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.

The ‘Proportionality Test’ and the European Court of Human Rights’ Approach

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.

Measures to Integrate Effectiveness in Counterterrorism Review

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.

Part of the Research Project ‘Counter-Terror Pro LegEm’

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.

MORE ON THIS THEMATIC AREA

ukraine conflict News

New Research Brief examines the transitional justice initiatives currently unfolding in Ukraine

7 October 2024

Our latest research brief, 'Navigating Pathways Toward Transitional Justice in Ukraine' examines the initiatives currently unfolding in Ukraine and assesses how they can lead to a holistic transitional justice process.

Read more

GHRP Annual Conference 2024 News

GHRP Annual Conference 2024 Strengthens Connectivity in a Pressured Human Rights System

25 November 2024

The 2024 Annual Conference of the Geneva Human Rights Platform (GHRP), held on 5 November at Maison de la Paix, focused on the theme Human Rights System Under Pressure: A Reason to Expand Connectivity.

Read more

Warzone Event

Advanced IHL Seminar for Academics and Policymakers

25-29 August 2025, 09:00-17:30

Co-hosted with the ICRC, this event aims to enhance the capacity of academics to teach and research international humanitarian law, while also equipping policymakers with an in-depth understanding of ongoing legal debates.

Read more

Faces and Data Event

Academic Freedom under Siege

24 March 2025, 13:15-14:45

This Human Rights Conversation will highlight the significance of academic freedom, explore its legal foundations, and examine the concrete threats it faces.

Read more

Asian workers working at technology production factory with industrial machines Training

Business and Human Rights

19-23 May 2025

This training course will examine how the UN Guiding Principles on Business and Human Rights have been utilized to advance the concept of business respect for human rights throughout the UN system, the impact of the Guiding Principles on other international organizations, as well as the impact of standards and guidance developed by these different bodies.

Read more

Afghanistan, Parwan detention facility. Inside a room where detainees of the prison, separated by an acrylic glass, are allowed to meet with their families a couple of times per year with the help of the ICRC employees who facilitate the programme. Short Course

Preventing and Combating Terrorism

24 April - 13 May 2025

This online short course discusses the extent to which states may limit and/or derogate from their international human rights obligations in order to prevent and counter-terrorism and thus protect persons under their jurisdiction.

Read more

Project

Follow-up Review Pilot Series

Started in November 2021

Read more

Iraq, Mosul. View of the west bank after the war. Project

IHL in Focus

Started in January 2024

As a yearly publication, it keeps decision-makers, practitioners and scholars up-to-date with the latest trends and challenges in IHL implementation in over 100 armed conflicts worldwide – both international and non-international.

Read more

Cover Page of Research Brief Publication

War on Minorities’ Under the Guise of Countering Terrorism and Violent Extremism

published on December 2024

Beatrice Meretti

Read more

Cover Page of Research Brief Publication

Navigating Pathways Toward Transitional Justice in Ukraine

published on October 2024

Robin van der Lugt, Chhime Namdol Sherpa

Read more