Counterterrorism and the rule of law in an evolving European Union: plus ça change ?

Introduction

Counterterrorism norms have been produced in a complex, multilevel and multi-source framework, 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 democracies and by the gradual normalisation 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 government 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 pluralistic process for enacting laws; legal certainty; prohibition of arbitrariness of the executive powers; independent and impartial courts; effective judicial review including respect for fundamental rights; and equality before the law. ¹³ The Commission perceives the rule of law as a constitutional principle with both formal and substantive components, meaning that respect for the rule of law is intrinsically linked to respect for democracy and for fundamental rights. ¹⁴ From these different theorisations of the rule of law, a further categorisation emerges: rule of law ex ante, which relates to principles which are applicable in the lawmaking process (including legality, transparency and democracy); and rule of law ex post, which includes principles which are applicable after the enactment of legislation (including legal certainty, prohibition of arbitrariness and effective judicial protection including the protection of human rights). ¹⁵ By taking the EU as a principal focal point, this chapter will evaluate critically both the ex ante and the ex post 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 and two involving the rule of law ex post. 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 the 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 protection 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, ¹⁶ has made a difference regarding the compliance of EU counterterrorism law with the rule of law.

The ‘trickle-down effect’ of global executive standards

A key feature of the emergence of a global counterterrorism regime since 9/11 has been the adoption of key elements of this regime not by multilateral legislative instruments reflecting a global consensus but by executive action of organisations with specific – and at times single – agendas and with very limited transparency, scrutiny and democratic accountability. This tendency has had a significant adverse impact on the transparency and deliberative and democratic scrutiny requirements of the rule of law, as standards adopted by executive and ad hoc bodies have then tricked down and adopted in a legally binding form at the regional, supranational and national levels. Two instances of executive production of global norms are key in this context. The first one is the emergence of the United Nations (UN) Security Council (UNSC) as the main global actor introducing terrorist sanctions regimes post-9/11 –sanctions regimes which have been copied by the EU and its Member States. ¹⁷ A number of scholars have noted that in this manner an executive body such as the UNSC has assumed a legislative role. ¹⁸ The imposition of sanctions via a listing process by the UNSC can be theorised under the prism of ‘global administrative law’. ¹⁹ Kingsbury and Krisch note that underlying the emergence of global administrative law is the vast increase in the reach and forms of transgovernmental regulation and administration designed to address the consequences of globalised interdependence in such fields as security, with much in the detail and implementation of such regulation is determined by transnational administrative bodies – including international organisations and informal groups of officials that perform administrative functions but are not directly subject to control by national governments or domestic legal systems or, in the case of treaty-based regimes, the state parties to the treaty. ²⁰ Both the manner of the adoption of these standards and their content have significant human rights implications – but it is executive, and not legislative, action which has framed the global response in this field.

The second key instance of production of counterterrorism norms under the ‘global administrative law’ paradigm involves the adoption of a series of Recommendations on terrorist finance by the Financial Action Task Force (FATF). The rapid evolution and expansion in the FATF mandate, standards and membership can be attributed to its informal nature ²¹ and network structure which aims at flexibility and adaptability. ²² Although the membership of the FATF is limited and its output takes the form of Recommendations which could be characterised as ‘soft law’, ²³ or informal law, ²⁴ their impact at the regional, EU and national level is considerable. Each time the EU adopts or revises its legislation against money laundering and terrorist finance, it justifies this step on the basis of the need to take into account the revised FATF Recommendations. ²⁵ However, the production of norms by the FATF raises significant challenges of democratic participation, transparency and accountability. Particular challenges arise in this context by the fact that norms are produced by a club with selective membership (it is worth noting here that while not all EU Member States are FATF members, the European Commission is a member) and then imposed by a sophisticated and invasive system of multilevel implementation monitoring across the globe; and by the fact that norms are produced behind closed doors, mainly by experts representing national executives. ²⁶ While the use of networks of experts has been seen as a positive development in ensuring the efficiency of anti-money laundering standards, which are the outcome of professional socialisation among the experts producing them, ²⁷ the uncritical emphasis and reliance on expertise creates an ‘expert consensus’ ²⁸ serving to depoliticise the issues and shield them from political debate. ²⁹

