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Counter-Terrorism - International Law and Practice edited by Salinas de Frías, Ana María; Samuel, Katja; White, Nigel D (1st January 2012)

Part II Multidisciplinary Perspectives On The Rule Of Law In Action, 12 Counter-Terrorism Policy-Making from the Perspective of a Diplomat

Fernando Perpiñá-Robert

From: Counter-Terrorism: International Law and Practice

Edited By: Ana María Salinas de Frías, Katja Samuel, Nigel D White

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 20 January 2019

Terrorism — Gross violations — Rule of law

(p. 302) 12  Counter-Terrorism Policy-Making from the Perspective of a Diplomat

1.  Introduction

The Madrid Agenda of the Club of Madrid of 2005 stated that ‘terrorism is a crime against all humanity’1 constituting one of the most serious violations of peace, international law, and the value of human dignity, reminding us that ‘only freedom and democracy can ultimately defeat terrorism’.2 Such a perspective lies at the very core of the raison d’être of the current project, which is concerned with how to ensure that legitimate security imperatives are met whilst at the same time fully respecting the rule of law. These two issues are not mutually exclusive, but rather are interrelated and dependent upon one another, as will be demonstrated here.

This current modest contribution draws upon the author’s diplomatic and political experiences spanning more than 40 years, which have afforded him the opportunity and the unquestionable privilege of being able to study the phenomenon of terrorism from different perspectives and responsibilities. In particular, such experiences may be useful for not only underlining some of the extremely adverse effects of rule of law erosions in the fight against terrorism, but identifying some of the different reasons and circumstances that could explain–but never justify–such erosions. A central message here, which is an overarching and recurring theme of the current book, is that in the end such violations of the rule of law only serve to undermine, rather than strengthen, counter-terrorist policies and their related practices.

Diplomats sometimes experience negative press, with their core work and related activities being portrayed as frivolous, superficial, and incapable of addressing the (p. 303) issues that people are really concerned about. Consequently, this chapter will also seek to counter such negative images by demonstrating diplomacy’s pivotal role in seeking progressive commitment not only to the fight against terrorism, but also in ensuring its absolute compliance at all times with the rule of law.

2.  National Level

2.1.  The Fight Against Domestic Terrorism in Spain—ETA

The author’s first professional experience with the phenomenon of terrorism was within the Spanish domestic context, particularly with respect to Euskadi Ta Askatasuna (ETA), the Basque terrorist group. Due to his responsibilities during the 1980s as Under-Secretary of State for Foreign Affairs, he acted as interlocutor on these issues with the Ministry of Interior and other institutions in charge of the fight against terrorism.

The origins of ETA,3 which appeared in the Basque Country in the late 1970s, are not part of this analysis. Instead, this contribution focuses on the rule of law issues raised by the persistence of this phenomenon despite the complete democratization of Spain after the death of General Franco on 20 November 1975. Such fundamental reforms had resulted in Basque nationalism achieving a very high level of self-government to the satisfaction of the vast majority of the population.

Despite this, contrary to what the majority believed and most people hoped, the major advance of Basque nationalism in the achievement of its objectives was not accompanied at all by any decline in ETA’s criminal activity. To the contrary, it is well known that the terrorist violence increased after 1975, even reaching its highest levels during the 1980s. Although at the beginning of that decade there finally seemed to be a clear popular reaction against ETA, the effects of this were significantly diluted by the attempted coup d’état of 23 February 1981,4 and the creation and (p. 304) activities of Grupos Antiterroristas de Liberación (GAL, otherwise known as ‘Anti-terrorist Liberation Groups’), especially.

An important aspect of the relevant context for such activities is that Spain was at that time in a period of complex transition to the establishment of the rule of law after 40 years of dictatorship, which necessitated some robust governmental responses in order to curb the ever present threat of regression to an authoritarian regime. One such response was the introduction of tough anti-terrorism legislation which only time could render unnecessary.

The truth is that for years the fundamental debate in Spanish society had focused on the conflict between liberty and security, primarily between those who preferred to ensure security at the price of liberty on the one hand, and, on the other, those who believed that the rule of law should be respected at all times. It is precisely in this context that GAL—which engaged in assassinations, kidnappings, and torture of those believed to be associated with ETA, which included the murder of 27 people during its existence from 1983 until 19875—originated. Indeed, this period in Spain’s history came to be known as la Guerra Sucia (the Dirty War).

The criminal activities of GAL resulted in a high level investigation being carried out in order to determine whether certain members of the Government were themselves among its leading members. The central question, in other words, was to determine whether in the purported greater public interest, not least to ensure the security of the citizens, the political power had itself effectively resorted to some kind of ‘state sponsored terrorism’ during those years. There was significant political fall out from this investigation, not least in terms of the Interior Minister, José Barrionuevo and the Secretary of State for Security, Rafaek Vera, being criminally indicted for related crimes in 1998.6

2.2.  Potential Causes of the GAL Phenomenon

When examining the relationship between the security imperative and the rule of law it is important to analyse the GAL phenomenon in order to discern possible (p. 305) explanations, although never justifications, for its appearance and subsequent activities.

On the one hand, for those who every day had to endure the frustration, uncertainty, and horror caused by recurring terrorist attacks; who, in the exercise of their responsibilities, such as the emergency services, could not cope with the constant telephone calls informing them that once again innocent people had been killed by terrorists; people professionally responsible for the protection of innocent civilians, there may sometimes be a temptation, as well as pressure, to resort to alternative solutions which lie outside the law governing the fight against terrorism. Only those who have had the opportunity of working together with political or police authorities in such terribly difficult moments can fully comprehend the complexity of their reactions. A common significant explanation for any extra-judicial counter-terrorist responses is a deep-seated sense of injustice for having, at all times, to act within the constraints and obstacles of the applicable legal framework, which their adversaries may ignore. Adherence to the rule of law can by nature create the perception of an uneven playing field where state authorities may feel as though they are playing a game of poker which requires them to show all of their cards, while the other party can keep its cards hidden.

