DOSSIER
Ethics and data protection have been found to be a key, yet often missing aspect in P/CVE approaches. Within the scope of this article, ethical and social implications of CVE policies in Europe are explored, taking into account the experience of national programmes, criticisms and controversial profiling issues. Through an analysis of several different consequences of CVE policies, the research question is raised: What is the impact of preventive measures in the absence of crime?
Over the last decade, academia and lawmakers have been debating the so-called pre-crime space and asking to what extent preventive measures in absence of crime may be considered legitimate. The term pre-crime seems to have been coined by American science fiction novelist Philip K. Dick to describe a predictive policing system dedicated to apprehending and detaining people before they have the opportunity to commit a crime (Dick, 1956). This concept may sound like merely a fictional tool, but it was actually applied to counter terrorism policy, in order to prevent radicalisation towards violent extremism. The pre-crime theory was developed following different patterns in each country or organisation. Some of the approaches have promoted interventions aimed at counselling and supporting vulnerable people at risk of radicalisation. In this case, actions undertaken by CVE stakeholders tend to avoid the criminalisation of those involved and focus on prevention strategies.
Under other circumstances, the interventions concentrate on tackling a possible threat posed by the radicalised individual, close monitoring and repression. Importantly, the meaning of pre-crime may refer either to a potential crime or to an inevitable one. It should be noted, however, that even when pre-crime measures are built on prevention and friendly assistance, the beneficiary is not obligated to comply with them and may refuse. The phenomenon of pre-criminal interventions has been accompanied by the broadening of the criminal threshold in relation to violent extremism, which has expanded in several European legislations to the extent that the expression of radical views online may lead to terrorism-related charges. The risk is that the state will establish what Erhard Denninger defined as “the preventive State”, in which people deemed potentially dangerous are apprehended, and have their freedom restricted, before being able to commit a crime (Denninger, 1988).
This trend has spread across Europe and is being criticised by numerous human rights-focussed non-governmental organisations. It is not always simple to define what may be considered criminal in terms of hate speech and propaganda, and what is just a radical but legitimate exercise of the freedom of expression. When democratic countries intervene in this field, they may jeopardise the rule of law and criminalise opinions. Similarly, fictional terms such as thoughtcrime and crimethink were coined by English novelist George Orwell in Nineteen Eighty-Four to describe this concept (Orwell, 1949). The limit between freedom of speech and criminal behaviour can be very controversial and is related to cultural traditions and as well as the political situation into which they are embedded.
Many CVE programmes have adopted mechanisms to classify individuals in order to detect early signs of radicalisation. Some of the PVE and CVE strategies are tailored to specific communities such as Muslim or Arab communities, but there are raising concerns and complaints about targeting a social or ethnic group as a whole, instead of implementing individual interventions. According to some scholars and human rights activists, the activity of profiling based on ethnic background, religion or ideology may lead to discrimination and social stigma because the entire community is identified as pre-criminal. Stigma occurs when an individual is disqualified from full social acceptance and in the criminal justice context entails stereotypes, discrimination based on the personal status, labelling and separation from the community. According to some research, stigma may become structural when the marginalisation of groups is institutionalised through policies, it can be based on the social attitude of the public as well, but it also arises as self-stigma when the discriminated individual accepts stereotypes as true.
The unintended consequences of profiling may contribute to a self-fulfilling prophecy, if vulnerable people at risk of radicalisation feel they are on the radar of law enforcement or intelligence agencies and oppressed just because they belong to a certain community. Since discrimination is one of the pull factors of violence, labelling an individual or even a community as pre-criminal might have the counterintuitive outcome of increasing the risk of crimes and violence committed. The social identity theory developed by social psychologists Henri Tajfel and John C. Turner (1986) to explain the intergroup behaviour may help to understand the risk of profiling. People tend to categorise themselves and others as members of competing social groups, the so-called in-group of people sharing a common identity, the group to which one belongs. The out-group consists of people excluded from a specific group. When vulnerable people from a community labelled as pre-criminal feel discriminated and monitored by PVE/CVE programs, they may realise this gap is due to their affinity with a single identity and sharpen the conflict between the in-group and the out-group. The CVE measures intended to prevent, and tackle radicalisation could in fact turn out to be counterproductive.
Despite some courts in Europe and the US having ruled that profiling under some circumstances may be unconstitutional or unlawful, it is still a widespread practice in several counterterrorism and CVE strategies. When this approach is not implemented in line with the rule of law, the right to privacy and the GDPR, the principles of non-discrimination and equality, it may lead to unethical practices and disastrous results. The language adopted in the implementation also affects the ethical dimension of CVE strategies. For instance, when programmes borrow terms from other sectors, such as adopting the term “suspect” from the criminal sector to describe profiled individuals even if they did not yet commit any crime, or concepts from the medical sector applied to descriptions of preventive measures. When someone’s mental health is assessed, the scientific procedure is strict and meticulous, but this is not the case when determining whether an individual is radicalised because there is no consolidated framework of evaluation. Some practitioners expressed concern about pathologising elements that are not scientifically validated and applying them to political or religious ideologies. To some extent, even the indicators of early radicalisation used by CVE strategies may be controversial or not fully reliable (Tajfel and Turner, 1986).
Across the EU, an analysis of multiple programmes and strategies is complicated due to the lack of homogeneous data and procedures regarding pre-criminal profiling. While in some countries there is little material about this specific issue, in others there isn’t, although the framework and response of the institutions was more comprehensive and compliant with the ethical and legal standards on privacy and profiling techniques, thus the outcome in most countries was not as controversial as the one in France and the United Kingdom.
The dispute among scholars and policymakers about the pre-criminal space is evolving. As mentioned before, the extent to which preventive measures in absence of crime can be considered legitimate and proportionate remains controversial. The approach undertaken by CVE practitioners may be based on counselling and individual support, as well as on social monitoring and repression. In any case, in absence of crime or mental illness, the beneficiary cannot be obliged to comply with the measures or programmes. That is why, in some cases, the criminal threshold was broadened to allow institutions to intervene with judicial measures and limitations. This approach, however, may prove to be counterproductive. Moreover, as stressed in the British case, the indicators of radicalisation and the signals of criminal tendencies are not unanimous. The institutions in charge of monitoring and intervention may criminalise a radical but legitimate exercise of the freedom of expression or jeopardise the rule of law with disproportionate measures. As described above, the activity of profiling based on ethnic background, religion or ideology may lead to discrimination and social stigma because the entire community is identified as pre-criminal. The ethical and social impact of preventive actions in absence of crime can be significantly disruptive and harmful. When developing and implementing PVE and CVE strategies, institutions should always take into account the implications of invasive measures, the full compliance with national and EU legislation on civil rights, as well as the GDPR and privacy laws.
