10th International Judicial Conference in Strasbourg from 23 to 24 May 

Balancing Necessity and Human Rights in Response to Terrorism

By Jacque Robert
Vice-President of The Venice Commission
(Original text in French)

Terrorism and Freedoms

Terrorism has existed since time immemorial. However, over the last few months it seems to have acquired a planetary dimension which calls upon the whole of the free world to act. It is no longer a one-off response to a particular problem, restricted to one region or community, but an odious, bloody and dramatic revolt against society in its entirety, a society in which fewer and fewer people can find their place.

Each form of terrorism must be treated in an appropriate way. The same method cannot be employed to fight all forms of terrorism. These must then be classified before the ways to combat them can be determined, all the while keeping in mind that democracies, unless they renounce their own values, cannot employ the unacceptable methods of their adversaries.

Criticism cannot be levelled at the acts of “enemies of freedom” if those who claim to uphold freedom use the same despicable methods. In this respect, each and every individual, even the worst, must be able to enjoy all guarantees of a free and fair defence when appearing before the courts, be they national or international.

    1. There are several terrorisms:

    a) That which is primordially used by individuals or groups, within their own country, to exert pressure on the political authorities with a view to seeing their demands met. These demands, in general, involve their recognition as a regional, ethnic or religious minority. Resorting to terrorism is justified in their eyes by the need to make their aspirations heard in a political context in which no other paths but violence are available to them.
    b) The same terrorism may occur at an international level, used by organisations or peoples seeking land or a state.
    c) Another form of terrorism is that of revolutionary, anarchic, nihilist groups whose sole objective is to contest a society in its entirety which they reject as they seriously believe that this society has already rejected them.
    d) States, finally, can blindly use violence to serve their purposes, guiding events from afar and financing extremist groups to exert pressure on other states to change their politics.

In all these situations, as Gaston BOUTHOUL wrote, it is a case of “spreading waves of fear”…

The aim of all terrorism is to obtain widespread publicity for its cause through scandal and horror. Whatever the means deployed, and they are the most horrible, the world must tremble so that those who have decided to embark upon the path of violence can make themselves known, understood perhaps and possibly assisted.

Terrorism is nearly always an act of “disalienation”, with a playful component, a taste for the theatrical, a desire to help history along, as those who use it understand it. The “terrorist” in the lofty or noble meaning of the term, often sees himself as a kind of “crusader”, an “agent of justice” or “archangel” with a guaranteed place in paradise, convinced, right up to his death, that his cause is the right one, that he will receive full absolution for his crimes to come and inspired at the same time – as Max WEBER said – by an ethic of conviction and an ethic of efficacy if not responsibility. But for terrorism to be effective, the causes pursued must be supported in the populations concerned and those who fight against it must, one day or another, be prepared to give in to its blackmail.

As for the legitimacy of terrorism, even if we may, at a pinch, admit its existence in conquered or occupied countries, in materially, culturally or politically underdeveloped areas where there is no longer any other solution than violence to counter the despotism of an individual, party, tribe, religion or social class, or in all forms of authoritarian regime under which elections are falsified, the opposition hounded and information muzzled, it is however not acceptable in those countries in which there is a minimum of democracy. By its very existence, this minimum of political democracy prohibits the use of violence as other paths of protest – much more peaceful ones - are available.

Today, it would seem as if a new form of terrorism is emerging before our very eyes, “theological terrorism”. The fundamentalism which riddles some major religions would seem to provide the doctrinal basis of anathema launched throughout the world by totalitarian minds which cannot conceive the existence of a pluralist world but are anchored in the idea of a monolithic universe dominated by one terrifying, uncompromising and vengeful God.

It would indeed be dangerous and unfair to apply simplistic amalgams and condemn one religion or another for the unacceptable acts of which certain of their believers are guilty.

It is however often behind the purity of a faith presented on fallacious foundations that fanatical groups hide, harbouring a nostalgic longing for the day of reckoning when corrupt institutions would collapse like sky-scrapers and a new world emerge, a harsh, merciless world with no indulgence and no pity.

2. Wherever these terrorisms stem from, the first duty of all states is to fight against them. But how? Through what means? On what scale?

The exact dimensions of the problem must be measured.

If we accept that, for those who use it, an element of terrorism is to achieve social destabilisation through operations or attacks targeting people indiscriminately to scare the greatest number, it is clear that over recent years terrorist attacks have not represented an important share in the total number of crimes and offences committed in the major democracies.

Every country more or less affected by terrorism has, all the same, gradually availed itself of a more or less complete array of special laws strengthening all aspects of the suppression of terrorism.

Extended custody (Germany, Great-Britain, Italy, Spain), compulsory sentences (Great-Britain), application of the maximum penalty provided for (Spain), centralised judgments (Spain), single judge replacing normal judges (Great Britain), sentence reductions for those who collaborate (Germany, Italy, Great Britain)…

Some of this legislation is not without risk for fundamental freedoms.

