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Eu Responses to Terrorism

Published online by Cambridge University Press:  17 January 2008

Steve Peers
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Extract

Following the last update in this Quarterly,1 the European Union (EU) has been quite active in agreeing new measures relating to cross-border policing and criminal law. First of all, the Tampere European Council meeting in October 1999 agreed a list of measures to be adopted to develop the EU's ‘Area of Freedom, Security and Justice’, particularly as regards criminal procedure. Here the European Council requested the Council to agree a work programme on mutual recognition in criminal matters within a year, and to establish an EU organisation facilitating cross-border prosecutions (Eurojust) within 2 years. Following agreement in the meantime on a Convention on Mutual Assistance in Criminal Matters after 5 years’ negotiations,2 the work programme was duly adopted in November 2000, setting out a list of twenty-four measures which the Council should agree in the medium-term to facilitate cross-border investigations, prosecutions, and enforcement of judgments.3 Several Member States then began to implement this plan, tabling two versions of a proposed Decision to set up Eurojust and also making proposals for ‘Framework Decisions’ to harmonise national laws as regards enforcement of other Member States’ orders to freeze assets and evidence and enforcement of judgments imposing financial penalties.4

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 52 , Issue 1 , January 2003 , pp. 227 - 243
Copyright
Copyright © British Institute of International and Comparative Law 2003

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References

1 49 ICLQ (2000) 222.

2 OJ 2000 C 197/1.

3 OJ 2001 C 12/10.

4 OJ 2000 C 206/1 and C 243/15 (Eurojust); OJ 2001 C 75/3 (freezing); and OJ 2001 C 278/4 (financial penalties).

5 Respectively OJ 2000 L 140/1 (amended, OJ 2001 L 329/3); OJ 2001 L 149/1; and OJ 2001 L 182/1.

6 Respectively OJ 2000 C 39/1, C 253/3 and 6; and COM (2000) 854 (both sexual exploitation and trafficking in persons). The Framework Decision on trafficking in persons has since been adopted (OJ 2002 L 203/1).

7 Recommendations on requests to national forces (OJ 2000 C 289/8) and participation in joint teams (OJ 2000 C 357/7).

s OJ 2001 C 285/3.

9 COM (2001) 521 and 522.

10 OJ 2002 L 164/3 (terrorism) and OJ 2002 L 190/1 (arrest warrant).

11 Respectively OJ 2001 C 362/1 and Council doc 6980/02, 13 Mar 2002.

12 Respectively OJ 2001 C 326/1 and OJ 2002 L 63/1.

13 See OJ 1999 L 327/58 (Greece); OJ 2000 L 131/43 (UK) and 309/24 (Nordic states); and OJ 2002 L 64/20 (Ireland).

14 Above n 9.

15 See Council docs. 12647/01 and 12647/1–4/01. The outcome of the discussions is recorded in Council doc 14845/01 and the agreed text is in Council doc 14845/1/01.

16 Conventions concerning: the Suppression of Unlawful Acts against the Safety of Maritime Navigation (27 ILM 668 (1988)); Protocol concerning the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (27 ILM 685 (1988)); the Suppression of Unlawful Seizure of Aircraft (Hague Hijacking Convention) (10 ILM 133 (1970)); the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Montreal Hijacking Convention); Protocol for the Suppression of Unlawful Acts of Violence at Airports serving Civil Aviation (27 ILM 627 (1988)); on the Protection and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (13 ILM 41 (1973)); against the Taking of Hostages (18 ILM 1456 (1979)); on the Suppression of Terrorist Bombings (UN Doc A/Res/52/164 (9 Jan 1998)); on the Physical Protection of Nuclear Material (18 ILM 1419 (1980)); and for the Suppression of the Financing of Terrorism (UN Doc A/54/109 (9 Dec 1999)). From a huge literature, see the discussion with further references by Bassiouni, , ‘Perspectives on International Terrorism’, in Bassiouni, , International Terrorism: Multilateral Conventions, 1937–2001 (Ardsley: Transnational Publishers, 2001).Google Scholar

17 See UN Doc A/54/109, Art 2(1).

18 Art 1 of the Convention (ETS 90). The first two offences are defined by reference to UN Conventions, while the others had also or have since been the subject of UN Conventions.

19 The differences are that the EU measure refers to ‘seriously intimidating’ and ‘unduly compelling’. The ‘compulsion’ criterion is also found in the Protection of Nuclear Materials Convention, Art 7(l)(e)(ii); the Hostage–Taking Convention (Art 1(1)), where it applies to compulsion against all natural or legal persons or groups of persons; the Maritime Navigation Safety Convention (Art 3(2)(c)); and the Fixed Platforms Protocol, Art 2(2)(c) (above n 16).

