The preventive use of criminal law to contrast foreign terrorist fighters : a human rights perspective

Abstract

As the phenomenon of foreign terrorist fighters displays its dramatic implications, the international community and national governments react by increasingly introducing criminal offences, hoping to prevent and to deter future terrorist attacks. The purpose of the study is to critically assess the impact of substantive criminal provisions adopted at the international and domestic level to contrast foreign terrorist fighters, to unveil some problematic aspects of the preventive approach of such legislation and its consequences on human rights and the fundamental principles of criminal law. The analysis compares the UN Security Council’s resolutions requiring the criminalisation of foreign terrorist fighters-related offences, the criminal response enacted by the Council of Europe and the European Union and finally the application of Italian domestic legislation on terrorism. This methodology is conceived to illustrate the connection between international obligations and national legislation, in order to highlight the similar controversial features and to verify the concrete impact of the common criminal strategy on individuals accused of being foreign terrorist fighters before national courts. The thesis concludes that the over-expansion of criminal law in a preventive perspective criminalises acts which are the legitimate expression of fundamental rights or which are too far from the commission of the harm it aims to prevent, thus violating the principles of proportionality and necessity which shall guide the restriction of human rights at the European level and the principle of harm, protected by the Italian Constitution. Moreover, the vagueness of international legal obligations is reflected in domestic legislation, which appears broad and imprecise. In this regard, the hermeneutic activity of the Italian Supreme Court of Cassation plays a key role to limit the scope of application of such preventive legislation at the national level and to clarify its interpretation, in compliance with constitutional constraints. Nevertheless, the Supreme Court’s jurisprudence is scarce, not homogeneous and sometimes contrary to those constitutional values. This may still entail considerable side-effects on fundamental human rights and the core principles of domestic criminal law.