The lack of international cooperation in the fight against the ETA terrorist phenomenon added another element of irritation and frustration during those years. This situation, which may have been understandable while Spain was not yet a democracy, was not tolerable when such cooperation was sought by a democratic state seeking to guarantee fully all civil liberties and rights. Although with time effective bilateral cooperation between Spain and France in the fight against terrorism was established—which has contributed greatly to the current end-stage of ETA terrorism—it must be acknowledged that this was not always the case.7

Another contributing factor to any responses outside the rule of law may be the influence exerted on public opinion by those who are convinced that it is only possible to prevent imminent terrorist attacks by putting ‘pressure’ on terrorists, whether or not convicted of terrorist offences, beyond the limits permitted by law under such emotional justifications as the need to safeguard the lives of innocent people. A recent illustration of this is when Felipe González, former Prime Minister of Spain, revealed in an interview published in the Spanish newspaper El País8 that on a certain occasion during his term he received sufficient information to be able successfully to order blowing up the leadership of ETA—effectively their targeted (p. 306) assassination9—which was meeting in a town in France. Notably, although González decided at the time not to act in this way, he remained unsure as to whether or not he had made the right decision in the light of all the victims which such governmental intervention could have avoided.

2.3.  A Domestic Political Perspective of Terrorism

The debate, and related tensions existing, between the security imperative and the rule of law has been a constant feature of political evaluation of the fight against terrorism, both by Spanish political parties, as well as by public opinion. For example, the lack of perceived firmness in implementing effective action to bring about the destruction of ETA, coupled with a certain willingness to negotiate, has traditionally been a political argument used against the Government. However, with respect to ETA, such discourse has changed following the GAL episode and completed transition from dictatorship to democracy within Spain. In contrast, addressing the ETA phenomenon has now entered a new and drastically different dimension in which a ‘negotiated end’ to its violence is no longer a possibility. Rather, ETA’s imminent demise is undeniably attributable to the successful law enforcement efforts of the police and other state forces. Nor would any political party be willing to accept the notion of paying a ‘political price’ in order to end terror. Instead, with the exception of the unfortunate GAL period, the final death blow to ETA’s activities will be attributable to compliance with the rule of law.

A number of further important observations, of wider domestic political significance, may be drawn from the ETA/GAL period in Spain’s counter-terrorism history. An overarching one concerns the dilemma between liberty and security. In particular, the political power during the GAL period tried to fight against ETA with the same weapons as those used by the terrorists, that is to say outside the rule of law: kidnapping when they kidnapped, torturing when they tortured, killing when they killed. Undoubtedly, such tensions were fuelled by the other observations made here. What was the result? It effectively legitimized, within a democratic state, a terrorist organization to employ the same weapons and tactics as were being used against them by the state. Terrorism may never be successfully overcome in such a manner.

Another is that while angry and fearful of the terrorist phenomenon, public opinion appeared to become increasingly less sensitized regarding certain governmental activities, especially those which did not fully respect human rights. In fact, it should be pointed out that when the GAL phenomenon came to light, the dominant opinion of a large percentage of the Spanish population was that the group’s fundamental mistake had been that their crimes were professionally ‘botched jobs’, with the (p. 307) consequence that they had not been carried out sufficiently well to eradicate all incriminating evidence.

Such sentiments were probably interrelated with another matter, namely that public opinion in Spain was traumatized for many years by the terrorist phenomenon, coupled with frustration at the apparent unwillingness of the international community to collaborate with Spain in this fight until it had suffered similar experiences. Undoubtedly, such sentiments of abandonment influenced popular opinion, and in turn domestic political and even security related policies and practices.

A further phenomenon of considerable importance, also interrelated with the first two observations, concerns the political dimension of victims of terrorism. There is a general consensus that those who suffer the most, in a cruel way, from terrorist aggressions are identifiable people, and that not only the democratic system suffers. It is also true that one of the best and most persuasive antidotes against terror, as well as influencing political responses, is the testimonial evidence of its victims.

Therefore, it is both unsurprising and undeniable that some of the associations of victims formed in Spain since the commencement of ETA’s activities have not retained their independence, but rather have been increasingly linked to one or other political parties. Although this has often further strengthened their cause, such associations have resulted in them being manipulated for political purposes. In particular, some political parties have tried to use terrorism as a weapon of opposition against the ruling government. For instance the Popular Party which, at the time when the Socialist Party in power was weakened by the GAL scandal, utilized the opportunity to stop the policy of rehabilitation of members of ETA in jail—insisting upon other extremely hard measures against them—in order to gain political popularity. Certainly, the potential influence of victims in domestic politics could not be more stark than the political fallout after the Madrid bombings in 2004, which is discussed next.

2.4.  The Fight against Other Forms of Terrorism in Spain—al Qaeda

After the 11 September 2001 (9/11) tragedy and the emergence of a new kind of terrorism in the world which reached global dimensions, the Spanish Government decided to step up its efforts to forge ahead in the field of international cooperation to combat terrorism. Such efforts were especially motivated by Spain’s long and painful experiences of suffering this phenomenon at first hand. One related measure was the creation by the Ministry for Foreign Affairs of the position of Ambassador with the special commission of dealing with the international dimension of terrorism, to which the current author was appointed in October 2001.

Both in the bilateral arena, especially in the relationship with the United States (US), as well as in the multilateral approach, a new phase of close cooperation began. In particular, within the European Union itself, there were regular meetings (p. 308) of the so called COTER committee on terrorism which represented an important step forward in terms of developing truly European security perspectives and policies. Such increasingly integrated approaches were reflected, for example, in the complex process of drawing up lists of terrorist groups, or seeking to curb their sources of finance.

The decision by the Spanish Government firmly to support President George W Bush’s plan to intervene militarily in Iraq in 2003 led to a very important political and moral crisis for a large part of Spanish society, who clearly manifested its opposition to this policy. For most Spaniards, there were not only well-founded doubts about the true existence of the infamous weapons of mass destruction, but it was also suspected that such an attack would not diminish the risk of Islamic terrorism; rather that it would have quite the contrary effect, as subsequent events in Madrid would come to demonstrate. Although at that time the current author was not directly engaged on such issues, he could not help speculating on its potential consequences, not least in terms of the terrorist risk to Spain.

