Are recent measures taken by States in the fight against the Foreign Fighters phenomenon compliant with International Human Rights?

General indication points:
– Be more precise. For example, when mentioning an obligation, be precise as to who has this obligation, what it requires that actor to do, and where the obligation comes from. If you don’t include this information it is not clear to the reader what you are arguing, and sometimes even what actor you are referring to. This will be clear from some of the comments in the text.
– Need to improve the structure. There needs to be one clear line of reasoning running through the piece.
– Approach it in a much more systematic way.

Table of Contents
Introduction 3
Chapter 1 –Human Rights Obligations of States in the Fight Against Terrorism and the Phenomenon of Foreign Fighters 7
Chapter 2 – States Measures Against Foreign Fighters 10
2.X Conclusion 23
Chapter 3 – The exceptionalist approach to terrorism as the justification in the fight against foreign terrorist fighters (EVALUATION, PROPOSAL FOR CHANGE AND CONCLUSION – E.I. STRUCTURE) 25
Conclusion 27
Bibliography 28

 
Introduction

Structure of the introduction (remove titles when done):
1. Purpose of this study
Evolution of terrorism (new methods and characteristics, including higher mortality) accompanied by evolution in the fight against terrorism. How legislation adopted after an act of terrorism gets less attention and some texts that would not have been adopted in a scenario of normality then gets adopted. PH ideas from: Oehmichen, A.; Terrorism and anti-terror legislation – the terrorised legislator? A comparison of counter-terrorism legislation and its implications on human rights in the legal systems of the United Kingdom, Spain, Germany, and France.
2. The RESEARCH QUESTION: Have States complied with International Human Rights in their recent fight against Foreign Terrorist Fighters?
Develop the question – describe FTF and recent fight then go on how states measures will be assessed.
Research question: Are recent measures taken by States in the fight against the Foreign Fighters phenomenon compliant with International Human Rights?
The main questions in this work are:
– What obligations are States bound by when fighting Terrorism and Foreign Fighters?
– Are States violating these obligations? Which obligations and how?
–
3. Approach: two step approach
4. Methodology: ??
Cite what sources will be used here: Legal sources but also NGO reports, news reports, ALL TYPES.
Limited data on the implementation of Resolutions by States available – 3 reports by the UN but from 201?, HRW report, but other than that not so much! Review will be based on data available + adoption of measures by states after 2014 + fact that these measures are in line with resolutions + when they are adopted they do not necessarily mention they were adopted because of the resolution but because of the status of SC decisions they have an important impact on international legislation.

5. Overview of all chapters of the thesis – how will chapters be divided.
In the recent years the world has seen multiple terrorist attacks in various locations. From the attacks in France, passing through Turkey, Belgium, Libya, Iraq and Syria, a large number countries were the stage of such atrocities. As former Secretary General of the United Nations (UN) Kofi Annan stated in the post 9/11 scenario, “terrorism is a global threat with global effects; (…) its consequences affect every aspect of the United Nations agenda” . This global threat has consequently motivated a global response.
Many of the recent terrorist attacks were Jihadist attacks. DEFINITION OF JIHADIST ATTACK. GROWING NUMBER OF JIHADIST ATTACKS.
One of the focus of the global reaction to terrorism and more specifically jihadist terrorism is on the foreign terrorist fighters phenomenon, characterized by individuals which voluntarily leave their state to participate in a conflict in another territory . This phenomenon was present over time in multiple conflicts . However, the number of foreign terrorist fighters in both Iraq’s and Syria’s conflict together can be estimated at more than 30,000 individuals, number that is considered to be the highest in any conflict in history . It is difficult to have an exact number of foreign terrorist fighters in recent conflicts, since studies on the mobilization of individuals in such cases is limited due to unreliable sources and lack of information .
The foreign fighters phenomenon has drawn the attention of States not only for the contribution of the fighters to the foreign conflict, but mainly for the fear of the involvement of the fighters in terrorist acts upon their return . Foreign terrorist fighters returnees have been linked to the planning of attacks or even perpetration one in the case of Mehdi Nemmouche – to be completed with the participation of foreign terrorist fighters in recent attacks.
The number of foreign terrorist fighters has significantly dropped since 2015 and the number of returnees in 2017 was also minimal . Nevertheless, the threat foreign terrorist fighters pose is not negligible, since they are usually highly motivated and have had exposure to combat. They pose a short term and a long-term threat, possibly acting many years after their return. Returnees may also have a role in radicalizing their entourage.
Many States have acted against such a threat. Even though being a universal concern, terrorism is a territory of international law where it is very difficult to arrive into an agreement between states on definitions, actions and its limits. States have tried for long to reach an agreement on an eventual general convention on the matter, but this was never possible due to conflicting views on several points, such as definitions of what are terrorist groups, etc – check what definitions . Despite the discrepancies among States, the events of 9/11 pushed the international community to act with urgency and led to different actions taken under the UN framework. State action was very much guided by an approach based on the exceptional character of the international terrorism threat . US President George Bush even named the post 9/11 action against terrorism as a “war on terror” .
LINK WITHIN PARAS.
This work will address the LEGAL QUESTIONS, more precisely the measures addressing the foreign fighters phenomenon. It will start by …. It will then address the question of ……. in a second chapter. Subsequently, it will approach the …….. in a third chapter. This work is not exhaustive, it will not cover all the issues surrounding the UN counter-terrorism approach nor all possible human rights violations.
ADD: IDEA OF BALANCE BETWEEN MEASURES JUSTIFYIED BY SECURITY CONCERNS AND INDIVIDUAL AND COLLECTIVE RIGHTS – UN FRAMEWORK AND STATES MEASURES OF STATESPORLY BALANCES THESE INTERESTS

