Fundamental rights and human rights discussions and counter-terrorism

Michael O'Flaherty
FRA's Director explained how human rights protection and stronger security go hand-in-hand during an exchange of views with members of the European Parliament’s Special Committee on Terrorism at their meeting on 8 January in Brussels. ** CHECK AGAINST DELIVERY **

Madame la Présidente,

Mesdames, Messieurs, les Députés,

Permettez-moi tout d'abord de vous remercier d'avoir invité l'Agence des droits fondamentaux à s'exprimer devant vous aujourd'hui. Je souhaite féliciter votre travail au sein de la Commission Spéciale sur le terrorisme - car une Europe sûre est essentielle pour la sauvegarde des droits fondamentaux.

Les actes terroristes constituent une menace pour les droits fondamentaux et plus particulièrement pour la réalisation du droit à la vie, qui est la source de tous les droits. Cela nous interpelle encore plus aujourd’hui, trois ans après les effroyables attentats à Paris.

Madame President,

Your Committee is tasked with assessing the effectiveness of measures that we take to fight against terrorism, including their impact on fundamental rights. We often hear these days that one has to choose between more security or respect for people’s rights, that it is a ‘zero-sum game’. This is not true. Fundamental rights and security can work in tandem. Respect for human rights is not an obstacle to security; it is a route towards stronger and better security.

Our commitments under international law – EU, Council of Europe, United Nations – as well as national constitutional obligations remain in place also in times when we have to deal with the challenge of terrorism. In fact, these legal frameworks contain considerable flexibility to allow us to respond to such challenges effectively, as long as in the restriction of rights we respect such principles as legality, necessity, proportionality and honouring the principle of non-discrimination.

The research of the Fundamental Rights Agency in a number of fields – and indeed my own personal experience, which I will speak of in a moment – shows that fundamental rights do not need to be seen as an obstacle to ensuring what we want to see achieved: safe societies in which our children can thrive. Rather, by respecting human rights and by complying with the principles I’ve just laid out, we create a sustainable empowering atmosphere of safety within EU Member States.

Now in my intervention today it is not possible to cover all fundamental rights issues related to your work. Instead I will draw on the Agency’s findings and concentrate on just three areas.

  1. The first of those is the avoidance of radicalisation;
  2. The second has to do with issues of security and migration;
  3. And the third regards the national implementation of EU terrorism legislation.

1) Firstly on radicalisation, we strongly welcome the focus of your committee on the avoidance of radicalisation and on engaging the other related root causes of terrorism.

The Fundamental Rights Agency continues to generate important data to assist you in this context. For example in September of last year we published the largest ever survey of the experiences of European Muslims regarding their perception of patterns of discrimination, harassment and violence. This was the largest survey of its kind ever carried out anywhere. It involved 10,500 people in 15 EU Member States. These people were migrants, both of first and second generation, but over half of them are European Union citizens.

Now let me start, where you might not expect me to start and that is with the good news from this survey, important in terms of a strategy against radicalisation and that is that there are high levels of trust within these migrant Muslim communities in public institutions in the European Union. Very high levels, higher than the percentage in the general population; 81% express an attachment to the public institutions; 76% identified themselves as strongly attached. This is unexpected good news on which we can build in terms of respectful societies.

However, we have to be cautious because the levels of respect dip in the context of the experience of harassment and discrimination. To the extent that we allow such patterns to continue in our society we are quite frankly squandering the potential that’s there at the outset.

So, therefore the Agency considers as a conclusion from its survey work in this area as well as related research that the combating of radicalisation requires, among other things, a sustained combating of the patterns of discrimination and harassment. It involves tackling unacceptable levels of discrimination in the workplace, in service provision, in education and as we say in so many various contexts, it requires a vigorous combatting of hate speech and hate crime. I would add in this context again from the work of the Fundamental Rights Agency that we have learnt a lot about which strategies for integration work and what are the factors for success or failure in integration strategies. Again elements I think of direct interest to your work in this committee as you combat radicalisation.

So, from research of ours published a year ago just a few brief points:

  • The first, go local. Local integration strategies work better than overly centralised ones. Based in the town, in the village they achieve better outcomes.
  • Second, again it is obvious but needs to be said as it is not being done enough, integration strategies need to be developed and rolled out in respectful consultation with the group to be integrated but also with the local population. They need to get to know each other and be part of their own solution.
  • Third, we need to adopt gendered approaches to integration. Too much of our approach to integration across EU Member States is gender neutral. Gender neutrality is not a virtue. Gender neutrality means we avoid the experiences of women. And this has to be taken account of as we go forward.
  • And finally, our work shows that the roll-out of integration strategies is not sufficiently subject to sturdy periodic review. And again many Member States can do a better job there of learning lessons, correcting, improving and strengthening the strategies as they move forward.  

Madame President,

We have brought these views, this analysis, these findings, as part of our contribution to the Commission’s High Level Group on Radicalisation. We have very warmly welcomed the invitation to participate. We have sought to identify that the engaging of radicalisation yes requires tough security approaches, but side-by-side with those it needs a commitment to working with communities, ensuring diversity in police forces, addressing socio-economic deprivation and engaging such other threats to the well-being of individuals and their communities.