20 The first two points also correspond to Art 2(1 )(a), Protected Persons Convention, which obviously has a far narrower personal scope.

21 Compare to Art 2(1), Terrorist Bombing Convention. However, it is arguable that information systems are covered by the Convention's definition of ‘infrastructure’ as including ‘communications’ (Art 1(2)). The Protocol to the Montreal Hijacking Convention also covers broader forms of damage to civil aviation facilities, and Art 2(1 )(b), Protected Persons’ Convention covers attacks on the premises or private accommodation of such persons.

22 Art 7(l)(e), Protection of Nuclear Material Convention; Art 3(2)(c), Maritime Safety Convention; Art 2(2)(c), Fixed Platforms Protocol; and Art 2(l)(c), Protected Persons’ Convention (above n 16).

23 Art 2(l)(a), Fixed Platform Convention.

24 It might be argued that the hijacking could nonetheless ‘seriously damage’ the country and could ‘seriously intimidate’ the population, thus meeting the criteria in the Framework Decision.

25 Compare Art 2 of each Convention to Art 2 of the Framework Decision. While the Framework Decision, compared to the financing Convention, does not define the concept of ‘funding’, it does more precisely define a ‘terrorist group’.

26 On pre–Amsterdam measures, see Peers, S, EU Justice and Home Affairs Law (Harlow: Longman, 2000) 162–4Google Scholar; see now the post–Amsterdam measures, above n 5.

27 This is largely a reference to Eurojust, above n 12 above. It should be recalled that EU rules ban cross–border double jeopardy within the EU, subject to certain exceptions: for details see Peers, op cit, 164–5. The scope of this rule is the subject of the first two third pillar cases referred to the Court of Justice (C–187/01 Gozutok and C-385/01 Brugge, both pending).

28 The ‘straightforward’ territorial obligations are found in Art 5(l)(a), Montreal Hijacking Convention (applying to the Protocol to that Convention); Art 6(l)(a), Terrorist Bombing Convention; and Art 7(l)(a), Terrorist Financing Convention. For the ‘clarified’ obligations, see Art 6(l)(a) and (b), Maritime Safety Convention (territorial waters); Art 4(l)(a) and (b), Hague Hijacking Convention (where aircraft lands); Art 5(1)(b), and (c), Montreal Hijacking Convention (where aircraft lands); Art 3(l)(a), Fixed Platforms Protocol (continental shelf); Art 3(l)(a), Protected Persons Convention; Art 5(l)(a), Hostages Convention; Art 6(l)(b), Terrorist Bombing Convention; Art 8(l)(a), Nuclear Materials Convention; and Art 7(l)(b), Terrorist Financing Convention. These provisions all concern the state of registration of an aircraft and the flag state of vessels, along with the further clarifications mentioned.

29 See Art 6(l)(c), Maritime Safety Convention; Art 3(l)(b), Fixed Platforms Protocol; Art 3(l)(b), Protected Persons Convention; Art 5(l)(b), Hostages Convention; Art 6(l)(c), Terrorist Bombing Convention; Art 8(l)(b), Nuclear Materials Convention; and Art 7(l)(c), Terrorist Financing Convention.

30 Art 3(l)(c), Protected Persons Convention; Art 5(l)(c), Hostages Convention.

31 The only examples are Art 4(1 )(c), Hague Hijacking Convention and Art 5(1 )(d), Montreal Hijacking Convention, applying only where a lessee company is a ‘national’.

32 See Art 6(2), Maritime Safety Convention (passive personality and protective); Art 3(2), Fixed Platforms Protocol (passive personality and protective); Art 5(l)(d), Hostages Convention (passive personality); Art 6(2), Terrorist Bombing Convention (protective and passive personality); Art 8(4), Nuclear Materials Convention (state of importation or exportation); and Art 7(2), Terrorist Financing Convention (protective, passive personality).

33 The relevant provisions extending criminal jurisdiction to such persons are all merely permissive, not mandatory: Art 6(2)(a), Maritime Safety Convention; Art 3(2)(a), Fixed Platforms Protocol; Art 5(l)(b), Hostages Convention; and Art 7(2)(d), Terrorist Financing Convention.

34 However, Art 4(b), Tokyo Hijacking Convention, while not requiring the application of criminal sanctions, does permit criminal jurisdiction where acts are committed by or against ‘permanent residents’.