The production of counterterrorism norms at the level of the global executive and the infiltration of these norms into multiple legal orders at the regional, supranational and national level has been ongoing. A key recent instance of such norm production involving a multilevel interaction of legal orders concerns the definition of terrorism via the criminalisation of conduct by ‘foreign fighters’. The initial response has come again by the UNSC, which has adopted a Resolution calling for the adoption of a wide range of measures on ‘foreign fighters’. ³⁰ The adoption of the Resolution was a US-led initiative, aiming to address via the UNSC the lack of global consensus in the field and pushing for measures notwithstanding the scarcity of data on the phenomenon of foreign fighters. ³¹ The UNSC standards have since formed the basis of the adoption by the Council of Europe of its Additional Protocol to the Convention on the Prevention of Terrorism adopted by the Council of Europe, ³² which has amplified the provisions of the UNSC Resolution and given them legally binding force via a multilateral regional treaty. As a third step, the Additional Protocol has now been ratified by the EU, ³³ which has also revised its internal legislation on the criminalisation of terrorism by adopting a new Directive to align EU law with UNSC and Council of Europe standards. ³⁴ According to the Commission’s Explanatory Memorandum to the proposal, existing EU law needs to be reviewed ‘to implement new international standards and obligations taken by the EU and to tackle the evolving terrorist threat in a more effective way’ ³⁵ – with express reference being made not only to the Council of Europe Convention and the UNSC Resolution in the field but also to relevant FATF standards. ³⁶ It is worth noting here that the Commission refers to the revision of an Interpretative Note by a non-legislative body (the FATF) to take into account the standards set out by another non-legislative body (the UNSC) to shape the EU legislative response on the criminalisation of ‘foreign fighters’. ³⁷ In this manner, global executive standards adopted with limited scrutiny and transparency have exerted significant influence to the significant extension of the criminalisation of terrorism in the EU and its Member States via a four-step process: the adoption of standards by the global executive (UNSC); their influence on the output of other global executive actors (the FATF); the transformation of global executive standards into legally binding standards in a regional multilateral treaty (in the Council of Europe); and the subsequent mirroring of these standards in supranational EU law via the revision of the EU counterterrorism Directive. Although we still do not have a global, international treaty on the criminalisation of terrorism at UN level, the criminalisation of terrorism is being extended by other means.

The re-emergence of emergency – limits to transparency, scrutiny and justification

A common feature of the enactment of counterterrorism legislation has been its framing as emergency legislation which has been designed to respond to a terrorist attack speedily. This emergency approach has led to legislation with a far-reaching effect on human rights being adopted under very tight deadlines leaving very limited scope for meaningful scrutiny and justification. The rule of law is challenges here as legislation is being treated as emergency legislation and adopted speedily under minimal democratic scrutiny and justification. At the EU level, this emergency framing was evident post-9/11, where there has been swift political agreement on a raft of unprecedented EU legislation, deemed necessary to respond to terrorism (including the European Arrest Warrant Framework Decision, the first Framework Decision on Terrorism and the Decision establishing Eurojust). ³⁸ Throughout the third pillar years, agreements on transatlantic counterterrorism cooperation have been subject to minimal scrutiny. ³⁹ The EU-US agreements on extradition and mutual legal assistance remained classified until the very last weeks before signature, notwithstanding repeated requests for their publication for the purposes of scrutiny. ⁴⁰ The Europol-US and Eurojust-US Agreements have not even published in the Official Journal of the European Union. The first version of the PNR Agreement (between the Community and the United States) was transmitted to the European Parliament for examination under deadlines which, according to Parliament, did not enable it to conduct meaningful scrutiny – with the handling of scrutiny leading to Parliament challenging the agreement in the ECJ. ⁴¹ Similar scrutiny concerns have arisen with regard to the choice of dealing with the Decision confirming the adequacy of the US data protection framework for the purposes of the PNR agreement via comitology. ⁴² The first EU-US TFTP Agreement, signed a day before the entry into force of the Lisbon Treaty – in an attempt to conclude this under the intergovernmental process of the ‘old’ third pillar and thus pre-empt the Community elements brought about by Lisbon and effectively sideline the European Parliament. ⁴³ Moreover, significant limits have been placed by the Council to transparency and scrutiny of documents related to the negotiations by members of the European Parliament. ⁴⁴ The conclusion of these agreements, negotiated with minimal transparency on the face of sustained and growing fundamental rights concerns expressed by parliaments, EU expert bodies and civil society, ⁴⁵ was presented as a fait accompli, with signature dates set out in advance and leaving limited time for debate and scrutiny.

