On fighting terrorism, one will always defend the short term of action and the use of hard tools, the other the long term way and the use of soft tools. The solution often stands in between, but one can still find solutions while respecting EU core values such as human and fundamental rights. Democracies have the inalienable right and the inseparable obligation to defend themselves when attacked. Yet, it is important to be reminded that the fight against terrorism is complementary to the respect of human rights and the rule of law. Terrorist organisations, such as IS or others, are a real and a present threat to citizens, their way of living and their standards and values. Such acts destroy life and undermine human dignity, and there is not one argument in favour of international terrorism as terrorist acts have been directed against a range of human rights, specifically: the right to life; rights to non-discrimination, including equal rights for women and girls; freedom of religion and belief; freedom of expression and freedom of assembly and association.
However, States fighting international terrorism must comply with human rights and remain within the rule of law. The contrary would be a mistake and an ineffective measure that may help the cause of such terrorist organisations.
Difficulties encountered at an EU level
The EU has adopted and approved numerous strategies, directives and measures to combat terrorism with the respect of human rights and international humanitarian law. Each member state has the responsibility to protect those within their jurisdiction from such attacks and must also ensure that all counterterrorism measures respect EU standards and values. Despite the fact that terrorism seriously threatens human rights and democracy, EU member states must oppose terrorism while refusing to weaken the rule of law.
The EU has adopted a new Action Plan on Human Rights and Democracy for the period 2015-2019. Counter-terrorism (CT) is listed as Objective No.25 in this action plan:
“Pursuant to the EU CT Strategy, develop sets of ideas on how to prevent radicalisation and extremist violence among young people in third countries, how to assist EU activities and how to engage with media and community leaders to develop counter-narratives in these countries; promote and support that the human rights are at the centre of all legislation, policies and mechanisms on counter terrorism in third countries, while also ensuring compliance with IHL, and enabling principled humanitarian action”
It is also mentioned the need to “Ensure wide dissemination of the EU CT guidance, including by engaging in outreach activities and training practitioners in the field, in particular for activities deployed under the Instrument contributing to Stability and Peace.” One of the principles which is also mentioned is that the EU “must focus on the most pressing human rights challenges, which must be tackled both internally and externally. These challenges include, in particular, combatting discrimination, the respect for freedom of expression and privacy as well as insuring that human rights are upheld in migration, trade or counter-terrorism policies.”
Therefore, counter-terrorism measures must comply with the rule of law and human rights obligations under European Union and international law. However, the extent of restrictions on human rights that result or could result from adopted or contemplated security measures is significant.
One concern is being raised regarding the fast-track procedures used by the Commission and EU Member States to adopt counter-terrorism measures, for instance in the Draft Directive on Combating Terrorism. “This reduces the space for meaningful civil society participation and transparency, foreseen in EU Stakeholder Consultation Guidelines, and thus hinders accountability, which is contrary to Article 11 of the Treaty of the European Union. Adoption of emergency measures also does not allow for proper or, indeed, any impact assessments, as foreseen by the EU Better Regulation Guidelines and Better Regulation tool 24.”
In a nutshell, the proposal creates a far-reaching extension of the scope of member states’ criminal law obligations in the field of terrorism, especially with regard to the preparatory phase, covering a wide range of conduct that can include everyday activities such as travelling. Freedom of expression, freedom of movement and non-discrimination are principles that must be respected. While doubtfully respecting the principle of proportionality (Art. 5 TEU), the draft directive raised also the issue of the definition of terrorism. Having a stricter and common definition will avoid EU Member States to bypass basic standards of human rights.
Despite the fact that the EHCR has set up high standards regarding protection of rights and freedoms of individuals that can be implemented in any policies combatting terrorism, it remains difficult to collectively respond, at a human rights and policy level, to a phenomenon which is not commonly and practically defined. Once again, radical ideologies cannot be fought by undermining the legal standards and the progress that has been made.
Countering terrorism while respecting human rights
Despite the fact that the international post-9/11 “war on terror” has been accompanied by increased actual threats of terror almost everywhere, arguments to support military actions can still be found especially as a short term solution in order to bring stability. There is however the need to be careful in not using wrongly the term of “war”, at least on a judicial and legal aspect. Those who commit terrorist acts are criminals, they are no soldiers of an army and a terrorist act is not an act of war. The concept of war on terror might be dangerous when related to the framework of international human rights. The Council of Europe Commissioner for Human Rights said in June 2015:
“The US-led ‘war on terror’ and many European States’ counterterrorism efforts violated core principles of human rights and international law, including the following: protection against torture, the right to personal liberty and security, the right to a fair trial including the presumption of innocence, the right to respect for private and family life, the freedoms of expression and of movement, the right to an effective remedy and victims’ rights to reparation following States’ unlawful acts.”
Many European citizens and innocent people have been victimised.
In time of war, other laws are in place and therefore, most of the EU citizens think it’s not a time to raise the issue of human rights, democracy and the rule of law. Yet, raising populist notions meets another extreme, which is also contrary to our core values such as equality, freedom of expression and religion etc. and creates a risk of destabilisation of societies by discrimination, exclusion and hatred.
On terrorism, the short term mission for the public administration is to protect the population, to restore security and to bring to account the attackers for their crimes. Domestic and international resources to strengthen security is an appropriate response in emergency situations. However, an emergency situation can’t last forever but simply correspond to the expectation of the public opinion and the need to recover trust in the governments. The end of an emergency situation should not create the impression that such atrocities could be defeated definitively but must raise the idea of alternative measures. Also, the fact that a State declares a state of emergency, and therefore derogate from certain provisions of the ECHR does not mean that such derogations are automatically valid. The ECHR decides if the derogation complies with the requirement of Article 15 of the convention.
