The Impact, Legitimacy and Effectiveness of EU Counter-Terrorism

Fiona de Londras, Josephine Doody

• Publisher: Routledge
• Year: 2015
• Print ISBN: 9781138854130
• eBook ISBN: 9781317524649
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Financial Law
• Index: Politics & International Relations

Counter-terrorism law and policy has been prominent and widespread in the years following 9/11, touching on many areas of everyday life from policing and border control to financial transactions and internet governance. The European Union is a major actor in contemporary counter-terrorism, including through its development of counter-terrorism laws for application within the Union. This book undertakes a multi-disciplinary and empirically informed analysis of the impact, legitimacy and effectiveness of EU counter-terrorism.

Taking into account legal, societal, operational and democratic perspectives, this collection connects theoretical and practical perspectives to produce an interdisciplinary and multi-stakeholder study of how we might measure and understand the impact, legitimacy and effectiveness of EU counter-terrorism. Bringing together a select group of experts in the field, particular emphasis is placed on understanding the practical experience of implementing and assessing these measures gathered from and with end users, including law-makers, policy-makers, security services, industry partners and civil society.

This edited collection will be of great relevance to scholars and policy makers with an interest in counter-terrorism law, EU law and security studies.

1 Introduction

The impact, legitimacy and effectiveness of EU counter-terrorism

Fiona de Londras and Josephine Doody

DOI: 10.4324/9781315722320-1

More than a decade after the attacks of 11 September 2001, we have entered a security age that is post ‘war on terror’ but nonetheless heavily concerned with the national and transnational threats posed by terrorism and terroristic violence. In this world, counter-terrorism laws and policies are prominent and widespread, touching on many areas of everyday life from policing to border control, to financial transactions and internet governance. ¹ The European Union (EU) plays a significant role in contemporary counter-terrorism through its development of counter-terrorism laws for application within the Union, as well as in its capacity as an international security actor. While there are some studies on select EU counter-terrorism laws and policies, ² a comprehensive, multi-disciplinary and empirically informed analysis of the impact, legitimacy and effectiveness of EU counter-terrorism within the Union itself is absent from the literature This collection fills that gap.

¹ See for example E. Guild and F. Geyer (Eds.), Security versus justice? Police and judicial cooperation in the European Union (Ashgate, 2008); A. Baldaccini and E. Guild, Terrorism and the foreigner: a decade of tension around the rule of law in Europe (Brill Nijhoff, 2007); C. Eckes, EU Counter-terrorist policies and due process: the case of individual sanctions (Oxford University Press, 2009); F. Davis, N. McGarrity and G. Williams (Eds.), Surveillance, counter-terrorism and comparative constitutionalism (Routledge, 2014). ² See for example C. Murphy, EU counter-terrorism law: pre-emption and the rule of law (Hart, 2012); R. Deibert, J. Palfrey, R. Rohozinski and J. Zittrain (Eds.), Access controlled: the shaping of power, rights and rule in cyberspace (MIT, 2010).

This book presents some findings from, but also goes beyond, a major FP7-funded study entitled SECILE (Securing Europe through Counter-Terrorism_ Impact, Legitimacy and Effectiveness). ³ This research was undertaken by a consortium of Durham University, King’s College London, the Supreme Court of Latvia, the Centre for Irish and European Studies, State-watch, the National Maritime College of Ireland and the Peace Research Institute Oslo in 2013–14. Fundamentally, this study was concerned with understanding how we can ask – and how we can properly answer – three difficult questions about counter-terrorism in the EU context: 1. What are, and how can we assess, the impacts of EU counter-terrorism? 2. How can we assess whether or not counter-terrorist measures introduced by the European Union are legitimate? 3. How can we assess whether or not EU counter-terrorist measures are effective? In exploring the answers to these questions, the study also considered what the concepts of impact, legitimacy and effectiveness might be said to mean in the context of EU counter-terrorism.

³ Full details are available online at www.secile.eu

Taking into account legal, societal, operational and democratic perspectives, this collection connects theoretical and practical approaches to produce an interdisciplinary and multi-stakeholder understanding of how we might understand and measure the impact, legitimacy and effectiveness of EU counter-terrorism. This is done through the use of both inter-disciplinary desk research and the presentation of results from concentrated engagement with practitioners, policy-makers and civil society undertaken as part of SECILE. Through this combination of theoretical and empirically informed work, we aim to bridge gaps in understanding between theoretical perspectives on the one hand, and operational and practical views on the other.

