A Renewed Counterterrorism Push: Implications for EU Democracy, Human Rights and the Rule of Law

One again the ‘War on Terror’ backfires, and while Islamic State extremists are put forward as a threat, policies are introduced that create ‘suspect communities’ and undermine civil liberties and human rights. An insightful analysis by Chris Jones about the consequences of counter-terrorism measures.


Renewed military action by the US and its allies in Iraq and Syria has received significant attention in the global media. Counter-terrorism experts have differing views on whether it can be considered a renewed ‘War on Terror’, but one thing is clear – alongside bombs, bullets and missiles come new domestic counter-terrorism policies of increased state surveillance and intrusion.

The UK: undermining the rule of law?

Following the murder in early September of British aid worker David Haines by Islamic State members, UK Prime Minister David Cameron declared “it will take time to eradicate a threat like [Islamic State]; it will require, as I’ve described, action at home and abroad.”

Two weeks earlier, the Prime Minister had announced his plans to “secure our way of life for generations to come,” with a series of new measures, at least one of which former Attorney-General Dominic Grieve described as “offending basic principles of our common law”.

What so aggrieved Grieve was the suggestion that the government may introduce a “targeted, discretionary power to allow us to exclude British nationals from the UK.” Cameron also told the House of Commons that there would be “legislation providing the police with a temporary power to seize a passport at the border, during which time they will be able to investigate the individual concerned.”

This will be accompanied by demands for airlines “to comply with our no-fly list arrangements, give us information on passenger lists and comply with our security screening requirements,” (although it is unclear what more the UK could demand in this respect) and it seems that control orders may be reintroduced – by the same government abolished them in favour of the supposedly less-restrictive Terrorism Prevention and Investigation Measures.

All this comes on top of the use of emergency legislation in July this year to introduce new blanket data retention powers in the UK, following the annulment of the EU Data Retention Directive by the European Court of Justice.

This swathe of new restrictive measures and the continuation of highly controversial “counter-radicalisation” programmes such as Prevent seem unlikely to improve relations between the authorities and those considered “at risk” of “radicalisation”, primarily young Muslim men (report). It also flies in the face of the 2010 “coalition agreement” which promised “to restore the rights of individuals in the face of encroaching state power, in keeping with Britain’s tradition of freedom and fairness.”

But, as David Cameron said following the murder of American photojournalist James Foley: “we’ll always look at new proposals for even tougher laws to deal with terrorism or extremism.” So much for principles.

Travel surveillance: EU-PNR

The UK has also been a staunch supporter of the proposed EU Directive on Passenger Name Record (PNR) data, which would mandate the mass surveillance of air travel. In April 2013, after the European Parliament’s Civil Liberties Committee voted against the proposal, Green MEP Jan Philipp Albrecht said it “[flew] in the face of EU principles on privacy and data protection”.

The Directive, if passed, would have provided an EU-wide legal basis for law enforcement authorities to obtain and analyse the personal data of all air passengers travelling into and within the EU.

During debate amongst Member States in the Council of the EU, the UK proposed extending the scope of the legislation to cover flights within the EU as well – a proposal that was subsequently accepted. There is also scope for future extension to rail and sea travel.

Member States were unhappy with the result of the Civil Liberties Committee’s vote, and have continued to call for the Parliament to overcome its objections and agree to the legislation. The rise of Islamic State has proved a useful basis for doing so, with EU-PNR advocates arguing that such a system would allow the easier detection and tracking of “foreign fighters”, i.e. EU citizens and residents travelling to fight in Iraq and Syria.

While such a system may allow easier tracking, it would be a significant addition to the numerous databases, tracking systems and law enforcement powers already in place. For example, many Member States already operate their own PNR systems (the European Commission has encouraged their establishment with generous funding), as well as their own Entry/Exit Systems (Member States are hoping to ensure law enforcement access to a proposed EU system that will store data on every non-EU national entering the bloc). How all these systems operate and interact in their entirety is beyond the grasp of most experts, let alone the average EU citizen.

Moreover, it is hard to see how the PNR Directive in particular can be considered as compatible with fundamental rights in light of the Court of Justice’s ruling on the Data Retention Directive, which found that the EU data retention regime “exceeded the limits imposed by compliance with the principle of proportionality,” because the retention of data was not “limited to what is strictly necessary”.

The first of six reasons given for the Directive’s invalidity was that the retention of data from all telephone and internet users’ data interfered “with the fundamental rights of practically the entire European population… without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime.”

The PNR Directive would cover all air passengers arriving in (and potentially travelling within) the EU – without differentiation, limitation or exception. This could later be extended to rail and sea travel. How can it be justifiable to introduce an EU-wide system for the surveillance of potentially all mass travel in order to try and detect a group that, according to official estimates from earlier this year, numbers somewhere in the low thousands?

Travel surveillance: the Schengen Information System

 As well as pushing for the introduction of the EU PNR Directive, Member States have also been working to expand information-sharing through the Schengen Information System, which is used by Schengen states to register and share information on people and objects wanted by the authorities.

