Update: 09.12.2015

Human rights and the fight against terrorism in Switzerland

Even before the terrorist attacks in Paris on 13 November 2015, the Swiss Confederation assessed the likelihood of such an attack taking place as higher than usual. In September, the Confederation adopted a strategy for the fight against terrorism. One of the most important issues from a human rights perspective is the cooperation of authorities on all levels to detect jihad sympathisers early. The targeted sensitisation of cantonal and local authorities as well as the population has been operating for several months. The Swiss Confederation’s strategy holds several risks to the protection of human rights in Switzerland.

Information gathered so far (e.g. on the publication of offenders’ profiles, bans on events or organisations, data monitoring, possible attacks with drones) shows that measures taken to prevent violence have manifold effects on human rights. At-risk areas include the private sphere, the freedom of movement, the freedom of expression, the prohibition of torture, and even the right to life. The protection against discrimination may also be at risk if a specific group is targeted using these measures. Authorities frequently choose severe measures that violate human rights to provide a false idea of safety. But remember that a restriction of fundamental rights can only be justified if the law provides for it and if it is appropriate. The biggest problems arise if violations of human rights happen preventively.

In France, resources have been massively increased in the areas of intelligence and early identification after the Charlie Hebdo attacks, but this still did not stop the attacks in mid-November. The question remains whether the measures are appropriately targeted and adequate.

Adequate measures for early detection

According to media reports, the Office of the Attorney General opened «almost a dozen» new lawsuits against possible supporters of Islamist terror organisations over the past few months. There are 33 lawsuits currently pending in this field, as Attorney General Michael Lauber said in an interview with «NZZ am Sonntag». These lawsuits are built largely on tips from the public, though no one has recently been imprisoned. The lawsuits are in connection with journeys to Syria, Iraq, Somalia, Afghanistan, or Pakistan to support local jihadi organisations, but also related to IS propaganda on the Internet. Three men have been imprisoned for quite some time now and are suspected members of the IS militia.

Travel bans for jihad sympathisers

Federal Authorities can issue preventive travel bans against persons suspected of wanting to join a terrorist organisation. The legal basis for this is Art. 2 of the Federal Act on the Prohibition of Al-Qaeda, Islamic State and Associated Organisations which forbids joining, participating in, or supporting these organisations. Currently, a preventive travel ban can only be issued against persons subject to criminal proceedings. According to the NZZ on 12 November 2015, the ban can also be issued in exceptional cases before proceedings are underway. In such situations, law enforcement and prevention become entangled. On the one hand, confidential information leads to criminal proceedings because of suspected proximity to a prohibited organisation. On the other hand, criminal proceedings result in travel bans which restrict freedom of movement. Or to put it differently, a suspected sympathiser is believed to be a possible terrorist as soon as he/she plans a trip near a conflict area. This will result in the authorities limiting the person’s right to travel. The preventive dimension of the secret service’s work starts proceedings and therefore prosecution becomes a prevention measure. The only thing the suspected sympathiser has done is plan a trip to a country close to a conflict region (e.g. to Turkey) at the time the measures are decided on.

Various multilateral agreements on combating terrorism

The Confederation’s goal is visibility against the multilateral developments in the fight against global terrorism. Over the past few years, Switzerland has signed various treaties in order to increase cooperation in the fight against international terrorism. These include the bilateral agreements on judicial assistance, extradition treaties, organised cross-border crime, and specific UN and Council of Europe treaties and resolutions (lists of sanctions, financial flows etc.).

New additional protocol and likely punishable offences

The Federal Council decided in October 2015 to ratify the Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism. Switzerland ratified the original convention in 2012. This Additional Protocol aims to prosecute suspected future foreign fighters. Among other things, it provides signatory states the option to lay down conditions under which travels abroad (that might have a terrorist motivation) can be turned into an offence.

On 14 October 2015 the Federal Council announced plans for its own criminal provision against the recruiting and training of terrorists in the course of the ratification of the Additional Protocol. Moreover, terrorism-motivated travel and its financing are to be examined as separate offences. But the Federal Council also promises that «the extension of punishability will happen in a proportionate manner. Unnecessary interference with fundamental freedoms will be avoided».

It seems convenient for the Federal Council that the Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism helps legitimise travel bans for jihad sympathisers which have been rather precariously legitimated so far. It remains to be seen whether or not the promises that the implementation will be as close to fundamental rights as possible will be kept.

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