By Professor Arturo J. Carrillo, George Washington University, Law School.
GW Law School Public Law and Legal Theory Paper No. 2020-50.
GW Legal Studies Research Paper No. 2020-50.
Abstract How far can law go to prevent violent acts of terrorism from happening? This Article examines the response by a number of Western democratic States to that question. These States have enacted special legal mechanisms that can be called ‘anti-terrorist pre-crime measures.’ Anti-terrorist pre-crime measures, or ATPCMs for short, are conditions or restrictions imposed on a person by law enforcement authorities as the outcome of a legal process set up to identify and neutralize potential sources of terrorist activity before it occurs. The issue is whether the ATCPMs regimes in existence today comply with the corresponding States’ international obligations under human rights law because, by virtue of their preventative mission, these regimes operate outside, or on the fringes of, the ordinary criminal justice systems in the democratic societies that deploy them. Despite the operation of ATPCMs regimes in robust democracies like the United Kingdom, Canada, Australia and, potentially, the United States, they surprisingly have not been the subject of recent international scrutiny or systematic comparative study. This Article fills both gaps. On the one hand, it documents how the national legal frameworks in the aforementioned countries design and deploy anti-terrorist pre-crime measures, as well as how those measures function in practice. On the other, the Article canvasses the relevant international legal framework to identify not just which human rights are implicated by the operation of ATPCMs regimes, but also how those rights are impacted by it. The Article then applies this normative framework to the domestic counter-terrorism initiatives studied to ascertain how, and the extent to which, the respective ATPCMs regimes can be said to comply with human rights law. Significant insights can be derived from this exercise for other countries like the United States that authorize or contemplate implementing ATPCMs.
Keywords: Counter-terrorism, human rights, international law.
In the futuristic 2002 movie Minority Report, Tom Cruise plays the chief of a specialized police unit charged with arresting individuals believed to be on the verge of committing murder.(1) This “Pre-Crime” Unit acts on specific foreknowledge provided by a group of psychics that is based on foreboding visions of a crime yet to be carried out but, allegedly, certain to happen.(2) In the movie, a key challenge to the “Pre-Crime” program grows out of the doubts expressed by critics (well-founded, as it turns out) regarding the effectiveness of the safeguards in place to protect the due process rights of the unfortunate perpetrators-to-be who, once detained, are subject to severe punishment.(3) Without giving too much away, the film, though a work of science fiction, raises important questions about how far the long arm of the law should reach to combat violent crime.
In our time, nowhere is this more evident than in the sphere of counterterrorism. In the long wake of the terrorist attacks of September 11, 2001, governments around the world have, collectively and unilaterally, spared no effort to combat the common enemy of global terrorism. The United Nations, to name just one multilateral example, has seen such a proliferation of counter-terrorism mechanisms and initiatives that human rights experts have begun to worry about the United Nation’s ability to harmonize and implement the ever-growing corpus of standards, rules and practices emanating from this transnational bureaucracy.(4) Similarly, since 2001, governments around the world have adopted or updated domestic antiterrorist legislation in order to combat this scourge more effectively. (5) All these efforts reflect, to some extent, the same concern addressed by the fantasy of future-crime prevention in Minority Report: how far can and should the law go to combat the threat of lethal violent extremism?
More to the point for purposes of this Article, the central question is: How far can and should the law go to prevent violent acts of terrorism from occurring in the first place? There is no question that under international law States “have . . . a duty to protect individuals under their jurisdiction from terrorist attacks.”(6) Indeed, the United Nations has longed recognized that prevention is a key tenet in the struggle against violent extremism and the human rights abuses it propagates.(7) At the same time, however, “States must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular international human rights, refugee and humanitarian law.”(8) A country that fails to live up to its obligations in either respect is one which risks losing legitimacy in the eyes not just of other countries, but of its own people as well. In particular, the governments of democratic rule-of-law countries walk a tightrope when enacting counter-terrorism legislation that impacts the rights of individuals.
A handful of democratic Western countries have responded to the conundrum of how to prevent violent acts of terrorism while remaining in compliance with the rule of law by creating special legal regimes that deploy what I will call, for lack of a better term, anti-terrorist pre-crime measures. Antiterrorist pre-crime measures (ATPCMs) are conditions or restrictions imposed on a person by law enforcement authorities as the outcome of a legal process set up to identify and neutralize potential sources of terrorist activity before it occurs. The measures themselves are intended to prevent, or at least reduce the likelihood of, the person affected from engaging in, or contributing to, violent acts of terrorism in the future. The distinguishing feature of the ATPCMs regimes examined in this Article is that, by virtue of their preventive mission, they operate outside or on the fringes of the ordinary criminal justice systems in the Western democratic countries that have them. This makes them controversial.
Despite the ongoing use of ATPCMs regimes in consolidated democracies like the United Kingdom, Canada, Australia and, potentially, the United States, they surprisingly have not yet been the subject of much international scrutiny or comparative study.(9) And, although domestic critics of said regimes have repeatedly raised human rights concerns, a comprehensive analysis of existing ATPCMs procedures under international human rights law has to date been lacking. This Article seeks to fill both gaps. On the one hand, its goal is to document how national legal frameworks engage anti-terrorist pre-crime measures, as well as how these measures operate in practice. This should help to raise awareness of these frameworks and facilitate their comparative analysis. On the other hand, the Article canvasses the relevant international legal framework and applies it to the domestic counter-terrorism regimes under study to initiate a broader dialogue around when, and the extent to which, said regimes can be said to comply with human rights law.
This Article proceeds in two Parts aside from this Introduction. Part II gives a detailed account of three relatively robust ATPCMs regimes active today, namely, those in the United Kingdom, Canada and Australia. Each country is covered in its own section (A-C). These country case studies illustrate how the respective legal regimes seek to balance the deployment of ATPCMs with their constitutional and international human rights obligations. Part III then examines the relevant international law framework governing human rights in the countries studied; it illustrates how, regardless of the approach taken, ATPCMs regimes seriously threaten, if not undermine, the exercise of basic human rights. Part III then analyzes the extent to which the regimes studied in Part II can be considered human rights compliant, taking into account a series of best practices and key factors prescribed by international law. This comparative exercise leads to significant overarching insights. I conclude with brief observations on how those insights can inform the United States’ (or any other country’s) obligations under international law in light of its own ATPCMs-inspired legislation, including the Patriot Act.
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Carrillo, Arturo J, The Price of Prevention: Anti-Terrorism Pre-Crime Measures and International Human Rights Law (August 1, 2020). Virginia Journal of International Law, Vol. 60, No. 3, 2020, GWU Legal Studies Research Paper No. 2020-50, GWU Law School Public Law Research Paper No. 2020-50, Available at SSRN: https://ssrn.com/abstract=3671065