In this author’s opinion, there appeared to be two dominant schools of thought. According to one of these, terrorism, whatever its nature and objectives, acquires its own dynamic. An important ingredient of such automatism is that means are transformed into ends. The logical consequence of this view was that terrorism in general, and Islamic terrorism in particular, would propagate terror for the sake of terror as its primary objective, and would act automatically, regardless of any stimuli or specific ‘provocations’. According to such a perspective, there was therefore no envisaged link between supporting military intervention in Iraq and significantly elevating the risk of terrorist attacks on Western societies, especially those supporting such intervention.

The other principal perspective, which represented the most widespread opinion, was that without rejecting the logic of the previous argument, at least in the short or medium term, the escalation of terrorism, which was essentially but not exclusively, Islamic, would be a significant feature of a post-war scenario in Iraq. At the same time, al Qaeda’s direct and indirect capacity to influence progressively radicalized Muslim elements throughout the world should not be forgotten either. For some time, prior to the intervention in Iraq, al Qaeda had been mistakenly identified as the only focus of terrorist activity with an Islamic component. Even though the most important threat was al Qaeda, other terrorist organizations remained dangerous also. For example, there were at least 30 groups belonging to the so called ‘World Islamic Front for the Yihad against Jews and Crusaders’, whose mission was to fight against the West for the Islamic cause. There were also other groups of Iranian, Palestinian, or Kurdish origin with interests in the Middle East region. Indeed, one perhaps unforeseen consequence of bringing about the collapse of the Taliban regime in Afghanistan was that it further contributed to this terrorist phenomenon. In particular, the dismantling of the status quo and related hierarchies, and the active (p. 309) pursuit of both the Taliban and al Qaeda by allied military forces, required that these terrorist groups adapt to this new threat to their activities, in particular through becoming much more autonomous and independent. In turn, this led to the creation, or revitalization, of small terrorist groups within many countries outside Afghanistan.10 Whilst unlikely to increase terrorist aggression in ‘traditional’ areas of operation—such as the Middle East, South-west Asia, or Kashmir11—terrorist objectives would, in the event of military intervention in Iraq, logically be centred on US territory, North American interests overseas, and on its allies, especially those who had lent the most support to US stances.

Unfortunately, some concerns were realized, most clearly demonstrated by the brutal terrorist attack carried out in Madrid on 11 March 2004. The terrorist attacks left 191 dead and more than 1500 people wounded. At 07.30 a bomb had exploded near the Atocha railway station, followed closely two minutes later by two further bombs which were activated in one of the incoming carriages. Later, four additional bombs exploded in other stations of the Madrid metropolitan area. It was the biggest terrorist attack ever carried out in Spanish history. Whilst the initial evidence pointed to ETA as the group responsible, it was not long, especially following the first arrests, before it became clear that the perpetrators were undoubtedly Islamic fundamentalists.12

Politically, the attack had extremely serious consequences in terms of domestic policy—not least the visible plight of so many victims—acting as one of the contributing factors to the defeat of the Popular Party in the national elections and the return to power of the Socialist Party. The general elections were scheduled to take place two days after the Atocha terrorist attack. The overwhelming public opinion was that the ruling Popular Party had tried to give the wrong message by suggesting that ETA was responsible despite the strong evidence to the contrary which had been in existence. The Popular Party had a political incentive to link responsibility for the terrorist attacks to the Basque group due to their very strong anti-terrorist policies on ETA, which would have strengthened their political position in the imminent elections. In contrast, any Islamic responsibility would have the opposite effect due to the lack of popular support for Prime Minister Aznar’s support of US policies on Iraq as just described, which many believed to be the catalyst of the Madrid bombings.

(p. 310) 2.5.  Distinguishing Planned from Exceptional Responses

One positive aspect of the Madrid tragedy was the considered Spanish political and judicial reaction which it triggered.13 One of the most significant potential rule of law challenges in such circumstances is to counter the desire for an ‘eye for an eye’ reaction; that is, responding to such violations in a manner which itself is contrary to established principles, with the effect that a victim or victim state may become a violator and no better than those who commit such terrorist atrocities. On the contrary, it was evident in the case of the terrorist attacks on the Atocha railway station in Madrid that the Spanish reaction was fully within the rule of law: it was not necessary to engage the army; no exceptional interrogation methods were employed; no special detention centre openings were authorized; and no new laws or indefinite prolongation of imprisonment periods for suspects were created. Not one single regulation was modified in the entire criminal justice system.

This is a clear example of the ability to adopt policy decisions which respond to exceptional security imperatives—in this case, dealing with the significant political, economic, and human costs of such terrorist attacks, and preventing their recurrence—in a non-exceptional manner within an existing legal framework and its parameters. It is in stark contrast to the US responses to the 9/11 attacks, following which al Qaeda achieved several of their planned objectives: the US was forced to modify its entire institutional counter-terrorism framework, beginning with the Patriot Act 2001; the resultant war logic conferred the status of ‘fighters’ on the terrorists, affording them some of the international recognition they sought; and at the same time, at least initially, a unilateral approach and perspective replaced those of multilateralism, which is always more effective in the international fight against terrorism, not least for reasons of sustainability and legitimacy.

Undoubtedly the ability to respond to such exceptional acts in a rule of law compliant manner stems from the embedding of the rule of law within a state’s executive, legislature, and judiciary prior to such events. Such positive Spanish responses to the Madrid bombings were largely attributable to the prior efforts taken to embed the rule of law within Spanish society and government following decades of dictatorship, representing a very different response to the GAL phenomenon previously described. The importance and benefits of such institutional approaches, combined with the development of appropriate planned responses, is reflected in the sentiments recently expressed by the Spanish Attorney General, Cándido Conde-Pumpido, when speaking at a seminar on Terrorism and Human Rights which took place in Màlaga in October 2009.14 He stated that the most important (p. 311) contribution from Spanish institutions to judicial progress regarding the prevention of Islamist fuelled terrorism was precisely that which followed the terrorist attacks on 11 March 2004 in Madrid:

Since M11 we haven’t had to enforce the criminal code as a response to new [terrorist] attempts because there haven’t been any. There haven’t been any new attempts because we have successfully employed the preventive function of the Criminal code, fully observing human rights guarantees, resulting in the [subsequent] arrest of 438 people whose criminal plans were interrupted before being able to execute their bloody goals.15

Furthermore, this illustration is a clear example of the indivisible relationship which must exist between counter-terrorist security imperatives and the rule of law, and the resultant benefits for both policy-makers and practitioners, which was referred to at the outset of this chapter. Effective and detailed planning, including the necessary accompanying training, of responses to terrorism is crucial not only in terms of legitimacy, but also of efficiency. There are also two clear, inherent warnings which may be identified. The first concerns the need for policy-makers and their agents strongly to resist being inappropriately influenced in their decision-making processes and practices by the significant emotional aspects associated with any terrorist actions, which is also an inherent characteristic of the terrorist phenomenon. The other is that there is always more work to be undertaken in terms of further strengthening the rule of law, leaving no room for complacency.

