The criminalisation of travel as a global paradigm of preventive (In)justice: Lessons from the EU response to ‘foreign terrorist fighters’
| Published date | 01 June 2023 |
| DOI | http://doi.org/10.1177/20322844231171499 |
| Date | 01 June 2023 |
| Subject Matter | Special Issue Articles |
Special Issue Article
New Journal of European Criminal Law
2023, Vol. 14(2) 183–205
© The Author(s) 2023
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DOI: 10.1177/20322844231171499
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The criminalisation of travel as
a global paradigm of preventive
(In)justice: Lessons from the
EU response to ‘foreign
terrorist fighters’
Valsamis Mitsilegas
University of Liverpool, UK
Abstract
This article aims to evaluate critically the evolution of the preventive paradigm of security law by
focusing on the criminalisation and surveillance of mobility which has been labelled as ‘terrorist
travel.’The article will highlight the impact of the political imperative of tackling the phenomenon of
‘foreign terrorist fighters’on the emergence of a global preventive paradigm of criminalisation of
travel. The article will focus on the establishment of a preventive paradigm of criminalisation of
travel in EU law, and its interactions with the global governance of counter-terrorism as renewed by
the fight against ‘foreign terrorist fighters.’The first part of the article will focus on the emergence
of a multi-level paradigm of criminalisation of ‘terrorist travel’, while the second part will focus on
the surveillance of travel through the collection, transfer and analysis of passenger name record
(PNR) data. The article will cast light on the role of the political rhetoric on the fight against ‘foreign
terrorist fighters’in the evolution of this paradigm and highlight the challenges that this multi-
faceted system of criminalisation and surveillance of travel pose for fundamental rights and the rule
of law. A key challenge in this context is the extent to which the European Union is able to uphold its
internal fundamental rights and rule of law safeguards in the evolution of a global paradigm of
criminalisation of travel.
Keywords
Foreign terrorist fighters, terrorism, terrorist travel, criminalisation of travel, surveillance,
passenger name records, legality, privacy, data protection, fundamental rights, rule of law,
preventive justice
Corresponding author:
Valsamis Mitsilegas, University of Liverpool, Chatham Street, Liverpool, L69 7ZR, UK.
Email: V.Mitsilegas@liverpool.ac.uk
Introduction
The evolution of global counter-terrorism policy in the past twenty years has been marked by a shift
towards prevention and pre-emption - with criminal law focusing not so much on the past (on the
prosecution of offences which have already been committed), but rather on the future (aiming to
prevent or pre-empt the occurrence of future risks and threats to security).
1
This paradigm of what
has been labelled ‘preventive justice’
2
takes flesh by the establishment of a number of new criminal
offences, called ‘precursor crimes’,
3
or anticipatory offences,
4
which criminalise conduct which is
removed from the commission of an actual terrorist offence. Rather than targeting the commission
of actual terrorist offences, preventive precursor crimes target increasingly every day, ordinary,
prima facie lawful behaviour which is significantly removed from the commission of such offences -
representing a shift from criminalising acts to criminalising dangerousness.
5
This trend is also
discerned in the second tenet of the preventive justice paradigm, namely the proliferation of
mechanisms of preventive and pre-emptive large-scale surveillance - where the State collects in
a generalised and indiscriminate manner personal data emanating from every day activities with the
aim of using these data for pre-emptive risk analysis of all citizens, including those not directly
linked with the commission of a criminal offence.
6
1. Caeiro notes that as distinct from common criminal law,prevention is no longer used to signify the goal of punishment-
instead, it describes police activity stricto sensu, i.e. the development of strategies to prevent risk from materialising into
damage: Pedro Caeiro, ‘Concluding Remarks’in Francesca Galli and Anne Weyembergh (eds), EU counter-terrorism
offences. What impact on national legislation and case-law? (Editions de l’Universit´
e de Bruxelles, 2012) 310.
2. Andrew Ashworth and Lucia Zedner, Preventive Justice (Oxford University Press, 2014).
3. Manuel Cancio Meli´
a and Anneke Petzsche, ‘Precursor Crimes of Terrorism’in Genevieve Lennon and Clive Walker
(eds), Routledge Handbook of Law and Terrorism (Routledge, 2017) 194-205. At p. 195, they note that the alleged
purpose of precursor crimes is to combat the dangerousness or risks posed by terrorists even while ‘only’preparing
a terrorist offence.
4. Ulrich Sieber, ‘Risk prevention by means of criminal law. On the legitimacy of anticipatory offenses in
Germany’s recently enacted counter-terrorism law’, in Francesca Galli and Anne Weyembergh, op. cit., 255.
5. Caeiro notes that laws are no longer meant to work to prevent terrorist acts as criminal offences - rather,they are intended
to control terrorists, conceived as an absolute them as opposed to us, with the purpose of law being to identify them as
terrorists before they can violate these norms (Pedro Caeiro, op. cit., 309-310); Sajó notes that prevention requires
considering all citizens and non-citizens as risk factors and that preventive measures affect everyone in the society - all
citizens are treated as being, at least to a small extent, potential terrorists (Andr´
as Sajó, ‘From Militant Democracy to the
Preventive State?’in Petra B´
ard (ed.), The Rule of Law and Terrorism (Budapest HVG-ORAC, 2015) 108 and 82
respectively).
6. On aspects of pre-emptive surveillance, see the contributions in Louise Amoore and Marieke de Goede, Risk and the War
on Terror (Routledge 2008) and in particular their introductory chapter ‘Introduction: Governing by risk in the war on
terror’5-20; see also ValsamisMitsilegas, ‘Surveillance and Digital Privacy in the Transatlantic ‘War on Terror.’TheCase
for a Global Privacy Regime’(2016) 47 Colum. Hum. Rts. L. Rev. 1; and ValsamisMitsilegas, ‘The Transformation of
Privacy in an Era of Pre-Emptive Surveillance’(2015) 20 Tilburg Law Rev. 35.
184 New Journal of European Criminal Law 14(2)
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