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Preventive Deprivations of Liberty: Asset Freezes and Travel Bans

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Mon désir n’est pas d’apporter la liberté, mais simplement de rendre la prison visible.

Paul Claudel, Conversations dans le Loir-et-Cher (1929).

Abstract

This article examines preventive constraints on suspected terrorists that can lead to restrictions on liberty similar to imprisonment and disrespect the target’s autonomy. In particular, it focuses on two examples: travel bans and asset freezes. It seeks to develop guidelines for setting appropriate limits on their future use. Preventive constraints do not generate legal protections as constraints in response to conduct do. In addition, these constraints are often seen as a permissible alternative to imprisonment. Still, preventive de facto detentions, or what I term “exprisonments”, imperil the free and autonomous life of the targeted person. With the recognition that such constraints can infringe on one’s ability to lead a free and autonomous life, this article argues that some of these constraints require similar protections as their counterparts that put persons under lock and key.

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Notes

  1. Many human rights lawyers argue that these constraints infringe on individual rights guaranteed in the European legal order. See, among other works, Christina Eckes, EU Counter-Terrorist Policies and Fundamental Rights (Oxford: Oxford University Press, 2009); Iain Cameron, “European Union Anti-Terrorist Blacklisting,” Human Rights Law Review 3(2) (2004): pp. 225–256.

  2. The General Court of the European Union in Kadi has raised the question of the punitive nature of blacklisting. Based on the duration of the measure, the General Court has held that “the objectives of the recommended asset freezing measures are not only preventative but also punitive.” General Court of the European Union, Kadi versus Commission, case T-85/09, 30 September 2010, par. 163.

  3. As Lord David Hope—Judge of the United Kingdom Supreme Court—puts it: “It is no exaggeration to say … that designated persons are effectively prisoners of the state.” UKSC 2, Ahmed and others versus HM Treasury, 2010 (cited in Gavin Sullivan en Ben Hayes, “Blacklisted: Targeted Sanctions, Preemptive Security and Human Rights” (Berlin: European Center for Constitutional and Human Rights, 2010) p. 92).

  4. As I will explain in the last section of this paper, I do not intend to argue that every constraint is problematic with respect to individual autonomy.

  5. Travel bans and asset freezes are just examples of the many preventive liberty constraints that do not actually imprison the target, such as house arrest. There are important parallels between these measures, and a more detailed comparative analysis is needed, but in this article, I will mainly focus on travel bans and asset freezes compared to imprisonment because imprisonment is the exemplary deprivation of liberty.

  6. Note that I do not contest the view that some non-state actors ought to be treated under the war paradigm. See, Hadassa A. Noorda, “Sovereign Equality of States in Wars with Non-State Actors,” Philosophia 41(2) (2013), pp. 337–347.

  7. In the past, blacklisting was restricted to state-like collectives such as the Taliban. See Iain Cameron, “European Union Anti Terrorist Blacklisting,” Human Rights Law Review 3(2) (2004): pp. 225–256, p. 227.

  8. Erin Murphy, “Paradigms of Restraint,” Duke Law Review 57 (2008).

  9. See David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Oxford: Oxford University Press, 2001); Richard V. Ericson, Crime in an Insecure World (Cambridge: Polity Press, 2007); Lucia Zedner, “Fixing the Future? The Pre-emptive Turn in Criminal Justice,” in S. Bronnit, B. McSherry, and A. Norrie (eds.), Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law (Oxford: Hart Publishing, 2009); Klaus Günther, “Responsibility to Protect and Preventive Justice,” in: Andrew Ashworth, Lucia Zedner, Patrick Tomlin, Prevention and the Limits of the Criminal Law (Oxford: Oxford University Press, 2013).

  10. The counterterrorism policy of the EU is a complex system because methods are imposed from different procedures in which the institutes of the EU play different roles. See, for an overview of EU sanctions against individuals, Christina Eckes, EU Counter-Terrorist Policies and Fundamental Rights (Oxford: Oxford University Press, 2009).

