Criminalising foreign fighter travel in order to prevent terrorism in Europe: An illegitimate assault on human dignity?

Abstract

This chapter critically assesses the impact on human dignity and human security of the novel offence of ‘travelling abroad for terrorism’ in the European counter-terrorism context. The chapter analyses the emergence of the offence through international legal instruments recently adopted by the United Nations, the Council of Europe, and the European Union. Throughout this analysis, the chapter explores the human rights concerns related to the actus reus as well as the mens rea of the offence of travelling abroad for the purpose of terrorism. The actus reus (travelling to another State) of the offence is defined so broadly that successful prosecution hinges on proving the mens rea (the terrorist purpose) of the suspected foreign fighter. This mens rea is tainted by the legal uncertainties surrounding the definition of terrorism. In the European context, the true purpose of the criminalisation of foreign fighter travel is thus prevention rather than punishment. Suspected foreign fighters are seen as a risk to be prevented rather than as individuals who need to be brought to justice under the rule of law. As they are not treated as ends in themselves, the preventive turn of the criminal law in the foreign fighter context disregards the human dignity of suspected foreign fighters. The chapter concludes that the preventive turn not only constitutes an assault on human dignity, but also a counterproductive method to ensure human security.