Administrative Measures in Counter-Terrorism
After 9/11, administrative measures have become an increasingly widespread and important component of counter-terrorism policies. The use of these tools is not completely new; in particular, they have been used for countering the financing of terrorism. However, today they are obtaining renewed popularity with respect to a broader range of behaviours, like reported by icct.nl.
Actually, the term ‘administrative measures’ is quite vague. However, following Bérénice Boutin’s recent formulation, they can be defined as restrictive measures aimed at preventing terrorism within the territory of a State, decided upon and ordered by the executive (or with its close involvement) and subject to limited judicial review.
As has been noted, in general, administrative measures seem to fit somewhere in between prevention and repression. On the one hand, they are preventive because they are applied before the commission of a terrorist act, in order to reduce in advance the threat within a country, in defence of the public. On the other hand, they are becoming an increasingly repressive and punitive tool to the extent that they impose more or less severe restrictions on those to whom they are applied; furthermore, they can be used as actual sanctions in some cases (for example, revocation of social benefits or, more seriously, deprivation of citizenship).
The Case of Deportation in Italy
The repertoire of administrative measures used in counter-terrorism is multiform and heterogeneous. Here the focus is on deportation orders. From a national security perspective, they promise to be a quick way to get rid of suspected terrorists.
In this respect, Italy stands out in Europe. In fact this country has made extensive use of expulsions of foreign suspects in counter-terrorism, especially in the last two years: at the time of writing, 147 individuals have been deported without prior trial since January 2015, including at least 12 imams. All deportees are allegedly related to Islamist ideology. The vast majority come from North Africa and the Balkans.
Actually administrative deportations have become a key element of Italy’s aggressive counter-terrorism policy. According to various security and terrorism experts (including Lorenzo Vidino and Edward N. Luttwak), the extensive use of this tool, associated with restrictive citizenship laws, represents an important factor to explain why this country has thus far escaped terrorist violence. In fact, unlike many other European countries, Italy has, to date, avoided major attacks on home soil.
Interestingly, so far the massive use of this counter-terrorism measure, widely publicised by the Italian government, has not generated much debate within the country.
The Jihadist Threat in Italy
In general, this national case presents interesting particularities that distinguish it in part from other European countries.
A home-grown jihadist scene has only recently emerged in the country and it is still unstructured and relatively small in size, especially in comparison with other Western European countries. As is well-known, in the European context, jihadist militants are usually second-generation children of Muslim immigrants, in addition to converts. In Italy the threat potentially posed by ‘second-generation immigrants’ has traditionally been relatively limited, to a significant extent because of a simple demographic factor: unlike other Western European countries, large-scale Muslim immigration to Italy began only in the late 1980s and early 1990s and therefore the first wave of ‘second-generation Muslims’ has only recently entered adulthood.
Moreover, according to recent estimates, Italy presents a relatively small number of foreign fighters compared to other European countries (at least 110); moreover, only a small minority (arguably fewer than 20) have Italian passports.
On the other hand, Italy represents a significant target for jihadist violence. The city of Rome, in particular, has great symbolic value, as the cradle of Christianity and a major symbol of Western civilisation. In particular, the incitement to “conquer Rome” is a key rallying cry of the so-called Islamic State’s “caliphate” since the date of its self-proclamation in 2014.
The Role of Restrictive Citizenship Laws
In Italy the measure of deportation can be potentially used against a large number of individuals. In fact, many extremists, including home-grown jihadists who were born or grew up in the country, may not have citizenship, because of strict naturalisation laws, and could therefore be subject to deportation. By contrast, Italian nationals cannot be expelled.
Nationality law in Italy is largely based on the principle of jus sanguinis (acquisition through bloodlines). Non-Italians interested in gaining citizenship face a lengthy and complex process, based on a discretionary assessment procedure. Children of immigrants, in particular, have to apply for citizenship within one year after coming of age (18 years old) and proving uninterrupted and legal residence in Italy since birth.
On the other hand, it cannot be ruled out that Italy’s strict naturalisation laws can have the effect of exacerbating feelings of resentment in some individuals of immigrant origin, indirectly facilitating potential radicalisation processes.
A less restrictive legislative proposal was adopted by the Lower House (Camera dei Deputati) in October 2015, but, at the time of writing, is still apparently stalled in the Upper House (Senato della Repubblica). The reform would give children of immigrants the right to become citizens if they were born in the country and at least one parent has permanent resident status or if they fulfil basic educational and residency requirements.
Types of Administrative Deportation in Italy
In essence, in the Italian system there are three types of administrative deportation (espulsione amministrativa) of non-EU citizens, as opposed to judicial deportation (espulsione giudiziaria) ordered by a criminal judge.
First of all, legal provisions on immigration, including deportations of foreign citizens, are in the Unified text on immigration (Testo unico sull’immigrazione, Legislative Decree No. 286/1998). This important piece of legislation provides that the Minister of the Interior can order the deportation of a foreign citizen “for reasons of public order or State security”, broadly speaking. Minors, on a decision of the juvenile court, as well close family members of Italian nationals can also be expelled. The deportation order has to present appropriate reasons in fact and in law.