We might admit that, faced with particularly violent and bloody acts, a country could seek to protect itself through subjecting such criminals to exorbitant rules of common law, however the crimes and offences targeted must be precisely determined.

In France, however, the law on terrorism of 9 September 1986 did not create the specific offence of terrorism but simply extracted a “concept of terrorism” combining two elements: the inclusion of the offence in question in an established list (but can such a list ever be exhaustive?) and the requirement – of necessity subjective – “that the offence be in connection with an individual or collective undertaking having as its objective the serious disruption of law and order through intimidation or terror”.

The Constitutional Council judged that the offences were defined in “sufficiently clear and precise terms”.

It did however believe it necessary to recall that the rules of derogation from ordinary law for terrorism envisaged by this law may only be justified by the specific characteristics of terrorism and so may not be extended, without infringing upon the principle of equality before the law, to offences which do not present the same characteristics, in particular to attacks on state security (D.C. 3 September 1986).

In a text of 19 June 1996, on reinforcing the suppression of terrorism, France tightened up its legislation.

The 1996 legislator added to the “terrorist acts” already included in the1986 list, “assistance to a foreigner to irregularly enter, circulate or reside”. It also provided that “if the requirements of the investigation or enquiry so demand, visits, searches and seizures may be carried out by day and by night”.

The text also increases the sentences for persons guilty of attacks on state officials or persons in public service.

France, which abolished all jurisdictions of exception within its territory in 1981 to 1983, did so in the knowledge that they are implicitly banned in Article 6, paragraph 1 of the European Convention on Human Rights, which provides for the right of everyone to a have his case heard by a tribunal “established by law”. This expression was examined in the ZAND case. In its report, the Commission declared that it suffices for the law to establish the structure of judicial organisation. On the other hand, the Commission clearly delimited the domain of the law. The expression “tribunal established by law”, in Article 6, paragraph 1, covers the whole of the judicial system.

You will recall that on the occasion of the signature of the European Convention on the Suppression of Terrorism on 28 January 1977, France clearly indicated that the fight to be carried out against terrorism should be completely reconciled with the fundamental principles of our criminal law and our constitution, the preamble of which proclaims that “any person persecuted on grounds of his activities to promote liberty shall have the right to asylum within the territory of the Republic”.

3. The objective of any security policy – so any fight against terrorism – is to keep the peace and public order without upsetting the population, to face up to the multifarious dangers without infringing upon public freedoms.

    For such a policy to be carried out successfully, the threats which could destabilise the democratic social order need to be pictured. However, a consideration of these vast dangers does not necessarily signify succumbing to a “a frenzy of security”. Nothing could be worse than a society which, to protect itself, becomes a closed down, fortified society, scared of its own shadow, hiding away anxiously and taking pleasure in magnifying the risks.

Secondly, the primary virtue of a security policy is to ensure the solidity and stability of society by fighting against all discrimination and injustice. There can be no effective fight against terrorism without the cohesion of the national community. There can be no security or freedom without fraternity.

Everything then that contributes to the fight against inequalities, social rejection, prejudice or exclusion reinforces the feeling of belonging to a group and entrenches the security of all.

Thirdly, the quest for the necessary national cement should lead to a clear distinction, in the analysis of the multiple dangers which threaten all of our contemporary societies, between the “routine insecurities” and the “major risks”. The former are perhaps felt more than the latter but these are infinitely more devastating.

4. By directing the hijacked airplanes at the twin towers in New York, the former World Trade Centre, and at the Pentagon, the logistical headquarters of the American military apparatus, the terrorists of the Osama Bin Laden network did not only strike at the heart of America, taking the lives of thousands of victims. The whole planet was shaken by the shock wave of the fateful 11 September 2001. Politically, diplomatically, strategically and, of course, economically. For several months before, the brutal collapse in growth in the United States had been contaminating other parts of the world, including Europe, whilst Japan continued to flirt with recession. The attacks in the United States only compounded consumers’ and investors’ lack of confidence, vital ingredients for healthy economies.

How could America react? How was this great democracy to respond to such a shock?

1. First of all it started by giving the world an example of courage and cool-headedness. Facing up to adversity and its hundreds of casualties with exemplary dignity.

The heroism of the rescue workers and the solidarity of a whole nation united behind its leaders were admired around the world. Despair had to be avoided, panic averted, it be recalled that in its history the United States had seen other crises, perhaps even worse ones, and had survived, the great fundamental values which have always inspired America be reaffirmed.

Combating terrorism is first of all never tiring on formally reaffirming the ideals upon which society resides and which breathe life into the social covenant.

It was around these values that America had to find itself and regroup. It did so. Magnificently.

2. In a second phase, America was to consider, calmly, the shape and scale of its riposte. Attacks should not be made in haste and without grounds. You do not intervene alone in the era of globalisation.
The response should in no circumstances take the form of vengeance against a people, a community, a religion. It could only be a case of annihilating criminals and their accomplices. An operation of public salubrity, of global survival.

