Below we reproduce the introduction to the latest edition of the European Race Bulletin.
In the eighteen months since the European Race Bulletin carried out its last audit of the anti-terrorist laws, national governments, building on the blocks provided by the EU Common and Framework Decisions on Countering Terrorism and the European Union’s list of proscribed organisations, have introduced a whole host of anti-terrorist laws, legal changes and other administrative procedures. A separate and more punitive criminal justice system, beyond the ordinary rule of law, has now been firmly established. The primary purpose of the summaries documented in this report was to provide a snapshot of the parallel structures that have emerged from emergency laws. But the academic credibility given to counter-terrorism laws by a growing number of ‘terrorism’ and ‘integration’ experts has emerged as a secondary and complementary focus of the research.
What, we ask, are the fundamental underpinnings of this parallel criminal justice system? And how do they impact on European Muslims, foreign nationals and on asylum seekers and refugees? Despite different traditions within European criminal justice and immigration systems, several common features emerge.
First, vague EU definitions of terrorism have led to the introduction by national governments of equally vague new crimes, which dramatically lower the standard of evidence needed to charge and convict terror suspects, and are often based on ‘guilt by association’. Thus, amongst the novel new crimes introduced are: ‘justification or glorification of terrorist acts’, ‘association with international terrorism’, ‘threatening to commit a terrorist crime’, ‘membership of a criminal organisation with terrorist intent’, ‘possession of books or items useful to a terrorism’ or, indeed (in the case of Spain) the catch-all of ‘any other crime’ committed with the aim of ‘subverting constitutional order or altering public peace’. In the UK, civil rights lawyers have warned that more and more young Muslims are being brought to the courts on the basis of the vaguest of charges while, in France and Spain, NGOs have deplored the fact that the wives and relatives of primary suspects are also detained, interrogated and remanded in pre-trial detention on the basis of minimal proof.
Yet, in legislating for new crimes, governments are not always having it their own way. Not only has trenchant criticism come from the UN Special Rapporteur for the protection and promotion of human rights while countering terrorism, but national courts, particularly in the UK, Netherlands and Norway, have set stricter rules for the standard of evidence needed in terrorism cases, established that words and threats cannot in themselves be construed as proof of terrorist intent in the criminal courts, and argued that there must be a direct connection between the object possessed (in the case of books or internet material) and the act of terrorism. But the same standards of evidence do not apply when administrative tribunals assess the risk to national security posed by an individual and whether deportation is justified. Where these tribunals are concerned, anything goes – words, threats or association.
On the other hand, there are barely any legal interventions to stop the spread of the second salient feature of the parallel criminal justice system – namely the special detention regime for terrorist suspects. Under this regime, those detained on suspicion of terrorism (but not yet convicted and in some cases not even charged) can be held in custody in high security prisons for years on end, in complete violation of the International Covenant on Civil and Political Rights (ICCPR) which holds that a person suspected of crime must be brought to trial within a ‘reasonable time’. And the use of administration detention (i.e. under immigration law) avoids these obligations altogether. In the UK, this is achieved through the administrative detention of foreign nationals pending their deportation (there is no time limit to this form of detention): on the European mainland, mainly via pre-trial detention (the time limits for pre-trial detention are two years in the Netherlands, four years in Spain, and four years and eight months in France).
In addition, the special detention regime also involves other ways of depriving an individual or his or her liberty, through house arrest (France, Spain), control orders (UK) or a ‘disturbance of an individual’ administrative order (Netherlands). And in this way, we witness a massive extension of what constitutes a prison – no longer four walls, but your home, the streets you walk. It must seem at times, to those under suspicion that prison is everywhere. Many of those caught up in this special detention regime develop symptoms of severe mental illness and are driven into madness and attempted suicide. Within high security prisons, suspected terrorists in pre-trial or administrative detention can expect to experience much of the following: denial of recreation and exercise, sleep deprivation and intrusive night-time cell checks, subjection to long periods of cold or extreme light, frequent strip searches, blindfolding, abuse of detainees’ religion, threats related to their national origin, beatings and other methods of coercion to incriminate fellow detainees. And even if eventually released from detention, or found not guilty at trial, once labelled a terror suspect means you are always a terror suspect. Witness the cases of Mustapha Labsi and Farid Hilali, freed in one country only to be rearrested (on the basis of the same secret evidence) and incarcerated in another, with imprisonment with no formal charge stretching on for years on end.
