Introduction
The dramatic increase of academic interest in counterterrorism powers in the period since September 11, 2001, in particular, has been much discussed and well documented.1 Journals such as this one have been at the forefront of debate on the use, effectiveness, and consequences of measures as disparate as counter-radicalisation initiatives,2 drone strikes,3 extraordinary rendition,4 detention without trial,5 sustained military campaigns, legal instruments, and beyond. Yet, while numerous attempts have been made to explore the effectiveness, compatibility, and legitimacy of such tools,6 the power of proscription or the (black)listing of terrorist organisationsâthe focus of this Special Issueâremains curiously neglected, having attracted comparatively little scholarly attention to date. This Issue presents an attempt to address this lacuna, and to offer the first sustained analysis of the workings and consequences of diverse proscription regimes around the world.
As the articles collected in this Special Issue demonstrate, there are at least four reasons why we might find ourselves surprised at the lack of scholarly attention afforded to proscription. First, this is a power that is employed extremely widelyâalthough, as we shall see, inconsistentlyâacross the globe. Most states in the international system, and a number of international governmental organisations (IGOs), maintain lists of banned terrorist groups. In the United States, for instance, the Secretary of State designates a list of Foreign Terrorist Organizations (FTOs); a list which contains 61 organizations at the time of writing this introduction.7 In the United Kingdom, it is the Home Secretary who has the power to proscribe an organisation believed to be engaged in terrorism (with Parliamentâs consent). Seventy-one organizations are on this list. 8 At the inter-state level, meanwhile, the European Union established its own âlist of persons, groups and entities involved in terrorist acts and subject to restrictive measuresâ9 following the events of September 11, 2001. This list currently hosts 13 persons, and 31 groups and entities.10 This similarity of instruments, yet diversity of outcomes, raises important strategic and political questions to which the articles in this Issue are addressed in relation to these lists and others maintained by, inter alia, Australia, Canada, Spain, Turkey, and Sri Lanka.
A second reason we might be surprised by this neglect relates to this powerâs considerable historical lineage. As this Issue demonstrates, efforts to ban identified terrorist groups are by no means limited to post-9/11 counterterrorism paradigms. Indeed, the outlawing of organisations deemed threatening to national security or order may be traced back several hundred years across multiple conflicts and insurgencies. These include in relation to pre-Christendom Rome, Britainâs anti-monarchy Yorkists11 and struggles with Irish Republicanism, ETA in Spain, as well asâmore recentlyâWestern state actions against groups such as Al Qaeda, Boko Haram, and Islamic State. Several of the articles in this Issue stress the importance of situating contemporary proscription regimes within specific national circumstances which pre-date the so-called âwar on terror,â making the power an important case for exploring the boundaries and evolution of counterterrorism frameworks that remain too often read through a presentist lens.
Third, the proscription of terrorist organizations has significant implications for political lifeâand therefore the lives of citizensâwithin and beyond liberal democratic states. Most obviously, legislating against activities such as the membership of, support for, or glorification of specific groups risks intruding upon liberal democratic freedoms, including those of expression, association, and speech.12 Such questions are not unique to proscription;13 indeed, metaphorical framings of counterterrorism as requiring some form of balance between liberty and security remain pervasive despite academic criticism.14 These questions are, however, particularly acute in this context given that proscription typically serves a preventive purposeâat times in combination with other ambitionsâwhich is directed toward crimes as yet uncommitted.15
Finally, powers of proscription also, we suggest, merit greater consideration given that their relevance and effectiveness in the struggle against terrorism has arguably yet to be demonstrated. Already, scholars16 have raised concerns that the outcomes of counterterrorism policies and programmes are too rarely, if at all, evaluated by governments, although others have suggested that it is possible to do precisely this.17 And, there are good reasons to question the effectiveness of proscription specifically in attenuating terrorist violence. As several contributors to this Issue observe, the banning or sanctioning of terrorist groups is often a symbolic rather than directly instrumental decision: one that may have policy ends some distance from counterterrorism aspirations. These supplementary ambitions may be important, or desirable, or they may not. But they do raise additional questions for policy and political evaluation in this context. Indeed, what might be even more striking here is that practitioners, too, are often reticent about the functional value of proscription, as attested by the former U.S. Director of National Intelligence, James R. Clapper, who was interviewed for this Issue:
For whatever reason it seemed as though our listing a group had an impact. People noticed and the rest of the world cared, but as far as impact on us in intelligence; it really didnât have any.18
Proscription in global perspective: Questions and themes
Broadly understood, powers of proscription refer to a series of legal instruments which permit a government or other authoritative actor to prohibit the presence of, or support for, an identified organisation within its jurisdiction. The act of proscribing an organisation in this way, it is often claimed by supporters of such powers, signals societyâs disavowal of a groupâs ideas and actions, at the same time as it suppresses a groupâs ability to promote or undertake violent extremist activities. Suppression typically entails the creation and implementation of a range of criminal offences, including criminalising membership of specified groups, prohibiting visible manifestations of support for listed groupsâsuch as the wearing of uniforms or the display of symbols, and criminalising attempts to solicit or provide financial support for such groups (amongst other offences).