The proportionality of the response to the gravity of the terrorist attack was not a difficult issue here. Faced with the horror of the collapsed towers, the scale of the drama for the victims and their families, the attack had to be a hard strike and not be too long in coming. To track down the terrorists in their refuge, destroy their destructive potential wherever it may be and to warn all those – states or groups – who support them that sooner or later they will suffer the same fate.

Respond by “state terrorism” to “theological terrorism”?
The temptation was great.

“To terrorise the terrorists”? This approach is not illegitimate. How many authoritarian monarchs, attacked in their own countries, or even attacked personally, have replied to the terrorist act aimed at them by even greater terror! To execute the criminals, yes, but also to punish their families in an atrocious manner to prevent any new attempt…

Is the fate of the prisoners in Guantanomo not part of such a strategy? Showing the whole world what happens to those who attacked the vital organs of power and America at its very heart.

3. All the terrorists will have to be judged, once the proof of their acts has been officially brought to light.

In what tribunal? National or international? Under what procedure? On the basis of what legislation?
In time, all of these problems will have to be settled.

4. The response must also be diplomatic.
No-one must be painted as the devil. No unjust discrimination must be entered into. The peaceful members of a religion must be separated out from those who pervert and use it to assuage their fanaticism. A great global anti-terrorist coalition must bring together all countries which, in the name of their values, which often are the same, reject with horror these blind and murderous suicide attacks. International public opinion must be made aware that terrorism is the enemy of all civilised nations and that to fight it is a sacred duty.

The fight against terrorism should not only target anarchic, nihilist or fundamentalist groups which want nothing more to do with our world, but also those states which support them or act in this way themselves.

If it be proven that certain states manufacture – and stock – weapons of mass destruction to use one day and they refuse to accept international controls on these arms in their countries, they must be obliged, first through negotiation then, if need be, through pressure and force, to submit to this control.

It is only once they are enslaved that nations regret that they were weak…

5. Terrorism must also be fought with financial means. Alongside the military response, this means hunting down the terrorists’ finances to dry up all their sources of income.
Resolution 1378 adopted by the Security Council on 28 September 2001, creates a committee against terrorism which is to examine the efforts and the practices in each country at regular intervals.

Freezing the assets of all persons or organisations suspected of participating in terrorist attacks; refusing to grant asylum to potential suspects; exchanging information with other states…

At the end of September, The American Treasury Department transmitted a list of several hundreds of persons suspected of having links with Al-Qaida as well as a list of companies accused of harbouring terrorist funds of Saudi origin.

This hunt for terrorist money has shed light on the shortcomings in the international monetary system and the role of tax havens, which have always benefited from a large degree of tolerance. Parallel systems for the transfer of funds must in particular be monitored as, thanks to contracts based on trust, they permit capital to be displaced without the physical transfer of funds.

6. However – and here we are moving smoothly from repression to prevention, questions should also be raised as to the deep-rooted causes of this new terrorism which transcends frontiers and continents.Through this we will examine our own consciences.

The western world, the place where human rights and citizenship were invented, is characterised by its historical tendency to extend its authority to the rest of the planet. The colonial past of many European countries demonstrates this aspiration, which is an inextricable mix of “imperialism” and the “duty of civilisation”. This “burden of the white man”, appears today in new colours as the “right to intervene” of the United States.

The vitality of the American Democracy and the opportunities for success it can offer to all who live there remain fascinating. Many of America’s critics long to emigrate there, demonstrating the power that the “American Dream” still exerts as America, through unifying all those “lost souls” from all over the planet, has created the greatest nation in the world.

Why then does this “hatred of America” so often exist? It could of course conceal the fear of liberty and the rejection of democracy, but as well as jealousy, it does still include a certain collective exasperation.

It is not America which is rejected but certain aspects of its politics. As a Super Power, it is less and less tolerated as the indispensable global player settling the world’s business, it does not always prove capable of doing so and, by allowing certain major conflicts to fester, engenders disappointment, despair and hostility.

For many who - for years – have been suffering violence perpetrated in the shadow of the American Super Power, the monstrous attacks of 11 September could appear first of all as revenge, redressing the balance in the unfair distribution of death inflicted upon the innocent. An attempt to understand these feelings is not in any way an attempt to justify them.

First of all, it is a case of recalling, in the light of past and current events, that the world is not divided into two camps, one for which life would be sacred therefore protected, and the other for which life would only exist to be sacrificed.

The real world in which we all live today cannot be reduced to such simplistic ideologies.
America must be careful not to persuade us that the “war against terror” which is inaugurating the new “American era” is quite simply an eternal battle between the “goodies” – whom we know and the “baddies” who are only such because they do not think as we do!*

*See Jasques Robert (et Jean Duffar) « Droits de l’homme et libertés fondamentales ». Paris. Montchrestien. 7ème édition. 1999. 909 pages

See also Jasques Robert « Terrorisme, idéologie sécuritaire et libertés publiques ». Revue du droit public. 1986. p. 1651, and

Jasques Robert « Les libertés publiques dans les démocraties occidentales ». Encyclopaedia Universalia 1978 ;  Encyclopaedia Universalia 1984