On top of a democratic control, political leaders must avoid stigmatising certain communities while condemning such attacks and, intellectuals and religious leaders, especially Muslim leaders, have to condemn the abuse of religions by fanatic murderers and remind that European citizens, regardless of their religions, benefit from the protection of their rights and freedoms against terrorists who threaten them. It is also necessary to pay attention to the abuse of the description “Islamic” by terrorist organisations as to date, most of the victims to such attacks are Muslims. The role of the media and the importance of education should also be underlined and improved in this context.
The need to solve the issue at a political level
There is not one approach in fighting terrorism and the different tools, which already exist, have to be applied in an appropriate way. But first, there is the need to understand two things in order to picture the fight against terrorism:
- Terrorism cannot be defeated only by traditional means
- Such attacks cannot be predicted and prevented with certainty
That said, politicians, because of their need to give the impression that they are able to manage crises and respond to risks, will focus on hard tools and easily mediatised approaches. They are especially keen to misuse this threat for short political gains.
On the fight against the Islamic State, military operations and the improvement of the intelligence remain a core strategy. Although, until now, sharing intelligence has only been at the origin of EU political debate related to sovereignty, military interventions in the middle-east region have a track record and mass surveillance appears to be a waste of resource, ineffective and dangerous to human rights. The Council of Europe resolution 2045 stated that: “mass surveillance does not appear to have contributed to the prevention of terrorist attacks, contrary to earlier assertions made by senior intelligence officials. Instead, resources that might prevent attacks are diverted to mass surveillance, leaving potentially dangerous persons free to act”.
International threats require international military actions and international obligations to bring peace at home and abroad. However, the direct threat is not coming from abroad. Leaders of terrorist organisations, or the one who command and solicit successive terrorist acts are likely to live in foreign countries but their foot soldiers are recruited at home, within the EU. To a certain extent, social deprivation at home leads to security problems which call to military responses. It is easy to attack the EU but also easy to recruit in it. Therefore, there is a two-sided debate:
- The need for a common European response to the jihadist threat internationally
- The need to combat discrimination, violence and social exclusion in disadvantaged neighbourhoods
Root causes of terrorism, despite the necessity of foreign interventions, must be fought within the EU with tools that the EU is mastering and in respect of human rights.
The EU might also be vulnerable due to technical issues such as the Schengen area but the main weakness of the EU is political. The reason the EU has failed in addressing external challenges is because of domestic reasons and its difficulties to overcome divisions and populist sentiments. There is a thin red line between the short term measures which are bringing political stability and security, and the appeal of politicians to populist notions by mixing challenges of terrorism with perceived threats such as migration and economic difficulties. The main danger is the possibility for the EU to abandon its values and to stoop to the terrorist’s mind-set.
It is important to remind that by historical, political and economic interests, military interventions abroad are unlikely to end even if counter terrorism breeds more terrorism and vice versa. However, it is necessary for the governments to respect international standards and to develop combined strategies other than a simple military intervention in order to prove efficiency. Even if there is a strong temptation to overcome human rights and fundamental freedoms by insisting on stronger security measures in order to protect citizens, EU core values should not be sacrificed at is it precisely the aim of terrorist organisations, to create doubts and turmoil in our societies. It is essential for the EU to not change its way of life.
In the fight against terrorism, proportionality has to be found. It is important to ensure a fair balance between freedom and security in order to avoid violations of fundamental rights.
Alternative measures – Working on long term strategies
While EU politicians are still trying to harmonise their policies and mainly focus on national public opinion, it is important to work closely with the civil society in order to eradicate the breeding grounds for terrorism. Concrete measures have to be taken in schools, prisons, disadvantaged neighbourhood and on the internet in order to reinforce education, social policies and an inclusive society. Participation of civil society, information and transparency are key requirements to avoid human rights violations which result of counter-terrorism laws and policies. Governments show little interests in those issues as working on education and development is related to long term strategies. However, there is a need to urge politicians to dedicate themselves to long-term actions, beyond electoral periods.
Human rights in Europe have reached the highest standards in European history. Abandoning this progress just to respond to a handful radicals who are driven by the ideology of fear and terror for political purposes would be a mistake. Dealing with terrorism is a long-term affair and require a multi-faceted approach.
The main value of the EU is to solve conflicts through peaceful means and fortunately, there are alternatives to military interventions such as reducing cultural marginalisation, working on training and education, creating post conflicts recovery programs, developing economic infrastructures and political institutions, reinforcing the rule of law, negotiating etc. Some of those tools that the EU is mastering in term of crisis management already showed success but it needs a realistic application and a comprehensive strategy that would create synergies among them. The EU is not lacking tools or legal instruments, but is lacking effective strategies. The Union has to be careful not to eclipse democratic decision-making by emergency management and must focus on its soft tools and make effective its integration policies.
Mediation and dialogue are soft tools which respond to radicalised non-state actors as they give insight into reasons and conditions that led to extreme positions. Starting a dialogue is a first step to understand the needs and to promote universal human rights such as tolerance and non-discrimination. Then, it is necessary to assess a situation before to create a strategy as in such a complicated context, each situation is different.
Examining the root causes requires an interdisciplinary approach in order to prevent extremism and radicalisation. Depending on a specific issue, it is of first importance to hierarchise the tools and their use in order to implement effectively policies. Fighting poverty, social inequalities and ignorance are policies which could bridge the gap between communities and between local and international values if they are well implemented. There is also a need to call for strong international cooperation in order to effectively counter radical trends. In this case, it is important to remind that International cooperation include cooperation between States but also between representatives of different beliefs and stakeholders.