxue zazhi 2:20–29 Yang H, Pei Z (2016) ‘Fan kongbu zhuyi fa’ de ling yi zhong jiedu (‘反恐怖主义法’的另一种解 读) [Another Interpretation of the ‘Counter-Terrorism Law’]. Journal of Guangxi Police Academy 4:8–12 Yin W (2017) Rooted in Poverty?: The Economy of Terrorism in Xinjiang. Japanese Journal of Political Science 18(1): 41–66 Yu C (2012) Xinjiang shengchan jianshe bingtuan sifa tixi (新疆生产建设兵团司法体系初探) [Exploratory discussion of the Xinjiang Production and Construction Corps’ judicial system]. Fazhi yu shehui 1: 88–89 Zedong M (1965) Selected Works of Mao Tse-Tung. Volume 1. Pergamon Press, Oxford/New York/Toronto/Sydney/Paris/Frankfurt Zhang M, Wang J (2006) Kongbu zuzhi jieding (恐怖组织界定) [Defining a Terrorist Organisation]. Journal of National Procurators College 2:86–90 Zhao B, Niu Z (2017) ‘Fan kongbu zhuyi fa’ yu fankong xingfa xianjie buzu zhi tantao (‘反恐怖 主义’与反恐刑法衔接不足之探讨) [Review of the Deficiencies in Coordinating the ‘Counter-Terrorism Law’ and Counter-Terrorism in the Criminal Law]. Faxue zazhi 2:1–10 Zhao J (2016) Fazhi yujingxia jiduan zhuyi fazui zhili dingliang yanjiu (法治语境下极端主义犯 罪治理定量研究) [Study on the Intensity of Handling Extremist Crimes in the Context of the Rule of Law]. Zhongguo faxue 6:278–300

Legislation China, Quanguo renda changweihui guanyu jiaqiang fan kongbugongzuo youguan wenti de jueding (全国人大常委会关于加强反恐怖工作有关问题的决定) [Decision of the Standing Committee of the NPC on the Issue of Strengthening the Counter-Terrorism Work] China, Zhonghua renmin gongheguo xingfa (中华人民共和国刑法) [Criminal Law of the People’s Republic] China, Zhonghua renmin gongheguo fan kongbu zhuyi fa (中华人民共和国反恐怖主义法) [Counter-Terrorism Law of the PRC] Jiangsu Provincial Government, Jiangsu sheng qunzhong jubao baoli kongbu fanzui xiansuo jiangli banfa (江苏省群众举报暴力恐怖犯罪线索奖励办法) [Measures of Jiangsu on rewards for leads on violent terrorism reported by the masses] Juyghur Autonomous Region of Xinjiang Government, Xinjiang Weiwuer Zizhiqu qunzhong jubao she baokong fanzui xiansuo jiangli banfa (新疆维吾尔自治区群众举报涉暴恐犯罪线

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索奖励办法) [Measures of the Uyghur Autonomous Region of Xinjiang on rewards for leads on violent terrorism reported by the masses] Xinjiang Uygur Autonomous Region Government, Xinjiang Weiwuer Zizhiqu qu jiduanhua tiaoli (新疆维吾尔自治区去极端化条例) [Xinjiang Uygur Autonomous Region De-Extremisation Regulations] Xinjiang Uygur Autonomous Region Government, Xinjiang Weiwuer Zizhiqu shishi “Zhonghua Renmin Gongheguo fan kongbu zhuyi fa” banfa (新疆维吾尔自治区实施《中华人民共和国 反恐怖主义法》办法) [Measures for the Implementation of the “Anti-Terrorism Law of the People’s Republic of China” in Xinjiang Uygur Autonomous Region]

Treaties Shanghai Convention on Combating Terrorism, Separatism and Extremism, opened for signature 15 June 2001, International Instruments Related to the Prevention and Suppression of International Terrorism, United Nations, New York, pp 232–240 (entered into force 29 March 2003)

Dr. Daniel Sprick is a Research Associate at the Chair of Chinese Legal Culture at the University of Cologne, where he teaches a wide variety of courses on Chinese legal history, Chinese economic and commercial as well as Chinese criminal law. He was awarded the Hanenburg-Yntema Prize for the best European master thesis on Chinese law for his paper on Chinese competition law. He received his Ph.D. from the East Asian Institute at the University of Cologne on the limits of self-defense in Chinese criminal law. His research has focused on Chinese criminal law, constitutional law, law and society and judicial reforms in China.

Chapter 10

Framing Foreign Fighting: Exploring the Scope of Prevention and the Categorisation of Fighters in International Law Marnie Lloydd

Contents 10.1 Introduction: An Intense Focus on Priority Policy Concerns and Persons ................... 10.2 The Capabilities and Limits of Framing......................................................................... 10.3 Foreign Fighting and Categorisation in Alternative Framings....................................... 10.3.1 Mercenaries, Self-determination and the Commodification of Private Force ... 10.3.2 Foreign Terrorist Fighters and the Power of the Contemporary Counterterrorism Framing .................................................................................. 10.4 Narrowing the Conversation? Framing and the Categorisation of Individual Fighters ............................................................................................................................ 10.5 Concluding Reflections: Stepping Back and Slowing Down?....................................... References ..................................................................................................................................

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Abstract We typically think of the issue of foreign fighters within today’s predominant framing of counterterrorism efforts. This chapter explores the scope of a broader range of foreign fighting. It takes into consideration alternative themes and framings in international law, which have shaped the debates in different times and settings, and which continue to resonate today. Specifically, it compares the framing of self-determination and the notion of commodification of private violence, which led to the legal categorisation of ‘mercenary’ in the postcolonial period, with the power of the counterterrorism/security framing which led to the legal categorisation of ‘foreign terrorist fighter’ in 2014. The chapter highlights that although the effect of different framings relied upon in different political settings appears largely determinative for how various phenomena of foreign fighting have been analysed M. Lloydd (&) Melbourne Law School, Laureate Program in International Law, University of Melbourne, Melbourne, Australia e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 C. Paulussen and M. Scheinin (eds.), Human Dignity and Human Security in Times of Terrorism, https://doi.org/10.1007/978-94-6265-355-9_10

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and treated institutionally, the legal technique of defining individuals of a certain status—as opposed strictly to conduct—presents a continuity and resonance between the examples of mercenaries and foreign terrorist fighters. The author argues that to move beyond the narrower, rushed focus of the predominant security/ counterterrorism framing to think about the scope of possible prevention duties on States regarding foreign fighting more generally is therefore not only a matter of paying attention to framing. Rather, the intense focus on the individual might have certain disabling effects on our understanding of broader aspects surrounding foreign fighting, individual solidarity with armed causes, and international law relevant to the protection of human dignity. The chapter queries whether one remedy may therefore be to return our gaze more squarely to States, and to more fundamental, if difficult, principles of State relations and the non-toleration of harm.










Keywords International law Foreign fighters Counterterrorism Mercenaries State responsibility Legal definition




10.1




Introduction: An Intense Focus on Priority Policy Concerns and Persons

In 1978, in the American Journal of International Law, the scholar and former acting Solicitor-General of Australia, Henry Burmester, wrote the following about mercenaries: Any attempt to discuss the issues involved immediately confronts the problem of how to define a mercenary. A precise definition is of vital importance if such persons are to be deprived of certain legal rights and protections and if states are to be made subject to obligations with respect to them. It is difficult, however, to give a short definition of a mercenary.1

Inspired by this statement, and the work of scholars on the operation of framing in the law as a jurisdictional technique, this chapter examines how such difficulties surrounding the scope of State duties to prevent foreign fighting were not unique to the question of mercenaries or only of historical interest, but continue to resonate in relation to the intense focus on foreign fighting today.2 In particular, I enquire into the technique of trying to establish precise definitions of especially ‘unacceptable’ categories of individuals involved in foreign fighting.3

1

Burmester 1978, p 37. E.g. Council of the European Union Presidency 2016: “[t]he lack of common criteria defining foreign fighters in the Member States is a concern […]”. 3 ‘Foreign fighters’ is sometimes used as shorthand to mean foreign terrorist fighters, and sometimes to denote foreign volunteer fighters in armed groups more generally. In this chapter, I use the term in this latter sense. I include mercenaries within this term as non-conscripted (i.e. voluntary even if remunerated) foreigners participating in armed conflict. While usually restricted 2

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This enquiry is relevant not only because the defined individuals may be deprived of certain rights and protections, and States made subject to obligations to regulate these persons, as Burmester stated. It also recognises that the intense focus on the latest transformation of foreign volunteer fighting and the Middle East region —that is, on ‘foreign terrorist fighters’, a category defined in United Nations (UN) Security Council Resolution 2178 in September 20144—overshadows to some extent the fact that not only historically but also today, other types or ‘persuasions’ of volunteer fighters have become involved in foreign conflicts.5 In earlier moments, such other types of foreign participants appearing in armed conflict, such as volunteer fighters during the Spanish Civil War or mercenaries in conflicts of the decolonisation period, were framed in their own ways.6 Regarding the topic of this book, stepping back to consider a broader range of foreign fighting brings into view the connection of these questions with notions of human security and human dignity. However, this is from the perspective of a different actor than we typically consider—the fighters themselves. Amongst other push and pull factors leading to their participation in conflict, foreign fighters often express solidarity with a particular armed cause and sometimes an intention to help a cause of self-determination or protect human rights, or even to fight and protect against terrorism.7 That is, some intend to support human dignity by protecting against ‘degradation’ of the autonomy of human beings,8 despite their participation in armed violence. At times, foreign fighters express a need to act based on a perception that their home State, or the international community at large, is not doing enough to protect at-risk populations.9 Thus, their actions represent a departure from a more traditional national security model in which protection and ensuring rights are strictly sovereign responsibilities. In our contemporary setting, the question of such motivations becomes particularly pertinent regarding foreign individuals who join groups to fight against an abusive state; alternatively, to fight to volunteering with non-state armed groups/insurgencies, note that some definitions of ‘foreign fighting’ include service with any party to armed conflict, that is, also on a government side. See, e.g., de Guttry et al. 2016, p 2. 4 UN Security Council (2014) Resolution 2178 (2014), UN Doc. S/RES/2178, preambular para 8: “individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training, including in connection with armed conflict […]”. 5 The presence of foreign fighters—defined as “non-citizens of conflict states who join insurgencies during civil conflicts” (i.e. ‘transnational insurgencies’)—has been identified in 93 of a dataset of 353 civil wars 1815–2015 (26%). See Malet 2017, p 224. See also, generally, Arielli 2018. 6 See also Thomson 1994, p 143, although considering earlier periods of non-State violence: “there was no assault per se on the practice of nonstate violence. Each form was delegitimated and eliminated in a different way” (italics in original). 7 Conduit and Rich 2016, p 431. See also, regarding the historic fight for liberty against tyranny, Arielli 2018, pp 40 ff. 8 Petersen 2015, para 28. 9 Arielli 2018, p 96.

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against another armed group rather than against a state, such as those joining the Syrian Kurdish YPG (People’s Protection Units)10 or Iraqi Christian militias battling the Islamic State group11 which has been accused not only of war crimes and crimes against humanity, but also genocide.12 If we are considering the scope of State prevention duties, today’s predominant counterterrorism framing and foreign terrorist fighter categorisation therefore reach certain limits or risk over-extension. To think about the framing of foreign fighting therefore requires us to step back to reflect upon the perceived harms beyond terrorism that other categories of foreign fighting might pose, and that international law may be intending (or not) to regulate. This is not to dismiss the significant complexities and lack of settled agreement surrounding the definition of international terrorism and therefore also of who falls within the Security Council’s definition of ‘foreign terrorist fighter’. Indeed, to some extent, this begs the very question. However, I put these issues aside for the purpose of this analysis. The aspects mentioned here illustrate the very tensions we perceive surrounding different phenomena of foreign fighting, reflected in our questions about the possible scope of prevention duties in the law, and therefore also about the difficulties faced in categorising certain individuals as particularly unacceptable through a precise definition, as pointed out in the Burmester quote at the start of this chapter. In other words, considering broader categories of foreign fighters raises important questions regarding prevention, protection and security that a counterterrorism framing cannot satisfactorily answer: who has a right to resort to force to protect human dignity or provide security, and to participate in armed conflict? What cause or group can be supported in solidarity, and by whom? Can certain types of foreign fighters be considered ‘acceptable’ in their intention to protect human rights compared with a designated ‘unacceptable’ category? If regulation is required, how are we to define the problematic cases and the scope of the duty? This chapter proceeds by first exploring in Sect. 10.2 the capabilities and limits of framing in law and policy. Section 10.3 then examines two alternative framings of foreign fighting which have led to international legal regulation: firstly, the right of peoples to self-determination, as well as the commodification of armed violence, leading to the legal categorisation of mercenaries in the 1970s–80s; secondly, the power and operation of the predominant counterterrorism framing leading to the 2014 definition of ‘foreign terrorist fighter’ by the Security Council. Section 10.4 then contemplates the legal technique of categorising individuals in terms of status

10

Kurdish: Yekîneyên Parastina Gel. See, e.g., Fritz and Young 2017; Koch 2019; Tuck et al. 2016; Patin 2015. 12 UN General Assembly (2016) Human Rights Council: Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/32/CR.P.2. 11

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within the relevant framings. Section 10.5 concludes with reflections on slowing down and stepping back to think critically about underlying fundamental principles applying to States surrounding violence and its control.

10.2

The Capabilities and Limits of Framing

Something important is at stake in deciding to talk about a question in one way or another. How issues are described or discussed, and their management in the real world, are clearly closely linked.13 In this sense, scholarship offered by Kerry Rittich explains that how we identify something as a policy or regulatory problem —that is, our framing, focus or the way we see the issues involved—is connected not only to our worldview but also to other issues we may be involved in and thinking about. These choices not only reflect different conceptions of law, they embed and prioritise different normative and political concerns and aspirations as well.14 Seen in this way, a chosen frame allows or enables certain things to be achieved, discussed and understood. A chosen frame also faces limits in what it cannot do, does not discuss or does not help us understand. It will describe a matter in a particular way, operating as a driver of thought, or motif, shaping how we envision the relevant legal issues. It will hold some aspects more centrally and significantly, and consider others to be more peripheral.15 In one sense, the technique of framing or categorisation is standard practice; part of the craft of legal analysis.16 Legal categories “name, order and locate lawful relations; they determine the points of institutional limit; and they offer an account of the substance of law”.17 A legal characterisation or framing can therefore be necessary, important and useful. However, while the choices, priorities and developments can be explained, they are not necessarily neutral nor inevitable.18 The viewpoint or “enframing” chosen “organize[s] the world and our political responses to it.”19 It therefore upholds or strengthens a certain system or set of

13

Koskenniemi 2007, pp 5–8; Koskenniemi 2011, pp 92, 101–102, 140–142. Rittich 2018. 15 Koskenniemi 2007, pp 5–6. Rittich 2016, p 837: “some things be held in view and in focus while others are eliminated from consideration”. 16 Dorsett and McVeigh 2012, p 71: “the central task of the office of the jurist”. 17 Ibid., p 75. 18 Bianchi 2011, pp 4, 16: “the law is not a set of neutral rules elaborated independently of context and historical background” and “[this] process of characterization, as any other interpretive exercise or practice, is hardly ever a neutral one”. Fisher 2014, p 69: “not predetermined”. Anghie 2004, p 274: “recourse to the language of ‘war’ to characterize the [9/11] attacks and the response to them, was not, however, self-evident or inevitable”. Jackson 2005, pp 152, 181. 19 Eslava 2014, pp 3–4. Discussing Eslava’s work regarding enframing in international law, Bianchi 2016, pp 224–226. See also Anghie 2004, p 306: “different ways of understanding and characterizing [the events of 9/11] had a profound impact on how to address them”. 14

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structures, allowing or even creating a certain way of thinking and understanding. This works to delineate the relevant legal questions and focus our appreciation of the stakes of the debate, while perhaps obscuring other things going on beneath it. As such, we could reflect critically on the framing itself;20 on how it came into use/being, what operations of power produced it;21 its underlying politics and prioritisations; its capabilities and limits. It becomes important to consider how a particular matter is described, the reasons behind choosing or emphasising that approach in the first place, its genealogical past and the institutional impact on its future, and the effect of various categorisations and definitions adopted within it. Thinking about foreign fighting primarily as a counterterrorism issue, or approaching it possibly as an issue of human rights will lead to different directions of legal focus, and conceptual and institutional approach. Similarly: treating it as a question of jus in bello, jus ad bellum, allegiance, State responsibility and non-toleration of harm, the non-State use of force, the commodification of armed force, the protection of self-determination; as an example of individual criminal activity or a situation occurring within certain global structures; as political or legal; as limited in time and place, or ongoing and general; as local, regional or global. Albeit those different paths might intersect at various interesting points along the way. As Andrea Bianchi suggests, we are invited “to think not exclusively within the law, but also about the law”,22 that is for my purposes, to think about how certain framings operate in the law and how the law operates in certain framings. For example, is our policy concern about foreign fighting a matter for political bodies, i.e. only in situations which represent a threat to international peace and security, or do less serious cases nevertheless raise fundamental issues regarding friendly relations between States or human rights? Viewing an issue through an alternative frame is not necessarily to reject the original or predominant frame, nor to provide a superior frame which can answer all our questions about the scope of prevention of foreign fighting more broadly. Clearly, any re-framing of an issue imports its own, different or preferred prism, open to the same critique and need for careful attention. Yet, one thing thinking through different framings of an issue might offer is that it can bring back in a factor of time and movement of ideas, including a consideration of the ‘life’ of individual categories once given legal form and institutional governance within a chosen legal framework. In this way, although history will always be viewed from a particular modern standpoint, considering a wider time period and broader category of foreign volunteer fighters might allow not only an observation of historical tensions about foreign volunteers in particular settings, but eventually also a suggestion of how

20 21 22

See, e.g., regarding critical reflection on counterterrorism, Jarvis and Lister 2014; Fisher 2014. Butler 2009, p 1. Bianchi 2011, p 17 (emphasis in original; reference omitted).

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meanings behind those tensions in the law have interplayed or been transmitted across time and setting.23 Through considering the effect of different framings on an issue, therefore, we can start to pay attention to both change and stasis in how the law and legal debate has responded to foreign fighting in various settings.24 This is too large an ambition for this chapter. Therefore, I discuss here only the selected framings of the right of self-determination, as well as pecuniary motivations for private individual intervention, leading to the legal categorisation of mercenaries following the period of decolonisation conflicts in the 1960s–70s. I then compare this with the predominant counterterrorism framing of foreign fighting today.

10.3

Foreign Fighting and Categorisation in Alternative Framings

Different phenomena of foreign fighting appearing in different political settings have been treated distinctly depending on the predominant framing of the period as well as their specific features. Rather than considering ‘foreign fighting’ as a unique whole—indeed, the broader term ‘foreign fighter’ is not defined or specifically regulated in any international legal instrument—or relying on pre-existing general norms, we more typically think of specific categories of foreign fighters and work with the existing legal definitions. The framing of the policy issue has significant impact on how the stakes of the legal issues involved are perceived: the Spanish Civil War raised questions of neutrality and non-intervention, for example, while concern about protecting the right of self-determination arose as mercenaries appeared in decolonisation conflicts, and later instances of foreign fighting were coloured by Cold War politics. Thus, the concerns posed by volunteers in the International Brigades in Spain are perceived to be different from that of mercenaries, which are different from that of mujahidin volunteers in Afghanistan, or foreign volunteers in the armed conflicts in the Balkans, which are different from that of today’s foreign terrorist fighters and so on. The international legal categorisations of ‘mercenaries’ and ‘foreign terrorist fighters’ arose following sufficient concern about the appearance of a transformed phenomenon of foreign fighting in a particular political setting. This led to a demand for some kind of international regulation of these ‘unacceptable’ individuals and conduct, and to efforts to craft precise definitions of a category of fighter as

23

Orford 2013, p 175. Discussing reforms in law and development, Rittich 2006, p 220, makes the useful point that “attention to both the change and the stasis is critical to understanding the direction of the social agenda and the prospects for transformation” (emphasis added). 24

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individuals of particular concern, or “outlaws”,25 so that they could be prevented and penalised by States. The legal form created can “[mark] out a distinct jurisdictional authority”, that is of “how to do things with law” and “[opening] a domain of thought”.26 In the following subsections, I consider how such ‘domains of thought’ were opened through these two key alternative framings of foreign fighting in different historical settings.

10.3.1 Mercenaries, Self-determination and the Commodification of Private Force During the period of decolonisation, particularly in African contexts, mercenaries reappeared in conflicts in their modern transformation. They were relied upon to aid the fight against national liberation movements, to destabilise newly independent authorities or to support secession attempts following independence. UN General Assembly Resolutions during this ‘mercenary period’ focused on protection of the right of self-determination as a key concern, as well as the holding together of the political integrity of new States, reflecting States’ fears of possible secessionist actions by minorities or regions in their own territories.27 Such statements framing the issue as the protection of self-determination continued in the following decades, although they also took on a greater focus on the general respect of human rights over time.28 The General Assembly also started focusing on the individual fighters themselves, describing mercenaries in a 1968 Resolution as “outlaws” whose actions were to be criminalised, albeit in situations in which they were acting

25

See Sect. 10.3.1. Dorsett and McVeigh 2012, pp 3–4. 27 E.g. UN General Assembly (1968) Resolution: Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, UN Doc. 2465 (XXIII); Green 1979, p 224. See also Kinsey 2008; Taulbee 1985, p 347. 28 UN General Assembly (1995) Mercenaries as a means to violate human rights and to impede the exercise of the right of peoples to self-determination, UN Doc. A/RES/50/138, para 3: 26

[r]ecruitment, assembly, financing, training and transit of mercenaries for the planning of activities designed to destabilize or overthrow the Government of any State or threaten the territorial integrity and political unity of sovereign States, or to promote secession or fight the national liberation movements struggling against colonial or other forms of alien domination or occupation. Compare with UN General Assembly (2005) Human Rights Council: Report of the Special Rapporteur on the Use of Mercenaries UN Doc. A/60/263, para 30: “stresses that the new definition must demonstrate that mercenarism is a human rights issue, with implications for violations of, inter alia, the right to life and the integrity of the person and to national security, as well as for the right to self-determination”. See also discussion in Hagmann and Kartas 2006, pp 287–288; Green 1979, pp 224–228.

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against movements for national liberation.29 Several Western European States recorded reservations about this paragraph of the 1968 Resolution.30 Yet, the image of the white mercenary was a powerful one, a “symbol of racism and neo-colonialism within the Afro-Asian bloc”.31 This gave rise to strong condemnation of mercenarism by the Organisation of African Unity, also linking the harm to Europe’s toleration of these situations.32 Mercenaries gained a reputation as the lowest of the low33—in 1976 the death penalty was carried out against a number of western mercenaries captured and tried in Angola34—even if the distinction on the ground between good and bad causes, good and bad personal motivations, and levels of State knowledge, toleration and involvement proved more complex. The General Assembly’s wording focusing on the mercenaries themselves as individuals was repeated in resolutions between 1968 and 1973, i.e. shortly before the 1974–77 Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (1974–77 Diplomatic Conference) at which the 1977 First Additional Protocol to the Geneva Conventions (AP I) was adopted, and in which ‘mercenary’ was defined in international law for the first time.35 As a humanitarian treaty, AP I did not criminalise mercenarism but simply removed the requirement for States to give mercenaries prisoner of war status upon capture.36 The attempt at criminalisation on the international level appeared two decades later, with the adoption of the UN Convention Against the Use of Mercenaries in 1989 (UN Mercenary Convention).37 This treaty replicated almost identically the definition of mercenary used in AP I, despite the fact that the narrow definition settled upon during the AP I negotiations had been criticised as unworkable in practice, and the key concern the regulation of the category was

29

UN General Assembly (1968) Resolution: Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, UN Doc. 2465 (XXIII), para 8: “[d]eclares that the practice of using mercenaries against movements for national liberation and independence is punishable as a criminal act and that the mercenaries themselves are outlaws […]” (italics in original); UN Commission on Human Rights (2005) Resolution 2005/2, UN Doc. E/CN.4/RES/ 2005/2, para 4. 30 Burmester 1978, p 54. 31 Taulbee 1985, p 342. 32 Organisation of African Unity 1971, preambular para 3. The Organisation of African Unity was established in 1963 and was replaced in 2002 by the African Union. 33 See, e.g., Green 1979, p 224. 34 Regarding the Luanda trial, see Burchett and Roebuck 1977. 35 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (AP I), Article 47(2). 36 Ibid., Article 47(1). 37 International Convention against the Recruitment, Use, Financing and Training of Mercenaries, opened for signature 4 December 1989, 2163 UNTS 75 (entered into force 20 October 2001) (UN Mercenary Convention).

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trying to remedy, “misdiagnosed”.38 The criminalisation of mercenarism in this instrument was therefore based primarily on a description of ‘mercenary’ as a specific category of fighter, i.e. although the two aspects are clearly linked, on individual status rather than conduct.39 It is not that States or groups employing or tolerating mercenaries were ignored in these instruments.40 However, despite the inclusion of ‘foreignness’ as one criterion in the definition of ‘mercenary’41—which immediately raises issues of State relations and non-toleration of harm duties—and the foundational concern of the General Assembly and Security Council in protecting the right of self-determination during the decolonisation period, the responsibility of home States not to allow recruitment or organisation of mercenaries on their territory, like foreign terrorist fighting today, was not the priority focus, nor the aspect of the story that captured the imagination. Over time, there was “a significant move away from the idea of collective liability of the traditional law toward individual criminal liability”.42 This remained true even as perceptions evolved with changing contexts moving away from wars of national liberation and towards a more general concern about the threat mercenaries might pose for the protection of human rights, as mentioned above. The emphasis and the captured imagination were firmly placed on the individual,43 and therefore also on application/monitoring of the law by those with relevant expertise regarding the specialised legal definition. Dino Kritsiotis describes the General Assembly response as a “telling contradiction in policy terms” since the threat or concern that it was initially trying to respond to was the cause that the mercenary was supporting—the attack on national liberation and breach of non-interference—rather than the presence per se of a mercenary in an armed conflict.44 If the key underlying concern was to prevent behaviour impinging on the principle of non-intervention or right of self-determination, then it can be argued that the aim should be to prevent and penalise such behaviour, regardless of the identity of the perpetrator.45 This would 38 Hampson 1991, p 6. See also Sandoz et al. 1987, para 1809; Kritsiotis 1998, p 15; Percy 2007a, p 179. 39 See also Percy 2007a, pp 178–179. 40 See, e.g., UN Mercenary Convention, above n 37, Articles 2, 5–6. 41 “Is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict”. Ibid., Article 1(c). See also Article 2(c). 42 Kinsey 2008, p 3. 43 Hagmann and Kartas 2006, p 287; Percy 2007a, p 190. 44 Kritsiotis 1998, p 14: “[i]t was the mercenary’s fighting cause that seemed to matter to the United Nations, not the mercenary as a fighter.” See, likewise, Liu and Kinsey 2018, pp 98–99, 104. For an alternative approach arguing that the anti-mercenary norm itself was as important as that of national liberation, see Percy 2007a, pp 180–183, 188. 45 Burmester 1978, p 56: “[i]f states consider foreign participation in national liberation struggles against colonial and racist regimes to be of such gravity as to require that certain protections not be accorded to mercenaries, it seems only logical […] that such protections should not be accorded to any foreign participants” (emphasis in original). Likewise Mourning 1981, pp 594–595, questioning the reference to mercenaries in the General Assembly’s definition of aggression in Resolution 3314, since aggression occurs “regardless of the nationality of the troops involved”.

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suggest that the phenomenon of fighters which challenged self-determination, and/ or the omission of States in diligently preventing such recruitment or departures, were the problematic or ‘unacceptable’ cases, and that other types of foreign fighting might be acceptable, or at least less unacceptable. The resulting institutionalisation of the monitoring of the use of mercenaries reflected both aspects—the link with self-determination and the focus on mercenaries as a category of individual. Firstly, in line with the national liberation framing during the decolonisation period, discussion about the use of mercenaries on the agenda of the General Assembly in the 1960s was included under the work of the Special Committee on Decolonization,46 and therefore under the Fourth Committee (Special Political and Decolonization). The UN Special Rapporteur and the successor Working Group on the Use of Mercenaries was established as a Special Procedure of the UN Commission on Human Rights (now UN Human Rights Council) in 1987.47 Still today, the reports of the Working Group on Mercenaries are tabled at the General Assembly under the agenda item ‘right of peoples to self-determination’ although now in the Third Committee (Social, Humanitarian and Cultural). Secondly, the approach taken in the establishment of the Special Procedure was to mandate the monitoring of a single type of defined actor and covering all possible impacts on human rights, with a special focus on self-determination. This is somewhat atypical as most other special procedures of the Human Rights Council are thematic, i.e. focusing on a particular human rights violation (enforced disappearance, arbitrary detention, torture etc.), or geographical in scope.48 To some extent, the mercenary mandate was made more flexible by also requiring monitoring of “mercenary-related activities in all their forms”, as well as identifying emerging issues, manifestations and trends.49 However, as illustrated below in Sect. 10.3.2, there has been some pushback from States regarding the application of the Working Group’s mandate to other proposed ‘mercenary-related activities’, namely, private military and security companies (PMSCs) and foreign terrorist fighters. In terms of definition, the initial key concern had been the use of mercenaries in hindering a right of self-determination, which would have also linked the question more directly to State responsibilities of prevention. However, once legally defined as a category of person, the main framing or focus of the concern—the key feature distinguishing mercenaries from other foreign fighters—became the primary financial motivation behind their fighting, that is, the commodification of their

46

The Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence of Colonial Countries and Peoples (also known as C-24). 47 UN Commission on Human Rights (1987) Resolution 1987/16, UN Doc. E/CN.4/RES/1987/16. 48 See, e.g., Parker and Weissbrodt 1991, p 593; Gómez del Prado 2009, p 429. 49 UN Commission on Human Rights (1987) Resolution 1987/16, UN Doc. E/CN.4/RES/1987/16.

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services.50 The primary pecuniary motivation meant that military skills were transferable and suggested that the fighters were not necessarily loyal to their home States.51 Just as the intense focus today on foreign terrorist fighters tends to obscure thinking about related issues surrounding other kinds of foreign fighting, the focus on mercenaries led to a comparable binary in its day. The pecuniary motivation criterion was compared, even up to the 1990s by the UN Special Rapporteur on Mercenaries, with “noble international combatants for peace” who fought for ideological reasons and did not “profit from war without any concern about the justice of the cause for which they are fighting”.52 Georg Schwarzenberger wrote in 1971: “[a]s distinct from terrorists and guerrilleros who are favoured ‘in-groups’ of ‘progressive’ thinking, mercenaries are definitely out, especially in quarters susceptible to pressure from the ‘third world’.”53 The underlying notion of the approach taken in the UN Mercenary Convention is that it was mercenarism itself that was considered morally objectionable and not only the use of mercenaries in violation of other fundamental rules governing State relations.54 This condemnation of mercenarism and the pecuniary/ideological motivation distinction have not played out sustainably in practice. Firstly, over time, the condemnation of the commercialisation of the private use of force has been somewhat weakened or challenged with the rise of the reliance on PMSCs in conflict situations (albeit offensive combat services rapidly became a taboo, that is, the delegation of inherent State functions, however inexact their scope may be).55 Moreover, views about ideological rather than financial motivations based within the framing and policy concerns of the era proved less useful as a distinguishing feature once terrorism—that is, the methods of violence used—became the key policy concern. Secondly, it is important to clarify that the prohibition of mercenarism only applies to those States party to the UN Convention on the Use of Mercenaries or a regional equivalent.56 International uptake of an approach that would prohibit mercenaries in all situations has been slow. Despite popular understanding about mercenarism, the outright criminalisation attempted by the UN

50 AP I, above n 35, Article 47(2)(c): “is motivated to take part in the hostilities essentially by the desire for private gain”. See also discussion in Percy 2007a, p 177. 51 Sapone 1999, p 6. 52 UN General Assembly (1992) Human Rights Council: Report of the Special Rapporteur on the Use of Mercenaries, UN Doc. A/47/412, paras 105–106. 53 Schwarzenberger 1971, p 280 (emphasis added). 54 UN Mercenary Convention, above n 37, Articles 1–3. 55 Percy 2007a, p 225; OHCHR Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination 2015, p 2. 56 Organisation of African Unity Convention for the Elimination of Mercenarism in Africa, opened for signature 3 July 1977, 1490 UNTS 96 (entered into force 22 April 1985). Note that the provisions/definition in the UN and Organisation of African Unity mercenary conventions are slightly different.

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Mercenary Convention has received only very weak State support and cannot be considered to represent customary international law.57 Compared with the prevention of mercenarism, the recent requirement that States ensure legislation to prevent the movement of foreign terrorist fighters, being set out in a Security Council Resolution under Chapter VII of the UN Charter,58 binds all UN Member States, as discussed in the following section.

10.3.2 Foreign Terrorist Fighters and the Power of the Contemporary Counterterrorism Framing Although it is often acknowledged that foreign fighting “is not a new phenomenon”,59 it was its perceived transformation—the significant numbers of fighters joining listed terrorist groups since approximately 2013, the diversity of their countries of origin, the international dimension of their activities and travel patterns, and particularly the threat they may pose upon their return home—that was considered to have created an “acute” situation and “growing threat to international security”.60 This led to the Security Council’s categorisation of these individuals as “foreign terrorist fighters” and, amongst other things, its requirement that States ensure appropriate legislation to prevent their movement.61 This technique of attempting to define the specific category of person of concern replicated the example of the definition of mercenary, despite the criticisms subsequently levelled at that definition and approach. Compared with the predominant framing of mercenaries as posing a threat to the right of peoples to self-determination, foreign

57

The UN Mercenary Convention did not come into force until 2011, 12 years after its adoption, once 22 States had joined, as per Article 19(1). As of March 2018, there were only 35 Parties and 17 Signatories. See also Liu and Kinsey 2018; Kinsey 2008, pp 2, 9; Hagmann and Kartas 2006, p 287. See Fallah 2007, p 610: “mercenarism (or perhaps, more broadly, corporate combat) is at least discouraged under international law”. On the General Assembly resolutions regarding mercenarism representing at most de lege ferenda, see Schwarzenberger 1971, p 280. 58 Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945). 59 E.g. Krähenmann 2014, p 3; UN General Assembly (2014) Human Rights Council: Report of the United Nations High Commissioner for Human Rights on the protection of human rights and fundamental freedoms while countering terrorism, UN Doc. A/HRC/28/28, para 31. 60 UN General Assembly (2016) Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism: Promotion and protection of human rights and fundamental freedoms while countering terrorism, UN Doc. A/71/384, para 42; UN Security Council (2015) Statement by the President of the Security Council, UN Doc. S/PRST/ 2015/11; UN Security Council (2014) Resolution 2178 (2014), UN Doc. S/RES/2178, preambular para 10; UN Security Council (2017) Resolution 2396 (2017), UN Doc. S/RES/2396, preambular para 10. On ‘transformation’, see, e.g., de Kerchove 2016, pp v, vi; de Guttry et al. 2016, p 3. 61 UN Security Council (2014) Resolution 2178 (2014), UN Doc. S/RES/2178, para 6. For the definition of ‘foreign terrorist fighter’, see above n 4.

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terrorist fighters are classed as a threat to international peace and security requiring concerted counterterrorism efforts. Institutionally, the monitoring of State efforts regarding this category is delegated to the Security Council’s Counter-Terrorism Committee and Executive Directorate.62 As with any predominant legal focus, the framing and the accompanying institutional mandates established within a priority policy concern determine to a large extent the most relevant legal questions and policy goals with which international lawyers work, as well as the specialised technical expertise required. Relevant legal questions might ask, for example, whether a domestic prohibition of foreign fighting should be based on terrorism laws,63 or might focus on the lack of clarity of the definition in Resolution 2178: for example, are you still ‘foreign’ if you are a dual national of the State suffering armed conflict?64 Can you be a ‘fighter’ if you join a terrorist organisation not involved in armed conflict?65 Broader but related questions consider how anti-terrorism laws interact with other relevant bodies of law such as international human rights or humanitarian law. For example, how can the full respect of human rights be ensured in counterterrorism efforts? How might the ‘preventive turn’ of criminal law targeting foreign fighters be disregarding the rule of law and thus the human dignity of suspected aspiring foreign fighters?66 Such questions, even those primarily concerned with respect for human rights, often seek an improved, and more compliant, fair, transparent or efficient achievement of counterterrorism policy goals.67 Moreover, within these debates, especially as part of institutional responsibilities where relevant, security— chiefly security of the home State—remains the key basis for policy and legal recommendations. Related to this, thinking about the operation of a predominant framing can be constructive in the particular case of foreign terrorist fighting precisely because of the documented risks within counterterrorism approaches. By this I mean not only 62

UN Security Council (2001) Resolution 1373 (2001), UN Doc. S/RES/1373; UN Security Council (2004) Resolution 1535 (2004), UN Doc. S/RES/1535; UN Security Council (2017) Resolution 2396 (2017), UN Doc. S/RES/2396. 63 See, e.g., comments regarding the domestic law of the United Kingdom by David Anderson QC, quoted in Krähenmann 2016, pp 244–245. 64 Krähenmann 2016, pp 235–236. 65 Ibid., pp 240–241. 66 See Chap. 11 ‘Criminalising Foreign Fighter Travel in Order to Prevent Terrorism in Europe: An Illegitimate Assault on Human Dignity?’ 67 See, e.g., the description of the panel ‘Foreign (Terrorist) Fighters: Prospects and Challenges’ at American Society of International Law (2018) ASIL 114th Annual Meeting. https://www.asil. org/annualmeeting. Accessed 15 July 2019: This panel will focus on the foreign (terrorist) fighters regime and its interaction with other legal regimes from the perspective of state practice, exploring resulting challenges to the coherence of other applicable bodies of law and the impact thereof on the successful achievement of the policy goals underlying the ‘foreign terrorist fighter’ regime.

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regarding the label of terrorism being relied upon to support broad government actions against political opposition,68 but more generally, the way counterterrorism efforts are embedded into institutions and regularised, allowing certain interventions to become normalised or untouchable in the name of security, which may otherwise be thought to violate or at least test the boundaries of international law and the traditional UN system.69 For example, security concerns have led to public representatives in certain countries expressing the view that all foreign terrorist fighters should be killed on the battlefield so that they do not return home.70 It is similarly the power underlying the counterterrorism/security framing that has arguably allowed the Security Council to adopt a greater role in legislating for States, including on the matter of criminalising foreign terrorist fighters.71 This power behind the security and counterterrorism framing can continue to be pervasive and powerful even when we try to be mindful of it or step away from its priority impulses. For example, in its 2015 and 2016 reports, the UN Working Group on Mercenaries explored possible linkages between mercenaries and foreign terrorist fighters. It concluded that “[i]n light of the range of motivations, payments and activities of foreign fighters, the tentative assertion may thus be made that foreign fighters are a contemporary form of mercenarism or mercenary-related activities.”72 This meant foreign terrorist fighters were being claimed within the Working Group’s mandate, which includes monitoring of mercenary-related 68 de Guttry et al. 2016, p 3. Specifically regarding foreign terrorist fighters, see UN General Assembly (2015) Report of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination: Use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, UN Doc. A/70/330, para 56; UN General Assembly (2014) Human Rights Council: Report of the United Nations High Commissioner for Human Rights on the protection of human rights and fundamental freedoms while countering terrorism, UN Doc. A/HRC/28/28, paras 46 ff; Capone 2016; Scheinin 2014. 69 See, e.g., UN General Assembly (2018) Human Rights Council: Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, UN Doc. A/HRC/37/52; Jackson 2005, pp 1–3, 11, 90–101, 182–183; Koskenniemi 2005, p 606; Anghie 2004, pp 273–309. Anghie’s discussion includes how the UN is invited or incorporated into the project of the war against terrorism, at 302–303. 70 Although such comments were widely condemned as not respecting international humanitarian law. See, e.g., BBC (2017) Minister says IS fighters ‘must be killed’. http://www.radionz.co.nz/ news/world/342213/minister-says-is-fighters-must-be-killed. Accessed 1 March 2018; Chappell B (2017) Red Cross Urges Fair and Lawful Treatment of Captured ISIS Fighters. https://www.npr. org/sections/thetwo-way/2017/10/26/560211819/red-cross-urges-fair-and-lawful-treatment-ofcaptured-isis-fighters. Accessed 1 March 2018. 71 Generally, Martínez 2008; Heupel 2014, p 136. Specifically regarding foreign terrorist fighters, see Scheinin 2014; de Guttry 2016, p 272; van Ginkel 2014. 72 UN General Assembly (2015) Report of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination: Use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, UN Doc. A/70/330, para 88; UN General Assembly (2016) Report of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination: Use of

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activities in all their forms, and identifying emerging issues, manifestations and trends.73 This attention to foreign terrorist fighters could be seen as the Special Procedure simply mirroring Western interest in the topic of foreign terrorist fighting. However, its reports are also doing something more than that. They use a different frame or prism to view the issue—unsurprisingly given the Group’s mandate, that of mercenarism. That is, they bring back in rules related to mercenarism as another way to view the ‘transformed’ policy issue. On a practical level, the Working Group experts acknowledged that the differences in financial and ideological motivations between mercenaries and foreign terrorist fighters lead to different patterns of participation in armed conflict.74 However, the Group also highlighted commonalities between the two phenomena—to which I have much sympathy—and the scope for “new thinking on accountability for violations by foreign fighters”.75 Nevertheless, the Working Group’s approach was regularly protested by a number of States, particularly by the European Union. Responses urged that foreign terrorist fighters and mercenaries be treated as very different phenomena, posing different security concerns and requiring different responses. This meant also that the Working Group’s mandate should not be ‘extended’ in this way.76 In effect, such responses seek to bring the foreign fighting debate back to the narrower counterterrorism framing, and its related institutional treatment and required expertise. It emphasises the special nature of the transformed phenomenon of foreign terrorist fighting compared with any earlier manifestations of foreign fighting. Indeed, the new definition of ‘foreign terrorist fighter’ provided by the Security Council supports an approach in which various categories of foreign fighters, as individuals fitting a particular status, are distinguished, rather than considering foreign fighting as a general category, as is discussed further below in Sect. 10.4. We work with the legal definitions we have. A common legal question, for example, asks whether foreign terrorist fighters, or previously personnel of PMSCs, fit within the legal definition of ‘mercenary’. This is usually answered in the negative because of the mercenary definition’s strict set of cumulative criteria. In this sense, the intense focus on a new transformation can obscure the links and commonalities between different types of fighter mobilisations. Non-priority other mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, UN Doc. A/71/318, Summary, para 77. 73 UN Commission on Human Rights (2005) Resolution 2005/2, UN Doc. E/CN.4/RES/2005/2, para 12. 74 UN General Assembly (2016) Report of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination: Use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, UN Doc. A/71/318, paras 62–64. 75 Ibid., para 2. 76 UN General Assembly (2016) Human Rights Council: Comments of the Government of Belgium to the Report of the Working Group, UN Doc. A/HRC/33/43/Add.5, paras 6, 9, 12; UN General Assembly (2016) Human Rights Council: Comments of the EU Institutions to the Report of the Working Group, UN Doc. A/HRC/33/43/Add.7, para 3(b).

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categories of foreign fighting are left out from the definitions. Institutional mandates also establish which authority or experts are perceived as qualified to determine the individuals falling within the defined category of concern—in the case of foreign terrorist fighters, international security experts rather than special procedures of the Human Rights Council. As discussed above regarding mercenaries, it is not that States and international legal duties of prevention are ignored in legal discussion surrounding foreign terrorist fighters. Sandra Krähenmann’s scholarship, in particular, has noted and explained applicable rules related to State prevention of harm to other States in line with the principle of non-intervention.77 These rules underlie the more specific approaches seeking to prevent foreign terrorist fighters and mercenaries. Clearly, the adoption of legislative provisions defining and criminalising categories of fighters forms one part of States’ compliance with prevention duties.78 Yet the underlying rules tend to be discussed in precisely that way, that is, by way of underlying background information, rather than being considered of primary relevance to the current transformation of the policy issue and its treatment. The primary attention remains focused on the threatening individuals of interest. In comparison, discussions of State prevention duties are often reserved for concerns related to the possibilities of intervention against terrorist or hostile groups within ‘unwilling or unable’ States, but far less concerning individual foreign fighters.79 Even where more general duties regarding the non-toleration of harm to other States are considered, the power of the counterterrorism framing seems to operate. There is a clearer duty of prevention on States regarding terrorist activities than some other exceptional scenarios of foreign fighting.80 Since we tend to think first and foremost of foreign terrorist fighters when we think of foreign fighting today, the framing of the issue, and the high stakes of terrorism, can make the non-toleration of harm rules appear, or be interpreted as, universally applicable to all foreign fighting or at least to a rather broad range of foreign fighting.81

77

Krähenmann 2014, pp 49–51; Krähenmann 2016. For a description of the rules, see n 95. For example, the UN Security Council has required States to prevent the movement of foreign terrorist fighters through both administrative and legal measures, and to cooperate, for example, with exchange of information, “in accordance with their relevant international obligations”. See UN Security Council (2014) Resolution 2178 (2014), UN Doc. S/RES/2178. States are also not unreflexively focusing on criminal prosecutions alone. See, e.g. regarding rehabilitation programs, de Kerchove and Höhn 2016, p 318. 79 Krähenmann 2016, pp 232–233. 80 See, e.g., Trapp 2011, pp 64 ff; Barnidge 2005; Duffy 2015, pp 83 ff; Krähenmann 2014, p 51. See also UN Security Council (2001) Resolution 1373, UN Doc. S/RES/1373. 81 See, e.g., discussion in Krähenmann 2014, pp 49–51. 78

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Nevertheless, while these rules would cover actions of insurgency against a State in addition to terrorism, the State is only obligated to prevent its territory being used “for purposes injurious to the interests of other States in a manner contrary to international law”.82 Throughout the twentieth century to today, scholars have expressed difficulty in identifying clear rules of international law requiring equivalent diligent duties for certain other kinds of foreign fighters, that is, for all forms of foreign fighting pursuant to the non-toleration rule.83 One might debate, for example, the case of foreign volunteers fighting against another armed group within the country, such as against the Islamic State group, instead of against government forces, although one could also argue that such unauthorised use of force by individuals nevertheless harms the territorial State. Therefore, just as other foreign fighters might fall outside of the legal definitions of mercenary or foreign terrorist fighter, an approach assuming universal application of the non-toleration of harm rule risks conflating the various categories of foreign fighting. It would pay insufficient attention to certain confronting and morally intimate questions and conceptual matters related to human security and human dignity at the heart of wider legal debate and practice that arise with the private taking up of arms across borders. Such an approach may also somehow intend to exclude certain other foreign fighters in practice despite referring to a broader definition that could sometimes include such cases. In other words, the universalising or encapsulating power of the counterterrorism framing requires nuancing.

82 International Law Commission (1949) Survey of International Law in Relation to the Work of Codification of the International Law Commission: Preparatory work within the purview of Article 18, para 1, of the of the International Law Commission—Memorandum submitted by the Secretary-General, UN Doc. A/CN.4/1/Rev.1, p 34 (emphasis added). See also Liu and Kinsey 2018, p 96. 83 See, e.g., Lauterpacht 1928, pp 126–127: “there is no common measure of agreement on the question as to the scope of state responsibility for preventing and repressing revolutionary acts of private persons against foreign states”. McNair 1937, pp 496–499: the rules on volunteers applicable in civil war were “ill-defined and still in course of development”. Garcia-Mora 1962, pp 79, 327, 330; Ruys 2014, p 49:

The Syrian civil war indicates that there is perhaps, to a certain extent, a legal vacuum in this context. It is open to discussion, for instance, whether third States […] are legally obliged to take steps to prevent persons under their jurisdiction from joining one of the warring parties in the conflict. Forcese and Mamikon 2015, p 344: “[i]nternational law is remarkably unhelpful on the foreign fighter issue.” Relatedly, although any type of foreign fighter might commit war crimes or crimes against humanity, the mere fact of participating in armed conflict as a foreign fighter, including as a mercenary, is not in itself a war crime. Heinsch 2016, p 166.