INTRODUCE URGENCY AND EXCEPTIONALIST APPROACH

Add CH3 with the idea that the repressive legislation treated in the thesis often creates a vicious circle: “vicious circle, in which one terrorist act is answered by repression, the repression responded to by an even more violent terrorist act, which in turn is followed by more repressive measures, and so on”.

 
Chapter 1 –Human Rights Obligations of States in the Fight Against Terrorism and the Phenomenon of Foreign Fighters
(KEEP SHORT – Titles just for organisation, DELETE TITLES IN THE END)
1. INTERNATIONAL HUMAN RIGHTS LAW
While countering the terrorism (CONNECTION TO INTRO), States are bound by international human rights obligations. These obligations refer to the rights of “individuals and groups that are recognised as such in international treaties and declarations as well by customary international law”.
2. What are states bound by
The human rights framework used in this study, starts with the UN Charter, which in its Article 55, states:
“With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:
a. higher standards of living, full employment, and conditions of economic and social progress and development;
b. solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and
c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”.
The article is followed by Article 56, where States pledge to act with the UN, together with other states or individually, in order to accomplish the goals introduced by Article 55.
Several human rights conventions were adopted over the years, protecting these rights. The Universal Declaration of Human Rights (UDHR) is considered to complement the UN Charter in setting out the human rights framework UN Member States have to follow. The International Covenant on Civil and Political Rights (ICCPR), with 173 States Parties, and the International Covenant on Economic, Social and Cultural Rights (ICESCR), with 170 States Parties, are other two fundamental instruments of international human rights law.
Other important written sources are thematic instruments such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Rights of the Child. Regional instruments are also an important source, as the European Convention on Human Rights (ECHR), American Convention on Human Rights (ACHR) and the African Charter on Human and Peoples Rights (AChHPR). In addition, texts adopted by the European Union (EU) and the Organization for Security and Co-operation in Europe (OSCE) are also of great relevance. (ADAPT TO MENTION ALL TREATIES TREATED IN THE THESIS).
(add ph on customary HRL if necessary for CH2)
3. What can be the exceptions
It is important to note however, that human rights can be limited in certain cases. Each source will deal with conditions and limits for restrictions in a different way. The ICCPR for example allows restrictions on the rights protected by this instrument when they “are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant” . The UDHR, in its article 29, allow limits on the rights protected when they are determined by law and when they meet the requirements of “morality, public order and the general welfare in a democratic society”.

