Counterterrorism in Europe: Ambiguous Security Gains for Significant Impacts on Rights

26 September 2023

The relentless expansion of counterterrorism policies has significantly affected human rights. However, the effectiveness of these measures remains shrouded in uncertainty, with their designs often lacking empirical foundations and their functioning rarely subjected to rigorous evaluation. At the same time, the debate on the justifiability of rights' limitations in the name of national security has not adequately considered the effectiveness of counterterrorism efforts.

Our newly released Working Paper bridges the gap between the notion of ‘effectiveness’ in counterterrorism and human rights law to stimulate discussion among the academic, human rights, and policy-making communities. It offers a comprehensive examination of counterterrorism measures implemented across Europe and delves into the formidable challenges faced when attempting to assess the effectiveness of counterterrorism initiatives. Additionally, the paper conducts a thorough review of existing studies that endeavour to gauge the impact of these measures and identifies persisting gaps in the scholarly literature. It explores areas hitherto underexplored, such as the often-overlooked psychological effects of counterterrorism policies and the imperative for adopting a multifaceted approach to measuring effectiveness.

‘In a world grappling with complex security challenges, ‘Exploring Counterterrorism Effectiveness and Human Rights Law’ invites readers to embark on a critical journey, shedding light on the intricate dynamics between security and human rights. It calls for us to consider the effectiveness of counterterrorism policies as a matter of human rights law and demonstrates the benefits of this approach in improving the rationality of the decision-making process’ explains our Director Professor Gloria Gaggioli, co-author of the paper and principal investigator of the Research Project Counter-Terror Pro LegEm.

Within the realm of human rights law, a pivotal question examined in this paper revolves around the role of counterterrorism measures' effectiveness in justifying the restriction of certain 'limitable' rights. Central to this analysis is the 'proportionality test,' a doctrinal construct encompassing a series of sequential inquiries aimed at evaluating the justifiability of limiting rights.

The paper sheds light on the advantages of scrutinizing the subtest of 'suitability' or 'rational connection' in the context of assessing the effectiveness of national security measures. By doing so, it explores the case law of the European Court of Human Rights, revealing how claims of effectiveness influence the Court’s legal reasoning.
‘While exploring the nuanced stance adopted by the Court regarding the relevance of effectiveness in its practice, our paper underscores the limitations of the Court’s approach to the proportionality test’ underlinesIlya Sobol, co-author of the paper and PhD Candidate at the University of Geneva Law Faculty.

The paper's concluding section navigates the intricate interplay between judicial review and the constraints of judicial deference when engaging with counterterrorism effectiveness. It posits that judicial review alone cannot surmount the existing barriers in counterterrorism evaluation. To enhance the ability of the judiciary to effectively assess counterterrorism measures, a collaborative effort involving various stakeholders is crucial.

The paper culminates by outlining essential forms of stakeholder engagement and proposing steps to enhance non-judicial counterterrorism review. These measures encompass improvements in collecting and disclosing basic descriptive statistical information, elucidating the models informing counterterrorism decision-making, and heightened empirical rigour in research evaluating the human rights impacts of counterterrorism measures.

‘There remains to be plenty of ‘low-hanging fruit’ in the world of counterterrorism review – measures that can significantly improve our understanding of such policies’ effects at little to no cost to the process. These improvements may yield meaningful benefits to counterterrorism policy-making, bringing us closer to a better understanding of both the security gains they produce and the human rights costs they impose’ stresses Dr Michael Moncrieff, co-author of the paper and Postdoctoral Researcher in Social Sciences at the University of Geneva Law Faculty.

This paper forms part of the research project ‘Counter-Terror Pro LegEm’ led by our Director Professor Gloria Gaggioli. The project – funded by the Swiss National Science Foundation, hosted by the University of Geneva and conducted in partnership with the Geneva Academy – examines the effectiveness of counterterrorism measures and their effects on human rights and analyses the structure of terrorist networks such as Al Qaeda or the Islamic State to see whether they qualify as ‘organized armed groups’ for the purpose of international humanitarian law.