Terrorism And the Foreigner: A Decade of Tension Around the Rule of Law in Europe (Immigration and Asylum Law and Policy in Europe, 11)

455 Pages·2006·1.54 MB·English

by  Elspeth Guild

Terrorism and the Foreigner
IMMIGRATION AND ASYLUM LAW AND POLICY IN EUROPE
Volume 11
Editors
Elspeth Guild
Kingsley Napley Solicitors, London,
Centre for Migration Law, Radboud University Nijmegen
Jan Niessen
Migration Policy Group, Brussels
The series is a venue for books on European immigration and asylum law and
policies where academics, policy makers, law practitioners and others look to
find detailed analysis of this dynamic field. Works in the series will start from
a European perspective. The incresed co-operation within the European Union
and the Council of Europe on matters related to immigration and asylum
requires the publication of theoretical and empirical research. The series will
contribute to well-informed policy debates by analysing and interpreting the
evolving European legislation and its effects on national law and policies. The
series brings together the various stakeholders in these policy debates: the legal
profession, researchers, employers, trade unions, human rights and other civil
society organisations.
The titles published in this series are listed at the end of this volume.
Terrorism and the Foreigner:
A Decade of Tension around the
Rule of Law in Europe
Edited by
Elspeth Guild and Anneliese Baldaccini
Martinus Nijhoff Publishers
Leiden • Boston
A C.I.P. record for this book is available from the Library of Congress.
Printed on acid-free paper.