By the way, I should add here that it has been my strong experience as a former Chief Commissioner of a national Human Rights Commission, that such approaches, the security approach matched by what we might call the soft society approach does deliver impressive results in tackling and avoiding radicalisation. I was Chief Commissioner of the Northern Ireland Human Rights Commission, and I saw how exactly such a strategy contributed significantly in that post-conflict society to avoiding the mistakes of the past being repeated.

2)     If I may turn to the second of my three areas, which has to do with the relationship of issues of security and migration

I would begin by reiterating what Commissioner Julian King said to this committee recently when he encouraged you to avoid a conflation of migration and security concerns. I understand that when he made what I believe is a legitimate point, he correctly pointed out how conflating these areas would play into the hands of extremists and I agree. But I would add, that it not only plays into the hands of extremists, it also puts at risk the necessary levels of human rights protection for innocent people, and I would include among such innocent people, children. I am not suggesting for one moment that the committee should shy away from bringing a security eye to migration. This is necessary. But nevertheless it need to be undertaken in a context which does not problematise migration as somehow a seabed of terrorism but takes the approach that Julian King spoke of.

And again this is the context for a significant work programme of the Fundamental Rights Agency. We have delivered numerous Opinions to the Parliament around human rights and migration, such as most recently on fundamental rights compliance of ETIAS. It also frames the contribution we made to work of the Commission’s High Level Group on the Interoperability of large-scale data gathering systems at Europe’s borders. And if I may just say briefly a few words on that particular issue of interoperability which I am aware is very much to the forefront in your mandate.

I would begin by saying that the Fundamental Rights Agency gets interoperability. We need interoperability for many legitimate purposes. We need it for stronger security but we also need it for strengthened human rights protection; for instance the tracing of missing children. Interoperability of data systems should greatly facilitate the tracing of missing children.

However, of course, such interoperability can and needs to be brought about in a manner that is least in tension with regards to human rights. In this context that in our contribution to the High Level Expert Group we stressed a number of fundamental elements. One of these is the principle of purpose limitation. As you look at interoperability, we would encourage you to be very vigilant to ensure that the principle of purpose limitation is guarded, whereby material is only ever shared or used to the extent that it was gathered for such a purpose. 

Another issue which we were surprised to find ourselves needing to emphasise was the importance of data systems accurately capturing data. Too many mistakes are being made. We find this in our work repeatedly. For example, in recent months we interviewed European immigration officials at the frontiers. And over half of them said they had identified significant mistakes in the entry into the data systems in the course of their work. Mistakes, for example, in the Visa Information System and the Schengen Information System.

Mistakes of course trigger all manner of human rights problems but also they trigger plenty of issues of security concerns because an inaccurate data system is a less efficient system in terms of supporting security frameworks.

You have received already from the Commission its proposals with regard to interoperability following the work of the High Level Expert Group. And these to some extent have taken on board the views of the Agency which we welcome.

The proposals of course also include elements which have not received sustained attention in the High Level Expert Group but which we may have human rights implications. And I would mention just two of these that you may wish to explore further in the Committee’s work.

  •  One is the proposals with regard to the capacity of interoperability to detect multiple identities of a single individual.
  •  And the second is the capacity through interoperability to identify third country nationals, and I quote from the Commission document “for public policy and public security purposes as defined in national law”. Now I do not wish to raise concerns about these right now but rather to draw to the Committee’s attention that they did not receive the focused attention of the High Level Group and so their scrutiny in this committee and elsewhere in the Parliament would be of importance.

3)     And thirdly and finally I would wish to refer to the national domestic implementation of EU terrorism legislation.

And here if I may just briefly make two points.

  • First, considerable work has been done by this Parliament to inject strong safeguards into the EU Terrorism Directive adopted last year. However, notwithstanding such good work, the real impact of the Directive will depend on its national transposition, particularly where it uses concepts that leave room for interpretation at the national level, such as the definition of such offences as indirect incitement to terrorism. Our Agency considers therefore that it is highly important that all of the fundamental safeguards contained in the Terrorism Directive are part and parcel explicitly of national implementation and application.
  • And secondly, the Directive includes important provisions on the protection of, support to, and the rights of victims of terrorism. This is a group I would suggest that receives inadequate attention broadly and generally across the discourse. Again I saw this in my work in Northern Ireland where one of the neglected groups in terms of focused priority attention has been that of the victims of terrorism. It remains very important that the elements of the Directive that engage the rights of victims are effectively transposed, something that again this Committee might wish to pay attention to.  

And so, honourable members of the committee, in conclusion:

I would like on behalf of the Fundamental Rights Agency to again express appreciation for your important work, the need for which is evident to us. We do believe in the conduct of that work that it is possible to identify that there is no competition between human rights and strong security. But rather that human rights compliant systems will actually be more effective security systems.

And I would like to offer to you the sustained support of the Fundamental Rights Agency in your work, both through our existing data – I’ve given a flavour of it in my presentation and many of our materials are in the room - but also we are at your disposal to respond to any requests you might wish to make for any additional analysis that we could offer.

Thank you.