3.  National to International

3.1.  The Club of Madrid International Summit on Democracy, Terrorism and Security

3.1.1.  The Club of Madrid

At the end of the author’s diplomatic career, and between 2007 and 2010, he was appointed as Secretary General of the Club of Madrid, which provided an interesting opportunity to consider the terrorism phenomenon from a different perspective. The Club of Madrid is an independent organization, a central objective of which is to promote democracy all over the world through the unique leadership and experience of its members who comprise more than 80 democratic former heads of state and government from over 50 different countries. The Club was created after a four day Conference on Democratic Transition and Consolidation which took place in October 2001 in Madrid which brought together 35 then serving (p. 312) heads of state and government from Europe, America, Asia, and Africa who had the opportunity to discuss and propose a number of conclusions and practical recommendations on how democracy may be strengthened by governments, drawing upon the expert input of over 100 scholars, political analysts, and other well known professionals.

In March 2005, one year after the Madrid terrorist attacks, the Club of Madrid organized an International Summit on Democracy, Terrorism and Security (the Madrid Summit) which aimed to promote a vision founded on democratic values and was committed to effective cooperation in the fight against terrorism. It was the largest dialogue between civil, security, and terrorism experts and policy-makers that had ever taken place. It included 23 serving and 34 former heads of state and government; official delegations from more than 60 countries; heads of numerous intergovernmental and international organizations such as the United Nations (UN), the European Parliament, Interpol, and the League of Arab States; more than 200 experts on terrorism and security; and more than 500 representatives from non-governmental organizations and civil society.

During the Summit, the Club members developed the so called ‘Madrid Agenda’, detailing an action plan of how to confront terrorism within the framework of democratic values, and therefore within the rule of law, which is inseparably linked to the safeguarding and promotion of these values and their related principles. It articulated a number of specific principles for counter-terrorism, for example unreservedly condemning terrorist methods, and proposing a comprehensive response for law enforcement and other security approaches. Additionally, it emphasized the pivotal underpinning importance of any method used to combat terrorism complying fully with international standards on human rights and the rule of law.

3.1.2.  Key Findings and Policy Lessons Learnt

One of the working groups participating in the Madrid Summit was devoted to issues of human rights and the fight against terrorism, the coordinator of which was Asma Jahangir, member of the Human Rights Commission of Pakistan. In their analysis, the members of the group recognized that the special character of the terrorist attack on 9/11, and the ensuing war against terror, had changed ‘the manner with which such confrontations were settled in the past. The counter-terrorism measures that followed have signalled a dangerous shift in the legal paradigm’16 that existed previously. This new paradigm ‘presuppose[d] that the long-term goal of (p. 313) respecting and protecting human rights and fundamental freedoms could be a price to pay for short-term security imperative considerations’.17

Under the title of ‘the ineffectiveness of human rights violations’, the group agreed that ‘[w]hile acknowledging that democratic societies governments are under exceptional strain, the counterproductive aspects of such policies has to be brought out with more clarity than hitherto. The legal sanctioning of human rights violations undermines the rule of law and creates enabling environments for vicious and militant networks that prosper in oppressive systems of governance.’18

The working group further observed that:

It is important to note that terrorist attacks do not occur because of gaps in the substantive law. All acts of terrorism are already criminalized under existing national penal offences and under international law … The focus of governmental machinery must shift from short-term tactical measures to long-term policy designs in the pursuit of a global vision for security. Respect for human rights and fundamental freedoms must be central to such an endeavour. That respect for universal human rights is central to democratic governance requires no further explanation. Governments of democratic countries need to accept, therefore, that the use of arbitrary power will impact negatively on the global environment for democracy.19

Overall, the findings and policy recommendation of this working group emphasized that the threat from terrorism was real, but that it had to be fought with full respect for human rights and the rule of law. When confronted with attacks on civilians, states not only had the right, but also the accompanying duty to suppress them and to bring their perpetrators to justice. However, at the same time governments needed to be careful not to betray the very values they were meant to defend. If terrorism was a form of psychological warfare that aimed to provoke a repressive response and thereby confuse the distinction between perpetrator and victim, it was essential to maintain the moral high ground and deny the terrorists the legitimacy for which they longed. In practical terms, repressive and intrusive measures needed to be subject to judicial and political control, and should be applied only as long as there was a credible threat.20

The Madrid Agenda also focused on the importance of protecting democratic values and principles as the essential framework within which to guarantee and protect such human rights. There was consensus that, in the longer term, only democracy would defeat terrorism. While open societies made it easier for terrorists to operate, they were also less likely to permit terrorists to achieve their political objectives. In particular, because people determine their own futures within democratic societies, terrorists generally lack the growth medium of resentment and (p. 314) discontent on which they thrive. However, it was further recognized that for democracy to become an immune system to terrorist objectives, more than just elections are required. Rather, it has to be based on a vibrant civil society and full respect for the rights of ethnic and religious minorities. In this respect, the Madrid Agenda argued that even some established democracies had more work to do, not least given the sometimes negative experiences of migrant communities within Western countries.21

3.1.3.  Policy Recommendations

Each working group issued a final paper of policy recommendations as conclusions of their debates. In the case of the group on human rights, such policy recommendations were aimed at both the international and national levels.