The entry into force of the Lisbon Treaty created more space for scrutiny of counterterrorism proposals via the abolition of the third pillar and thus granting the European Parliament co-legislator powers. A post-Lisbon Inter-institutional agreement has also introduced extensive justification requirements on the European Commission. ⁴⁶ A number of counterterrorism measures (including the post-Lisbon EU-US Agreements on PNR and TFTP and the new terrorism Directive) were adopted on the basis of the new powers of the European Parliament. However, rule of law challenges regarding scrutiny, transparency and justification have not been entirely eliminated post-Lisbon. One factor contributing to the persistence of these challenges has been, as will be seen below, the use of questionable legal bases under CFSP to adopt counterterrorism measures bearing significant human rights consequences against individuals. Another factor has been what can be called the ‘re-emergence of emergency’: the tendency by the Commission, in the name of political calls for swift action under an emergency framing in response to terrorist attacks, to table proposals for legislation with insufficient justification and without submitting a full impact assessment.

A key example in this context has been the Commission proposal for a new Directive on the criminalisation of terrorism, where the Commission relied on ex post evaluations of previous Framework Decisions on terrorism and on stakeholder consultations in the context of negotiations of Council of Europe Additional Protocol but did not submit an impact assessment justifying the specific assessment. ⁴⁷ The Commission stated that this choice was exceptional justified ‘given the urgent need to improve the EU framework to increase security in the light of recent terrorist attacks including by incorporating international obligations and standards’. ⁴⁸ This approach is problematic, as it introduces a state of emergency approach in the post-Lisbon EU legal order and contributes towards limiting scrutiny and accountability on measures which, as will be seen below, have substantial human rights and rule of law consequences. In a case, concerning the absence of an impact assessment during the adoption of Directive 2017/853 regulating the control, acquisition and possession of weapons, ⁴⁹ AG Sharpston took the view that the Interinstitutional Agreement introduces a binding obligation to conduct an impact assessment in each and every case ⁵⁰ and that always requiring an impact assessment would make it impossible to take legislative action even where the circumstances clearly demonstrate the need for urgent action. ⁵¹ The Court of Justice has concurred with the main findings of the Advocate General, arguing that the absence of an impact assessment was compensated by the reliance by the Commission on a variety of information including an evaluation of the firearms Directive, a public consultation, consultations with the European Parliament and Member States and a series of studies related to the use, deactivation and trafficking of firearms. ⁵² However, these sources of information lack the specific framing and objectives of an Impact Assessment, where the Commission must examine in detail and justify concrete proposals and options for EU legislative action. The transparency and justification aspect of the exercise have been lost in an emergency framing.

Legality and over-criminalisation

A key challenge of counterterrorism norms to the rule of law ex post centres on the threat that these norms pose to the principle of legality in criminal offences and penalties. Here, the principle of legality emerges as a reflection of the rule of law, with the law being required to meet certain standards of certainty and foreseeability in the eyes of the citizen so arbitrariness by the state authorities is avoided. The principle of legality, which is enshrined in the ECHR and Article 49 the Charter, includes the requirement of legal certainty to avoid arbitrary action by the state and is threatened by norms which are too broad, vague or overextended. ⁵³ A key challenge to the legality principle in this context is the vagueness and overreach in defining and criminalising terrorism. The recent ‘trickle-down’ measures on the criminalisation of terrorism trying to address the phenomenon of ‘foreign fighters’ are a pertinent example of vague and broad criminal law challenging the principle of legality. As seen above, the production of these norms has been the outcome of a process of multilevel decision-making starting from the global executive (UNSC) and then through regional multilateral treaties (Council of Europe) and supranational EU law to filter through to national systems in Europe. Each of these instances has produced vague and broad definitions of terrorism, developed and amplified over time. In Resolution 2178 (2014), the UNSC called upon states to ensure that their domestic laws and regulations establish serious criminal offenses sufficient to provide the ability to prosecute and to penalise in a manner duly reflecting the seriousness of the offence: (a) their nationals who travel or attempt to travel to a State other than their States of residence or nationality, and other individuals who travel or attempt to travel from their territories to a State other than their States of residence or nationality, for the purpose of the perpetration, planning or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training; (b) the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, to finance the travel of individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training; and (c) the wilful organisation, or other facilitation, including acts of recruitment, by their nationals or in their territories, of the travel of individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training. ⁵⁴

