[New publication] Are courts effectively protecting individual rights? Rule of law backsliding on national security matters
Published 22 January 2025By Irem Cakmak
Elevated Security Camera Surveillance Footage of a Crowd of People Walking on Busy Urban City Streets by Gorodenkoff
In their new article, researchers Rumyana van Ark and Tarik Gherbaoui examine the intersection between national security measures, judicial deference, and the rule of law. They highlight the dangers of normalising expansive national security provisions which can compromise the effective protection of human rights.
The intense moral panic around the impact of terrorism and violent extremism on national security was palpable across the globe after 9/11. This panic intensified throughout the 2000s and mid-2010s, particularly in response to concerns over ‘foreign terrorist fighters’ who had travelled to the armed conflict in Syria and Iraq.
In their efforts to ensure national security, governments increasingly considered non-citizens and dual citizens to be potential threats. Administrative measures such as control orders and citizenship revocation were introduced, often disproportionately targeting specific ethnic or religious groups. However, both national and international courts have been hesitant to challenge these security measures, even when they infringe on human rights.
Gradual erosion
This reluctance has contributed to a gradual erosion of effective protections and what the authors describe as ‘rule of law backsliding’. The ‘creeping consequentialism’ of some of the adopted counter-terrorism measures has resulted in policies that have disproportionately impacted specific communities while seeking to enhance perceptions of improved security. In some cases, individuals have been deprived of their citizenship or had security clearances revoked based primarily on unproven allegations of links to terrorism.
By analysing recent trends in case law from both the European Court of Human Rights and domestic courts in the United Kingdom, Van Ark and Gherbaoui explore how national and international courts have contributed to rule of law backsliding in national security cases. When dealing with national security case, judges face two opposing pressures: ensuring government actions that potentially infringe on rights comply with legal standards, and respecting governmental expertise in complex matters of national security. The European Convention on Human Rights and the International Covenant on Civil and Political Rights provide mechanisms for limiting rights during exceptional circumstances. Yet even beyond these established mechanisms, the courts have tended to defer excessively to governmental decisions, inadvertently creating a legal vacuum, where individuals are left without effective remedies to contest national security decisions. For instance, in the case of Shamima Begum, a British-born woman who travelled to Syria to join IS/Daesh as a teenager, the UK Supreme Court sided with the government’s decision to strip her of her citizenship, leaving her de facto stateless and with limited options to appeal.
Two rationales
Judicial deference is often based on two rationales. The constitutional rationale views national security decisions as within the state’s discretion, while the evidential rationale acknowledges the courts’ limitations in assessing intelligence, which is often confidential, fragmented, and unsuitable for legal evaluation. A significant example of this deference is the increased use of Closed Material Procedures (CMPs), a legal process that allows secret evidence to be presented without the defendant’s knowledge or effective ability to contest it. Although CMPs were initially seen as exceptional due to their inherent unfairness, their use has grown significantly, reflecting a shift towards prioritising national security over procedural fairness.
The relationship between judicial deference and rule of law backsliding is complex. While judicial deference is clearly appropriate in some cases, it risks becoming a blanket excuse for insufficient scrutiny. Moreover, in some jurisdiction national security cases often continue to be seen as non-justiciable.
Effective judicial review is one of the cornerstones of the rule of law. It prevents authoritarian governments from having unchecked power and ensures that individual human rights, including those established by international treaty, are respected even in times of crisis. When courts fail to scrutinise crucial government actions thoroughly, there is a real risk that the rule of law is hollowed out from within. In their new article, Van Ark and Gherbaoui call for effective judicial review to stop rule of law backsliding and prevent further erosion of the rule of law in national security cases.
Read the full publication.
About the authors
Dr Rumyana van Ark is a senior researcher in international law and (counter-) terrorism at the T.M.C. Asser Instituut within the research strand ‘in the public interest: accountability of the state and the prosecution of crimes’. She is also the coordinator of all counter-terrorism related research and project activities at the T.M.C. Asser Instituut. Her research focuses on the evolving relationship between the individual (terror suspect) and the state following acts of terrorism.
Tarik Gherbaoui is a researcher in international law at the Asser Institute within the research strand ‘In the public interest: accountability of the state and the prosecution of crimes.’ He is also one of the coordinators for our upcoming advanced summer programme ‘terrorism, counter-terrorism and the rule of law’, organised together with the International Centre for Counter-Terrorism.
Read more:
In this interview, Tarik Gherbaoui discusses his areas of expertise, including the flow of and legal responses to foreign fighters from the rule of law and human rights perspective. He aims to raise awareness about the importance of the rule of law and human rights in counterterrorism efforts.
In this interview, Rumyana van Ark talks about her book, focusing on the children of alleged foreign terrorist fighters who are currently still residing in camps in Syria and Iraq after the fall of the Islamic State. She delves into the process of writing the book and her findings.
[New article] Addressing online terrorist content through the ‘grammar’ of human rights law
In a new article for the European Journal of Human Rights, Tarik Gherbaoui and Martin Scheinin, investigate the dual challenge to human rights law posed by the proliferation of online terrorist content and by recent legislation to crack down on such content.
Van Ark, R., Prabhat, D. and Gordon, F., ‘Children’s Rights, ‘Foreign Fighters’ and Counter-Terrorism: Children of Nowhere’ Edward Elgar (published in September 2024)