With respect to the international level, the group established the principle that human rights and humanitarian laws should be respected at all times, not least in the fight against terrorism, and applied equally and non-discriminatorily around the world. In particular, it was especially concerned with the need to:

  • •  Promote international co-operation whilst ensuring that human rights are considered in all intelligence-gathering, investigative, and interrogation activities.

  • •  Strengthen the UN treaty bodies and special procedures, and continue to mainstream human rights in the work of UN. Human rights concerns must be incorporated in all initiatives and actions regarding counter-terrorism, especially in the work of the Counter-Terrorism Committee.

  • •  Require all states to include provisions on compliance with human rights and humanitarian law in their counter-terrorism measures and activities.22

At the national level, the working group proposed that:

  • •  Governments must work to eliminate torture and any cruel, inhuman, or degrading treatment regardless of the challenges they face.

  • •  The fundamental and overriding principle of non-discrimination must be respected at all times, especially in counter-terrorism measures adopted by states.

  • •  All measures of racial profiling and other discriminatory practices against minorities or particular social and religious communities must be eliminated.

  • •  States must ensure the necessary legal protection to particularly vulnerable groups (such as refugees, immigrants, migrant workers, and non-citizens).23

The group concluded its findings by returning to the importance of the rule of law in what remains one of the most contentious issues raised by security imperative agendas—intelligence gathering techniques: ‘while intelligence gathering is crucial (p. 315) in the struggle against terrorism, its machinery needs to be refined in a manner that respects fundamental rules of human rights and legal procedure’.24

The overall response to the Madrid Agenda was affirmation of its vision of fighting terrorism in a manner which understood and reflected the longer term implications of purely repressive counter-terrorism policies within its recommendations. It was also praised for stressing the need for a comprehensive response, which accounted for motivational and underlying risk factors in conceptualizing the phenomenon. Such issues had long been articulated by scholars, but were given further weight by their endorsement by such a gathering of policy-makers and counter-terrorism officials.

3.1.4.  Beyond the Summit

One of the challenges of such initiatives is always how to sustain its momentum, especially in order to translate such recommendations into policy decisions and resultant practices. Indeed, the Madrid Agenda itself clearly recognized that the conclusions reached at the Summit were a ‘work in progress’. With respect to the specific outcomes of the Madrid Summit, there have been a number of subsequent related activities with the objective of disseminating its findings as widely as possible in order to further translate rule of law rhetoric into practice.

This has been done in a number of ways, with the principal ones being listed here. Shortly after its convening, the recommendations of the Madrid Agenda were presented to the UN, to the Community of Democracies Ministerial meeting which took place in Chile,25 as well as to other institutions and governments. It was also decided that the Club of Madrid would proactively engage with universities, specialized research institutes, and think tanks to elaborate the proposals made by the Summit’s working groups and panels, with a view to their implementation.

Additionally, an important element of the Club of Madrid’s dissemination strategy has been the participation in/or organization of key follow-up events at which the Madrid Agenda can be introduced and discussed, not least with those who share common goals. Such events have included: a joint event in New York organized by the Club of Madrid and the Security and Peace Initiative on 18 May 2005; an event entitled ‘The Madrid Agenda at the European Level: Confronting Terrorism through Democratic Means’, which was held in Brussels on 10 June 2005, organized by the Club of Madrid in cooperation with the European Policy Centre; the co-sponsoring of a National Policy Forum on Terrorism, Security and America’s Purpose, which was organized by the New America Foundation and took place in (p. 316) Washington DC in September 2005; the convening by the Club of Madrid and the German Council on Foreign Relations of a high level workshop on ‘Fighting Terrorism, Upholding Human Rights’ in Berlin in November 2006; and participation in the 4th Annual Worldwide Security Conference organized by the East West Institute, held in Brussels in February 2007, which included a special session dedicated to the issue of ‘Democracy and Terrorism: Mainstreaming the Madrid Agenda’.

Similarly, the participation on behalf of the Club of Madrid by the current author, in his capacity as its Secretary General, in Forum I of the World Justice Project which occurred in Vienna in July 2008 afforded a further excellent occasion during which to present some of the goals and key findings and recommendations of the Madrid Summit. The central message remained the imperative of always countering terrorism in a manner which strictly respects the rule of law.

Thanks to the World Justice Project initiative and the efforts of the coordinator of the current project, Katja Samuel, and her expert team, momentum gained during the Madrid Summit is being both sustained and further developed in a range of directions, once again with the core objectives of not only clearly identifying and making recommendations regarding pressing rule of law issues in the context of counter-terrorism, but actively seeking their implementation also, especially at policy levels. However, there is no room for complacency, with much work remaining for these and related initiatives.

4.  Multinational Level

4.1.  Recent Review of NATO’s Strategic Concept

The final dimension considered here is the existence and operation of the rule of law at the multinational level of counter-terrorist responses. Whilst during the second half of the 20th century the most significant threat to world security was posed by the existence of two blocks of politically and economically antagonistic super powers, at the beginning of the 21st century a predominant feature of existing conflicts, and most probably also future security scenarios, is their asymmetric nature. In particular, the most significant challenges currently posed are those linked to terrorism and organized crime, not least due also to their increasingly transnational nature.

An example of a multinational response to such threats and challenges is that taken by NATO. In particular, during a meeting in April 2009 in Strasbourg-Kehl,26 the (p. 317) members of the Atlantic Council decided that a new strategic concept for NATO’s operations should be developed to substitute the one previously agreed in 1999, which had already become outdated in the post 9/11 context. To this end, they requested that NATO’s Secretary General Rasmussen form a group of experts to prepare the basics for a debate between the member countries at the Lisbon Summit of November 2010.27 This group of 12 experts—of which this author had the honour to be part—under the leadership of the former US Secretary of State, Madeleine Albright, produced a high level strategic report in May 2010, entitled ‘NATO 2020: Assured Security, Dynamic Engagement’.28 The report included detailed analysis of the present strategic environment, and made a number of recommendations for the future counter-terrorist policies and response of NATO.

Although the group of experts recognized that many diverse problems and threats make up the current strategic environment—its complexity and unpredictability; the interrelationship between the different risk factors; and especially the new and growing vulnerability of our societies—due to the current predominance of terrorism related issues, these were the primary focus of the group.

