Blog post: Outsourcing the management of terrorism suspects to other countries

Last Thursday, a German court ordered Germany to repatriate the German wife and three children of a foreign freedom fighter from Syria, in the first such ruling against the government. Like many other EU countries, Germany faces the dilemma of how to deal with citizens who joined armed groups such as ISIS. The Netherlands and France recently brought back children from Syria, as did Belgium and the United States. But many European powers, including France and Britain, refuse to repatriate citizens suspected of terrorism, maintaining they should face trial for their alleged crimes before local courts.

In her latest blog post Asser researcher and counter terrorism expert Dr Rumyana van Ark, describes how governments are ‘outsourcing the trials of Isis prisoners to Iraqi courts with problematic human rights records’.  “In other words: the extensive domestic counter-terrorism tool-kits governments have, are, at times, still considered insufficient and ineffective in certain circumstances”.

[estimated reading time: 8 minutes]

There is by now a fairly ritualised pattern in the aftermath of a terrorist act. First, the questions of whether the state had the necessary means, information and powers to prevent terrorism tend to arise. Then, in order to be seen to respond effectively to the attack, as well as be able to pre-empt further attacks, governments usually seek to expand their counter-terrorism and security toolkit with more far-reaching and, at times, controversial powers.

Legislative bodies loathe to be seen by the voting public as being soft on terror or, worse, as indifferent to terror. With the stakes this high and despite openly acknowledging the stringent and potentially highly restrictive nature of the measures, legislators tend to adopt contentious provisions which may have a significant and long-lasting impact on individual rights and human dignity. Unsurprisingly, since 9/11 and subsequent terrorism events, this pattern has continued. States have persistently sought to adapt their counter-terrorism toolkit to the multi-faceted terrorism threat by expanding on existing and introducing new security mechanisms. 

Outsourcing counter-terrorism
What has, however, been a departure from previous approaches is the extent to which states have attempted to outsource the management of terrorism suspects to other countries. One of the more extreme examples was the reliance on extraordinary renditions, a euphemism for the covert and irregular transnational transfers of individuals across borders for the purposes of their outsourced incommunicado detention and enhanced interrogation in conditions that constitute multiple violations of human rights. In recent times, states such as the United Kingdom and the Netherlands, amongst others, have sought to deprive those suspected of terrorist activity of citizenship, in order to both punish and banish them to another country before they could pose a threat to national security.

The latest development in outsourcing counter-terrorism has arguably been the ISIS-related trials currently ongoing in Iraq. Over the last few months, twelve French citizens have been sentenced to death by Iraqi courts. Naturally, this approach to counter-terrorism triggers the question of how states arrive at a certain national security strategy. In recent years, there have been many speculations over governments’ legal interpretation and decision-making, particularly in relation to matters of national security and counter-terrorism. The debates have predominantly focused on rational, political and structural arguments to explain governmental action. However, the diverse manner in which legal questions arise for governments following a terrorism-threat-related moral panic should also be considered. Understanding these distinct triggers or interpretation catalysts for legal decision-making is important as they can have a significant effect on the governmental process and resulting decisions. In particular, these catalysts can have a role in driving and shaping governmental decision-making when balancing national security and counter-terrorism considerations against existing international law and human rights obligations. 

Moral panic
In 2003 David Dyzenhaus observed that in the aftermath of 9/11 a number of states were gripped by a profound ‘moral panic’. While periods of moral panic are not new to societies – particularly in the context of national security emergencies or threats – what tends to change is the episode, person or group of persons, which becomes defined as a threat to society. The object of the panic can be quite novel; however, it can also be something which has been in existence for a long time and has suddenly reappeared in the limelight. The threat of terrorism and public acts of terrorism are certainly not new, yet the threat by transnational terrorist organisations and affiliated individuals have persistently been depicted as unprecedented since 2001. One explanation behind this strong reaction could be the correlation between the volatility or intensity of a moral panic and the decisions taken by the relevant government or governments as a response to the event(s) triggering the panic.