  11. Rehabilitation conflicts with respect for autonomy regarding certain actors, such as the politically extreme (I thank Alec Walen for pointing this out).

  12. See Alec Walen, “A Unified Theory of Detention, with Application to Preventive Detention for Suspected Terrorists,” Maryland Law Review 70(4) (2010). Walen’s approach could be problematic from a retributive point of view because our future choices are subject to our will—we may choose not to commit the crime. See Kimberley Kessler Ferzan’s critique on Walen. Kimberley Kessler Ferzan, “Inchoate Crimes at the Prevention/Punishment Divide,” San Diego Law Review 48 (2011), pp. 1273–1298, p. 1290 (providing an alternative to broadening of the criminal law: a liability based prevention system).

  13. See, for example, the Dutch Act on Compulsory Admission to Psychiatric Hospitals (BOPZ).

  14. See F.M. Kamm, “Non-Consequentialism, the Person as an End-in-Itself, and the Significance of Status,” Philosophy & Public Affairs 21 (1992), pp. 354–389, p. 382–383.

  15. Anthony Dworkin, “Beyond the ‘War on Terror’: Towards a New Transatlantic Framework for Counterterrorism,” European Council on Foreign Relations Policy Brief (May 2009). More violent forms of countering terrorism include, for example, targeted killings.

  16. Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, available at: Eur-lex.europa.eu (Accessed: 2 January 2013).

  17. United Nations Security Council Resolution S-RES-1267 (1999).

  18. Guidelines to the Committee for the Conduct of its Work, par. 6b, available at: http://www.un.org/sc/committees/1267/pdf/1267_guidelines.pdf (accessed: 18 February 2014); Iain Cameron, “UN Targeted Sanctions, Legal Safeguards and the European Convention on Human Rights” (2003) 72 Nordic Journal of International Law 159, 166, 168.

  19. European Court of Human Rights, Nada versus Switzerland, App. No. 10593/08, Judgment, 12 September 2012, par. 227–234.

  20. Basic Principles on the Use of Restrictive Measures (Sanctions), Council of the European Union, 7 June 2004, par 6, available at: http://register.consilium.europa.eu/pdf/en/04/st10/st10198-re01.en04.pdf (Accessed: December 2012).

  21. See interview with Nada by Mark Hosenball & Mike Isikoff, 19 November 2006; available at http://www.youssefnada.ch (accessed: 27 June 2013) (cited in Marieke de Goede, Speculative Security: The Politics of Pursuing Terrorist Monies (Minneapolis and London: University of Minnesota Press, 2012)).

  22. See, European Court of Human Rights, Nada versus Switzerland, App. No. 10593/08, Judgment, 12 September 2012.

  23. Court of First Instance, Judgment of the Court of First Instance in Case T-315/01, Yassin Abdullah Kadi versus Council of the European Union and Commission of European Communities, September 21, 2005.

  24. European Court of Justice, Kadi & Al Barakaat International Foundation versus Council of the EU & Commission of the European Communities, T-315/01.

  25. Christina Eckes, EU Counter-Terrorist Policies and Fundamental Rights (Oxford: Oxford University Press, 2009), Ch. 6, 7.

  26. European Court of Justice, Mohamed el Morabit, T-37/07 en T-323/07 September 2, 2009, par 42-43; in contrast, the Supreme Court of the US keeps the possibility open to apply the restrictions of the criminal law system if not explicitly labeled as punishment beforehand; see US Supreme Court, Kennedy versus Mendoza-Martinez, 327 US 144, 168–169 (1963). (I thank Meir Dan-Cohen for pointing this out).

  27. Marieke de Goede analyses this case and argues that asset freezes are often non-temporary. See Marieke de Goede, Speculative Security: The Politics of Pursuing Terrorist Monies (Minneapolis and London: University of Minnesota Press, 2012), p. 157.

  28. See, for an overview of the various views on autonomy, Beate Roessler, “Autonomy. Problems and Limits: Introduction,” Philosophical Explorations 5(3) (2002), pp. 162–166.