Resolution 2178 introduces a new dimension to the global regime of preventive justice. ⁵⁵ In addition to preparatory offences such as terrorist recruitment and funding, which raise fundamental challenges to freedom of expression, non-discrimination and the respect of political rights, ⁵⁶ the focus is placed here primarily on the criminalisation of mobility and travel. As demonstrated in the case of Nada before the European Court of Human Rights dealing with travel bans as terrorist sanctions, ⁵⁷ restrictions on mobility are likely to contravene European human rights norms, including the right to leave. A broad criminalisation of mobility also challenges the principle of legality in criminal offences and sanctions, as it is not clear exactly what is criminalised and why. More broadly, the criminalisation of the mobility of the so-called ‘foreign fighters’ poses fundamental challenges to the relationship of trust between citizens and the state and blurs the distinction between citizens and foreigners on the one hand and immigration and criminal law on the other. Here, immigration-type measures (albeit in a more serious, criminal law form) are used to regulate the conduct of citizens; and, conversely, criminal law measures are used to regulate mobility, a conduct which has been traditionally the domain of immigration law. ⁵⁸

The UNSC approach has been adopted and standards have been developed further in the Additional Protocol to the Convention on the Prevention of Terrorism adopted by the Council of Europe. ⁵⁹ In addition to widening the categories preparatory offences, ⁶⁰ the Protocol introduces a series of provisions expressly criminalising mobility and travel. States are called to adopt such measures as may be necessary to establish ‘travelling abroad for the purpose of terrorism’ from its territory or by its nationals, when committed unlawfully and intentionally, as a criminal offence under its domestic law. ⁶¹ Attempt is also criminalised. ⁶² Travelling abroad for the purpose of terrorism is defined as travelling to a State, which is not that of the traveller’s nationality or residence, for the purpose of the commission of, contribution to or participation in a terrorist offence, or the providing or receiving of training for terrorism. ⁶³ The Protocol also criminalises funding travelling abroad for the purpose of terrorism ⁶⁴ and organising or otherwise facilitating travelling abroad for the purpose of terrorism. ⁶⁵

As seen above, the UNSC and Council of Europe standards have been influential in the adoption of the new EU Directive on terrorism. ⁶⁶ The text of the Directive introduces a number of offences leading to extensive criminalisation. These include providing and receiving training for terrorism ⁶⁷ and, importantly, travelling for the purpose of terrorism and organising or otherwise facilitating travelling for the purpose of terrorism. ⁶⁸ Terrorist travel is criminalised regardless of whether the destination country is located inside or outside the EU or the Schengen area. Member States are called to criminalise one of the following conducts when committed intentionally: travelling to a Member State for the purpose of committing, or contributing to the commission of, a terrorist offence, for the purpose of the participation in the activities of a terrorist group with knowledge of the fact that such participation will contribute to the criminal activities of such a group, or for the purpose of the providing or receiving of training for terrorism, or preparatory acts undertaken by a person entering that Member State with the intention to commit, or contribute to the commission of, a terrorist offence as defined in the Directive. ⁶⁹ Attempt at terrorist travel is also criminalised. ⁷⁰ Importantly, for the offences prescribed in the Directive to occur, it is not necessary that a terrorist offence is actually committed, nor is it be necessary, for the majority of these offences (including the training, travel and organisation of travel offences, but also for the offences of directing or participating in a terrorist organisation), to establish a link to another specific offence laid down in the Directive. ⁷¹

The criminalisation of terrorist travel in these terms is extremely problematic. Following the UNSC and the Council of Europe approaches, the Directive introduces extremely broad and hard to define criminal offences, including attempt, and not requiring a link to the commission of concrete terrorist offences – leading thus to overcriminalisation; it is a challenge for such criminalisation to meet the threshold of what is required to uphold the principle of legality in criminal offences, as the offences are defined in a very broad manner; criminalisation is not in compliance with a number of fundamental rights, including the right to leave; and it undermines the relationship of trust between the citizen and the state by effectively creating different classes and categories of citizens – with citizens here becoming foreigners, or rather ‘foreign fighters’. ⁷² Further challenges regarding the use of criminalisation as a basis for an even broader definition of terrorism for enforcement purposes. ⁷³ These challenges become more acute at the level of the EU constitutional order, which is based upon the fundamental principle of free movement. Criminalisation in such broad terms – without the requirement for a terrorist offence to actually be committed and thus treating terrorist travel offences essentially as self-standing offences – pushes further the boundaries of the preventive justice paradigm. Here, the logic of prevention extends beyond criminalising conduct which may lead to the commission of a further specific criminal offence – as it is not clear whether criminalisation will actually lead to a specific harm or will increase the risk of harm. ⁷⁴ Rather, criminalisation takes place here on the basis of dangerousness: The further punishment is removed from a concrete terrorist act, the closer we get to a criminal law system aimed at punishing the dangerous individual. ⁷⁵ Criminalisation on these terms is reminiscent of Jakobs’ construction of Feindstrafrecht, or enemy criminal law, reflecting a tendency towards subjective criminalisation on the basis of the character and culpability of the actor rather than on her externally visible conduct – with the actor becoming a threat and thus treated as an enemy and not a citizen. ⁷⁶

