By Maryant Fernández Pérez

United Nations (UN) Special Rapporteur on counter-terrorism and Human rights, Ben Emmerson said “the central challenge for human rights in 2016 [is] ensuring governments continue to support a human rights agenda” while seeking to end terrorism.

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The European Union is also faced with this challenge. In the EU, there is currently a proposal for a Directive to combat terrorism that, as currently drafted, would pose threats to freedom of expression, privacy and security. The draft Directive was drafted in just 2 weeks, with no impact assessment. This means that the current proposal has neither evidence of its possible impact on your human rights and freedoms nor a proof indicating its possible effectiveness and even justifying the need for a Directive in the first place.

This draft Directive was proposed by the European Commission in December 2015. In the proposal, the Commission expressed its willingness to address the internet, without any clarity as to what it meant by that. While the European Parliament has not taken a position on this Directive yet, the Member States gathered within the Council of the European Union have adopted their position already. For instance, the Council has adopted a confusing approach on blocking of websites which is simply reckless in the absence of an impact assessment. It is based on the Child Exploitation Directive’s provision on blocking, whose effectiveness has never been assessed. It is also entirely incongruous, in a Directive whose purpose is to criminalise certain activities.

As for the Parliament, politicians that are part of the Parliament’s civil liberties committee (LIBE) have tabled 438 amendments. Some of them follow EDRi’s recommendations to have strong human rights safeguards, to stop the criminalisation of speech that is part of our freedom of expression, to be more precise about the link between a banned conduct and a terrorist offence, to delete dangerous elements, such as on malware and “electronic evidence” (whatever that means) and take-down of legal websites. However, there are some amendments that risk mirror elements leaking in from the Parliament’s non-legislative report adopted at the end of November 2015, the Dati Report, and new elements which could undermine the rule of law, encryption, the use of Tor, among others.

Countries around the world are using measures to combat terrorism and violent extremism to silence journalists, activists and normal people who want to express themselves, even if the views are uncomfortable.

We hope the EU will lead by example by preventing the abuses we’re seeing in several EU countries. If, after every terrorist attack, legislators enact new laws with the hope of creating a feeling of more security and safety in the population, without actually solving the problem of terrorism, we will have less freedoms and rights in exchange of no real solution. Instead, the European Parliament adopted the EU PNR Directive last week, which is a profiling measure that has not been proven useful for tackling terrorism.

The UN Secretary-General Ban Ki-Moon has recently described such reactions very well: “repressive and heavy-handed security responses in violation of human rights and the rule of law, such as profiling of certain populations, adoption of intrusive surveillance techniques and prolongation of declared states of emergency, tend to generate more violent extremists.”

Instead of restricting our freedoms, human rights and undermining the values that founded the European Union, effective, evidence-based measures should be put in place not only to combat terrorism, but also to prevent it. As Sascha Lobo explained for Spiegel, more resources should be put in judicial and police personnel. Instead of repairing a legal system capable of enforcing the rule of law, we are getting more computers, databases, more laws with far reaching consequences. If this draft Directive is adopted, particularly if the new damaging proposals that are on the table are adopted, we will create new dangers, without solving the real problems that need to be addressed.

EDRi’s recommendations for the European Parliament’s Draft Report on the Directive on Combating Terrorism (29.03.2016)
https://edri.org/files/counterterrorism/CounterTerror_LIBEDraftReport_EDRi_position.pdf

UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism Report (22.02.2016)
http://www.ohchr.org/EN/Issues/Terrorism/Pages/SRTerrorismIndex.aspx

UN Plan of Action to Prevent Violent Extremism (24.12.2015)
https://undg.org/wp-content/uploads/2016/02/SG-Plan-of-Action-to-Prevent-Violent-Extremism-1.pdf

Spiegel: The Man Machine: Profound, structural, multiple government failures (German) (30.03.2016)
http://www.spiegel.de/netzwelt/netzpolitik/sascha-lobo-ueber-is-terror-ueberwachung-ist-die-falsche-antwort-a-1084629.html

(Contribution by Maryant Fernández Pérez, EDRi)

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