35 On the post–Amsterdam measures, above n. 5 and 6. On the pre–Amsterdam measures, see Peers, above n. 26, 153–4.

36 The exception is the agreed text of the framework decision on facilitation of illegal migration (Council doc 10075/01), which also does not define ‘legal person’.

37 Of course, in practice it is highly improbable that proceedings would be brought against NATO for alleged acts of ‘terrorism’ in any EU Member States.

38 See Art 19(2) of that Convention, above n 16. Art 1(4) of that Convention further defines the meaning of ‘military forces of a state’.

39 The relationship between state immunities and terrorism is beyond the scope of this paper. If Member States’ treaty obligations require them to grant such immunity, it is not clear whether those treaty obligations or the Framework Decision would take precedence, as there is nothing in the EU Treaty to indicate the intended relationship between EU criminal legislation and any rules of international law besides human rights law (see Art 6 TEU).

40 OJ 2000 C 364.

41 Council doc 14845/1/02, 15 (above n. 15).

42 Case C–292/89 Antonissen [1991] ECR 1–745.

43 See Art 7 ECHR.

44 See the rather clearer distinction in point T of the European Parliament recommendation on terrorism of 5 Sept 2001 (OJ 2002 C 72 E/139) between ‘acts whose aim is to alter … structures in States governed by the rule of law by actually threatening to use violence or resorting to violence, as distinct from acts of resistance in third countries against state structures which themselves employ terrorist methods’.

45 Common Positions 2001/930 and 931/CFSP (OJ 2001 L 344/90 and 93); Reg 2580/2001 (OJ 2001 L 344/70); and Decision 2001/927/EC (OJ 2001 L 344/83). Compare with the Commission proposal for the Regulation (COM (2001) 569 as amended by COM (2001) 713).

46 Common Position 2002/340/CFSP (OJ 2002 L 116/75) and Decision 2002/334/EC (OJ 2002 L 116/33); Common Position 2002/460/CFSP (OJ 2002 L 160/26) and Decision 2002/462/EC (OJ 2002 L 160/32).

47 See Arts 13–17 of the Common Position, transposing para 3 of the Resolution.

48 See Art 4 of the Common Position, transposing para 2(a) of the Resolution.

49 See Peers, , ‘Common Foreign and Security Policy 1999–2000’ 20 YEL (2001) 531, at 562–6.Google Scholar

50 Reg 337/2000 (OJ 2000 L 43/1), replaced by Reg 467/2001 (OJ 2001 L 67/1), implemented nine times, most recently by Commission Reg 362/2002 (OJ 2002 L 58/6); now replaced by Reg 881/2002 (OJ 2002 L 139/9), implemented by Reg 951/2002 (OJ 2002 L 145/14).

51 On the former, see Case T–189/00 R and Case T–317/00 P(R) Invest Import und Export GmbH and Invest Commerce Sari v Commission [2000] ECR11–2293 and [2000] ECR1–9541. On the latter see Cases T–315/01 Khadi, T–318/01 Othman and T–306/01 Aden and others, all pending, and Order of the Court of First Instance of 7 May 2002 in T–306/01R Aden (not yet reported).

52 See comments on Invest Import und Export by Peers, , ‘Human Rights Case Law of the European Court of Justice’ (2001) 1 HRLR 145, at 166–7.Google Scholar

53 Council doc 5715/02 and redrafts 5715/1–5/02.

54 Council doc 5715/6/02.

55 Respectively above n 2 and OJ 2002 L 162/1.

56 Council doc 5715/02 (above n 57), emphasis added. See also clause (6) in the preamble to the subsequent two drafts.

57 This clause was first omitted in Council doc 5715/5/02, Ibid.

58 For instance, on the ‘Gladio’ network, see Statewatch Briefing, July 1991 and the annexed EP resolution of 22 Nov 1990. The Resolution alleged that ‘security services (or uncontrolled branches thereof) were involved in serious cases of terrorism and crime as evidenced by various judicial enquiries’.

59 Above n 7.

60 See Art 2(1) of the Europol Convention (OJ 1995 C 316/1).

61 Council doc 5712/02.

62 Council docs 5712/1–4/02.

63 Council doc 5712/5/02. The Recommendation had not yet been adopted at time of writing.

64 See comments by the House of Commons Select Committee on European Scrutiny, 27th report (2001–2), part 6.

65 See Council doc 10524/5/01. It is not clear whether or not this measure was later adopted.

66 See, eg, Statewatch Bulletin, May/July 2001 (Genoa).

67 Council doc 5759/02, 31 Jan 2002.

68 Above n 66.