4. Enumerate rights that will be treated + sources + exceptions

 
Chapter 2 – States Measures Against Foreign Fighters
LACK OF BALANCE AND JUSTIFICATION – THEREFORE VIOLATION.
Most terrorist attacks motivate the search for new strategies by the affected countries on how to fight terrorism. The most significant recent shift of approach in the fight against terrorism came with the events of 9/11, and it was made based on what was considered as the urgent character of the response of the attacks.
In a reaction to 9/11, the Security Council passed unanimously Resolution 1373 . This resolution, aiming to combat international terrorism, affirms the acts of 9/11 “like any act of international terrorism, constitute a threat to international peace and security”.
This Chapter will introduce the …….
URGENT CHARACTER + BROAD.
1. UN Measures – intro to topic
3 UN resolutions
All three resolutions cited refer to the necessity for States to comply with obligations under international law, in particular international human rights law, international refugee law and international humanitarian law when complying with obligations from the resolutions. However, the approach taken by Member States to address the foreign fighters phenomenon could in some aspects violate human rights. The broad obligations imposed by the Security Council appear as problematic since they may serve in some cases as legitimisation to these measures. This effect is contrary to the spirit of the resolutions themselves since they refer several times to comply with international obligations including human rights obligations .
The lack of definition of terrorism results in a limitless approach States could take when adopting measures on the fight against foreign terrorist fighters = definition of terrorism may be different from state to state, broader. Council also leaves open who are the terrorist groups states will target – another danger. Repressive States could use it against opposes to the government, etc.
Several measures can be targeted as problematic regarding IHRL. This research will focus on strip of nationality, limitation on freedom of movement, family and private life…. Limit the topic in the intro!!
The ‘foreign terrorist fighter’ definition given in Resolution 2178 being a broad one, it allows for possible abuses by states when adopting counter-terrorism measures. The criminalization of the attempt to join terrorist groups in Syria and Iraq for terrorist acts for example has the difficulty of not specifying how to identify when an individual has an intention of participating in terrorist acts, especially since there is no definition of what is a ‘terrorist act’. This may lead to ethnic profiling or even on actual prohibition to travel to designated countries . Additionally, some individuals joining the targeted terrorist groups do not have the intention of participating on terrorist acts, such as wives and children of fighters, for whom the qualification can raise a lot of issues . Both resolutions refer to specific terrorist groups, and Resolution 2178 leaves open to states to include other terrorist groups. States have the power to qualify certain groups as terrorists, and consequently criminalize the act of joining them with the intention of committing terrorist acts. How states designate terrorist groups can also be an issue in this broad framework, allowing states to qualify certain groups as terrorists without a method of qualification and also without a definition of what is a ‘terrorist group’.

LIST OF HUMAN RIGHTS THAT CAN BE TREATED:
“The following rights turned out to be at a special risk to be limited:
• right to liberty of movement (extended police custody and detention on remand);
• inviolability of the home (house searches, bugging operations);
• right to privacy (telephone tapping etc.);
• freedom of association (e.g. banning of certain associations);
• freedom of conscience (e.g. incitement to terrorism);
• prohibition of discrimination / equality before the law (e.g. special treatment of foreigners).
Moreover, the following basic procedural human rights have been limited in antiterror laws:
• Right to defence;
• right to ordinary judge;
• right to legal remedy;
• equality of arms;
• right to remain silence and not to incriminate oneself;
• contradictory hearings, i.e. that witnesses are heard in court so that both the prosecution and the defence can put question to them
There is also an enhanced risk that less attention than necessary is given to general criminal law principles. In particular, the following principles proved to often be ignored:
• the principle of legal clarity and certainty,28 as enshrined in the principle of legality;
• prohibition of analogy of criminal laws;
• the principle that only the more favourable law may be applied retroactively;
• the presumption of innocence (e.g. by reversing the burden of proof);
• principles of minimal intervention (ultima ratio) and proportionality.”