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Narrowing the Conversation? Framing and the Categorisation of Individual Fighters

The approach taken in relation to mercenaries and foreign terrorist fighters is one of individualising/distinguishing the transformed policy problem that has appeared; that is, of seeking to precisely define specific categories of foreign fighters as a technique in the law, operating within certain framings. It is as if amongst the general pool of possible foreign volunteer fighters (regarding which the scope of application of general rules governing State relations might be debated in certain scenarios as mentioned above), there are at least these identified, precise, bright-line categories which have been ‘carved out’. Yet, the international legal definitions themselves, and their reception, illustrate that the tensions surrounding the scope of preventive duties regarding foreign fighting persist. This suggests that seeking to perfect definitions of individual categories is not necessarily a narrative of progress as rules on foreign fighting are improved and made more precise or effective over time, but that the tensions that shaped the legal debates over time are recurring and continue to have resonance.84 As the Burmester quote at the beginning of this chapter highlights, drafting a precise and short definition of a category of fighter proves difficult.85 The UN Human Right Council’s Working Group on Mercenaries has itself more recently commented on the difficulty of criminalising a particular actor, commenting that in doing so we “perhaps create too many loopholes to enable legislation to be functional”.86 It is difficult because it requires a definition that can distinguish mercenaries, for example, from other types of individuals involved in armed conflict or other violence,87 and for appropriate reasons, with the risks of over- and under-exclusion that this brings. The call for “common legal criteria for determining the legal definition of mercenaries and foreign fighters” continues in international settings, in parallel to calls for States to support their prohibition in line with existing formulations.88 The technique of focusing on international legal definitions of certain undesirable individuals, and thereby dimming attention on the State, appears not to be 84

Discussed further in Lloydd 2017. Above n 1. 86 UN General Assembly (2016) Report of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination: Use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, UN Doc. A/71/318, para 79. Making the same argument that regulating undesirable activities is easier than regulating an objectionable status of private actors, Percy 2007b, pp 11, 23. 87 Percy 2007a, pp 178–179; Kritsiotis 1998, p 15. 88 See the somewhat strangely formulated International Parliamentary Union Resolution ‘Non-admissibility of Using Mercenaries and Foreign Fighters as a Means of Undermining Peace, International Security and the Territorial Integrity of States, and Violating Human Rights’. International Parliamentary Union 2019. 85

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unique to definitions of foreign fighters, nor inherent to a particular framing of a policy issue. It has been relied on also in earlier examples of attempted regulation of the private use of force. As political scientist Janice Thomson has concluded regarding regulatory responses to non-State violence in earlier periods: In a narrow sense, nonstate violence was eliminated through a sequence of largely unrelated actions directed at the individual actors. One could argue that the state’s monopoly on external violence is an unintended consequence of a series of ad hoc actions taken against the various forms of nonstate violence.89

Even without the added challenge of attempting to define a particular actor by status, Martti Koskenniemi has explained in relation to definitions of legal notions more broadly: It is not that such definitions would be impossible—they are undesirable in view of the complexity of the international social world. And that complexity is not only about our ignorance about the facts of the future—it reflects our contrasting assessments of those facts […]. Such questions are matters of changing political assessment. They cannot be resolved by legislation in abstracto.90

Koskenniemi goes on to explain that in the domestic setting as opposed to the international level, the balance between ensuring precision and detail in rules, and the benefits of obedience to the law, can be weighed differently. This makes the “inevitable over-inclusiveness and under-inclusiveness of rules” less problematic in domestic legislation than in international law.91 This raises two questions: whether the attempt to legislate with precise delineations should be best left to the domestic level regarding foreign fighting, and what in turn might be more fruitful for the international level to focus on? At the same time, foreign fighting definitions remain challenging also on the domestic level, including because of their necessary interaction with international law such as international humanitarian law, and the fighters’ crossing of borders. The existing definitions of ‘mercenary’ and ‘foreign terrorist fighter’ in international law certainly present some technical difficulties. The definition of mercenary has been described as unworkable, so much so that in 2005, even the UN’s Special Rapporteur on Mercenaries argued not only for “a fundamental reconsideration of issues concerning mercenaries” but even a possible “fundamental revamping or the total revocation of the UN 1989 Convention on Mercenaries”.92 In a similar vein, the Security Council’s definition of foreign terrorist fighter has

89

Thomson 1994, p 145. Koskenniemi 2005, p 594 (italics in original; references omitted). See also Stone 1958, Chapter 4 regarding inculpation and exculpation within legal definitions. 91 Koskenniemi 2005, p 595. 92 UN General Assembly (2005) Human Rights Council: Report of the Special Rapporteur on the Use of Mercenaries, UN Doc. A/60/263, paras 45, 61. See also UN (2019) Mercenary Activities Undermine Rule of Law, Perpetuate Impunity, Secretary-General Stresses during Security Council Debate. https://www.un.org/press/en/2019/sgsm19452.doc.htm. Accessed 19 July 2019: “[s] trengthening the legal regime also means bringing more precision to it. The international legal 90

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been criticised as imprecise. It also remains subject to individual States’ independent listings of terrorist organisations, leading to different applications of the definition.93 Secondly, non-priority categories of fighters are left out from these predominant framings and definitions, and at times contrasted with them: ‘freedom fighters’ in national liberation movements, anti-ISIS fighters etc. The legal categorisation, once brought into existence, can provide a certain model of comparison, giving the impression, rightly or wrongly, that categories of fighters falling outside of these definitions are less unacceptable or problematic, that is, pitting ‘good guys’ against ‘bad guys’ based on national policy interests of the home State.94 To explore the scope of any diligent prevention duties on States regarding other foreign fighters not falling within the explicit definition/prohibition of foreign terrorist fighting (or mercenarism where applicable), we need to consider more general rules of international law governing hostile acts of private persons against foreign States, with a framing or view focused on principles of friendly State relations and the rule requiring non-toleration of unlawful harm to other States.95 In this sense, the adopted definitions might also be described as being rushed into, or at least as illustrating a narrow view of relevant policy issues; related to a particular time, setting and framing. A commentator on the 1974–77 Diplomatic Conference in which the original definition of mercenary was adopted noted that: “[w]hat the deeper reasons were for taking one position or the other [on the definition] was never brought to the surface.”96 Similarly, while acknowledging the real and urgent policy priorities regarding counterterrorism, scholars have also warned about the panicked efforts to control foreign terrorist fighters:

definition of a mercenary is very narrow, and therefore poses a challenge to effective investigations and prosecutions”. 93 Capone 2016, pp 234–235, 246; Scheinin 2014; Krähenmann 2016, pp 235–241; de Guttry 2016, pp 271–272; van Ginkel 2014. 94 Finlay 2017, p 216: “cases that have crossed a moral line within the category of nonstate political violence, […] implies the possibility (a contrario) that nonstate political violence might also take forms that are not wrongful” (emphasis in original). 95 As articulated, for example, in ICJ, Corfu Channel (United Kingdom of Great Britain and Northern Ireland v Albania), Judgment (Merits), 9 April 1949, [1949] ICJ Rep 4, p 22: a State was “not to allow knowingly its territory to be used for acts contrary to the rights of other States”. UN General Assembly (1970) Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, UN Doc. A/RES/2625(XXV), Principle 3(2): “[a]lso, no State shall […] tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State”. See also the broader but less authoritative provision in UN General Assembly (1981) Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States, UN Doc. A/RES/36/103, Principle II(b): “[t]he duty of a State to ensure that its territory is not used in any manner which would violate the sovereignty, political independence, territorial integrity and national unity or disrupt the political, economic and social stability of another State”. See also discussion in Krähenmann 2014; and Krähenmann 2016, and more generally Garcia-Mora 1962; and Lauterpacht 1928. 96 Van Deventer 1976, p 814.

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[A] danger is looming, similar to what occurred in the post 9/11 period, of governments trying to fight this problem with everything at their disposal, without really knowing first what the problem is and how it can be tackled in the most effective and durable way. Indeed, there is a perceptible trend of adopting many measures to address the problem. However, one can wonder whether these are necessary in the first place […].97

Indeed, a focus on categorisations and penalisation/criminal liability of a particular phenomenon of foreign fighting provides an illustration of how specific law is sometimes developed for a new problem that has manifested, instead of relying on existing general law and principles, and confronting the hard questions they may bring. We risk getting so caught up in the frame, or in the crisis at hand, that we are constrained in analysing longer-term trends and structural problems, and how this moulds the development of international law.98 Hilary Charlesworth argues that this can limit international lawyers’ enquiries, leading us to “rediscover an issue constantly and to analyse it without building on past scholarship”; that “international lawyers are not accustomed to unpacking the layers of meaning” and “stay glued to specific climatic events and fail to see the larger picture”.99 This means that over and above ineffectiveness and questions of technical operability, that is, that these definitions do not seem to function in practice as perhaps hoped by their drafters, we need to consider whether the focus on the fighters’ individual status presents a more systematic problem for international law. I suggest that the problem presented by the categorisation of particular types of individual foreign fighters in international law highlights that important aspects might be left out of the framing, and therefore our thinking, when the focus turns predominantly to the individual and to criminal justice. In a very straightforward way, the depth of field shallows, bringing the individual’s actions into sharp focus, while allowing the State’s own responsibilities to blur; that is, its background actions and omissions, its relations with other States, and relations with those in its jurisdiction. The conversation may deepen but also narrows.100 In the words of Karen Engle regarding individualisation and criminalisation in human rights, it “[relieves] pressure on the state to attend to structural issues”; Vasuki Nesiah asks “who benefits from narrowing the conversation […]?”101

97

de Guttry et al. 2016, pp 2–3. Charlesworth 2002, pp 377, 389. 99 Ibid., pp 384, citing Alston, and 386. 100 Relatedly, critical human rights scholarship has traced the increased emphasis on individualisation and on personal criminal liability as an “enforcement tool of choice” rather than judicially trying States, often taken as a sign of progress or maturation of the human rights system. The critique is that this results in a decontextualised, less reflective and more constrained view of the relevant issues and our responses to them, or in other words, that the focus and assumptions made can have associated “disabling effects”. See Engle 2015, p 1071; Engle et al. 2016, p 2; Nesiah 2016, pp 96, 100, 112. 101 Both scholars discuss human rights approaches, not foreign fighting, as set out in n 100 above. Engle 2015, p 1071; Nesiah 2016, p 111. 98

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Returning to Janice Thomson’s conclusions regarding non-State violence appearing in earlier historic periods, and the relations between States and the activities of those in their jurisdiction: States claimed the right to authorize nonstate violence while shirking responsibility for the consequences of that violence. The practically derived solution, worked out in a number of distinctive geopolitical contexts, was for the state to give up its right to authorize nonstate violence. Thus, all violence emanating from the state’s territory was either its own, for which it would be held accountable, or was unauthorized, for which the state would not accept responsibility. Nonstate violence was criminalized.102

Similarly, regarding mercenaries, Sarah Percy has commented: Western states […] promoted conventions that would punish individuals, rather than holding their home states responsible. Finally, Western states also recognized that states could be held responsible for the mercenary actions of their nationals if and when they failed in their treaty obligations.103

This approach pushes more fundamental rules governing State relations to the blurred background. This seems to be something that risks occurring within a framing that arises due to an intense focus on a transformed phenomenon; in crisis mode as it were. An approach pointing out unacceptable ‘characters’ also feeds back into the predominant framing. If the overall approach within the predominant framing of the historical moment or transformed phenomenon of foreign fighting, and pursuant to a technique of legal categorisation of individuals by status, has the effect of focusing attention on a single phenomenon of foreign fighting while obscuring underlying relevant issues as I have suggested, the approach must be queried.

10.5

Concluding Reflections: Stepping Back and Slowing Down?

The power and effect of framing in the regulation and institutional treatment of significant phenomena of foreign fighting discussed here would suggest that the relevant framing in the moment is to a large extent determinative of treatment and result. As Sect. 10.3 above illustrated, the institutional ‘life’ of mercenaries and foreign terrorist fighters as legal categories of fighter have been very different. What becomes clear, however, is not only that the alternative framings relied upon in different political moments drive a certain view and institutional treatment of a policy issue, but that the intense policy focus on a transformed phenomenon of foreign fighting appears to lead to the approach where certain individual categories of foreign fighters are identified and legally defined as policy priorities appear. This 102 103

Thomson 1994, p 149. Percy 2007a, p 201 (emphasis in original).

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technique of individualisation and definition represents a continuity in approach across these two ‘moments’ of foreign fighter regulation. As has been discussed, such definitions are difficult to craft, but perhaps less difficult in the moment than trying to resolve foundational dilemmas about fundamental rules such as the exact dimensions of friendly relations principles, State-citizen relations, or to agree on the definition of international terrorism over which a definition of individual status has been constructed; or than being perceived as not taking any action at all. The emphasis on legal categorisation of individuals fitting a certain status, and their prevention and penalisation, could be interpreted as letting States somewhat ‘off the hook’ as it were regarding their own actions and positions towards other States’ conflicts. I am not suggesting that States are not making efforts to combat the phenomenon of foreign terrorist fighters. To the contrary, as described above in Sect. 10.3.2, there is an intense preoccupation with and a related assignment of resources to counterterrorism efforts, and as mentioned above, the criminalisation of unlawful activities forms one part of a State’s prevention duties. Nevertheless, the approach tends to prioritise technical questions about the new categorisation of person over and above any renewed consideration of existing norms surrounding State responsibility and duties of diligent prevention of harm that might be helpful for thinking about the scope of prevention duties on States more broadly. In practice, as mentioned briefly in Sect. 10.3.2 above, the key focus, often also due to institutional responsibilities, is placed on home security. National security concerns trump questions related to friendly relations, global solidarity or protection of foreign populations from harm. As Helene Højfeldt comments: “[d]omestic criminal law is increasingly being applied to conduct committed in times of armed conflict. The policy aim is no longer to repress war crimes, but to safeguard national security.”104 The focus on home State security gives an underlying impression of a State or region suffering armed conflict being perceived as ‘lawless’ or somehow unable to be harmed any further by foreign fighting, or at least certain foreign fighting, given the existing conflict. A contemporary illustration is debate about foreign fighters’ home States being unwilling to extradite foreign fighters from warzones, or having revoked their citizenship or travel documents, leaving another authority to deal with the issue.105 The recurring approach risks being limited to pointing out certain ‘bad guys’ of the moment, and relying on a particular institutional framework. Engle 104

Højfeldt 2015, p 30. See, e.g., Chap. 8 ‘Stripped of Citizenship, Stripped of Dignity? A Critical Exploration of Nationality Deprivation as a Counter-Terrorism Measure’; van Waas 2016, pp 478, 481; van Wilgenburg W (2018) Syrian Kurds hold hundreds of foreign IS… and no one wants them back. http://www.middleeasteye.net/news/us-backed-syrian-forces-urge-europe-take-back-foreignfighters-56015630. Accessed 9 March 2018; Gill S (2015) The Easy Answer to our Problems: Export Them. https://www.smh.com.au/opinion/leaving-burden-of-radicals-migrants-to-othersmakes-us-a-poor-global-citizen-20150701-gi21qb.html. Accessed 1 March 2018; Alhamza A (2019) The West Doesn’t Want ISIS Members to Return. Why Should the Syrians Put Up With Them? https://www.nytimes.com/2019/03/14/opinion/isis-syria-foreign-fighters.html. Accessed 2 April 2019.

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points out that the “criminal law lens often reveals a simple picture of a world infused with a few bad actors, even monsters”.106 If we accept the observations described in this chapter of the limits within the priority focus on counterterrorism and home State security, this suggests that in addition to paying attention to the operation of the framing itself, one important remedy may be to step back and slow down; to return our gaze more squarely to States, and on more fundamental, if difficult, principles of State responsibility, friendly State relations and non-toleration of harm in order to consider the heart of questions surrounding the scope of prevention duties regarding foreign fighting. That is, to broaden the conversation once more and take the questions back to the State level, in addition to focusing on individual criminal liability. Although we could debate the unlikelihood in practice that States would formally proceed down the State responsibility path on the matter of foreign fighters, particularly other foreign fighters,107 in line with the submission of this contribution, certain scholars have argued for the relevance of returning to a depth of field which also considers State responsibilities and more fundamental legal principles to consider questions surrounding foreign fighting and the scope of its prevention. For example, Burmester commented about the definition of mercenaries in AP I: “[b]y far the more important issue [than the treatment of mercenaries on the battlefield] was the question of what obligations a state itself was to assume in order to restrict the recruitment or use of mercenaries in the first place.”108 He argued that if one looks more expansively than only wars of national liberation, a consideration of broader rules regulating intervention and State obligations regarding the actions of nationals could be a more useful starting point.109 More recently, Craig Forcese and

106

Engle 2015, p 1120, discussing Hannah Arendt’s work. States have complained officially about the non-prevention of foreign fighters. For example, Syria has submitted information about deceased or detained foreigners accused of fighting with opposition groups, “accusing the states of origin and transit of unlawfully interfering in Syria by actively fostering civil unrest and terrorism”. Krähenmann 2014, p 49 (emphasis added). See also UN Security Council (2014) Identical letters dated 23 November 2014 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2014/846, paras 18–19. Ukraine has also corresponded with the NATO Parliamentary Assembly regarding Serbians fighting with pro-Russian separatists in Donbass and with Australia, Italy and the United Kingdom regarding their nationals. Velebit V (2017) Serb fighters in Ukraine continue to worry the West. https://europeanwesternbalkans.com/2017/12/29/serb-fighters-ukraine-continue-worry-west/. Accessed 1 March 2018; Bucci N (2019) Five Australians free to return after fighting in Ukraine far-right ‘finishing school’ alongside Russian nationalist militia. https://www.abc.net.au/news/ 2019-04-23/five-australians-free-to-return-after-ukraine-conflict/11004438. Accessed 21 October 2019. As far as I am aware, these matters did not go further in terms of specific formal action. 108 Burmester 1978, pp 40, 44. 109 Ibid., pp 40, 56. See also Liu and Kinsey 2018, pp 95, 108 who likewise argue for a “broader framework that accounts for international reaction to privately organized armed actors more generally” including an appreciation of international norms such as neutrality, self-determination and the freedom of movement as underlying the attempted international prohibition of mercenarism. 107

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Ani Mamikon have commented regarding foreign fighting: “[b]y default, therefore, principles governing international state responsibility for hostile acts undertaken by private persons may be the most compelling standards applicable to the foreign fighters phenomenon.”110 The UN Working Group on Mercenaries has also recently explained that certain States have advocated for thinking about the control of specific types of activity such as being involved in a coup, for example—that is, relying on activities which were already unlawful—rather than attempting to prohibit a specific actor outright.111 In this sense, an attention to the operation of framing and the legal categorisation of individuals as a technique in law becomes important. Such stepping back cannot provide answers to all our questions, since the exact scope of duties regarding certain exceptional scenarios of foreign fighting cannot necessarily be easily identified in customary international law, as briefly discussed in Sect. 10.3.2 above. The framing of foreign fighting under friendly relations principles as one of non-toleration of harm to other States, therefore, also reaches certain limits or grey areas. Yet, theoretically at least, if we could continue to think more critically about underlying fundamental principles and existing rules, we could avoid adopting precise definitions of persons on the international level, and leave this to domestic legislation as part of State prevention duties. This could ensure appropriately tailored decisions, although this clearly also risks a subjective or arbitrary approach. Meanwhile, particularly if we are interested in notions of human security and human dignity in times of terrorism, stepping back may allow us to think more deeply on the international level about the ills related to foreign fighting from which international law seeks to protect States and individuals; what international law allows and restrains in terms of solidarity and the resort to force by individuals, and how international law depicts the relationships between the State and those under its jurisdiction in terms of responsibilities. Such an approach also allows us to think about the transformation of phenomena being described rather than being stuck with legal definitions of individuals which may subsequently appear outdated or insufficiently considered. What sense should we make of ‘foreign terrorist fighters’ as a contemporary transformation of foreign fighting? What links or red threads might have consistently shaped the legal debates as major occurrences of foreign fighting have transformed and arisen anew, and continue to resonate today? Such questions force us not to shy away from what we sense as nagging linkages and long-standing questions about violence and its control; from a consideration of the evolving contexts, political realities, and more confronting issues and value judgments involved in the question of foreign private intervention as settings change. How can we acknowledge the dilemma of violence and protection, namely, that in very particular contexts, force might be considered necessary to protect rights, or to 110

Forcese and Mamikon 2015, pp 347–348. UN General Assembly (2016) Report of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination: Use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, UN Doc. A/71/318, para 80. 111

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offer security to a population from oppression or mass atrocities? How can we grapple with notions of protection and the ‘common good’, that is, of human security and human dignity? What is it about being foreign as opposed to being national that is of concern regarding fighters? About private acts of force as opposed to State interventions in solidarity with a population at risk? About armed conflict as opposed to other acts of solidarity or vigilantism? We are forced to reflect upon how international law both allows and restrains this, and importantly, who gets to decide who may participate in armed violence. Doing so—however challenging— may in the long run be more fruitful or sustainable, or at least help us to better understand the stakes surrounding the scope of the prevention of foreign fighting. Acknowledgements The author is grateful for support offered by the University of Melbourne’s Human Rights Scholarship and warmly thanks Rachel Bolton for useful discussion and Prof. Anne Orford for feedback on earlier versions of this contribution.

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International Parliamentary Union (2019) Non-admissibility of using mercenaries and foreign fighters as a means of undermining peace, international security and the territorial integrity of States, and violating human rights. https://www.ipu.org/sites/default/files/documents/item_4resolution-first-committee.ns_.pdf. Accessed 19 July 2019 Jackson R (2005) Writing the War on Terrorism: Language, Politics and Counter-Terrorism. Manchester University Press, Manchester/New York Jarvis L, Lister M (2014) Introduction: the ends of counter-terrorism. In: Jarvis L, Lister M (eds) Critical Perspectives on Counter-terrorism. Routledge, New York, pp 1–10 Kinsey C (2008) International Law and the Control of Mercenaries and Private Military Companies. Cultures & Conflicts. https://journals.openedition.org/conflits/pdf/11502. Accessed 1 March 2018 Koch A (2019) The Non-Jihadi Foreign Fighters: Western Right-Wing and Left-Wing Extremists in Syria. Terrorism and Political Violence. https://www.tandfonline.com/doi/full/10.1080/ 09546553.2019.1581614. Accessed 24 October 2019 Koskenniemi M (2005) From Apology to Utopia: The Structures of International Legal Argument, 2nd edn. Cambridge University Press, Cambridge Koskenniemi M (2007) The Fate of Public International Law: Between Technique and Politics. Modern Law Review 70(1):1–30 Koskenniemi M (2011) The Politics of International Law. Hart Publishing, Oxford Krähenmann S (2014) Foreign Fighters under International Law. Geneva Academy of International Humanitarian Law and Human Rights. https://www.geneva-academy.ch/ joomlatools-files/docman-files/Publications/Academy%20Briefings/Foreign%20Fighters_ 2015_WEB.pdf. Accessed 1 March 2018 Krähenmann S (2016) The Obligation under International Law of the Foreign Fighter’s State of Nationality or Habitual Residence, State of Transit and State of Destination. In: de Guttry A, Capone F, Paulussen C (eds) Foreign Fighters under International Law and Beyond. T.M.C. Asser Press, The Hague, pp 229–258 Kritsiotis D (1998) Mercenaries and the Privatization of Warfare. The Fletcher Forum of World Affairs 22(2):11–25 Lauterpacht H (1928) Revolutionary Activities by Private Persons against Foreign States. American Journal of International Law 22(1):105–130 Liu H-Y, Kinsey C (2018) Challenging the Strength of the Antimercenary Norm. Journal of Global Security Studies 3(1):93–110 Lloydd M (2017) Persistent Tensions? International Legal Perspectives on ‘Other’ Foreign Fighters. German Yearbook of International Law 60: 539–573 Malet D (2017) Foreign Fighters: Transnational Identity in Civil Conflicts, 2nd edn. Oxford University Press, Oxford Martínez LMH (2008) The Legislative Role of the Security Council in its Fight Against Terrorism: Legal, Political and Practical Limits. International & Comparative Law Quarterly 57(2):333–359 McNair A (1937) The Law Relating to Civil War in Spain. Law Quarterly Review 53:471–499 Mourning PW (1981) Leashing the Dogs of War: Outlawing the Recruitment and Use of Mercenaries. Virginia Journal of International Law 22:589–625 Nesiah V (2016) Doing History with Impunity. In: Engle K, Miller Z, Davis D (eds) Anti-Impunity and the Human Rights Agenda. Cambridge University Press, Cambridge, pp 95–122 OHCHR Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination (2015) Note on a Possible Legally Binding Instrument for the Regulation of Private Military Security Companies. http:// www.ohchr.org/Documents/HRBodies/HRCouncil/WGMilitary/Session4/WG_ MercenariesCN_14April2015.pdf. Accessed 1 March 2018 Orford A (2013) On International Legal Method. London Review of International Law 1(1):166–197 Organisation of African Unity (1971) Declaration on the Activities of Mercenaries in Africa, OAU Doc CM/St. 6-XVII

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Parker P, Weissbrodt D (1991) Major Developments at the UN Commission on Human Rights in 1991. Human Rights Quarterly 13:573–613 Patin N (2015) The Other Foreign Fighters: An Open-Source Investigation into American Volunteers Fighting the Islamic State in Iraq and Syria. Bellingcat. https://www.bellingcat. com/news/mena/2015/08/26/the-other-foreign-fighters/. Accessed 1 March 2018 Percy SV (2007a) Mercenaries: The History of a Norm in International Relations. Oxford University Press, Oxford Percy SV (2007b) Morality and Regulation. In: Chesterman S, Lehnardt C (eds) From Mercenaries to Market: The Rise and Regulation of Private Military Companies. Oxford University Press, Oxford, pp 11–28 Petersen N (2015) Human Dignity, International Protection. Max Planck Encyclopedia of Public International Law. https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law9780199231690-e809. Accessed 15 July 2019 Rittich K (2006) The Future of Law and Development: Second-Generation Reforms and the Incorporation of the Social. In: Trubek D, Santos A (eds) The New Law and Economic Development: A Critical Appraisal. Cambridge University Press, Cambridge, pp 203–252 Rittich K (2016) Theorizing International Law and Development. In: Orford A, Hoffmann F (eds) The Oxford Handbook of the Theory of International Law. Oxford University Press, Oxford, pp 820–843 Rittich K (2018) Lecture: Rule of Law – Analyzing Distributional Impact. IGLP Scholars Workshop Bangkok (notes on file with author; cited with permission) Ruys T (2014) Of Arms, Funding and “Non-Lethal Assistance”—Issues Surrounding Third-State Intervention in the Syrian Civil War. Chinese Journal of International Law 13(1):13–53 Sandoz Y, Swinarksi C, Zimmerman B (1987) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949. ICRC/Martinus Nijhoff, Geneva Sapone M (1999) Have Rifle with Scope, Will Travel: The Global Economy of Mercenary Violence. California Western International Law Journal 30(1):1–43 Scheinin M (2014) Back to post-9/11 panic? Security Council resolution on foreign terrorist fighters. Just Security. https://www.justsecurity.org/15407/post-911-panic-security-councilresolution-foreign-terrorist-fighters-scheinin/. Accessed 1 March 2018 Schwarzenberger G (1971) Terrorists, Hijackers, Guerrilleros and Mercenaries. Current Legal Problems 1:257–282 Stone J (1958) Aggression and World Order: A Critique of United Nations Theories of Aggression. University of California Press, Berkeley Taulbee JL (1985) Myths, Mercenaries and Contemporary International Law. California Western International Law Journal 15:339–363 Thomson JE (1994) Mercenaries, Pirates, and Sovereigns. Princeton University Press, Princeton Trapp KN (2011) State Responsibility for International Terrorism. Oxford University Press, Oxford Tuck H, Silverman T, Smalley C (2016) ‘Shooting in the right direction’: Anti-ISIS Foreign Fighters in Syria & Iraq. Institute for Strategic Dialogue. https://www.isdglobal.org/isd-publications/shootingin-the-right-direction-anti-isis-foreign-fighters-in-syria-and-iraq/. Accessed 21 October 2019 UN Commission on Human Rights (1987) Resolution 1987/16, UN Doc. E/CN.4/RES/1987/16 UN Commission on Human Rights (2005) Resolution 2005/2, UN Doc. E/CN.4/RES/2005/2 UN General Assembly (1968) Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, UN Doc. 2465 (XXIII) UN General Assembly (1970) Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, UN Doc. A/RES/2625(XXV) UN General Assembly (1981) Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States, UN Doc. A/RES/36/103

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UN General Assembly (1992) Human Rights Council: Report of the Special Rapporteur on the Use of Mercenaries, UN Doc. A/47/412 UN General Assembly (1995) Use of mercenaries as a means to violate human rights and to impede the exercise of the right of peoples to self-determination, UN Doc. A/RES/50/138 UN General Assembly (2005) Human Rights Council: Report of the Special Rapporteur on the Use of Mercenaries, UN Doc. A/60/263 UN General Assembly (2014) Human Rights Council: Report of the United Nations High Commissioner for Human Rights on the protection of human rights and fundamental freedoms while countering terrorism, UN Doc. A/HRC/28/28 UN General Assembly (2015) Report of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination: Use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, UN Doc. A/70/330 UN General Assembly (2016) Report of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination: Use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, UN Doc. A/71/318 UN General Assembly (2016) Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism: Promotion and protection of human rights and fundamental freedoms while countering terrorism, UN Doc. A/71/384 UN General Assembly (2016) Human Rights Council: Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/32/CR.P.2 UN General Assembly (2016) Human Rights Council: Comments of the Government of Belgium to the Report of the Working Group, UN Doc. A/HRC/33/43/Add.5 UN General Assembly (2016) Human Rights Council: Comments of the EU Institutions to the Report of the Working Group, UN Doc. A/HRC/33/43/Add.7 UN General Assembly (2018) Human Rights Council: Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, UN Doc. A/HRC/37/52 UN Security Council (2001) Resolution 1373 (2001), UN Doc. S/RES/1373 UN Security Council (2004) Resolution 1535 (2004), UN Doc. S/RES/1535 UN Security Council (2014a) Identical letters dated 23 November 2014 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2014/846 UN Security Council (2014b) Resolution 2178 (2014), UN Doc. S/RES/2178 UN Security Council (2015) Statement by the President of the Security Council, UN Doc. S/PRST/ 2015/11 UN Security Council (2017) Resolution 2396 (2017), UN Doc. S/RES/2396 Van Deventer HW (1976) Mercenaries at Geneva. American Journal of International Law 70(4):811–816 Van Ginkel B (2014) The new Security Council Resolution 2178 on foreign terrorist fighters: a missed opportunity for a holistic approach. International Centre for Counter-Terrorism—The Hague. https://icct.nl/publication/the-new-security-council-resolution-2178-on-foreignterrorist-fighters-a-missed-opportunity-for-a-holistic-approach/. Accessed 1 March 2018 Van Waas L (2016) Foreign Fighters and the Deprivation of Nationality: National Practices and International Law Implications. In: de Guttry A, Capone F, Paulussen C (eds) Foreign Fighters under International Law and Beyond. T.M.C. Asser Press, The Hague, pp 469–487

Case Law ICJ, Corfu Channel (United Kingdom of Great Britain and Northern Ireland v Albania), Judgment (Merits), 9 April 1949, [1949] ICJ Rep 4

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Treaties Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945) (UN Charter) International Convention against the Recruitment, Use, Financing and Training of Mercenaries, opened for signature 4 December 1989, 2163 UNTS 75 (entered into force 20 October 2001) Organisation of African Unity Convention for the Elimination of Mercenarism in Africa, opened for signature 3 July 1977, 1490 UNTS 96 (entered into force 22 April 1985) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978)

Marnie Lloydd LL.M. is a Teaching Fellow and Ph.D. Candidate with the Australian Research Council Laureate Program in International Law’s project on Civil War, Intervention and International Law at Melbourne Law School, where she works under the supervision of Prof. Anne Orford and Prof. Martti Koskenniemi. Marnie specialises in the field of international law in armed conflict, and humanitarian assistance. Her doctoral research involves a critical historical reading of legal debates regarding foreign fighting. Prior to joining the Laureate Program, Marnie worked for more than ten years as a Delegate and Legal Advisor with the International Committee of the Red Cross, and as a Legal Consultant with the United Nations High Commissioner for Refugees.

Part III

Criminal Justice Context

Chapter 11

Criminalising Foreign Fighter Travel in Order to Prevent Terrorism in Europe: An Illegitimate Assault on Human Dignity? Tarik Gherbaoui

Contents 11.1 Introduction...................................................................................................................... 242 11.2 The Birth of the New Offence of Travelling Abroad for Terrorism ............................. 245 11.2.1 International Legal Obligations to Criminalise Foreign Fighter Travel............ 245 11.2.2 The Council of Europe Criminalises Travelling Abroad for Terrorism ........... 249 11.2.3 The Criminalisation of Foreign Fighter Travel by the European Union .......... 251 11.3 The Preventive Turn of European Counter-Terrorism Law and Its Impact on Human Dignity and Human Security .......................................................................................... 257 11.3.1 Criminalising Foreign Fighter Travel in Order to Prevent Terrorism............... 258 11.3.2 The Adverse Impact on Human Dignity and Human Security of the New Offence of Travelling Abroad for Terrorism ..................................................... 261 11.4 Conclusion ....................................................................................................................... 263 References .................................................................................................................................. 264

Abstract This chapter critically assesses the impact on human dignity and human security of the novel offence of ‘travelling abroad for terrorism’ in the European counter-terrorism context. The chapter analyses the emergence of the offence through international legal instruments recently adopted by the United Nations, the Council of Europe, and the European Union. Throughout this analysis, the chapter explores the human rights concerns related to the actus reus as well as the mens rea of the offence of travelling abroad for the purpose of terrorism. The actus reus (travelling to another State) of the offence is defined so broadly that successful prosecution hinges on proving the mens rea (the terrorist purpose) of the suspected foreign fighter. This mens rea is tainted by the legal uncertainties surrounding the T. Gherbaoui (&) Department of Law, European University Institute, Florence, Italy e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 C. Paulussen and M. Scheinin (eds.), Human Dignity and Human Security in Times of Terrorism, https://doi.org/10.1007/978-94-6265-355-9_11

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definition of terrorism. In the European context, the true purpose of the criminalisation of foreign fighter travel is thus prevention rather than punishment. Suspected foreign fighters are seen as a risk to be prevented rather than as individuals who need to be brought to justice under the rule of law. As they are not treated as ends in themselves, the preventive turn of the criminal law in the foreign fighter context disregards the human dignity of suspected foreign fighters. The chapter concludes that the preventive turn not only constitutes an assault on human dignity, but also a counterproductive method to ensure human security. Keywords Terrorism Human dignity

11.1


Foreign fighters
Criminal law
Prevention
Legality


Introduction

European foreign fighters who have travelled to the Middle-East in recent years pose an incredibly complex human security conundrum for European Governments and law enforcement officials. de Guttry, Capone and Paulussen define foreign fighters as “individuals, driven mainly by ideology, religion and/or kinship, who leave their country of origin or their country of habitual residence to join a party engaged in an armed conflict.”1 It is estimated that in the past few years over 42,000 foreign nationals have travelled to the bloody battlefields of the Levant to join various armed factions including the Islamic State (IS, ISIS, ISIL, Da’esh).2 While the Islamic State lost the lion’s share of its territory in the autumn of 2017, its ideology, cash reserves,3 and transnational network of active terrorist cells have not been destroyed. A recent report by the United Nations (UN) Security Council confirmed that after several strategic and military setbacks, the fight against the Islamic State has now entered a new phase in which the diaspora of foreign fighters constitutes a major challenge.4 With the gradual territorial decline of the Islamic State, the fate of many European foreign fighters remains uncertain. In the chaos of the Syrian civil war, European law enforcement entities have lost track of the whereabouts of many of their nationals. It is estimated that at least 5,600 foreign fighters5 and around 30% of European foreign fighters6 have already returned home from Syria and Iraq. 1

de Guttry et al. 2016, p 2. Radicalisation Awareness Network 2017, p 15. 3 The Economist (2018) Islamic State has been stashing millions of dollars in Iraq and abroad. https://www.economist.com/news/middle-east-and-africa/21737302-their-so-called-caliphatecrumbles-jihadists-are-saving-up-fight. Accessed 1 March 2018. 4 UN Security Council (2018) Sixth report of the Secretary-General on the threat posed by ISIL (Da’esh) to international peace and security and the range of United Nations efforts in support of Member States in countering the threat, UN Doc. S/2018/80, paras 5–11. 5 Barrett 2017, pp 12–13. 6 Radicalisation Awareness Network 2017, p 15. 2

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In the meantime, repressive counter-terrorism laws and ‘War on Terror’ rhetoric have turned fashionable again in Europe. In addition to the threat posed by returning foreign fighters, the European counter-terrorism landscape has recently seen other profound changes such as the emergence of ‘lone wolf terrorism’, terrorist attacks committed by oftentimes mentally disturbed and radicalised individuals who have usually not travelled to conflict zones.7 However, some of these ‘lone wolves’ have allegedly been directed by virtual plotters in the Middle-East and elsewhere.8 Atrocious terrorist attacks in the United Kingdom (UK) and on the European continent have invigorated the already widespread fear among the European public that returning foreign fighters will commit further terrorist attacks. Several high-profile attacks on European soil have indeed been partly committed by European foreign fighters, including the shooting at the Jewish Museum in Brussels in May 2014, the attacks in Paris in November 2015, and the Brussels bombings in March 2016.9 Contrary to initial predictions, European foreign fighters have not yet returned in huge numbers.10 Even though no further attacks on European soil have been committed by returnees since the Brussels bombings,11 Peter Neumann has argued that returning foreign fighters continue to pose a real security threat: Like in previous conflicts, only a minority of the so-called ‘returnees’ will become involved in terrorism. But their numbers could be sufficient to ‘professionalise’ Islamic State’s campaign in Europe by inserting experienced fighters who have worked in teams, know how to build bombs, and have the charisma and credibility that result from being ‘jihad veterans’.12

Research by the Pew Research Center revealed that the general public in France, Germany, and the Netherlands considered terrorist attacks by the Islamic State to be the top security threat to their countries, ahead of climate change and the economy.13 The public fear of terrorism is disproportionate yet not unwarranted. It is therefore understandable that the public demands an effective governmental response to returning foreign fighters. Due to the unprecedented scale and complexity of the European foreign fighter phenomenon as it has developed since the start of the Syrian civil war, this governmental response is necessarily multi-faceted and includes military, human, and important legal dimensions. European foreign fighters are not a traditional threat to national security posed by an external enemy. Even though some of them have strongly rejected the Western way of life,

7

See Leenars and Reed 2016. Callimachi R (2017) Not ‘Lone Wolves’ After All: How ISIS Guides World’s Terror Plots From Afar. https://www.nytimes.com/2017/02/04/world/asia/isis-messaging-app-terror-plot.html. Accessed 14 October 2018. 9 Radicalisation Awareness Network 2017, p 15. 10 Coolsaet and Renard 2018, p 72. 11 Ibid., p 4. 12 Neumann 2018. 13 Pew Research Center 2017. 8

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European foreign fighters continue to have deep roots as well as social contacts in our societies. Therefore, the return of European foreign fighters is a more furtive threat and arguably one of the most complex human security challenges of our times. In recent years, European States affected by the phenomenon have extensively used their criminal justice systems to prevent prospective foreign fighters from travelling, to control and monitor frustrated would-be fighters, and to penalise those who dared to return. As Paulussen and Pitcher point out, prosecutors have made creative use of a wide variety of existing criminal offences, such as ‘participation in a terrorist organisation’ (the Netherlands), ‘forming terrorist organisations’ (Germany), ‘attendance at a place used for terrorist training’ (United Kingdom), and more generally ‘the preparation of terrorist acts’.14 Notwithstanding the vast arsenal of available legal tools that is already available, including many relics from the post 9/11 era,15 several European States have used the opportunity to adopt new laws to address the rapidly evolving terrorist threat, including measures specifically aimed at foreign fighters and lone wolf terrorists. This chapter explores the emergence of the new criminal offence of ‘travelling abroad for terrorism’ as a measure that is capable of addressing departing as well as returning foreign fighters and its impact on human dignity and human security in the European context. In Sect. 11.2, the chapter critically analyses the international legal regime on foreign terrorist fighters as set up by UN Security Council Resolution 2178 (2014)16 which imposes far-reaching international legal obligations on States to criminalise the activities of foreign fighters. It then assesses the transposition of these obligations at the European level through the recently adopted EU Directive on combating terrorism (2017)17 and the Additional Protocol (2015) to the Council of Europe Convention on the Prevention of Terrorism.18 The chapter exposes the human rights and human dignity concerns related to the actus reus as well as the mens rea of the offence of travelling abroad for terrorism, with a particular eye on the adumbrating effects of flawed definitions of terrorism. In Sect. 11.3, the chapter analyses the added value of the new offence to the traditional purposes of punishment. It argues that the true purpose behind the new criminal offence of ‘travelling abroad for terrorism’ is the prevention of future terrorist attacks through the criminalisation of behaviour that is extremely remote from actual harm. With its lack of clarity, the offence of travelling abroad for terrorism is exemplary of the preventive turn of counter-terrorism law in the post-9/11 era. 14

Paulussen and Pitcher 2018, pp 16–19. Roach 2011. 16 UN Security Council (2014) Resolution 2178 (2014), UN Doc. S/RES/2178. 17 European Union, Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA (EU Directive). 18 Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism, opened for signature 22 October 2015, CETS 217 (entered into force 1 July 2017) (Additional Protocol). 15

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Finally, the chapter advances the view that the shift from punishment to prevention results in an overt assault on human dignity in the foreign fighter context as foreign fighters are not treated as ends in themselves. The criminalisation of foreign fighter travel not only constitutes an overt assault on human dignity, but also a counterproductive method to ensure human security in the long-term.

11.2

The Birth of the New Offence of Travelling Abroad for Terrorism

Due to the inherently transnational nature of the foreign fighter phenomenon, a coordinated and coherent response at the international and regional level is an essential prerequisite to address the threat. Notwithstanding independent initiatives at the national level, a clear top down approach towards the criminalisation of foreign fighter travel has been developed by the UN, the Council of Europe, and the European Union (EU). This section discusses the birth of the new offence of travelling abroad for terrorism through the principal international legal instruments adopted by international organisations.

11.2.1 International Legal Obligations to Criminalise Foreign Fighter Travel Adopted unanimously by the UN Security Council in September 2014 under the auspices of the United States, the notorious UN Security Council Resolution 2178 is the key international legal instrument setting up a new international legal regime for foreign terrorist fighters. Acting under Chapter VII of the UN Charter,19 the Security Council used its controversial “legislative powers”20 to impose far-reaching obligations on States to prevent the movements and activities of ‘foreign terrorist fighters’. In preambular para 8 and various paragraphs throughout the Resolution, the Security Council defines ‘foreign terrorist fighters’ as “individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training, including in connection with armed conflict”.

19

Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945). 20 The use of legislative powers led to considerable scholarly debate after the adoption of UN Security Council Resolution 1373 (2001) which requires States to criminalise a range of terrorist offences. See Szasz 2002 and Talmon 2005.

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The pivotal provision of the Resolution for the criminalisation of foreign terrorist fighter travel is operative paragraph 6 which requires States to ensure that their legal frameworks are capable of prosecuting and penalising foreign terrorist fighters and those who finance and facilitate them.21 In addition to the travel itself, States are required to criminalise the “wilful provision or collection of funds, by any means, directly or indirectly” and the “wilful organisation, or other facilitation” of foreign terrorist fighter travel, without further defining these actions. Operative paragraph 6 contains a decision of the Security Council that is legally binding for UN Member States pursuant to Article 25 of the UN Charter. UN Member States have no choice but to accept and carry out this decision. The use of a Security Council Resolution to force the legislatures of all UN Member States to criminalise certain behaviour therefore challenges the sovereign equality of States as recognised in Article 2(1) of the UN Charter. Martin Scheinin, the former UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has argued that operative paragraph 6 is arguably the “most alarming” provision of UN Security Council Resolution 2178.22 The Security Council designed the hybrid figure of the ‘foreign terrorist fighter’ without providing any definition of terrorism at all, creating legal uncertainty in the

21 UN Security Council (2014) Resolution 2178 (2014), UN Doc. S/RES/2178, para 6 (emphasis in original):

Recalls its decision, in resolution 1373 (2001), that all Member States shall ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice, and decides that all States shall ensure that their domestic laws and regulations establish serious criminal offenses sufficient to provide the ability to prosecute and to penalise in a manner duly reflecting the seriousness of the offense: (a) their nationals who travel or attempt to travel to a State other than their States of residence or nationality, and other individuals who travel or attempt to travel from their territories to a State other than their States of residence or nationality, for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts, or the providing or receiving of terrorist training; (b) the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to finance the travel of individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training; and, (c) the wilful organization, or other facilitation, including acts of recruitment, by their nationals or in their territories, of the travel of individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training. 22

Scheinin 2014.

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context of the criminalisation of foreign fighter travel. While UN Security Council Resolution 2170 had already imposed a number of international obligations on States to address the foreign fighter phenomenon,23 the Security Council did not provide a definition of the concept of ‘foreign terrorist fighter’ until the adoption of UN Security Council Resolution 2178. Two constitutive elements characterise the novel concept of the ‘foreign terrorist fighter’. The first element is objective: the foreign terrorist fighter is an individual who performs a certain act, namely a border crossing into a State where the individual concerned is neither a national nor a resident. However, international travel as such is a perfectly innocent act, which is performed so frequently that one cannot even contemplate monitoring all border crossings of all individuals around the world, in particular in areas where border controls are absent. The actus reus of the foreign terrorist fighter is thus defined so broadly that in practice the definition hinges on the second element. The second element of the definition is subjective: the act of travelling needs to be performed for a purpose that is in some way related to terrorism. The foreign terrorist fighter needs to possess a certain intention or mind-set that constitutes the reason for his or her journey. Apart from the perpetration of terrorist acts, a foreign terrorist fighter may also be identified through his or her involvement in the planning, preparation of, or participation in terrorist acts. These terms resemble the concepts of ‘inchoate offence’, ‘conspiracy’ and ‘complicity’ as traditionally used in domestic criminal law. Since these concepts are already opaque and controversial enough at the domestic level, it is a Herculean task to elevate them to the international level and transpose them back to the domestic level without properly defining them and without considering the substantive conceptual differences that exist among domestic criminal law systems. In an equally problematic fashion, UN Security Council Resolution 2178 fails to clarify the meaning of the key concept of “providing or receiving terrorist training”. The definition of the foreign terrorist fighter provided by the Security Council does not require that the terrorist purpose has materialised itself in a terrorist act, or at the bare minimum in a preparatory act. The terrorist purpose is the only feature that distinguishes the foreign terrorist fighter from all other individuals who regularly cross international borders. Ambos has rightly drawn attention to the difficulty of detecting a terrorist purpose that has not yet manifested itself at the moment of the border crossing.24 The mens rea that the foreign terrorist fighter must possess is thus defined rather nebulously in the Resolution. The lack of clarity in the Security Council’s description of the constitutive elements of the concept of the foreign terrorist fighter is inconsistent with the principle of legality, a cornerstone of the rule of law. Since the definition of terrorism is essential for the concept of the foreign terrorist fighter, one would have expected the Security Council to provide a reasonably clear definition of terrorism,

23 24

UN Security Council (2014) Resolution 2170 (2014), UN Doc. S/RES/2170, paras 7–10. Ambos 2014.

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as it had previously done in UN Security Council Resolution 1566.25 However, in the first paragraph of the Preamble the Security Council reaffirmed that “terrorism in all forms and manifestations constitutes one of the most serious threats to international peace and security” and essentially left the definition of terrorism at the discretion of States. The broad wording of the text of the Resolution brings acts of exclusively domestic terrorism within the scope of the Resolution. Unlike for instance UN Security Council Resolution 1373,26 which was limited to “international terrorism”, Security Council Resolution 2178 applies to every single hypothetical future act of terrorism, even if perpetrated by terrorists in their own State of nationality. This incredibly wide scope makes a sound interpretation of the substantive provisions of the Resolution much harder and will foreshadow the implementation of the new offence of travelling abroad for terrorism at the European and domestic level. The absence of a definition of terrorism in the Resolution also renders the implementation of the offence at the regional and domestic level less effective. Bianchi has cautioned that without a widely shared definition “the effectiveness of measures aimed at fighting terrorism in its multi-faceted aspects risks being jeopardised”.27 As the Islamic State lost huge chunks of its territory and changed towards an organisation with a more insurgent character, the evolution of the threat posed by foreign fighters necessitated a determined response by the UN. In December 2017, Security Council 2396 provided a long-expected update by highlighting the issue of returning and relocating foreign terrorist fighters.28 Preambular paragraph 10 expresses “grave concern over the acute and growing threat posed by foreign terrorist fighters returning or relocating, particularly from conflict zones, to their countries of origin or nationality, or to third countries”. Crucially, the Security Council gives further guidance on the prosecution of foreign terrorist fighters at the domestic level as required by paragraph 6 of UN Security Council Resolution 2178. Operative paragraph 18 of Security Council Resolution 2396 ‘tops up’ paragraph 6 of Security Council Resolution 2178 with a requirement to develop and implement prosecutorial and investigative strategies aimed at foreign terrorist fighters,29 without clarifying the content of such strategies.30 Moreover, Security Council Resolution 2396 requires States to make use of Passenger Name Record data, biometric data, watch lists, and databases in order to detect and prosecute foreign terrorist fighters. The use of such data may constitute a valuable tool to the end of prosecution, provided that the right to

25

UN Security Council (2004) Resolution 1566 (2004), UN Doc. S/RES/1566. UN Security Council (2001) Resolution 1373 (2001), UN Doc. S/RES/1373. 27 Bianchi 2006, p 1048. 28 UN Security Council (2017) Resolution 2396 (2017), UN Doc. S/RES/2396. 29 “Urges Member States, in accordance with domestic and applicable international human rights law and international humanitarian law, to develop and implement appropriate investigative and prosecutorial strategies, regarding those suspected of the foreign terrorist fighter-related offenses described in para 6 of resolution 2178 (2014)”. Ibid., para 6. 30 UN Security Council (2017) Resolution 2396 (2017), UN Doc. S/RES/2396, paras 18 and 29–30. 26

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privacy is fully respected and the calls of the UN Security Council to adhere to human rights and fundamental freedoms are not made in vain. The awkward hybrid figure of the foreign terrorist fighter and the absence of an internationally recognised definition of terrorism make the international legal regime imposed by UN Security Council Resolution 2178 and updated by Security Council Resolution 2396 nebulous yet consequential. The duty to prosecute foreign fighters active in armed conflicts not only blurs the lines between criminal law and international humanitarian law,31 but also fails to distinguish the concepts of classic foreign fighting, armed jihad, and domestic terrorism. The definitional clouds surrounding the international legal obligation to criminalise travelling abroad for terrorism could potentially lead to harmful consequences to both human dignity and human security. As Gilbert Guillaume, the former President of the International Court of Justice, eloquently points out: To combat terrorism without defining it remained possible for as long as the word itself was not uttered. However, to make use of the term as we do today, often without determining its true scope, does carry certain drawbacks. It tends to give rise to uncertainty and leaves States the possibility of making unilateral interpretations geared towards their own interests, particularly with respect to Security Council Resolutions.32

Blinded by the barbarity of the Islamic State, the UN Security Council has handed out a blank cheque to crack down on all alleged forms of terrorism, including domestic terrorism, without providing a definition of terrorism. In 2018, the same State that introduced UN Security Council Resolution 2178 deplored the abuse of the “fake excuse of ‘counter-terrorism’” to advance geo-political interests as well as to crack down on political dissidents, journalists and human rights defenders, all at the expense of human security and human dignity.33

11.2.2 The Council of Europe Criminalises Travelling Abroad for Terrorism The first step at the European level to implement the criminal law aspects of UN Security Council Resolution 2178 was the adoption of the Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism on 22 October 2015 (Additional Protocol).34 Operative paragraph 6 of UN Security Council

31

Krähenmann 2014, p 42. Guillaume 2004, p 540. 33 United States Mission to the United Nations (2018) Remarks at the Adoption of UN Security Council Resolution 2401 on a Ceasefire in Syria. https://usun.usmission.gov/remarks-at-theadoption-of-un-security-council-resolution-2401-on-a-ceasefire-in-syria/. Accessed 1 March 2018 34 Council of Europe 2015. Additional Protocol, above n 18. 32

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Resolution 2178 is transposed in Article 4.35 Article 4(1) of the Additional Protocol requires State Parties to establish ‘travelling abroad for the purpose of terrorism’ as a criminal offence under domestic law. Article 4(2) of the Additional Protocol explains that this means: “travelling to a State, which is not that of the traveller’s nationality or residence, for the purpose of the commission of, contribution to or participation in a terrorist offence, or the providing or receiving of training for terrorism.” The Additional Protocol thus only requires States to criminalise outbound travel. The differences with the definition of foreign terrorist fighting in UN Security Council Resolution 2178 are mostly semantic. The real difference can be found in the scope of the offence, which is determined by the definition of terrorism. The Additional Protocol itself does not define terrorism, but Article 9 makes clear that the terms of the Protocol shall be interpreted within the meaning of the Convention. Article 1 of the Council of Europe Convention on the Prevention of Terrorism36 states that “‘terrorist offence’ means any of the offences within the scope of and as defined in one of the treaties listed in the Appendix”. The Appendix contains a list of 11 international Conventions. As Scheinin points out, most of these Conventions do not relate at all to the activities of foreign fighters while the ones that possibly cover them are usually inapplicable in the context of an armed conflict as a result of non-applicability clauses.37 These definitional flaws not only make the crime of travelling abroad for terrorism hardly foreseeable, but also undermine the effectiveness of prosecuting individuals at the domestic level. The Additional Protocol entered into force on 1 July 2017, but has a rather poor ratification record, in particular considering the perceived urgency of the threat posed by foreign fighters.38 However, State consent to the Additional Protocol might strengthen the legal case to criminalise foreign fighter travel as it imposes treaty obligations on top of the obligations following from the international legislation of the UN Security Council. Furthermore, the Additional Protocol might be relevant to criminalise foreign fighter travel from States that are part of the Council of Europe, but not of the EU, such as Russia and Turkey. Due to its erroneous drafting, it is implausible that the Additional Protocol will be of any benefit to the prosecution of foreign fighters and the protection of human security.