More specifically, although the 1999 Strategic Concept identified terrorism as an important threat, it did not deal with it in much detail. However, the new global terrorist threats so clearly demonstrated in the 9/11 attacks, and their transnational implications which have dominated much of subsequent security discourse, required that this phenomenon become a priority subject of multinational security, which included the future responses of NATO.

One significant challenge which needed to be overcome was the dangerous internal divisions in NATO’s membership in response to different perspectives on the notion of the existence of any so called ‘war against terror’ and how it should be responded to it, not least as this potentially placed the future of NATO and its work into the balance. One way in which its members, and similarly the group of experts, overcame this particular hurdle was to agree, with total determination, the absolute necessity of effective cooperation in the fight against terrorism, underpinned by the unequivocal requirement to respect at all times the rule of law. There were other significant impediments to reaching agreement also, not least the difficulties associated with international efforts more generally: to reach a commonly accepted definition of terrorism; to establish its causes clearly; and to proclaim that any military solution should be complemented by political, legal, and financial measures.

(p. 318) With respect to all the subjects examined by the group of experts, it was obvious that the traditional concept of ‘defence’ should be enlarged to include the general idea of ‘security’. This was especially so due to the unconventional, transnational nature of current terrorist threats. As the expert report stated:

[P]rovided NATO stays vigilant, the prospect of direct military attack across the orders of the Alliance is slight, at least for the foreseeable future. We have learned, however, that in our era less conventional threats to the Alliance could arise from afar and still affect security at home. These dangers include attacks involving weapons of mass destruction, terrorist strikes and efforts to harm society through cyber assaults or the unlawful disruption of critical supply lines.29

Furthermore, it is the current author’s recollection that the general opinion of the group was that protection should not be limited to the physical territories of NATO Member State countries; rather that it should also include the protection of their values and interests, which incorporated the need to respect individual liberties at all times.

One of the most important specific aims of the new Strategic Concept was to try to redefine a new partnership between NATO and Russia. To this end, the group of experts emphasized the importance of maximizing opportunities ‘for pragmatic collaboration [between Russia and NATO] in pursuit of shared interests as nuclear non-proliferation, arms control, counter-terrorism, missile defence, effective crisis management, peace operations, maritime security and the fight against trafficking in illegal drugs’.30 Other aims reflected recognition by the group of experts of the pressing need to strengthen NATO’s role in fighting terrorism. Although it was evident that, within the treaty area, counter-terrorism is primarily the national responsibility of the police and other domestic agencies, the report nonetheless suggested that NATO still had an important parallel role to play: ‘the Alliance can play a supporting part though the protection of vital military facilities, sharing intelligence and providing assistance, when asked, in consequence management’.31

4.2.  The Wider Role of a Diplomat

As has been evident in this chapter, its author’s experience of terrorism related matters has been diverse and complex. Yet the minimum common denominator throughout has always been the importance of seeking the best possible way to achieve efficiency in the fight against terrorism in a manner which ensures the most rigorous respect of human rights and the rule of law. From the perspective of diplomatic action—to which the author has devoted 45 years of his life—the achievement and maintenance of effective international cooperation is central to ensuring such (p. 319) parallel security imperative and rule of law goals. Three key examples are mentioned here by way of illustration.

The first relates more generally to the importance of reaching a universal definition of terrorism in order to strengthen the current international framework within which international counter-terrorist responses occur. Only then will it be possible to find a common language when dealing with terror. However, this is no easy task, as the recent experience of the UN and its Member States in seeking to agree the text of a draft UN Comprehensive Convention on International Terrorism illustrate. Undoubtedly ongoing diplomatic efforts will continue to play a pivotal role in such law-making efforts.

The second is that international cooperation among democratic countries can only exist if there is no doubt that full respect for human rights and individual liberties operate within them. Therefore an important diplomatic task is to convince local, national, and sometimes intergovernmental authorities regarding the strict compliance with these rules by the country represented. An example of this occurred when the current author was serving as Ambassador in Germany during which time Spain requested that the German authorities extradite a member of ETA. He was required to offer total guarantees that this person would be treated in full compliance with human rights protections.

The significance of such a diplomatic role has been prominent during the ‘global war on terror’ also, not least in securing the release of foreign nationals held by the US authorities at the Guantánamo Bay detention facility, but also in the increasing trend for Western governments to seek diplomatic assurances in an attempt to circumvent rule of law restrictions posed by the refugee principle of non-refoulement when seeking to return those suspected of terrorist acts to their country of origin.32 Not only is this role likely to continue, but such activities highlight the importance of diplomats becoming increasingly conversant with fundamental rule of law norms, which have traditionally been the preserve of lawyers.

The third is that effective diplomacy is integral to the initiation, adoption, and implementation of regional and international initiatives which directly or indirectly further counter-terrorism objectives. One recent example of this is the joint Spanish and Turkish initiative of the ‘Alliance of Civilizations’ which was established under the auspices of the UN in 2005, and which aims ‘to improve understanding and cooperative relations among nations and peoples across cultures and religions [and to help] counter the forces that fuel polarization and extremism’.33 The importance of such work is obvious in the current climate of terrorism and counter-terrorism, not least in seeking to respond more effectively to deep rooted anti-Islamic and anti-Western (p. 320) sentiments which have grown especially since the ‘global war on terror’ began following the 9/11 terrorist attacks in 2001.

5.  Conclusions

These diverse experiences of and perspective on the world of terrorism have led the current author to draw several conclusions which are believed to be especially important and of wider application.

The first is that any fight against terrorism which respects the rule of law must be not only firmly grounded upon high standards of morality and legality, but also upon accompanying legitimacy and effectiveness. As Cándido Conde-Pumpido, the Spanish Attorney General, so succinctly commented during the Malaga seminar on Human Rights and Terrorism referred to previously: ‘Western society is convinced that poverty, tyranny, oppression, and inequality or corruption may perhaps generate violence but can never justify it. But it is also true that the respect of dignity, the effective recognition of freedom, and a true democracy are the best known remedies against the psychopathic activity which we call “terrorism”.’34

The Attorney General further added that the capacity of the human rights system to deprive terror of all possible legitimacy is only possible and credible if these human rights are always adhered to within the inalienable framework of the fight against terrorism. Consequently, this struggle may ultimately only be won if terrorists are morally disarmed through a system of constitutional guarantees which—vis-à-vis our societies—make it impossible for them to seek to justify their actions in terms of similar human rights violations being perpetrated against them under the auspices of countering terrorism. It is imperative that policy-makers and practitioners never lose the upper hand of this moral legitimacy.