Although counter-terrorism law and policy is an active field of research across disciplines and jurisdictions, ⁴ there is a need to advance the state of knowledge in order to create a deeper, broader and more practicable body of work. This book contributes to that process. The state of knowledge as it currently stands is often defined by discipline, jurisdiction or measure. Thus, while there is a large amount of work on the concepts of legitimacy, impact and effectiveness in law, sociology and democratic theory, there is a dearth of work on these concepts as understood in a multi- and interdisciplinary manner, where the insights from diverse disciplines are synthesized rather than merely presented alongside one another. Bearing in mind the existing literature, it is appropriate that a comprehensive, multi-level and multi-disciplinary understanding of the legitimacy, impact and effectiveness of EU counter-terrorism should be developed. The aim of this book is to develop such an understanding, taking into account multiple operative, theoretical, doctrinal and practical perspectives and empirical evidence as to the impact, legitimacy and effectiveness of EU counter-terrorism measures to date. Furthermore, while there is advanced inter-disciplinary research on particular counter-terrorist measures, ⁵ there is less research on counter-terrorist law and policy seen as a general and comprehensive phenomenon, particularly within the European Union. In addition, much of the research produced is academically driven and focuses entirely or substantively on advancing the theoretical and normative understandings of legitimacy, effectiveness and impact to the detriment of a practical and operable outlook. This book transcends these fragmentations by producing insights that are both normatively innovative and of practical utility. Ultimately, it is intended to present not only sophisticated and rigorous understandings of these concepts, but also workable and functioning tools through which these normative advances can be translated into practice by law- and policy-makers at the European level. By identifying best practice in the incorporation of human rights concerns in designing and implementing European security measures, the insights presented in this collection can help to ensure that future measures are not in contravention of human rights standards.

⁴ Counter-terrorism is examined across a range of disciplines including, for example, criminology, mathematics and politics: M. Deflem, Terrorism and counter-terrorism_ criminological perspectives (JAI Press Inc., 2004); V.S. Subrahmanian, Handbook of computational approaches to counterterrorism (Springerlink, 2013); L.K. Donohue, The cost of counterterrorism_ power, politics and liberty (Cambridge University Press, 2008). ⁵ N. Keijzer and E. Van Sliedregt, The European Arrest Warrant in Practice (TMC Asser Press, 2009).

The focus of this book is EU, rather than national, counter-terrorism. This reflects both the particular nature of EU counter-terrorism and the relative lack of critical analysis of how EU counter-terrorism law and policy are made, applied, and reviewed. As a supranational body, the EU inevitably works in a somewhat different way to national law- and policy-making systems, not least as it may be unable to move quite as quickly as national systems can to introduce legally binding counter-terrorist measures in the wake of a particular attack. One can hardly imagine, for example, the passage of a new Directive in less than a week, whereas notorious and repressive national measures have been introduced in just such a timescale after terrorist attacks. ⁶ Thus, counter-terrorism by a supranational institution such as the EU, with its own particular constitutional and institutional arrangements, raises particular questions that require attention from scholars and civil society. The decision to focus on the EU alone is also motivated by the extraordinary growth of counter-terrorism law and policy in the Union since 2001. From a Union with essentially no counter-terrorism law in August 2001, the EU has developed a vast infrastructure of institutions, laws and policies concerned with countering terrorism. ⁷ Thus, given its relatively new nature as well as its rapid growth, the EU’s system of counter-terrorism requires scholarly attention, not least as we enter into new phases of EU involvement in international security, including countering the threat posed from ISIS (the ‘Islamic State of Iraq and the Levant’) and developing Union-wide responses to the phenomenon of ‘foreign terrorist fighters’.

⁶ For example, the UK’s Prevention of Terrorism Act 1974 was introduced in less than a week after the Birmingham bombings. ⁷ B. Hayes and C. Jones, Catalogue of EU counter-terrorism measures adopted since 11 September 2001 (SECILE Consortium, 2013).

Although the contributions to this collection focus on the EU, the insights presented have relevance beyond Europe for a number of reasons. These include the globalized nature of terrorist threats and security solutions and the development of legislative imperatives at UN level (recently reemphasized by the passage of Security Council Resolution 2178 on foreign terrorist fighters), and the global application of new security technologies. Thus, this book presents Europe as a security innovator in theoretical and operational terms. This is of particular significance as responses to terroristic threats are increasingly undertaken on a regionalized basis such as, for example, regional responses to Boko Haram in Sub-Saharan Africa. ⁸

⁸ European Parliament, Resolution on Nigeria – recent attacks by Boko Haram, 2014/2729 (RSP). The EU imposed sanctions on Boko Haram including an arms embargo, asset freeze and travel ban in June 2014.

The book is organized into three parts, which attempt to identify ways to ask key questions and to understand the relationship between the three concepts that can be applied in the real world when policy-makers are making and reviewing counter-terrorist measures. Part I establishes the doctrinal and theoretical framework by cataloguing existing measures and reviewing the institutional framework in place within Europe. Part II advances various disciplinary understandings of the key concepts by drawing on legal, societal and democratic approaches. Part III complements this with a fresh perspective from operational end-users and civil society across three case studies. Broadly speaking, impact relates to the effect or consequence a counter-terrorist measure has. It can be positive or negative, or it can be both simultaneously when considered across multiple referents. It is subject to change over time, depending on the context (periods of de jure emergency or normalcy, for example). Effectiveness relates broadly to the extent to which a measure achieves its intended outcomes. Measuring or assessing effectiveness from societal, legal and democratic perspectives poses particular challenges because of information deficits and/or monopolization, a failure to take second order effects into account, the conflation of compliance with effectiveness within official monitoring mechanisms, and institutional limitations. The third concept, legitimacy, is a nebulous term that can be said to comprise numerous different strands, including input legitimacy, process legitimacy, output legitimacy, outcome legitimacy, effective legitimacy, descriptive legitimacy and normative legitimacy. It is closely linked with effectiveness within the counter-terrorism context as measures that are deemed to be effective seem to enjoy enhanced legitimacy.