35 Article 5 criminalises the funding and Article 6 the organising or otherwise facilitating of foreign fighter travel. 36 Council of Europe Convention on the Prevention of Terrorism, opened for signature 16 May 2005, CETS 196 (entered into force 1 June 2007) (Council of Europe Convention). 37 Scheinin 2015. 38 As of February 2018, only 11 States had ratified the Additional Protocol while the other signatories are still fulfilling parliamentary and constitutional requirements. Council of Europe Treaty Office (2018) Chart of signatures and ratifications of Treaty 217. https://www.coe.int/en/ web/conventions/full-list/-/conventions/treaty/217/signatures?p_auth=509VL4aq. Accessed 1 March 2018.

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11.2.3 The Criminalisation of Foreign Fighter Travel by the European Union The EU has long been a vehement advocate for the criminalisation of travelling abroad for terrorism. The criminalisation thereof in Article 9 is indubitably the flagship measure of the EU Directive on combating terrorism adopted in 2017 (EU Directive).39 With the rapid rise of the Islamic State, the foreign fighter phenomenon quickly gained an important position on the EU agenda. A few weeks before UN Security Council Resolution 2178 was adopted in September 2014, the European Council had called for “determined action” in order to stem the flow of foreign fighters.40 A quintessential feature of this “determined action” is the EU’s criminal justice response to foreign fighters. Until the adoption of the new Directive, the principal legal instrument41 of this response was Framework Decision 2002/475/JHA42 as amended by Framework Decision 2008/919/JHA.43 The essence of the Framework Decision was the approximation of a number of terrorist offences, based on a common definition of terrorism.44 Activities that were criminalised included the participation in the activities of a ‘terrorist group’.45 In order to effectively address Europe’s rapidly developing foreign fighter crisis, the EU Counter-Terrorism Coordinator has persistently stressed the need to update the Framework Decision arguing that neither the travelling abroad for terrorism nor the receiving of terrorist training were covered by the Framework Decision. Furthermore, he argued that an update of the Framework Decision would allow for a collective implementation of UN Security Council Resolution 2178 and the Additional Protocol, setting up a common legal framework which is necessary because “differences in criminalisation without common minimum standards risks prosecution gaps”.46 Member States questioned the necessity of updating the Framework Decision arguing that the obligations of UN Security Council Resolution 2178 could be implemented faster at the national level than at the EU level.47

39

EU Directive, above n 17. European Council 2014, pp 5–6. 41 EU Directive, above n 39, recital 3. See also Dumitriu 2004, p 590. 42 European Union, Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism (repealed and replaced by Directive 2017/541) (Council Framework Decision 2002). 43 European Union, Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on combating terrorism (repealed by Directive 2017/541). For a critical analysis of the Framework Decisions see Murphy 2012, Chapter 3. See also Gless 2012. 44 Council Framework Decision 2002, above n 42, Article 1. 45 Ibid., Article 2. 46 De Kerchove and Höhn 2016, p 314. 47 EU Counter-Terrorism Coordinator 2014, p 2. 40

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The European Commission eventually presented its proposal for a Directive on combating terrorism on 2 December 2015.48 In the wake of the Paris attacks of 13 November 2015, the EU was under immense pressure to reassure the European public that it was taking action to prevent further terrorist attacks. After the ‘Trilogue’ negotiations between the European Commission, the European Parliament, and the Council of the European Union had been concluded relatively smoothly, the final text of the Directive was approved on 16 February 2017 by an overwhelming majority in the European Parliament.49 The Directive was adopted by the Council on 7 March 2017 and signed by the co-legislators on 15 March 2017.50 Let us now have a closer look at the criminalisation of foreign terrorist fighter travel in the EU Directive. Article 9 of the EU Directive stipulates: 1. Each Member State shall take the necessary measures to ensure that travelling to a country other than that Member State for the purpose of committing, or contributing to the commission of, a terrorist offence as referred to in Article 3, for the purpose of the participation in the activities of a terrorist group with knowledge of the fact that such participation will contribute to the criminal activities of such a group as referred to in Article 4, or for the purpose of the providing or receiving of training for terrorism as referred to in Articles 7 and 8 is punishable as a criminal offence when committed intentionally. 2. Each Member State shall take the necessary measures to ensure that one of the following conducts is punishable as a criminal offence when committed intentionally: (a) travelling to that Member State for the purpose of committing, or contributing to the commission of, a terrorist offence as referred to in Article 3, for the purpose of the participation in the activities of a terrorist group with knowledge of the fact that such participation will contribute to the criminal activities of such a group as referred to in Article 4, or for the purpose of the providing or receiving of training for terrorism as referred to in Articles 7 and 8; or (b) preparatory acts undertaken by a person entering that Member State with the intention to commit, or contribute to the commission of, a terrorist offence as referred to in Article 3.

Article 9 implements operative paragraph 6 of the UN Security Council Resolution 2178 and Article 4 of the Additional Protocol. The offence consists of an objective element and a subjective element. The objective element consists of travelling from an EU Member State to any State in the world, following the example set by the international legal instruments. This includes intra-EU travel. However, in sharp contrast with UN Security Council Resolution 2178 and the Additional Protocol, Article 9(2) of the EU Directive explicitly addresses returning foreign fighters by also criminalising travelling back to the EU Member State.51

48

European Commission 2015. European Parliament 2017. 50 EU Directive, above n 17. 51 Although UN Security Council Resolution 2178 does not explicitly address returning foreign terrorist fighters in operative paragraph 6, its provisions may apply to foreign terrorist fighters who travel to a third State in order to participate in an armed conflict, reside there for several years and then travel to another State which is not his State of nationality or residence. 49

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The paragraph was initially not foreseen in the Commission‘s proposal, but was included in the final text when evidence emerged of the growing threat posed by returnees. Moreover, the EU Directive requires States to criminalise “preparatory acts undertaken by a person entering the Member State”, without clarifying what preparatory acts are or the moment when they would have to take place. Inspired by the unfortunate drafting of UN Security Council Resolution 2178, the Directive defines the actus reus of foreign fighters so widely that successful prosecution for the new offence will depend on proving the mens rea. Another crucial difference in scope with UN Security Council Resolution 2178 which will likely affect prosecution of travelling abroad for terrorism at the domestic level is the exclusion of the activities of armed forces during an armed conflict for the application of the EU Directive and the Additional Protocol. While UN Security Council Resolution 2178 requires States to criminalise travelling abroad for terrorism “including in connection with armed conflict”, the EU Directive and the Additional Protocol explicitly exclude the activities of armed forces during an armed conflict.52 On this important issue, the EU Directive and the Additional Protocol follow the UN conventions on terrorism rather than the wording of UN Security Council Resolution 2178. Whether certain parties that engage in the use of violence during an armed conflict can be characterised as armed forces is an intricate question of law and fact, the discussion of which goes beyond the aims of this chapter. What is more, Article 13 of the EU Directive unequivocally states that in order to establish a terrorist purpose for travelling, it is not necessary that a terrorist offence be actually committed or to establish a link to another offence laid down in the Directive. The entirely innocent act of travelling becomes a terrorist offence based on the manifestation of ill-defined terrorist purpose, which could consist of premature steps rather than concrete preparatory acts. Once again proving the subjective element will be the decisive factor of a successful prosecution. The subjective element of the offence is a ‘terrorist purpose’. This purpose can be the commission, or contributing to the commission, of a terrorist offence, the participation in a terrorist group, or providing or receiving of training for terrorism. All three categories entail inherent legal problems caused by the EU definition of terrorism. The EU definition of terrorism is embodied in Article 3 of the EU Directive, which stipulates: Member States shall take the necessary measures to ensure that the following intentional acts, as defined as offences under national law, which, given their nature or context, may seriously damage a country or an international organisation, are defined as terrorist offences where committed with one of the aims listed in paragraph 2.

The list of acts enumerated in Article 3(1) of the EU Directive was clearly inspired by international counter-terrorism conventions and includes among other acts: attacks upon a person’s life, which may cause death, kidnapping or hostage taking, causing extensive destruction to a government or public facility, and seizure 52

EU Directive, above n 17, recital 37; Council of Europe Convention, above n 36, Article 26(5).

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of means of transport. The list is arguably too extensive,53 but the real problem of the EU definition is its subjective element. The subjective element is categorised by three different terrorist “aims”: “seriously intimidating a population”; “unduly compelling a government or an international organisation to perform or abstain from performing any act”; and “seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation”. It is the third terrorist aim of the EU definition that poses significant challenges to the principle of legality and the rule of law. The aim of “seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation” is far too widely defined. As Saul points out, the “idea of fundamental structures is particularly imprecise”.54 The fundamental structures that this aim seeks to protect are not limited to democratic States in the EU. Instead, the third aim protects the fundamental structures of any State in the world, even totalitarian States that desperately need fundamental changes in order to stop human rights violations and to protect human dignity. The inclusion of this aim appears to be at odds with the EU’s own foreign policy regarding certain totalitarian States, such as Syria and North Korea, which is itself aimed at seriously destabilising or destroying the fundamental structures of those States. Its inclusion is unnecessary as the other two aims are already capable of capturing all truly terrorist behaviour that could be displayed by foreign fighters. Almost all terrorist acts committed by (returning) foreign fighters will prima facie satisfy the requirement of ‘serious intimidation of a population’. In addition, the “undue compulsion” aim already affords more than enough protection to the interests of States and international organisations. Nonetheless, there is a real risk that the third aim could be applied to members of legitimate political opposition groups on the fringes of the political spectrum. The very objective of such groups is exactly to change the fundamental structures of a country, often by non-violent means. The unnecessary inclusion of the third aim could thus come at the expense of human dignity and human security. The first terrorist purpose of the new offence of travelling abroad for terrorism is the ‘commission of terrorist offences’, as enumerated in Article 3 of the EU Directive. This is a good example of a situation where the EU definition adumbrates the offences formulated in the Directive. While travelling abroad to commit acts to seriously intimidate a population should always be unlawful, it is not hard to think of situations where seriously destabilising the fundamental structures of a State would be legitimate: the resistance against fascist, communist, or racist regimes that are involved in massive human rights violations. The third aim of the EU definition contains a real risk of confusing proper foreign fighting and terrorist activities. 53

The specific acts listed in the EU definition are fairly precisely defined. However, some of the acts are defined more broadly than necessary to capture terrorist acts, for example the extensive destruction to public as well as private property likely to endanger human life or result in major economic loss. 54 Saul 2008, p 164.

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Travelling abroad to indiscriminately kill individuals in order to seriously intimidate a population is quite different from travelling abroad to attack a State‘s military infrastructure in an attempt to change the unjust fundamental structures of that State. Joining foreign wars might be morally justified or morally reprehensible. It might constitute a criminal offence under national law in States that place particular emphasis on the loyalty of their citizens. Foreign fighters might infringe the law of armed conflict and be held accountable for international crimes within the framework of international criminal law. Nevertheless, travelling abroad for classic foreign fighting without committing truly terrorist acts should not constitute a terrorist offence. The second terrorist purpose for which one may not travel abroad is the participation in a terrorist group. The open-textured concept of participating in a terrorist group is too loosely defined to satisfy the principle of legality and entails a real risk of guilt by association.55 Take the scenario in which some rogue individuals in a rebel group in a civil war commit an act of terrorism. The other side in the armed conflict subsequently insists that the entire rebel group is a terrorist organisation and manages to persuade the international community to do the same. As a result, anyone joining the rebel group can thus be accused of participation in a terrorist group, without any examination of the tasks that he or she individual fulfilled, the motivation to travel and join the group, or whether or not the individual has respected international humanitarian law. According to the EU Directive, the individual only needs to have knowledge of the fact that his or her participation will contribute to the criminal activities of such a group. According to Article 13 of the EU Directive, it is not necessary that terrorist offences are actually committed. National prosecutors have used the offence of ‘travelling abroad for the purpose of participation in a terrorist group’ in cases where they could prove that a suspected foreign fighter has made a contribution to the commission of terrorist offences. As it remains problematic to collect evidence in conflict zones, in many cases participation in a terrorist group is easier to prove than the commission of terrorist offences.56 The third terrorist purpose, the providing or receiving of training for terrorism, is equally troublesome and ill-defined. In addition to forming part of the offence of travelling abroad for terrorism, the EU Directive introduces ‘receiving training for terrorism’ as a separate offence under Article 8, targeting ‘lone wolf terrorists’ who radicalise and prepare for terrorist attacks individually. As discussed above, UN Security Council Resolution 2178 requires States to criminalise travelling abroad in order to receive training without defining the concept of ‘training’, giving leeway to States to come up with their own definition of receiving training. The EU Directive defines the receiving of training in Article 8 as “receiving instruction on the making or use of explosives, firearms or other weapons or noxious or hazardous substances, or on other specific methods or techniques, for the purpose of committing, or contributing to the commission of terrorist offences”.

55 56

See Decoeur 2017. Paulussen and Pitcher 2018, p 16.

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Following the obligations imposed by the UN Security Council, Article 10 of the EU Directive explicitly requires Member States to criminalise the organising or otherwise facilitating of travelling for the purpose of terrorism.57 The EU Directive fails to define key terms such as ‘organising’ and ‘facilitating’ in the operative text. The Explanatory Memorandum reveals the width of both concepts, for example specifying that “the term ‘facilitation’ is used to cover any other conduct than those falling under ‘organisation’ which assists the traveller in reaching his or her destination”.58 The EU Directive largely fulfils the criminalisation requirements of operative paragraph 6 of UN Security Council Resolution 2178 and occasionally exceeds them. However, the lack of clarity in the legal drafting of the offence will foreshadow its implementation by the Member States. Notably the EU Directive fails to clearly define and delimit the key legal concepts in Articles 9 and 10, such as ‘terrorist offence’, ‘contribution’, ‘participation in a terrorist group’, ‘training’, ‘organising’, and ‘facilitating’. Unsurprisingly, the Directive has been heavily criticised for its “greatly expanded scope of criminal liability for an otherwise ordinary activity”.59 The criminalisation of the everyday act of travelling abroad encroaches deeply upon personal freedom. The implementation of Article 9 of the EU Directive at the national level will likely lead to legal challenges based on the freedom of movement under EU law as set out in Article 3(2) of the Treaty on European Union,60 Article 21 of the Treaty on the Functioning of the European Union,61 and Article 45 of the Charter of Fundamental Rights of the European Union (CFR).62 Moreover, the criminalisation appears to be at odds with the right to leave one’s own country as defined in Article 12(2) of the International Covenant on Civil and Political Rights (ICCPR)63 and Article 2(2) of the European Convention on Human Rights (ECHR).64 Under both legal instruments, the right to leave is not absolute. Restrictions for reasons of national security are permitted.

57

EU Directive, above n 39, Article 10: Member States shall take the necessary measures to ensure that any act of organisation or facilitation that assists any person in travelling for the purpose of terrorism, as referred to in Article 9(1) and point (a) of Article 9(2), knowing that the assistance thus rendered is for that purpose, is punishable as a criminal offence when committed intentionally.

58

European Commission 2015, Explanatory Memorandum, p 18. Meijers Committee 2016, p 7. 60 Consolidated Version of the Treaty on European Union, opened for signature 13 December 2007, 55 OJ C 326 (entered into force 1 December 2009). 61 Consolidated Version of the Treaty on the Functioning of the European Union, opened for signature 13 December 2007, 55 OJ C 326 (entered into force 1 December 2009). 62 Charter of Fundamental Rights of the European Union, proclaimed 12 December 2007, 326 OJ C 391 (entered into force 1 December 2009). 63 International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976. 64 European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953). See UN Human 59

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However, laws restricting the right to leave one’s own country must be clearly defined, proportionate, and foreseeable in order to satisfy the principle of legality as defined in Article 49 of the CFR, Article 15(1) of the ICCPR, and Article 7(1) of the ECHR.65 Subject to correct transposition by Member States, this may not be the case with the new offence of travelling abroad for terrorism.66 Crucially, returning foreign fighters have the right to enter the territory of the State of which they are a national under Article 3(2) of the Protocol No. 4 to the European Convention on Human Rights. It is clear that for those States that are bound by it the EU Directive constitutes the primary source of international legal obligations for the criminalisation of foreign fighter travel. This is particularly so because the Directive is subject to infringement and judicial review procedures unlike UN Security Council Resolution 2178 and the Additional Protocol. However, as many Member States had already taken initiatives to criminalise foreign fighter travel prior to the adoption of the EU Directive,67 fragmented implementation is plausible. Diverging prosecution strategies, domestic definitions of terrorism, and sentencing policies could impair a comprehensive European approach.68

11.3

The Preventive Turn of European Counter-Terrorism Law and Its Impact on Human Dignity and Human Security

For the reasons outlined above, the new criminal offence of travelling abroad for terrorism has serious definitional weaknesses that concern both the mens rea and actus reus, posing significant legal challenges from the perspective of the rule of law and human rights. Any new criminal offence, and any new terrorist offence in particular, must be necessary and proportionate. The burden of proof is upon the State to provide compelling and substantiated arguments that justify the deep intrusion criminal law makes on the liberty of the individual, including arguments why measures less intrusive than the criminal law would not suffice. To justify its coercive power, the State will need to demonstrate that the new offence serves at least one of the commonly suggested philosophical purposes of punishment: general and specific deterrence, rehabilitation, retribution, restitution, and incapacitation.

Rights Committee (1999) General Comment No. 27: Article 12 (Freedom of Movement), UN Doc CCPR/C/21/Rev.1/Add.9. 65 For an overview of the case law on the principle of legality, see Murphy 2010, p 192. 66 A positive aspect of the EU Directive is that its implementation is subject to the infringement powers of the European Commission and even more importantly to the judicial review of the Court of Justice of the European Union. 67 Paulussen and Pitcher 2018. See also Boutin et al. 2016. 68 This was the case with the Framework Decision. See Murphy 2012.

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11.3.1 Criminalising Foreign Fighter Travel in Order to Prevent Terrorism The offence of travelling abroad for terrorism does not seem to be conducive to the traditional ends of punishment, with the possible exception of incapacitation. It is implausible that the establishment of the new offence will result in either general or specific deterrence of hard-core prospective terrorists. The deterrent effect of counter-terrorism measures on prospective terrorists has been largely rejected in the literature.69 It is equally unlikely that prospective terrorists are deterred by the punishment of others. On the contrary, indiscriminate and excessively repressive laws may exacerbate the radicalisation of prospective terrorists and the people around them.70 While hard-core terrorists are unlikely to be deterred, the criminalisation of travelling abroad for terrorism could deter naive people with purely humanitarian intentions from travelling to conflict zones. If one assumes that such people run a real risk of becoming radicalised or being recruited by terrorist organisations, then the offence would also apply to these non-terrorist individuals who could be prevented from radicalising and hence from committing terrorist attacks. Furthermore, it is highly uncertain that serving a prison sentence will contribute to the rehabilitation of the offender. In principle, it is not impossible to imagine a humane and properly resourced prison system that would provide for rehabilitation and deradicalisation of terrorists. In reality, some prison systems are known to be potential incubators for radicalisation and recruitment of terrorists, as is acknowledged by the Security Council in Security Council Resolution 2396.71 Since travelling abroad for terrorism is not a harmful act in itself, but merely a preparatory act that could lead to potential harm in a distant future, the offence will not contribute to the aim of retribution. It cannot be excluded that the act of travelling abroad for terrorism causes harm in a more indirect, non-physical fashion. However, this is not enough to fully satisfy the harm principle, which requires harm to other individuals as a prerequisite for the limitation of individual action by the State. Restitution is impossible as the mere travelling abroad for terrorism is not likely to lead to any illegitimate gains and there are no victims to compensate. The primary purpose that the new offence appears to serve is the prevention of terrorist acts through incapacitation of the suspect: as long as the suspected foreign fighter is imprisoned, he or she will not be able to commit acts of terrorism. Additionally, the new offence could be conducive to the prevention of radicalisation of innocent people and their recruitment by terrorist organisations in conflict zones, possibly resulting in the prevention of actual acts of terrorism in a more distant future. As the other aims of punishment seem largely irrelevant to the foreign 69

Van Ginkel 2015. Neumann 2017, pp 22–23. 71 UN Security Council (2017) Resolution 2396 (2017), UN Doc. S/RES/2396, Preamble and paras 40–41. See also Cuthbertson 2004, pp 15–16. 70

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fighter context, the prevention of acts of terrorism in Europe could in the end be the very objective of the criminalisation of foreign fighter travel. The new offence is the latest example of the preventive turn that the criminal law,72 and even more so European counter-terrorism law, have taken in recent decades.73 The preventive purpose of the new offence is in the first place evident from the type of human behaviour concerned: travel that may result in acts of terrorism. In the context of the EU Directive, the preventive character of the offence is exacerbated by the inexact delineation of the actus reus, the expansive definition of terrorism, and the criminalisation of undefined “preparatory acts undertaken by a person entering a Member State” in Article 9(2)(b) of the EU Directive. Furthermore, under the Directive it will also be illegal to attempt74 to travel abroad, or to incite others to do so, expanding the scope of criminal behaviour even further.75 The criminalisation of travelling between EU Member States is paradigmatic of the preventive character of the actus reus of the offence in the Directive. The general approach of the Council wisely limited the offence to “travelling to a country outside the Union, directly or by transiting through one or several Member States of the Union”.76 However, the Trilogue negotiations resulted in the criminalisation of intra-EU travel in addition to outside travel. The negotiations took place at a time when law enforcement agencies in some European States were heavily criticised for being unable to prevent the swift movements of suspected terrorists across the Schengen area. An example is the journey of Anis Amri, who committed a terrorist attack on a Christmas market in Berlin, travelled through the Netherlands, Belgium, and France and accidentally ended up being shot dead by Italian police in a suburb of Milan.77 The movements of suspected terrorists between EU Member States should be prevented through enhanced intelligence cooperation at the European level as well as targeted surveillance in accordance with the law. There are already myriad tools available at the European and domestic level that can be used to identify and detect terrorist suspects and unleash surveillance powers upon them. Therefore, the Council’s approach of limiting the offence to travelling to States outside the Union should have prevailed, considering that travelling is an ordinary act that ought not to be criminalised unless there are specific and compelling reasons that would justify such a far-reaching intrusion on individual liberty. It would have been more effective to design the offence for the

72

Ashworth and Zedner 2014; Carvalho 2017. Murphy 2012, p 219. 74 With the exception of attempting to commit the preparatory acts mentioned in EU Directive, above n 17, Article 9(2)(b). 75 EU Directive, above n 39, Article 14. The aiding and abetting of travelling abroad for terrorism is rightly not criminalised. 76 Council of the European Union 2016, p 16. 77 BBC News (2016) Berlin market attack: How did Anis Amri escape? http://www.bbc.com/ news/world-europe-38425945. Accessed 1 March 2018. 73

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aim it was originally intended for, i.e. to capture the foreign fighters who were travelling to foreign battle zones, in the Middle-East or elsewhere, in order to join terrorist organisations. For this purpose, the criminalisation of travelling from one EU Member State to another is entirely unnecessary. Through its determination of the scope of human behaviour and the range of targets, the definition of terrorism plays a vital role in the preventive dimension.78 Murphy has suggested that, in addition to the political expediency and the declaratory and stigmatising effect of criminalising terrorism as such, the definition of terrorism may also be part of a wider crime prevention strategy and at the same time serve as a justification for extraordinary measures. The purpose of the definition of terrorism could thus be the prevention of terrorist acts rather than the punishment of suspected terrorists.79 In this respect, Murphy has argued that “the role of the definition of terrorism is to identify those persons who are likely to commit such acts and authorise greater investigative powers to be used against them: disrupting their activities rather than responding after an attack”.80 These observations on the gradual turn from punishment to prevention are particularly acute in the context of the new offence. Even more than with the Framework Decision, it is plausible that the role of the definition of terrorism in the EU Directive is to identify and anticipate the activities of prospective terrorists in order to prevent the commission of terrorist acts. By bringing the activities of foreign fighters within the definition of terrorism, the pivot from punishment towards prevention in EU counter-terrorism law is now more evident than ever. The preventive turn taken at the European level is not a secret. Member of the European Parliament Hohlmeier, who negotiated the Directive on behalf of the European Parliament, stated: “[w]e need to stop the perpetrators before they commit these acts rather than regretting the fact that there have been attacks.”81 In a similar vein, Caiola of the Parliament’s Legal Service agrees that the Directive “creates concrete opportunities to prevent terrorism”.82 The Council of Europe also made clear in no uncertain terms that prevention is the primary aim of the Additional Protocol. Article 1 of the Protocol stipulates that “the purpose of this Protocol is to supplement the provisions of the Council of Europe Convention on the Prevention of Terrorism, […] thereby enhancing the efforts of Parties in preventing terrorism and its negative effects on the full enjoyment of human rights.” Furthermore, the Explanatory Report of the Protocol states that:

78

Ashworth and Zedner 2014, p 173. Murphy 2012, p 54. 80 Ibid. 81 European Parliament (2017) Preventing terrorism: clampdown on foreign fighters and lone wolves. http://www.europarl.europa.eu/news/en/press-room/20170210IPR61803/preventingterrorism-clampdown-on-foreign-fighters-and-lone-wolves. Accessed 1 March 2018. 82 Caiola 2017, p 424. 79

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When transposing the Protocol into domestic law, Parties shall take into account that Articles 2 to 6 criminalise behaviour at a stage preceding the actual commission of a terrorist offence but already having the potential to lead to the commission of such acts. The conditions under which the conduct in question is criminalised need to be foreseeable with legal certainty.83

11.3.2 The Adverse Impact on Human Dignity and Human Security of the New Offence of Travelling Abroad for Terrorism The main rationale behind the new offence is thus the prevention of future harm rather than the retribution for past harm. The new offence criminalises behaviour that is “temporarily and causally remote from the substantive harm”,84 i.e. behaviour that does not constitute a clear and present danger. In order to obtain convictions for travelling abroad for terrorism, prosecutors must delve deeply into the preparatory phase of a criminal act and into the distressed mind of the terrorist suspects. Paulussen and Pitcher have highlighted that the success of prosecution will depend on the “construction” of intent, which is plagued by evidentiary challenges, especially in the context of digital evidence.85 The risk of this approach is that it is likely to result in the targeting of individuals who are considered as dangerous because of their adherence to a certain ideology or set of beliefs. This is a consequence of the preventive turn of counter-terrorism law and the “resurgence of dangerousness as a primary concept guiding developments in criminalisation, reflected in the framework of criminal responsibility by a predominance of character and risk responsibility”.86 An approach that attributes criminal responsibility on the basis of character and risk fails to treat suspected foreign fighters as human beings who are ends in themselves. Instead, they are considered a risk to be contained, a danger to be averted. The incapacitation of suspected foreign fighters then becomes a means to achieve a higher end: the prevention of terrorist attacks. Treating suspected foreign fighters as mere means to a higher end, constitutes an assault on the human dignity of suspected foreign fighters qua human beings. They must be held accountable for their actions, not for their thoughts and ideas. Foreign fighters are individuals with diverse life stories and unique backgrounds87 and possess the right to equal treatment before the law just like anyone else, even if their ideas are repulsive. This fundamental right touches upon the essence of the rule of law and is guaranteed in domestic legal

83 84 85 86 87

Council of Europe 2015, para 29. Ashworth and Zedner 2014, p 180. Paulussen and Pitcher 2018, p 31. Carvalho 2017, p 179. Frenett and Silverman 2016.

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systems across Europe as well as in Article 14 of the ECHR. The right to a fair trial, including the presumption of innocence, the principle of legality, the freedom of thought, and the freedom of expression should apply unequivocally to foreign fighter cases. Failure to do so not only violates the human dignity of foreign fighters, but also engages the positive rights guaranteed under the ECHR, with concrete possibilities of supranational judicial review. The criminalisation of thoughts and ideas is not an illusory, but imminent danger when it comes to the prosecution of foreign fighters at the domestic level. Decoeur has revealed an underlying pattern of guilt by association in the French criminal justice response to foreign fighters, resulting from a conflation between jihad and terrorism in the application of the offence of ‘participation in a terrorist group’.88 According to Decoeur, by punishing individuals for their adherence to a certain cause, France has adopted a form of ‘enemy criminal law’ (Feindstrafrecht).89 It is currently fashionable in politics to brand foreign fighters as enemies of the State, based on their espousal of jihadist ideology. The political instrumentalisation of the foreign fighter phenomenon and the legal response are increasingly intertwined. The former Prime Minister of the UK famously told British foreign fighters: “[y]ou have declared your allegiance. You are an enemy of the UK and you should expect to be treated as such.”90 A Government Minister went even further: These are people who have essentially moved away from any kind of allegiance towards the British Government. So I’m afraid we have to be serious about the fact these people are a serious danger to us, and unfortunately the only way of dealing with them will be, in almost every case, to kill them.91

This inflammatory rhetoric by politicians in response to the public fear of terrorism is framed more like ideological warfare than as a call for individual accountability. The message to foreign fighters is thus rather unambiguous: ‘who is not with us, is against us’. While it is premature to conclude that the new offence forms indeed part of a modern-day Feindstrafrecht at the European level, it is clear that inappropriate use of the hugely controversial term terrorism could lead to the further polarisation of society and the marginalisation of certain social groups, which comes at the expense of human security. Aksenova has persuasively argued that the fight against terrorism and the preventive turn taken have effectively reversed the traditional roles assigned by the criminal justice system to victims, offenders, and mediators. As a result of preventive counter-terrorism laws, she argues that:

88

Decoeur 2017, p 322. Ibid., p 322. 90 Cameron D (2014) Speech to Conservative Party Conference 2014. http://press.conservatives. com/post/98882674910/david-cameron-speech-to-conservative-party. Accessed 1 March 2018. 91 Daily Telegraph (2018) The only way of dealing with British Islamic State fighters is to kill them in almost every case. https://www.telegraph.co.uk/news/2017/10/22/way-dealing-britishislamic-state-fighters-kill-almost-every/. Accessed 1 March 2018. 89

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[T]errorist suspects become the new ‘victims’ if they are tortured, banned from entering a country or mistreated in other ways, executive agencies sanctioning these practices become the ‘new villains’, and those harmed by the attacks involuntarily become the new ‘mediators’ because their suffering is intended to transmit a certain message to the rest of the world.92

The preventive focus of the offence of travelling abroad for terrorism makes it likely that this reversal of roles will also manifest itself in the legal response to foreign fighters. For instance, there has been a strong public reaction against the prosecution of foreign fighters who travelled to Syria in order to join militia fighting against both the Islamic State and the Syrian Government. Their only hope is the exercise of prosecutorial discretion,93 which could in turn lead to an arbitrary application of the law. In times of turbulence and perceived insecurity, governments can ill afford to look soft on foreign fighters. Governmental responses instinctively attempt to address feelings of insecurity with a tough ‘law and order’ approach. Ashworth and Zedner point out that counter-terrorism laws threaten two different concepts of security: physical or national security as well as individual security. They argue that security is a double-edged sword as “counterterrorism laws and measures seek to provide security against future attack but they also create a different security risk, namely the risk to individual security posed by the coercive power of the state”.94 As a result, ill-defined counter-terrorism laws that target foreign fighters do not only violate human rights and human dignity, they could also come at the expense of human security in the broadest sense.

11.4

Conclusion

This chapter does not advocate a ‘soft’ response to foreign fighters. Criminal law is still a much better tool to address foreign fighters than targeted killings through airstrikes or depriving them of their citizenship. With clearly defined offences and traditional due process guarantees, criminal law could offer a robust response to foreign fighters and play a central role in enhancing human security. This chapter has revealed that the new offence of travelling abroad for terrorism, as it has been outlined by the legal instruments adopted by the United Nations, the Council of Europe, and the European Union, fails to meet elementary requirements of the rule of law and international human rights law. While prevention of future crimes is a legitimate purpose of punishment, its application in the context of the new offence of travelling abroad for terrorism is highly problematic from the perspective of the rule of law and human rights. The offence of travelling abroad for

92 93 94

Aksenova 2017, p 17. Paulussen and Pitcher 2018, pp 24–25. Ashworth and Zedner 2014, p 171.

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terrorism with its criminalisation of human behaviour at an extraordinary early stage and its lack of legal clarity and certainty, is unhelpful to the end of protecting the values of human dignity and human security. The implementation of the new offence at the domestic level therefore poses a major test for the rule of law in Europe. Grave harm is caused by the atrocious terrorist attacks that assault the human dignity of the victims and their families in their attempt to undermine the rule of law. Grave harm is also caused by the criminalisation of thoughts and ideas, no matter how objectionable, and vague and immature travel plans. The protection of the human rights and human dignity of all human beings, even those who hold repulsive beliefs, must remain a key feature of the rule of law in European States. In the long-term, upholding the human dignity of both the victims of terrorist attacks and suspected terrorists is the most effective way to enhance human security of all.

References Articles, Books and Other Documents Aksenova M (2017) Of victims and villains in the fight against international terrorism. European Journal of Legal Studies 10(1):17–38 Ambos K (2014) Our terrorists, your terrorists? The United Nations Security Council urges states to combat “foreign terrorist fighters” but does not define “terrorism”. EJIL: Talk! https://www. ejiltalk.org/our-terrorists-your-terrorists-the-united-nations-security-council-urges-states-tocombat-foreign-terrorist-fighters-but-does-not-define-terrorism/. Accessed 1 March 2018 Ashworth A, Zedner L (2014) Preventive Justice. Oxford University Press, Oxford Barrett R (2017) Beyond the Caliphate: Foreign Fighters and the Threat of Returnees. The Soufan Center. https://thesoufancenter.org/wp-content/uploads/2017/11/Beyond-the-Caliphate-ForeignFighters-and-the-Threat-of-Returnees-TSC-Report-October-2017-v3.pdf. Accessed 1 March 2018 Bianchi A (2006) Security Council’s Anti-Terror Resolution and their Implementation by Member States. Journal of International Criminal Justice 4(5):1044–1073 Boutin B, Chauzal G, Dorsey J, Jegerings M, Paulussen C, Pohl J, Reed A, Zavagli S (2016) The Foreign Fighters Phenomenon in the European Union. International Centre for Counter-Terrorism—The Hague. https://icct.nl/wp-content/uploads/2016/03/ICCT-Report_ Foreign-Fighters-Phenomenon-in-the-EU_1-April-2016_including-AnnexesLinks.pdf. Accessed 1 March 2018 Caiola A (2017) The European Parliament and the Directive on combating terrorism. ERA Forum 18(3):409–424 Carvalho H (2017) The Preventive Turn in Criminal Law. Oxford University Press, Oxford Coolsaet R, Renard T (2018) Conclusion: Converging Policies and Returnees and Key Challenges Ahead. In: Renard T, Coolsaet R (eds) Returnees: Who Are They, Why Are They (Not) Coming Back and How Should We Deal With Them? Assessing Policies on Returning Foreign Terrorist Fighters in Belgium, Germany and the Netherlands. Egmont Paper 101. http://www.egmontinstitute.be/content/uploads/2018/02/egmont.papers.101_online_v1-3.pdf? type=pdf. Accessed 1 March 2018 Council of Europe (2015) Explanatory Report to the Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism. https://rm.coe.int/CoERMPublicCommonSearch Services/DisplayDCTMContent?documentId=090000168047c5ec. Accessed 16 July 2019

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Council of the European Union (2016) Proposal for a Directive of the European Parliament and of the Council on combating terrorism and replacing Council Framework Decision 2002/475/JHA on combating terrorism [First reading]—General Approach, DOC 6655/16 Cuthbertson IM (2004) Prisons and the Education of Terrorists. World Policy Journal 21(3):15–22 de Guttry A, Capone F, Paulussen C (2016) Introduction. In: de Guttry A, Capone F, Paulussen C (eds) Foreign Fighters under International Law and Beyond. T.M.C. Asser Press, The Hague, pp 1–5 De Kerchove G, Höhn C (2016) The Regional Answers and Governance Structure for Dealing with Foreign Fighters: The Case of the EU. In: de Guttry A, Capone F, Paulussen C (eds) Foreign Fighters under International Law and Beyond. T.M.C. Asser Press, The Hague, pp 299–331 Decoeur H (2017) The Criminalisation of Armed Jihad under French Law: Guilt by Association in the Age of Enemy Criminal Law. European Journal of Crime, Criminal Law and Criminal Justice 25(4):299–326 Dumitriu E (2004) The E.U.’s Definition of Terrorism: The Council Framework Decision on Combating Terrorism. German Law Journal 5(5):585–602 EU Counter-Terrorism Coordinator (2014) Foreign fighters and returnees: discussion paper. Council of the European Union. http://data.consilium.europa.eu/doc/document/ST-157152014-REV-2/en/pdf. Accessed 1 March 2018 European Commission (2015) Proposal for a Directive of the European Parliament and of the Council on combating terrorism and replacing Council Framework Decision 2002/475/JHA on combating terrorism, COM(2015) 625 def. European Council (2014) Special Meeting of the European Council (30 August 2014) – Conclusions. http://data.consilium.europa.eu/doc/document/ST-163-2014-INIT/en/pdf. Accessed 1 March 2018 European Parliament (2017) European Parliament legislative resolution of 16 February 2017 on the proposal for a directive of the European Parliament and of the Council on combating terrorism and replacing Council Framework Decision 2002/475/JHA on combating terrorism (COM(2015)0625 – C8-0386/2015 – 2015/0281(COD)), P8_TA(2017)0046 Frenett R, Silverman T (2016) Foreign Fighters: Motivations to Travel to Foreign Conflicts. In: de Guttry A, Capone F, Paulussen C (eds) Foreign Fighters under International Law and Beyond. T.M.C. Asser Press, The Hague, pp 63–76 Gless S (2012) The two Framework Decisions: A critical approach. In: Weyembergh A, Galli F (eds) EU counter-terrorism offences: what impact on national legislation and case-law? Editions de l’‘Université Libre de Bruxelles, Brussels, pp 33–49 Guillaume G (2004) Terrorism and International Law. International & Comparative Law Quarterly 53(3):537–548 Krähenmann S (2014) Foreign Fighters under International Law. Geneva Academy of International Humanitarian Law and Human Rights, Geneva. https://www.geneva-academy. ch/joomlatools-files/docman-files/Publications/Academy%20Briefings/Foreign%20Fighters_ 2015_WEB.pdf. Accessed 1 March 2018 Leenaars J, Reed A (2016) Understanding lone wolves: Towards a theoretical framework for comparative analysis. International Centre for Counter-Terrorism—The Hague. https://icct.nl/ publication/understanding-lone-wolves-towards-a-theoretical-framework-for-comparativeanalysis/. Accessed 14 October 2018 Meijers Committee (2016) Note on the Proposal for a Directive on combating terrorism. http:// www.commissiemeijers.nl/sites/all/files/cm1603_note_on_a_proposal_for_a_directive_on_ combating_terrorism_.pdf. Accessed 1 March 2018 Murphy CC (2010) The Principle of Legality in Criminal Law under the ECHR. European Human Rights Law Review 2:192–210 Murphy CC (2012) EU Counter-Terrorism Law: Pre-Emption and the Rule of Law. Hart Publishing, Oxford Neumann P (2017) Countering Violent Extremism and Radicalisation that Lead to Terrorism: Ideas, Recommendations, and Good Practices from the OSCE Region. Organization for

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Security and Co-operation in Europe. https://www.osce.org/chairmanship/346841?download= true. Accessed 14 October 2018 Neumann P (2018) ISIS And Terrorism in Europe: What Next? International Centre for the Study of Radicalisation and Political Violence. http://icsr.info/2018/02/icsr-insight-isis-terrorismeurope-next/. Accessed 1 March 2018 Paulussen C, Pitcher K (2018) Prosecuting (Potential) Foreign Fighters: Legislative and Practical Challenges. International Centre for Counter-Terrorism—The Hague. https://icct.nl/wpcontent/uploads/2018/01/ICCT-Paulussen-Pitcher-Prosecuting-Potential-Foreign-FightersLegislative-Practical-Challenges-Jan2018.pdf. Accessed 1 March 2018 Pew Research Center (2017) Globally People Point to ISIS and Climate Change as Leading Security Threats. http://assets.pewresearch.org/wp-content/uploads/sites/2/2017/07/31101043/ Pew-Research-Center_2017.07.13_Global-Threats_Full-Report.pdf. Accessed 1 March 2018 Radicalisation Awareness Network (2017) Responses to returnees: Foreign terrorist fighters and their families. European Commission. https://ec.europa.eu/home-affairs/sites/homeaffairs/files/ ran_br_a4_m10_en.pdf. Accessed 1 March 2018 Roach K (2011) The 9/11 Effect: Comparative Counter-Terrorism. Cambridge University Press, Cambridge Saul B (2008) Defining Terrorism in International Law. Oxford University Press, Oxford Scheinin M (2014) Back to post-9/11 panic? Security Council resolution on foreign terrorist fighters. Just Security. https://www.justsecurity.org/15407/post-911-panic-security-councilresolution-foreign-terrorist-fighters-scheinin/. Accessed 1 March 2018 Scheinin M (2015) The Council of Europe’s Draft Protocol on Foreign Terrorist Fighters is Fundamentally Flawed. Just Security. https://www.justsecurity.org/21207/council-europedraft-protocol-foreign-terrorist-fighters-fundamentally-flawed/. Accessed 1 March 2018 Szasz PC (2002) The Security Council Starts Legislating. American Journal of International Law 96(4):901–905 Talmon S (2005) The Security Council as World Legislature. American Journal of International Law 99(1):175–193 UN Human Rights Committee (1999) General Comment No. 27: Article 12 (Freedom of Movement), UN Doc CCPR/C/21/Rev.1/Add.9 UN Security Council (2001) Resolution 1373 (2001), UN Doc. S/RES/1373 UN Security Council (2004) Resolution 1566 (2004), UN Doc. S/RES/1566 UN Security Council (2014) Resolution 2170 (2014), UN Doc. S/RES/2170 UN Security Council (2014) Resolution 2178 (2014), UN Doc. S/RES/2178 UN Security Council (2017) Resolution 2396 (2017), UN Doc. S/RES/2396 UN Security Council (2018) Sixth report of the Secretary-General on the threat posed by ISIL (Da’esh) to international peace and security and the range of United Nations efforts in support of Member States in countering the threat, UN Doc. S/2018/80 Van Ginkel B (2015) The (In-)Effectiveness of “Deterrence” as an Instrument Against Jihadist Terrorist Threats. International Centre for Counter-Terrorism—The Hague. https://icct.nl/ publication/the-in-effectiveness-of-deterrence-as-an-instrument-against-jihadist-terroristthreats/. Accessed 1 March 2018

Legislation European Union, Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism (repealed and replaced by Directive 2017/541) European Union, Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on combating terrorism (repealed by Directive 2017/541) European Union, Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/ JHA and amending Council Decision 2005/671/JHA

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Treaties Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism, opened for signature 22 October 2015, CETS 217 (entered into force 1 July 2017) Charter of Fundamental Rights of the European Union, proclaimed 12 December 2007, 326 OJ C 391 (entered into force 1 December 2009) Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945) Consolidated Version of the Treaty on European Union, opened for signature 13 December 2007, 55 OJ C 326 (entered into force 1 December 2009) Consolidated Version of the Treaty on the Functioning of the European Union, opened for signature 13 December 2007, 55 OJ C 326 (entered into force 1 December 2009) Council of Europe Convention on the Prevention of Terrorism, opened for signature 16 May 2005, CETS 196 (entered into force 1 June 2007) European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953) International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

Tarik Gherbaoui LL.M. is a Ph.D. Researcher at the European University Institute (Florence, Italy). His doctoral research investigates the European legal response to foreign fighters and its impact on the rule of law and human rights. He has been a Visiting Doctoral Researcher at the London School of Economics and Political Sciences. Furthermore, he is a member of the Editorial Board of the European Journal of Legal Studies (European University Institute). Tarik holds degrees from the European University Institute, the University of Cambridge, and the University of Amsterdam. Tarik’s research interests include counter-terrorism law, human rights, and public international law.

Chapter 12

Incitement to Terrorism: The Nexus Between Causality and Intent and the Question of Legitimacy—A Case Study of the European Union, Belgium and the United Kingdom Stéphanie De Coensel

Contents 12.1 Introduction: Prevention Versus Reaction—A Shift in Paradigms ................................ 12.2 EU Policy 2002–2017: The Expansion of Speech-Restricting Measures...................... 12.2.1 2002 Framework Decision: Criminalisation Depending Upon the Actions of a Third Actor ................................................................................................. 12.2.2 2008 Framework Decision: A Risk of Harm Suffices....................................... 12.2.3 Directive 2017/541: An Ambiguous Wording of the Causality Requirement........................................................................................................ 12.3 Comparative Analysis: A Case Study of Belgium and the United Kingdom ............... 12.3.1 Belgium: Deletion and Reintroduction of the Causality Requirement ............. 12.3.2 The United Kingdom: Mere Recklessness Suffices........................................... 12.4 Legitimacy: The Magna Carta of the Criminal Law..................................................... 12.4.1 Subsidiarity: Undermining the Ultima Ratio Principle...................................... 12.4.2 Proportionality: Questioning the Necessity in a Democratic Society ............... 12.4.3 Legality: Abolishing the Use of Vague Language ............................................ 12.5 Conclusion: A Contradiction of the Human Security Paradigm.................................... References ..................................................................................................................................

270 272 272 274 276 282 282 283 285 285 288 290 292 293

Abstract In an effort to prevent terrorism and an environment conducive to terrorism, legislators increasingly resort to speech-restricting measures. To exemplify this expansion, the evolution of the European Union’s (EU) criminal policy on

S. De Coensel (&) Department of Criminology, Criminal Law, and Social Law, Ghent University, Ghent, Belgium e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 C. Paulussen and M. Scheinin (eds.), Human Dignity and Human Security in Times of Terrorism, https://doi.org/10.1007/978-94-6265-355-9_12

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incitement to terrorism is mapped. Domestic authorities often go further than the minimum requirements of the EU (for example Belgium) or have introduced far-reaching criminal law provisions regardless of an initiative at the EU level (for example the United Kingdom (UK)). Therefore, this chapter aims to subject the criminal policies of incitement to terrorism of the EU, Belgium and the UK to a legitimacy test. To answer this question of legitimacy, the three main principles of criminal law, namely subsidiarity, proportionality and legality, are used as the theoretical backbone of the research. The author argues that by lowering or eliminating certain constitutive elements, and by introducing vague language, these principles have come under pressure. In order to safeguard the fundamental values of democracy and the requirements of the rule of law, a criminalisation of speech must always entail a strong nexus between an objective imminent danger and a subjective intention.