In July this year the EU-Agency for Large-Scale IT Systems published the annual statistics on the content of the Schengen Information System (SIS) database for the period from April 2013 (when the second-generation SIS, or SIS II, came into use) to the end of December 2013.

The agency’s report showed that over 41,000 people were listed as requiring “discreet surveillance or specific checks” by law enforcement authorities, a type of alert mandated by Article 36 of the 2007 SIS II Decision. This was an increase of 2,150 on the number of Article 36 alerts contained in the SIS at the end of 2012.

In January this year the French delegation to the Council’s Terrorism Working Party announced that there had been “a significant increase” in the number of Article 36 alerts in the SIS II, due to an “improved tool and specific awareness campaign” that it had launched in the name of dealing with foreign fighters.

Action plans

 The French project to enhance use of the SIS was just one of 22 actions listed in a plan put forward by the EU’s Counter-Terrorism Coordinator, the European Commission and the European External Action Service in May 2013. The plan also proposed, amongst other things:

  • For Europol to increase its “knowledge of recruitment and facilitation networks, how foreign fighters’ travels are organised and financed”;
  • For Member States to “explore the possibility for Europol to extend its [web monitoring] activities to the monitoring and analysing of social media (Facebook, YouTube, Twitter, etc.)”;
  • For Frontex to “contribute to a planned handbook with ‘risk indicators’ for detecting foreign fighters”.

The general thrust of the proposals is for an increase in surveillance, information exchange (both within the EU and between EU institutions and agencies, EU Member States and ‘third countries’), and profiling, as the mention of “risk indicators” suggests. While this may go some way towards preventing individuals travelling to Syria or Iraq (or prosecuting them upon their return), it does not seem likely to do much to change the attitudes of those who may be tempted to go and fight for IS or other similar groups.

In this regard, however, the EU also has plans. The May 2013 document notes the need:

  • To highlight “how the EU is supporting the population in Syria in terms of development assistance and humanitarian aid”;
  • To discuss with Arab and other countries “the role that satellite TV and Internet play in the radicalisation process and how the countries concerned can address this”, and
  • For the EU and Member States “to draft specific lines to take on EU policy towards Syria to overcome as much as possible the perceived discrepancy between our support for the Syrian opposition and our efforts to prevent individuals from going to Syria”.

Countering “radicalisation”

 The EU has also taken a significant interest in countering “radicalisation”. A recently-published ‘Revised EU Strategy for Combating Radicalisation and Recruitment to Terrorism’ advocates a whole host of policies that Member States may choose to adopt in their own national anti-radicalisation strategies.

Perhaps the most invasive of the Commission’s recommendations – drawn up on the basis of input from Member States and members of the pan-EU Radicalisation Awareness Network – is that “effective prevention means involving non-governmental organisations, front line workers, security services and experts in the field,” and that training on radicalisation should “be expanded to other sectors, such as social services, healthcare and education.”

Similar efforts in the UK as part of the Prevent programme, which seems to have been the basis for much of the European Commission’s work, have led the organisation CAGE to describe it as creating “a cradle-to-grave police state” for targeted individuals.

The process by which counter-radicalisation programmes are drawn up and implemented (at least in the UK and EU) is deeply undemocratic. Law enforcement officials and radicalisation “specialists” agree on plans that are subsequently tweaked and approved by senior ministers, with no parliamentary input or scrutiny.

A similarly undemocratic process is currently playing out on the international stage, with the United Nations Security Council last week passing a Chapter VII Resolution, drawn up by the United States, to “compel countries to make it illegal for citizens to travel abroad, collect funds or facilitate the travel of other individuals abroad ‘for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts, or the providing or receiving of terrorist training’.”

This would require a whole swathe of new laws, to add to those already identified by the SECILE project: at EU level alone, at least 239 separate counter-terrorism measures have been passed since September 2001.

While a sense of urgency is understandable given the current situation, EU legislation and policy has provided state authorities with significant new powers since 2001. The vast majority of that legislation and policy has never been the subject of a substantive review.

In December 2010 the European Commission said that it would “launch a study to make a more detailed evaluation of the current policies and priorities.” This came in response to a call from the European Parliament for an in-depth, comprehensive review of all aspects of EU counter-terrorism policy. Such a review is still urgently required.

Here we go again?

The rise of Islamic State and the phenomenon of foreign terrorist fighters is leading both to the development of new legislation and policies, and calls for the renewal of proposals previously defeated in the name of protecting privacy, the rule of law and the presumption of innocence.

Politicians and state officials are no doubt sincere in their justified desire to want to put an end to Islamic State and other extremist groups. Yet they seem unable to recognise that the operations of western governments during the last 13 years of the ‘war on terror’ have played a key role in their rise to prominence. Foreign policy (rendition, torture, special forces operations, drone strikes) and domestic policy (secret trials, control orders, suspicion, infiltration, surveillance) have pushed many people towards the ideologies now being put into practice in Iraq and Syria.

Introducing yet more measures (many of them through undemocratic procedures) that undermine basic civil liberties and human rights hardly seems the way to address the situation – particularly if “our way of life” is supposed to be one characterised by democracy, the rule of law and freedom from unwarranted state intrusion.