When facing pressure to stop terrorism, European governments experiment with (and devote new resources to) new powers if they feel that the current status quo fails to prevent attacks. However, in an effort to react quickly and forcefully to the threat, individual Member States have gone beyond the EU measures and into uncharted legal territory. This Article argues that some of the methods that EU Member States are using in reaction to the security threat posed by the increased incidence of jihadi terrorist attacks within European borders skirt European due process protections without leading to any measurable increase in security. These measures place traditional criminal justice and intelligence collection responsibilities outside of the responsibility of the government concerned. Specifically, the use of temporary exclusion orders, citizenship stripping, and the outsourcing of traditional law enforcement functions to non-European states and private actors risks violating European human rights laws, alienating vulnerable populations, impacting social cohesion, and perpetuating a vicious cycle that reinforces some of the factors that cause European citizens to commit acts of jihadi terrorism to begin with.
This Article addresses the fundamental problems with an increased reliance on these measures. It uses a mixture of legislation, case law, real-world examples, and statistics to paint a picture of the state of the jihadi terrorist threat in Europe in 2017, and highlights a selection of the tools that the EU and its Member States currently have available to counter the threat. The Article goes on to argue that certain new measures being implemented by Member States to combat the terrorist threat should be replaced by measures that both adequately enable law enforcement and intelligence agencies to address the new jihadi terrorist threat but are also designed with respect for the principles of freedom of movement, subsidiarity, proportionality, and due process. These suggested new measures would more fully recognize the importance of social cohesion in effectively reducing jihadi terrorism in an efficient and politically feasible way.
Keywords: Terrorism, European Union, EU, United Kingdom, Belgium, France, Germany, Police, Counterterrorism
In January 2016, the United States (“US”) District Court for the Eastern District of New York sentenced 26-year-old Mahdi Hashi to nine years in prison for conspiring to provide material support to the terrorist organization Al-Shabaab. (1) Hashi was picked up by American agents in Somalia in 2012 and brought to New York to stand trial for his involvement with Al-Shabaab, a Somali-based designated Foreign Terrorist Organization.(2) This story is not uncommon. As of August 2017, sixty-seven individuals have been extradited to the US to stand trial for crimes related to international terrorism.(3) What is interesting about Hashi’s story (and what is becoming less unique) is that he was a dual British and Somali citizen at the time of his detention, and instead of being returned to the United Kingdom (“UK”) to stand trial for his alleged crimes, the UK revoked him of his nationality, which allowed the US to take on his case instead. (4) Separated from his family, denied access to the criminal justice system of the country in which he had resided since he was six years old, Hashi pled guilty to the charges after two and a half years of pre-trial detention.(5) Why was this able to happen? Because of a British law, enacted in 2002, allowing the British Home Office to strip dual nationals of their citizenship without a prior court order.(6)
The UK is not the only European Union (“EU”) Member State to have passed laws restricting or eliminating the rights of their own citizens or legal residents based on evidence or accusations that would not meet the requirements for a warrant under ordinary criminal law. Human rights and legal advocacy groups report that individuals (often Muslim or Arab) in Belgium, Germany, France, and the UK have been subjected to such government treatment, including temporary exclusion orders and citizenship stripping, which infringes on their fundamental rights as European citizens.(7)
At the same time, European governments face increasing pressure from their citizens to prevent terrorist attacks. The number of terrorist attacks resulting in fatalities in Western Europe jumped from five in 2013 to thirty in 2016; as of December 2016, 32% of EU citizens rated terrorism as the most important issue facing the EU.(8) One of the reasons for the existence of the EU is to ensure the free movement of individuals within the EU, as well as to provide for their safety and security. EU law recognizes the fight against terrorism and other serious crime in order to ensure public security as an objective of general interest, even as the maintenance of law and order and safeguarding national security remain the responsibilities of Member States.(9) One facet of national security is keeping populations safe from terrorism. This obligation stems from both the duty of a government to protect its citizens, as well as international treaty obligations to criminalize and prosecute specific categories of terrorist offenses.(10)
Yurechko, Christine, Outsourced: The European Union's Reliance on External Actors in the Fight Against Jihadi Terrorism (November 27, 2018). Columbia Journal of European Law, Vol. 24, No. 3, 2018. Available at SSRN: https://ssrn.com/abstract=3293709