Keywords Incitement Glorification Legitimacy Criminal law




12.1


Public provocation
Terrorism


Introduction: Prevention Versus Reaction—A Shift in Paradigms

How to deal with the emerging security threat of terrorism is a question high on the policy agenda. According to the paradigm of human security, proactive and preventive actions should be at the centre of counterterrorism policy.1 It is considered key to combat terrorism by addressing the root causes, by putting the wellbeing of people first, by providing decent living conditions, and by ensuring democratic governance in order for our contemporary societies to generate fewer terrorists and people who sympathise with terrorists.2 Central in this chapter, however, is the contrast between this underlying reasoning and the criminal law approach that can be witnessed at both national and supranational levels. Although the notions of human security and human dignity are highly valued, policymakers—often pressured in the aftermath of a terrorist attack—tend to enact reactive and repressive criminal law provisions used for preventive aims. This tendency is noticeable across the entire criminal law system, but is all the more perceptible in cases of terrorism. While criminal law traditionally only restricts the full completion of an offence, and to some extent the attempt thereto, criminal liability is nowadays extended to preparatory and facilitating acts, and even mere risk-involving behaviour.3 This extension of criminal liability must be embedded in the broader context of a changing criminal law system in which the paradigms are 1 2 3

For more information, see United Nations Trust Fund for Human Security 2018. Benedek 2002, p 3. Sugman Stubbs and Galli 2012, p 291.

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clearly shifting. A ‘post-crime society’ has made way for a ‘pre-crime society’4 or even a ‘risk society’,5 and the paradigm of governments providing a safe society so to ensure the full enjoyment of fundamental rights and freedoms has altered. Nowadays, these very same fundamental rights and freedoms are restricted in order to guarantee a safe society.6 The evolution of speech-restricting measures is the prime example of this further expanding security sphere. Several academics, non-governmental organisations and other institutions have expressed their concerns relating to speech-restricting measures.7 However, an analysis of this counterterrorism policy placed in the broader context of the criminal justice system and its fundaments has not been adequately addressed in legal academia. Therefore, this chapter aims to assess the legitimacy of three legal frameworks relating to incitement to terrorism. More in particular, the new European Union (EU) Directive—given its relatively recent adoption—has not been the subject of extensive scholarly research. This will be remedied in the first section by evaluating the evolution of the European Union’s criminal policy on incitement8 to terrorism and, more specifically, the current Article 5 on public provocation of Directive 2017/541.9 In order to fully grasp the rationale of the current Directive, the first part of the chapter focusses on the previous expansions of speech-restricting measures through an extensive background analysis of the legislative procedure. Framework Decision 2002/475/JHA10 and amending Framework Decision 2008/919/JHA11—repealed and replaced by Directive 2017/54112—are reviewed. Thereafter, a comparative review of the policies of

4

Zedner 2007. Amoore and de Goede 2008. However, the notion of ‘risk society’ was already introduced in the eighties by sociologist Ulrich Beck. See Beck 1992. 6 Amnesty International 2017, p 6. 7 See, amongst others, Office for Democratic Institutions and Human Rights 2006; European Parliament Policy Department for Citizens’ Rights and Constitutional Affairs 2008; International Commission of Jurists 2008; Boyne 2010; Mellinger 2010; Ronen 2010; van Ginkel 2011; Rediker 2015; Amnesty International 2017. 8 Across legislation, different terms such as ‘direct incitement’, ‘indirect incitement’, ‘encouragement’, ‘glorification’, etc. are used. When aiming at the overarching term throughout this chapter, the term ‘incitement’ will be used. However, no internationally binding definition exists. On the level of the United Nations, the term ‘incitement’ is incorporated in the Resolution but it is not defined. Petzsche 2017, p 243. 9 European Union, Directive (EU) 2017a/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA (Directive 2017/541). 10 European Union, Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism (repealed and replaced by Directive 2017/541) (2002 Framework Decision). 11 European Union, Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on combating terrorism (repealed by Directive 2017/541) (2008 Framework Decision). 12 Directive 2017/541 entered into force on 20 April 2017, but Member States were given until 8 September 2018 to comply (Directive 2017/541, above n 9, Article 28(1) on transposition). 5

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Belgium and the United Kingdom (UK) shows national differences and illustrates the need to go further than the minimum requirements of the EU or to introduce far-reaching criminal law provisions regardless of an initiative at the EU level. Each legal framework has its own repercussions regarding its legitimacy. This question of legitimacy is answered in the final section, in which the three cornerstone principles of criminal law, i.e. subsidiarity, proportionality and legality, are used as guiding criteria and constitute the theoretical backbone of the research. This chapter argues that the policies of each of these case studies put the three main principles of criminal law under pressure. Whereas the EU clearly expands its reach with each new instrument and introduces an ambiguous altering of the wording of the causality requirement in the new Directive, both Belgium–although later overruled by the Belgian Constitutional Court–and the UK delete the causality requirement in its entirety. In addition, the UK lowers the mens rea standard from specific intent to recklessness. The lasting terrorism threat undoubtedly has transformed the functioning of the criminal justice system in a strong effort to maintain safety, or at least the appearance of safety. What follows, however, is a call for a harm-based criminal law system and thus, a plea for an imminent risk requirement.

12.2

EU Policy 2002–2017: The Expansion of Speech-Restricting Measures

12.2.1 2002 Framework Decision: Criminalisation Depending Upon the Actions of a Third Actor Framework Decision 2002/475/JHA was considered the cornerstone of the Member States’ criminal justice response to counterterrorism, since it served as a legal framework common to all Member States by harmonising the definition and penalties of terrorist offences and facilitating information exchange and international cooperation.13 This Framework Decision (FD)—and its amendment in 2008 —has received much attention in legal academia.14 Multiple questions were raised by scholars, among which the basic question relating to the EU’s competence to define criminal terrorist acts in the first place, and the EU’s failure to provide precise and clear language while doing so.15

13 14 15

As acknowledged by Directive 2017/541, above n 9, recital 3. See amongst others Cesoni 2002; Peers 2003; Dumitriu 2004; Borgers 2012; Gless 2012. Gless 2012, p 42.

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Two speech/opinion-related offences were suggested in the original proposal of the Commission, but only one of them made it to the final FD. First of all, the Commission proposed to introduce an offence of ‘promoting of, supporting of or participating in a terrorist group’.16 Although the final FD inserted an article on offences relating to a terrorist group, the EU legislature had opted to only criminalise the most punishable offences of directing a terrorist group or participating in the activities of a terrorist group.17 Second, Article 4 on inciting, aiding or abetting, and attempting is the only speech-related offence incorporated in the final FD. It is remarkable that the European legislature had adapted the original wording of the proposal from “instigate” to “incite”. Although the Framework Decision on Racism and Xenophobia18—adopted on the same day as the 2008 FD—uses the term “instigate”, the same ratio was not followed, which might compromise legal certainty. Since none of the concepts (instigating, inciting, aiding, abetting or attempting) were further defined, its interpretation was left to the Member States.19 It was only in 2007, with the Impact Assessment of the 2008 FD and the consideration of introducing a new offence on public provocation that the EU evaluated the exact scope of conduct covered by Article 4’s treatment of inciting. It was then stressed that Article 4 did not constitute an autonomous offence, but that it was linked to the other offences in the FD; that the criminalisation implied other requirements, such as the individualisation of the recipient as well as a certain degree of determination of the circumstances of the offence. Moreover, attempting to incite a terrorist offence was not made a crime. As a consequence, it was argued that the FD did not require the criminalisation of the dissemination of terrorist propaganda itself, and that “the provision only obliges Member States to incriminate incitement when at least one of the recipients of the message is actually incited”.20 In other words, conduct such as a general call for terrorist violence, the dissemination of messages without a recipient who was actually incited, or the dissemination without reference to a specific terrorist offence, went unpunished.

16

Commission of the European Communities 2001, Article 3(1)(m). 2002 Framework Decision, above n 10, Articles 2(2)(a) and (b). 18 European Union, Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law. 19 Dumitriu 2004, p 599. Effective minimum standards were consequently not properly established. Other non-EU criminal standards, such as those of the International Criminal Tribunals, have shown that there is a difference between the two terms. According to their jurisprudence, instigating is not seen as an inchoate offence, while incitement is. However, from later documents it is concluded that the same interpretation is not upheld within the EU. For an interesting point of view on the difference between incitement and instigation and the whole idea of inchoate crimes in international criminal law, the author refers to Timmermann 2006. 20 European Commission 2007, pp 96–102 (quote on p 102). 17

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12.2.2 2008 Framework Decision: A Risk of Harm Suffices This lacuna was met under the Framework Decision 2008/919/JHA that amended the instrument of 2002. Following the Council of Europe Convention on the Prevention of Terrorism21 and United Nations (UN) Security Council Resolution 1624,22 the European legislature deemed it necessary to introduce three new offences,23 amongst which the offence of public provocation to commit a terrorist offence.24 The aim was to prevent terrorism through the reduction of the dissemination of materials that might incite persons to commit terrorist attacks.25 It must be noted that the EU has opted to be consistent with the terminology of the Council of Europe (“public provocation”) instead of adopting the more frequently used term of ‘incitement’, despite the proposal of the European Parliament.26 The provision is formulated in a generic sense, which means that there are no a priori limitations on the scope of the notion of public provocation. As a consequence, it covers a wide variety of contents. However, the offence is restricted by two requirements.27 On the one hand, it must—at least—create a risk that a terrorist offence may be committed. On the other hand, it must be intended to incite the commission of a terrorist offence (mens rea, dolus specialis). This nexus between an objective causality requirement and a subjective intent requirement is important in the sense that it provides for a legitimate basis for intervention. Although this gives the impression that the public provocation offence is a balanced provision, it is widely considered as too wide and indeterminate. There are two main concerns. First of all, the definition of terrorism itself is denounced as too broad. Not only does the Article cover acts of violence that threaten the life or physical integrity of persons, but it also includes the destruction of property resulting in major economic

21 Council of Europe Convention of 16 May 2005 on the Prevention of Terrorism, opened for signature 16 May 2005, CETS 196 (entered into force 1 June 2007). 22 UN Security Council (2005) Resolution 1624 (2005), UN Doc. S/RES/1624. 23 This trend to criminalise ‘precursory’ crimes of terrorism or ‘inchoate’ crimes has been the subject of scholarly contributions. See, amongst others, van Sliedregt 2010; Galli 2013; Melia and Petzsche 2015. 24 Directive 2017/541, above n 9, Article 5. 25 2008 Framework Decision, above n 11, recital 7. 26 European Parliament 2008. 27 It must also be stressed that the provocation must be of a public nature. ‘Public’ is a factual fact that will have to be assessed on the basis of contextual factors. See Ronen 2010, p 666. The factors to be taken into account include the number of people being addressed, the openness and accessibility of the place or the speech. As a consequence, private instigation is not covered by these provisions, but will in most countries be penalised under the general provisions of criminal responsibility. Van Ginkel 2011, p 13.

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losses.28 While this expansion is criticised by scholars, the issue is exacerbated by a provision also prohibiting incitement to such activities.29 Second, the exact interpretation of the causality requirement is not clear. Indisputably, it is not necessary for an offence to be actually committed (a so-called (pre-)inchoate offence30). However, a certain risk of future damage is required, and is—among scholars—perceived as a minimum requirement. International standards, such as the Johannesburg Principles31 and the Best Practices in Countering Terrorism of the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, also stress the importance of a causality requirement32 (and its nexus with specific intent). Deciding otherwise would deprive the offence of its legitimacy33 and would endanger the right to freedom of expression.34 However, the causality requirement as formulated by the FD (“causes a danger that one or more such offences may be committed”) is widely considered as too low a threshold. The link is seen as tenuous, since the test leaves doubt as to the necessary level and the imminence of the risk. As a consequence, it is not unimaginable that speech that causes only an abstract and remote risk of violence will be criminalised.35 It is rather remarkable that the European legislature has disregarded all suggestions to modify and strengthen the clause. For example, the European Parliament has proposed to amend the requirement into “manifestly causes a danger”36 so to ensure the presence of a real and imminent danger, rather than a hypothetical one. Unfortunately, the European legislature has not embraced the idea of building-in this extra safeguard.

28

2002 Framework Decision, above n 10, Article 1(1)(d). Alegre 2008, p 2; International Commission of Jurists 2008, pp 3–5. 30 For a taxonomy of criminal offences based on their preventive rationale, see Ashworth and Zedner 2012, pp 544–545. 31 Article 19 1995. These principles, drafted by a group of experts at Johannesburg, constitute authoritative international norms concerning national security and the right to freedom of expression. The sixth principle states that criminalisation is only permitted if “(a) the expression is intended to incite imminent violence; (b) it is likely to incite such violence; and (c) there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence”. 32 UN General Assembly (2010) Human Rights Council: Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin. Ten areas of best practices in countering terrorism, UN Doc. A/HRC/16/51, p 15: “Thus, in the implementation of Article 5 of the Convention on the Prevention of Terrorism, the offence of incitement to terrorism […] (d) must include an actual (objective) risk that the act incited will be committed”. 33 Ronen 2010, p 665. 34 Petzsche 2017, pp 246–247. 35 International Commission of Jurists 2008, p 5; Boyne 2010, p 453. 36 European Parliament 2008, Amendment 12. 29

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12.2.3 Directive 2017/541: An Ambiguous Wording of the Causality Requirement In early 2017, Amnesty International stated that “initiatives have been taken at the EU level to limit freedom of expression in a manner that raises serious human rights concerns”.37 Barely two months later,38 the European Union adopted Directive 2017/541, although many criticised elements were not addressed. The new Directive repealed and replaced the 2002 FD, as amended in 2008, and was adopted in order to implement relevant international standards, to address the evolving terrorist threat and to ensure consistency with existing policies.39 It must be noted that the proposal of the Directive was not accompanied by an Impact Assessment, which is contrary to the EU guidelines on better law-making40 and is criticised by multiple stakeholders.41 12.2.3.1

Overview of Speech-Related Measures

Although the main objective of the new Directive is not related to the Article on public provocation, the concerns of Amnesty International show that the instrument does have serious repercussions on the right to freedom of expression. Before turning to Article 5 on public provocation and the related recitals, a brief overview of two other relevant provisions is essential in creating an overall picture. The first provision is an updated version of the article on aiding or abetting, inciting and attempting. Whereas previously (2002 FD, as amended in 2008) inciting was only a crime when related to a limited number of offences,42 Article 14(2) of the Directive has been extended so to criminalise incitement to all terrorist offences, offences related to a terrorist group and offences related to terrorist activities (including public provocation, recruitment, providing training, receiving training, travelling, organising or facilitating travel, and financing). As a consequence, there is a significant overlap between Article 14 (in general) and Title III on offences related to terrorist activities.43 On the one hand, punishable behaviour that was previously covered by aiding or abetting, inciting and attempting, has been withdrawn from these general principles and has been elevated to specific offences

37

Amnesty International 2017, p 43. The legislative act was signed by the President of the European Parliament and the President of the Council on 15 March 2017. 39 European Commission 2015, Explanatory Memorandum, pp 2–8. 40 European Union 2016; European Commission 2017b. 41 Meijers Committee 2016, para 4; European Digital Rights 2016a, No 1; Amnesty International et al. 2016, p 5. 42 2002 Framework Decision, above n 10, as amended by 2008 Framework Decision, above n 11, Article 4(2). 43 European Digital Rights 2016a, p 7. 38

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under Title III.44 On the other hand, the increasing possibility of cumulating these provisions has further broadened—the already wide—scope of the Directive (for example criminalising inciting public provocation). This extension may lead to the criminalisation of activities that stand far apart from actual terrorist acts. The second provision of relevance is the newly introduced Article 21 on measures against online public provocation content. This Article relates to internet access restrictions and the removal and blocking of online content and, as such, it has been criticised that it falls outside the scope of the Directive.45 Since this chapter focusses on the criminal law approach of the EU, its impact will not be further addressed.46 12.2.3.2

Article 5 on Public Provocation

It must be noted that the initial proposal, as announced in 2 December 2015, did not foresee any decisive changes on the formulation of the public provocation offence.47 The substantive changes were only introduced later.48 In what follows, a critical-legal reflection will be offered on the most important changes made to the constitutive elements of the offence in terms of glorification, causality and intent. The final Directive (Article 5) describes the public provocation offence in the following terms (differences in comparison with the previous 2008 FD are emphasised): Member States shall take the necessary measures to ensure that the distribution, or otherwise making available by any means, whether online or offline, of a message to the public, with the intent to incite the commission of one of the offences listed in points (a) to (i) of Article 3(1), where such conduct, directly or indirectly, such as by the glorification of terrorist acts, advocates the commission of terrorist offences, thereby causing a danger that one or more such offences may be committed, is punishable as a criminal offence when committed intentionally.

44

E.g., it is argued by European Digital Rights 2016a, p 8, that Article 14(2) should be deleted because of its overlap with Article 5 of the Directive. It must be stressed, however, that there is significant difference in scope. While Article 14(2) is a crime relating to all Articles 3–12, the scope of public provocation is limited to points (a)–(i) of Article 3(1). 45 In this context, it is important to draw attention to the proposal for a Regulation of the European Parliament and of the Council on preventing the dissemination of terrorist content online of 12 September 2018 (European Commission 2018a). This Regulation might have important consequences for interpreting the Directive. Barata 2018 raises the question “whether the Regulation needs to be interpreted as an amendment to the Directive (and therefore as the imposition of an obligation for member States to criminalize any forms of incitement to terrorism, beyond advocacy), or instead introduces a form of ‘terrorist content’ that can be removed but is not necessarily punishable according to national law.” See also Kuczerawy 2018. 46 However, in this context, reference should be made to the Communication of the European Commission and the Commission Recommendations. See European Commission 2017a; European Commission 2018b. 47 European Commission 2017a, Article 5. 48 Council of the European Union 2016; European Parliament Committee on Civil Liberties, Justice and Home Affairs 2016a.

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In light of the purposes of this chapter, not all changes are as relevant. For example, the addition of “by any means, whether online or offline” is a clarification, but does not alter the current interpretation of the provision. The added value is little or—as European Digital Rights claims—even unnecessary and confusing.49 Likewise, the clause “directly or indirectly” is just another phrasing of the already existing clause of “whether or not directly”. Without delving into this issue, it must be noted that this clause has not been free of criticism.50 As a consequence, the importance of the modification of the provision lies mainly in the following two sections: (1) the explicit mentioning of “glorification” in the operative body of the Directive—and not just in the Preamble—as a symbolic sign; and (2) the further lowering of the threshold of the causality requirement. Glorification In the original proposal, glorification was only mentioned in the Preamble,51 while the final Directive also includes glorification in the Article itself as an example of indirect public provocation. The suggestion to include glorification came from France and was welcomed with mixed feelings by other Member States. Stakeholders, such as the Meijers Committee52 and European Digital Rights,53 denounce this evolution for the reasons that it would encroach the right to freedom of expression and not comply with UN rules. More specifically, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has drafted a list of requirements in this context, among which the requirement that the offence must be prescribed by law in precise language, including by avoiding reference to vague terms such as ‘glorifying’ or ‘promoting’ terrorism.54 Moreover, UN Security Council Resolution 1624 merely repudiates “attempts at the justification or glorification (apologie) of terrorist acts that may incite further terrorist acts”, instead of prohibiting the conduct.55 However, the insertion of glorification does not have as far-reaching consequences

49

European Digital Rights 2016b, Amendment 250. Two issues must be mentioned: (1) some state that it is problematic to explicitly criminalise indirect provocation (Meijers Committee 2016, p 5); (2) some argue that the term ‘directly’ should be replaced by ‘expressly’ (UN General Assembly (2010) Human Rights Council: Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin. Ten areas of best practices in countering terrorism, UN Doc. A/HRC/16/51, para 30; Scheinin 2015, p 441). 51 European Commission 2017a, recital 7. 52 Meijers Committee 2016, p 6. The Meijers Committee is a standing committee of experts on international immigration, refugee and criminal law. This independent group of experts, composed of professors, judges, attorneys and academics, researches and advises on these topics, as well as systematically assesses European legislative proposals. See for more information Meijers Committee (2019) Home. https://www.commissie-meijers.nl/en. Accessed 8 August 2019. 53 European Digital Rights 2016a, p 12. 54 UN General Assembly (2010) Human Rights Council: Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin. Ten areas of best practices in countering terrorism, UN Doc. A/HRC/16/51, pp 15–16. 55 UN Security Council (2005) Resolution 1624 (2005), UN Doc. S/RES/1624. 50

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as first thought. From a legal point of view, the addition is merely an example of indirect public provocation, and criminalisation still depends on the nexus of both requirements of objective causality and subjective intent. As such, the value of the insertion is more of a symbolic nature. However, the danger exists that domestic legislators will go further than the minimum requirements and see this insertion as a free pass to criminalise glorification as such, without deference to the requirements of both causality and intent. But even when adhering to a literal reading of the Directive, the different wording of the causality requirement seems to lower the threshold and thereby the nexus is pressured. Thus, the combination of, and an insertion of glorification in the article, and a lowering of the threshold of one of the two requirements does widen the scope of the provision. Causality More light needs to be shed on this lowering of the threshold of the causality requirement. The Council, all of a sudden, introduced the formulation of “thereby causing a danger” instead of the traditional ‘causes a danger’ test. Whereas the latter was already criticised as a too-tenuous link, the former threshold is considered to be even lower. Yet, all the other amendments—proposed in the legislative procedure and those proposed by scholars and stakeholders—advocated a more direct link and thus an even higher threshold than the 2008 FD (for example “causes a danger in a concrete case”;56 “manifestly causes a clear, substantial and imminent danger”57 or similar58). Surprisingly, all of these suggestions were disregarded without any public explanation or guidance as to its interpretation. It must be stressed that the Preamble still refers to the old ‘causes a danger’ test, while at the same time indirectly making reference to the balancing approach of the European Court of Human Rights.59 However, the European Court of Justice has decided that the text of a recital “has no binding legal force and cannot be validly relied on either as a ground for derogating from the actual provisions of the act in question or for interpreting those provisions in a manner clearly contrary to their wording”.60 This only adds to the question of why it was considered crucial to

56

European Parliament Committee on Civil Liberties, Justice and Home Affairs 2016a. European Digital Rights 2016a, p 13. 58 See European Parliament Committee on Civil Liberties, Justice and Home Affairs 2016b, Amendments 249, 250, 251 and 256. 59 Directive 2017/541, above n 9, recital 10: 57

[…] Such conduct should be punishable when it causes a danger that terrorist acts may be committed. In each concrete case, when considering whether such a danger is caused, the specific circumstances of the case should be taken into account, such as the author and the addressee of the message, as well as the context in which the act is committed. The significance and the credible nature of the danger should be also considered when applying the provision on public provocation in accordance with national law. 60 CJEU, Hauptzollamt Bremen v J. E. Tyson Parketthandel GmbH hanse j., Judgment, 2 April 2009, Case No. C-134/08, para 16; CJEU, Deutsches Milch-Kontor GmbH v Hauptzollamt Hamburg-Jonas, Judgment, 24 November 2005, Case No. C-136/04, para 32.

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change the clause in the body of the Directive, while the Preamble still applies the same standards as the previous FD. And more importantly, does this new wording introduce a different standard with different legal consequences? These questions lead to the doctrine of interpretation. This chapter shall take a look at three classical methods of interpretation (literal, contextual and teleological), which are not only recognised by public international law,61 but also have been endorsed by the European Court of Justice in the CILFIT62 case.63 According to this case law, a literal interpretation always involves a comparison of the different language versions of the instrument in order to clarify the usual meaning of the words.64 Therefore, the author has compared the ordinary meaning of four authentic versions of the Directive, namely in the English, Dutch, French and German language. In each of these, the new clause is preceded by an adverb implying a consequence rather than a requirement (respectively “thereby”, “waardoor”, “ainsi” and “dadurch”). A literal reading seems to imply that for a distribution of a message to be criminal, it must (1) be with the intent to incite; and (2) advocate, directly or indirectly, the commission of a terrorist offence. By simply doing that, it causes a danger that such an offence may be committed. This is a different outcome compared to a literal reading of the 2008 FD, in which the causal link restricts the scope of the offence as a requirement instead of a presumed consequence. Thereafter, the Court states that “every provision […] must be placed in its context and interpreted in the light of the provisions of Community law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied”.65 When taking a closer look at the context of the provision, both the Preamble66 and the entire decision-making process should be taken into account.67 As mentioned above, the Preamble does still make mention of the old ‘causes a danger’ standard and implies that, from a legal point of view, nothing has changed. However, when taking a closer look at the decision-making process, it is clear that the legislature has (1) disregarded all proposals to introduce a higher standard; and (2) yet thought it necessary to change the formulation from the proposal with the traditional standard. Thus, there is—at

61

Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) (VCLT), Article 31. 62 CJEU, CILFIT and Lanificio di Gavardo SpA v Ministry of Health, Judgment, 6 October 1982, Case No. 283/81 (CILFIT case), paras 18–20 63 See also Lenaerts and Gutiérrez-Fons 2013, pp 4–6. 64 CILFIT case, above n 62, para 18. The EU is governed by multilingualism and the principle of linguistic equality. See Lenaerts and Gutiérrez-Fons 2013, p 8. 65 CILFIT, above n 62, para 20. 66 The Vienna Convention on the Law of Treaties (1969) states that the context comprises not only the text itself, but also its preamble, annexes and other specified agreements (VCLT, above n 61, Article 31(2)). 67 Lenaerts and Gutiérrez-Fons 2013, p 13.

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least—an intention to introduce a different causality standard. The teleological interpretation focusses on the purpose of the provision. It is clear that Title III “Offences related to terrorist activities” aims to intervene at an as-early-as-possible stage in order to prevent an actual act of terrorism. In light of the recent tendencies on the level of domestic authorities (see below, Sect. 12.3.), we witness the eagerness of policymakers to no longer uphold certain requirements that are too difficult to prove. From that perspective, it is not unimaginable that the ambiguous causality clause is merely a textual consolidation of current practices. In practice, the causality requirement is often deducted from other elements, such as the intent requirement. In the literature, few comments have been made on the new ‘thereby causing a danger’ clause, partly due to the recent date of the instrument. The most prominent commentary comes from the Meijers Committee, which denounces this evolution as a significant step back in terms of freedom of expression.68 By stating that the conduct of advocating the commission of a terrorist offence (whether directly or indirectly, including by glorification) “thereby causes a danger”, it could—in their view—be interpreted that it automatically causes a danger. In the view of the author, it is a bridge too far to contend that the causality requirement has become a non-element. Nonetheless, it is argued that the threshold is lower than the previous Framework Decisions, in spite of the incentives to introduce a higher standard. This is a regrettable evolution that could lead to the Directive becoming an instrument of censorship.69 It remains to be seen how Article 5 will be interpreted by judicial courts in the future. Intent As a consequence, there is an imminent risk that, in practice, there will be a sole requirement of specific intent. For the requirement to be satisfied, a double form of intent needs to be demonstrated. Not only must the distribution be conducted intentionally, it must also be intended to bring about the commission of a terrorist offence. However, this mens rea requirement is extremely difficult to prove. There is a risk that authorities will derive this intention from ideology or (religious) beliefs,70 or from the interpretation of third actors. A cautious approach in how to assess the requirement is warranted. This overview of the EU policy of the past decade and a half shows that speech-restricting measures have been subjected to several substantive changes. In the next section, it is demonstrated that some Member States have even further restricted speech and went beyond the EU minimum rules.71

68

Meijers Committee 2016, para 11a. European Parliament Committee on Civil Liberties, Justice and Home Affairs 2016c, Amendment 31. 70 Meijers Committee 2016, para 8. 71 Article 83(1) Treaty on the Functioning of the European Union explicitly states that the European Parliament and the Council may, by means of a directive, “establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis” (Consolidated Version of the Treaty on the Functioning of the European Union, opened for signature 13 December 2007, 55 OJ C 326 69

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Comparative Analysis: A Case Study of Belgium and the United Kingdom

As demonstrated above, the new Directive has possibly broadened the scope of the public provocation offence. Although this already gives rise to some questions regarding its legitimacy, domestic authorities often go further. Needless to say, the legitimacy issues—as uncovered in Sect. 12.4—will be all the more relevant in these cases. Before delving into these issues, the policies of two (former) Member States, Belgium and the UK, will be analysed. Both countries are selected for the purposes of this chapter, since each completely retracts (an) important constitutive element(s).

12.3.1 Belgium: Deletion and Reintroduction of the Causality Requirement As a consequence of the initiatives on an international level, the Belgian legislature deemed it necessary to introduce the offence of public provocation in 2013.72 Article 140bis of the Belgian Criminal Code (C.C.) was inserted in an almost identical formulation as the 2008 FD. By classifying it as a crime of the highest category,73 the attempt thereto is automatically an offence as well.74 In this regard, the Belgian provision goes further, since this is not required on an inter-/supranational level.75 In the summer of 2016, an amendment was made to Article 140bis C.C.;76 the changes were threefold:77 (1) the words “direct or directly” were (re)inserted, since the relevant clause was deleted by the third change (see below). This did not result in any substantive changes; (2) in addition to the terrorist acts sensu stricto (Article 137 C.C.), Article 140sexies C.C. on travelling for terrorist purposes is added to the list of underlying

(entered into force 1 December 2009)), Article 83(1)). This allows Member States to go further than these minimum rules. 72 Belgium, Strafwetboek [Criminal Code] (Belgian Criminal Code), Article 140bis, as inserted by Belgium, Wet van 18 februari 2013 tot wijziging van boek II, titel Iter van het Strafwetboek [Law of 18 February 2013 amending book II, title Iter of the Criminal Code]. 73 The Belgian criminal law system distinguishes among three types of crimes, so-called ‘overtredingen’ (first degree), ‘wanbedrijven’ (second degree) and ‘misdaden’ (third degree). 74 Belgian Criminal Code, above n 72, Section 1, Article 52. 75 The Directive does penalise the attempt to recruit terrorism, provide training, travel abroad and terrorist financing, but does not provide the same for public provocation. Directive 2017/541, above n 9, Article 14(3). 76 Belgium, Wet houdende diverse bepalingen ter bestrijding van terrorisme (III) [Law containing multiple provisions to combat terrorism (III)]. 77 For a more elaborate analysis, see De Coensel 2017.

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offences. As a result, public provocation to travel abroad for terrorist purposes is made a crime. Compared to the EU provision that does not foresee a criminalisation of public provocation relating to ancillary offences, the Belgian Article is again broader; (3) the causality clause was completely deleted. This amendment was substantiated by pointing out (1) the ambiguous scope of the restriction; (2) the extreme burden of proof; and (3) the absence of a causal link in similar provisions. Especially this third and last amendment, bearing in mind that it was introduced before the new Directive, is a complete game-changer. The Belgian legislature opted to criminalise all public provocation, even if it does not create a risk that a terrorist offence may be committed. In March 2018, the Belgian Constitutional Court annulled this third amendment, resulting in the reintroduction of the causality requirement.78

12.3.2 The United Kingdom: Mere Recklessness Suffices Predating the EU initiatives, the UK introduced two speech-related measures in the context of terrorism in the Terrorism Act of 2006,79 namely encouragement of terrorism (Section 1) and the dissemination of terrorist publications (Section 2). Section 3 deals with the application of both Sections 1 and 2 in relation to internet activity. However, the necessity of these new offences was questioned, considering the broad range of already existing offences on the matter.80 Not only is the range of measures quite extensive, the provisions themselves are rather comprehensive and clearly transcend the EU rules on multiple levels. Unlike the Belgian legislation, the offences in the UK are not formulated in terms similar to the EU instruments. The offences are not even based on an EU initiative. A brief look at each of the speech-related measures is necessary in order to critically assess the provisions. The offence of encouragement of terrorism entails the publishing of, or causing another to publish,81 “a statement that is likely to be understood by a reasonable person as a direct or indirect encouragement or other inducement, to some or all of the members of the public to whom it is published, to the commission, preparation or instigation of acts of terrorism or Convention offences”.82 These statements include glorification as long as “members of the public could reasonably be

78

Belgian Constitutional Court, Ligue des Droits de l’Homme, Judgment, 15 March 2018, Application No. 6614. 79 United Kingdom (2006) Terrorism Act 2006 (Terrorism Act 2006). The United Kingdom, Counter-Terrorism and Border Security Act 2019 made some changes to Sections 1 and 2 of the Terrorism Act 2006. 80 Human Rights Watch 2005, p 7. 81 Terrorism Act 2006, above n 79, Section 1(2)(a). 82 Ibid., Section 1(1).

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expected to infer that what is being glorified is being glorified as conduct that should be emulated by them in existing circumstances”.83 The required mens rea standard is (1) to intend to; or (2) to be reckless (as to whether) members of the public will be directly or indirectly encouraged or otherwise induced.84 In assessing how a statement is likely to be understood, content, circumstances and manner of publication will be taken into account.85 It must be stressed, however, that encouragement does not need to relate to a specific act of terrorism, nor is it necessary for an offence to actually take place.86 There is a defence mechanism built into the Article, namely that the statement neither expressed the suspect’s views nor had his endorsement, and that this was clear.87 Section 2 of the Terrorism Act 2006 relates to the dissemination of terrorist publications when (1) a person intends an effect of his conduct to be a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism; (2) intends an effect to be the provision of assistance in the commission or preparation; or (3) is reckless as to whether his conduct has an effect mentioned in (1) or (2).88 Various methods of dissemination are covered, such as the distributing, circulating; giving, selling, lending; offering for sale or loan; providing a service to others that enables obtaining, reading, listening or looking, or acquiring it by means of a gift, sale or loan; transmitting it electronically; or having such a publication in possession with a view to its becoming the subject of the conduct above.89 In other words, Section 2 does not focus on the original publisher, but on those who pass the publication on. For a publication to be labelled as a terrorist publication, the matter contained in it must be likely (1) to be understood as a direct or indirect encouragement or other inducement; or (2) to be useful in the commission or preparation of such acts and to be understood in such a way.90 Analogous with the Section 1 of the instrument, the clause of glorification is included in the same terms.91 The same goes for the irrelevance of a specific act or the irrelevance of the actual implementation of a terrorist act92 and the defence mechanism.93 Multiple problematic issues should be stressed: (1) The strong nexus between objective causality and subjective intent, as is advocated for throughout this chapter, is not at all present in these offences. The offences do

83 84 85 86 87 88 89 90 91 92 93

Ibid., Ibid., Ibid., Ibid., Ibid., Ibid., Ibid., Ibid., Ibid., Ibid., Ibid.,

Section Section Section Section Section Section Section Section Section Section Section

1(3). 1(2)(b). 1(4). 1(5). 1(6). 2(1). 2(2)(a)–(f). 2(3). 2(4). 2(7) and (8). 2(9).

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not contain any restriction on the scope of the offence in terms of causality.94 The only required link is that “it is likely to be understood” as encouragement. In other words, there is no need for a message to cause a direct or imminent danger. (2) The threshold of the mens rea requirement is also much lower than is the case in the EU or in Belgium. Not only are those persons that intend to bring about certain effects targeted, but also those who are reckless as to whether their conduct has these effects. This standard of recklessness is prone to much criticism. Traditionally, for speech-offences to properly reside in the realm of criminality, the element of intent should always be attached.95 However, when deciding to extend the reach of criminal speech, recklessness should at least be based upon a subjective test of recklessness.96 This is opposed to an objective test of recklessness in which the assessment does not depend upon the speaker, but rather on the interpretation of a third actor.97 This seems to be the case with the glorification clause,98 but the same conclusion cannot be drawn in equal terms for the rest of the provision. The UK Joint Committee on Human Rights is convinced that what is required is either specific intent or subjective recklessness.99 (3) Concerning glorification, it is included as an example of indirect encouragement, as is also the case in the EU Directive. In the interpretation section, it is stated that glorification “includes any form of praise or celebration, and cognate expressions are to be construed accordingly”,100 but a clear definition is not given. (4) The offence of encouragement is not limited to the encouragement to commit, but also to prepare and instigate a terrorist offence.

12.4

Legitimacy: The Magna Carta of the Criminal Law

12.4.1 Subsidiarity: Undermining the Ultima Ratio Principle For the purposes of this chapter, subsidiarity will be understood as the ultima ratio principle, rather than as the traditional meaning under EU law.101 According to the 94

UK Joint Committee on Human Rights 2007, paras 35–37; Petzsche 2017, p 248. Liberty 2005, p 6. 96 UK Joint Committee on Human Rights 2007, para 34; Murray 2009, p 343. The test of recklessness is based upon UK House of Lords, R v G, Opinions of the Lords of Appeal for Judgment in the Cause, 16 October 2003, [2003] UKHL 50. 97 Murray 2009, p 342. 98 Terrorism Act 2006, above n 79, Section 1(3): “those members of the public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by them in existing circumstances”. Murray 2009, pp 342–343. 99 UK Joint Committee on Human Rights 2007, para 34. 100 Terrorism Act 2006, above n 79, Section 20(2). 101 The EU Glossary defines subsidiarity as follows: 95

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ultima ratio principle, a criminalisation is only legitimate if (1) it is deemed necessary in order to protect a fundamental value; and (2) other mechanisms are insufficient to safeguard this value.102 The key question is on the rationale behind criminalisation. Traditionally, four theories of criminalisation can be distinguished. According to these four theories, it is only legitimate for a government to intervene through the criminal law if (1) harm is inflicted on a third party, or there is at least a risk of harm to third parties (harm principle); (2) psycho-social suffering is inflicted on a third party (broader interpretation of harm, offence principle); (3) damage is caused to the actor himself (paternalism); or (4) moral considerations are at the root of criminalisation (principle of morality).103 The scope of this chapter does not allow a thorough study of each of these principles. Instead, it is important to look at what rationale the EU, Belgian and British legislatures base their criminal law intervention on. The aim, as expressed in all legislation,104 is to prevent future terrorist acts, and thus to avoid future harm. This underlying harm principle105 demands a direct and clear violation of the rights of an individual, or at least a serious risk thereto. On the one hand, a traditional, liberal point of view often challenges the harmfulness of speech (‘lesser harm hypothesis’), whereas on the other hand, crimes of incitement are viewed as ‘performative speech’ based on the fact that these entail action rather than an opinion. Two clear situations come to mind when assessing the direct and clear106 harmfulness of speech,107 namely (1) a listener causes damage to a victim as a result of the speech; and/or (2) the person who incites others will proceed further through the radicalisation process and commit a terrorist act himself (incitement as a pre-stage).

The principle of subsidiarity is defined in Article 5 of the Treaty on European Union. It aims to ensure that decisions are taken as closely as possible to the citizen and that constant checks are made to verify that action at EU level is justified in light of the possibilities available at national, regional or local level. See EUR-Lex (2018). Glossary of Summaries: Subsidiarity. http://eur-lex.europa.eu/summary/ glossary/subsidiarity.html. Accessed 18 January 2018. The EU has argued that it may adopt measures in accordance with the principle of subsidiarity since “a comprehensive and sufficiently homogeneous legal framework [could] therefore be better achieved at the level of the Union”. European Commission 2017b, p 10. 102 European Criminal Policy Initiative 2011, p 88. 103 These ‘liberty-limiting principles’ are extensively described by Feinberg (Feinberg 1984, 1985, 1986, 1988) who has made a major contribution to the field with his famous tetralogy on the grounds of criminalization. 104 For the EU, see 2008 Framework Decision, above n 11, recital 7; Directive 2017/541, above n 9, recital 9; for Belgium see Belgium 2012, p 4; and for the UK see United Kingdom 2006, para 3. 105 Introduced by John Stuart Mill. See Mill 1859. 106 A third situation, in which psychosocial damage is caused (offence principle), is left out of consideration here. Although this entails an important group of victims, the European legislature has not explicitly stated this as an objective. 107 Schauer 1993.

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The identification of a link between expression and violent action is a difficult one to establish and has—up to this day—not been established in existing scientific research. The direct causal relationship in the second situation, in particular, knows no scientific basis.108 Concerning the first situation, many authors believe that this connection is not unlikely. Although it will probably not be the only cause, it will certainly play a role in the process.109 When transposing these conclusions on the three case studies, it is clear that for both Belgium and the UK, a criminalisation is no longer justified on the basis of the harm principle, since a criminalisation is not dependent of a causality requirement. The same assumption can be made for the EU Directive, since the causal link is no longer formulated as a requirement, but rather as a presumed consequence. As such, more low-level acts fall within its scope. Of course, there are three other criminalisation theories that could possibly provide a justification for a criminal law intervention. However, these are not, or hardly at all, made explicit in the legislation, and they can undoubtedly play a supporting role; however, it remains to be seen whether they provide a sufficient basis for criminalisation. In the view of the author, and in light of the widest possible fulfilment of the right to freedom of expression, an unambiguous risk of harm should be a necessary condition for a balanced criminalisation. Moreover, aside from its punishability, it can be doubted whether criminal law is the most efficient and effective tool for curtailing speech in an effort to prevent terrorism. Combining prevention with repression is a dangerous mix that in some cases could lead to counterproductive results.110 Certain beliefs may disappear into clandestinity, acquiring a certain form of legitimacy and causing alienation, which might lead to further radicalisation and exclusion.111 In other words, restricting the expression of opinions is not the solution. On the contrary, it is the unrestricted dissemination of information and ideas that contributes to a climate of tolerance, which in turn contributes to the prevention of terrorism.112

108

Van Ginkel 2011, pp 3–4. Schauer 2000, p 54; Baer 2000, pp 90–91; Alexander 2000, p 101. 110 Van Ginkel 2011, p 24. 111 Saul 2005, p 885; Boyne 2010, p 453; van Ginkel 2011, p 8; UN Counter Terrorism Committee Executive Directorate 2016, p 8; Office for Democratic Institutions and Human Rights 2006, p 3. 112 Council of Europe Committee of Ministers 2005; Kundnani 2015; Human Rights Watch 2005, p 11. 109

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12.4.2 Proportionality: Questioning the Necessity in a Democratic Society Proportionality is traditionally understood as the narrow principle that guides the proportionality of the punishment with respect to the seriousness of the crime.113 However, in this research, a broader sense of proportionality is used that reflects the question to what extent restrictions on fundamental rights and freedoms are allowed. Although the principle of proportionality cannot be found as such in most human rights conventions, it does play a significant role in their application.114 The relevant fundamental right in this context is undoubtedly the right to freedom of expression.115 A balance must be sought between the positive obligation to stand up against terrorism (‘to protect human rights’) and the obligation ‘to respect human rights’.116 It must be ensured that counterterrorism measures do not conflict with our own democratic principles.117 In order to study the limits of governmental intervention, this subsection will focus on the case law of the European Court of Human Rights (the Court). Traditionally, the Court has adopted two approaches, namely: (1) allowing certain restrictions on the right to freedom of expression on the basis of the restriction clause of Article 10(2) of the European Convention on Human Rights (ECHR);118 or (2) the exclusion of the protection of the treaty on the basis of the prohibition of abuse of rights (Article 17 of the ECHR). In the latter case, it is argued that the protection under Article 10 of the ECHR cannot be invoked if this right is used for purposes contrary to the text and spirit of the Convention.119 However, Article 17 of the ECHR is not applied in a consistent manner.120 Whereas Holocaust denial is typically dealt with under this Article, the same does not apply in cases of hate speech, glorification or incitement to terrorism. Therefore, the focal point will be on the first approach of the restriction clause of Article 10(2) of the ECHR. According to the restriction clause, a restriction could be allowed—and thus not amount to a violation—if three conditions are met: a restriction must (1) be provided for by law (legality test); (2) pursue a legitimate aim (legitimacy test); and

113

Van den Wyngaert 2014, p 17. Office for Democratic Institutions and Human Rights 2006, p 15. 115 International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976), Article 19; Charter of Fundamental Rights of the European Union, proclaimed 12 December 2007, 326 OJ C 391 (entered into force 1 December 2009), Article 11; European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953) (ECHR), Article 10. 116 Sottiaux 2008, pp 2–5. 117 Baer 2000, p 63; De Witte and D’Hulster 2013, p 42. 118 Above n 114. 119 ECtHR, Garaudy v France, Decision, 24 June 2003, Application No. 65831/01. 120 For a critical review of Article 17 of the ECHR, see Voorhoof 2016. 114

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(3) be necessary in a democratic society (democratic necessity test). Case law shows that the Court is rather mild regarding the first two tests121 and that the main issues usually fall within the third test.122 In order to satisfy the democratic necessity test, a “pressing social need” must be demonstrated,123 together with the argument that the least restrictive means available were used and that the limitation is proportionate to the aim pursued.124 The decisive criterion is whether a decision incites violence or makes it clear that violence is a necessary and justified action.125 Although the Court does not explicitly prescribe a list of criteria, it does de facto use a multifactorial test in its assessment.126 More in particular, a balance will be sought between the message and its context based on the following criteria: the content of the message, the probability and seriousness of the consequences, the intention of the speaker, the medium (including the impact and nature of the publication), the authority of the speaker, the nature of the audience and the security situation in time and space, etc.127 It is rather striking that the Court does not demand a clear mens rea requirement, nor a stringent causal link.128 However, both will play an important role in the balancing approach.129 From this approach, it may be inferred that a message is protected speech, as long it does not amount to a call for the use of violence, an uprising or any other form of rejection of democratic principles.130 However, this premise was largely overturned by the Leroy v France judgment.131 The Court considered glorification of terrorism as a separate category

For example, it is acknowledged that it is at times “difficult to frame laws with absolute precision and that a certain degree of flexibility may be called for to enable [an assessment of] the national courts […].” (ECtHR, Öztürk v Turkey, Grand Chamber Judgment, 28 September 1999, Case No. 22479/93 (Öztürk case), para 55). Moreover, the Court takes the “sensitive nature of the fight against terrorism” and “the need for authorities to exercise vigilance when dealing with actions likely to exacerbate violence” into account when assessing the legitimacy of the aims (para 59). 122 Article 19 2006, p 3. 123 ECtHR, Lingens v Austria, Judgment, 8 July 1986, Application No. 9815/82, para 39. 124 Ibid., paras 39–40. 125 Committee of Experts on Terrorism 2004, p 7; Sottiaux 2009, p 416; ECtHR, Sürek v Turkey (No. 1), Grand Chamber Judgment, 8 July 1999, Application No. 26682/95, para 62; ECtHR, Sürek v Turkey (No. 3), Grand Chamber Judgment, 8 July 1999, Application No. 24735/94, para 40. 126 Sottiaux 2009, p 417. 127 For a comprehensive list, see Voorhoof 2016, pp 15–16. 128 Sottiaux 2009, p 418; Rediker 2015, p 345. 129 As Petzsche states “it is only a frequent, not a consistently employed standard”. Petzsche 2017, p 255. 130 Murray 2009, p 359; ECtHR, Karataş v Turkey, Grand Chamber Judgment, 8 July 1999, Application No. 23168/94; ECtHR, Gunduz v Turkey, Judgment, 4 December 2003, Application No. 35071/97; Öztürk case, above n 120; ECtHR, EK v Turkey, Judgment, 7 February 2002, Application No. 28496/95. 131 ECtHR, Leroy v France, Judgment, 2 October 2008, Application No. 36109/03. In this case, a cartoon on the Twin Towers with the text “Nous en avions tous révé, le Hamas l’a fait!” [“We 121

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and did not apply the existing balancing approach. No attention was paid to the applicant’s intention, and the risk of danger was purely measured in terms of timing and location of the publication. Unfortunately, other factors were not taken into account. However, this case cannot be read as a general assessment of all glorification offences, since the Court does not make a judgment on the legal framework itself, but rather makes decisions on a case-by-case basis.132 It is a challenging task to foresee whether Article 5 on public provocation of the EU Directive would endure the three-part test of the European Court of Human Rights. It will depend largely on the interpretation of the causality requirement (Sect. 12.2.3.2). In the opinion of the author, the Leroy v France judgment should be considered an exception, and both intent and causality should constitute decisive criteria in the balancing approach of the Court. Moreover, a broad interpretation of a glorification offence without a clear risk to danger should be seen as “an interference that goes beyond the extent strictly required to meet its purpose”.133 Therefore, a broad reading of the offence should be considered disproportional and thus contrary to the fundamental right to freedom of expression. The same goes for the provisions of Belgium and the UK. The lack of a causality requirement and—in the UK case—a lowered mens rea standard endangers the right to freedom of expression.

12.4.3 Legality: Abolishing the Use of Vague Language The third and last part of the legitimacy test concerns the principle of legality. Although the European Court of Human Rights does not identify significant problems relating to legality in this context,134 the legality of the public provocation offence is often questioned by scholars, stakeholders and important institutions on an international level who stress the importance of clear definitions.135 The principle of legality is seen as an essential element of the rule of law.136 It is a broad principle, encompassing not only the legal anchoring but also the requirements of accuracy, clarity, accessibility and predictability. It is acknowledged that criminal

have all dreamt about it, Hamas did it!”] is up for discussion. The imposed fine was not considered to be contrary to the right to freedom of expression. 132 Petzsche 2017, p 255. 133 Ibid., p 248. 134 See above n 120. 135 Amnesty International et al. 2016, pp 3–4; Council of Europe Committee of Ministers 2008, para 19. 136 Amnesty International et al. 2016, p 3.

