The Datification of Counter-Terrorism

Abstract

Counter-terrorism practices, institutions, and discourses have expanded over the past twenty years. This enlargement has come with extraordinary costs for international law’s integrity and traction especially revealed in the pushback against the classification and regulation of non-international armed conflicts under a laws of war framework. There are particularly adverse consequences for the integrity of human rights and humanitarian law norms because the institutional and political interests represented by counter-terrorism seek to displace these norms and reclaim complex conflict and fragile space as primarily subject to exceptional and nationally defined counter-terrorism legal regimes. Counter-terrorism regulation is displacing traditional international law frameworks because its inherent flexibility, lack of core definition, and deference to States. Counter-terrorism’s ascendency has been enabled by the central role that new technologies, grounded in mass data collection play in defining and managing terrorism. From artificial intelligence to biological and behavioural biometrics, to integrated data platforms databases to blockchain new technologies are adopted and mainstreamed based on their contribution to preventing or managing terrorism. Little systematic attention has been paid to the patterns of harm and impunity defining the post 9/11 counter-terrorism landscape grounded in the widespread use of such technologies. New technology deployment in counter-terrorism opens new vistas of harm, consolidates existing patterns of concern, and pervasively operates in legal grey zones. Meta data collection is spawning the datafication of counter-terrorism, and the central role technology plays in consolidating its practices and institutions. In the counter-terrorism realm, the lack of normative constraint on privacy and data protection functions as a positive incentive for States to invoke this legal framework when addressing security or conflict challenges instead of armed conflict or human rights derogations/limitations frames. This in turn strengthens and consolidates the counter-terrorism architecture through ongoing iteration and validation.

Keywords: Counter-terrorism, International Law

JEL Classification: K33