Listing and the limits of procedural justice

The emergence of a global regime on terrorist sanctions post-9/11 constitutes another instance of challenges to the rule of law, which involves the existence of an effective remedy and the ability of the citizen to challenge state decisions. This vision of the rule of law is further linked with requirements of transparency and justification from the part of the state in its decision-making. As seen above, the establishment of a sanctions regime by the UNSC has challenged rule of law ex ante, through the adoption of binding standards having an effect on human rights not by the legislature but by the executive. The way in which the sanctions system is designed and operates poses further, significant, ex post rule of law challenges, in creating a system where preventive sanctions based on listing individuals deemed to be dangerous. ⁷⁷ Listing is a performative technology that helps constitute the objects and categories it targets or complies. ⁷⁸ Listing linked to individuals has appeared prominently in this context to address the perceived terrorist threat: Instead of (or in addition to) investigating and prosecuting specific terrorist offences, the focus has also been on imposing sanctions (in particular freezing orders and travel bans) on individuals suspected of being associated with terrorism. This process of listing as ‘guilt by association’ is underpinned by a clear preventive logic. ⁷⁹ The terrorist listing system established by the UNSC entails severe human rights consequences through executive decisions taken with no scrutiny and with very few opportunities for the affected individuals to challenge the measures imposed on them. With the UNSC terrorist sanctions system having a direct impact globally, including in EU law, ⁸⁰ these ex post rule of law challenges have been exposed before the Court of Justice. The implications of this system of sanctions for the rule of law have been highlighted by Scott Crosby who highlighted the shift towards greater governmental discretion on national security grounds at the expense of judicial scrutiny, emphasised the sidelining of the criminal justice system and the weakening of the judiciary in its scrutiny role against abuses of power and noted that

Terrorist and other blacklisting regimes have thus created structural mechanisms for the production of both increasing executive/legislative (and effectively unaccountable) powers over individuals and novel means of bypassing domestic fundamental rights protection mechanisms. ⁸¹

These issues were addressed by the Court of Justice in the well-known and analysed Kadi litigation, the CJEU found that terrorist listings under EU law must comply with the principle of effective judicial protection. Much of the commentary to the final outcome of the first part of the Kadi litigation (or Kadi I ⁸² ) has focused on the implications of the CJEU approach for the principle of effective judicial protection as a rule of law expression in relation to the autonomy of EU law vis-à-vis the authority of the UNSC. ⁸³ The CJEU was called to revisit its rulings in a second set of cases concerning Mr Kadi (Kadi II). During the Kadi II litigation, a number of key developments have taken place since the Court’s ruling in Kadi I, most notably a series of revisions to the UNSC system of listing individuals whose assets should be frozen under Resolution 1267 including the appointment of an Ombudsperson and a de-listing process. ⁸⁴ In deciding on Kadi II at first instance, the General Court applied, albeit reluctantly, the reasoning of the Court of Justice in Kadi I and advocated the full review of not only to the apparent merits of the contested measure but also to the evidence and information on which the findings made in that measure are based. ⁸⁵ In its subsequent ruling in Kadi II, the Court of Justice ⁸⁶ made express reference to the need for the European judiciary to ensure the in principle full review of the lawfulness of all Union acts in the light of fundamental rights ⁸⁷ and mentioned in particular the respect for the rights of the defence and the right to effective judicial protection as enshrined in Articles 41(2) and 47 of the Charter, respectively. ⁸⁸

Respect for these rights entails a number of obligations related to the provision of reasons for the EU listing authority. ⁸⁹ As regards the extent of judicial review, the Court found that the EU judiciary must determine whether the competent EU authority has complied with the procedural safeguards the obligation to state reasons mentioned above. ⁹⁰ Judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated. ⁹¹ To that end, it is for the Courts of the EU to carry out that examination, to request the competent EU authority, when necessary, to produce information or evidence, confidential or not, relevant to such an examination. ⁹² The Court thus advocated a standard of evidence-based, detailed, substantive judicial review in concreto and not in abstracto. ⁹³ While attempting to accommodate to some extent security considerations, by accepting in camera examination of security-sensitive documents, ⁹⁴ the Court of Justice has adopted in Kadi II a rigorous, substantive test of judicial review of listing decisions by the European judiciary which may serve as a human rights benchmark for global listing regimes. The Court reiterated that such a judicial review is indispensable to ensure a fair balance between the maintenance of international peace and security and the protection of the fundamental rights and freedoms of the person concerned, those being shared values of the UN and the EU. ⁹⁵