Over time, grounds of deportation of non-Italian nationals have been expanded to encompass terrorism. In particular, an antiterrorism law adopted in July 2005 (Law No. 155/2005), soon after the attacks in London, grants the Minister of the Interior or, upon delegation, the Prefect the power to order the deportation of a foreign citizen against whom, in particular, there are “well-founded reasons to believe that his/her stay in the territory of the State may in any way facilitate terrorist organizations or activities, at the national or international level” (Art. 3). Interestingly, this law provides that the deportation order can be suspended or even revoked if, in practice, the affected individual agrees to collaborate with the authorities.
Finally, a new antiterrorism law adopted in April 2015 (Law No. 43/2015), after the attacks in Paris, expanded the hypotheses for the administrative deportation of a foreign citizen, by order of the Prefect, for reasons of “social dangerousness” (pericolosità sociale). This law also expressly refers to the category of (non-Italian) aspiring foreign fighters. The provision fits with the discipline of personal preventive measures that are already applied to mafia suspects.
Ultimately, administrative deportation represents a discretionary act of the executive (or its representatives on the territory). The deportation order is not subject to prior judicial validation on the merits and is immediately enforceable. The decision can be appealed before the administrative court (Tribunale Amministrativo Regionale, TAR), but its execution cannot be suspended. The deportation implies a re-entry ban for a period of time determined on a case-by-case basis (for example, in a few recent cases, as many as 15 years).
It is important to note that the removal (allontanamento) of an EU foreign citizen for reasons of security, by order of the Ministry of the Interior, is regulated by different norms (in particular, Legislative Decree No. 30/2007), more favourable for the affected individual, and is subject to judicial validation.
The Question of Effectiveness
From a counter-terrorism perspective, the use of these fast-track deportations can help prevent the creation and stabilisation of extremist networks on national territory. In turn, this makes the monitoring and surveillance of suspects easier.
Other European countries have for years been confronted with individuals suspected of supporting terrorism. For example, Anjem Choudary, the notorious British preacher and activist of Pakistani descent, was sentenced to five years and six months in prison in September 2016 after he spent two decades engaging in radical activities in the country, exploiting the laws guaranteeing free speech. It is plausible to presume that in Italy an extremist preacher like Choudary likely would not have acquired citizenship, and likely would have been deported early on.
It is quite clear that, in practice, administrative deportations are often ordered when there is evidence that an individual is a threat to national security but the evidence is considered insufficient for prosecution. As some counter-terrorism experts have noted in this respect, dealing with extremists and suspected terrorists via the regular criminal justice system may be difficult because it may not be clear that laws have been broken and it is frequently not possible to prosecute suspects without compromising sources and methods of intelligence. Rightly or wrongly, administrative deportations can be used to circumvent these constraints.
The behaviours that lead to a deportation order do not need to be connected to the use of terrorist violence: many non-EU citizens were expelled from Italy because, for example, they had displayed extremist attitudes or paid tribute to jihadist organisations.
To mention just one case, in September 2016 a Tunisian self-proclaimed imam of Novara, not far from Milan, was expelled from Italy because, according to the Ministry of Interior, he had “preached strongly extreme and anti-Western sermons, engaging also in activities of ultra-radical religious proselytism”.
Possible Risks and Shortcomings
Obviously, the measure of administrative deportation is not exempt from risks and shortcomings. We can distinguish two main types of problem. The first is of a legal nature and is associated, in particular, with the question of human rights protection. The second is pragmatic and concerns possible counterproductive consequences, from a counter-terrorism perspective.
As regards the first type of problem, the measure of administrative deportation is imposed upon a suspect without the procedural guarantees associated with criminal prosecution, including prior judicial review, appropriate standard of proof and assessment of evidence, and full compliance with the principle of the presumption of innocence.
In addition, the expulsion can result in violations of human rights in the country of destination. In this regard, in recent years, the European Court of Human Rights has reasserted, also in relation to an influential case from Italy, the prohibition on sending individuals to States in which they face a “real risk” of torture, inhuman or degrading treatment. In this respect, it is worth noting that today a significant number of Italy’s terrorism-related deportations concern suspects from the Balkans, where there is little risk of torture.
As regards the second type of problem, this measure may have the undesirable effect of intensifying the feelings of frustration and anger and even the sense of revenge, at the individual level. At the organisational level, it can reinforce the narrative of victimhood and persecution, so recurrent in the propaganda of jihadist groups, and could even facilitate the terrorist recruitment of other people.
Moreover, at the global level, deportations may run the risk of turning into a simple buck-passing action, that transfers an alleged problem from one State to another, without solving it.
Overall, Italy’s extensive use of administrative deportation of foreign citizens, associated with restrictive naturalisation laws, has so far proved to be effective from a counter-terrorism perspective, at least in the short-medium term. However, in other national contexts it could be less useful.
In any case, this measure alone is not enough. Other tools are necessary, especially in the long term. In particular, it is worth mentioning that, unlike many other European countries, Italy has not yet developed full-fledged counter-radicalisation and de-radicalisation programmes.
Furthermore, administrative deportations, especially when they are used in a systematic way, may present serious risks and shortcomings. The procedures and the effects of this measure should therefore be examined and discussed carefully.