Some time ago I was invited to act as a country expert in the IALS/CECL led project on the implementation of the EU Victims’ Rights Directive in Ireland. Together with Rumyana Grozdanova, a PhD student in Durham, I undertook both desk research and a series of interviews with key stakeholders in the Irish criminal justice system in the summer of 2013, which resulted in the preparation of a report on the challenges for implementation in Ireland. The report is available here.
I am delighted to see that Ben Saul (ed), Research Handbook on Terrorism and International Law (Edward Elgar) has now been published. This impressive collection covers the widest imaginable range of topics within its broad scope, and includes a chapter by me on counter-terrorist detention and human rights law. A pre-print of the chapter is available on SSRN, and the abstract is below.
In this chapter I consider the compatibility of counter-terrorist detention with international human rights law from the starting point that what is protected in international law is not a right to be free from detention per se but rather a right to be free from the arbitrary deprivation of one’s liberty. This is clearly rooted in international human rights law, which is the main focus of this chapter (acknowledging that it interacts with international humanitarian law in situations of armed conflict).
The chapter demonstrates that counter-terrorist detention can be compatible with the standards of international human rights law as they have been interpreted and applied in the past decade, but that in the process of such interpretation and application those standards have at times been diluted to a worrying extent.
In June I gave a seminar at the Oxford Human Rights Hub entitled ‘Accounting for Human Rights in EU Counter-Terrorism’. The abstract is reproduced below (original), and a recording of the seminar is available on the OxHRH website here.
While a baseline of security is required in order to enjoy rights per se, ‘countering terrorism’ often infringes on the rights of suspected terrorists and, more broadly, undermines social cohesion and the rule of law. For that reason, it is important that we pay proper attention to rights in the making, implementation and review of counter-terrorism laws and policies.
In spite of this, the pre-legislative process in EUCT is problematic from a rights-based perspective, even where the formal ex ante impact assessment process is employed. This process, undertaken by the Commission, engages with stakeholders to predict the environmental, economic and social impacts of proposed measures and provide an evidence-base for political decision-making.
Social impacts include impacts on rights. Understandably, however, the qualitative analysis of rights impact is not easily assessed alongside the quantitative analysis of economic impact, with more ‘concrete’ data often appearing to receive more analytical weight. Thus, it is not unusual when reading these assessments to notice that the analysis of rights is ‘light touch’.
This might be expected given that forward-looking analyses are speculative, especially in relation to values that are difficult to quantify. But it points towards a need to afford more weight to rights in these assessments, especially as they can also shape later analyses of the ‘effectiveness’ of measures where such ex post assessment takes place.
We can only ascertain a measure’s actual impact once it is operational. Even at that point it is important to remember that the impact of EUCT will not be uniform across every member state or social group: the vast majority of implementation is national and there can be significant variations across the member states.
In spite of this, formal ex post facto review of EU counter-terrorism is remarkably infrequent, even where the measure in question expressly requires it. Of the 88 legally binding minding measures introduced since 2001, 68 required review, only 33 of which have so far taken place on time (10 have not reached their time limit).
The lack of effective and regular ex post facto review of EUCT is highly problematic from a rights-based perspective. The necessity and proportionality of any measure may vary according to changing security and social circumstances and thus requires regular review. Without this, we must rely on the hope that a court will have the opportunity to judicially review a measure to assess its legality, which assessment is only part of a comprehensive rights-related understanding of the impact of counter-terrorist measures.
The EU is a relative newcomer to counter-terrorism, and although it takes some account of rights, this is not sufficient to ensure EUCT is as rights-compliant as possible. The EU does have the potential to account more fully for rights in its counter-terrorism, in particular by enhancing participation in the life cycle of counter-terrorist law- and policy-making and instigating regular, participatory and evaluative review.
Since April 2014 data retention has been a high-profile topic in counter-terrorism. This is because the decision by the CJEU to strike down the Data Retention Directive (summary) brought to the fore a tension between (some) states’ desire for wide-reaching data retention powers, and concerns about the implications of such an approach for privacy and other civil liberties. In the meantime some non-EU states–notably the US and Australia–have been exploring ways of having telecommunications companies or other entities retain ‘metadata’ that the state could then access for investigatory reasons in particular situations. Data retention was one of the early ‘desk’ case studies in the SECILE project, and the report is available here. Since April, I have also written a number of blog commentaries on data retention for The Conversation and Oxford Human Rights Hub:
Will Australia Learn from the EU’s Mistakes on Data Retention?
Theresa May says the UK is not a surveillance state, but her proposed law might create one
Europe got phone spying wrong, now Obama should take heed
Data retention means you are on the record, like it or not
As the surge for data retention powers seems to continue, and to be presented as a core counter-terrorism power, it is apposite to bear in mind the Court of Justice’s warning on metadata. The Court note that such data retention constitutes a prima facie interference with fundamental rights, not least because so-called ‘metadata’ “may allow very precise conclusions to be drawn concerning…private lives”. The question facing policy makers now is how to limit collection of and access to data effectively in order to ensure that countering terrorism does not gives states the power to intrude on the privacy of all.
Professor Fiona de Londras 