2.1 Travel bans and Passport removal or cancellation
Measures going from removing or cancelling passports and travel bans were adopted by several states following the obligations imposed by the Security Council Resolutions on foreign fighters . The United Kingdom, France, Italy, The Netherlands, The United States, Australia and Tunisia are some examples. In some cases, these measures limit human rights in ways that are unjustified and disproportionate .
Germany adopted in 2014…..
“Under the new legislation, national identity cards and passports of German citizens who constitute a threat to the internal or external security or to other significant interests of Germany may be revoked. Instead of national identity cards they will be issued substitute identity cards, accompanied by the words “not valid for travel outside of Germany.” (Identity Card Act, § 6a.) According to the German Minister of the Interior, this will prevent foreign fighters from traveling to Syria or other countries by way of third (Schengen) countries for which they only require a national identity card. (Rede des Bundesministers des Innern, Dr. Thomas de Maizière[Speech of the Federal Minister of the Interior, Dr. Thomas de Maizière] (Jan. 14, 2015), German Federal Government website.)
Reactions to the Legislation
Representatives of the opposition parties and some criminal attorneys have criticized the legislation as unconstitutional, because, in their view, it makes a crime of a moment too far in advance of an actual criminal act or an attempt and thereby criminalizes neutral behavior. (Constantin Baron van Lijnden, Regierung beschließt Entwurf neuer Anti-Terror-Gesetze. Strafbarkeit im Vorfeld des Vorfeldes? [Government Agrees on Draft for New Anti-Terrorism Legislation. Criminal Liability for Preparation of Preparatory Behavior?], LTO.DE (Feb. 4, 2015).) Furthermore, they point out the possible difficulties of providing evidence of the intent to receive terrorist training. (Bundestag verschärft Anti-Terror-Gesetze.Ausbildung im Terrorcamp wird strafbar [Bundestag Expands Anti-Terrorism Legislation. Training in a Terrorist Camp Will Become a Crime], STERN.DE (May 28, 2015).)
The German government, on the other hand, maintains that foreign fighters and other sympathizers of terrorist organizations have been more than eager to share their intentions of joining or supporting a terrorist organization on social media. In addition, the German Minister of Justice says the new legislation was needed to close a loophole in the existing Criminal Code. (Id.) The parliamentarian Dirk Wiese of the German Social-Democratic Party (SPD) stated, “no government should be allowed to ignore the fact that its citizens bring death and misery to the world. Terrorism shall not become an export commodity.” (Bundestag verschärft Anti-Terror-Gesetze [Bundestag Expands Anti-Terrorism Legislation], WELT.DE (Apr. 23, 2015).)”

OTHER EXAMPLES
Measures such as the strip of nationality while one is abroad is also a limit to the freedom of movement. The Human Rights Committee, when interpreting paragraph 4 of Article 12 of the ICCPR (“No one shall be arbitrarily deprived of the right to enter his own country”) has stated:
“The wording of article 12, paragraph 4, does not distinguish between nationals and aliens (“no one”). Thus, the persons entitled to exercise this right can be identified only by interpreting the meaning of the phrase “his own country”. The scope of “his own country” is broader than the concept “country of his nationality”. (…)The language of article 12, paragraph 4, moreover, permits a broader interpretation that might embrace other categories of long-term residents, including but not limited to stateless persons arbitrarily deprived of the right to acquire the nationality of the country of such residence”.
The Committee goes further and states:
“The Committee considers that there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable. A State party must not, by stripping a person of nationality or by expelling an individual to a third country, arbitrarily prevent this person from returning to his or her own country”.
Therefore, in cases where nationals are deprived of their citizenship while abroad they should have the right to enter their previous state of nationality. This is especially true because returning to the state in question would allow for proper contestation of the decision.

