TRACK 1: A HUMAN RIGHTS LAW ANALYSIS OF COUNTER-TERRORISM MEASURES: BRIDGING EFFICACY AND LEGALITY
Track 1 of the project focuses on the broad proportionality of counter-terrorism measures adopted by European States since 2001 from a human rights law perspective. Such counter-terrorism measures include mass surveillance, extended detention without charge, vague prohibitions of “glorification of terrorism”, deprivation of nationality and criminal prohibitions on return to one's country of residence and possession of “terrorist materials”. In the name of security, States have further consolidated preventive policies and criminalized a vast range of previously unsanctioned behavior, such as preparatory acts to travel to conflict zones in foreign countries, and association with terrorist organizations.
These measures raise several intricate legal issues. Do they involve unnecessary or disproportionate restrictions to our human rights (eg, liberty, freedom of expression, assembly, privacy)? Are they the least intrusive instruments for prevention of violent acts? To what extent do States and human rights bodies take into account the efficacy and side effects of counter-terrorism measures to assess their conformity with human rights law? To what extent may human rights law constrain criminal laws and preventive policies?
In brief, the research under Track 1 addresses limitable human rights and seeks to clarify the notion of suitability in international human rights law with particular focus on limitation of rights in counter-terrorism. It integrates a social science assessment of the efficacy of counter-terrorism measures into a human rights analysis of limitable rights.
TRACK 2: FIGHTING TERRORIST NETWORKS: AN EMPIRICALLY INFORMED ANALYSIS UNDER INTERNATIONAL HUMANITARIAN LAW
Track 2 of the project will focus on another aspect of the fight against terrorism, which takes the shape of “wars” or non-international armed conflicts against terrorist groups in contexts such as Syria, Iraq, Yemen, Afghanistan or Sub-Saharan Africa; and potentially also in Europe provided the acts of violence entertain a link with ongoing hostilities. When the fight against terrorism amounts to an actual armed conflict against organized armed groups, the main applicable legal framework is international humanitarian law. This body of law is more permissive compared to human rights law.
Two main legal challenges arise in this framework. First, in terms of classification of the situation, when does the fight against terror amount to non-international armed conflicts? The structure and functioning of terrorist groups being often opaque, decentralized and / or volatile - with groups constantly splintering and reuniting - it becomes difficult to determine the exact boundaries of such entities and to assess whether they constitute “organized armed groups” for the purpose of international humanitarian law. Second, how should membership in such terrorist groups be determined?
All these questions would highly benefit from a better understanding of the structure and functioning of armed groups that social scientists can provide. While social sciences have developed a wealth of literature on the notion of “group” and have various methodological tools to observe and understand existing terrorist groups, international lawyers are left with very little indications in international humanitarian law to determine the existence of an armed group and membership therein. This part of the project will integrate knowledge from social sciences to assess the possibility of objectively defining an “organized” armed group and membership therein in a manner that is legally sound and realistic.