Beyond these specific offencesâwhich vary from jurisdiction to jurisdiction as we shall see in the articles that followâproscription also serves a crucial broader purpose. That is, the designation of terrorist groups undergirds vast aspects of the Western worldâs counterterrorism frameworks. The formal designation of an organisation as terrorist, for instance, is a typical pre-requisite to the confiscation or freezing of that groupâs assets; or the prevention of its members from soliciting support; or the banning of an organisation running for political office, travelling across national borders, or using certain forms of transport. Moreover, the listing of organisations as terrorist is also key to the lack of significant domestic political criticism that follows potentially controversial counterterrorism actions, such as extra-judicial killings overseas.19 Proscription, in short, is a fulcrum of statesâ counterterrorism capabilities and ambitions.
Yet, because different states adopt their own idiosyncratic approaches to defining, enacting, and applying proscription regimes, the global edifice of âbanned organisationsâ is replete with tensions, incongruences, unintended consequences, perverse outcomes, and questionable effectiveness. In the first instance, as noted above, there is considerable variance globally around who is, and who is not, considered to be âterrorist.â This is the case even amongst formally allied countries with considerable records of cooperation around counterterrorism, intelligence, and beyond. Where the total number of groups on the U.S. list of Foreign Terrorist Organizations currently stands at 61,20 the UK has designated21 71 international terrorist organisations, and 14 further organisations in Northern Ireland under previous legislation. These figures compare with the 53 âlisted terrorist entitiesâ in Canada;22 and the 24 listed terrorist organizations in Australia.23 Indeed, only 16 groups are proscribed across all four of these countries. For critics, global counter-money laundering initiatives have been stymied precisely by a failure to adequately agree between states which groups do, and do not, fall within national and/or international proscription provisions.24 Perhaps of greater concern, however, is growing disquiet that some forms of proscription may be counter-productive, galvanising support for violent extremist groups in some states.
In this Issue we offer the first systematic attempt to compare, contrast, and evaluate the construction and consequences of proscription regimes from a range of significant case studies around the world. Taken collectively, the articles in this Issue pull attention to five key themes. First are a series of important historical questions around the emergence, continuation, and transformation of proscription powers, both globally and in relation to specific regimes. What strategic challenges or political contexts have given rise to the introduction and extension of these powers to new organizations?Or, conversely, what explains instances of reluctance to proscribe ostensibly worthy candidates? A second set of themes centres on pressing political questions around the impact of proscription upon seemingly established political settlements within liberal democratic states, in particular. Here, we delve into the powerâs potential for intrusion upon freedoms of speech and association, as well as the ability of citizens to engage in dissent and various forms of oppositional or symbolic political action. Third, this Issue attempts to evaluate the legal situation of national proscription regimes and their relationship with international counterterrorism initiatives, and, indeed, international law. Fourth are broadly sociological considerations of the ways in which diasporas and minority communities are affected by proscription mechanisms. These include the implications for communities who might be linked to overseas struggles against oppressive regimes, and, domestically, the ways in which proscription might contribute to stigmatisation and the creation of âsuspect communities.â25 Finally, the Issue also provides analysis of the effectiveness of proscription decisions in achieving their intended ambitions of diminishing or disrupting violent extremist activities and ideas.
As the ab...