Part I EU counter-terrorism_ its scope and institutions

In Chapter 2, Hayes and Jones base their findings on the first concerted attempt to catalogue all relevant EU counter-terrorism measures (CTMs) adopted since 11 September 2001 (neither EU institutions nor external evaluators have produced a comprehensive repository). The stock-take identified a surprisingly large body of counter-terrorism legislation: 238 specific EU measures, of which 88 – or 36 per cent – are legally binding (or ‘hard law’) in the Member States, meaning that they have direct effect or require transposition by the Member States in the form of new national laws or practices. Further research identified three noteworthy trends that challenge conventional wisdom about the impact on EU Treaty obligations and the values and principles therein. First, transposition to domestic law without delay took place in only 2 per cent of cases. Not only were Member States frequently slow to implement EU CTMs, but in many cases they did not implement them at all until faced with legal action by the European Commission. ⁹ Second, the failings on the part of the Member States with regard to implementation of EU CTMs were compounded by a frequent failure on the part of the EU institutions to include provisions for review in the legislation itself. ¹⁰ These problems were exacerbated by systematic failures to conduct the reviews that were mandated, and by subsequent failures to make the findings of those reviews that did take place available and accessible to the public. ¹¹ Third, despite the relatively wide range of consultative, legislative and review procedures at their disposal, the EU institutions have, at best, underutilized these resources and, at worst, applied them in a manner that ignores crucial issues of civil liberties and human rights, necessity and proportionality, and accountability and democratic control. All of this makes it extremely difficult for citizens, and even for specialist researchers, to understand what EU counter-terrorism policies exist, where they came from, how they relate to one another, what they seek to achieve, whether they have been properly and uniformly implemented, whether they are effective in achieving their aims, or whether there are other, unintended consequences. In this context, the prospects for addressing the democratic deficit long associated with EU decision-making – which is widely viewed as particularly acute in the area of security and counter-terrorism – appear remarkably constrained. The authors call for fundamental reforms to existing agenda-setting, decision-making and review processes.

⁹ Parliament and Council Directive 2001/97/EC amending Council Directive 91/308/EEC on prevention of the use of the financial system for the purpose of money laundering – Commission [second anti-money laundering Directive]; Parliament and Council Directive 2002/58/EC concerning the protection of personal data and the protection of privacy in the electronic communications sector [the ‘e-Privacy Directive’]; Council Directive 2004/80/EC relating to compensation to crime victims; Council Directive 2004/82/EC on the obligation of carrier to communicate passenger data [the ‘API Directive’]; Parliament and Council Directive 2005/60/EC on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing [Third anti-money laundering Directive]; Parliament and Council Directive 2005/65/EC on enhancing port security; Parliament and Council Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC; Parliament and Council Directive 2007/64/EC on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC; Commission Directive 2008/43/EC setting up, pursuant to Council Directive 93/15/EC, a system for the identification and traceability of explosives for civil uses; Council Directive 2008/114/EC on the identification and designation of European critical infrastructures and the assessment of the need to improve their protection; Directive 2009/16/EC on port State control (Recast). ¹⁰ B. Hayes and C. Jones, Report on how the EU assesses the impact, legitimacy and effectiveness of its counter-terrorism laws (SECILE Consortium, 2013). ¹¹ Ibid.

Building on the legal framework outlined by Hayes and Jones, Doody presents a comprehensive account of the current EU counter-terrorism institutional framework in Chapter 3. She identifies the key actors and their roles in the process of securing Europe. Other works address the issue but, in the main, presuppose a pre-existing knowledge of the institutional labyrinth that is the EU. ¹² This chapter adopts a descriptive approach. It asks a number of questions: 1. Who proposes EU counter-terrorism measures? 2. Who adopts them? 3. Who makes the decisions regarding legislation? 4. What groups contribute to this decision-making process? 5. Who oversees the implementation of the legislation? In this way it attempts to penetrate the institutional complexity that is the EU security architecture and provide an accessible overview of the existing actors and their roles. Third, it reflects upon the complexity identified by other authors and asks whether this situation has improved over time. Part I gives the reader a firm introduction to the current counter-ter...

Table of contents

• Cover Page
• Halftitle Page
• Series Page
• Title Page
• Copyright Page
• Table Of Contents
• Notes on contributors
• 1 Introduction: the impact, legitimacy and effectiveness of EU counter-terrorism
• PART I EU counter-terrorism: its scope and institutions
• PART II Disciplinary perspectives on EU counter-terrorism
• PART III Practical perspectives on EU counter-terrorism
• Index