ICCT’s Key Publications: A Rule of Law Lens on Counter-Terrorism

Terrorism activities threaten both the rule of law and the fundamental freedoms of citizens and entire societies. Consequently, adopting responses that respect human rights while countering terrorism is not only a matter of legal obligation but is critical to the ultimate success of any counter-terrorism strategy. The debate is still ongoing over counter-terrorism responses within a rule of law framework, questioning how specific measures could contribute to preventing individuals from committing a terrorist crime. The 14 September 2022 European Court of Human Rights ruling on extraterritorial jurisdiction was one such landmark. A potent illustration of how debates emerge over humans rights and how they play out for children, the same can be said about foreign fighters, terrorists, and extremists. In fact, the criminal justice sector encompasses a vast range of unanswered questions. Where does the fate of child returnees lie? What are the concerns about in absentia prosecution? How can the legal status of foreign fighters be defined? What defines a fair trial? Learn answers to these questions and the criminal justice responses to terrorism through ICCT’s expert publications that look beyond judicial aspects and explore the social implications of trials:

1️⃣The fall of ISIS in Baghuz took place three years ago, however, it still has 7300 detained children from across 60 countries. Last week, the European Court of Human Rights (ECtHR) released its ruling on the extraterritorial jurisdiction of human rights over the case against France for its unwillingness to repatriate two grandparents’ daughter and her children. The landmark ruling came to significant conclusions, but a ‘split applicability’ of extraterritorial jurisdiction of human rights will have consequences for the futures of many European children held in north-east Syria. Learn more about its impact in this Perspective.

2️⃣In the Netherlands, some politicians opposed the right of Dutch citizens who joined the Islamic State/Daesh to be present at trial and questioned whether it is used as a vehicle for wider court-enforced repatriation of the Dutch citizens who remain stuck in Syria. The District Court of Rotterdam decided on 11 May 2022 to repatriate twelve Dutch women who joined the Islamic State/Daesh as well as their twenty-nine children from camps in North-East Syria (NES). By analysing the law at both the international and the domestic level, this Perspective explains why trials in absentia are problematic and should only be considered as a last resort.

3️⃣24 February 2022 marked a monumental day in Europe, the Russian invasion of Ukraine. Immediately, the International Legion for the Territorial Defence of Ukraine was set up  by President Zelensky to enable (foreign) volunteers to help in the conflict. This strong gesture caused an equally strong response from Russia and measures such as death threats imposed on the (foreign) individuals choosing to volunteer for Ukraine. This Perspective addresses the legal status of the foreign individuals joining the conflict in Ukraine, and explain the different definitions of the terms ‘foreign volunteer’, ‘foreign terrorist fighter’ and ‘mercenary’.

4️⃣The  06 January 2021 Capitol Riot saw hundreds of individuals break into the US Department of Justice (DOJ) and initiated the largest federal investigation in US history. But it also generated a significant shift in the US government’s focus on counter-terrorism: from an emphasis on international threats to the burgeoning domestic terrorism threat. This Perspective reflects on the state of the federal investigation into the perpetrators and provides an overview of the shift.

5️⃣Paris witnessed a deadly series of attacks on 13 November 2015, which killed 130 people and wounded more than 400 others. This initiated the largest criminal trial in France’s history on 8 September 2021. The trial encompassed 300 lawyers and 1800 civil parties, dealing with charges such as murder and attempted murder in an organised group in connection with a terrorist enterprise. In light of the potential for terrorism trials to become a political arena instrumentalised by different parties, this Perspective explores the ways in which the performance of actors in the courtroom of the ongoing Paris trial may impact the defendants’ right to a fair trial, as well as civil parties’ access to justice.