Balancing Counter-terrorism, Human Rights and the Rule of Law

On 16 June, The Hague Institute and Doughty Street International, with the generous support of the Embassy of Austria in The Netherlands, hosted a high-level panel discussion entitled “Can Counter-terrorism Efforts Become Truly Effective Without Sacrificing Human Rights and the Rule of Law?”.

Steven Powles of Doughty Street Chambers opened the discussion by reiterating the timeliness of the discussion since terrorism has become a global problem that required a global solution. Delving into the statistics of global terrorism, Powles reminded the audience that the majority of deaths from terrorist incidents occurred in just 5 countries: Iraq, Pakistan, Afghanistan, India and Nigeria. Countries in the West suffered far less in comparison. Powles pointed out that the International Criminal Court exercised jurisdiction over genocide, war crimes and crimes against humanity, but not over the crime of terrorism which still had to be defined at the international level, mainly because of disagreement over the definition. He referred to the Special Tribunal for Lebanon which proved that international courts could dispense justice for the most serious of terrorist crimes.

Dr. Lyal S. Sunga, Head of the Rule of Law Program and moderator of the discussion, highlighted the changing nature of terrorist organizations. While terrorism itself is nothing new, its calculated focus on instilling fear and disrupting societies has grown substantially because certain organized groups, such as Islamic State and Boko Haram have managed to control territory, extract taxes, extortion and oil revenue, organize themselves, spread propaganda, attract fresh recruits, and sustain themselves effectively. Recent news reports indicating that terrorists were making every effort to obtain nuclear and chemical materials that could be used for a dirty bomb, raised the stakes further.

Tim Moloney QC, of Doughty Street Chambers, explored the interface between counter-terrorism efforts and human rights in the UK over the past 15 years. The UK has a history of grappling with human rights issues when dealing with terrorism, particularly in Northern Ireland. In recent years, a number of new issues have arisen. Moloney focused in particular on the admissibility of evidence from torture, highlighting cases in which extradition to countries where suspects are to be tried on the basis of evidence that might have been obtained through illegal means, such as torture. He explained that in a number of cases, the UK was prevented from deporting individuals back to countries where they faced a serious risk of torture because of its European Convention on Human Rights obligations. Moloney also discussed the impact of control orders that limited suspects’ abilities to access the internet, travel or contact their families. Moloney concluded that despite efforts to balance counter-terrorism measures and human rights under the ECHR, serious issues still have to be resolved.

Dr. Edwina Thompson, Director of Beechwood International, spoke about international efforts to stem the flow of financing to terrorist organizations. After 9/11, US President George W. Bush indicated that informal money men stood at the center of the global terror network. Efforts to combat terrorism after 9/11 created many misconceptions of this category of financial actor, causing unintended side effects. Dr. Thompson argued that ethnic profiling of people who wanted to use bank services for entirely legitimate reasons restricted their access to US markets and forced money to flow from formal to informal systems. As a result, it was more difficult to trace “dirty” money and to disentangle illicit financial flows from legitimate ones. Furthermore, insufficient attention had been paid to those most adversely affected by these measures: residents of rural areas in conflict-torn states such as Syria, where no banking was available. Restrictions on financial flows also restricted the operation of NGOs and aid organizations on the ground as well as remittances into the country.

In the same vein, Dr. Bibi van Ginkel, Senior Research Fellow at Clingendael and the International Center for Counter-Terrorism, noted that blunt measures to limit financing and power of terrorists were ineffective. Van Ginkel spoke about recent research conducted by the ICCT on foreign terrorist fighters which estimated that between 3000 and 4200 fighters from the EU were in Syria. Their return to Europe inevitably risked that they could perpetrate acts of terrorism in Europe, persuade others into terrorism, and themselves suffer from trauma. EU member states have adopted various measures, from the administrative – revoking citizenship – to preventive. Van Ginkel also referred to research conducted by the ICCT on the role of military forces in the investigation and prosecution of terrorists.

Questions from the audience centered around the technicalities of dealing with militaries, how financial counter-terrorism measures affected civil society organizations, whether the presumption of innocence was under threat in terrorism trials, and governments could be convinced to maintain human rights standards while strengthening security.

Listen to the full discussion below.

Further Reading