ISBN-13 978 9004151 87 1
ISBN-10 90 04 15187 7
© 2007 by Koninklijke Brill NV, Leiden, The Netherlands.
Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishers, IDC Publishers,
Martinus Nijhoff Publishers and VSP.
http://www.brill.nl
All rights reserved. No part of this publication may be reproduced, stored in a retrieval
system, or transmitted in any form or by any means, electronic, mechanical, photocopy-
ing, microfilming, recording or otherwise, without written permission from the Pub-
lisher.
Authorization to photocopy items for internal or personal use is granted by Brill pro-
vided that the appropriate fees are paid directly to The Copyright Clearance Center, 222
Rosewood Drive, Suite 910, Danvers MA 01923, USA.
Fees are subject to change.
Typeset by jules guldenmund layout & text, The Hague.
Printed and bound in The Netherlands.
Table of Contents
Foreword vii
Elspeth Guild
Introduction xi
Anneliese Baldaccini
Part I The European Dimension 1
Chapter 1 From Gulf War to Gulf War – Years of Security Concern
in Immigration and Asylum Policies at European Level 3
Nils Coleman
Chapter 2 The Role and Limits of the European Court of Human
Rights in Supervising State Security and Anti-terrorism
Measures Affecting Aliens’ Rights 85
Nicholas Sitaropoulos
Part II Responses at the National Level 121
Chapter 3 The Response of the United Kingdom’s Legal and
Constitutional Orders to the 1991 Gulf War and the Post-
9/11 ‘War’ on Terrorism 123
David Bonner and Ryszard Cholewinski
Chapter 4 Immigration, Asylum, and Terrorism: How Do They Inter-
relate in Germany? 177
Ulrike Davy
Chapter 5 The Changes in Laws on Immigration and Asylum in
France in Response to Terrorist Fears 233
Claire Saas
Chapter 6 The Impact of Terrorism on Immigration and Asylum
Law in the Netherlands 267
Hinde Chergui and Helen Oosterom-Staples
Table of Contents
Chapter 7 Terrorism, Asylum and Immigration in Italian Law 295
Paolo Bonetti
Annexes 325
UN Security Council Resolution 1373 (2001) 327
Council Framework Decision of 13 June 2002 on Combating Terrorism 331
Council of Europe Guidelines on Human Rights and the Fight against
Terrorism, 2002 341
UNCHR Guidelines on International Protection: Application of the
Exclusion Clauses, 2003 383
Council of Europe Parliamentary Assembly Resolution 1400 (2004) 393
ECRI General Policy Recommendation No. 8 On Combating Racism
While Fighting Terrorism, 2004 399
Council of Europe Convention on the Prevention of Terrorism, 2005 405
List of Contributors 421
Index 425
vi
Foreword
Elspeth Guild
This book results from a research project funded by the European Commis-
sion, ELISE, which began in October 2002 and finished at the end of September
2005. Together with researchers at Sciences-Po, Paris, the Universities of Athens,
Genoa, Keele and Kings College London, Nijmegen (whence this book comes)
and the Centre for European Policy Studies in Brussels we studied the changing
relationship between freedom and security in Europe.
The starting point of the project was that the contention that the liberal and
democratic traditions of modern European politics hinge on aspirations for
both liberty and security. We sought to understand recent concerns about
security among European citizens in light of the imperative not to undermine
civil liberties, human rights and social cohesion. To do so we sought to place
contemporary dilemmas in a broader context, which enables a broad range of
scholarly traditions to engage in productive research over areas of common
concern.1
The project had three main objectives:
1. To develop a better and more comprehensive understanding of contempo-
rary security challenges;
2. To develop a detailed account of the development of security policies at
both national and European levels, especially in the aftermath of events
like those of 11 September 2001, and of their impact on the cohesion of
European societies, and European society;
3. To identify the primary institutional challenges now confronting both
Member States and the European Union as a consequence of the many
forces that are reshaping the relation between liberty and security in many
different contexts.
1 ELISE Final Synthesis Report 2005.
Elspeth Guild
These objectives were pursued by researchers in a wide range of different disci-
plines including political science, sociology, international relations as well as law.
At the Radboud University of Nijmegen, we undertook to examine the changing
relationship between freedom and security by taking one of the most vulnerable
groups in Europe, immigrants and asylum seekers, and to compare the changes
to their security which result from the reconfiguration of freedom and security
in Europe. In order to understand the changes after 11 September 2001 we chose
to make a historical comparison with the changes to the legal position of these
groups which occurred at the time of the Gulf War in 1991 with that which is
occurring at the moment. When we began the research, we did not anticipate
the direction which the United States war on terrorism would take, in particular
the war and occupation of Iraq. These events, however, have had an important
impact in our field. By examining the security of residence and protection of a
particularly weak group over the time period we have revealed important aspects
of the nature of the transformations. Anneliese Baldaccini has admirably drawn
together the conclusions in her introduction which follows.
As regards the whole project, our final results differ substantially from
many of the narratives which are presented by politicians, academics and others
regarding the nature of the relationship of freedom and security at the present
time. In all of the fields which the project covered it is interesting to note that two
characteristics of the relationship between freedom and security are constant:
first, the events of 11 September 2001, notwithstanding discourses to the con-
trary, cannot be considered ‘an unprecedented event’ which radically changed
the nature of the modern world. In this book what is most striking about the
changes in law to the position of foreigners in the countries we examine is the
lack of direct relationship between measures adopted and the event. Secondly,
neither the forms of terrorism nor the responses constitute something funda-
mentally new and different. Continuity is also the overarching characteristic in
respect of the treatment of foreigners, though this has tended to be a continuity
towards the precarious.
Many people deserve thanks for their support for our work which has
resulted in this book. First, of course, are our authors who have examined care-
fully and in great detail the subject and provided us with a marvellous perspec-
tive. Anneliese Baldaccini, my co-editor of this volume, has done a magnificent
job analysing and drawing together all the complex threads of the project. My
colleagues at the Radboud University have provided unstinting support, Pro-
fessor Kees Groenendijk and Dr Paul Minderhoud deserve particular thanks.
Among our colleagues from the other institutions which participated in the
project, special thanks must be extended to the following (in alphabetical order):
Dr Joanna Apap formerly of CEPS and now at the European Parliament, Dr
Thierry Balzacq of CEPS, Professor Didier Bigo of Sciences-Po, Sergio Carrera
of CEPS, Professors Alessandro Dal Lago and Palidda of the University of
Genoa, Dr Vivienne Jabri of Kings College London, Professor Rob Walker of
viii
Foreword
Keele University and Eleni Tirkou and Professor Scandamis of the University
of Athens.
Angela Liberatore and Alessia Bursi, our officials at the European Com-
mission, provided invaluable intellectual input and practical support throughout
the project. Last but not least, I would like to acknowledge the tremendous sup-
port given to us by our editor, Lindy Melman at Brill Publishing.
The contributions in this Volume state the law as at the end of July 2005
Professor Elspeth Guild
ix