2.2 Revocation of citizenship
Several states have adopted measures allowing the revocation of citizenship in the fight against foreign fighters. In some cases they may be done without any previous criminal charges. States that have adopted measures allowing the strip of nationality include the United Kingdom, Belgium, the Netherlands, Australia and Bahrain.
The United Kingdom allows for very broad measures to be taken, including stripping the nationality of UK citizens when this would become stateless. The Home Secretary has the power to do so if “deprivation is conducive to the public good because the person has conducted themselves ‘in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory’; and has reasonable grounds to believe that the person is able to become a national of another country or territory under its laws”. The possibility is defined in broad terms and is a clear violation of the UDHR.
OTHER EXAMPLES
In case of duo-citizens, if they suffer from a revocation of citizenship measure and their second state of nationality places them in immigration centres indeterminately, they would be effectively stateless. It is also important to take into consideration the treatment that the individual will receive in their other state of nationality because in some cases individuals may face torture or ill treatment. It is therefore necessary to analyse each individual case for this type of measures. Individuals who see these measures applied to them must be able to contest them effectively.
 Check – I believe most people that are deprived of one of their citizenships, it is often the state where they have lived their entire life, have their family, private life, language, etc.
– Due process – possible violation of
o “The absence of judicial process for revoking citizenship in certain cases, particularly for individuals never convicted of a crime, erodes due-process rights recognized under international law, including the presumption of innocence, the right to a fair trial, and the right to appeal”.
o “With respect to procedural safeguards, foreign fighters may not be given a full explanation following a decision to expel them for reasons of national security, which may impede their ability to challenge the decision.470 If the decision is taken while they are abroad, foreign fighters may find it impossible to challenge471 and may also miss the deadline to file their appeal.472 Further, if the decision has immediate effect (as in the UK), they will not be able to appeal from within the country.473 Finally, procedural safeguards may be inadequate if the standard of review grants a wide margin of discretion to the executive. In the UK, the only successful challenges against revocations of citizenships have been made when individuals were rendered stateless.474”
o “See also Art. 8(4), 1961 Convention on the Reduction of Statelessness, which specifies that states shall not deprive an individual of his or her nationality ‘except in accordance with the law, which shall provide for the person concerned the right to a fair hearing by a court or other independent body’. See also Art. 12, European Convention on Nationality.”
– Effectiveness of measures stripping nationality
o “The effectiveness of stripping citizenship as a means of confronting a transnational terrorist threat is questionable. Banishment risks transferring control of terrorism suspects to governments that may not prosecute them. Moreover, terrorists who learn or suspect they are non grata may simply commit attacks elsewhere, including on foreign-based facilities of the country that revoked their citizenship”.
– Way forward – Canada’s example – and maybe others?
o “In one of the few attempted reforms worldwide of potentially abusive measures spawned by Resolution 2178, Canada may repeal a measure implemented in 2015 that allows the government to revoke the citizenship of dual nationals convicted of serious national security crimes, including terrorism.55”.
– Right to family and private life
The revocation of citizenship can have as a consequence the violation of the right to family and private life. Article 8 of the ECHR, Article 17 ICCPR? Deprivation of citizenship or exclusion orders = can violate these rights.
– Violation of the Prohibition of torture and other inhumane or degrading treatment

2.3 Right to a fair trial and other due process guarantees

– No review mechanism?
– No UN mechanism – parallel with Sanctions regime – but different because there is no actual UN list, it is based on state’s actions (? check)
– Arbitrary Detention
– “Preventive Detention and Control Orders” – Letta Tayler p. 472
– “Lengthy Pre-Change and Pre-Trial Detention” – Letta Tayler p. 474
– “Special Courts, Secret Evidence” – Letta Tayler p. 476
– Mistreatment, torture
– “Tougher Penalties, Including Death” – Letta Tayler p. 477

o Prohibition of arbitrary detention + punishment without appropriate charges
“In tandem with measures banning suspected “FTFs” from travel abroad, many governments have imposed preventive detention or “control” measures on terrorism suspects that severely restrict their movements at home.
Prevention detention and control measures limit people’s liberty on the suspicion that they may intend to commit a criminal act in the future. This is in marked contrast to pre-charge or pre-trial detentions, or post-conviction sentences, which apply to people who are suspected or found guilty of committing a criminal offense in the past.
International human rights law limits preventive detention to exceptional, narrowly defined circumstances.6 Control orders typically include curfews, extensive home confinement, forced domestic relocation, and restrictions on where targeted people can pray, whom they can visit, what websites they can access, and even what over-the-counter substances they can consume – measures that can violate the rights to freedom of movement, religion, association and expression, as well as the rights to privacy and family life.”
– “Lengthy Pre-Charge and Pre-Trial Detention”
“Another trend in “FTF” laws is the authorization of extensive pre-charge or pre-trial detention to periods that clearly exceed international guidelines. In some cases this detention includes periods in which the detainee is denied access to family members, counsel, or both.
Countries with excessive pre-charge or pre-trial detention periods include Chad, Egypt, France, Malaysia, Poland, Saudi Arabia, Spain, Tunisia, and Turkey.
International standards require “prompt” judicial review of detention.72 The UN Human Rights Committee (HR Committee), which oversees states’ compliance with the ICCPR, has elaborated that pre-charge custody without judicial review should not exceed 48 hours, saying longer periods “unnecessarily increase the risk of ill-treatment.” The HR Committee stated that any further delay must remain exceptional and be justified by the circumstances.73 =ICCPR art 9(3)
The UN special rapporteur on torture has also warned that “torture is most frequently practiced during incommunicado detention.”74 These laws also facilitate violations of the internationally protected rights to liberty and fair trials.75”