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law must be flexible to a certain extent in order for the courts to interpret and apply general descriptions.137 However, this may not undermine the ‘lex certa’ requirement. The latter requires a criminal law provision that is sufficiently precise, meaning that an individual must be able to assess, on the basis of the legal provision, which behaviour is punishable and which is not.138 There are two main issues that deserve attention in this regard. The first issue relates to all three definitions of the underlying terrorist act, their extremely comprehensive nature and the way this reflects on the incitement offence.139 Secondly, the delineation of the scope of the opinions or messages itself is of crucial importance. For example, on the EU level, the recital relating to public provocation makes clear that the offence comprises, inter alia, the glorification and justification of terrorism, and messages or images, including those related to the victims of terrorism.140 Glorification is even explicitly mentioned in Article 5 itself (see Sect. 12.2.3.2). However, the exact content of these concepts is not entirely clear. For example, does the mere expression of sympathy fall within the scope of the offence? Or explaining and understanding terrorism or even its underlying ideology?141 In the UK, the Home Secretary distinguishes between encouraging and glorifying on the one hand, and explaining or understanding on the other hand. Whereas the former is clearly criminalised, the latter should not be covered by the offence. However, the distinction between the two is not self-explanatory. As the organisation Article 19 puts it, “‘indirect’ encouragement or ‘inducement’ is so vague as to be virtually without meaning”.142 Needless to say, this compromises the legal certainty of the criminal law provisions. It is not inconceivable that the incriminations would be exploited to silence political dissidents, or misused to curb—as a rule—legitimate activities of journalists, human rights activists or other persons.143 Legislators should therefore abstain from using vague language, or introduce clear definitions of these terms.

Öztürk case, above n 120, paras 54–55. ECtHR, The Sunday Times v The United Kingdom, Judgment, 26 April 1979, Application No. 6538/74, para 49. 139 All three definitions refer not only to serious violence against persons, but also cover damage to property. 140 Directive 2017/541, above n 9, recital 10. 141 UK Joint Committee on Human Rights 2007, para 39. 142 Article 19 2006, p 7. 143 UN General Assembly (2014) Human Rights Council: Report of the United Nations High Commissioner for Human Rights on the protection of human rights and fundamental freedoms while countering terrorism, UN Doc. A/HRC/28/28, para 21. 137 138

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Conclusion: A Contradiction of the Human Security Paradigm

By studying the effects of the recent speech-related counterterrorism measures of the EU, Belgium and the UK, this chapter has shown that for a criminalisation to be legitimate, a strong nexus between an objective causality requirement and subjective intent is necessary. Moreover, clear definitions should be introduced in legislation so to enhance the legal certainty of criminal provisions. It has been demonstrated that the new EU Directive is amended in a seemingly limited manner, however, with interpretative difficulties as a consequence. The underlying reasoning and the exact scope of the new provision remains open for debate, but this chapter has argued that the threshold of the public provocation offence may be interpreted as lower than before. Whereas the 2008 FD required a causal link, this causality clause is now formulated in terms of a de jure presumption or a consequence when one intentionally advocates the commission of a terrorist offence rather than a constitutive element of the offence. This is a regrettable evolution with consequences as to its legitimacy. These legitimacy issues are even more strongly present in the two domestic examples of Belgium and the UK, which show that national authorities go much further than the minimum rules as established by the EU. Both legal frameworks have completely annulled the causality clause, and the UK has even lowered the threshold of the mens rea requirement.144 Fortunately, the Belgian Constitutional Court has set the example and annulled the deletion of the causality requirement. Existing international standards, such as the Johannesburg Principles and the list of best practices of the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, confirm the recommendations as formulated above in a general sense. This chapter, however, provides an added value to the debate by assessing the legitimacy of three legal frameworks against a theoretical framework of the three principles of subsidiarity, proportionality and legality. For the purposes of this research, the case studies of the EU, Belgium and the UK were carefully selected and as such, the author is aware that the results cannot be extended to all EU Member States. This analysis must be placed in the broader context of the criminal law system, which is subjected to several substantive alterations due to the current climate of fear. With the illusion of short-term security, policymakers are willing to go further even if it endangers certain fundamental rights and freedoms. In an effort to prevent harm, legislators increasingly resort to reactive and repressive means, even at times and situations with no genuine close proximity to the principal offence. As a consequence, more relatively low-level acts seem to have fallen under the scope of the criminal law. This evolution contradicts the philosophy behind the human security paradigm. UN General Assembly Resolution 66/290 states that human security “calls for people-centred, comprehensive, context-specific and prevention144

Fortunately, the Belgian Constitutional Court has set the example and annulled the deletion of the causality requirement.

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oriented responses that strengthen the protection and empowerment of all people and all communities” and that it “does not entail the threat or the use of force or coercive measures”.145 This makes clear that a plea for proactive action does not equal a repressive reaction for preventive purposes. The underlying reasoning is twisted, resulting in a counterproductive outcome. Whereas human security aims to ensure better prospects for the economically marginalised and the politically excluded, the far-reaching criminalisation of speech risks stigmatisation of these groups even further. As the UK Joint Committee on Human Rights rightly states, “while there is little or no evidence that criminalising such speech will deter terrorism, there is very strong evidence that it will deter free expression”.146 Acknowledgements This research was funded by the Special Research Fund of Ghent University and Prof. Dr. Gert Vermeulen acted as the academic supervisor.

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Kundnani A (2015) Will the government’s counter-extremism programme criminalise dissent? Institute of Race Relations. http://www.irr.org.uk/news/will-the-governments-counterextremism-programme-criminalise-dissent/. Accessed 22 January 2018 Lenaerts K, Gutiérrez-Fons JA (2013) To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice. EUI Working Paper AEL 2013/9. http:// cadmus.eui.eu/bitstream/handle/1814/28339/AEL_2013_09_DL.pdf?sequence=1&isAllowed= y. Accessed 30 January 2018 Liberty (2005) Terrorism Bill – Part 1: Liberty’s amendments for Committee stage in the House of Lords. https://www.liberty-human-rights.org.uk/sites/default/files/terrorism-bill-committeepart-1.pdf. Accessed 26 January 2018 Meijers Committee (2016) Note on a Proposal for a Directive on combating terrorism. http://www. commissie-meijers.nl/sites/all/files/cm1603_note_on_a_proposal_for_a_directive_on_ combating_terrorism_.pdf. Accessed 16 January 2018 Melia MC, Petzsche A (2015) Precursor Crimes of Terrorism. In: Lennon G, Walker C (eds) Routledge Handbook of Law and Terrorism. Routledge, London/New York, pp 194–205 Mellinger L (2010) Illusion of Security: Why the Amended EU Framework Decision Criminalizing “Incitement to Terrorism” on the Internet Fails to Defend Europe from Terrorism. Syracuse Journal of International Law & Commerce 37:339–368 Mill JS (1859) On Liberty. John W. Parker and Son, London Murray D (2009) Freedom of expression, Counterterrorism and the Internet in light of the UK Terrorist Act 2006 and the Jurisprudence of the European Court of Human Rights. Netherlands Quarterly of Human Rights 27(3):331–360 Office for Democratic Institutions and Human Rights (2006) Background Paper on Human Rights Considerations in Combating Incitement to Terrorism and Related Offences. OSCE. http:// www.osce.org/odihr/22052?download=true. Accessed 19 December 2017 Peers S (2003) EU Responses to Terrorism. International and Comparative Law Quarterly 52(1):227–244 Petzsche A (2017) The Penalization of Public Provocation to Commit a Terrorist Offence – Evaluating Different National Implementation Strategies of the International and European Legal Framework in Light of Freedom of Expression. European Criminal Law Review 7(2):241–257 Rediker E (2015) The Incitement of Terrorism on the Internet: Legal Standards, Enforcement, and the Role of the European Union. Michigan Journal of International Law 36(2):321–351 Ronen Y (2010) Incitement to Terrorist Acts and International Law. Leiden Journal of International Law 23(3):645–674 Saul B (2005) Speaking of Terror: Criminalizing Incitement to Violence. University of New South Wales Law Journal 28(3):868–886 Schauer F (1993) The Phenomenology of Speech and Harm. Ethics 103(4):635–653 Schauer F (2000) Speech, Behaviour and the Interdependence of Fact and Value. In: Kretzmer D, Hazan FK (eds) Freedom of Speech and Incitement Against Democracy. Kluwer Law International, The Hague, pp 43–61 Scheinin M (2015) Limits to freedom of expression: lessons from counter-terrorism. In: McGonagle T, Donders Y (eds) The United Nations and Freedom of Expression and Information. Cambridge University Press, Cambridge, pp 428–442 Sottiaux S (2008) Terrorism and the limitation of rights: the ECHR and the US constitution. Hart Publishing, Oxford Sottiaux S (2009) Leroy v France: Apology of Terrorism and the Malaise of the European Court of Human Rights’ Free Speech Jurisprudence. European Human Rights Law Review 3:415–427 Sugman Stubbs K, Galli F (2012) Inchoate offences: The sanctioning of an act prior to and irrespective of the commission of any harm. In: Galli F, Weyembergh A (eds) EU counter-terrorism offences: What impact on national legislation and case-law? Editions de l’Université de Bruxelles, Brussels, pp 291–303 Timmermann WK (2006) Incitement in international criminal law. International Review of the Red Cross 88(864):823–852

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UK Joint Committee on Human Rights (2005) Counter-Terrorism Policy and Human Rights: Terrorism Bill and related matters. Third Report of Session 2005–06. https://publications. parliament.uk/pa/jt200506/jtselect/jtrights/75/75i.pdf. Accessed 29 January 2018 UK Joint Committee on Human Rights (2007) The Council of Europe Convention on the Prevention of Terrorism: First Report of Session 2006–07. https://publications.parliament.uk/ pa/jt200607/jtselect/jtrights/26/26.pdf. Accessed 26 January 2018 United Kingdom (2006) Terrorism Act 2006: Explanatory Notes. http://www.legislation.gov.uk/ ukpga/2006/11/notes/contents. Accessed 2 February 2018 UN Counter Terrorism Committee Executive Directorate (2016) Global survey of the implementation of Security Council Resolution 1624. https://www.un.org/sc/ctc/wp-content/uploads/ 2016/10/Global-Implementation-Survey-1624_EN.pdf. Accessed 19 January 2018 UN General Assembly (2010) Human Rights Council: Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin. Ten areas of best practices in countering terrorism, UN Doc. A/ HRC/16/51 UN General Assembly (2012) Resolution adopted by the General Assembly on 10 September 2012, UN Doc. A/RES/66/290 UN General Assembly (2014) Human Rights Council: Report of the United Nations High Commissioner for Human Rights on the protection of human rights and fundamental freedoms while countering terrorism, UN Doc. A/HRC/28/28 UN Security Council (2005) Resolution 1624 (2005), UN Doc. S/RES/1624 UN Trust Fund for Human Security (2018) What is Human Security. https://www.un.org/ humansecurity/what-is-human-security/. Accessed 4 September 2018 Van den Wyngaert C (2014) Strafrecht en strafprocesrecht in hoofdlijnen. Boek 1 Strafrecht [Criminal and criminal procedure law in general terms. Book 1 Criminal Law]. Maklu, Antwerp Van Ginkel B (2011) Incitement to Terrorism: A Matter of Prevention or Repression? International Centre for Counter-Terrorism—The Hague. https://www.icct.nl/download/file/ICCT-VanGinkel-Incitement-To-Terrorism-August-2011.pdf. Accessed 19 December 2017 Van Sliedregt E (2010) European Approaches to Fighting Terrorism. Duke Journal of Comparative & International Law 20:413–427 Voorhoof D (2016) Hate Speech, radicalisering en het recht op expressievrijheid. Waarom artikel 17 EVRM (misbruikclausule) geen revival verdient [Hate Speech, radicalisation and the right to freedom of expression. Why article 17 ECHR (abuse clause) does not deserve a revival]. Auteurs & Media 1:4–18 Zedner L (2007) Pre-crime and post-criminology? Theoretical Criminology 11:261–281

Case Law Belgian Constitutional Court, Ligue des Droits de l’Homme, Judgment, 15 March 2018, Application No. 6614 CJEU, CILFIT and Lanificio di Gavardo SpA v Ministry of Health, Judgment, 6 October 1982, Case No. 283/81 CJEU, Deutsches Milch-Kontor GmbH v Hauptzollamt Hamburg-Jonas, Judgment, 24 November 2005, Case No. C-136/04 CJEU, Hauptzollamt Bremen v J. E. Tyson Parketthandel GmbH hanse j., Judgment, 2 April 2009, Case No. C-134/08 ECtHR, The Sunday Times v The United Kingdom, Judgment, 26 April 1979, Application No. 6538/74 ECtHR, Lingens v Austria, Judgment, 8 July 1986, Application No. 9815/82 ECtHR, Karataş v Turkey, Grand Chamber Judgment, 8 July 1999, Application No. 23168/94 ECtHR, Sürek v Turkey (No. 1), Grand Chamber Judgment, 8 July 1999, Application No. 26682/95 ECtHR, Sürek v Turkey (No. 3), Grand Chamber Judgment, 8 July 1999, Application No. 24735/94 ECtHR, Öztürk v Turkey, Grand Chamber Judgment, 28 September 1999, Application No. 22479/93

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ECtHR, EK v Turkey, Judgment, 7 February 2002, Application No. 28496/95 ECtHR, Garaudy v France, Decision, 24 June 2003, Application No. 65831/01 ECtHR, Gunduz v Turkey, Judgment, 4 December 2003, Application No. 35071/97 ECtHR, Leroy v France, Judgment, 2 October 2008, Application No. 36109/03 UK House of Lords, R v G, Opinions of the Lords of Appeal for Judgment in the Cause, 16 October 2003, [2003] UKHL 50

Legislation Belgium, Strafwetboek [Criminal Code] Belgium, Wet van 18 februari 2013 tot wijziging van boek II, titel Iter van het Strafwetboek [Law of 18 February 2013 amending book II, title Iter of the Criminal Code] Belgium, Wet houdende diverse bepalingen ter bestrijding van terrorisme (III) [Law containing multiple provisions to combat terrorism (III)] European Union, Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism (repealed and replaced by Directive 2017/541) European Union, Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law European Union, Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on combating terrorism (repealed by Directive 2017/541) European Union, Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/ JHA and amending Council Decision 2005/671/JHA United Kingdom, Counter-Terrorism and Border Security Act 2019 United Kingdom, Terrorism Act 2006

Treaties Charter of Fundamental Rights of the European Union, proclaimed 12 December 2007, 326 OJ C 391 (entered into force 1 December 2009) Consolidated Version of the Treaty on the Functioning of the European Union, opened for signature 13 December 2007, 55 OJ C 326 (entered into force 1 December 2009) Council of Europe Convention on the Prevention of Terrorism, opened for signature 16 May 2005, CETS 196 (entered into force 1 June 2007) European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953) International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980)

Stéphanie De Coensel is a Ph.D. Researcher at the Institute of International Research on Criminal Policy and is part of the Department of Criminology, Criminal Law and Social Law of Ghent University. Her doctoral research focuses on the legitimacy of counterterrorism measures in terms of subsidiarity, proportionality and legality from a legal perspective. More specifically, the preventive turn of the criminal justice system in the context of terrorism is highlighted, while addressing substantial human rights issues. Her research interests also include criminological perspectives on the pathways to terrorism.

Chapter 13

Humiliation of Terrorism Victims: Is Human Dignity Becoming a ‘National Security Tool’? Arianna Vedaschi

Contents 13.1 Introduction...................................................................................................................... 13.2 Changes in Terrorist Radicalisation Patterns from 2001 to the Present: Propaganda and Online Recruitment .................................................................................................. 13.3 Comparative Responses to Radicalisation, in Particular, the Criminalisation of “Terrorist Speech”....................................................................................................... 13.3.1 International and Regional Standards with Regard to Terrorist Speech ........... 13.3.2 Terrorism Speech-Related Offences at the Domestic Level: Diffusion, Features and Human Rights Concerns ............................................................................. 13.4 The Intertwinement between Limits to Free Speech and Human Dignity: Criminalising the Humiliation of Victims ............................................................................................. 13.4.1 Case Study on Spain: Humillación de las Víctimas.......................................... 13.4.2 Article 578 of the Spanish Criminal Code and Its Interpretation by Courts.... 13.5 Concluding Remarks: Risk of Misuse of the Humiliation Offence and Potential Mitigations ....................................................................................................................... References ..................................................................................................................................

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Abstract How does dignity of terrorism victims find a place in the challenging balance between freedom of expression and national security? This chapter addresses the issue by examining how humiliation of terrorism victims is dealt with, from a legal point of view, in a few selected Western European countries. In particular, in some cases, ‘glorification offences’ encompass not only behaviour such as the encouragement, praise, propaganda and exaltation of past terrorist acts, but they may also include (expressly, in some jurisdictions, for example Spain) the humiliation and contempt of victims of terrorism and/or their families. On the one hand, these limitations of speech aim at protecting victims’ dignity; on the other A. Vedaschi (&) Bocconi University, Milan, Italy e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 C. Paulussen and M. Scheinin (eds.), Human Dignity and Human Security in Times of Terrorism, https://doi.org/10.1007/978-94-6265-355-9_13

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hand, they pave the way for potential abuses. More clearly, while freedom of expression is traditionally conceived as one of the main tools to guarantee human dignity, here, on the contrary, speech could entail gross violations of human dignity, since it humiliates terrorism victims and their relatives already affected by the terrorist violence. Consequently, by punishing the humiliation of terrorism victims, lawmakers protect human dignity, but, at the same time, act to reinforce national security. Therefore, a sort of ‘triangulation’ of the interests at stake can be envisaged, with the risk of functionalising the protection of human dignity to securitarian policies. This research aims to draw some guidelines in order to avoid such abuses and maintain limitations to freedom of expression within the constraints of the rule of law, whose essence should not be reshaped by the need to fight terrorism.




Keywords Human dignity National security Glorification offences Humiliation of victims




13.1


Counter-terrorism measures

Freedom of expression

Introduction

This chapter aims at exploring the relationship between the dignity of terrorism victims, freedom of expression and national security. ‘New’ forms of terrorism strongly rely on radicalisation techniques built on refined communication strategies, mainly through the exploitation of new media.1 This phenomenon has triggered legislative reactions based on limitations of freedom of expression, since ‘terrorist speech’ may endanger national security, encouraging people to embrace extremist ideologies and radical doctrines. This approach can be observed even in Western European countries, the focus of this study. Behaviour consisting of promoting radical ideas and glorifying terrorist acts are often prosecuted as terroristspeech-related crimes. In this context, the dignity of victims comes into play, since in some cases, besides punishing those who incite, encourage or merely celebrate terrorist acts, some pieces of legislation—explicitly or implicitly—condemn, at the same time, violent speech offending terrorism victims. Hence, restricting freedom of expression of those who offend victims of terrorism simultaneously serves the aim to protect victims’ dignity and enhance public security. However, this ‘triangulation of interests’—namely, victims’ dignity, freedom of expression and national security—may give rise to abuses. In other words, the declared intent to protect victims’ dignity might conceal an intent to criminalise a narrative (the ‘radicalised’ one) because it could impair national security. In general, punishing such speech could prove reasonable and proportional, as long as necessary caveats are applied—for example, when evidence is given that it effectively entails a risk for national security. Yet, if the intent to criminalise national security-impairing speech is hidden behind the protection of victims’ dignity, such

1

Boyne 2010, p 417; Callamard 2015, p 207.

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guarantees are likely to be circumvented. This mechanism might result in a distorted use of human dignity, leading to authorities repressing speech for (hidden) national security reasons, without appropriately demonstrating whether and how it endangers security. This would undoubtedly contrast with the conceptual notion of dignity, which, in the Kantian view2 and in its development through modernity,3 consists of an intrinsic value of individuals4 that should prevent each human being from using others as mere means to reach different objectives. Focusing on terrorist speech-related crimes that punish the humiliation of victims (beside the narrative that such crimes allegedly jeopardise national security), this chapter will discuss whether (or not) it is proportionate to equate speech against the dignity of individuals to speech entailing risks for public security. The aim of this analysis is to give some guidelines on how to avoid that such offences are misused and the protection of victims’ dignity turns into an indirect circumvention of freedom of expression in the name of national security. In this light, this chapter is divided as follows. Section 13.2 will analyse the issue of radicalisation and its changes from 2001 to present, emphasising the growing role of the Internet in spreading terrorist content and messages. Section 13.3 will examine responses to this development consisting of limiting free speech at the international, regional and domestic level, with the latter focusing on Western European Democracies. Getting into the core of the research, Sect. 13.4 will concentrate on Spain as a case study in which humiliation of terrorist victims is criminalised as a separate offence together with apologetic conduct. Section 13.5 will assess the emerging framework and try to draw up some guidelines on how to keep measures protecting the dignity of terrorism victims within the constraints of the rule of law, i.e. avoiding their (undeclared) transformation into ‘national security tools’.

13.2

Changes in Terrorist Radicalisation Patterns from 2001 to the Present: Propaganda and Online Recruitment

Terrorist groups’ recruiting strategies have substantively transformed over the years. These changes undoubtedly depend on a remarkable reshape of the terrorist threat’s features.5 When the 9/11 attacks were perpetrated, international jihadist terrorism essentially coincided with Al-Qaeda. Such a radical group promoted its extremist ideas attacking the US and, in general, the Western world, without any 2

Kant 1993, p 36. On such developments, see Englard 2000, p 1913. 4 See also Dworkin 2006, p 9, according to whom every human being has an objective value. He supports the idea of human dignity as a constitutional right. 5 Vedaschi 2016, p 41. 3

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State-building strategy. Al-Qaeda worked as an extremist group,6 and its activity mainly involved its members. Attempts to recruit new ones were primarily based on messages against the Western world, emphasising the ‘evil’ connected to Western culture and traditions.7 Instead, an expansive recruiting ambition clearly emerged in 2014, when the Islamic State (IS)8 gave terrorism State-like semblances,9 following the al-Adnani speech that self-proclaimed the Islamic Caliphate as a State, led by al-Baghdadi.10 Recruiting strategies started to attract potential “citizens” of such a new political entity. Actually, the main aim of terrorist recruiters was—and still is, even after IS’s military defeat—to make other people embrace terrorist ideology and feel part of a ‘community’.11 Taking advantage from the quick development of technology, terrorists progressively started to use new media as their favourite means to disseminate their messages,12 which assumed pervasive features, coherently with the new goal to establish a State entity and maybe also a new concept of ‘citizenship’. The reason for this escalation is that the ‘new’ terrorist narrative targets not only those who are already close to Islamic extremism in terms of religion, culture and nationality, as under Al-Qaeda hegemony; instead, these messages seek to address also relative ‘outsiders’. In other words, even individuals living in Western Democracies, such as Europe and the US, became attractive targets for terrorist recruitment.13 This is why the use of the Internet has become so crucial, allowing a worldwide spread of content in a short time and at a lower cost. The most blatant manifestation of successful recruitment efforts through the Internet is a very high number of foreign terrorist fighters, i.e. people leaving their countries to join armed groups abroad fighting for the terrorist—including jihadist—cause.14 Yet, terrorist radicalisation can take also different and less evident forms: for example, the so-called lone wolves, i.e. individuals who, after a process of radicalisation (or, often, of auto-radicalisation, mainly through online material15), engage in terrorist activities—such as the preparation and commission

6

Although with many cells distributed around the world. As a consequence, it is quite usual to define Al-Qaeda as a ‘nebula’. Rabasa et al. 2006, p 73. 7 Baines and O’Shaughnessy 2016, p 172. 8 On its origins, development and reasons why it appears as ‘appealing’, see Roy 2017, p 78. 9 Vedaschi 2016, p 73. See also Delhaunty 2018, p 1. 10 On the rise of al-Baghdadi as the head of the Caliphate, Delhaunty 2018, p 48. 11 Meleagrou-Hitchens and Kaderbhai 2017, p 7. 12 Conway and Courtney 2018, p 1. 13 In particular, some studies demonstrated that the so-called second and third generations of immigrants are particularly vulnerable to terrorist indoctrination. See Magri 2016, p 11 and Rabasa and Bernard 2015, p 56. 14 For some data and discussion on legislative and practical issues arising from the need to tackle the phenomenon of foreign fighters, see Paulussen and Pitcher 2018. 15 Conway and McInerney 2008, p 108.

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of attacks—without the support of any structured organisation.16 Besides this phenomenon, there is also a growing number of people who are exposed to the terrorist narrative, since there are high chances that terrorist propaganda is displayed to an increasing rate of Internet users. Some of them are at risk of being radicalised merely surfing the web, due to the impact of such extreme ideas on marginalised groups. Therefore, even if this last-mentioned category of people has never committed terrorist acts, it raises as many concerns as the other addressed ones (lone wolves and foreign terrorist fighters). In sum, although the use of media is not a prerogative of IS, since also Osama Bin Laden resorted to videos to deliver his speeches after attacks17—that could be considered as real ‘press conferences’—and devoted attention to media strategy,18 Al-Qaeda mainly aimed at intimidating the Western world ‘from the outside’, and did not look at it as the core target of its recruitment efforts.19 By contrast, IS exploited a much more developed technology than the 9/11 terrorists could benefit from and, as said, to different purposes.20 IS’s use of social media is particularly bursting. Professionally produced propaganda messages are spread at an unprecedented speed and they manage to reach every corner of the world in a cheap, fast and unconstrained manner.21 That growth of online radicalisation attempts is worrying for several reasons: first of all, because of the high accessibility of terrorist content; then, insofar as terrorist messages are often highly refined and they aim at reaching the recipient’s subconscious, in such a way that people are touched in their irrational sphere.22 Additionally, terrorist indoctrination and communication often take place through the so-called deep web23 and encrypted systems of communication.24 Hence, terrorists’ communicative strategies are increasingly cutting-edge and advanced. As a result, the expanded use of online platforms raises questions also with regard to mechanisms of cooperation between law enforcement bodies and private actors, such as media companies, possibly engaging in take down policies.25

For a deeper insight on ‘lone wolves’, see Gill et al. 2014. Another relatively new phenomenon is that of so-called ‘sleeping cells’, meaning groups whose activity appears to be inexistent, but which, in certain circumstances, can perpetrate an attack. 17 On these speeches and, in general, on Al-Qaeda’s media strategy, see Ciovacco 2009, p 853. 18 As IS did some years after, when it founded the magazine Dabiq, also Al-Qaeda established its own online magazine called Inspire. For an analysis of the two and a comparison between their purposes, see Ingram 2017, p 357. 19 Cohen et al. 2018. 20 Farwell 2014, p 49. 21 For latest data, see Conway et al. 2017. 22 The Carter Center 2016, p 25. 23 I.e. content of the web that standard search engines are not able to index. Moreover, it is quite hard to track visitors of the deep web, since hosts and visitors of these networks are usually reciprocally unaware of their respective identities. 24 E.g. Telegram and WhatsApp. See Conway and Courtney 2018, p 16. 25 In order to develop best practices and improve technological solutions to fight online extremism, in June 2017 major media companies—Facebook, Microsoft, Twitter and YouTube— 16

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The described scenario makes the situation very difficult to monitor. The obstacles to identify messengers due to their ability to use online tools—also the deep web—and the exposure of an increasing number of potential targets to a very pervasive message are the main evidence of such complexity. In light of such a troublesome situation, responses cannot but be as challenging and far-reaching as the threat is. As a consequence, new patterns of radicalisation are being addressed through mixed strategies adopted at the international, regional and national level. Such measures will be examined by the next section.

13.3

Comparative Responses to Radicalisation, in Particular, the Criminalisation of “Terrorist Speech”

The trend described in Sect. 13.2 is characterised by a very relevant change in both the identity of terrorism itself—i.e. IS’s rise and its activities over the last years, bringing it much more ‘in the limelight’ than Al-Qaeda—and the way in which terrorists attempt to recruit other persons. As seen, radicalisation efforts are strongly based on online narrative and exaltation of terrorist ideas as a doctrine pervading all aspects of a person’s life. Against this background, responses from all legal levels—international, regional, domestic—consisted of various strategies. Specifically, according to scholars,26 different types of policy tools and, consequently, legislative reactions, can be distinguished. The first approach is criminal law-based, entailing the criminalisation of ‘terrorist speech’. It is not easy to define speech as ‘terrorist’ from a legal perspective. As will become clearer in Sect. 13.3.2, such a definition depends on the specific laws of each country and, in particular, on their interpretation by domestic courts. The second approach resorts to administrative law.27 Two different sets of administrative tools can be employed. On the one hand, police agencies, in some cases in cooperation with service providers, try to prohibit access to the terrorist message: for example, restricting, or even blocking, the connection to online platforms—meaning websites, forums, social networks, etc.—on which terrorist messages are spread.28 On the other hand, expulsions, travel bans and all other measures related to border control can be used against persons showing support to

launched the Global Internet Forum to Counter Terrorism. See further Cohen-Almagor 2017, pp 446–447. 26 Walker 2017, p 7. 27 Please note that, in this chapter, ‘administrative’ is used within the meaning given to it in common law jurisdictions, i.e. actions made by the Government and related agencies. 28 A Draft Regulation dealing with the issue is being discussed by the EU institutions whilst this chapter is being written. See European Commission 2018. For a comment, see Scheinin 2019.

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terrorist ideas, even when no concrete action may follow.29 Lastly, the third approach strives to fight terrorist radicalisation by way of counter-narrative and social integration policies. The idea laying behind this approach is that violent extremism and radicalisation are better dealt with if persons ‘at risk’ are confronted with ideas opposite to the ‘dangerous’ ones. Advocates of this more sociological approach maintain that it is important to make radicalised people (or those at risk of radicalisation) perceive a sense of inclusion and belonging to a social community.30 In this way, they will be able to overcome that feeling of ‘lack of identity’, exploited by terrorist recruiters in order to creep into potential new followers’ minds.31 Reacting to extremist radicalisation and attempts to recruit an increasingly high number of people, the majority of Western Democracies enacted the three described patterns. An analysis of the comparative scenario shows that no countries resorted only to one model; on the contrary, Western Democracies experimented a variety of tools, in the pursuit of the most appropriate combination to defeat terrorist radicalisation. The following two sections will focus on the first above-mentioned paradigm, i.e. the use of criminal law to repress terrorist speech. Such a preliminary insight into the limits to freedom of expression due to national security concerns is the basis to discuss the interrelations between free speech, victims’ dignity and security, i.e. the main focus of this chapter.

13.3.1 International and Regional Standards with Regard to Terrorist Speech From the immediate aftermath of 9/11 onwards, both international and regional organisations have perceived very clearly the need to counter terrorist narratives. Therefore, a variety of legal instruments, having different binding force, was issued by these bodies to steer States’ action against terrorist speech. As said, these international and regional tools combine the criminal, administrative and sociological approaches. Focusing on international responses, United Nations (UN) Security Council Resolution 1373 (2001)32 recognises terrorist narratives as a serious risk and mentions “financing, planning and inciting terrorist acts” as conduct in violation of UN principles, since they represent threats to international peace and security. As a result, States are called to take measures against such acts.

29 According to Walker 2017, p 13, only the former set of administrative tools—i.e. administrative action aimed at hampering access to terrorist messages—is to be considered within the second approach. 30 Berger 2017. 31 Lynch 2013, p 241. 32 UN Security Council (2001) Resolution 1373 (2001), UN Doc. S/RES/1373.

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Four years later, in response to the Madrid and London bombings, the UN Security Council issued Resolution 1624 (2005).33 This document refers to additional conduct than those addressed by Resolution 1373, i.e. behaviour less explicit than ‘incitement’, which nonetheless express ideological support to terrorism. Resolution 1624 condemns not only “the incitement of terrorist acts”, calling on States to forbid such acts by law, but its Preamble also focuses on “attempts at the justification or glorification (apologie)34 of terrorist acts that may incite further terrorist acts”.35 However, it is important to bear in mind that glorification is not mentioned in the operative paragraphs of the Resolution, but it is merely ‘repudiated’ in the Preamble. Therefore, States are not directly invited to criminalise it. At any rate, reference to mere glorification is the real novelty of this Resolution, since justifying or glorifying terrorism are regarded as conduct that may indirectly incite the commission of such terrorist acts. Importantly, Resolution 1624 takes into high consideration the use of technology to incite to terrorism and openly states that risks connected to the use of technology tools represent a growing threat, given continuous developments of technologic facilities.36 Moreover, this Resolution also addresses social inclusion as a feasible method to prevent people from embracing extremist ideologies, calling on States to enhance dialogue and broadening “understanding among civilisation”.37 In 2006, the UN furthered its approach to terrorist speech through a non-binding instrument,38 i.e. the United Nations Global Counter-Terrorism Strategy, adopted through a General Assembly Resolution.39 This document—reviewed every two years, in order to adapt it to ongoing changes of the terrorist threat40—reiterates that incitement, especially when committed online, is a serious risk for our society and must be curbed by both a criminal law-oriented approach and all other appropriate means, including anti-radicalisation programmes, in general, and counter-narratives, in particular. It is worth noting that the latest version of this strategy (dating back to 2016) emphasises the need to promote solidarity towards 33 UN Security Council (2005) Resolution 1624 (2005), UN Doc. S/RES/1624. On this resolution, see Renieris 2009, p 678. 34 Notably, in this document ‘apologie’ is presented as a mere translation for ‘glorification’; nevertheless, as will be clearer in the following sections, it is not always like that, since the meaning of ‘apologie’ varies according to different interpretations given in every legal system. 35 UN Security Council (2005) Resolution 1624 (2005), UN Doc. S/RES/1624, para 1 and Preamble. 36 See ibid., Preamble underlining the necessity “to prevent terrorists from exploiting sophisticated technology, communications and resources to incite support for criminal acts”. 37 UN Security Council (2005) Resolution 1624 (2005), UN Doc. S/RES/1624, para 3. 38 Whilst the two above-mentioned resolutions are to be considered as binding tools, being adopted under Chapter VII of the United Nations Charter (Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945)). 39 UN General Assembly (2006) Resolution 60/288, UN Doc. A/RES/60/288. 40 In particular, these revisions also seek to take into account other specific guidelines, such as action plans against extremism. The latest revision is of July 2016, see UN General Assembly (2016) Resolution adopted by the General Assembly on 1 July 2016, UN Doc. A/RES/70/291.

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victims of terrorism. In this regard, the 2016 version notably underlines that the condition of ‘victim’ is an autonomous legal status, deserving protection.41 In 2012, the UN issued another non-binding document giving some guidelines on legal responses to the use of the Internet for terrorist purposes.42 In this context, incitement and propaganda to commit acts of terrorism were addressed and the importance of keeping any interference within the limits of necessity and proportionality was emphasised, although criminalisation was regarded as an essential tool to repress ‘dangerous’ speech. Further reference to incitement is embodied in a key UN tool aimed at facing the phenomenon of foreign terrorist fighters, i.e. Resolution 2178 (2014).43 Here, since the Security Council has warned against threats caused by incitement to terrorism and by the increased amplification of terrorist rhetoric that developments in technology allow, it calls on States to counter violent extremism by preventing terrorist exploitation of media and promoting tolerance. Thus, Resolution 2178 encourages States to adopt both the second and third approach to terrorist speech (i.e. the use of administrative tools and social inclusion and counter-narratives, respectively), without any reference to criminalisation of messengers. In 2017, following a global survey of the implementation of Resolution 1624,44 the Counter-Terrorism Committee of the Security Council submitted a proposal for a comprehensive international framework to counter terrorist narratives. In this document, the importance of public-private partnership was stressed, insofar as media companies should make efforts, together with public authorities, to block, filter or remove dangerous content inciting or praising terrorism. At the same time, the role of counter-narratives and dialogue was remarked. Instead, the Committee warned that the criminal law approach must be resorted to only when communications are effectively liable to constitute offences. Differently, in ‘borderline’ cases in which such level is not reached, criminalisation may violate some basic human rights principles and, consequently, counteraction should be limited to denial or restriction of access. In parallel with the UN, also the Council of Europe (CoE) and the European Union (EU) adopted tools dealing with terrorist speech. Specifically, the 2005 CoE

41

Differently, Security Council Resolution 1373/2001 does not address the role of victims, while Security Council Resolution 1624/2005 only notes the necessity to express solidarity to them and their family. See also UN Office on Drugs and Crime 2012, specifically dedicated to the role of victims and to ways to enhance their dignity. However, this document does not mention criminalisation of victims’ humiliation as a feasible response to violation of their dignity. Further reference to incitement (although not translated in the invitation to criminalise it) is found in UN Security Council (2010), Resolution 1963 (2010), UN Doc. S/RES/1963 and in UN Security Council (2014) Resolution 2178 (2014), UN Doc. S/RES/2178. 42 UN Office on Drugs and Crime 2012. 43 UN Security Council (2014) Resolution 2178 (2014), UN Doc. S/RES/2178. See on this topic Krähenmann 2016, p 234. 44 UN Security Council (2016) Global survey of the implementation of Security Council Resolution 1624 (2005) by Member States, UN Doc. S/2016/50.

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Convention on the Prevention of Terrorism45 invites States to introduce in their domestic law offences criminalising who publicly provokes others to commit terrorist acts. At the EU level, Council Framework Decision 2008/919/JHA (amending Framework Decision 2002/475/JHA)46 is the first EU instrument explicitly dealing with terrorist discourse. It encourages Member States to punish public provocation to commit a terrorist offence, recruitment and training for terrorism. It also refers to Security Council Resolution 1624 and to the aforementioned CoE Convention on the Prevention of Terrorism. Notably, such references may express a trend towards a ‘global law’ approach to the matter, consisting of a transnational framework where several bodies and organisations of different levels act to harmonise and coordinate (global) standards. In 2017, Framework Decision 2008/919/JHA was replaced by Directive 2017/541.47 This Directive recommends the removal of online content constituting public provocation from Member States’ servers and, where this is not feasible, denial of access to them as workable strategies to counter propaganda and online recruitment. Significantly, the provision of the Directive related to public provocation48 explicitly includes acts of ‘glorification’, which, due to its vagueness that may lead to many possible interpretations by Member States implementing the act, constitutes the trickiest form of terrorism speech-related offence. The following section will explain the potential risks of glorification crimes.

13.3.2 Terrorism Speech-Related Offences at the Domestic Level: Diffusion, Features and Human Rights Concerns Focusing on the national level, two points must be highlighted. First, the above-mentioned international and regional tools had to be implemented by domestic lawmakers, at least the legally binding ones; second, even mere guidelines and other non-binding legal instruments played a key role in steering national legislative approaches towards terrorist speech and methods to deal with them. 45

Council of Europe Convention on the Prevention of Terrorism, opened for signature 16 May 2005, CETS 196 (entered into force 1 June 2007). 46 European Union, Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on combating terrorism (repealed by Directive 2017/541). 47 European Union, Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA (Directive 2017/541). See also Chap. 12 ‘Incitement to Terrorism: The Nexus Between Causality and Intent and the Question of Legitimacy—A Case Study of the European Union, Belgium and the United Kingdom’. 48 Directive 2017/541, above n 47, Article 5.

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A comparative overview49 shows that national laws dealing with terrorist narratives may criminalise speech at different stages. In more detail, in some legal systems, terrorist speech is punished only when there is direct incitement (i.e. when someone explicitly invites someone else to engage in terrorist conduct) or, at least, exaltation and praise of terrorist acts and ideologies imply a real risk that listeners commit terrorist actions. The latter situation is often referred as ‘indirect incitement’ and still entails a subjective intent to induce to an unlawful (in this case terrorist) action, albeit through indirect means, and not through explicit language or behaviour. Differently, in other legal systems, mere glorification is repressed. Prosecuting glorification means that the fact of praising terrorist acts is punished, without any need to demonstrate that a cause-effect link may exist—even in terms of risk—between words and potential concrete actions in the future and that the speaker had a subjective intent to urge others to engage in terrorist acts. Ultimately, in some cases, conduct consisting of offending the dignity of terrorism victims by humiliating them through various acts has been equated—both in terms of systematic collocation in the criminal code and of sanctions—to terrorist speech-related crimes. This choice seems to suggest that protecting dignity serves the parallel aim of ensuring national security (as will be discussed in the following sections of this chapter). The three legislative trends described above are well represented by three countries. An example of the first approach is Italy, where evidence of a causal link between what is said and—at least a concrete risk of—terrorist action is always required. Therefore, in Italy apology is equivalent to indirect incitement. The second model is well exemplified by the United Kingdom (UK), which has been one of the first countries to repress mere glorification. Lastly, Spain is an example of the third paradigm. As a matter of fact, not only does the Spanish Criminal Code provide for a glorification offence (in Spanish, called ‘enaltecimiento’), but the same provision—with the same penalties—also applies to humiliation of victims. Before dwelling on the main focus of this chapter, i.e. the nature and consequences of humiliation offences and the proportionality of regarding speech against dignity of individuals in the same way as speech entailing risks for public security, it is worth analysing offences punishing exaltation and praise of terrorism. The Italian Criminal Code criminalises ‘apology of crimes’ (Article 414(3)) and, specifically, apology of terrorist crimes (Article 414(4)).50 This provision was

49 Although this chapter deals with the Western European scenario, a reference to the US cannot be omitted. In such context, the First Amendment, as traditionally interpreted by courts and scholars, affords maximum protection to freedom of expression. According to the Supreme Court, speech has to be repressed only when it implies the risk that an “imminent unlawful action” is committed (Brandenburg test, named after US Supreme Court, Brandenburg v Ohio, Decision, 8 June 1969, Case No. 395 US 444). See Feldman 2015, p 634. On how such standard is applied “in times of terror”, see Healy 2009, p 655 and Said 2011, p 1455. 50 Introduced by Italy, Decreto-Legge 27 luglio 2005, n. 144, Decreto-Legge convertito con modificazioni dalla L. 31 luglio 2005, n. 155 [Decree Law of 27 July 2005, n. 144, Decree Law converted with amendments by the Law of 31 July 2005, n 155].

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reformed in 2015, when the Italian legislator51 increased penalties if apology is committed through information technology tools. According to Italian case law, apology of terrorism cannot be framed as a glorification offence, i.e. an offence that can be prosecuted on the sole ground that a person praised terrorism. It is always necessary to prove a causal link between such laudatory words and the concrete risk that they may persuade other people to commit terrorist offences52 or, according to most recent case law, also to join terrorist associations.53 Differently, UK law contains a proper glorification offence.54 As a response to UN Security Council Resolution 1624 and to the CoE Convention on the Prevention of Terrorism, both addressed above,55 the Terrorism Act 2006 punishes ‘glorification’, defined as “any form of praise and celebration”56 provided that “members of the public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by them in existing circumstances”.57 Therefore, it is not necessary that the listener might be concretely convinced to emulate the glorified conduct, but only that the statement may objectively have such meaning. The Spanish Criminal Code envisages both a glorification (‘enaltecimiento’) and a humiliation (‘humillación’) offence (Article 578). The criminalisation of such conduct dates back to 2000; some amendments were passed in 2010 and again in 2015. ‘Enaltecimiento’ can be equated to glorification, since Spanish courts interpreted it as “una forma autónoma de apología caracterizada por su carácter genérico, sin llegar a integrar una provocación, ni directa ni indirecta del delito” [an autonomous form of apology, characterised by vagueness and not constituting direct nor indirect provocation to commit an offence].58 Hence, ‘enaltecimiento’ is characterised as mere laudatory speech. As happened in Italy, also in Spain a law of 2015 imposed harsher penalties if ‘enaltecimiento’ is enacted through technological tools.59

51

Italy, Decreto-Legge 18 febbraio 2015, n. 7, Decreto-Legge convertito con modificazioni dalla L. 17 aprile 2015, n. 43 [Decree Law of 18 February 20015, n. 7, Decree Law converted with amendments by the Law of 17 April 2015, n 43]. 52 Italian Constitutional Court, Judgment, 4 May 1970, Judgment No. 65/1970. Italian scholars agree on this point. See Borrelli 2010. 53 Italian Court of Cassation, Judgment, 1 December 2015, Judgment No. 47489/2015. 54 Marchand 2010, p 123. 55 See Sect. 13.3.1. 56 United Kingdom, Terrorism Act 2006 (Terrorism Act 2006), Section 20(2). Walker 2015, p 90. 57 Terrorism Act 2006, above n 57, Section 1(3)(b). 58 Among most recent judgments, Spanish Supreme Court, Criminal Section, Judgment, 9 February 2018, Judgment No. 396/2018. All translations provided by the author. 59 Spain, Ley Orgánica 2/2015, de 30 de marzo, por la que se modifica la Ley Orgánica 10/1995, de 23 de noviembre, del Código Penal, en materia de delitos de terrorismo [Law 2/2015, of 30 March, amending Law 10/1995, of 23 November, of the Criminal Code, on terrorism offences] (Ley Orgánica 2/2015).

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When mere manifestation of thought is punished, without providing evidence that it may entail a concrete risk for national security insofar as other people may be convinced to engage in terrorism, understandable concerns in terms of freedom of expression are likely to be raised. Actually, repressing speech at such an early stage may cast doubts on the fact that prohibited conduct is effectively not covered by freedom of expression and related guarantees. Moreover, such a preventive attitude runs the risk of the so-called chilling effect.60 In other words, individuals may wish to refrain from expressing even permitted and lawful views and opinions, because of fear of being criminalised as ‘glorifiers’. Last but not least, it is very complex to distinguish when praise and exaltation are in favour of prohibited terrorist acts and when, instead, they are directed towards lawful—even if extreme—ideologies.61

13.4

The Intertwinement between Limits to Free Speech and Human Dignity: Criminalising the Humiliation of Victims

As already mentioned in the Introduction and in Sect. 12.3, some national lawmakers deemed criminalisation of praise, exaltation or/and glorification of past terrorist acts not enough to deal with the ever-increasing (and changing) terrorist threat. Consequently, the humiliation of terrorism victims has been criminalised in the same way as ‘glorification’ offences. Not surprisingly, stronger restrictions to freedom of expression characterise countries—as Spain—that experienced two ‘key’ stress-factors: (i) a long-lasting season of domestic separatist terrorism, aimed at destroying national unity and (ii) the occurrence of violent attacks engendered by jihadist terrorism within its national territory. By contrast, other countries, for example Italy, experienced a different kind of domestic terrorism (focused on extreme political ideas and far from any attempt to put national unity into question) and suffered no direct attacks (until now) from jihadist terrorism within its own borders. Hence, the Italian legislator did not go as far as the one in Spain in criminalising speech. In Spain, the Criminal Code (Article 578) embodies an offence consisting of humiliation (‘humillación’), contempt (‘menosprecio’) and discrediting (‘descrédito’) of those who have been victims of terrorist acts or of their families. However, in the EU context, Spain is also the (almost) unique example of explicit criminalisation of such conduct; besides Spain, among EU countries, only Lithuania considers humiliation of terrorist victims as a specific offence.62 Indeed, some

60 61 62

Dyer 2015, p 88. Barendt 2009, p 445. Article 250(1) of the Lithuanian Criminal Code. See European Commission 2014.

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commentators argued that also in other jurisdictions humiliation conduct could be implicitly covered by provisions punishing apology of terrorism. This has been the case of France, where Article 421(2)–(5) of the Criminal Code was reformed in 2014 (Law 2014-1353)63 in order to increase penalties for ‘apologie du terrorisme’, even more if committed by the Internet. When this law was adopted, the drafting committee remarked that ‘apologie’ consists of décrire, présenter ou commenter une infraction en invitant à porter, sur elle, un jugement moral favorable. Elle est comparable à la provocation en ce que les esprits enclins à la délinquance peuvent y trouver des arguments et justifications propres à les aider à passer à l’acte et c’est pourquoi on l’appelle quelquefois, mais de manière approximative, ‘provocation indirecte’. Mais l’apologie se distingue de la provocation parce qu’elle reste punissable même quand l’écrivain n’a pas désiré le renouvellement des infractions qu’il excuse ou justifie [describing, presenting or commenting an unlawful act, inviting a favourable assessment on it. It can be compared to provocation insofar as those who are prone to crime can find grounds and justifications to their actions, and this is the reason why it is sometimes referred to—even if this is not precise—as indirect provocation. But apology is different from provocation because it is punishable even if the writer did not want the unlawful act he condoned or justified to be replicated].64

From this perspective, ‘apologie’ coincides with ‘glorification’. Additionally, according to a minority of the legal scholarship, this offence also implicitly includes humiliation.65 France will not be further examined in this chapter, because it only considers legal systems in which the humiliation offences are explicitly provided by law. As said, this happens only in Spain and Lithuania, but Spain will be the only case study of this section due to this chapter’s focus on Western Democracies. While Spain fits this category, Lithuania does not, both for geographical and political reasons.66 Spain also offers a wide range of case law and scholarship on the issue. Such a vigorous jurisprudential and scholarly debate will be helpful to stimulate further discussion in this research. As already specified, the final aim of this chapter is to

France, LOI n° 2014-1353 du 13 novembre 2014 renforçant les dispositions relatives à la lutte contre le terrorisme (1) [Law No. 2014-1353 of 13 November 2014 reinforcing the provisions relating to the fight against terrorism (1)]. 64 French National Assembly 2014. 65 See La Razón (2015) Francia y Alemania castigan con penas de dos a siete años denigrar a las víctimas [France and Germany punish the denigration of victims with penalties of two to seven years]. https://www.larazon.es/espana/no-vamos-a-permitir-que-se-humille-a-las-victimas-conmacabros-mensajes-AD10135207. Accessed 26 July 2019. 66 Lithuania gained independence from the Soviet Union in 1990. Then, although admitted to the EU and recognised as sharing basic democratic values, Lithuania is a much ‘younger’ Democracy than Spain—in which democracy settled in 1978—is. Therefore, it is better, from a methodological perspective, to compare Spain with other ‘older’ Democracies of the Western European area, such as Italy and the UK. 63

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discuss whether (or not) envisaging the humiliation of victims as a separate and specific offence in national criminal law is effectively a tool to enhance human dignity or a sort of dangerous ‘shortcut’. In other words, may it allow lawmakers to increasingly lean towards security, with the advantage of hiding such securitarian approach behind the noble purpose of protecting dignity? Before engaging in the analysis of the Spanish legal system, seen as an instrumental tool to answer this work’s research question, two caveats are essential. First, it is worth reminding that, even if provisions specifically criminalising humiliation of victims are an exception, since a small minority of EU Member States has done so, this does not mean that such offensive behaviour is not punished by other European countries’ laws. In other words, criminal law of States other than Spain (and Lithuania) would hold liable those who humiliate or scorn victims of terrorist acts since such crimes are prosecuted on the basis of more general offences (i.e. applicable to any kind of offensive statement). For example, Italian criminal law envisages an offence called ‘diffamazione’ [defamation], which sanctions anyone who offends or discredits the reputation of another person.67 To give a further example, again related to another of the countries that have been analysed above, in the UK offensive statements shall be repressed through a variety of legal tools, both provided by common law and statutory law. The most important example is the UK Defamation Act 2013, punishing conduct causing serious harm to the reputation of another person.68 Differently, envisaging the humiliation of victims of terrorism as a separate offence means that who humiliates a victim of terrorism will be punished in a different (and more severe) way than who humiliates any other category of persons. What it is more, as will be clarified in the following sections, the Spanish legislator includes ‘humillación’ among acts of terrorism.69 This causes a remarkable shift of perspective, since ‘humillación’ ceases to be a mere offence against reputation and turns into something very different, i.e. an offence against public security and the constitutional order of the State.70 This is even clearer if one considers that, while in Italy as in the UK—and in many other countries—offences against the reputation of individuals can only be prosecuted on the action of the injured party, in Spain ‘humillación’ of victims of terrorism is subject to ex officio prosecution. Therefore, Spain shows a stronger commitment towards the protection of public interest (public security) rather than merely an individual one (victims’ reputation). As a second essential caveat before analysing Spain, one should not forget that, although criminalising offenders of terrorism victims was a novelty in the Spanish legal system and a quite uncommon tool when compared to other EU Member

67

Article 595 of the Italian Criminal Code. This offence can be prosecuted if the victim is not present and the communication is heard by at least two people. Siracusano 1993, p 42; Fiandaca and Musco 2013, pp 106–107. 68 Price and McMahon 2013. 69 In the same manner as it did in relation to ‘enaltecimiento’, discussed in Sect. 13.3.2. 70 On this concept in the Spanish legal system, see Quintero Olivares and Jaria i Manzano 2015, pp 543–583.