For an event to be a moral panic, three key elements are required: a suitable enemy or folk devil, a suitable victim and a consensus that the actions being denounced are not insulated entities but can become integral parts of society or regular occurrences unless decisive action is taken. Once blame is allocated, i.e., an individual or a group has been identified as being responsible for causing the damage, the relevant government will then assess the level of risk and by proxy the measures required to both apprehend those responsible and to pre-empt further occurrences of the violence. Aside from the potential longevity of the measures adopted as a response, the volatility or intensity of the particular moral panic could also result in an expansive and assertive immediate reaction targeting everyone deemed responsible for the events triggering the panic.  

Legislative fever
The events of 9/11 – the scale of destruction, the callousness of the attack and the number of casualties – arguably touched a chord within numerous states in a manner previous terrorist attacks had not. The intensity of the post 9/11 moral panic and the lingering fear of whether/when another attack might occur challenged the ability of states to provide and guarantee security. Thus, governments had to be seen to respond forcefully, nationally and transnationally, through legislation and all other means deemed necessary. The extreme that were extraordinary renditions was one of the responses to the perceived as unprecedented threat of terrorism. In parallel, states engaged in prolonged legislative fever – a fever still ongoing – which resulted in significantly expanded and ever more comprehensive counter-terrorism tool-kits at national level. States have legislated for a broad range of administrative and criminal justice measures, exclusion orders, longer prison sentences for terrorism-related offences and counter-radicalisation programmes. To put it differently, while the events of 9/11 may seem like a distant memory, the moral panic and feelings of insecurity re-intensify with every new attack, with every replacement of terrorism strategy and with each change to the manner in which terrorism poses a threat (from terrorist organisations to individuals radicalised online; from vehicles as means of terror to everyday household items such as knives). 

Detention and ill-treatment through extraordinary renditions may no longer be outsourced to countries with particularly dubious human rights records, yet the now often used deprivation of nationality can similarly result in extensive human rights violations. In deprivation of nationality cases where the prospect of statelessness is a tangible possibility, the removal of citizenship can significantly endanger the rights of an individual. It renders them exceptionally vulnerable as it would be almost impossible to acquire travel and identification documents, to legally reside in a territory or access basic public services. Alternatively, if the individual in question has a second nationality – or the possibility to acquire a second nationality – they may find themselves facing the prospect of moving to and residing in a country where they have no family support, no means of income and an uphill battle to access basic healthcare and education. Separately, the deprivation of citizenship on national security grounds may have a significant impact on whether an individual can access a prospective second nationality. The case of Shamima Begum is particularly illustrative of this point. As so compellingly put by Hannah Arendt: losing a citizenship is equivalent to losing the right to have rights.

Outsourcing trials
The very recent development of, in essence, outsourcing trials of suspected foreign terrorist fighter (FTFs) to Iraq, similarly places individuals in a particularly vulnerable situation. The trial procedures in the cases involving the twelve French citizens have been heavily criticised for a number of reasons, including limited access to a legal representative pre-trial and reliance on confessions rather than substantial evidence. Further, Iraq has been ranked in the top five of countries engaging in executions following the imposition of the death penalty. As such, the risk that individuals suspected of being members of ISIS could be sentenced to the death penalty was sufficiently tangible. Thus, if France is indeed strongly opposed to the death penalty, it should have considered means for repatriation. More significantly, there are approximately two thousand more FTFs lingering in camps across Syria. The transfer and trial of the twelve French citizens could set a dangerous and troubling precedent.

The Constant Folk Devil
And thus, while nearly 18 years have passed since the events of 9/11, radicalised individuals and those suspected of terrorist activities – on national and foreign soil – have remained a prominent folk devil for many governments. The range of criminal justice and administrative measures states utilise domestically in order to manage these individuals, continues to expand – both in terms of harshness and pre-emptiveness. Closed intelligence evidence has become more prominently used within the UK and Dutch courts, in cases engaging national security and counter-terrorism related issues resulting in changes to court procedures. Despite criticisms that the scales within these bespoke proceedings are firmly tipped in favour of the state, the, in effect, outsourcing of trials to Iraqi courts suggests that states with problematic human rights record are again relied on to facilitate counter-terrorism efforts. In other words, the extensive domestic counter-terrorism tool-kits are, at times, still considered insufficient and ineffective in certain circumstances. This outlook, combined with the lingering and transformative moral panic surrounding the threat posed by terrorism, should not be seen as a bad hangover from 9/11 but rather an entrenched legacy here to stay.