Another significant conclusion is that it is essential for policy-makers to avoid succumbing to any of the possible temptations often induced by the terrorists themselves. Most notably these include:

  1. (1)  The acceptance of the idea of a ‘war against terror’—an expression used by US neoconservatives after 9/11—which, as recent history has demonstrated, can be used in an actual military rather than merely metaphoric sense. Such concepts may have significant rule of law implications, not least through effectively affording terrorists and their causes legitimacy through giving them associated labels, such as ‘fighters’ or ‘soldiers’, in furtherance of their ideological agendas.

  2. (2)  The implementation and accompanying justifications of exceptional legal measures which deviate from constitutional normality, thereby once again (p. 321) furthering a fundamental objective of terrorism: the substantial alteration of the normal functioning of the democratic system, not least through the erosion of norms and values upon which it is premised.

  3. (3)  The adoption of measures and provisions incompatible with the rule of law which extend beyond the immediate emergency created by a terrorist attack. In any case, it is of the greatest importance to limit as much as is possible the occasions on which a government reacts in legal, judicial, or procedural terms which are exceptional and outwith the parameters of its usual responses. The rule of law principle will always be much easier to respect if its provisions are clearly embedded within a state’s executive, legislature, and judiciary prior to the perpetration of a terrorist attack.

A third conclusion is that the adequate treatment of the fight against terrorism, in a manner which fully accords with and respects the rule of law as already described, is also an essential condition to international counter-terrorist cooperation. As Isashi Owada, former President of the International Court of Justice, stated on the occasion of the opening of the seminar entitled ‘Civil society facing the consequences of terrorism: victims of terrorism, civil liberties and human rights’ held in Madrid in June 2009:35

[T]he internationalization of terrorism can no longer be correctly dealt with exclusively by national reactions based on the traditional concept of terrorism as a crime included in the framework of the criminal justice system of a nation-state: global terrorism requires global answers based on the idea of the international public order of the international community with its sacred imperative of the respect of the fundamental human rights of individuals as part of the universal justice of that community.36

He continued:

If we accept that the rule of law at the international dimension is based on the inviolability of human dignity, then international terrorism—which represents a violent and terrible challenge to this fundamental value of the rule of law—will be much better fought with means that preserve and strengthen the rule of law, rather than with those which could in the end weaken this fundamental value.37

Certainly, following the devastating attacks of 9/11, different perceptions of not only terrorist problems, but also notions of the rule of law and adherence to it, existed between the US and Europe. These posed significant additional obstacles to international cooperation, which is so pivotal to countering terrorist activities and (p. 322) threats effectively. In particular, while Washington stressed the concepts of sovereignty and national security, Europe emphasized the concepts of civil society, cooperation, integration, and multilateralism, though a number of these difficulties subsequently dissipated following the change of administration with the inauguration of President Obama in January 2009.

Closely related to effective multinational cooperation, and to adherence to the rule of law, is compliance with the UN Charter which, as is expressed in UN Security Council Resolutions such as 1373,38 should lie at the heart of such counter-terrorist efforts. Unfortunately, however, as recent practices have demonstrated, such compliance is not always evident within state practice. Certainly, it is never acceptable for terror to be countered by terror. As Álvaro Gil Robles, former Commissioner for Human Rights of the Council of Europe, said during the Terrorism and Human Rights seminar in Màlaga in 2009: ‘the only way to fight injustice is with justice, and the only way to fight against the terrorist threat is with the legitimate weapons of the State’.39

Ultimately, in this fight against terrorism, it is essential not to forget its causes. Indeed, this lies at the heart of Pillar I of the Action Plan to the UN Global Counter-Terrorism Strategy 2006,40 which is concerned with ‘[m]easures to address the conditions conducive to the spread of terrorism’, and which is linked to the rule of law and human rights objectives articulated within Pillar IV. Therefore, the fight against terrorism should strive, day by day, to eradicate the methods of terror. Instead, peace, tolerance, justice, support for development, respect for life and for human dignity are the true secrets for an efficient fight against terror. These should lie at the heart of any governmental security imperative agendas aimed at countering terrorism.


Club of Madrid, ‘The Madrid Agenda’ (International Summit on Democracy, Terrorism and Security, Madrid 8–11 March 2005) 〈http://summit.clubmadrid.org/agenda/the-madrid-agenda.html〉 accessed 13 February 2011.

Madrid Agenda (n 1).

ETA (Euskadi ta Akastasuna, which means in the Basque language ‘Basque Country and Freedom’) came into being in 1958 as a nationalistic movement fighting against the Franco system. At the end of the 1960s it became an armed group responsible for many terrorist activities, which included more than 1,000 assassinations, such as that of the Spanish Prime Minister, Admiral Carrero Blanco, in 1973. See further, for example, Council on Foreign Relations, ‘Basque Fatherland and Liberty (ETA)’ (17 November 2008) 〈http://www.cfr.org/france/basque-fatherland-liberty-eta-spain-separatists-euskadi-ta-askatasuna/p9271〉 accessed 16 February 2011.

The attempted coup of 23 February 1981 started when a group of civil guards occupied the Spanish Parliament, taking as hostages all the members of the Congress and the whole Government. At the same time, the highest military commander of the region of Valencia declared a state of emergency and ordered his tanks to occupy the streets of the city. The complex structure of the coup collapsed following King Juan Carlos’ appearance on national television to condemn it strongly and to reaffirm his commitment to democracy. One of the factors explaining this attempted coup was the military anger against what they considered to be weak anti-terrorist governmental policies in response to the increasing number of murders being committed by ETA, many of them of members of the armed forces. Even though the coup failed, lessons learned from it included a greater appreciation of the need to apply stronger pressure against the terrorists and their environment. See further 〈http://www.ena.lu/attempted_coup_detat_spain_colonel_tejero_madrid_23_february_1981-020703414.html〉 accessed 16 February 2011.