  29. See Warren Quinn, “The Right to Threaten and the Right to Punish,” Philosophy & Public Affairs 14(4), pp. 327–373.

  30. This list has parallels with the list of protected rights under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. However, some of the corresponding articles address positive liberty interests rather than negative liberty interests.

  31. Kimberly Kessler Ferzan, “Beyond Crime and Commitment: Justifying Liberty Deprivations of the Dangerous and Responsible,” Minnesota Law review 96:141 2012, pp. 141–193, p. 145.

  32. This broader conception is defended by, among other scholars, Antony Duff, who argues in favor of a plural understanding of the presumptions of innocence. See Antony Duff, “Who Must Presume Whom to Be Innocent of What?,” Netherlands Journal of Legal Philosophy 42 (3) 2013; In earlier work, I applied a broad conception of the presumption of innocence, see, Hadassa Noorda, “Commentary on Provisional Release,” in: André Klip and Göran Sluiter, Annotated Leading Cases of International Criminal Tribunals: The Special Court for Sierra Leone 2004–2006, Intersentia, Mortsel: 2010, p. 89–114.

  33. An alternative approach would be to argue that conduct is the basis for blacklisting and subsequently restraining individuals but that the conduct cannot be proved in court because the evidence is legally impermissible. However, this too violates the rights of targeted individuals.

  34. Saul Smilansky, “The Time to Punish,” Analysis 54(1) (1994): pp. 50–53, p. 52.

  35. This is based on the presumption that individuals have a choice to conform their conduct to the law.

  36. See Victor Tadros, “Rethinking the Presumption of Innocence,” Criminal Law and Philosophy 1(2) (2007): pp. 193–213, p. 212 (arguing that the community has no interest in conviction on an insecure epistemic basis).

  37. This issue is discussed in, among other works, Antony Duff, “Pre-Trial Detention and the Presumption of Innocence,” in: Andrew Ashworth, Lucia Zedner, Patrick Tomlin, Prevention and the Limits of the Criminal Law (Oxford: Oxford University Press, 2013); Antony Duff, “Who Must Presume Whom to Be Innocent of What?,” Netherlands Journal of Legal Philosophy 42 (3) 2013; Contra, Thomas Weigend, “There is Only One Presumption of Innocence,” Netherlands Journal of Legal Philosophy 42 (3) 2013.

  38. Note that I am not arguing in favor of applying the same time limits as in criminal procedures in which the sentence is imprisonment. A longer investigation period might be needed, but there needs to be a limit at which point the targeted person should be sentenced or released.

  39. Dutch criminal law allows seizure but does not allow for the confiscation of what is essential for a person to live her life.

  40. These requirements will make responding to threats more difficult, but they guarantee that deprivations of liberty respect individual autonomy and do not illegitimately infringe on individual liberty.

  41. The argument that the more total the control is the more intensive the justification required should be is practiced in the courts—an example is the concept of anxious scrutiny as applied by the UK House of Lords: Bugdaycay v Secretary of State for the Home Department [1987] AC 514 (I thank Gavin Sullivan for this reference).

Acknowledgments

I am very grateful to Meir Dan Cohen, Roland Pierik, Bas Schotel, Gavin Sullivan, Alec Walen, Marc de Wilde, and an anonymous reviewer at Criminal Law and Philosophy for criticism, suggestions, and references. I presented previous drafts of this paper at Westmont College in Santa Barbara in February 2013, at the European Society for Military Ethics Conference in April 2013, the Tilburg University Ethics Seminar in November 2013, at the Netherlands Journal of Legal Philosophy conference at VU University Amsterdam in November 2013, and at the American Philosophical Association Central Division Meeting in February 2014, for which I was awarded a Graduate Travel Stipend. I would like to thank members of these audiences for their feedback.

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  1. Paul Scholten Centre for Jurisprudence, University of Amsterdam Law School, Amsterdam, The Netherlands

    Hadassa Noorda

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Noorda, H. Preventive Deprivations of Liberty: Asset Freezes and Travel Bans. Criminal Law, Philosophy 9, 521–535 (2015). https://doi.org/10.1007/s11572-014-9303-8

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