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States, other forms of protection of these people—also when acts of terrorism are at issue—are not so infrequent. For example, on the basis of international guidelines dealing with the role of victims in seeking justice,71 national laws of several countries recognise the status of victims within the criminal justice system, giving them the chance to appear in criminal proceedings and to be thoroughly questioned about what happened.72 Furthermore, domestic pieces of legislation award compensation to victims in different forms.73 Beside compensation and the recognition of victim status in criminal proceedings, another key feature in the enhancement of victims’ rights is the involvement of civil society groups representing them.74 These groups may play different roles, depending on the context. They may perform advocacy or lobbying activity for the rights of victims and give them practical support; they may provide information about means of redress. Briefly, their role is ever-changing and multifaceted.75 All the mentioned ways to involve victims— recognition of their status in criminal justice, right to compensation, involvement of civil society groups, etc.76—are quite different from the topic that the following section is going to address, i.e. the humiliation of victims as a specific criminal offence. Such divergence consists of the fact that criminally prosecuting the humiliation of victims implies that the legislator, in framing this offence, engaged in a balancing activity with freedom of expression of the perpetrator.77 Such balance is

71 United Nations General Assembly (1985) Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, UN Doc A/RES/40/34. More recently, UN Office on Drugs and Crime 2015. 72 E.g., according to Articles 2–9 of the French Code of Criminal Procedure

any association lawfully registered for at least five years on the date of offence proposing through its constitution to assist the victims of offences may exercise the rights granted to the civil party in respect of the offences falling within the scope of Article 706-16, where a prosecution has been initiated by the public prosecutor or by the injured party. 73 E.g., in Italy victims of crimes are allowed to initiate civil proceedings asking for the reparation of harm suffered. Furthermore, and with specific reference to victims of terrorism, they can also apply for compensation from the State, according to Law 206/2004, regardless of whether or not the perpetrator has been identified or punished. In general, on methods to guarantee protection to terrorism victims, see Global Counterterrorism Forum 2013. In many cases, also commemoration is seen as a form of compensation. See European Parliament Policy Department for Citizens’ Rights and Constitutional Affairs 2017, p 30. 74 With regard to Spain, e.g., after the 2004 Madrid bombings, a specific association of victims was formed by the mother of a victim. It is called March 11 Association of Those Affected by Terror. Before that, associations of victims of ETA terrorism had been founded, such as the Association of Victims of Terrorism, set up by Louis Delgado and aiming at increasing benefits awarded to victims, such as pensions. See Hoffman and Kasupski 2007. 75 UN Office on Drugs and Crime 2015. 76 On such alternative means, see Scovazzi and Citroni 2007, p 342. 77 It is quite uncommon to see human dignity and freedom of expression at odds, since human dignity is often seen as the ground for other rights. In particular, freedom of expression is considered by some scholars as directly deriving from human dignity. Waldron 2012, p 139. The

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not required when other benefits—compensation, role in civil society, procedural rights—are awarded to victims.78 This research will clarify whether this approach may conceal security concerns and hide a prevailing interest for security, rather than for dignity. In view of this goal, the following two sections will address ‘humillación’ from a legislative and judicial perspective, respectively, in order to give a complete overview of the framework offered by Spanish law. The analysis of the issue may work as an inspiring cue to explore the relationship between human dignity and security in times of terrorism.

13.4.1 Case Study on Spain: Humillación de las Víctimas As already discussed in Sect. 13.3, Article 578 of the Spanish Criminal Code envisages two different offences, both sanctioned by the same penalties. Article 578 punishes, on the one hand, ‘enaltecimiento y justificación’ [glorification and justification of terrorism]79 and, on the other hand, ‘descrédito, menosprecio y humillación’ [discrediting, contempt and humiliation] of its victims or of their families. With the focus of this section being on the second limb of this Article, i.e. the humiliation of victims, it is worth remarking that it was introduced in the Spanish Criminal Code together with ‘enaltecimiento’, that is to say by way of Ley Orgánica 7/2000 [Law 7/2000].80 The humiliation offence was established in order to fight internal terrorism, i.e. acts perpetrated by ETA. Indeed, on 3 May 2018, ETA announced its own dissolution, putting an end to its violent campaign for the independence of the Basque region. Notably, some days before, on 20 April 2018, it apologised to some of its victims, i.e. the ones who “had no responsibility in the conflict”.81 Nonetheless, ETA’s dissolution is very recent. It is a matter of fact that the sensitivity of the Spanish legislator for the need to fight ETA was the main driver of a number of Spanish anti-terrorism measures, which were then used also to

theory of Schauer, instead, considers the clash between dignity and freedom of expression as a basic feature of the so-called hate speech (on which, see below). Schauer 1982, p 178. 78 According to some views on human dignity, such a balance is unacceptable per se. For example, Article 1 of the German Constitution explicitly states that “human dignity is inviolable” and, according to Article 79(3), the principle of dignity cannot be changed even if the reinforced procedure for constitutional amendment is respected. On the concept of human dignity in the German Constitution, see Barak 2015, p 232. 79 See above, para 4. 80 Spain, Ley Orgánica 7/2000, de 22 de diciembre, de modificación de la Ley Orgánica 10/1995, de 23 de noviembre, del Código Penal, y de la Ley Orgánica 5/2000, de 12 de enero, reguladora de la Responsabilidad Penal de los Menores, en relación con los delitos de terrorismo [Law 7/2000, of 22 December, amending Law 10/1995, of 23 November, of the Criminal Code, and Law 5/2000, of 12 January, regulating the Criminal Responsibility of Minors, in relation to terrorist offences]. 81 See Ormazabal M, Aizpeolea LR (2018) ETA releases statement announcing its complete dissolution. https://elpais.com/elpais/2018/05/03/inenglish/1525349131_830131.html. Accessed 17 April 2019 (reporting both communications).

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fight terrorism of a different nature. Such offence is perfectly suitable to be applied in cases of humiliation of any type of terrorism victims, including those of international terrorism, and—as a potential abuse—to curb political dissent. Heading back to legislative changes, in 2010, Ley Orgánica 5/2010 included Article 578—and, by implication, humiliation itself—in the list of terrorist offences. As a matter of fact, Article 578 is in the section of the Spanish Criminal Code dedicated to ‘delitos de terrorismo’ [terrorist crimes].82 Then, from a strictly systematic perspective, both ‘enaltecimiento’ and ‘humillación’ are crimes of terrorism. Nevertheless, as will be further clarified, the collocation of ‘enaltecimiento’ and ‘humillación’ among terrorist crimes, although confirmed by Ley Orgánica 2/2015,83 should not be taken for granted. Law 2/2015 also increased sanctions when ‘enaltecimiento’ and ‘humillación’ are committed online. Therefore, criminalisation of ‘humillación’ followed the same path as ‘enaltecimiento’ and these two offences are punished in the same way. As to the structure of this offence, although, for practical reasons, this chapter will generally refer to ‘humiliation’ (or ‘humillación’) to describe all acts—other than ‘enaltecimiento’—covered by Article 578, there are indeed three offences punishable as violation of victims’ dignity. First, ‘descrédito’; second, ‘menosprecio’ and third, ‘humillación’. ‘Descrédito’ means casting doubts on the fact that the person in question has really been a victim of terrorist acts; ‘menosprecio’ is the behaviour consisting of underestimating and mocking a victim’s sufferings; and ‘humillación’ is more generic and refers to any offensive act against a victim of terrorism.84 The humiliation offence entails—in the same way as glorification crimes—a restriction of freedom of expression. Spanish scholars have thoroughly discussed the justification for such objective limitation and the reasons for its inclusion in the Criminal Code. The prevailing view holds that the conduct at issue can be classified as ‘hate speech’, exactly in the same way as ‘enaltecimiento’.85 There is no universally accepted definition of ‘hate speech’,86 but there are supranational tools offering guidelines, according to which the term “hate speech” shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.87

82

Dolz Lago 2013, p 165. Ley Orgánica 2/2015, above n 59. According to this law, Article 573(3) of the Criminal Code considers all crimes mentioned in the same title as ‘crimes of terrorism’. 84 Spain 2000, ap. III. 85 Bernal del Castillo 2016, p 29. 86 Weber 2009, p 3; Aba Catoria 2015, p 199. More generally on hate speech and freedom of expression, Revenga Sánchez 2015. 87 Council of Europe Committee of Ministers 1997. 83

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Therefore, the basic feature of hate speech is an offensive message against other people, prejudicing their dignity, grounded on personal characteristics of such individuals that determine their affiliation to certain groups. In the specific case addressed in this study, persons in question are humiliated as victims. The status of victim, then, constitutes the differential feature between them and other members of the society. And acts of violence are grounded exactly on such differential aspects. In other words, a message of hatred is disseminated against them, because they have been victims of terrorist acts and, in the perpetrator’s mind, they deserved such violence. Hence, hatred is motivated by political and ideological reasons and the content of the perpetrator’s speech may be interpreted in two different ways. On the one hand, as some Spanish commentators focusing on Article 578 maintained,88 those who humiliate victims may want to say that such persons deserved the sufferings that were inflicted on them. On the other hand (and not necessarily as an alternative, since these two interpretations could coexist), offending victims of terrorism may be read as an indirect way to express approval for terrorist acts in which such people got caught up and, ultimately, support for terrorist ideology. As a consequence, humiliation of victims may have been regarded by the Spanish legislator not only as an assault to the dignity of human beings, but also as a threat to public security. This can only be inferred through interpretation and there is no explicit evidence—for example in the travaux préparatoires of this law—that such double aim was pursued. Nonetheless, this view is underpinned by the fact that the humiliation crime was created bearing in mind the violence perpetrated by ETA (since in 2000 international terrorism was not yet of the scale as it is now), considered as a major threat against the unity of the State. It is not difficult, then, to perceive the double nature of the ‘humiliation offence’ and, at the same time, how likely a misapplication of this provision can be. More clearly, Article 578 might be used to punish statements or any other act that allegedly impair national security, claiming that they entail humiliation of an individual. For instance, posting online photos of terrorism victims accompanied by offensive statements against them undoubtedly harms the dignity of such individuals, but it may even be perceived as an indirect invitation to emulate the attack. However, punishing such behaviour as an assault to dignity is easier and requires less evidence than sanctioning it as a crime of indirect incitement. Taking into consideration a further feature of the examined offence, publicity is not required, so it is not necessary that the act of humiliation takes place in public (differently from ‘enaltecimiento’), but it is enough that the person against whom the offensive message is directed is able to perceive it. As to penalties, who is convicted for this offence shall be punished with imprisonment (minimum one year, maximum three years) and payment of a fine, which is calculated proportionally to the years of imprisonment. As said, the use of the Internet to commit such offence entails increased sanctions: Article 578(2)

88

Bernal del Castillo 2016, p 29.

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specifies that, in such case, the judge must choose within the highest half of the established sanction, i.e. between 18 months and three years of imprisonment. In sum, from Article 578’s wording it is not easy to deduce some pivotal elements, such as the threshold of gravity that conduct must present in order to be prosecuted. The humiliation offence’s structure shows that the Spanish legislator wrote quite a vague provision. As a result, Spanish courts have been addressing the issue. The following paragraph will examine trends emerging from a considerable number of cases. The analysis of these decisions will be helpful to understand whether, given the way in which the Spanish humiliation offence is concretely interpreted and applied by judges, there is a real risk that it becomes a mere ‘national security tool’ rather than a further guarantee for the dignity of individuals. Indeed, whilst genuine forms of victims’ protection should be welcomed in stressful times,89 the abuse of dignity to justify securitarian concerns leading to diminished safeguards for other fundamental rights cannot be accepted.

13.4.2 Article 578 of the Spanish Criminal Code and Its Interpretation by Courts Spanish case law on humiliation of victims of terrorism is very rich and quite known, since in Spain there have been many cases of high resonance in which people were sentenced to prison for this kind of offence against victims of ETA.90 Although a case-by-case analysis of factual circumstances is not its main purpose, this section will highlight theoretical issues addressed by such judicial decisions and examine how they have concretely shaped the humiliation offence provided for by Article 578 of the Spanish Criminal Code. Before retracing and analysing such case law, it is worth remarking that there are several courts within the Spanish judiciary system, whose case law on the relationship between fundamental rights and terrorism may be relevant. Excluding lower courts, at least three tribunals should be mentioned, whose decisions may steer the interpretation of the provisions at issue: the Tribunal Constitucional [Constitutional Court]; the Tribunal Supremo [Supreme Court]; and the Audiencia Nacional [National Criminal

With regard to such expression to define ‘times of terrorism’, see Rosenfeld 2006, p 2081. E.g. the Strawberry case, concerning some statements made on Twitter by a singer, offending victims of ETA terrorism. See El País (2017) El Supremo condena a un año de cárcel al cantante de Def con Dos por enaltecimiento del terrorismo [The Supreme Court sentences the singer of Def con Dos to a year in jail for inciting terrorism]. https://politica.elpais.com/politica/2017/01/19/ actualidad/1484826278_235453.html. Accessed 17 April 2019. In the judgment condemning him, the Tribunal Supremo stated that humiliating victims entails that they (or their relatives) are obliged “al recuerdo de la lacerante vivencia de la amenaza, el secuestro o el asesinato de un familiar cercano” [to remember the awful experience of the intimidation, abduction or murder of a close relative]. See Spanish Supreme Court, Criminal Section, Judgment, 26 January 2017, Judgment No. 31/2017. 89 90

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Court].91 The Tribunal Constitucional’s task is to assess the compatibility of Spanish laws with the Spanish Constitution.92 The Tribunal Supremo93 is the highest level of jurisdiction in Spain, hearing appeals from lower courts. The Audiencia Nacional is a specialised tribunal dealing with some specific criminal matters listed by law94 among which particularly serious terrorist crimes.95 Judgments dealing with the matter can be distinguished into two macro-categories: first, decisions addressing the constitutional value undermined by the criminalised behaviour; second, those interpreting the criminal conduct of ‘humillación’ as to its concrete features (for example the required threshold of gravity of criminal acts, the subjective element, whether or not a single act is sufficient, etc.). The former macro-category, in examining which values are endangered by humiliation and which is the ‘harm’ that it causes, is indirectly linked to a further and crucial issue, i.e. the nature of the examined offence. In other words, is it a pure offence against reputation and, ultimately, human dignity, or can it be qualified as an act of terrorism? As to this first set of decisions, i.e. the ones clarifying which constitutional value is damaged by conduct recognised as humiliation of victims of terrorism, a couple of points deserve attention. On the one hand, many judgments maintained that humiliating victims of terrorism and their families results in an injury to the dignity of such persons (individual dimension). For example, in some cases, panels of the Spanish Tribunal Supremo dealing with criminal matters maintained that the inclusion of the humiliation offence in the Criminal Code, which enables a limitation of freedom of expression,96 is justified by the fact that “el honor de las víctimas y, en último término, su dignidad” [the honour of victims and, ultimately, their dignity]97 are impaired. To this extent, the Tribunal Supremo underlined that conditions laid down by the case law of the Tribunal Constitucional, legitimising interferences with freedom of expression, were met since criminalised speech clashed with a basic value—human dignity—enshrined in the Spanish Constitution at Article 10 (inspiring all other provisions of the constitutional text). On the other hand, several decisions explained that humiliation cannot be considered as a mere

91 Please be aware that translations provided in brackets are only for explanatory purposes; they do not precisely reflect the Spanish concept of each court, which is explained in the text. 92 Articles 159–165 of the Spanish Constitution. On the Spanish Tribunal Constitucional, see Blanco Valdés 2017, p 220. 93 Article 123 of the Spanish Constitution. 94 Spain, Ley Orgánica 6/1985, de 1 de julio, del Poder Judicial [Law 6/1985, of 1 July, on the Judiciary]. 95 On the organisation of the judiciary in Spain, see Álvarez Conde and Tur Ausina 2016, p 83. 96 Spanish Constitutional Court, Judgment, 10 December 2007, Judgment No. 235/2007 and Spanish Constitutional Court, Judgment, 21 January 2008, Judgment No. 4/2008. Cf. Jara 2015, p 79. 97 Spanish Supreme Court, Criminal Section, Judgment, 17 July 2007, Judgment No. 656/2007. See also Spanish Supreme Court, Criminal Section, Judgment, 28 June 2013, Judgment No. 587/2013.

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conduct endangering honour, reputation and, ultimately, dignity of individuals. According to this case law, the offence of ‘humillación’ presents special features, because not only dignity, but also further values deserving protection are undermined due to the fact that the perpetrator’s speech relates to terrorism. These latter decisions were issued at a later stage, specifically after 2012 and even more prominently in 2015–16, i.e. in the aftermath of a new wave of terrorist attacks having European countries as targets. Indeed, many of these cases deal with the humiliation of victims of ETA violence. This is further evidence of the significant presence of ETA terrorism until very recent times. In 2016, the Tribunal Supremo highlighted that humiliating terrorist victims entails a risk for social peace and for democracy (collective dimension).98 Ultimately, the Tribunal Supremo started remarking that humiliation of victims has a second dimension, i.e. the collective one (beside the individual one).99 This latest approach of courts led some Spanish scholars to maintain that the constitutional value endangered by those who humiliate a victim is not only the latter’s dignity, which refers to personal and private dimensions, but some public interest is involved as well. More precisely, in the view of some authors, the collocation of the humiliation offence within terrorist crimes by the Spanish legislator is justified in light of several circumstances. According to a first stance, dignity of terrorism victims is an autonomous value, different from the dignity of any other persons who were not hurt by terrorist attacks.100 Protecting the dignity of such victims is included among the State’s duty to fight terrorism; therefore, it goes beyond the State’s general duty to protect dignity of people. A second standpoint, embraced by other commentators, goes even further and argues that humiliating terrorism victims implies a violation of the social peace and the constitutional order. For this reason, humiliation of victims should be seen as a crime of terrorism, rather than as an offence against reputation.101 However, other Spanish commentators reject this view and hold that, although humiliating victims undoubtedly implies that the perpetrator shares terrorist ideologies and methods, at least to a certain extent, humiliation should be regarded as a crime related to terrorism, and not as a terrorist crime.102 From a practical perspective, it is worth remarking that Spanish courts have always excluded the interpretation that both ‘enaltecimiento’ and ‘humillación’ are to be qualified as terrorist conduct per se, notwithstanding their systematic 98

Spanish Supreme Court, Criminal Section, Judgment, 16 June 2016, Judgment No. 523/2016; but see also, more recently, Spanish National Criminal Court, Judgment, 15 February 2018, Judgment No. 27/2018. 99 As a matter of fact, these judgments held that Article 578 differs from ‘injuria’—criminalised by Article 208 of the Spanish Criminal Code—punishing everyone who offends other persons, because of the addressed conduct’s context (see also Spanish Supreme Court, Criminal Section, Judgment, 3 October 2012, Judgment No. 752/2012). 100 Dolz Lago 2013, p 4. 101 Ruiz Landáburu 2002, p 89. 102 Bernal del Castillo 2016, p 33.

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collocation within the Criminal Code under the title dedicated to terrorist crimes. Actually, although the Tribunal Supremo underlined the ‘double dangerousness’ of humiliation, impairing both human dignity and social peace, it firmly maintained that expressing support towards terrorist ideas, even when this is done through the humiliation of victims, cannot be equated to a terrorist act.103 As to the second macro-category of decisions mentioned above, i.e. those addressing specific features of the humiliation offence, three main aspects deserve attention: the threshold of gravity that acts must present to be prosecuted; the mens rea; and the necessity (or not) of more than one humiliating act in order to consider the crime as committed. With regard to the threshold of gravity of the offence, the standard adopted by courts is that of ‘objective suitability’ of the offensive act to violate the person’s dignity. This must be assessed by way of a detailed analysis of actions put in place. In particular, both the Tribunal Supremo and the Audiencia Nacional maintained that elements to be taken into account are: the wording and inflammatory force of statements, the context in which actions took place, but also all concurring circumstances.104 With regard to mens rea, the Tribunal Supremo determined that the public prosecutor has to demonstrate that the perpetrator acted with the specific intent to humiliate the victim.105 This means that he/she deliberately acted for the (only) purpose of humiliating the person in question. Concerning the number of acts that are necessary in order to consider the offence committed, in November 2016, the Audiencia Nacional106 held that humiliation can only be punished if ‘continuity’ in the humiliating behaviour is demonstrated. The Court motivated its decision in light of the fact that the Criminal Code refers to “actos”, therefore using the plural. This may cast some doubts, though, on how to deal with a single act meeting all subjective and objective requirement to be framed as humiliation pursuant to Article 578 of the Criminal Code. To sum up, the humiliation offence in the Spanish legal system is regarded by the legislator as a proper crime of terrorism, at least if one looks at its systematic collocation within the Criminal Code. However, this is not taken for granted by courts and scholars, engaged in a vigorous debate on the issue. Some scholars maintain that, although humiliation violates both a supreme value related to the individual dimension of the human being, i.e. dignity of victims, and a public interest, i.e. social peace and constitutional order, it should not be equated to a 103

Spanish Supreme Court, Criminal Section, Judgment, 19 February 2015, Judgment No. 106/ 2015. 104 Spanish Supreme Court, Criminal Section, Judgment, 3 October 2012, Judgment No. 752/2012. Spanish Supreme Court, Criminal Section, Judgment, 19 February 2015, Judgment No. 106/2015. This approach is quite similar to the one embraced by the European Court of Human Rights in relation to hate speech and, generally, limits to free speech. On such case law, see Rollnert Liern 2014, pp 233– 262. 105 Spanish Supreme Court, Criminal Section, Judgment, 28 June 2013, Judgment No. 587/2013. 106 Spanish National Criminal Court, Judgment, 8 November 2016, Judgment No. 35/2016.

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crime of terrorism. On the contrary, according to others, humiliation is an actual terrorist crime, because of the double set of interests it impairs. Yet, for their part, Spanish courts did not go as far as to declare that ‘humillación’—and, together with it, ‘enaltecimiento’—are terrorist offences per se. Although they have been very often called to rule on alleged Article 578 crimes, they have restricted its applicability (for example, by requiring a strict mens rea standard). Undoubtedly, this attitude is commendable in terms of human rights protection and balance with national security—with the latter being essential also for the enhancement of social peace and constitutional order, mentioned above. Nonetheless, such efforts by judicial bodies might be not enough to deflate the risk of abuse of humiliation offences. This topic will be analysed in the next and last section, together with other possible ways to constrain an excessively broad application of the humiliation offence.

13.5

Concluding Remarks: Risk of Misuse of the Humiliation Offence and Potential Mitigations

In order to answer the research question set out in the Introduction, it is useful to provide an overview of findings that emerged from the previous sections. First, after 9/11, but even more evidently since 2014—i.e. when a growing number of relevant terrorist attacks had Europe as main target107—international terrorism ‘has changed its face’. Particularly, over the years, radicalisation, aimed to recruit terrorists, increased as a result from ‘terrorist-speech’, spread above all via the Internet. By implication, attention of lawmakers for speech inciting, even indirectly, or merely glorifying terrorism, reached a peak.108 Second, and consequently, glorification offences have been envisaged by many Criminal Codes and, where this was not the case, apology offences very often started to be interpreted as the criminalisation of mere manifestation of thought.109 In so doing, lawmakers have balanced freedom of expression and national security in favour of the latter. In other words, when mere glorification is criminalised, the balance leans towards a securitarian goal, rather than towards the protection of personal freedoms (freedom of expression), since a causal link between words and the actual risk of a terrorist action is lacking or not demonstrated. Third, humiliation of terrorism victims, in some cases (i.e. Spain), is criminalised in the same way as apology or glorification of terrorism. The reasoning in support of such an offence as an autonomous kind of felony is the need to enhance terrorism victims’ dignity. However, the rationale behind it is clearly dual.

107 It should be noted though that most of the terrorist attacks (perpetrated by jihadist or extremist groups) have taken place very far from Europe and the West, in countries characterised by situations of civil war or political turmoil (such as Iraq), especially in Africa and the Middle East. 108 For an updated overview, see Leibowitz 2017, p 795. 109 Keiler 2017, p 230.

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On the one hand, with particular regard to terrorism victims, this kind of ‘dedicated’ criminal response serves to ensure a perceivable support of the State and its institutions. On the other hand, from a more general point of view, it demonstrates to the public opinion a very strong and clear commitment of the State to combat terrorism (making a recognisable ‘field choice’ in favour of the ‘good’ and against the ‘evil’), so enhancing the sense of perceived (public) security. Article 578 of the Spanish Criminal Code—a patent example of this practice—inflicts penalties to those who humiliate victims of terrorism that are higher than sanctions directed to those who humiliate any other person. Therefore, besides the protections of victims’ dignity, the idea of State commitment against terrorism is reinforced. Yet, separate ‘humiliation offences’ dedicated to terrorism victims may turn the protection of human dignity (the ultimate purpose of the norm) into a national security tool, leading to potential misuses or even abuses. As remarked in the Introduction, using human dignity to conceal security concerns openly clashes with the traditional Kantian notion of dignity. According to Kant, humanity must be treated “never merely as a means to an end, but always at the same time as an end”.110 Thus, the Kantian doctrine basically maintains that human dignity must not be exploited to pursue different aims. As a matter of fact, in concretely enforcing humiliation provisions, lawmakers enable prosecutors and judges to punish some statements as assaults to dignity, when, indeed, they may use this ploy as an easier and less-constrained way to repress statements that might endanger national security, promote further radicalisation and spread a feeling of unsafety among the population. This approach leaves law enforcement authorities a broad leeway in terms of preventive action against potential terrorists or simple ‘supporters’, which undoubtedly contributes to simplify policing and investigation activities, but also reinforces the idea of a State trying its utmost (i.e. using the ‘iron fist’) against terror. In other words, by alleging a serious violation of human dignity and introducing new ‘humiliation offences’, enforcement bodies could circumvent higher standards of proof required to punish terrorist speech and incitement. This means nothing but using human beings’ (victims’) dignity to a different aim. In the presented case study, Spanish courts appear quite careful to avoid abuses (strict subjective and objective requirements to consider the conduct punishable, i.e. mens rea standards etc., significantly exemplify this caution). Nevertheless, the legislator’s choice to include glorification and humiliation in the particular category of ‘terrorist offences’ leads to assimilate conduct that is indeed very different in terms of seriousness and social dangerousness. Autonomous and ex officio prosecution of victims’ humiliation—i.e. of a conduct that is not necessarily or directly aimed at fostering further attacks—may introduce an exceptional regime that is potentially disproportional and unjustified vis-à-vis the rights it allegedly aims to protect. This risk is even higher if one bears in mind that nearly all legal systems provide, within their criminal legislation, offences punishing who damages other persons’

110

Kant 1993, p 36.

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reputation, honour and, ultimately, dignity.111 Therefore, the key point is: are provisions that punish conduct humiliating terrorism victims as an autonomous and separate offence ultimately necessary? And, more importantly, are ‘humiliation offences’ really intended for the sole support of victims? In both cases the answer cannot be an affirmative one. From a systematic point of view—in terms of internal coherence of a criminal law system—no actual reason can be found in order to justify differentiation in abstracto between any conduct of humiliation and vilification of human dignity (for instance targeting certain ethnic groups or religious beliefs) and conduct aimed at offending the dignity of the victims of terrorism, in terms of actus reus. The particular condition of the victim or the specific purpose of the humiliation may (and should) be taken into consideration as an aggravating circumstance, as it happens in many jurisdictions in relation to crimes committed for racial hatred. With regard to the victims’ side, one can hardly find any relevant or concrete advantage deriving from the existence of an autonomous offence, given that the very same results may be achieved by means of ordinary offences and the particular conditions of the victims could be duly taken into account by means of aggravating circumstances. In the end, the reason for providing autonomous offences (within the wider category of ‘terrorist offences’) for those who humiliate victims of terrorism is a manifestation of State power, repressing terrorist speech per se, for reasons of national security (namely general prevention and public order, at large), with the victims—and their dignity—being relatively marginalised.112 Furthermore, although sending perpetrators to prison may entail a certain amount of psychological satisfaction for victims and/or their families, it does not necessarily relieve such persons’ sufferings, nor does it improve their situation.113 In addition, it should be taken into account that media attention that usually surrounds trials involving terrorism could possibly be detrimental to the psychological condition of the victims and their families, jeopardising their attempts to overcome humiliation and sufferings and interfering with their private and family life. Instead, other methods aimed at giving legal recognition to their status114 appear to be more suitable to enhance their dignity (reparation, search for truth, civil society groups, victims commemoration, etc.).115 In support of this view, it is enough to remind that

111

See Sect. 13.3. Horovitz and Weigend 2011, p 266. 113 Indeed, apart from preventing perpetrators from reiterating the crime during their detention term (provided that they are actually captured and imprisoned), this kind of conviction is hardly capable of easing the victims’ condition. By contrast, it may potentially lead to the boomerang effect of ‘martyrising’ perpetrators, whose detention will be described as an attack against their freedom of speech, their ethnic group or their own religion, in order to feed further hate against the victims. 114 See Dearing 2017, p 364, referring to “a new paradigm” in alternative to the traditional criminal justice system, based on the punishment of the defendant. 115 See Argomaniz 2015, p 124 on how such measures are framed with specific reference to Spain. 112

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national criminal justice systems that tried to reinforce the role of victims in criminal proceedings against their perpetrators always enacted the last-mentioned set of measures, entailing a centralisation of the victim.116 Additionally, depriving perpetrators of personal liberty might prove ineffective for different reasons. Therefore, how to mitigate the risk that separate and autonomous humiliation offences enhance security without relevant benefits in terms of victims’ dignity? Some hypotheses can be conceived. It must be set out very clearly that the problem cannot be tackled by simply relying on judges to apply humiliation offences carefully, enacting very strict scrutiny, as, in many cases, Spanish courts tried to do. While judicial restraint is certainly to be welcomed, the matter should be addressed in terms of legislative action. If humiliation of terrorism victims is to be criminally prosecuted, it is preferable that States do so through ordinary offences protecting reputation of persons, possibly providing harsher penalties by reason that the offended person is a terrorism victim (i.e. providing a specific aggravating circumstance). Moreover, prosecution should take place—as it happens in many jurisdictions, in relation to offences against reputation—on complaint of the victims or their families. In this way, the risk of exploiting humiliation offences for purpose that are different from the victims’ best interests would be sensibly diminished and the centrality of the victim within the trial would be ensured to the best possible extent. As regards punishments to be imposed, deprivation of personal liberty is not always the only or the best viable choice: apart from adequate compensation for the moral damages suffered by humiliated victims (that shall always be guaranteed by the State, even in case perpetrators are not creditworthy or their civil liability is de facto unenforceable),117 reparation might be imposed at the request of the humiliated victims or their families, such as public apologies or activities in favour of terrorism victims. Furthermore, if the victims or their families so desire, States should ensure public commemoration and any adequate activity to ensure civil society is duly informed about what happened.118 While solutions to be adopted and their adequate balance might depend on the characteristics of each single legal system, and could sometimes vary on a This attitude, based on ‘alternative’ measures, is often referred to as a ‘human rights-based approach’, as opposite to a ‘state-centred’ one, and it involves a relevant reframing of the criminal justice system. See Dearing 2017, p 3. 117 On the use of state budget to provide assistance and compensation to victims, see UN General Assembly (2010) Human Rights Council: Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin. Ten areas of best practices in countering terrorism, UN Doc A/HRC/16/51. 118 In this regard, the Inter-American Court of Human Rights and the European Court of Human Rights—the former in a clear and decided way, the latter still quite cautiously—affirmed the existence of a ‘right to truth’ for victims and their families. See further Vedaschi 2014, p 107. The ‘building of good community relations’ is noted as a best practice, with particular regard to Spain, in UN General Assembly (2008) Human Rights Council: Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin. Addendum. Mission to Spain, UN Doc. A/HRC/10/3/Add.2. 116

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case-by-case basis, the main principle to be borne in mind is that criminal prosecution of humiliation offences shall be centred on victims’ rights and interests and not on the necessity to provide stronger prevention instruments to police authorities and public prosecutors. Any exploitation of the victims’ dignity for general (even if commendable) purposes may result in abuses additional to those already suffered by the same victims119 and should be avoided, especially in times of terrorism.

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More in general and without particular regard to victims of terrorism, this view is shared by Dearing 2017, p 13.

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Gill P, Horgan J, Deckert P (2014) Bombing Alone: Tracing the Motivations and Antecedent Behaviors of Lone-Actor Terrorists. Journal of Forensic Sciences 59(2):425–435 Global Counterterrorism Forum (2013), Madrid Memorandum on Good Practices for Assistance to Victims of Terrorism Immediately After the Attack and in Criminal Proceedings. https://www. thegctf.org/documents/10162/72352/13Sep19_Madrid+Memorandum.pdf. Accessed 25 July 2019 Healy T (2009) Brandenburg in a Time of Terror. Notre Dame Law Review 84(2):655–732 Hoffman B, Kasupski A-B (2007) The Victims of Terrorism. An Assessment of Their Influence and Growing Role in Policy, Legislation, and the Private Sector. Rand Corporation. https:// www.rand.org/content/dam/rand/pubs/occasional_papers/2007/RAND_OP180-1.pdf. Accessed 25 July 2019 Horovitz A, Weigend T (2011) Human Dignity and Victims’ Rights in the German and Israeli Criminal Process. Israel Law Review 44(1–2):263–300 Ingram HJ (2017) An Analysis of Inspire and Dabiq: Lessons from AQAP and Islamic State’s Propaganda War. Studies in Conflict & Terrorism 40(5):357–375 Jara MM (2015) Libertad de Expresión Versus Apología del Terrorismo. Aspectos y Límites Constitucionales [Freedom of Expression Versus Apology of Terrorism. Constitutional Aspects and Limits]. In: Guadarrama Rico LA, Suárez Villegas JC, del Mar González Jiménez M (eds) Desafíos éticos de la comunicación en la era digital: Libro de Actas del III Congreso Internacional de Ética de la Comunicación [Ethical challenges of communication in the digital age: Book of Proceedings of the Third International Congress of Communication Ethics]. Dykinson, Madrid, pp 79–91 Kant I (1993) Grounding for the Metaphysics of Morals (transl. Ellington JW). Hackett, Indianapolis Keiler J (2017) Terrorist Speech and the Criminal law - A Comparative Analysis. European Journal of Crime, Criminal Law and Criminal Justice 25(3):230–259 Krähenmann S (2016) The Obligations under International Law of the Foreign Fighter’s State of Nationality or Habitual Residence, State of Transit and State of Destination. In: de Guttry A, Capone F, Paulussen C (eds) Foreign Fighters under International Law and Beyond. T.M.C. Asser Press, The Hague, pp 229–258 Leibowitz Z (2017) Terror on Your Timeline: Criminalizing Terrorist Incitement on Social Media Through Doctrinal Shift. Fordham Law Review 86(2):795–824 Lynch O (2013) British Muslims youth: radicalisation, terrorism and the construction of the “other”. Critical Studies on Terrorism 6(2):241–261 Magri P (2016) Introduction. In: Varvelli A (ed) Jihadist Hotbeds. Understanding Local Radicalization Processes. Italian Institute for International Political Studies/European Foundation for Democracy. https://www.ispionline.it/sites/default/files/pubblicazioni/jihadist. hotbeds_ebook.pdf. Accessed 26 July 2019 Marchand SA (2010) An Ambiguous Response to A Real Threat: Criminalizing the Glorification of Terrorism in Britain. George Washington International Law Review 42:123–157 Meleagrou-Hitchens A, Kaderbhai N (2017) Research Perspectives on Online Radicalisation: A Literature Review 206 to 2016. VoxPol. http://www.voxpol.eu/publications/. Accessed 17 April 2019 Paulussen C, Pitcher K (2018) Prosecuting (Potential) Foreign Fighters: Legislative and Practical Challenges. International Centre for Counter-Terrorism—The Hague. https://icct.nl/ publication/prosecuting-potential-foreign-fighters-legislative-and-practical-challenges/. Accessed 17 April 2019 Price J, McMahon F (2013) Blackstone’s Guide to the Defamation Act. Oxford University Press, Oxford Quintero Olivares G, Jaria i Manzano J (2015) La protección penal del orden constitucional [The criminal protection of the constitutional order]. In: Quintero Olivares G, Jaria i Manzano J (eds) Derecho penal constitucional [Constitutional criminal law]. Tirant Lo Blanch, Valencia, pp 543–583

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Rabasa A, Bernard C (2015) Eurojihad. Patterns of Islamist Radicalization and Terrorism in Europe. Cambridge University Press, Cambridge Rabasa A, Chalk P, Cragin K, Daly SA, Gregg HS, Karasik TW, O’Brien KA, Rosenau W (2006) Beyond al-Qaeda: The Global Jihadist Movement. Rand Corporation. https://www.rand.org/ content/dam/rand/pubs/monographs/2006/RAND_MG429.pdf. Accessed 25 July 2019 Renieris EM (2009) Combating Incitement to Terrorism on the Internet: Comparative Approaches in the United States and United Kingdom and the Need for an International Solution. Vanderbilt Journal of Entertainment and Technology Law 11(3):673–709 Revenga Sánchez M (eds) (2015) Libertad de expresión y discursos del odio [Freedom of expression and hate speech]. Alcalá de Henares, Madrid Rollnert Liern G (2014) Incitación al terrorismo y libertad de expresión: el marco internacional de una relación problemática [Incitement to terrorism and freedom of expression: the international framework of a problematic relationship]. Revista de Derecho Político 91:231–262 Rosenfeld M (2006) Judicial Balancing in Times of Stress: Comparing the American, British, and Israeli Approaches to the War on Terror. Cardozo Law Review 27:2079–2151 Roy O (2017) Jihad and Death: Global Appeal of the Islamic State. Oxford University Press, New York Ruiz Landáburu MJ (2002) Provocación y apología: delitos de terrorismo [Incitement and apology: terrorism offences]. Colex, Madrid Said WE (2011) Humanitarian Law Project and the Supreme Court’s Construction of Terrorism. Brigham Young University Law Review 5:1455–1508 Schauer F (1982). Freedom of Speech. A Philosophical Enquiry. Cambridge University Press, Cambridge Scheinin M (2019) The EU Regulation on Terrorist Content: An Emperor without Clothes. Verfassungsblog. https://verfassungsblog.de/the-eu-regulation-on-terrorist-content-anemperor-without-clothes/. Accessed 17 April 2019 Scovazzi T, Citroni G (2007) The Struggle against Enforced Disappearances and the 2007 United Nations Convention. Brill/Nijhoff, Leiden/Boston Siracusano P (1993) Ingiuria e diffamazione [Insult and diffamation]. In: Digesto delle Discipline Penalistiche [Digest of Criminal Disciplines] Vol. 7. UTET, Turin, pp. 30–40 Spain (2000) Exposición de motivos, Ley 7/2000 [Reasoning, Law 7/2000], https://www.boe.es/ diario_boe/txt.php?id=BOE-A-2000-15355. Accessed 25 July 2019 The Carter Center (2016) Countering Daesh Propaganda: Action-Oriented Research for Practical Outcome (2016). https://www.cartercenter.org/resources/pdfs/peace/conflict_resolution/ countering-isis/counteringdaeshpropaganda-feb2016.pdf. Accessed 17 April 2019 UN General Assembly (1985) Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, UN Doc A/RES/40/34 UN General Assembly (2006) Resolution 60/288, UN Doc. A/RES/60/288 UN General Assembly (2008) Human Rights Council: Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin. Addendum. Mission to Spain, UN Doc. A/HRC/10/3/Add.2 UN General Assembly (2010) Human Rights Council: Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin. Ten areas of best practices in countering terrorism, UN Doc. A/HRC/16/51 UN General Assembly (2016) Resolution adopted by the General Assembly on 1 July 2016, UN Doc. A/RES/70/291 UN Office on Drugs and Crime (2012). The use of the Internet for terrorist purposes. https://www. unodc.org/documents/frontpage/Use_of_Internet_for_Terrorist_Purposes.pdf. Accessed 25 July 2019 UN Office on Drugs and Crime (2015) Good Practices in Supporting Victims of Terrorism within the Criminal Justice Framework. https://www.unodc.org/documents/terrorism/Publications/ Good%20practices%20on%20victims/good_practices_victims_E.pdf. Accessed 25 July 2019 UN Security Council (2001) Resolution 1373 (2001), UN Doc. S/RES/1373

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UN Security Council (2005) Resolution 1624 (2005), UN Doc. S/RES/1624 UN Security Council (2010), Resolution 1963 (2010), UN Doc. S/RES/1963 UN Security Council (2014) Resolution 2178 (2014), UN Doc. S/RES/2178 UN Security Council (2016) Global survey of the implementation of Security Council Resolution 1624 (2005) by Member States, UN Doc. S/2016/50 Vedaschi A (2014) Globalization of Human Rights and Mutual Influence between Courts: The Innovative Reverse Path of the Right to the Truth. In: Shetreet S (ed) Culture of Judicial Independence: Rule of Law and World Peace. Brill/Nijhoff, Leiden/Boston Vedaschi A (2016) Da al-Qāʻida all’IS: il terrorismo internazionale si è fatto Stato? [From Al-Qaeda to IS: has international terrorism become a State?]. Rivista Trimestrale di Diritto Pubblico 66(1):41–80 Waldron J (2012) The Harm in Hate Speech. Harvard University Press, Cambridge Walker C (2015) Blackstone’s Guide to the Antiterrorism Legislation. Oxford University Press, Oxford Walker C (2017) The War of Words with Terrorism: An Assessment of Three Approaches to Pursue and Prevent. Journal of Conflicts & Security Law 22(3): 523–551 Weber A (2009) Manual on Hate Speech. Council of Europe Publishing. http://icm.sk/subory/ Manual_on_hate_speech.pdf. Accessed 25 July 2019

Case Law Italian Constitutional Court, Judgment, 4 May 1970, Judgment No. 65/1970 Italian Court of Cassation, Judgment, 1 December 2015, Judgment No. 47489/2015 Spanish Constitutional Court, Judgment, 10 December 2007, Judgment No. 235/2007 Spanish Constitutional Court, Judgment, 21 January 2008, Judgment No. 4/2008 Spanish National Criminal Court, Judgment, 8 November 2016, Judgment No. 35/2016 Spanish National Criminal Court, Judgment, 15 February 2018, Judgment No. 27/2018 Spanish Supreme Court, Criminal Section, Judgment, 17 July 2007, Judgment No. 656/2007 Spanish Supreme Court, Criminal Section, Judgment, 3 October 2012, Judgment No. 752/2012 Spanish Supreme Court, Criminal Section, Judgment, 28 June 2013, Judgment No. 587/2013 Spanish Supreme Court, Criminal Section, Judgment, 19 February 2015, Judgment No. 106/2015 Spanish Supreme Court, Criminal Section, Judgment, 16 June 2016, Judgment No. 523/2016 Spanish Supreme Court, Criminal Section, Judgment, 26 January 2017, Judgment No. 31/2017 Spanish Supreme Court, Criminal Section, Judgment, 9 February 2018, Judgment No. 396/2018 US Supreme Court, Brandenburg v Ohio, Decision, 8 June 1969, Case No. 395 US 444

Legislation European Union, Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on combating terrorism (repealed by Directive 2017/541) European Union, Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/ JHA and amending Council Decision 2005/671/JHA France, LOI n° 2014-1353 du 13 novembre 2014 renforçant les dispositions relatives à la lutte contre le terrorisme (1) [Law No. 2014-1353 of 13 November 2014 reinforcing the provisions relating to the fight against terrorism (1)] Italy, Decreto-Legge 27 luglio 2005, n. 144, Decreto-Legge convertito con modificazioni dalla L. 31 luglio 2005, n. 155 [Decree Law of 27 July 2005, n. 144, Decree Law converted with amendments by the Law of 31 July 2005, n 155]

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Italy, Decreto-Legge 18 febbraio 2015, n. 7, Decreto-Legge convertito con modificazioni dalla L. 17 aprile 2015, n. 43 [Decree Law of 18 February 20015, n. 7, Decree Law converted with amendments by the Law of 17 April 2015, n 43] Spain, Ley Orgánica 6/1985, de 1 de julio, del Poder Judicial [Law 6/1985, of 1 July, on the Judiciary] Spain, Ley Orgánica 7/2000, de 22 de diciembre, de modificación de la Ley Orgánica 10/1995, de 23 de noviembre, del Código Penal, y de la Ley Orgánica 5/2000, de 12 de enero, reguladora de la Responsabilidad Penal de los Menores, en relación con los delitos de terrorismo [Law 7/2000, of 22 December, amending Law 10/1995, of 23 November, of the Criminal Code, and Law 5/2000, of 12 January, regulating the Criminal Responsibility of Minors, in relation to terrorist offences] Spain, Ley Orgánica 2/2015, de 30 de marzo, por la que se modifica la Ley Orgánica 10/1995, de 23 de noviembre, del Código Penal, en materia de delitos de terrorismo [Law 2/2015, of 30 March, amending Law 10/1995, of 23 November, of the Criminal Code, on terrorism offences] United Kingdom, Terrorism Act 2006

Treaties Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945) Council of Europe Convention on the Prevention of Terrorism, opened for signature 16 May 2005, CETS 196 (entered into force 1 June 2007)

Prof. Arianna Vedaschi is Full Professor of Comparative Public Law at Bocconi University (Milan, Italy). Her research fields are counter-terrorism law, national security and human rights, on which she has authored several articles and chapters. She wrote two monographs and she co-edited and co-authored, together with D. Cole and F. Fabbrini, Secrecy, National Security and the Vindication of Constitutional Law (Elgar Publishing Ltd, 2013). She recently published the article The Dark Side of Counter-Terrorism: Arcana Imperii and Salus Rei Publicae in The American Journal of Comparative Law (2018). She is the Coordinator of the International Association of Constitutional Law Research Group on Constitutional Responses to Terrorism. She acted as Italian national expert for a number of projects and she is a member of the Europol Platform for Experts.