o Due trial
“Special Courts, Secret Evidence
Another mainstay of the new counterterrorism laws with “FTF” provisions are proceedings, often by special courts and administrative boards, that flout international due-process standards. Countries that have enacted or increased use of such measures include Canada, Egypt, Israel, Pakistan, Saudi Arabia and Tunisia.”
ICCPR art 17
“Tougher Penalties, Including Death
Several recent laws prescribe tougher penalties, including the death sentence, for terrorism-related offenses than do ordinary criminal laws for the same underlying acts. In countries including Chad, Egypt, Pakistan, and Saudi Arabia, these penalties include the death penalty.
Serious crimes should allow serious penalties. Combined with overly broad definitions of terrorism and trials that fail to meet international due-process standards, however, tougher penalties could result in lengthy imprisonment or executions of peaceful dissidents and others who have no connection to terrorism.
International law discourages the use of the death penalty and limits its use to the most serious crimes, such as those resulting in death or serious bodily harm.89 In 2008 the UN General Assembly adopted a moratorium on the death penalty, noting that “any miscarriage or failure of justice in [its] implementation . . . is irreversible and irreparable.”90”

o Prohibition against discrimination
Articles 2, 3, 26 ICCPR
o Freedom of religion (& thought)
Article 18 UDHR [freedom of thought, conscience and religion], Article 18 (HR Committee General Comment “on scope and meaning of this article”) [freedom of thought, conscience and religion/religion or belief] and 27 [ethnic, religious or linguistic minorities shall not be denied the right to enjoy their own culture] ICCPR
Limitations allowed by art 18 ICCPR =
“3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”
General prohibition on supporting terrorist groups or similar actions – englobing a wide range of actions – p. 464,465,466 – Letta Tayler ‘Foreign Terrorist Fighter Laws: Human Rights Rollbacks Under UN Security Council Resolution 2178’
OTHER SOURCES?
o Freedom of expression (& opinion)
Article 19 UDHR and Art 19 and 20 ICCPR +HR Committee General Comment 34
Limitations:
Freedom of opinion x freedom of expression = not absolute (art 19(3) of ICCPR)
But restrictions are also limited. “It is crucial how restrictions are applied because if wrongly or excessively invoked, they can ‘chill’ the freedom or even eliminate it. Thus, a ground such as national security in the context of counter-terrorism is often misapplied or abused to the detriment of freedom of expression”.
– Defamation

o Right to privacy
May clash with freedom of expression.
– “Expanded Security and Intelligence Powers” in Letta Tayler p. 471
o Right to life
Appropriate judicial review = non-existent at the UN framework

“Expanded Security and Intelligence Powers
Countries including Belgium, Canada, China, France, Israel, Pakistan, Poland, Russia, and Tunisia have expanded police and intelligence powers to hunt down alleged terrorists including “FTFs.” Several provisions allow the security and intelligence services to engage in activities that could violate the rights to privacy, freedom of expression, association and assembly, among others, with virtually no effective oversight.
Poland’s counterterrorism law of 2016 allows surveillance of foreigners for up to three months without a warrant. It also provides potentially overbroad latitude to security force snipers to “shoot to kill.59 United Nations principles on the use of firearms by law enforcement personnel restrict the use of force to the minimal amount necessary to keep order, and allow the use of lethal force only when there is an imminent threat to life.60
The July 2016 version of France’s emergency law, renewed for the fourth time since the Paris attacks of the preceding November, empowers the police to raid homes and other premises, to search luggage and vehicles, and to seize data from computers and mobile phones, all without prior approval from a judge.61
Canada’s counterterrorism law of 2015 allows the Canadian Security Intelligence Service (CSIS) to disrupt activities including protests if it deems them unlawful, and even to violate the country’s Charter of Rights and Freedoms so long as it obtains a warrant in a secret hearing. The law allows unfettered sharing of individuals’ personal information among 17 Canadian government agencies.62”