Advanced Summer Programme on Terrorism, Countering Terrorism and the Rule of Law
From August 26-30, Dr Rumyana van Ark will coordinate and participate in the 9^th Advanced Summer Programme on Terrorism, Countering Terrorism and the Rule of Law, organised by ICCT – The Hague  and T.M.C. Asser Institute in The Hague, the Netherlands. This programme brings together world leading counterterrorism experts, academics and policy makers from around the world working in the field of counter-terrorism. The summer programme takes place at the Asser Institute (26-30 August 2019). For more information, for registration and for the programme, click here.

Further reading
Countering terrorism through the stripping of citizenship: ineffective and counterproductive
In this perspective, Dr Christophe Paulussen examines the scope and nature of citizenship stripping as a counter-terrorism measure and argues that it stands out in comparison to other counter-terrorism measures. This is because of its highly symbolic nature, its far-reaching effects, as well as its emphasis on ‘addressing’ the problem by making it the problem of other states. (ICCT Perspective, 2018)

Citizenship stripping in Bahrain
Bahrain has been particularly active in citizenship stripping. Authorities have revoked hundreds of citizenships over the last years. According to Amnesty International, the number could be as high as 741 since 2012. In many cases, this leaves the affected persons stateless, which means that they are no longer granted pensions, health care, or housing benefits. It also denies them access to justice, as they lose their right to appear before courts. In this article in the Voice of America, Dr Paulussen points out that when people are expelled after they have been deprived of their citizenship, they simply become the problem of another state.

Citizenship stripping: Protecting national security of passing the buck?
While the United States and its allies are clearing out the last pocket of territory in Syria controlled by the jihadist group Islamic State (IS), and celebrating the end of the ‘Caliphate’, there is a debate raging in western countries about the potential return of citizens who went to fight with IS, and their families. In addition to long-running discussions about whether to repatriate the fighters to face western courts, and ‘rescue’ their wives and children, now the discussion is centred on the potential to take away their citizenships, to prevent them from returning. In this interview with Justice Hub, Dr Christophe Paulussen explains why this is now a big discussion point.

Should Europe uphold the right to return even for Daesh families? 
European powers are yet to claim their citizens, who want to return home from former Daesh-held territories in Syria, posing a significant question over whether the legal principle of the right to return will be applied. An interview in TRT World, featuring Dr Christophe Paulussen.

British Citizenship Revoked, Bangladeshi Citizenship Uncertain – What Next for Shamima Begum?
Statelessness significantly endangers the rights of an individual. It renders them exceptionally vulnerable as it would be almost impossible to acquire travel and identification documents, to legally reside in a territory or access basic public services. As so compellingly put by Hannah Arendt losing a citizenship is equivalent to losing the right to have rights. In this blog post, Dr van Ark explores the impact of deprivation of liberty on an individual with reference to the Shamima Begum case.

Research Fellow Christophe Paulussen and Rumyana van Ark on dealing with foreign terrorist fighters (French)
See comments by Asser Researchers and ICCT Research Fellows Christophe Paulussen and Rumyana van Ark in this article by Radio Canada on how to deal with returning foreign terrorist fighters. Both Christophe and Rumyana discuss how states should assume their responsibilities in handling these cases.

‘Legislative fever is not a long-term solution for stopping terrorism incitement’
Legislators and policy-makers should put more emphasis, expertise, and resources towards resolving the root causes of terrorism, rather than trying to curb the spread of extremism by feverishly expanding counter-terrorism legislation. That is the main conclusion of a new ICCT Perspective ‘Incitement to Terrorism – Treating the Symptoms or Addressing the Causal Malady?’ by Asser researcher and ICCT research fellow Dr Rumyana Grozdanova.

Policy brief: ‘Counter-terrorism measures need to be evaluated’
Read the full policy brief in which Asser researcher Dr Berenice Boutin discusses methods for evaluating counter-terrorism measures and provides suggestions for policy-makers. 

Asser International Crimes Database
The International Crimes Database offers an extensive online collection of international crimes broadly defined, such as genocide, war crimes, terrorism and piracy. It provides access to a range of information, not just for scholars and practitioners (such as judges, prosecutors and defence counsel), but also for students, journalists, families and communities of victims of crimes. It also contains a specific tab dealing with cases of foreign fighters, including the Maher case, see here and here.