F Reinares and O Jaime-Jimenez, ‘Countering Terrorism in a New Democracy: the Case of Spain’ in F Reinares (ed), European Democracies Against Terrorism: Governmental Policies and Intergovernmental Cooperation, The Oñati Institute for the Sociology of Law (Ashgate, Aldershot 2000) 136.

See, for example, ‘La cúpula de Interior de González, condenada: Sentencia integral del “Caso Segundo Marey”’ El Mundo (29 July 1998) 〈http://www.elmundo.es/nacional/gal/marey/sentencia/sentencia.html accessed 16 February 2011; AM Díaz Fernández, Los Servicios de Inteligencia Españoles desdela Guerra civil hasta el 11-M: Historia de una transición (Alianza Editorial, Madrid 2006) 221.

F Celaya, ‘The terrorist threat is being materially and normatively shaped by national and global institutions of law and order: Spain & beyond’ (2009) 4 Athena Intelligence Journal 7, 14–15, 22.

JJ Millás, ‘Tuve que decidir si volaba a la cúpula de ETA. Dije no. Y no sé si hice lo correcto’. El País (7 November 2010) 〈http://www.elpais.com/articulo/reportajes/Tuve/decidir/volaba/cupula/ETA/Dije/hice/correcto/elpepusocdmg/20101107elpdmgrep_2/Tes〉 accessed 13 February 2011.

See further D Kretzmer, ‘Use of Lethal Force against Suspected Terrorists’, Chapter 24 of this volume.

10  See, for example, A Khan, ‘Scoring own Goals in Pakistan’ Foreign Policy (1 October 2010) 〈http://afpak.foreignpolicy.com/posts/2010/10/01/own_goals_in_pakistan〉 accessed 16 February 2011; E Burke, ‘Spain’s War in Afghanistan’ FRIDE Policy Brief (January 2010) 〈http://www.fride.org/descarga/PB_Spain_Afghanistan_ENG_jan10.pdf〉 accessed 16 February 2011.

11  See Millás (n 8).

12  See further, for example, Global Security, ‘Madrid Train Bombing’ 〈http://www.globalsecurity.org/security/ops/madrid.htm〉 accessed 16 February 2011.

13  See, for example, L Barrenechea, ‘The Madrid bombing trial draws to a close’ (openDemocracy, 9 July 2007) 〈http://www.opendemocracy.net/the_madrid_bombing_trial_draws_to_a_close〉 accessed 16 February 2011.

14  The Seminar on Terrorism and Human Rights organized by the Spanish Ministry of Foreign Affairs in cooperation with the Council of Europe and University of Málaga (8–9 October 2009) was opened by the Spanish Attorney General, Cándido Conde-Pumpido. During the seminar more than 30 experts from different countries discussed the challenges of fighting terrorism in a manner which respects human rights at all times.

15  As annotated and translated by the author.

16  Club of Madrid, ‘Towards a Democratic Response: The Club of Madrid Series on Democracy and Terrorism’ (2005) Vol III (Towards a Democratic Response) 27 〈http://media.clubmadrid.org/docs/CdM-Series-on-Terrorism-Vol-3.pdf〉 accessed 13 February 2011.

17  Towards a Democratic Response (n 16) 27.

18  Towards a Democratic Response (n 16) 28.

19  Towards a Democratic Response (n 16) 28.

20  Towards a Democratic Response (n 16) 30–2.

21  Towards a Democratic Response (n 16) 21–5.

22  Towards a Democratic Response (n 16) 30–1.

23  Towards a Democratic Response (n 16) 31.

24  Towards a Democratic Response (n 16) 31.

25  See Community of Democracies, ‘Santiago Commitment Cooperating for Democracy’ Third Ministerial Conference of the Community of Democracies (Santiago, Chile 28–30 April 2005) 〈http://www.ccd21.org/santiago.htm〉 accessed 13 February 2011.

26  NATO, ‘Summit meetings of Heads State and Government’ (4 April 2009) 〈http://www.nato.int/docu/comm/2009/0904-summit/index.html〉 accessed 13 February 2011.

27  The Summit took place in Lisbon, 19–20 November 2010 〈http://www.nato.int/cps/en/natolive/events_66529.htm〉 accessed 16 February 2011.

28  NATO, ‘NATO 2020: Assured Security, Dynamic Engagement: Analysis and Recommendations of the Group of Experts on a New Strategic Concept for NATO’ (17 May 2010) (NATO Strategic Concept Report 2010) 〈http://www.nato.int/strategic-concept/expertsreport.pdf〉 accessed 16 February 2011.

29  NATO Strategic Concept Report 2010 (n 28) 9.

30  NATO Strategic Concept Report 2010 (n 28) 10.

31  NATO Strategic Concept Report 2010 (n 28) 44.

32  See further K Wouters, ‘Reconciling National Security and Non-Refoulement: Exceptions, Exclusion, and Diplomatic Assurances’, Chapter 22 of this volume.

33  See 〈http://www.unaoc.org/about/〉 accessed 25 July 2011.

34  Annotated and translated by the author.

35  This seminar was organized by the Spanish Ministry of Foreign Affairs in cooperation with the Swiss Embassy and the Royal Elcano Institute. For more details see EM Herzog, ‘La sociedad civil ante las consecuencias del terrorismo. Víctimas del terrorismo, libertades civiles y derechos humanos’ (Opening speech of the Seminar ‘La Sociedad Civil ante las consecuencias del Terrorismo’) (Madrid, 15–16 June 2009) 〈http://www.realinstitutoelcano.org/wps/portal/rielcano/contenido?WCM_GLOBAL_CONTEXT=/elcano/elcano_es/zonas_es/terrorismo+internacional/00038〉 accessed 13 February 2011.

36  Annotated and translated by the author.

37  Annotated and translated by the author.

38  UNSC Res 1373 (28 September 2001) UN Doc S/RES 1373.

39  Annotated and translated by the author.

40  UNGA Res 60/288 (8 September 2006) UN Doc A/RES/60/288.