Counterterrorism and the rule of law in an evolving European Union: plus ça change?
| Author | Valsamis Mitsilegas |
| Published date | 01 March 2021 |
| Date | 01 March 2021 |
| DOI | http://doi.org/10.1177/2032284420971783 |
| Subject Matter | Articles |
Article
Counterterrorism and the rule of
law in an evolving European
Union: ?
Valsamis Mitsilegas
Queen Mary University of London, UK
Abstract
By taking the European Union (EU) as a principal focal point, this chapter will evaluate critically the
rule of law challenges arising from the production and operation of counterterrorism norms. The
article will focus on four case studies, two involving the rule of law ex ante (at the stage of adoption
of EU law) and two involving the rule of law ex post (looking at its impact). In terms of ex ante rule
of law challenges, the chapter will analyse the production of binding standards by the global
executive and the trickle-down effect of these standards at the regional, EU and national level and
the limits of scrutiny and justification of counterterrorism legislation on emergency grounds. In
terms of rule of law ex post, the chapter will examine challenges of counterterrorism law to the
principle of legality via over-criminalisation and the adoption of vague and broad definitions of
terrorism, as well as challenges to the right to a fair trial and principle of effective judicial pro-
tection resulting from state arbitrariness in the mechanism of producing terrorist sanctions. The
contribution will question whether the entry into force of the Lisbon Treaty, and the process of
constitutionalisation of criminal law it entailed, has made a difference regarding the compliance of
EU counterterrorism law with the rule of law.
Keywords
Rule of law, terrorism, foreign fighters, UNSC, FATF, listing
Introduction
Counterterrorism norms have been produced in a complex, multilevel and multi-source frame-
work, involving a number of actors at the global, regional and national level. These norms have
been adopted as a matter of urgency, with the post-9/11 legal landscape has been characterised by
the introduction of a series of exceptions to fundamental legal principles underpinning liberal
Corresponding author:
Valsamis Mitsilegas, Department of Law, Queen Mary University of London, Mile End Road, London E1 4NS, UK.
E-mail: v.mitsilegas@qmul.ac.uk
New Journal of European Criminal Law
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DOI: 10.1177/2032284420971783
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plus
ça change
Mitsilegas 37
democracies and by the gradual norm alisation by legislators of the state of emergency.
1
The
European Union (EU) has responded in a similar vein, backed largely by the intergovernmental
framework for the adoption of criminal law under the third pillar.
2
This contribution will examine
critically the challenge that the production of EU counterterrorism norms under an emergency
framing has on the rule of law. The concept of the rule of law has both substantive and procedural
dimensions. In a leading analysis of the concept in a domestic context, Craig has distinguished
between formal and substantive meanings of the rule of law, with formal meanings addressing the
manner in which the law was promulgated, the clarity of the ensuing norm and the temporal
dimension of the enacted norm while substantive meanings focusing on substantive rights deriving
from the rule of law.
3
A similar rule of law taxonomy has been put forward by Tamanaha, who also
distinguishes between formal and substantive versions of the rule of law
4
: moving from thinner to
thicker categories, formal rule of law versions start with rule-by-law (law as instrument of gov-
ernment action), moving to formal legality (law is general, prospective, clear, certain) and then to
rule of law as democracy and legality (consent determines content of law). Substantive versions of
the rule of law focus on the protection of individual rights, moving to the right of dignity and to
justice, and ultimately to social welfare.
5
Tamanaha eloquently stresses the importance of ‘rule of
law, not man’, as man is arbitrary.
6
Key elements in Tamanaha’s typology are reflected in the
theorisation of the rule of law by the late Lord Bingham, former President of the UK Supreme
Court. According to Bingham, the core of the rule of law principle is that ‘all persons and
authorities within the state, whether public or private, should be bound by and entitled to the
benefit of laws publicly made, taking effect (generally) in the future and publicly administered in
the courts’.
7
Bingham’s understanding of the rule of law is based primarily on procedural aspects,
including the accessibility of the law, the requirement for law and not discretion,
8
limits to the
exercise of public power, the provision of means enabling dispute resolution without prohibitive
cost or inordinate delay
9
and compliance by the state with its obligations in international law as in
national law. However, rule of law also includes substantive aspects including equality before the
law and the protection of human rights including the right to a fair trial.
10
A similar conceptualisation of the rule of law has been put forward in the context of the law of
the EU, where the rule of law is recognised as a key value of the Union,
11
by the European
Commission.
12
According to the Commission, the rule of law is based on a non-exhaustive list
of principles including legality, which implies a transparent, accountable, democratic and
1. On responses in the United States, see among others Bruce Ackerman, Before the Next Attack (Yale University Press,
London 2007); Jeremy Waldron, Torture, Terror and Trade-Offs – Philosophy for the White House (OUP, Oxford
2010); Kent Roach, The 9/11 Effect (CUP, Cambridge 2011).
2. See among other Cian Murphy, EU Counter-Terrorism Law: Pre-emption and the Rule of Law (Hart, Oxford 2012).
3. Paul Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ (1997) 16 PL 467.
4. Brian Tamanaha, On the Rule of Law: History, Politics, Theory (CUP, Cambridge 2004).
5. Ibid, 91.
6. Ibid, 122.
7. Tom Bingham, The Rule of Law (Allen Lane, London 2010) 8.
8. Ibid, ch 4.
9. Ibid, ch 8.
10. Ibid, ch 7.
11. Article 2 TEU.
12. European Commission, ‘A New EU Framework to Strengthen the Rule of Law’ (Communication) COM (2014) 158
final.
2New Journal of European Criminal Law XX(X)
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