Plan of action against Syria fighters: Beware of legal security pitfalls

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In collaboration with associate professor of International Law at Copenhagen University Anders Henriksen, the judicial think tank Justitia has analyzed government action against extremism and radicalization.

The analysis focuses in particular on the action plan over a new UN Resolution on combating the “Foreign Terrorist Fighters” and the right to freedom of movement in the European Convention on Human Rights. The analysis aims to identify whether the government’s proposal for an action plan is in accordance with existing human rights conventions, as well as pointing out the legal requirements, that the government in this respect should comply with. Justitia has decided to prepare and publish the analysis even before a bill is published (with the limitations it causes), from a perception that the political debate on the content of – and the process of – the coming legislative action should be initiated as early as possible.

“The government has put forward an action plan against extremism and radicalization, which among other things contains proposals for withdrawal of passports and issuance of travel bans for people suspected of participating in armed conflict abroad. The action plan should be seen in the context of UN Security Council Resolution 2178, which in different ways commits countries to criminalize “Foreign Terroist Fighters”. But the rules that the government action plan suggests, goes considerably further than required by the UN resolution. One example that the government goes further than required is if it decides to criminalize the general participation in armed conflict, when the resolution only criminalize participation in armed conflicts conducted with an intention to committing terrorism “, says Jacob Mchangama, Justitia.

“The Danish tendency to over implement is concerning, as it may result in the legislation extending further than intended or ultimately proves to be incompatible with fundamental human rights. Just as we saw recently in the context of EU Court ruling that logging rules were incompatible with the right to privacy in the EU Charter, which led to annulment of the rules on session logging, which was a result of over implementation. It is a tendency we have seen before; a possible over implementation of Resolution 2178 will in fact lie in the wake of the previous Liberal-Conservative government over implementation of the international obligations that Denmark was instructed to implement in the area of terrorism prior to the adoption of Terror Package I “, says Jacob Mchangama, Justitia

The analysis further shows whether the actions the government suggests, is compatible with the right to freedom of movement in the Additional Protocol 4 art. 2 ECHR (TP4).

“Withdravel of passports and a travel ban is basically compatible with the ECHR TP4, as here given the opportunity to encroach on freedom of movement, if the intervention is established by law, and among others meets a creditable purpose such as national security; however, according to EMD’s practice a law must be sufficiently clear and predictable and provide a safeguard against arbitrariness to meet the requirements. In addition, any travel ban will require that the suspicion that a person is leaving to take part in an armed conflict is real and substantiated. Therefore, the government of the specific law construction should provide citizens with adequate safeguards and include clearly definition of what “armed conflict” means in this specific context. In the case of armed conflict in general, there is a risk that Danish citizens who for example fight  in the Israeli Army will be included, and you run the risk of treating people who are fighting for the Free Syrian Army (FSA) the same way as people who want to fight for the IS – although the FSA fight the same terrorists as Danish F-16 aircraft are bombing. The scope should be clearly defined and the judicial review should be effective, even in cases of national security”, says director Jacob Mchangama, Justitia.

It is therefore recommended that:

A) The predicted interference with the rights of travel should be accompanied by adequate procedural safeguards, including clear and precise rules, real and substantiated suspicion requirements and effective remedy

B) New legislation should be accompanied by a socalled “sunset clause” whereby the law will expire on a predetermined date.

C) The forthcoming legislative process should be as thorough and careful as possible, and there should be sufficient time for public debate and involvement of input from civil society.

D) The government needs to be open about what parts of Resolution 2178 and any other international initiatives in this area, which is legally binding on Denmark, and which ones are not.

It should be noted that the study only focuses on efforts directed at those who have not yet left the country to areas of conflict, and is not what Denmark can / should do in relation to those who are already gone. These issues will be addressed in later Justitia analyzes.

Click here to read the full analysis (in Danish)

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Jacob Mchangama

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