o Sanctions Regime
“The current two-tier sanctions regime is the third aspect that deserves to be scrutinized while reflecting on the aspects that Resolution 2178 has inherited from the existing UN SC anti-terrorism framework. Resolution 2178 makes explicit reference to both the sanctions regime established by the SC through the adoption of Resolution 126799 and the 1373 sanctions regimes, thus indicating their applicability to foreign terrorist fighters as well as to those who finance or otherwise facilitate their travel and subsequent activities.100 Despite their proclaimed preventive nature, sanctions inflicted through either the centralized regime or the decentralized one have been sharply criticized on human rights grounds, principally for failing to include due process guarantees and independent judicial oversight in the listing and delisting process,101 as well as for their interference with the fundamental right to freedom of movement, property rights, the right to privacy, and the presumption of innocence.102
(…)The independent listing and delisting responsibility of Member States under the 1373 sanctions regime allows them significant discretion to balance, at least in principle, potential conflicts between human rights and security considerations. But due to the lack of an effective supervisory mechanism, some States have been using their duty to comply with Resolution 1373 as an excuse to justify the introduction of dubious legislation and harsh actions against opposition groups.107”

“while the Security Council may have broad authority to impose sanctions, it must observe standards on how sanctions are imposed, even if that means that sanctions are less effective”. = EVEN IF IT IS AN IMPORTANT ISSUE.

2.X Conclusion
The framework set by the UN is clearly flawed, allowing space for States in their implementation to violate their human rights obligations, even if different instruments remind the importance of complying with this area of law. This lack of definition and its broad character for example are very damaging for the UN system, however, it is also necessary to take into account how the UN framework works. The Security Council depends on the agreement of its members, who have a veto power. This system of functioning limits the scope of action of the Council on the matter of counter-terrorism , particularly in this area where getting a global agreement from different states has proved to be extremely difficult . The General Assembly’s action is less difficult, yet the Assembly does not have the power the Council has and even so, agreements are hard to achieve.
In this scenario, it is possible to conclude the UN system is flawed and leave the door open to abuses by states in its application, lacking precise definitions and methods of compliance, as well as limits to states action. The exceptionalist approach while countering terrorism is a dangerous one to take, and it is necessary to consider future consequences to the adoption of present measures. The door is open to human right abuses, amongst others violations of international law.
The UN has come a long way in a scenario where compromise appears as extremely hard, but the framework still has a long way to go.
STATES + TIE ALL TOGETHER

 
Chapter 3 – The exceptionalist approach to terrorism as the justification in the fight against foreign terrorist fighters (EVALUATION, PROPOSAL FOR CHANGE AND CONCLUSION – E.I. STRUCTURE)
– In theory: why problematic
– In practice: what can be done
The measures taken to counter the foreign fighters phenomenon are part of a broader trend – justifying harsh measures by the exceptional character of the circumstances surrounding their adoption.
The global response to the 9/11 events was prompt and very security focused, in a way some commentators affirm side-effects (especially in human rights) were not particularly thought through . Actions taken under the fight against terrorism by the UN have since them evolved, and recent Resolutions mention the importance of complying with international law and specifically international human rights law, refugee law and international humanitarian law.
However, the global fight against terrorism is still done under an exceptionalist approach, utilizing the justification of the urgency and exceptional character of the circumstances to derogate otherwise applicable regimes . Through this justification we see the non-application of certain human rights principles by some states in their counter-terrorism approach. URGENT CHARACTER OF RESOLUTIONS DISCUSSED HERE – perhaps circumstances of the adoption, adopted unanimously, US started, etc. This practice is specifically problematic considering the wide margin of manoeuvre states beneficiate to apply the framework set by the UN on terrorism and foreign fighters.
Lessons learned from the 9/11 aftermath showed us that the exceptionalist approach can lead to abuses such as the Guantanamo detention camp . One can also wonder until when the situation is truly exceptional, and what is the limit on determining when a situation is indeed exceptional, justifying derogating part of international law.
CONNECT WITH REASONING – FF
“Taken as a whole, “FTF” measures flout those restrictions and risk creating a perpetual state of emergency in leading democracies and brutal autocracies alike”.
““FTF” measures have coincided with and in some cases are included in a recent spate of emergency laws enacted in the name of countering terror. These laws vastly increase powers to search, detain, and monitor individuals, to shut establishments such as meeting houses and places of worship, and to ban public gatherings, infringing on basic rights including freedom of movement, expression, and assembly, and the rights to due process and privacy.
Countries that have enacted emergency laws or declared states of emergency since 2014 include Egypt, Ethiopia, France, Hungary, Malaysia, Mali, Tunisia, and Turkey. = UPDATE
While international law allows restrictions to such rights on grounds of national security, as noted above they must be limited to the extent “strictly required by the exigencies of the situation.” Such measures must not discriminate on the basis of race, color, sex, language, religion or social origin.98
Human Rights Watch has documented excessive use of force against protesters in Tunisia and abusive searches and house arrests of Muslims in France under these states of emergency. + Turkey as a good example of the state of emergency used in an abusive way.”