The third feature of this parallel world is the threat of extradition or deportation to countries which practise torture and/or the death penalty (most notably Algeria, Egypt, Jordan, Turkey, Tunisia, Morocco, Libya, Pakistan, Russia and the US) in complete violation of the UN Convention Against Torture. Removal usually takes place through the use of immigration laws which conveniently bypass the more stringent procedural safeguards built into the criminal justice system. In the following pages, a total of 33 cases involve individuals who have either been removed to a country that practises torture (10 cases) or are currently under threat of removal (23 cases). (In one case, a young man died following his removal from Sweden to Libya. Reports indicate that the young political dissident was tortured for nine days by the Libyan security services before his family was contacted and told to collect the corpse.)
The UK has even gone so far as attempting to undermine the whole philosophy of the UN Convention Against Torture by arguing (unsuccessfully) before the European Court of Human Rights that the right of a person to be protected from torture or ill-treatment should be balanced against the risk the suspect posed to the deporting state. In practice, though, it is France and Italy which have gone furthest in undermining the Convention, through the handing over of terror suspects to Algeria and Tunisia, despite their long history of torture. It is unbelievable that at the same time as several European countries conduct inquiries into complicity with the US system of extraordinary rendition and torture, they establish a new system for administrative rendition which will increase the risk of torture still further. And it is not only foreign nationals or asylum seekers who are at risk of deportation to torture, but, in a number of cases, French Muslim citizens of Algerian origin have actually been stripped of their French nationality and deported. Now many Muslims of dual Spanish-Moroccan nationality living in the North African enclaves of Ceuta and Melilla (where Mohamed el Bay is currently under threat of extradition to Morocco) watch nervously as a close partnership develops between the Spanish and Moroccan intelligence agencies. If the extradition of Mohamed el Bay goes ahead, could other Spanish Muslims not have their nationality revoked?
The final feature of this parallel criminal justice system is secrecy. Special courts are set up for foreign nationals under threat of deportation on national security grounds, with the use of secret evidence justified on the basis that the evidence against the appellant is too sensitive for disclosure to him or her. The interests of the appellant are represented by a state-appointed ‘special advocate’ who, after being given access to classified evidence, is barred from contact with the appellant or his lawyers. Disturbingly, the UK’s much discredited Special Immigration Appeals Commission (SIAC) could be the model for other countries, such as Denmark and Norway, to follow. (Germany already has a special panel within the Federal Administrative Court in Karlsruhe which acts as the sole court of appeal in national security expulsion cases.)
This is what makes the parallel world that emerges from a separate criminal justice system so Kafkaesque. Terror suspects can be left to rot in prison for years without knowing what the evidence is against them. Not only that, but this secret evidence is linked to Europe’s growing acceptance of evidence extracted under torture. Too often it emerges that those held within the special detention regime are there because another ‘terror suspect’, tortured under interrogation in countries such as Pakistan, Algeria, United Arab Emirates, as well as at Guantánamo Bay, has incriminated them. Although the European Court of Human Rights has recently condemned the reliance on secret evidence, we do not anticipate that its use will diminish.
At the very heart of this parallel criminal justice system, lies a political culture in which torture, and its evidential by-products, are seen as a necessary evil in the ‘war on terror’. To accept that our intelligence services ‘outsource’ torture as part of an official interrogation policy, to accept that our governments can mount prosecutions on the basis of secret evidence extracted under torture, is to eat away at justice and to degrade public morality.