introduce changes in ordinary law that may constitute permanent derogations from
human rights obligations.102
• Restrictions of those rights that allow for limitations must be prescribed in law, be necessary and proportionate as well as non-discriminatory. For the most part, the rights most
obviously affected by FTF provisions (such the right to privacy, freedom of expression and association or the right to manifest one’s religion) are qualified rights subject
to restrictions, provided those restrictions meet strict requirements and are applied
accordingly. They must be provided for by law, must not exceed necessary limitations,
and must be minimized wherever possible and be proportionate to a legitimate aim.
Particular care is needed to avoid rights being balanced against security threats in
abstract terms. Limitations to rights must be justified by the necessity and proportionality of the particular measure, based on a specific risk assessment of the individual case and context.
• Targeted case-by-case approach: The human rights law framework requires a targeted
approach, and rejects “one size fits all” solutions. Blanket application of laws and policies may not only be less effective and efficient, but it also falls short of requirements
in human rights law for approaches to risk assessment to be individualized and for
there to be an analysis of the necessity and proportionality of the particular measure
in question. In order to give effect to these obligations, the need for enhanced understanding of the “phenomenon”, its causes and contributors, and careful analysis of
case and context specificity, has been broadly recognized and alluded to above.103 As
noted above, this is underscored by analyses on the diverse profiles of FTFs and the
range of relevant “push” and “pull” factors. The personal, social, ideological, religious
and gender dimensions, and the role of mental health factors, all recall the need for
responses to be informed by, and tailored to, a more nuanced understanding of each
and every case and its context.
• Violations must be met with suitable remedies and accountability: Satisfying the right
of victims to a remedy, and holding to account those responsible for violations, is an
important element of any rule of law approach to countering FTF-related threats.
Legal remedies for those alleging violations, as well as full and effective reparation
for those whose rights have been violated, make an essential contribution to learning
from mistakes and shaping lawful responses for the future (see also section 3.9).
102 UN Special Rapporteur on counter-terrorism, UN Doc. A/HRC/37/52, op. cit., note 100, has emphasized
that emergencies, as exceptional measures, should be temporary and short-lived. See also: General Comment No.
29 (Article 4: Derogations during a State of Emergency), CCPR, UN Doc. CCPR/C/21/Rev.1/Add.11, 31 August 2001,
para. 2. As a September 2017 statement of the Special Rapporteur on counter-terrorism notes, expressing concern at developments in France: “The duration of the state of emergency must be time-bound, revised regularly,
and meet the criteria of necessity and proportionality”, <www.un.org/apps/news/story.asp?NewsID=57759#.
Wc66brpuKUk>.
103 B. van Ginkel and E. Entenmann (eds.), “The Foreign Fighters Phenomenon in the European Union”, p. 6,
op. cit., note 16; “Report on the implementation of the EU Counter Terrorism Strategy”, EU Counter-Terrorism
Coordinator, 24 November 2014, p.6, <http://data.consilium.europa.eu/doc/document/ST-15799-2014-INIT/en/
pdf>; C. Lister, “Returning Foreign Fighters: Criminalization or Reintegration?”, p. 12, op. cit., note 22.
Guidelines for Addressing the Threats and Challenges of “Foreign Terrorist Fighters”
33
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