DUFFY CH 1

Approach not only problematic by the many aspects, but also to the most effective. Can be counterproductive and conduce to more radicalisation.
 
Conclusion

Important to always have a balance in counter terrorism measures.
The way forward should be focused on effective measures.
– In theory: why problematic
– In practice: what can be done

 
Bibliography

• Max Planck HR
• Helen Duffy, ‘War on Terror’ and the framework of International Law (2nd edition, Cambridge University Press, 2015), 33
• Barak Mendelsohn, ‘Foreign Fighters-Recent Trends’ (2011) Vol 55 Orbis, 189.
• David Malet accessed on 04/04/2017 – oscola format
• Sandra Kraehenmann, Foreign Fighters under International Law and National Law (Ministerie van Defensie, 2015)
• Isabelle Duyvesteyn, Bram Peeters, ‘Fickle Foreign Fighters? A Cross-Case Analysis of Seven Muslim Foreign Fighter Mobilizations (1980-2015)’, (ICCT Research Paper, 2015), 1 accessed 25/01/2017
• Francesca Capone, ‘Countering “Foreign Terrorist Fighters”: a Critical Appraisal of the Framework Established by the UN Security Council Resolutions’ (2016), The Italian Yearbook of International Law Online, 227 in 228
• Charles Lister, ‘Returning Foreign Fighters: Criminalization or Reintegration?’, Brookings Doha Center Policy Briefing (August 2015), page 2
• Council of the European Union Press Office, ‘The challenge of foreign fighters and the EU’s response’ Factsheet (9 October 2014)
• Geneva Academy of International Humanitarian Law and Human Rights, ‘Foreign Fighters under International Law’ (Geneva Academy Briefing No. 7, 2014), 33
• Larissa Van den Herik and Nico Schrijver, ‘The fragmented international legal response to terrorism’ in Larissa Van den Herik and Nico Schrijver, Counter-Terrorism Strategies in a Fragmented International Legal Order – Meeting the Challenges (Cambridge University Press 2013), 4
• Foreign Fighters under International Law, Geneva Academy briefing, 39 https://www.geneva-academy.ch/joomlatools-files/docman-files/Publications/Academy%20Briefings/Foreign%20Fighters_2015_WEB.pdf = CORRECT OSCOLA FORMAT
• UN Public Information Office, “The Role of the Counter-Terrorism Committee and its Executive Directorate in the International Counter-Terrorism Effort”, (September 2006) accessed on 04/04/2017
• Andrea Bianchi, International Law, Counterterrorism & the Quest for Checks and Balances, in Andrea Bianchi, Alexis Keller, Counterterrorism: Democracy’s Challenge (Hart Publishing, 2008), 415
• Sandra Kraehenmann, Foreign Fighters under International Law and National Law (Ministerie van Defensie, 2015), 8
• Alex P. Schmid, ‘Foreign (Terrorist) Fighters Estimates: Conceptual and Data Issues’ (ICCT Policy Brief, International Centre for Counter-Terrorism, 2015), 5
• Report of the High-level Panel on Threats, Challenges and Change, ‘A more secure world: Our shared responsibility’ UN Doc A/59/565 (2 December 2004), para. 157
• Letta Tayler, ‘Foreign Terrorist Fighter Laws: Human Rights Rollbacks Under UN Security Council Resolution 2178’ (2016), International Community Law Review, 455, in 463
• “Foreign Terrorist Fighter” Laws Human Rights Rollbacks Under UN Security Council Resolution 2178 – OSCOLA https://www.hrw.org/sites/default/files/news_attachments/ftf_essay_03feb2017_final_pdf.pdf
• Ilias Bantekas and Lutz Oette, ‘Human rights and counter-terrorism’in Ilias Bantekas and Lutz Oette, International Human Rights, Law and Practice – OSCOLA