25 January 2018

Emergency measures not always the best response to terrorist threats

Politiepatrouille en pantserwagen in het centrum van Brussel

The terrorist attacks in Paris, Nice, Brussels, London, Berlin and Barcelona are still fresh in our memories. In the countries surrounding the Netherlands, far-reaching security and emergency measures have been employed giving the authorities increased powers, of investigation for example, and involving major deployment of the police, armed forces and security services. In  a few cases, a state of emergency was declared. However, it appears that government authorities have only limited control over the effect of such action. Emergency measures are not always the best response to terrorist threat, concludes the Utrecht University research team led by Mirko Noordegraaf. This is certainly the case if we wish to maintain a democratic and open society.

Emergency measures frequently have unexpected or undesirable side-effects for society and the democratic rule of law. Cities have been partially sealed off, the number of house searches dramatically increased and far-reaching proposals for monitoring data traffic put forward. Faced with the threat of terrorism, the emergency response sometimes seems to be flouting the law. There is a risk that government authorities are contributing to a culture of fear.

Internationally comparative study

An interdisciplinary team from Utrecht University has conducted research into the specific differences in emergency measures responding to the threat of terrorism in France, Germany and Belgium. It was commissioned by the Dutch Ministry of Justice and Security's WODC (Research and Documentation Centre). The researchers show that the effectiveness of emergency measures is strongly dependent on the legal, administrative and social context in which they are introduced.

There is no such thing as a single state of emergency and countries can take various emergency measures: more tolerant or stricter, more focused or generic.

Government's control over effects of emergency measures are limited

The choice of emergency measures in the face of a terrorist threat is limited by the nature and intensity of the threat and by the country's legal and institutional framework, including its governance structure and culture. In the centralised French presidential system, more hard-line intervention is possible, using stricter measures and rhetoric than in the more decentralised German and Dutch systems, which lead to greater judicial restraint. In Belgium, it is not constitutionally possible to declare a state of emergency.

“We demonstrate that there is no such thing as a single state of emergency and that countries can declare a range of different states of emergency and take various emergency measures.” says Mirko Noordegraaf (Professor of Public Management). “The more severe and generic the state of emergency is, the greater the risks. It is more difficult to bring to an end; expectations increase and the deployment of security services involves greater risk.”

Declaring an emergency is not necessarily an effective measure and government authorities actually appear to have only limited control over the effects of their actions. Although expectations are ramped up, the terrorist threat does not immediately diminish since it is too complex and fragmented for that to happen. What is worse: it sometimes even increases the sense of insecurity felt by society as a result of the large-scale deployment of police, armed forces and military hardware. In addition, it can be politically difficult to bring an end to the emergency situation. In France, the state of emergency was maintained for two years because of the continued threat.

The rule of law is being undermined by stealth as far-reaching powers are increasingly being normalised.

Threat undiminished, but rule of law under pressure

Alongside the desired impact, emergency measures can therefore also have unexpected and uncontrollable effects on the terrorist threats, the rule of law and democratic society.

In the countries studied, strict laws were adopted during the period of threat. This raises the question of whether the measures, such as the increased powers for house searches in Belgium and France, could actually have been introduced in a different, less threatening climate.

“The rule of law is being gradually undermined by stealth as far-reaching powers previously possible only in highly exceptional circumstances are being normalised,” argues Henk Kummeling (Professor of Constitutional Law). “This is about making a political gesture. However, no solution to the actual problems is provided and the rule of law is undermined over the longer term as a result.”

Government authorities were no longer able to shape the agenda and prevent polarisation, partially becoming hostage to it themselves.

Theatre of fear

With the emergence of social media and radical protest parties, groups have developed that are using the threat of terrorism and fear in society to further their own political agendas.

“Declaring a state of emergency has all kinds of intended and unintended effects. It increases the sense of drama, the theatre of fear,” says Beatrice de Graaf (Professor in History of International Relations & Global Governance). “In the countries we studied, this resulted in the government authorities no longer being able to shape the agenda or prevent polarisation, partially becoming hostage to it themselves.”

Security in an open society

In the light of the experiences in France, Germany and Belgium, the Utrecht University research team suggests a style of response for the Netherlands that effectively takes account of the country's governance structure and culture. Where necessary, new statutory and policy tools need to be developed in order to enable more appropriate responses in the face of threats. It is also important to consider how to exit an emergency situation. In addition, they recommend continuing to anticipate unexpected and unintended effects of government action in threatening situations. This is of great importance in protecting democratic, open societies, even if they are under threat.

Would you like to know more?

To find out more, read the full Dutch report Nood breekt wet? Terroristische dreiging, noodtoestand en maatschappelijke effecten on the WODC website (in Dutch).

 

Utrecht University Research Team

This Utrecht University research was led by Prof Mirko Noordegraaf. It was conducted by Dr Marie-Jeanne Schiffelers, Scott Douglas DPhil, Mr Jan Willem van Rossem and Niels Terpstra MA. Other contributors included: Prof Beatrice de Graaf and Prof Henk Kummeling.

Institutions for Open Societies

At Utrecht University, scholars from the fields of economics, history, public administration, culture, law, sociology, social psychology, language and communication, ethics, innovation studies, and geography join forces to find answers to the following key questions: Why do societies develop so divergently? And how do institutions contribute to the formation of open and sustainable societies? Read more.