In the 12 years after 9/11, the EU introduced 239 counter-terrorist measures, 88 of which were legally binding. In the EU, as elsewhere, designing and implementing counter-terrorism carries with it risks for rights.
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.
This is an abstract from Professor de Londras’ seminar on EU rights and counter-terrorism as part of the OxHRH conflict and security seminar series.