Chapter 14

The Normalisation of Secrecy in the United Kingdom and the Netherlands: Individuals, the Courts and the Counter-Terrorism Framework Rumyana van Ark (née Grozdanova) and Charlotte Renckens

Contents 14.1 Introduction...................................................................................................................... 334 14.2 The Post-9/11 Intelligence Intoxication .......................................................................... 338 14.3 Terrorism Prevention, Intelligence Services and the Individual: The Advent of Conditional Inclusion Models .................................................................................... 341 14.3.1 Secrecy and the Netherlands: A Tale of Precaution.......................................... 341 14.3.2 Closed Evidence and the United Kingdom: A Long-Term Committed Relationship ........................................................................................................ 346 14.4 Human Dignity and the Rule of Law Post the Normalisation of Secrecy .................... 355 14.5 Conclusion ....................................................................................................................... 359 References .................................................................................................................................. 360

Abstract Since 9/11, States have persistently sought to adapt their counter-terrorism toolkit to the, perceived as unprecedented, threat of terrorism. What has been a considerable departure from previous approaches is the extent of transnational State cooperation on matters of national security—particularly in the context of intelligence gathering, processing and information sharing. What can be described as entrenched ‘information intoxication’ of security agencies has not only resulted in operational changes within the intelligence community but has also led to procedural shifts within national courts. In order to accommodate the growing R. van Ark (née Grozdanova) (&) T.M.C. Asser Instituut, The Hague, The Netherlands e-mail: [email protected] R. van Ark (née Grozdanova)
C. Renckens University of Amsterdam, Amsterdam, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2020 C. Paulussen and M. Scheinin (eds.), Human Dignity and Human Security in Times of Terrorism, https://doi.org/10.1007/978-94-6265-355-9_14

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utilisation of sensitive intelligence evidence within national security and criminal investigations, domestic courts have been increasingly called upon to engage with such evidence in closed proceedings. In the United Kingdom, courts have been tasked with evaluating sensitive intelligence evidence to assess whether an individual should be subjected to a particular counter-terrorism measure and/or the impact of this measure on their individual human rights. Within the Dutch courts, such evidence has been examined when deciding whether to impose a criminal conviction for engagement in terrorism activities. The sensitivity and complexity of such cases have been accommodated through so-called conditional inclusion of intelligence within court proceedings models despite the courts’ traditional reluctance to engage with such evidence. In this context, the following discussion proposes to engage in a critical reflection on whether—and if yes, how—the respect and protection of individual rights and human dignity within the United Kingdom and the Netherlands has changed since the introduction of these models. Keywords Counter-terrorism deference Secret evidence




14.1


Intelligence
Secrecy
Human dignity
Court

Introduction

There is by now a fairly ritualised pattern in the aftermath of a terrorist act—first, the questions of whether the State had the necessary means, information and powers to prevent terrorism tend to arise.1 Then, in order to be seen to respond effectively to the attack as well as be able to pre-empt further attacks, governments usually seek to expand their counter-terrorism and security toolkit with more far-reaching and, at times, controversial powers.2 Legislative bodies loathe to be seen by the 1

See the public comments of Tony Blair, Theresa May, François Hollande and Mark Rutte who at various times since 9/11 have described the threat of terrorism in their respective countries as “unprecedented” and requiring more commensurate and contemporary means to combat terrorism. See also Donohue 2008, pp 1–32. 2 This has resulted in the adoption of measures such as ‘indefinite detention of suspected international terrorists’ under the UK Anti-Terrorism, Crime and Security Act (United Kingdom, Anti-Terrorism, Crime and Security Act 2001 (repealed) (ATCSA 2001)) and more recently ‘temporary exclusion orders’ under the UK Counter-terrorism and Security Act (United Kingdom, Counter-Terrorism and Security Act 2015) or involving educational bodies in the national security toolkit (UK Home Office 2015). In the Netherlands, in 2017, the then incoming Intelligence and Security Services Act proposed to increase the powers of the intelligence services by allowing for the installation of wire taps on a wide geographical area rather than on a specific individual or individuals amongst other controversial measures. The Dutch Government held a consultative referendum on 21 March 2018 in which these collection powers were narrowly rejected. BBB News (2018) Dutch referendum: Spy tapping powers ‘rejected’ https:// www.bbc.com/news/world-europe-43496739. Accessed 10 October 2018. The Act nonetheless came into force in May 2018 subject to some alterations. Dutch courts have subsequently found that it is not necessary to withdraw the Act. NL Times (2018) Dutch Government can keep big

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voting public as being soft on terror or, worse, as indifferent to terror.3 With the stakes this high and despite openly acknowledging the stringent and potentially highly restrictive nature of the measures,4 legislators tend to adopt contentious provisions, which may have a significant and long lasting impact on individual rights and human dignity. Unsurprisingly, since 9/11 and subsequent terrorism events, this pattern has continued. States have persistently sought to adapt their counter-terrorism toolkit to the multi-faceted terrorism threat by expanding on existing and introducing new security mechanisms. What has however been a considerable departure from previous approaches is the extent of transnational State cooperation on matters of national security—particularly in the context of intelligence gathering, processing and information sharing. Spurred on by the law-making United Nations (UN) Security Council Resolution 1373,5 bi- and multi-lateral intelligence cooperation and sharing has become an indispensable feature in the post-9/11 counter-terrorism, defence and national security strategies. As States increasingly focus on preventing extremism and radicalisation as a vital first step before employing other pre-emptive counter-terrorism measures to foil future attacks, widespread intelligence data collection and cross-border exchange of this data have become key elements in domestic and transnational counter-terrorism security operations.6 What can, by now, be described as entrenched ‘information intoxication’7 of security agencies has not only resulted in operational changes within the intelligence community but has also led to procedural shifts within national courts. In the United Kingdom (UK), courts have been tasked with evaluating sensitive intelligence evidence to assess whether an individual should be subjected to a particular counter-terrorism measure and/or the impact of this measure on their individual human rights and dignity. Within the Dutch courts, such evidence has been examined when deciding whether to impose a criminal conviction for engagement in terrorism related activities. The sensitivity and complexity of such cases have

data law in current form. https://nltimes.nl/2018/06/26/dutch-govt-can-keep-big-data-lawcurrent-form-court-rules. Accessed 10 October 2018. 3 Ewing 2007; Donohue 2008, pp 1–32. 4 E.g., the House of Commons debates on the Anti-Terrorism, Crime and Security Bill 2001 (House of Commons (2001) Common Debates: Terrorism. https://publications.parliament.uk/pa/ cm200102/cmhansrd/vo011119/debtext/11119-05.htm. Accessed 10 October 2018) or the Justice and Security Bill 2012 (House of Commons (2012) Common Debates: Tuesday 18 December 2012. https://publications.parliament.uk/pa/cm201213/cmhansrd/cm121218/debtext/121218-0001. htm#12121850000001. Accessed 10 October 2018). 5 UN Security Council (2001) Resolution 1373 (2001), UN Doc. S/RES/1373. On this point, see further Happold 2003; Szasz 2002; Klabbers et al. 2009. 6 Dutch National Coordinator for Security and Counter-Terrorism 2016; UK Government 2015. See UN Security Council (2001) Resolution 1373 (2001), UN Doc. S/RES/1373 and Council of the European Union 2017. 7 Philip Hayez has previously described this development as a “self-intoxication” pathology resulting from extensive (and unchecked) intelligence cooperation. Born et al. 2011, p 155.

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been accommodated through conditional inclusion of intelligence within proceedings models8—a significant departure from the courts’ traditional reluctance to engage with such evidence.9 In the UK, closed material procedures (CMPs)—where the court can consider secret intelligence evidence without the defendant or his legal team being given the access to hear the evidence—are becoming more commonplace. CMPs were initially perceived as a legal abnormality heavily criticised on human rights grounds.10 Yet, since the 2013 Justice and Security Act (JSA 2013)11, they can be used in any civil proceedings, which involve national security issues in addition to an already sizeable list of other existing circumstances. In the Netherlands, the 2006 Act on Shielded Witnesses12 aims to advance the use of information collected by the intelligence and security services as evidence in criminal proceedings. The Act creates a special procedure in which members of the two principal Dutch intelligence services (AIVD13 and MIVD14) may be heard before a special Examining Magistrate at a pre-trial stage. The Magistrate can then decide whether, in the interest of national security, (a) particular information must remain secret and (b) a witness should be ‘shielded’, i.e. remain anonymous during the core trial.15 Within this context, both of these bespoke national court procedures—either resulting in the imposition of a sentence (the Netherlands) or upholding the use of a particular counter-terrorism measure (UK)—do perform a function within the broader national security toolkit. From this perspective, they could be seen as a

8

See Born et al. 2015, p 165 for an outline and classification of various intelligence materials models and types of proceedings in several countries. 9 See cases such as UK House of Lords, Liversidge v Anderson, Opinions of the Lords of Appeal for Judgment in the Cause, 3 November 1941, [1942] AC 206; UK House of Lords, CCSU v Minister for the Civil Service, Opinions of the Lords of Appeal for Judgment in the Cause, 22 November 1984, [1985] AC 374; UK Court of Appeal, Reg v Secretary of State for the Home Department, ex parte Cheblak, Judgment, 1 February 1991, [1991] 1 WLR 890. Born et al. 2011, p 232. 10 Nanopoulos 2015, p 913. 11 United Kingdom, Justice and Security Act 2013 (JSA 2013). 12 The Netherlands, Wijzigingswet Wetboek van Strafvordering (afgeschermde getuigen) [Act Amending the Code of Criminal Procedure (shielded witnesses)]. 13 The General Intelligence and Security Service (hereinafter the ‘AIVD’) is responsible for both domestic national security and for collection of information, intelligence, from abroad. See Eijkman et al. 2018. 14 The Military Intelligence and Security Service (hereinafter the ‘MIVD’) is responsible for the safety of the armed forces, collection of relevant military information and assessment of the political context of foreign missions. See Eijkman et al. 2018. Despite their different remits, AIVD and MIVD are subject to the same legal framework. 15 Act on Shielded Witnesses, above n 12, Article I.

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small cog in the big ‘human security’16 wheel. However, as the following discussion of the relevant jurisprudence will illustrate, the utilisation of closed evidence can have a more immediate effect on individual rights and human dignity. As such, this chapter will focus on the right to fair trial in particular and the impact on an individual’s dignity. To date, the UK and the Netherlands are in the small minority of European Union (EU) Member States that allow for the conditional use of secret (intelligence) information as evidence within judicial proceedings.17 Naturally, the differences in the two domestic legal systems and trial models do not allow for a direct comparison between the specialised court procedures.18 Thus, the following discussion does not propose to engage in an assessment of the ‘better/lesser evil’ practices within either of these conditional inclusion models but rather focus more on (a) the information intoxication as the common driver(s) behind this ever-increasing reliance on secret evidence and (b) the overall impact on the right to fair trial. This approach offers a distinct opportunity to more fully understand the transformative power of the ever growing—and by now arguably entrenched—intelligence services’ information intoxication on national legislative and judicial frameworks. Concomitantly, it allows for a critical reflection on whether and how the procedural and substantive protections of individual rights and human dignity within domestic courts has changed since the introduction of these models. In the context of the post-9/11 intelligence information intoxication, which will be discussed in Sect. 14.2 below, the introduction and subsequent expansion of conditional inclusion models such as CMPs and shielding of witnesses have been perhaps inevitable. Traditionally, however, domestic and regional courts have preferred not to engage in an assessment of intelligence evidence and have rather deferred to the Executive’s conclusions on what constitutes a matter of national security or of foreign and diplomatic relations.19 Yet, as Sect. 14.3 will illustrate, the courts are growing increasingly more comfortable with allowing the use of closed intelligence evidence within trials. The significance of this attitudinal shift combined with the difficulties in gauging whether the Judiciary has been (too) deferential to the Executive in counter-terrorism cases—the closed material is neither publicly available nor inferable from the open court findings—will be the focus of Sect. 14.4. The resulting alterations on the scope of the right to fair trial—as we would argue the hollowing out of the right to fair trial from within the rule of law through For a definition of ‘human security’, see Chap. 2, ‘Human Dignity, Human Security, Terrorism and Counter-Terrorism’. See further the definition provided by UN General Assembly (2012) Resolution adopted by the General Assembly on 10 September 2012, UN Doc. A/RES/66/290. 17 See further European Parliament Policy Department for Citizens’ Rights and Constitutional Affairs 2014. 18 In its 2011 Green Paper, the UK Government did however expressly examine the Dutch model (and the Dutch Intelligence and Security Services Act of 2002) and assess whether to adopt a similar approach. See UK Government 2011. 19 Ingber 2016; Gross and Ní Aoláin 2006; Tushnet 2003; Dyzenhaus 2003; amongst others. 16

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legislative procedures and court jurisprudence—and the broader impact on the purview of the judicial branches, illustrate what is perhaps one of the most transformative influences of States’ counter-terrorism toolkits: it increases executive power and in doing so it alters (a) the relationship amongst branches of government and (b) the relationship between the individual and the State mostly, but not exclusively, in the context of the counter-terrorism legislation.20

14.2

The Post-9/11 Intelligence Intoxication

Following the events of 9/11, more traditional crime prevention methods seem to feature less prominently in the protection of security and counter-terrorism toolkits of States.21 Under the justification of early pre-emption of terrorism threats, governments have instead relied more heavily on bulk surveillance and communications interception, collection and exchange of intelligence information.22 A cursory look at the current mission statements of national security and intelligence services illustrates how much the intelligence collection landscape has shifted post-Cold War and in particular since 2001.23 The core aims of the relevant agencies remain anchored in the protection against and neutralisation of national security threats such as terrorism or weapons of mass destruction.24 There has however been a significant shift in what is perceived as (a) a national security threat and (b) the necessary toolkit required to effectively prevent and/or respond to a threat.25 A similar change in the threat assessment and pre-emption approaches has also occurred at the international level. In their immediate responses to the events of 9/11, the United Nations (UN) Security Council26 and the North Atlantic Treaty

20

For similar comments, see Donohue 2008. Goold and Lazarus 2007; Lazarus et al. 2014. 22 The very recent judgment of the European Court of Human Rights in ECtHR, Big Brother Watch and Others v The United Kingdom, Judgment, 13 September 2018, Application Nos. 58170/13, 62322/14, 24960/15 is a good reference point on this matter. See also Lazarus et al. 2014. 23 In its ‘What do we do?’ description, UK’s MI5 specifically refers to cyber espionage and prevention of harmful cyber activities by individuals, (terrorist) groups and States; the SIS (also known as MI6) and GCHQ Mission statement similarly address the importance of secret intelligence, cyber security, pre-emption of threats and joint security operations. See, e.g., UK MI15 (2019) FAQs about MI15. https://www.mi5.gov.uk/faq. Accessed 30 July 2019. In the US, fusion centres (a collaborative intelligence effort between two or more agencies) have featured regularly in post-9/11 US National Security Strategies and are on the rise. US Department of Homeland Security (2018) National Network of Fusion Centers Fact Sheet. https://www.dhs.gov/nationalnetwork-fusion-centers-fact-sheet. Accessed 10 October 2018. Born et al. 2011. 24 Born et al. 2011. 25 Goold and Lazarus 2007, p 57. 26 See UN Security Council (2001) Resolution 1368 (2001), UN Doc. S/RES/1368 and UN Security Council (2001) Resolution 1373 (2001), UN Doc. S/RES/1373 as well as the more recent 21

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Organization (NATO)27 strongly urged States for a robust commitment towards more collaborative and transnational counter-terrorism responses. The relevant documents placed particular emphasis on engaging in and developing bi- and multi-lateral intelligence cooperation and exchanges. UN Security Council Resolution 1373 (2001)28, broadly seen to be one of a few law-making resolutions, is of particular significance in this context.29 Since then, emphasis on multi-partner sharing of intelligence information has featured prominently in several UN Security Council Resolutions.30 Consistently striving to advance surveillance methods, improve data collection and intelligence exchange capabilities to negate potential security threats as early as feasible are now at the core of national and transnational defence and counter-terrorism strategies.31 Bilateral and multilateral intelligence cooperation between States is certainly not a new phenomenon as evidenced by organisations such as NATO, Europol and Interpol and agreements such as the United Kingdom—United States of America Agreement (UKUSA),32 the ‘Five Eyes’33 and the ‘Nine Eyes’34 intelligence alliances. With the end of the Cold War however and particularly after 9/11, the scope of intelligence cooperation and exchange has broadened to embrace a wider range of intelligence partners including formerly non-aligned and hostile States.35 Even the smallest States—previously assessed as unproductive or ill-disposed—are now seen as a potential source of terrorism or terrorism related activity.36 Thus, any information and/or support they can offer in this context is deemed to be pertinent for the

UN Security Council (2014) Resolution 2178 (2014), UN Doc. S/RES/2178 and UN Security Council (2015) Resolution 2249 (2015), UN Doc. S/RES/2249. 27 NATO (2001) Statement to the Press by NATO Secretary General, Lord Robertson, on the North Atlantic Council Decision on Implementation of Article 5 of the Washington Treaty following the 11 September Attacks against the United States. https://www.nato.int/docu/speech/ 2001/s011004b.htm. Accessed 5 August 2019. 28 UN Security Council (2001) Resolution 1373 (2001), UN Doc. S/RES/1373. 29 On this point, see for example Happold 2003 and Talmon 2005. 30 See, e.g., UN Security Council (2017) Resolution 2368 (2017), UN Doc. S/RES/2368; UN Security Council (2017) Resolution 2396 (2017), UN Doc. S/RES/2396. 31 The new Dutch Intelligence and Security Services Act 2017 (Netherlands, Wet op de inlichtingen- en veiligheidsdiensten 2017 [Intelligence and Security Services Act 2017]) is quite illustrative of this legislative shift. See also Goold and Lazarus 2007, p 57. 32 For details on the UKUSA agreement please refer to the National Security Agency’s declassification of certain papers. National Security Agency (2018) UKUSA Agreement Release 1940– 1956. https://www.nsa.gov/news-features/declassified-documents/ukusa/. Accessed 10 October 2018. 33 Also known as FVEY and includes Australia, Canada, New Zealand, the UK and the US. 34 This is an expansion of the ‘Five Eyes’ intelligence partnership and it consists of Australia, Canada, Denmark, France, the Netherlands, New Zealand, Norway, the UK and the US. 35 Born et al. 2011, 2015. 36 Born et al. 2011, pp 18–37.

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purposes of intelligence gathering and exchange.37 Another significant development has been the increasing and by now entrenched reliance on private security companies tasked with data collection and processing.38 The immensity of the security mandate placed on intelligence apparatuses has become so substantial that, without this reliance, the expansion of the array of domestic and transnational activities engaged in by intelligence service would be unsustainable.39 The extent of the growth has been such that it is no longer extraordinary for joint intelligence activities between two or more States to include collaboration with a private entity or entities.40 Even further, the United States (US)—arguably the central hub of complex networks of intelligence exchanges between numerous countries—can now be described as operating a semi-privatised intelligence system.41 This enduring post-9/11 commitment to transnational counter-terrorism responses and joint intelligence gathering has resulted in an operative environment, which can be described as the “international world of domestic security agencies”.42 Preserving and protecting the well-being of society through, amongst other means, the fortification of intelligence services and their capabilities is after all a core responsibility of the Executive. And it is a natural instinct for both the intelligence services and the Executive that, once collected and processed, any operationally significant information should be utilised in the most efficient and thorough manner possible. Aside from joint transnational intelligence and security operations, the immobilisation of terror suspects through appropriate counter-terrorism measures and prescribed engagement with de-radicalisation programmes are also important components of States’ national security strategies post-9/11. It is in these latter contexts that the courts can and do now play a significant role. Within an environment where the ‘information intoxication’ has become entrenched, it is rather unsurprising that the Executive would seek to find the means to fully exhaust the usefulness of the wealth of intelligence information it has access to. It is likewise foreseeable in this context that the courts may eventually be called upon to scrutinise sensitive intelligence evidence. After all, judicial review of imposed counter-terrorism measures can play a key role in their longevity by finding them to be proportionate and serving a legitimate purpose. In what is, however, a significant departure from their well-documented reluctance to engage with such evidence in the past, the courts have gradually become quite accustomed to relying on closed intelligence information in national security cases.

37 38 39 40 41 42

Ibid. Ibid. Ibid. Ibid. See, e.g., the Snowden Revelations; Priest and Arkin 2011; Born et al. 2011, p 33. Born et al. 2011, p 32.

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Terrorism Prevention, Intelligence Services and the Individual: The Advent of Conditional Inclusion Models

As States continue to expand on the available range and scope of preventative counter-terrorism measures, the necessity for actionable evidence or intelligence information to support the imposition of these measures has similarly grown. Partly due to the principle of originator’s control43 and partly due to the sensitive nature of intelligence information, the Executive has tended to be highly reluctant to disclose even some, if any, of the relevant information. The construct of the conditional inclusion models adopted in the Netherlands and the UK reflects this reluctance. Despite the significant potential of a conditional inclusion model to impact on an individual’s ability to challenge how the evidence against them was obtained, domestic UK courts have consistently found that CMPs are not incompatible with fair trial rights. In comparison, the Dutch courts appear to be less willing to allow closed intelligence evidence to creep into the judicial system and taint the right to fair trial obligations.

14.3.1 Secrecy and the Netherlands: A Tale of Precaution In the immediate aftermath of 9/11, two Dutch cases stand out in particular.44 In the first case, referred to in the Dutch media as the ‘Eik case’, four men were arrested in Rotterdam on 13 September 2001 on suspicion of planning an attack on the American Embassy in Paris.45 They were charged by the Public Prosecutor with falsification of travel documents and participation in a domestic and international criminal organisation. These charges were based on two reports (ambtsberichten) by the then Homeland Security Service (BVD, now the AIVD). The District Court of Rotterdam expressly stated that, due to the strict separation of intelligence gathering

43

Born et al. 2015. The principle of originator’s control permits the originator—i.e. the provider of the intelligence information—to authorise transmission of such information to a third party. The control can be exercised through the use of caveats or restrictions on the use and further dissemination of shared information. See further, Born et al. 2011, 2015. See also Agreement between the Member States of the European Union, meeting within the Council, regarding the protection of classified information exchanged in the interests of the European Union, signed 4 May 2011, 202 OJ C 15. 44 In the Netherlands, as a standard, the name of the defendant(s) in a criminal case is not cited either in the case headnote or in the main body, i.e. the defendant(s) have anonymity. The details provided are the court which heard the case, city, type of decision, date of the decision, and case number. 45 Derix S (2002) AIVD bewijs dient alleen als tip [AIVD evidence only serves as a tip]. https:// www.nrc.nl/nieuws/2002/12/19/aivd-bewijs-dient-alleen-als-tip-7619134-a907771. Accessed 10 October 2018.

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(remit of the intelligence services) and criminal investigations (within the purview of the police and the Public Prosecutor), it is unlawful to regard an individual as a terrorist suspect under the Dutch Code of Criminal Procedure solely on the basis of information provided by the BVD. As the evidence was considered to have been inappropriately obtained and thus the charges could not be proved, the District Court of Rotterdam acquitted the defendants.46 In response to the outcome of the case, the then Minister for Justice (Piet Hein Donner) noted that it was rather undesirable to allow for a terrorist act to occur first before the Public Prosecutor can rely on evidence obtained by the BVD. He then strongly indicated that suitable changes might have to be introduced to the legal framework.47 A subsequent 2003 case, referred to in the Dutch media as the ‘Jihad case’, involved twelve individuals, who were arrested and charged with (among other offences) participation in a criminal organisation.48 The alleged goal was the recruitment and guidance of jihad fighters. Here, the District Court of Rotterdam did find that the reports compiled and submitted by the intelligence service to the Public Prosecutor could be a lawful basis for regarding the defendants as suspects— assuming the information in these reports constituted a reasonable suspicion. However, even though the defendants could be regarded as suspects, the reports could not be used as evidence against them in the ongoing case. Further, the Court found that, as the defence team could not easily challenge either the factual correctness or origin of the information—thus rendering a defence inadequate—admitting these reports as evidence would amount to a violation of Article 6 of the European Convention on Human Rights (ECHR).49 The Court expressly warned that the current legislative framework does not allow for a lowering of the admission of evidence requirements despite the alleged gravity of a particular individual’s actions. The defendants were acquitted due to insufficient evidence to prove the charges. Following the outcome of these two cases, the then Minister for Justice wrote to Parliament to reiterate that the security of the Netherlands was severely threatened. More importantly, the risks to “our western society” had not been as high in a long time and as such fitting legislative changes were necessary.50 Three years later the Shielded Witnesses Act (Wet afgeschermde getuigen), allowing for the use of AIVD

46

District Court of Rotterdam, Judgment, 18 December 2002, Case No. 10/150080/0. De Volkskrant (2002) Vrijspraak voor terroristen [Acquittal for terrorists]. https://www. volkskrant.nl/binnenland/vrijspraak-voor-terroristen*a614194/. Accessed 10 October 2018; Derix S (2002) AIVD bewijs dient alleen als tip [AIVD evidence only serves as a tip]. https://www. nrc.nl/nieuws/2002/12/19/aivd-bewijs-dient-alleen-als-tip-7619134-a907771. Accessed 10 October 2018. 48 District Court of Rotterdam, Judgment, 5 June 2003, Case No. 10/000063-02. 49 European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953) (ECHR). 50 See further Donner 2003; Trouw (2003) Nieuwe regel in strafrecht tegen terrorisme [New criminal law against terrorism]. https://www.trouw.nl/home/nieuwe-regel-in-strafrecht-tegenterrorisme*ae18c5d5/. Accessed 10 October 2018. 47

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information as evidence accompanied with increased powers for a magistrate to anonymously hear (AIVD) witnesses, came into force.51 In what is one of the more significant—and foreseeable—changes, the status of AIVD reports within court proceedings has now been elevated to that of official ‘written material’ (schriftelijke bescheiden).52 Previously, such reports were of a subsidiary nature. As a result, AIVD reports can potentially be used as stand-alone evidence without requiring additional supporting proof.53 In recognising AIVD reports as official written materials—one of the five exclusive legal means of evidence—the criteria that apply to this type of evidence are the same as those that apply to non-secret evidence. In order to secure a conviction, the evidence needs to be a) lawful and b) convincing.54 The closed materials provided by the AIVD reports automatically meet the first criterion as they are now a legal means of evidence. The credibility and persuasiveness of the closed materials are then assessed by a court and can, in part, depend on the hearing of shielded witnesses, which might take place either before or during the trial. The hearing of shielded witnesses—usually AIVD employees who can help a magistrate assess the information—should usually take place in the phase prior to the trial.55 However, if necessary, such a hearing can also take place during the trial. While the hearing of the shielded witnesses ought to be outlined in the final transcript, the AIVD can nonetheless determine whether this final transcript will form part of the court dossier. This is an exceptional departure from the traditional remits of the AIVD and the Judiciary—determining what information is part of the open procedural documents normally falls within the mandate of the magistrate rather than intelligence services.56 More significantly perhaps, even if the AIVD refuses to add the final transcript to the court dossier, the closed reports it provided can still be used as evidence. In what is, thus, a substantial impediment to the legal representatives of a suspect, the legal counsel can neither question who provided the information the reports are based on nor assess the content of the relevant information. The resulting difficulties in critically scrutinising the factual correctness and reliability of the relevant reports put an individual suspected of engagement in terrorism activities in a rather unenviable position. In an outcome similar to the UK CMP model, they (and their legal counsel) may thus not be aware of the full extent of the terrorism allegations against them.

51

Above n 12. Article 344 of the Dutch Code of Criminal Procedure. See further NRC (2004) Informatie AIVD mag als bewijs in strafzaak dienen [Information AIVD may serve as evidence in criminal cases]. https://www.nrc.nl/nieuws/2004/04/15/informatie-aivd-mag-als-bewijs-instrafzaak-dienen-7682144-a537417. Accessed 10 October 2018. 53 Bokhorst 2012, p 9. 54 The Netherlands, Wetboek van Strafvordering [Code of Criminal Procedure], Article 338. 55 Tweede Kamer der Staten-Generaal 2005. 56 Bokhorst 2012, p 9. 52

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Shielded witnesses have not been relied on so far.57 An internal assessment by the Ministry of Justice suggests that this is due to the limited number of terrorism cases within the initial five-year period following the adoption of the Act in combination with the fact that the content of the law was seemingly quite unknown to legal specialists.58 The reliance of secret evidence in terrorism cases, on the other hand, has increased steadily.59 Three particular terrorism related cases stand out in this context, the first one of which was decided shortly before the Shielded Witnesses Act came into force. The case is nonetheless of relevance as it offers a rare insight into the position of the Dutch Supreme Court on closed evidence and shielded witnesses. In the so-called ‘Piranha case’,60 the District Court of Rotterdam ruled in first instance that the information provided by the AIVD was to be excluded from the trial. The Court had requested to hear witnesses who represented the AIVD. This was possible under the old legal framework, albeit under slightly different circumstances. The witnesses, however, refused to comment and invoked confidentiality. The Court found that it could not assess the reliability of the evidence without such a hearing. To do otherwise and admit the evidence regardless of whether there had been a hearing would compromise the right to a fair trial. As the case was appealed, the Court of Appeal of The Hague took a different approach.61 In its judgment, the Court stated that even though the AIVD had refused to comment on the information it provided, the information was nonetheless reliable. After the AIVD refused to provide oral submissions, the defence made multiple requests to hear the witnesses in open court proceedings, but these were denied. In fact, the Court found one of the pieces of information that the AIVD provided—a certain phone conversation that was tapped—crucial to the conviction of one of the defendants. The evidence was thus admitted and assessed as reliable.62 When the case reached the Dutch Supreme Court, the Supreme Court referred it back to the Court of Appeal of Amsterdam, stating that the Court of Appeal of The Hague should have provided reasons for its denial of the defence’s requests to hear the witnesses.63 In the second case, in 2016, the District Court of Rotterdam ruled that AIVD reports could be used as evidence although caution is required when relying on

57

Ibid., p 17. The assessment was carried out by the Research and Documentation Centre of the (then) Ministry of Security and Justice. Bokhorst 2012, p 17. 59 NRC (2016) Jihadrechter twijfelt aan nut straffen Syriëgangers [Jihad judge doubts the usefulness of punishing people who left for Syria]. https://www.nrc.nl/nieuws/2016/01/13/ jihadrechter-twijfelt-aan-nut-straffen-syriegangers-a1410192. Accessed 10 October 2018. 60 District Court of Rotterdam, Judgment, 1 December 2006, Case Nos. 10/600052-05, 10/ 600108-05, 10/600134-05, 10/600109-05, 10/600122-05, 10/600023-06, 10/600100-06. 61 Court of Appeal of The Hague, Judgment, 2 October 2008, Case No. 2200734906. 62 Ibid. 63 Dutch Supreme Court, Judgment, 15 November 2011, Case No. ECLI:NL:HR:2011:BP7544. 58

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them.64 The Court adopted the following approach: if an AIVD report is not sufficiently supported by the rest of the evidence in a court dossier, a court will likely find that using the intelligence information as evidence is in conflict with the right to a fair trial under Article 6 of the ECHR. The District Court acknowledged that under the new legislation AIVD reports are a legal means of evidence under the new legislation and as such do not require other supporting evidence to lead to a conviction. However, the courts should nevertheless remain cautious and ensure that the reliability of the AIVD reports has been sufficiently scrutinised. Therefore, if other evidence in the court dossier does not support the reports, the intelligence information should simply not be admitted or relied on as evidence.65 The third and final judgment confirms the requirement that AIVD reports have to be supported by other evidence in a court dossier. In a 2017 case, the District Court of Rotterdam ruled that there was no additional evidence to support the AIVD report. Further, the Court noted that the police had not done enough to assess the reliability of the information provided by the AIVD. In addition, the AIVD itself did not provide any supplementary information to help the Court assess the reliability of the intelligence report. The Court concluded that while the circumstances of the case and the statements of the defendant are most certainly suspicious, without sufficiently reliable evidence they were no more than that—suspicious.66 The court added that these suspicious circumstances “do not amount to evidence—regardless of whether a case concerns terrorist crimes”.67 As there was no other evidence to support it, the AIVD report was consequently not relied on as evidence. Overall, the Dutch courts have so far erred on the side of caution when assessing cases involving reliance on intelligence information. While aiming to apply the legislation prudently and rigorously, the courts have designed an approach which both seeks to safeguard fair trial guarantees and allows for a restrained inclusion of verifiable secret evidence. From this perspective the Dutch courts are demonstrating due deference to the legislative process and the Executive’s prerogative to protect national security through all means deemed necessary without engaging in obsequious deference i.e. ‘the Executive knows best’ in matters of national security.68 Due to the nature of a CMP, it is somewhat more complicated to examine the extent of the UK courts’ deference to the Executive in this context. However, as the below discussion illustrates, the UK courts have gradually become more accustomed to accepting closed evidence in a range of circumstances when assessing the appropriateness of a preventative counter-terrorism measure.

64

District Court of Rotterdam, Judgment, 29 August 2016, Case No. 10/960138-15. Ibid. 66 District Court of Rotterdam, Judgment, 12 April 2017, Case Nos. 10/692109-16, 10/711013-16, TUL 10/164692-15. 67 Ibid., para 5. 68 See further Kavanagh 2011 on the distinction between due and absolute court deference. 65

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14.3.2 Closed Evidence and the United Kingdom: A Long-Term Committed Relationship In the Netherlands, reliance on closed or secret evidence and a bespoke procedure to accommodate witnesses from the intelligence services is a post-9/11 phenomenon. The use of alternative administrative processes, which permit the reliance on sensitive intelligence evidence, began a few years earlier in the UK. The use of both secret evidence and closed proceedings—within immigration cases only—was first introduced to the UK legislative and judicial framework with Section 5(3) of the Special Immigration Appeals Commission (SIAC) Act of 1997.69 The Act also established SIAC, which has purview over appeals of deportation, detention or exclusion decisions due to national security considerations; in addition SIAC has the same powers as a High Court.70 The founding of this specialised Tribunal accommodating the use of secret evidence should not, however, be viewed as a rather serendipitous pre-9/11 occurrence the utility of which was more fully appreciated and exploited in the post-9/11 environment. SIAC and its procedures were established as a direct response to the 1996 European Court of Human Rights (ECtHR) findings in Chahal v The United Kingdom.71 While there was no violation of Article 5(1) of the ECHR,72 neither the proceedings for habeas corpus and the judicial review of the detention decision nor the Advisory Panel procedure complied with the requirements of Article 5(4). The 1997 Act sought to directly address these findings and ensure that there continues to be a specialised tribunal with bespoke procedure, which accommodates the use of closed evidence in immigration matters where national security considerations are engaged. SIAC heard only three cases in a CMP prior to 2001. In all three cases, the UK was seeking to deport the individuals in question as they were considered to pose a threat to national security due to (suspected) terrorism related activity.73 The limited

69 United Kingdom, Special Immigration Appeals Commission Act 1997 (SIAC Act 1997), Sections 5(3)(a) and (b). 70 See SIAC Act 1997, above n 69, and United Kingdom, The Special Immigration Appeals Commission (Procedure) Rules 2003. 71 ECtHR, Chahal v The United Kingdom, Grand Chamber Judgment, 15 November 1996, Application No. 22414/93 (Chahal case). The Advisory Panel procedure, the predecessor of SIAC, fully reviewed the evidence relating to the national security threat Mr Chahal was deemed to pose and agreed with the determination that Mr Chahal ought to be deported. 72 The ECtHR stated that the Advisory Panel procedure provided “an important safeguard against arbitrariness.” Further, the ECtHR found that the Advisory Panel procedure offered adequate guarantees that there were at least prima facie grounds for believing that Mr Chahal posed a threat to national security if he were at liberty and thus there was no violation under ECHR, above n 49, Article 5(1). 73 UK Court of Appeal, Secretary of State for the Home Department v Shafiq Ur Rehman, Judgment, 23 May 2000, [2000] EWCA Civ 168; UK Special Immigration Appeals Commission, Mukhtiar Singh and Paramjit Singh v Secretary of State for the Home Department, Decision, 31 July 2000, [2016] EWCA Civ 492.

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number of cases, SIAC’s strict purview and its particular construction strongly suggest that pre-9/11 the reliance on CMPs was exceptional. Nevertheless, albeit only three, these cases opened up the possibility that the Executive can rely on secret evidence when seeking to deport a certain category of individuals. Post-9/11, the use of CMPs has steadily and persistently crept into the court room tainting the core principles of open and natural justice.74 CMPs have so far been used in a variety of cases involving counter-terrorism measures such as proscription as a terrorist organisation,75 preventative detention,76 control orders,77 domestic asset freezing orders,78 terrorism prevention and investigation measures (TPIMs)79 and employment disputes, which raise questions of national security.80 In 2010, following a request by the Joint Parliamentary Committee on Human Rights (JPCHR),81 the UK Government eventually provided a list of twenty-one different contexts which it was ‘aware’ could involve reliance on secret evidence and a Special Advocate.82 This expansion has continued unabated with the adoption of the JSA 2013 the provisions of which have now extended the applicability of CMPs to all civil proceedings.83 The Act provides a very wide definition of what is ‘sensitive information’ by covering any information held by an intelligence service, obtained or held on behalf of an intelligence service or derived from such information or

See the extensive judicial scrutiny and references to the importance of “open and natural justice” in UK Supreme Court, Al Rawi and Others v The Security Service and Others, Judgment, 13 July 2011, [2011] UKSC 34 (Al Rawi case). Lord Dyson described the principle of open justice as a “fundamental common law principle” (para 11). Natural justice and its various strands were discussed as core foundations of court trials (paras 12–15). 75 United Kingdom, Terrorism Act 2000. 76 ATCSA 2001, above n 2 (repealed). 77 United Kingdom, Prevention of Terrorism Act 2005 (repealed). 78 United Kingdom, Counter-Terrorism Act 2008. 79 United Kingdom, Terrorism Prevention and Investigation Measures Act 2011. 80 See in particular the cases UK Supreme Court, Home Office v Tariq, Judgment, 13 July 2011, [2011] UKSC 35 (Tariq case) and UK Court of Appeal, Kiani v Secretary of State for the Home Department, Judgment, 21 July 2015, [2015] EWCA Civ 776 (Kiani case). In April of this year, the ECtHR found that even though some of the proceedings were held in a closed session, Mr. Tariq had been provided with proper safeguards for his right to fair trial including a Special Advocate. The application was declared inadmissible (ECtHR, Gulamhussein and Tariq v The United Kingdom, Judgment 26 April 2018, Application Nos. 46538/11, 3960/12). 81 For the full list, please refer to UK Joint Committee on Human Rights 2010a, pp 51–53, and UK Joint Committee on Human Rights 2010b, pp 21–22. 82 Special Advocates are tasked with representing the interests of the excluded party in closed hearings and subjecting the sensitive material to scrutiny, thereby promoting the fairness of the proceedings. The role of Special Advocate was also introduced by SIAC Act 1997, above n 69, Section 6. In their responses to the Government’s Green Paper consultations, the Special Advocates expressly stated that in their experience: “CMPs are inherently unfair; they do not ‘work effectively’ nor do they deliver real procedural fairness.”. 83 JSA 2013, above n 11, Part 2. 74

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even information relating to an intelligence service.84 In addition, the Secretary of State may certify additional information as non-disclosable if it would cause damage to the interests of national security or international relations.85 The Act does not provide for a balancing test which could—in certain circumstances—allow for either a partial or full disclosure; the bar on disclosure in such sensitive cases appears absolute.86 The judgments made within a CMP are closed and as such they are neither published nor publicly available. Thus, providing an example of what type of information has been certified as ‘sensitive’ by the Secretary of State or how the Secretary of State has interpreted the JSA 2013 Section 17 definition would involve speculation rather than be based on actual practice. The breadth and vagueness of the definition combined with the powers of the Secretary of State are such however that the definition could potentially be interpreted in a manner encompassing information beyond what is necessary in a national security context. Similar to the introduction of SIAC and the Dutch Shielded Witnesses Act 2006, JSA 2013 was a response to legal proceedings which caused quite a bit of embarrassment to the British Government—the case of Binyam Mohamed.87 The extensive legal wrangling—on both sides of the Atlantic—was focused on the potential public disclosure of seven paragraphs, which provided a summary of reports by the US Central Intelligence Agency (CIA) on the circumstances of Mr Mohamed’s detention and interrogation in Guantánamo Bay. The reports had been received in the UK arguably demonstrating a degree of knowledge of the conditions of detention. The Court did not find that there was any bad faith on behalf of the UK Government.88 Nevertheless, the Court seemed highly sceptical of the suggestion that the Obama Administration would put up any serious objection to the reinstatement of the seven paragraphs given the Administration’s promotion of openness and transparency in counter-terrorism operations.89 Further, the material contained in those seven paragraphs was not operationally sensitive and did not endanger any intelligence personnel or operation.90 The Court of Appeal

84

Ibid., Part 2, Section 17(3). Ibid., Sections 17(3)(e), (4), (5). Section 18 provides for a limited review of a certificate, as to whether the statutory conditions for certification are met, applying “the principles which would be applied in judicial review proceedings”. 86 See also on this point Ip 2012. 87 UK High Court of Justice, R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs, Judgment, 21 August 2008, [2008] EWHC 2048 (admin); UK Court of Appeal, R (Binyam Mohamed) v Secretary of State for Foreign & Commonwealth Affairs, Judgment, 26 February 2010, [2010] EWCA Civ 158 (R (Binyam Mohamed) case). Mr Mohamed was detained in Guantánamo Bay as a suspected enemy combatant for several years. 88 R (Binyam Mohamed) case, above n 87, paras 21–25. 89 Ibid. 90 Ibid., para 128. 85

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(CoA) dismissed the Government’s appeal and initially the UK Government seemed to accept the decision.91 In July 2010, however, the then Prime Minister David Cameron stated that the judgment had strained the intelligence partnership with the US and had impacted on the trust between intelligence sharing partners.92 As such there was a need for appropriate legislative reform—comments which bear quite a resemblance to the statement of the former Dutch Minister for Justice prior to the introduction of the 2006 Shielded Witnesses Act. In its 2011 Green Paper, the UK Government emphatically reiterated that it had received clear signals that if the UK was unable to safeguard sensitive material shared with it, then the breadth and depth of such material shared with the UK will be reduced significantly.93 When the Justice and Security Bill was subsequently put forward for parliamentary scrutiny, Parliament was not afforded the opportunity to comprehensively examine the degree and precise nature of the US concerns following the Mohamed case on the basis of the clandestine nature of intelligence gathering, collection and processing.94 The JPCHR, for example, was only allowed to question whether the reforms were proportionate.95 The Committee nonetheless found that the proposed legislation would go quite beyond what was required to meet the concerns and reassure UK’s intelligence partners. In particular, it criticised the breadth of the proposed legislation as its provisions render all information received from intelligence partners plus all additional information held by the intelligence services as sensitive and thus within the purview of the JSA.96 The wide definition of ‘sensitive information’ was adopted regardless. During the parliamentary discussions around the Justice and Security Bill, yet another case threatening to cause some embarrassment for the UK Government arose out of a claim for damages.97 The civil claim related to the detention of the six claimants by foreign authorities at various locations which included Guantánamo Bay. The core issue in this case was whether a court had the power to order a CMP 91 In a statement David Miliband, former Secretary of State for Foreign and Commonwealth Affairs, expressly stated that “the government accepts the decision of the Court of Appeal that in light of disclosures in the US court, it should publish the seven paragraphs. […] [T]he government fought the case to preserve this principle [control principle], and today’s judgment upholds it”. The Guardian (2010) Binyam Mohamed torture evidence must be revealed, judges rule. https://www. theguardian.com/world/2010/feb/10/binyam-mohamed-torture-ruling-evidence. Accessed 10 October 2018. 92 Statement by then Prime Minister David Cameron on the ‘Treatment of Detainees’ in the House of Commons. UK House of Commons (2010) Hansard (House of Commons) Volume 513 Columns 175–178, 6 July 2010. 93 UK Government 2011. 94 Ip 2012. 95 UK Joint Committee on Human Rights 2012. The Committee, in para 17, expressly stated that “radical departures from fundamental common law principles or other human rights principles must be justified by clear evidence of their strict necessity” (emphasis added). 96 Ibid., paras 83–86. 97 Al Rawi case, above n 74.

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for all or part of civil proceedings for damages and if yes, under what circumstances would it be appropriate to exercise that power. In between the CoA decision and the Supreme Court hearing, the parties reached a confidential settlement. The Supreme Court proceeded to give a ruling regardless as it considered that there was an important point of principle at issue.98 The Law Lords discussed robustly the significance of the principles of open justice and of natural justice before they found that statutory authorisation would allow departure from the ordinary position; if such legislation was in place, the courts would (have to) comply.99 Lord Kerr was highly critical and suspicious by the Government’s argued proposition that the Supreme Court should order a CMP without the existence of an express statutory underpinning. For him this was a radical change clearly driven by Executive policy and for this reason alone “one should be very wary of it”.100 In short, when initially faced with the expansion of CMPs, the UK courts seemed resistant to the Government’s push for increasing utilisation of secrecy in the court room and put speed bumps on the road. This approach can be seen in other cases such as AF (No. 3),101 where the Supreme Court found that Article 6 of the ECHR required a “core irreducible minimum” of procedural fairness such that a person subject to a control order must be given “sufficient information” about the allegations against them to enable them to give effective instructions to the Special Advocate. Where the open material consists purely of general assertions and the case against the controlee is based solely or to a decisive degree on closed materials, the requirements of a fair trial would not be satisfied regardless of how cogent the case based on closed materials might be.102 In Mohamed, the Court referred to a “compelling case for openness”.103 In Al Rawi, the Government’s argument that the use of CMPs would lead to a fairer outcome was described as a “deceptively attractive premise”—giving a judge access to more relevant materials should be necessarily desirable because this would put the judge in the position to reach a most just outcome.104 However, as aptly stated by Lord Kerr, “evidence which has been insulated from challenge may positively mislead.”105 In this context, the decision in Bank Mellat v Her Majesty’s Treasury106 was unexpected. A majority decided that it was indeed possible for the Supreme Court to use a CMP both in general and within this particular appeal. In an argument 98

Ibid., paras 1–7. Ibid., paras 59, 67–69, 86–87 and 95. 100 Ibid., para 95. 101 UK House of Lords, AF and AE v Secretary of State for the Home Department, Opinions of the Lords of Appeal for Judgment in the Cause, 10 June 2009, [2010] 2 AC 269 (AF No. 3). Kavanagh 2011. 102 AF No. 3, above n 101, para 59. 103 R (Binyam Mohamed) case, above n 87, para 57. 104 Al Rawi case, above n 74, para 93 (Lord Kerr). 105 Ibid. 106 UK Supreme Court, Bank Mellat v Her Majesty’s Treasury, Judgment, 19 June 2013 (Bank Mellat case), [2013] UKSC 38. 99

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resting on the Constitutional Reform Act 2005,107 an appeal to the Supreme Court against “any judgment” of the CoA was deemed to include open and closed judgments of the CoA.108 Thus, if an appeal so required, proceedings in the Supreme Court would have to involve a CMP. Moreover, the majority felt that if Parliament had intended to exclude the Supreme Court this would have been expressly stated especially in light of the 2005 Act.109 Arguably, however, the reverse conjecture is equally correct. In his dissent, Lord Kerr made the following rather cutting comment: it was “inconceivable that it was intended that the Supreme Court should have power to carry out a CMP while leaving it bereft of the structure and safeguards which were deemed essential for the other courts in which such a hearing is expressly permitted.”110 The JSA 2013, providing the statutory underpinning discussed in the Al Rawi case, came into being a few days later after the decision in Bank Mellat. Thus, rather than pre-emptively deferring to the Executive’s policy permitting CMPs in all “relevant civil proceedings”,111 the Court could have seized the opportunity to reiterate the importance of the principles of open justice and of natural justice. The Court could have also insisted on or provided a clearer guidance as to the minimum level of disclosure that an individual should be afforded. Instead, the Court opted for pre-emptive acknowledgement and deference towards the incoming legislation. Perhaps, the reasoning was anchored in the confidence and trust that the Supreme Court would be able to deliver an effective judgment even if a CMP is used.112 To put it differently, the judges were upholding the rule of law on a pragmatic understanding of what the rule of law requires in the current security-charged environment.113 Yet, as the core findings were somewhat superfluous in light of the shortly incoming legislation, it feels as though the Court succumbed to Executive pressure to use CMPs as a means of preserving vital intelligence cooperation relationships following the Mohamed and Al Rawi cases.114 The variety of counter-terrorism measures imposed following a CMP has unsurprisingly increased since the introduction of the JSA 2013. An unfortunate by-product of the courts’ approval of such measures has been the growing lack of clarity on what constitutes “a core irreducible minimum” disclosure such that it provides an individual with “sufficient information” to effectively instruct a Special

107

Specifically, United Kingdom, Constitutional Reform Act 2005, Sections 40(2) and (5). Bank Mellat case, above n 106, paras 43–44. 109 Ibid., para 153. 110 Ibid., paras 116–117. 111 JSA 2013, above n 11, Section 6. 112 For similar comments on the Bank Mellat cases, see Hughes 2013. 113 See Dyzenhaus 2008 for a much more eloquent and comprehensive discussion on this point. 114 See Hughes 2013 also for a discussion on the constitutional soundness of the Bank Mellat decision. 108

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Advocate as per AF (No. 3).115 In the Tariq116 and Kiani117 cases, both of which involved employment disputes following the removal of security clearance on the basis of potential future duress, the courts were happy to affirm what were effectively pre-pre-emptive measures against as of yet not materialised threats. In both cases, the Supreme Court found that the use of CMPs was necessary due to the manifest need to preserve the secrecy inherent in security vetting. In both cases, the courts found that there was no absolute requirement that an individual must always be provided with a core minimum of the relevant information about the secret material. In his judgment in the Tariq case, Lord Kerr did dissent on this point and noted forcefully that the AF (No. 3) principle, a “core irreducible minimum of disclosure”, is at the essence of the right to fair trial under Article 6 of the ECHR.118 As the essence of a right should be an indispensable and necessary attribute to that right, it cannot be altered by “the circumstances in which it falls to be considered”.119 This view was not adopted by the rest of the Judges deciding the Tariq case however and did not find support in the findings in the Kiani case. With the 2017 cases of XH and AI,120 K, A and B121 and Kamoka,122 the UK courts have however reinforced the position that there is no hierarchy of cases, no single standard and no irreducible minimum disclosure threshold. In AZ (Syria),123 the CoA expressly rejected the argument that there are three separate categories of cases for disclosure purposes.124 Rather, the disclosure required by the AF (No.3) 115

AF No. 3, above n 101. Tariq case, above n 80. In December 2006, the security clearance of Tariq, an immigration officer, was withdrawn. The Home Office’s decision to suspend his security clearance related to the arrests of his brother and cousin in connection with the investigation into a suspected terrorist plot to attack multiple transatlantic airline flights in August 2006. There was no information that Tariq himself had any involvement. The concern however was that given his close association with persons suspected of involvement in planning an attack, he might be vulnerable to outside attempts to have him abuse his position as an immigration officer. 117 Kiani case, above n 80. Mr Kiani’s wife worked for a company which specialises in the provision of advice in immigration matters including work permits, British citizenship and immigration appeals. There were concerns that Mr Kiani might—in the future—abuse his position as an immigration officer to assist his wife in her immigration business. Mr Kiani’s was suspended, his security clearance withdrawn and he was eventually dismissed from his employment. 118 Tariq case, paras 119 and 124. 119 Ibid. 120 UK Court of Appeal, XH and AI v the Secretary of State for the Home Department, Judgment, 2 February 2017, [2017] EWCA Civ 41. 121 UK High Court of Justice, K, A, B v Secretary of State for Defence and Secretary of State for Foreign and Commonwealth Affairs, Judgment, 17 July 2019, [2017] EWHC 830 (Admin). 122 UK High Court of Justice, Kamoka and Others v Security Service and Others, Judgment, 15 April 2016, [2017] EWCA Civ 1665. 123 UK Court of Appeal, AZ (Syria) v Secretary of State for the Home Department, Judgment, 27 January 2017, [2017] EWCA Civ 35 (AZ (Syria) case). 124 Category 1—issues related to damages—no minimum level of disclosure is required under either EU law or the ECHR. Category 2—interference with fundamental rights, i.e. Article 6 of the ECHR and/or Article 47 of the EU Charter (Charter of Fundamental Rights of the European 116

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case under the ECHR and the ZZ125 case under EU law is reserved for cases which concern “objectively high-level rights”.126 While all the rights guaranteed by the ECHR and the EU Charter127 are “fundamental”, some of those rights may be qualified and the qualification demands different levels of justification from decision-makers in support of the interference.128 Yet, despite the strong rejection of the hierarchy of cases argument, the courts, with their recent jurisprudence, rather than providing clarity, have instead entrenched uncertainty. And as the range of possible circumstances where closed evidence is used rises, so has the chasm between the type of cases where minimum disclosure is required and those cases which progress with very limited, if any, disclosure. The most recent case raising the issue of a CMP was yet another highly charged rendition case—Belhaj and Another v Straw and others.129 Abdul-Hakim Belhaj and his pregnant wife were first the victims of unlawful rendition in 2004 before being detained and ill-treated by the Gaddafi regime. Evidence of British involvement in their ordeal emerged in correspondence found inside the abandoned office of Moussa Koussa, Gaddafi’s Foreign Minister and former Intelligence Chief, after the regime fell in 2011. A criminal investigation (Operation Lydd) into complaints of ill-treatment by a number of detainees (including Mr. Belhaj and his spouse) began with a view to considering whether there should be a prosecution for misconduct in public office.130 In 2016, however, the Crown Prosecution Service decided not to prosecute.131 In the course of the judicial review application to reconsider, the Foreign Secretary applied for a CMP hearing. Section 6(11) of the JSA 2013 only allows for CMP use within civil litigation and not in “proceedings in a criminal cause or matter”.132 Despite engaging in a rather extensive analysis of what amounts to a criminal cause as opposed to a civil one, the Court’s eventual conclusion was that “the review of authority on criminal appellate jurisdiction produces no real clarity”.133 Of more future significance is Union, proclaimed 12 December 2007, 326 OJ C 391 (entered into force 1 December 2009) (EU Charter))—minimum level of disclosure required. Category 3—cases where neither Article 6 of the ECHR nor Article 47 of the EU Charter applies—as illustrated by decisions such as in UK Supreme Court, Pham v Secretary of State for the Home Department, Judgment, 25 March 2015, [2015] UKSC 19 (grant of passport) and routine immigration decisions. 125 CJEU, ZZ v the Secretary of State for the Home Department, Grand Chamber Judgment, 4 June 2013, Case No. C-300/11 and UK Court of Appeal, ZZ (France) v Secretary of State for the Home Department, Judgment, 24 January 2014, [2014] EWCA Civ 7. 126 AZ (Syria) case, above n 123, para 29. 127 EU Charter, above n 124. 128 Ibid. 129 UK Supreme Court, Belhaj and Another v Straw and others, Judgment, 17 January 2017, [2017] UKSC 3, Judgment, 17 January 2017, [2017] UKSC 3 (Belhaj 2017). 130 Ibid., paras 1–3. 131 Ibid., para 3. 132 In comparison, in the Netherlands the shielding of witnesses or use of sensitive AIVD reports in closed proceedings is to be relied on in criminal trials only as discussed in Sect. 14.2. 133 Belhaj 2017, above n 129, para 73.

