The internet is a key source of information, communication and propaganda in the context of terrorism. Policymakers increasingly resort to measures that monitor, control and punish internet-related activity. One type of measures concerns the criminalisation of consumers of certain terrorist material over the internet, ranging from self-study over more specific autonomous provisions. This contribution aims to subject this criminal law approach to a legitimacy test, studying the minimum standards of the European Union, as well as the legal framework of four Western-European countries (i.e. Belgium, the Netherlands, France and the United Kingdom). This critical-legal analysis consists of a remote harm analysis, a human rights assessment and a necessity argument. It is argued that the expansion of the scope of criminal liability to a pre-crime era conflicts with certain premises of criminal law and human rights law.
The conflict in Syria and Iraq has raised the debate on foreign fighters to unprecedented levels. The international community expressed grave concern over this acute and growing threat and addressed the problem by, inter alia, obliging States to criminalize conduct related to travel for terrorist purposes, including acts of facilitating and funding such travel. Member States are free to choose the manner of implementation, leading to different approaches on a domestic level. This contribution aims to subject the criminal law approach regarding foreign fighters in four Western-European countries (i.e. Belgium, the Netherlands, France and the United Kingdom) to a legitimacy test. The longstanding principles of subsidiarity, proportionality and legality constitute the backbone of this legitimacy test. A critical-legal analysis demonstrates the expansion of the scope of criminal liability to a pre-crime era and examines whether this expansion conflicts with the ultima ratio premise of criminal law and the freedom of movement as a fundamental human right.
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