Publication: Exploring Counterterrorism Effectiveness and Human Rights Law

Abstract:

The continuing expansion of counterterrorism has had a significant impact on human rights. However, whether such measures achieve their goals is often unclear, and their design is rarely empirically informed. In turn, counterterrorism effectiveness has failed to secure its place in the discussion of justifiability of rights’ limitations for national security purposes. This paper aims to bridge this gap and stimulate discussion on the effectiveness of counterterrorism measures among the academic, human rights, and policy-making communities.

There is a wide-ranging array of counterterrorism practices adopted in Europe. One common feature they often exhibit is the asymmetry between the certainty of their impact on rights and the uncertainty of the security gains they produce. While some government-mandated review mechanisms exist, their engagement with matters of effectiveness is often limited. Comprehensive and high-quality evaluations are rare, hindering a thorough assessment of measures’ effectiveness and impact. This demonstrates a puzzling gap between governments’ willingness to embrace counterterrorism and their efforts to scrutinise and disclose such measures’ results.

Within the field of social sciences, research on counterterrorism effectiveness remains underdeveloped compared to the substantial scholarship produced annually on radicalisation, violent extremism, and terrorism. Challenges in evaluating counterterrorism effectiveness are multifaceted, including definitional uncertainties, methodological issues, and conceptual ambiguities within the domains of counterterrorism and radicalisation. The lack of a universally accepted definition of ‘effectiveness’ related to counterterrorism hampers clear operationalization and mutual understanding among stakeholders. Ambiguities surrounding concepts like ‘radicalisation’ and ‘terrorism’ further complicate evaluations. Current research predominantly emphasizes quantifiable outcomes, such as the reduction of terrorist activity, yet often overlooks the broader implications of
counterterrorism efforts, which include psychological effects and impacts on human rights. Addressing these gaps necessitates further research and theoretical innovation within the sphere of counterterrorism effectiveness.

Building on the recognised need for further exploration and theoretical advancement in counterterrorism effectiveness, our analysis illuminates certain areas necessitating additional research. Among these areas is the under-explored domain of psychological effects, which may be both deliberate, such as cultivating a sense of security, and inadvertent, including the incitement of fear within specific communities. Despite the contentious nature of these effects, it remains uncertain whether and how they should be integrated into evaluations of effectiveness. Further, there is a call for expanding the breadth of decision-making models to encapsulate not only ‘effectiveness’ in its strictest sense but also factors such as societal impacts, implications for human rights, and interactions with other policies. Our proposal for a standardised, multifaceted decision-making model strives to foster a cohesive understanding of effectiveness among various stakeholders. Lastly, we advocate for a shift in data collection and effectiveness measurement techniques, suggesting a departure from purely quantitative metrics towards adopting qualitative
and innovative methods.

One key question addressed in this paper is the role that effectiveness of counterterrorism measures can play in the analysis of such measures’ justifiability in restricting the exercise of ‘limitable’ rights under human rights law. A concept central to such analysis is the ‘proportionality test’ – a doctrinal construction that consists of several sequential questions that is used to assess the justifiability of rights’ restrictions. Although typically downplayed in the academic literature, it is the ‘suitability’ or ‘rational connection’ test that can be beneficial in addressing the effectiveness of national security measures. To demonstrate this, the paper draws on the judicial reasoning by the UK Supreme Court in Bank Mellat as well as the engagement of the Israeli Supreme Court with the practice of house demolitions.

The paper then discusses the relevant case law and the approach of the European Court of Human Rights towards engaging with effectiveness of rights’ limiting measures in national security contexts. The cases surveyed demonstrate the dynamics in the Court’s reasonings created by claims about and evidence of effectiveness of rights’ limiting measures. The decisions display a variety of approaches indicating the instability in the Court’s accounting for the effectiveness of such measures, with their capacity to achieve the aims being neither central nor foreign to the Court’s engagement with them. In addressing the factors contributing to such position of effectiveness in Court’s adjudicatory practices, the paper highlights the possible inadequacy of the Court’s approach towards the proportionality test it adopts. Indeed, in lacking a coherent ‘rational connection’
subtest, the Court’s approach is not capable of systematically engaging with the question of effectiveness.

The concluding section of this paper clarifies the implications of the preceding discussion by highlighting how greater engagement with counterterrorism effectiveness in judicial review interacts with restraints of judicial deference. Indeed, judicial review alone should not be taken to overcome the existing barriers in counterterrorism review. Still, the improvement of the courts’ capacity to appropriately engage with effectiveness requires the participation of various stakeholders. The paper concludes by outlining some of the forms of such participation that are needed, as well as by highlighting the steps that would bring improvements to non-judicial counterterrorism review.

Sobol, Ilya and Moncrieff, Michael and Gaggioli, Gloria, Exploring Counterterrorism Effectiveness and Human Rights Law (September 26, 2023). Geneva Academy Working Paper, June 2023, Available at SSRN: https://ssrn.com/abstract=4584358