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perhaps the finding that the phrase “criminal cause or matter” can have different meanings in different statutes.134 The Court decided—or rather fudged—that whilst the judicial review application could be seen as proceedings concerning a criminal cause or matter, it was certainly not proceedings in a criminal cause or matter.135 There was, as such, jurisdiction to consider the Foreign Secretary’s CMP application.136 Thus, in stark contrast to the traditional court approach towards intelligence evidence, the use of CMPs seemed to be on the verge of permeating all forms of judicial proceedings in the UK. However, despite its finding that there was jurisdiction to consider the CMP application, the Divisional Court did certify the issue as one of public importance suitable for consideration by the Supreme Court.137 The Supreme Court heard arguments on 22 March 2018 and was due to deliver its judgment in July 2018. In the intervening period, the UK Government settled the case and issued an unreserved apology for the “appalling treatment” suffered by Mr Belhaj and his wife, Mrs. Boudchar.138 Nonetheless, the Supreme Court proceeded with giving its judgment due to the importance of the legal issues in question. With a three to two majority, the Supreme Court reached the conclusion that it would have allowed the appellants’ appeal. The Court found that the ordinary and natural meaning of “proceedings in a criminal cause or matter” includes proceedings by way of a judicial review of a decision made in a criminal case; the context and purpose of the legislation do not suggest otherwise.139 Judicial review is an integral part of the criminal justice system; if Parliament had intended to distinguish between different procedures having the same criminal subject-matter and being part of the same criminal process, they could have done so.140 Thus, these proceedings were proceedings in a criminal cause or matter for the purposes of Section 6 of the JSA 2013 and a CMP is not permitted.141 The UK cases post Bank Mellat and the Dutch cases since the introduction of the Shielded Witnesses Act suggest that the courts appear more pragmatic in accepting that as the significance of intelligence evidence steadily rises, they may have to adapt their approaches to this new setting. Such an adjustment could ensure that an individual’s fair trial rights are protected for the following reasons. Since there is some form of judicial review of the intelligence evidence used, the courts can scrutinise the reliability of this evidence and assess how much the closed materials 134

Ibid., paras 75–79. Ibid., para 80. 136 Ibid., para 83. 137 UK Supreme Court, Belhaj and Another v Director of Public Prosecutions and Others, Judgment, 4 July 2018, [2018] UKSC 33 (Belhaj 2018). 138 The Guardian (2018) Britain apologises for ‘appalling treatment’ of Abdel Hakim Belhaj. https://www.theguardian.com/world/2018/may/10/britain-apologises-for-appalling-treatment-ofabdel-hakim-belhaj. Accessed 10 October 2018. 139 Belhaj 2018, above n 137, paras 15–16. 140 Ibid. 141 Ibid., paras 23–24. 135

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are supported by the open evidence. Further, taking into consideration both closed and open evidence, the courts can evaluate the appropriateness of imposing a particular pre-emptive counter-terrorism measure or the aptness of a specific sentence. These approaches should not however be evaluated in a vacuum; rather, they should be scrutinised with reference to the substantial changes in intelligence gathering and collection practices and the impact these can have on the protection of human dignity.

14.4

Human Dignity and the Rule of Law Post the Normalisation of Secrecy

In 1994, writing extra-judicially, Lord Justice Brown described the typical judicial approach on matters of national security as follows: “the mere incantation of the phrase [national security] instantly discourages the court from satisfactorily fulfilling its normal role of deciding where the balance of public interest lies.”142 The reasoning behind this deference rests on two related explanations.143 The first one can be described as the constitutional objection—aptly demonstrated in Rehman.144 Here Lord Hoffman engaged in a discussion of what constitutes an appropriate matter for the Judiciary and the Executive. The meaning of national security—the ability of a State to protect its citizens from internal and external threats145—is “a question of construction and therefore a question of law” within the jurisdiction of SIAC.146 The related question of whether something is “in the interests” of national security is however a matter of Executive judgment and policy and thus not a matter of law.147 The second rationale for judicial deference is more evidential—the perceived inappropriateness for the courts to deal with highly secret material through conventional legal procedures.148 This objection rests on the argument that intelligence information due to its principal purpose and covert nature has until recently not been intended for use within legal actions.149 It is within this context that conditional inclusion models are inherently problematic. While the reliance on such sensitive information within the court rooms has increased, the nature of intelligence has remained the same—it is uncertain, often fragmented and at times

142

Brown 1994, p 589. Born et al. 2011, p 232. 144 UK House of Lords, Secretary of State for the Home Department v Rehman, Opinions of the Lords of Appeal for Judgment in the Cause, 11 October 2001, [2001] UK HL 47. 145 Goold and Lazarus 2007, p 57. 146 Ibid., p 50. 147 Ibid. 148 Born et al. 2011, pp 232–233. 149 Ibid. 143

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difficult to evaluate or verify expeditiously.150 Concomitantly, the criteria for sharing such information tend to be rather surreptitious, vague and discretionary with levels of significance assessed and reassessed on a case by case basis.151 Aside from the fast-moving technology, which is arguably outpacing the relevant oversight bodies, the blurring lines between domestic, regional and international intelligence services has deepened the opaqueness surrounding intelligence collection and processing operations.152 As covert transnational counter-terrorism operations such as extraordinary rendition have illustrated, where States engage in bi- and multi-lateral intelligence cooperation, the barriers to accountability through the courts or national inquiries can multiply exponentially.153 The utilisation of private companies in intelligence gathering, processing and sharing of data—and the subsequent blurring of the lines between the public and private divide—has added yet another layer of opacity.154 As result, when sensitive intelligence information becomes a (core) part of legal proceedings, a claimant can face a number of evidential difficulties as well as the prospect of judicial deference towards the Executive. In a classic—albeit legal— illustration of Schrodinger’s Cat conundrum the courts may either be engaging in a rigorous and critical assessment of all intelligence evidence presented in front of them or alternatively be obsequiously deferential. However, due to the closed nature of the proceedings, there is no possibility to verify what approach the court has actually undertaken unless “a core minimum of irreducible disclosure” becomes standard practice for all cases. At present, an analysis of both Dutch and UK cases suggests that an individual is effectively placed in the quintessential Kafkaesque scenario when secret evidence is employed—one can only prevail in a trial if they can rebut all the undisclosed evidence against them. To do so successfully, however, an individual would have to prove that they are not a terrorist or engaged in terrorism related activity regardless of what might be implied by the Government’s closed evidence. An individual must do so without always knowing who provided the evidence or how it was obtained. The latter two are of particular significance as now intelligence cooperation has extended to include States with (very) poor human rights records.155

150

Ibid., p xi. Ibid. 152 Goold and Lazarus 2007, pp 45–72; Forcese 2011; Born et al. 2015; Dickinson 2012. 153 See cases such as District Court of New York, Arar v Ashcroft, Opinion, 16 February 2006, 414 F.Supp.2d 250 (E.D.N.Y. 2006); US Ninth Circuit Court of Appeal, Mohamed v Jeppesen Dataplan, Inc., Decision, 8 September 2010, Case No. No. 08-15693; ECtHR, El-Masri v The Former Yugoslav Republic of Macedonia, Grand Chamber Judgment, 13 December 2012, Application No. 39639/09; ECtHR, Al-Nashiri v Poland, Judgment, 24 July 2014, Application No. 28761/11; ECtHR, Nasr and Ghali v Italy, Judgment, 23 February 2016, Application No.44883/09; and the fact-finding and decisions of each. 154 See Born et al. 2011; Cameron and Chetail 2013; White 2016. 155 As cases such as Al Rawi, above n 74, Kamoka, above n 122, and Belhaj 2018, above n 137, aptly demonstrate, the UK had a special relationship not just with the US but also with Libya in the 151

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As the extraordinary rendition cases aptly illustrate, involving States with (very) poor human rights records in transnational counter-terrorism operations can induce violations of the prohibition on torture for the sake of obtaining actionable and timely intelligence information.156 Further, in these cases and numerous UN and Council of Europe reports,157 various States have been associated with (in)direct knowledge of such violatory practices. In short—information provided by a foreign intelligence service might be the product of ill-treatment.158 Naturally, there is quite a difference between an intelligence service requesting, obtaining and relying on potentially tainted information secured through a partner with a dubious human rights record and the admissibility of this information within court proceedings. However, due to the nature of multi-partner intelligence sharing and the operation of the principle of originator’s control, the more pertinent question is whether and how it can be definitively ascertained during the exchange process and in subsequent judicial proceedings that the relevant information has not been obtained through ill-treatment. The extensive ECtHR jurisprudence159 on the adequacy of non-legally binding agreements such as diplomatic assurances (DAs) and Memoranda of Understanding (MoUs) suggests that similar non-legally enforceable promises between various ranks of governmental representatives are unlikely to ensure that Article 3 ECHR obligations are fulfilled. The extensive reliance on private data collection and processing companies and the opacity with which they operate—and in particular how they approach compliance with human rights standards—can further exacerbate the concerns as to reliability of evidence.160 Due to the nature of closed proceedings, one can only engage in speculations of how the relevant courts can and do verify that no ill-treatment has taken place in the collection of intelligence information. In circumstances where a person has links to a country with a poor human rights record, this is an additional concern for that individual and their legal

early 2000s at the height of the US-led ‘War on Terror’. Similarly, the US relied on states such as Egypt, Syria and Jordan amongst others for the operation of its extraordinary rendition programme. 156 See also Born et al. 2011. 157 See, e.g., UN General Assembly (2010) Human Rights Council: Joint study on global practices in relation to secret detention in the context of countering terrorism of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak; the Working Group on Arbitrary Detention represented by its Vice-chair, Shaheen Sardar Ali; and the Working Group on Enforced or Involuntary Disappearances represented by its Chair, Jeremy Sarkin, UN Doc. A/HRC/13/42; Council of Europe Parliamentary Assembly 2007; International Commission of Jurists 2009. 158 See also Born et al. 2011. 159 Chahal case, above n 71; ECtHR, Mamatkulov and Askerov v Turkey, Grand Chamber Judgment, 4 February 2005, Application Nos. 46827/99, 46951/99; ECtHR, Saadi v Italy, Grand Chamber Judgment, 28 February 2008, Application No. 37201/06; ECtHR, Othman (Abu Qatada) v The United Kingdom, Grand Chamber Judgment, 17 January 2012, Application No. 8139/09. 160 Schlanger 2015.

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team as they cannot see, scrutinise or directly challenge the closed materials. Thus, they can only engage in conjecture of whether some of the evidence may have been obtained either at the risk of or through actual ill-treatment. If the uncertainty over the application of the threshold of ‘minimum disclosure’ or what is ‘sufficient information’ is added together with the (significant) procedural protections afforded to the intelligence services including the difficulties in scrutinising the reliability of evidence, it is difficult to imagine how anyone could overturn such a heavy burden. From this perspective, the increasing use and acceptance of secret evidence/closed proceedings suggests that the fair trial rights of the individuals in question are approached in an increasingly more formalistic or empty manner resulting in the mere appearance of respect for fair trial. The conditional inclusion models have most of the trappings of an adversarial procedure: (a) the possibility to challenge closed evidence; (b) the presence of a security cleared and highly trained counsel (UK) and (c) hearing in front of experienced justices. Yet, the proceedings nevertheless heavily favour one side over the other. As expressly stated by UK Special Advocates (SAs) in their responses to the Government’s 2011 Green Paper consultations: “our experience as SAs involved in statutory and non-statutory CMPs leaves us in no doubt that CMPs are inherently unfair; they do not […] deliver real procedural fairness.”161 Similar to DAs and MoUs, closed proceedings and secret evidence can be described as yet another means of recalibrating compliance with State obligations in respect of individual terror suspects.162 As suggested in a number of the cases, these specialised proceedings are used in order to balance the need of the State to protect sensitive intelligence information/gathering techniques and the rights of the individual terror suspect. Engaging the concept of ‘balancing’ in this context is however misguided as it suggests that perhaps there is an equal starting point or equilibrium between individual rights on one scale and national security on the other. It further implies that human rights are somehow an impediment on defence, security and counter-terrorism policies. The Preambles and texts of the relevant regional and international human rights documents demonstrate that while human dignity, which underpins individual rights, should at all times be respected, through provisions such as Article 15 of the ECHR, the human rights framework has been designed to afford States some flexibility when they need to respond to exigent circumstances. In other words, ensuring continuing respect for human dignity does not impede States from seeking to restore and reassert the security of the nation during a state of emergency. Rather, the required respect for human dignity is intended as a guarantee that any exceptional measures are legitimate, proportionate and ultimately short-lived in line with the (ideally) temporary nature of an emergency.

161

Anderson 2012. The concept of ‘downward recalibration’ of rights has been discussed in de Londras 2011 and Fenwick 2010. 162

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However, once enacted, counter-terrorism measures create an institutional interest—security, intelligence and law enforcement agencies are reluctant to relinquish these new and inevitably broader powers.163 This is particularly so when these powers can be used in other areas to, for example, decrease immigration, reduce crime or pre-empt other threats to national security. In other words, counter-terrorism measures and the administrative structures attached to them tend to reinforce their own existence and creep into other areas of law. From this perspective, counter-terrorism law is perhaps better seen as a spiral rather than a pendulum,164 which swings from side to side—one side being individual rights and the other security. The discourse on individual rights versus security assumes that they align on a fulcrum; when there is a terrorist threat, the pendulum swings in the direction of security over human rights and dignity. However, if counter-terrorism laws are instead viewed as a spiral, this arguably offers a more apt understanding.165 During times of normalcy, rights and security could be seen as being affixed to their places. When a State experiences an emergency, rights begin to slide down the spiral while security keeps moving to the top creeping into numerous aspects of governmental policies in the process.166 As emergency measures become entrenched and normalised within the legislative framework, for those immediately impacted there is no return to normalcy. The Dutch and UK jurisprudence suggests that there is an inherent disparity in the relationship between the individual terror suspect and the State in national security cases. In this context, conditional inclusion models can be seen as formalising this inequality further by hollowing out the scope of the right to fair trial, a complex right of particular significance in ensuring that both the dignity of those on trial as well as those who may have offered evidence is respected.

14.5

Conclusion

In another by now ritualised pattern, legal scholarship tends to discuss extensively the rising tensions between individual liberty and national security demands in the aftermath of a terrorist event.167 However as various domestic and transnational counter-terrorism measures have often demonstrated it is equally appropriate to describe these tensions as due process protections versus security considerations.168 Indefinite detention in black site prisons, severe ill-treatment and extraordinary

163

Donohue 2008, pp 1–17. Ibid. 165 Ibid. 166 Ibid. 167 Gearty 2013; Donohue 2008; Lynch et al. 2007; Posner and Vermeule 2007; amongst many others. 168 For similar comments, see Tomkins 2011, p 1. 164

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renditions are particularly illustrative examples of where security demands have substantially eclipsed the importance of protecting human dignity. From this perspective, the reliance on conditional inclusion models, which allow States to impose a pre-emptive or punitive counter-terrorism measure on an individual terror suspect, do—in comparison—offer “a substantial measure of procedural justice”.169 Nevertheless, this divergence from the standard legal processes is a pertinent example of where a government’s recalibrated approach to the rule of law and human dignity in order to accommodate counter-terrorism measures is at its most dangerous. While the Executive is subject to certain legal constraints, in practice these restrictions are insufficient and allow it to operate in the manner in which it desires—particularly on matters of national security.170 Such an approach to the rule of law is highly problematic not just in itself but also in combination with what has been described by Joseph Raz as the “danger created by law itself. […] [T]he law may be unstable, obscure, retrospective, and thus infringe on people’s freedom and dignity. [However,] [t]he rule of law is designed to prevent this danger as well”.171

References Articles, Books and Other Documents Anderson D (2012) Memorandum for the Joint Committee.https://terrorismlegislationreviewer. independent.gov.uk/wp-content/uploads/2013/04/memorandum-for-jchr.pdf. Accessed 26 July 2019 Bokhorst RJ (2012) Memorandum: De Wet afgeschermde getuigen in de praktijk [Memorandum: The Act on Shielded Witnesses in practice]. Wetenschappelijk Onderzoek en Documentatiecentrum. https://www.wodc.nl/binaries/memorandum-2012-3-volledige-tekst_ tcm28-71699.pdf. Accessed 23 July 2019 Born H, Leigh I, Wills A (2011) International Intelligence Cooperation and Accountability. Routledge, London/New York Born H, Leigh I, Wills A (2015) Making International Intelligence Cooperation Accountable. Norwegian Parliamentary Oversight Committee/DCAF. https://www.dcaf.ch/sites/default/files/ publications/documents/MIICA_book-FINAL.pdf. Accessed 23 July 2019 Brown S (1994) Public Interest Immunity. Public Law 1994:579–590 Cameron L, Chetail V (2013) Privatizing War: Private Military and Security Companies under Public International Law. Cambridge University Press, Cambridge Council of Europe Parliamentary Assembly (2007) Rapporteur Dick Marty: Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report, CoE Doc. 11302 rev. Council of the European Union (2017) Conclusions on EU External Action on Counter-Terrorism. https://www.consilium.europa.eu/media/23999/st10384en17-conclusions-on-eu-externalaction-on-counter-terrorism.pdf. Accessed 23 July 2019

169

ECtHR, I.R. and G.T. v The United Kingdom, Grand Chamber Judgment, 28 January 2014, Application Nos. 14876/12, 63339/12, para 58. 170 On this point, see further Dyzenhaus 2006. 171 Raz 1979, p 224.

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Case Law CJEU, Z.Z. v the Secretary of State for the Home Department, Grand Chamber Judgment, 4 June 2013, Case No. C-300/11 Court of Appeal of The Hague, Judgment, 2 October 2008, Case No. 2200734906 District Court of New York, Arar v Ashcroft, Opinion, 16 February 2006, 414 F.Supp.2d 250 (E.D.N.Y. 2006) District Court of Rotterdam, Judgment, 18 December 2002, Case No. 10/150080/0 District Court of Rotterdam, Judgment, 5 June 2003, Case No. 10/000063-02 District Court of Rotterdam, Judgment, 1 December 2006, Case Nos. 10/600052-05, 10/600108-05, 10/600134-05, 10/600109-05, 10/600122-05, 10/600023-06, 10/600100-06 District Court of Rotterdam, Judgment, 29 August 2016, Case No. 10/960138-15 District Court of Rotterdam, Judgment, 12 April 2017, Case Nos. 10/692109-16, 10/711013-16 TUL 10/164692-15 Dutch Supreme Court, Judgment, 15 November 2011, Case No. ECLI:NL:HR:2011:BP7544 ECtHR, Chahal v The United Kingdom, Grand Chamber Judgment, 15 November 1996, Application No. 22414/93 ECtHR, Mamatkulov and Askerov v Turkey, Grand Chamber Judgment, 4 February 2005, Application Nos. 46827/99, 46951/99 ECtHR, Saadi v Italy, Grand Chamber Judgment, 28 February 2008, Application No. 37201/06 ECtHR, Othman (Abu Qatada) v The United Kingdom, Grand Chamber Judgment, 17 January 2012, Application No. 8139/09 ECtHR, El-Masri v The Former Yugoslav Republic of Macedonia, Grand Chamber Judgment, 13 December 2012, Application No. 39639/09 ECtHR, I.R. and G.T. v the United Kingdom, Grand Chamber Judgment, 28 January 2014, Application Nos. 14876/12 and 63339/12 ECtHR, Al-Nashiri v Poland, Judgment, 24 July 2014, Application No. 28761/11 ECtHR, Nasr and Ghali v Italy, Judgment, 23 February 2016, Application No.44883/09 ECtHR, Gulamhussein and Tariq v The United Kingdom, Judgment, 26 April 2018, Application Nos. 46538/11, 3960/12 ECtHR, Big Brother Watch and Others v The United Kingdom, Judgment, 13 September 2018, Application Nos. 58170/13, 62322/14, 24960/15 UK Court of Appeal, Reg v Secretary of State for the Home Department, ex parte Cheblak, Judgment, 1 February 1991, [1991] 1 WLR 890 UK Court of Appeal, Secretary of State for the Home Department v Shafiq Ur Rehman, Judgment, 23 May 2000, [2000] EWCA Civ 168 UK Court of Appeal, R (Binyam Mohamed) v Secretary of State for Foreign & Commonwealth Affairs, Judgment, 26 February 2010, [2010] EWCA Civ 158 UK Court of Appeal, ZZ (France) v Secretary of State for the Home Department, Judgment, 24 January 2014, [2014] EWCA Civ 7 UK Court of Appeal, Kiani v Secretary of State for the Home Department, Judgment, 21 July 2015, [2015] EWCA Civ 776

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UK Court of Appeal, AZ (Syria) v Secretary of State for the Home Department, Judgment, 27 January 2017, [2017] EWCA Civ 35 UK Court of Appeal, XH and AI v the Secretary of State for the Home Department, Judgment, 2 February 2017, [2017] EWCA Civ 41 UK High Court, R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs, Judgment, 21 August 2008, [2008] EWHC 2048 (admin) UK High Court, Kamoka and Others v Security Service and Others, Judgment, 15 April 2016, [2017] EWCA Civ 1665 UK House of Lords, Liversidge v Anderson, Opinions of the Lords of Appeal for Judgment in the Cause, 3 November 1941, [1942] AC 206 UK House of Lords, CCSU v Minister for the Civil Service, Opinions of the Lords of Appeal for Judgment in the Cause, 22 November 1984, [1985] AC 374 UK House of Lords, Secretary of State for the Home Department v Rehman, Opinions of the Lords of Appeal for Judgment in the Cause, 11 October 2001, [2001] UK HL 47 UK House of Lords, AF and AE v Secretary of State for the Home Department, Opinions of the Lords of Appeal for Judgment in the Cause, 10 June 2009, [2010] 2 AC 269 UK Special Immigration Appeals Commission, Mukhtiar Singh and Paramjit Singh v Secretary of State for the Home Department, Decision, 31 July 2000, [2016] EWCA Civ 492 UK Supreme Court, Al Rawi and Others v The Security Service and Others, Judgment, 13 July 2011, [2011] UKSC 34 UK Supreme Court, Home Office v Tariq, Judgment, 13 July 2011, [2011] UKSC 35 UK Supreme Court, Bank Mellat v Her Majesty’s Treasury, Judgment, 19 June 2013, [2013] UKSC 38 UK Supreme Court, Pham v Secretary of State for the Home Department, Judgment, 25 March 2015, [2015] UKSC 19 UK Supreme Court, Belhaj and Another v Straw and others, Judgment, 17 January 2017, [2017] UKSC 3 US Ninth Circuit Court of Appeal, Mohamed v Jeppesen Dataplan, Inc., Decision, 8 September 2010, Case No. No. 08-15693

Legislation The Netherlands, Wijzigingswet Wetboek van Strafvordering (afgeschermde getuigen) [Act Amending the Code of Criminal Procedure (shielded witnesses)] The Netherlands, Wetboek van Strafvordering [Code of Criminal Procedure] The Netherlands, Wet op de inlichtingen- en veiligheidsdiensten 2017 [Intelligence and Security Services Act 2017] United Kingdom, Special Immigration Appeals Commission Act 1997 United Kingdom, Terrorism Act 2000 United Kingdom, Anti-Terrorism, Crime and Security Act 2001 (repealed) United Kingdom, The Special Immigration Appeals Commission (Procedure) Rules 2003 United Kingdom, Constitutional Reform Act 2005 United Kingdom, Prevention of Terrorism Act 2005 (repealed) United Kingdom, Counter-Terrorism Act 2008 United Kingdom, Terrorism Prevention and Investigation Measures Act 2011 United Kingdom, Justice and Security Act 2013 United Kingdom, Counter-Terrorism and Security Act 2015

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Treaties Agreement between the Member States of the European Union, meeting within the Council, regarding the protection of classified information exchanged in the interests of the European Union, signed 4 May 2011, 202 OJ C 15 European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953)

Acknowledgements We would like to thank the editors of this collection—Dr. Christophe Paulussen (T.M.C. Asser Instituut) and Prof. Martin Scheinin (EUI)—for their constructive feedback and insightful suggestions. Special thanks to Bart van Ark who patiently read and commented on previous drafts.

Dr. Rumyana van Ark (née Grozdanova) is a (Postdoctoral) Researcher in Terrorism, Counter-Terrorism and International Law at the T.M.C. Asser Instituut. She is also a Research Fellow with the International Centre for Counter-Terrorism—The Hague. Her research focuses on the impact of domestic and transnational national security and counter-terrorism policies on the individual, the rule of law and state accountability. Her published work has covered a range of topics such as the lack of international definition of terrorism, deportation of individual terror suspects with diplomatic assurances and the capabilities of state responses targeting those suspected of supporting, inciting or engaging in acts of terrorism. Charlotte Renckens LL.M. is a former Research Intern with the T.M.C. Asser Instituut, where her research mainly focused on terrorism and (international) criminal law. She studied Public International Law at the University of Amsterdam and Crisis and Security Management at Leiden University.

Index

A Absolute necessity test, 103, 108, 109, 111, 114 Abu Ghraib, 23 Abuse of counter-terrorism measures, 249 Access to court, 77, 87 Accountability, 6, 7, 41, 46, 56, 57, 68, 86, 88–90, 124–126, 130, 133–137, 139, 140, 142, 144–147, 222, 262, 356 Actus reus, 8, 241, 244, 247, 253, 257, 259, 324 Additional Protocol, 215, 244, 249–253, 257, 260 Additional Protocol I to the Geneva Conventions 1949, 215 Agency, 51, 68, 71, 83, 84, 129, 339, 348 Arbitrariness, 85, 169, 170, 346 Assisted Education (帮教), 199, 200 Asylum, 35, 37, 45–48, 50–55, 140, 142 Autonomy, 15, 16, 68, 83, 84, 184, 209 B Baren, 184 Belgium, 9, 81, 132, 150, 222, 259, 270, 272, 281, 282, 285–287, 290, 292, 308 Borders, 37, 51, 55, 107, 165, 182, 184, 224, 226, 247, 304, 311 C Categorical imperative, 5, 9, 13, 22, 23 Causality, 9, 272, 274–281, 283–285, 287, 290–292, 308

Central Intelligence Agency (CIA), 23, 71–76, 78–80, 84–89, 125, 129–132, 134, 138, 140, 142–144, 146, 348 China, 8, 181–199, 201, 202 Citizenship, 7, 29, 31, 35, 40, 47–50, 153–162, 164, 165, 168–175, 230, 263, 302, 352 Civil death, 68, 82, 83, 163, 174 Closed material procedure, 44, 336, 337, 341, 343, 345–354, 358 Complicity, 45, 72, 132, 247 Contempt of victims, 9, 299 Control, 18, 27, 37, 39, 42, 44, 45, 51, 72, 78, 83, 84, 105, 106, 108–111, 114, 115, 125, 130, 135, 186, 198, 211, 227, 232, 244, 304, 341, 347, 349, 350, 357 Counterterrorism, 7, 56, 123, 124, 126–130, 134, 136, 137, 140, 146, 147, 159, 161, 182, 183, 185, 188, 191, 192, 197, 200–202, 207, 208, 210, 212, 213, 219–224, 227, 230, 231, 263, 270–272, 288, 292, 314 Counter-Terrorism Law of the Peoples’ Republic of China (CTL), 192–194, 197–202 Counter-terrorism measures, 6, 20, 129, 174 Counter-terrorism operations, 357 Court deference, 345 Criminal investigation, 88, 142, 353 Criminalisation, 6, 9, 35, 51, 56, 215, 216, 218, 228, 230, 242, 244–247, 251, 252, 256–262, 264, 270, 272, 273, 275, 277, 279, 283, 286, 287, 292, 293, 304, 307, 310, 311, 316, 322

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368 Criminal law, 8, 9, 89, 160, 162, 168, 185, 188, 192, 193, 195–197, 201, 220, 230, 231, 242, 247, 249, 255, 257, 259, 262, 263, 270, 272, 273, 277, 278, 282, 285–287, 291, 292, 304–307, 313, 324, 342 Criminal Law of the People’s Republic of China (Chinese Criminal Law), 192, 193 Crisis, 107, 109, 159, 228, 229, 251 Culture essentialism, 30, 31 D De-Extremisation Regulations, 191, 192, 194, 197, 199 Definition, 5, 9, 13, 16, 20, 21, 36, 104, 116, 128, 157, 158, 192–194, 208, 210, 214–220, 222, 224–227, 230, 231, 242, 246–251, 253–255, 259, 260, 271, 272, 274, 281, 285, 304, 316, 337, 347–349 Denationalisation, 7, 153, 156, 158–163, 165, 166, 170–173, 175 Deport, 38, 51, 175, 346, 347 Deprivation, 6, 7, 35, 40, 48–50, 77, 78, 82, 88, 100, 102–104, 108, 111, 112, 114, 144, 153–175, 230, 325 Deterrence, 257, 258 Dignity, 5–8, 10, 13–18, 20, 21, 29, 43, 48, 67–71, 74, 75, 79–91, 129, 137, 139, 140, 142, 143, 145, 146, 164, 182, 183, 198, 230, 299–301, 305, 307, 309, 313–326, 335, 337, 359, 360 Diplomatic assurances, 45, 46, 141, 357 Directive 2017/541 (EU), 271, 276, 308, 330 Discrimination, 15, 21, 29, 48, 77, 82, 166, 167, 172, 173, 183, 187, 194, 199, 201, 316 Dual nationality, 48, 172, 173 E Education at a Designated Place (安置教育), 199 Effectiveness, 7, 40, 88, 89, 115, 161, 174, 248, 250 Enhanced interrogation techniques, 75, 76, 78–80 Equality before the law, 29, 30, 82, 197 European Convention on Human Rights, 14, 41, 69, 96, 143, 256, 257, 288, 342 European Court of Human Rights, 6, 41, 70, 97, 98, 142, 168, 279, 288, 290, 321, 325, 338, 346 European Union (EU), 9, 14, 25, 28, 40, 51, 52, 159, 170, 208, 222, 241, 244, 245,

Index 250–257, 259, 260, 263, 269–274, 276, 277, 280, 281, 283, 285–287, 290–292, 304, 307, 308, 311–314, 330, 335, 337, 341, 352, 353, 365 Evidence, 46, 73, 112, 114, 142, 154, 160, 171, 174, 175, 253, 255, 261, 292, 300, 304, 309, 311, 317, 320, 334–337, 340–346, 349, 350, 353–359 Exceptionalism, 91, 110, 117 Exchange and cooperation, 272 Exclusion, 21, 35, 40, 51, 52, 54, 55, 225, 253, 287, 288, 334, 346 Externalise, 38 Extraordinary rendition programme, 71, 356 Extremism, 172, 181, 183, 187, 194, 196, 197, 200, 302, 303, 305–307, 335 F Fair trial, right to, see Right to fair trial Feindstrafrecht, 9, 196, 262, 263 Foreigner, 35, 51, 191, 209, 231 Foreign fighters, 4, 9, 207–210, 213, 217, 220–232, 242–245, 248–255, 257, 260–263, 302 Foreign Terrorist Fighter(s) (FTF(s)), 154, 208, 209, 213, 217–219, 221, 223, 252 Framework Decision 2002/475/JHA, 251, 330 Framework Decision 2008/919/JHA, 251, 271, 274, 308 Framing, 8, 163, 207, 208, 210–214, 217–229, 231, 232, 314 Freedom of expression, 9, 10, 84, 101, 169, 262, 275, 276, 278, 281, 287–290, 299–301, 305, 309, 311, 314, 316, 319, 322 Free speech, 301, 305, 321 Friendly relations, 212, 227, 230, 232 G Glorification, 161, 271, 277–279, 281, 283–285, 288–291, 306, 308–312, 315, 316, 322, 323 Glorification offences, 9, 290, 299, 322 Guantánamo Bay, 41, 48, 129–131, 137–139, 145, 348, 349 H History of international law, 157 Hostages, 21, 50, 107, 109–112 Human dignity, 3–11, 13–18, 21–24, 36, 67–71, 74–77, 81–84, 86, 90, 91, 123, 124, 126, 128, 135, 147, 154–156, 158, 159, 162, 164–166, 172, 173, 175,

Index 208–210, 220, 224, 232, 233, 241, 242, 244, 245, 249, 254, 261–264, 270, 300, 301, 313–315, 319, 321, 323, 324, 334, 335, 337, 355, 358, 360 Humanisation, 5, 18, 19, 90, 140 Human rights, 4–7, 11, 13–21, 23, 25, 29, 30, 36, 37, 39–45, 48, 49, 53, 55, 57, 67–72, 74–77, 81–83, 86, 87, 90, 91, 95, 97–101, 116, 118, 123–138, 141, 150, 151, 155, 157, 159, 164, 166–170, 189, 198, 202, 209, 210, 212, 214–223, 225, 226, 228, 231–233, 241, 244, 246, 248, 249, 254, 256, 257, 260, 263, 264, 271, 275, 276, 278, 283–285, 287, 288, 291–293, 307, 308, 322, 325, 334–336, 342, 347, 349, 356–359, 365 Human rights discourse, 5, 13, 16–19 Human security, 3–11, 13, 16, 18–24, 35–47, 50, 51, 57, 68, 71, 98, 116, 117, 124, 126–128, 137, 154–156, 158, 159, 162, 164–166, 172–175, 209, 224, 232, 233, 241, 242, 244, 245, 249, 250, 254, 262–264, 270, 292, 293, 337 Humiliation of victims, 301, 309, 313–315, 317–321 I Ill-treatment, 45, 142, 353, 357, 359 Implementation Measure of the CTL for the Autonomous Region of Xinjiang (Xinjiang Implementation Measures), 192 Impunity, 83, 88, 89, 226 Incitement, 9, 51, 161, 196, 270, 271, 273–276, 286, 288, 291, 306–309, 317, 323 Inclusiveness, 226 Indefinite detention, 23, 138, 334, 359 Individual rights, 10, 36, 334, 335, 337, 358, 359 Individuals, 4, 9, 10, 16, 20, 29, 36, 56, 73, 75, 77, 82–86, 88, 98, 105, 116, 127, 128, 131, 135, 136, 154, 155, 158, 169, 172, 174, 175, 208–210, 213–215, 219, 222–225, 229, 230, 232, 242, 243, 245–247, 250, 255, 258, 261, 262, 301, 302, 309, 311, 313, 317, 318, 320, 334, 338, 342, 346, 347, 358 Information intoxication, 10, 333, 335, 337, 340 Instrumentalisation, 22, 23, 165, 262 Intelligence, 7, 10, 18, 20, 23, 38–40, 43, 45, 55, 56, 71–76, 78–80, 84–86, 89, 90,

369 106, 107, 114, 124–126, 129–134, 138–140, 145, 333–343, 345–349, 353–359, 364 Intelligence cooperation, 7, 123–125, 129, 130, 133, 134, 140–142, 144–147, 259, 260, 335, 339, 351, 356 Intelligence sharing, 132, 134, 349, 357 Intent, 9, 22, 79, 191, 261, 272, 274, 275, 277, 279–281, 284, 285, 290, 292, 300, 308, 309, 321 Inter-American Commission on Human Rights (IACHR), 137, 139 International law, 8, 36, 41, 46, 47, 69, 74, 76, 81, 86, 88, 89, 124–126, 132, 136, 146, 157, 158, 165–168, 171, 175, 207, 208, 210, 211, 215, 219–221, 224, 226–228, 232, 233, 280 Interrogation, 72, 73, 77–80, 84, 89, 124, 129–131, 133, 141, 142, 348 Investigation, 38, 42, 54, 83, 88, 89, 106, 112–115, 125, 133, 136, 142, 155, 201, 323, 347, 352, 364 Invocation, 7, 16, 18, 123, 126, 133–136 Irregular processes, 35 Islamic State, 3, 30, 39, 50, 154, 155, 186, 210, 224, 242, 243, 248, 249, 251, 262, 263, 302 J Jurisdiction, 35, 40, 41, 88, 127, 132, 135, 137–139, 141, 142, 145, 146, 224, 228, 229, 232, 319, 353–355 K Kant, Immanuel, 5, 9, 13, 22, 75 Kunming, 8, 181–183, 186, 192, 196 L Legal definition, see Definition Legality, 9, 10, 27, 46, 83, 103, 247, 254, 255, 257, 262, 270, 272, 288, 290, 292 Legitimacy, 9, 40, 50, 173, 182, 270–272, 275, 282, 285, 287–290, 292, 308 Lethal force, 41, 105, 108, 109, 112, 113, 115 Life imprisonment without parole, 81 Loss of life, 103, 105–108, 110, 111, 114, 115 M Margin of appreciation, see Definition Mens rea, 9, 241, 244, 247, 253, 257, 272, 274, 281, 284, 285, 289, 290, 292, 321–323

370 Mercenaries, 208–210, 213–219, 221–223, 225, 226, 229, 231, 232 Military operations, 106, 110 Ministry of Public Security (MPS), 190 N Nationality, 5–7, 27, 31, 35, 40, 47–49, 53, 54, 153–175, 209, 216, 230, 245, 246, 248, 250, 252, 302 National security, 5–9, 18, 19, 45, 47, 49, 51, 53, 54, 71, 72, 85, 97–99, 101, 102, 105–107, 115–118, 124, 125, 127, 128, 134, 140, 153–156, 158–161, 173–175, 182, 183, 209, 214, 230, 243, 256, 263, 275, 299–301, 305, 309, 311, 317, 318, 322–324, 333–340, 345–348, 355, 358–360 Negotiations, 109, 110, 215, 252, 259 Neighbour terrorism, 37 Netherlands, The, 10, 112, 133, 150, 154, 157, 160, 165, 173, 174, 243, 244, 259, 334, 336, 337, 339, 341–343, 346, 353, 364 Non-toleration of harm, 8, 208, 212, 216, 223, 224, 231, 232 O Offence, 8, 9, 21, 82, 160, 241, 244, 245, 247, 248, 250, 252–264, 270, 273–275, 277, 278, 280–286, 290–292, 301, 308–322, 324 Operational obligations, 108 Othering, 37, 174 Otherisation, 77 Otherness, 29 P People’s Protection Units (YPG), 210 People’s War on Terror, 8, 181, 183, 187–192, 194, 195, 197, 200–202 Planning, 108–111, 114, 115, 196, 209, 214, 245–247, 305, 341, 352 Positive obligations, 100, 103, 111, 116, 127, 131, 132 Precautionary measures, 137–139 Predictability, 104, 290 Prevention, 8, 20, 171, 194, 197, 208, 210, 212, 217, 219, 223, 227, 230–233, 242, 244, 245, 249, 250, 258–261, 263, 264, 274, 275, 287, 292, 308, 310, 324, 326, 331, 338, 347, 364 Preventive obligations, 105–107, 114

Index Procedural obligations, 99, 105, 106, 111–115, 117, 133 Propagating terrorism, 193 Proportionality, 9, 54, 170, 270, 272, 288, 292, 307, 309 Prosecution, 9, 23, 44, 88, 197, 241, 248, 250, 251, 253, 257, 261–263, 313, 314, 323, 325, 326, 353 Public emergency, 101 Public order, 15, 104, 324 Public provocation, 271, 273, 274, 276–279, 282, 283, 290–292, 308 Punishment, 70, 75–77, 82, 83, 95, 113, 114, 125, 130–133, 141, 150, 151, 162–164, 188, 195, 197–199, 242, 244, 245, 257, 258, 260, 263, 288, 324, 357 R Re-Education (laojiao [劳教]), 183, 199 Religious extremism, 187, 188, 190, 191, 194, 196, 197 Remedy, 82, 125, 126, 133, 135, 136, 139, 142, 145, 146, 168, 208, 216, 231 Rendition, 6, 35, 37, 40, 43–47, 67, 71–77, 81, 82, 84–91, 129–132, 140–142, 144, 146, 353, 356, 357 Reparation, 6, 67, 68, 85–87, 89, 90, 140, 142, 145, 314, 324, 325 Repression, 185, 287 Restriction of human rights, 18–20, 116 Return, 37, 38, 45, 46, 50, 54–57, 154, 155, 159, 172, 175, 208, 219, 221, 230, 231, 244, 359 Right to fair trial, 337, 341, 347, 352, 359 Right to life, 6, 7, 18, 70, 90, 97–111, 113–118, 133, 214 Risk, 9, 30, 36, 38, 39, 43, 45, 46, 50, 51, 54, 56, 80, 103–105, 107, 113, 128, 133, 134, 141, 143, 155, 161, 173, 174, 209, 210, 228, 233, 242, 254, 255, 258, 261, 263, 270–272, 274, 275, 281, 283, 286, 287, 290, 300, 303, 305, 306, 309–311, 318, 320, 322, 323, 325, 358 Risk assessment, 198 Rule of law, 5, 9, 10, 21, 27–31, 81, 86, 88–90, 118, 128, 140, 147, 191, 199, 220, 226, 242, 247, 254, 257, 261, 263, 264, 270, 290, 300, 301, 337, 351, 360 Russia, 83, 99, 106, 107, 109–112, 154, 162, 250

Index S Secrecy, 10, 56, 72, 73, 87–89, 114, 125, 130, 136, 145, 350, 352 Secret detention, 23, 72, 73, 82, 125, 130–132, 357 Secret evidence, 10, 161, 337, 343–347, 356, 358 Securitisation, 5, 18–20 Security Council Resolution, 124, 219, 245–249, 258, 274, 278, 305, 307, 308, 310, 335, 339 Security Council Resolution 2178, 209, 244–253, 255–257 Security information, 106, 113, 114 Security state, 4 Self-determination, 15, 184, 207, 209, 210, 212–214, 216, 217, 219 Shared responsibility, 90, 130, 141 Social harmfulness, 195 Social management, 8, 181, 200 Solitary confinement, 77, 84 Spain, 9, 213, 299, 301, 309–316, 318, 319, 322, 324, 325, 331 Statelessness, 47–49, 54, 155, 157–162, 164–166, 170, 171 State responsibility, 81, 125, 126, 129, 132, 133, 135, 136, 144–146, 212, 224, 230–232 Status, 14, 48, 53, 69, 83, 85, 90, 139, 140, 145, 155, 157, 158, 163, 164, 166, 171, 208, 210, 215, 216, 222, 225, 226, 228–230, 307, 314, 317, 324, 343 Strike-Hard Campaign, 192, 195, 197, 202 Subsidiarity, 9, 101, 270, 272, 285, 292 Supervisory role, 7, 98, 101, 105, 107, 118 Supreme People’s Court (SPC), 188 Supreme People’s Procuratorate (SPP), 188 Suspect persons, 6, 35, 37, 38, 57, 263 Suspect places, 6, 35, 37, 57, 105, 199, 259, 284, 340, 343 T Terrorism, 3–11, 13, 18–24, 27, 28, 30, 31, 35–41, 43, 45, 47–57, 67, 68, 71, 75, 76, 80, 82, 86, 87, 89, 90, 97–99, 104–106, 109, 111–113, 115–117, 124, 125, 128, 130–133, 153–157, 159–162, 168–170, 172–174, 181–184, 186, 188–197, 200–202, 209, 210, 218–221, 223, 224, 230–232, 241–264, 269–271, 274, 275, 278, 281–285, 287–289, 291–293, 299–304, 306–326, 330, 331, 333–348, 351, 355–360, 364 Terrorism activities, 334, 343

371 Terrorism prevention, 38, 347, 364 Terrorism threat, 4, 272, 335 Terrorist purpose, 9, 241, 247, 253–255 Terrorist suspects, 38, 39, 77, 105, 108, 259, 261 Tiananmen Square, 183, 184, 186 Torture, 6, 23, 37, 44–46, 67, 70–80, 82, 84–90, 95, 124, 125, 130–134, 140–146, 151, 163, 217, 349, 357 Travel, 8, 38, 49, 51, 53–56, 156, 174, 209, 219, 220, 230, 242, 245–247, 250, 252, 255, 257, 259, 264, 276, 282, 283, 304, 341 Travelling, 8, 54, 241, 244, 245, 247–261, 263, 276, 282 Trust, 5, 10, 27–31, 50, 270, 349, 351 U UN Committee Against Torture, 133, 140 UN Global Counter-Terrorism Strategy, 20 UN Human Rights Committee, 54, 70, 77, 90, 102, 127, 140, 141, 256 United Kingdom, 9, 10, 37–39, 41, 42, 44, 46–56, 70, 74, 81, 87, 99, 101–103, 105, 107, 108, 120, 127, 150, 154, 165, 168, 220, 227, 243, 244, 270, 272, 282, 283, 286, 291, 308–310, 331, 334–336, 338, 339, 346, 347, 351, 357, 360, 363, 364 Universal, 16, 36, 39, 68, 71, 91, 224 Universal Declaration of Human Rights, 14, 18, 36, 68, 69, 75, 166, 167 UN Working Group on Mercenaries, 221, 232 Uyghur Minority, 184, 187 V Victims of terrorism, 9, 21, 46, 97, 98, 105, 291, 299, 300, 307, 313, 314, 317–319, 323, 324, 326 X Xi Jinping, 187–189 Xinjiang, 8, 181, 182, 184–192, 194, 197–201 Xinjiang Production and Construction Corps, 184 Y Yining, 185 Z Zubaydah, Abu, 6, 43, 67, 71, 73, 74, 76, 78–80, 82–85, 87–90, 143, 145, 146, 150