PERICLES’ European Union Legal Framework of Counter Radicalisation Report

PERICLES deliverables rely heavily on a comprehensive understanding of legal concepts relating to radicalisation, extremism, and terrorism. The aim of the report is, therefore, to provide an international legal framework concerning radicalisation. Part of the report’s objective is to make clear the extent and limits of domestic and international law as it pertains to terrorism and radicalisation within the EU, and to provide LEAs with a clear conceptual framework for their work. The report considers regulations on violent acts that deny fundamental rights and the regulation of offences related to terrorism. In addition, this work emphasises that although relevant legislation and investigative tools make special mention of ‘tackling jihadist radicalisation’, they are applicable to all forms of terrorism regardless of ideological context, whether it be separatist, political, or religious.

There is a dizzying array of activities under the headings of ‘terrorist offences’ and, historically, settling upon an agreed and succinct definition of terrorism has been fraught with difficulty. There has been a plethora of conceptual and definitional inconsistencies between legal actors, academics, and government. A 2001 article from The Guardian (Hyperlink A) comments on a United States Government report on terrorism and provides a valuable snapshot of some of the issues in the debate over ‘what is terrorism’ from that period. Terrorism was considered violent action against a state and its citizens but not that perpetrated by a state. Indeed violent attacks against powerful military installations in foreign countries during peacetime were classified as terrorist attacks in the US Government report. The Guardian article is well worth reading for those who are interested in this topic and makes clear that there was, at the time, a wide inconsistency in the labelling of armed groups, violent political movements, and repressive states that routinely abuse human rights, as either terrorist or not terrorist. The devastating attacks on the World Trade Center on September 11, 2001, brought a need for more agreement on legal definitions of terrorism amongst lawyers, academics, human rights activists, governments, and other stakeholders. Indeed, writing in 2004, Golder & Williams[1] state that, in the legal sphere there is not only a lack of consensus regarding the definition of terrorism but also there is a ‘bewildering array of definitions’. Though much progress has been made, and there are now overlaps and common aspects across common law countries, there is still not a concrete agreed definition of the phenomenon.

This report emphasises that within the legal sphere, terrorism no longer relates just to physical harm to person or property, but also relates to a range of terrorist related activities and offences.  For example, online radicalisation and recruitment through social media or propaganda websites, the facilitation of travel for terrorist purposes, funding of terrorist groups and a range of other promotion and recruitment activities, are legislated for under the umbrella of terrorist related legislation. Governments have the power to conduct electronic surveillance of suspects, deny visas, freeze the assets of individuals’ suspected of involvement in terrorism, and even propose and enact trade sanctions against states who support or promote terrorism. Additionally, a not insubstantial portion of new anti-radicalisation legislation focuses on prevention rather than reaction.  It is of course necessary to have robust laws that react to terrorist attacks and empower LEAs to investigate, prosecute and convict perpetrators. Nevertheless there is, amongst legislators, an appreciation of the limits of purely reactive legislation. Further, the EU approach to tackling radicalisation and the development and initiation of terrorist offences, includes a commitment to countering discrimination in all of its forms. In other words, prejudice and discrimination against individuals, groups, and communities, based on religion, race or ethnicity, are key elements of anti-radicalisation strategy. The prevention of the stigmatisation of communities, and the fight against hate crime, contribute towards a social and political atmosphere that reduces the potential for radicalisation. This approach is reflected in the legal framework which LEAs must apply to their work.

The report also emphasises the use of the internet by terrorist groups to spread their ideology, and to radicalise and recruit. Policing the internet is, however, a difficult endeavour owing to the transnational nature of online communication and activism. Prosecution and conviction of individuals engaged in online radical activity is therefore extremely difficult. In order to increase the effectiveness of online intervention, Internet Service Providers are required by legislation to comply with social control measures and aid law enforcement with their investigations. The internet, social media, and instantaneous online communication has provided powerful tools to those who support terrorist causes and organisations.  The online arena is a fertile ground for propaganda and recruitment, funding and facilitation, as well as the organisation of terrorist offences.  However, the efficient and competent use of these same tools by LEAs has proven essential to effectively meet the challenge of preventing and responding to terrorist crimes. Of necessity, this usually involves the collection of vast amounts of personal data. Data must be accessible to LEAs in their fight against terrorism. Access must be efficient and therefore often requires pre-authorisation. The increased powers granted to investigatory bodies to intercept communications and personal data of internet users poses challenges to the fundamental rights of citizens. The balancing of citizens’ rights to privacy and LEAs task of detecting, preventing and responding to violent attacks is a careful and sophisticated business that must be considered by legislation. Indeed, a recent deliverable from a similar Horizon 2020 research project, Red Alert, (Hyperlink B) argues that legislation that can achieve the aims of LEAs while also protecting citizens’ rights to privacy and security of data does not currently exist. Varying laws and standards of care relating to the protection of citizens data across jurisdictions problematizes the detection of relevant terrorist related information. Red Alert concluded that due to the lack of internationally agreed safeguards ensconced in legislation that enables sanction and dispute resolution, the access to and exchange of data by LEAs remains an ‘unregulated reality’.

[1] Golder, B., & George, W. (2004). What is Terrorism-Problems of Legal Definition. UNSWLJ27, 270.

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