The Court of Justice thus confirmed again, as in Kadi I, the autonomy of the EU legal order based on the respect for the rule of law and human rights. Giving substance to the essence of effective judicial protection is tantamount to upholding the rule of law at EU level. While the Court’s ruling in Kadi I has had a noticeable impact in improving listing procedures at UN level, the Court of Justice in Kadi II sent a clear message that such improvements can by no means equate to effective judicial protection. The Court of Justice continued to remind the international community that it is the individual who should be the focus of authorities in the invasive process of the imposition of restrictive sanctions. At the same time, the Court of Justice in Kadi II sent a clear message with regard to the relationship between the executive and the judiciary: The executive cannot use secrecy and confidentiality to evade judicial scrutiny, especially when the protection of fundamental rights is at stake. However, the Court of Justice did not appear to be as protective with regard to substantive rights, including the right to property. While the Court emphasised the far-reaching and adverse impact that restrictive measures have on the affected individuals, it went short from endorsing the General Court’s strongly worded statement that restrictive measures can be considered to be in essence criminal sanctions. As the General Court noted,

It might even be asked whether – given that now nearly 10 years have passed since the applicant’s funds were originally frozen – it is not now time to call into question the finding of this Court, at paragraph 248 of its judgment in Kadi, and reiterated in substance by the Court of Justice at paragraph 358 of its own judgment in Kadi, according to which the freezing of funds is a temporary precautionary measure which, unlike confiscation, does not affect the very substance of the right of the persons concerned to property in their financial assets but only the use thereof. The same is true of the statement of the Security Council, repeated on a number of occasions, in particular in Resolution 1822 (2008), that the measures in question “are preventative in nature and are not reliant upon criminal standards set out under national law”. In the scale of a human life, 10 years in fact represent a substantial period of time and the question of the classification of the measures in question as preventative or punitive, protective or confiscatory, civil or criminal seems now to be an open one (emphasis original). ⁹⁶

Kadi II was a missed opportunity for the Court of Justice to address the serious human rights consequences of preventive law. The Court of Justice seems to accept the legitimacy preventive nature of sanctions and did not engage with the argument of the General Court that procedural defects lead to a disproportionate impact of the affected individuals’ right to property – with the logic and essence of restrictive measures remaining largely unquestioned. In this light, Kadi II should be viewed as a triumph of procedural but not substantive justice. ⁹⁷

Conclusion

This article has demonstrated that, almost two decades after 9/11, significant rule of law challenges to the production and implementation of counterterrorism measures remain. In the EU legal order, these challenges remain even after the entry into force of the Lisbon Treaty. Although the uncritical introduction of states of emergency after 9/11 has been challenged by the judiciary and to some extent by European legislators (in particular by the European Parliament), shortcuts to the rule of law persist and reappear, pushed by governments after each new terrorist attacks. This chapter has demonstrated the perseverance of challenges to both the rule of law ex ante (through the development of counterterrorism standards with significant human rights implications by the global executive and their uncritical acceptance by and ‘trickle-down’ effect on regional, supranational and national legal systems; through the reintroduction of limited scrutiny of new counterterrorism measures) and the rule of law ex post (through challenges to the principle of legality as regards the definition and criminalisation of terrorism; the consolidation of extensive preventive sanctions against individuals deemed to be dangerous). Reacting to these rule of law challenges takes time, and while there have been improvements in terms of strengthening the rule of law in counterterrorism (most notably by the intervention of the European judiciary), recent reactions to terrorist attacks and the relaunch of an EU agenda on security demonstrate that any rule of law gains may be precarious in a renewed political framing of a state of emergency. The rule of law challenges at European level are further compounded in view of the growing globalisation of counterterrorism and the inevitable interaction between EU institutions and global players, including executive bodies such as the UNSC and the FATF, and agenda-setting actors such as the United States. EU law provides strong rule of law benchmarks, and the challenge is to be vigilant and uphold these benchmarks both in the Union’s internal action and, most importantly, in the Union’s external action. In the field of counterterrorism, the danger is that rule of law deficient standards and practices produced externally may enter the jurisdiction of the Union and its Member States through the back door.