By Ben Ward, Special Counsel to the Europe and Central Asia division of Human Rights Watch.
Published in International Herald Tribune
LONDON - Western European governments grappling with terrorism seem to have settled on a swift and convenient method to deal with the radical clerics seen to be inciting Muslim youths into acts of terror: they simply deport them.
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France is not alone in its enthusiasm for expulsion. German states such as Bavaria are making use of a January 1, 2005, federal law that allows them to expel legal foreign residents who “endorse or promote terrorist acts”, or incite hatred against sections of the population. In August, the British government broadened the grounds for deportation to enable it to remove persons who “justify or glorify” terrorism. Italy has expelled at least five imams since 2003, and an anti-terrorism law adopted on July 31, 2005, makes it even easier to do so.
Britain is determined to deport undesirables even when it means breaching international law. It has moved to deport terrorism suspects to countries where they face torture, based on “diplomatic assurances” from the receiving government, despite clear evidence that these promises are an ineffective safeguard against such treatment. London has already signed “no-torture” agreements with Jordan and Libya, and negotiations are underway with other governments with poor records on torture.
The danger of these measures is illustrated by the case of two Egyptians returned by Sweden in 2001 after “no-torture” promises from Cairo. There is credible evidence that both men were tortured in detention, despite visits from Swedish diplomats. In May, the UN torture committee found that Sweden had violated international law in the case.
The deadly attacks in Madrid and London underscore that Europe faces a real threat from terrorism. And expressions of hatred and violence, especially by those in positions of influence, are reprehensible. But deportation is not the answer. Terrorism is criminal activity - far better to prosecute those involved than to export the problem. Where there is insufficient evidence, those who are deemed a threat can be put under surveillance, with appropriate judicial safeguards.
Why don't governments go this route? Building a case is painstaking work. And criminal defendants have rights. By relying on deportation - an immigration measure - governments can bypass the safeguards built into the criminal justice system. In France and Germany, for example, lodging an appeal with the administrative court does not automatically suspend the expulsion, while the new rules in Italy mean people have the right to appeal only after they have been deported. The absence of an appeal before removal increases the risk that a person will be sent back to face torture. While some high-profile expulsion cases have been overturned on appeal, there is little doubt that deportation is far easier to achieve than conviction in a criminal court.
The ease with which the policy of deportation can be pursued, however, should not blind us to its costs. Deportation is a deeply counterproductive answer to terrorism. Muslim leaders across Europe have signaled concern that expelling Muslim clerics for non-violent speech reinforces the view that Islam is synonymous with terrorism, and sends a signal to Muslim communities that they are not welcome in Europe, risking further alienation among the region’s young Muslim citizens. That is doubly true where a person is sent back to face torture, a practice that undermines more than half a century of efforts to rid the world of that moral cancer.
EU leaders will meet in Brussels on December 15 and 16 to discuss the EU action plan on counter-terrorism, including ways to prevent the radicalization of young people and how to stop them from being drawn toward terrorism. They are right to do so. But deportation is likely to have the opposite effect. Far better to rely on the measures that helped make Europe a beacon for freedom around the world – a fair criminal justice system, tolerance for an open debate, and respect for fundamental rights, including protection from torture.
