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The proposed framework decision to combat terrorism

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25 October 2001

Submission by Statewatch to the House of Lords Select Committee on the European Union, sub-committee "E" on the proposal to combat terrorism

Background

In the wake of the events on 11 September in the USA the European Commission proposed a Framework Decision on combating terrorism (COM(2001)521 final, 19.9.01) and the Council responded to the proposal (doc no 12647/01, 10.10.01). The Home Office Minister submitted an Explanatory Memorandum in October.

The Commission proposal

The European Commission proposal for a Framework Decision to combat terrorism is intended to put in place a definition of terrorism, penalties and sanctions, extradition procedures and mechanisms for exchanging information.

The key provision is that defining terrorist offences (Article 3) which says, each Member State according to its national law shall ensure that:

"the following offences.. which are intentionally committed by an individual or a group against one or more countries, their institutions or people with the aim of intimidating them and seriously altering or destroying the political, economic or social structures of those countries will be punishable as terrorist offences"

It then sets out these offences (and penalties "maximum penalty not less than" in Article 5) as:

(a) Murder (20 years)
(b) Bodily injuries (4 years)
(c) Kidnapping or hostage taking (10 years)
(d) Extortion (2 years)
(e) Theft or robbery (2 years)
(f) Unlawful seizure of or damage to state or government facilities, means of public transport, infrastructure facilities, places of public use, and property (5 years)
(g) Fabrication, possession, acquisition, transport or supply of weapons or explosives (10 years)
(h) Releasing contaminating substances, or causing fires, explosions or floods, endangering people, property, animals or the environment (10 years)
(i) Interfering with or disrupting the supply of water, power or other fundamental resource (10 years)
(j) Attacks through interference with an information system (5 years)
(k) Threatening to commit any of the offences listed above (2 years)
(l) Directing a terrorist group (15 years)
(m) Promoting of, supporting or participation in a terrorist group (7 years)

Article 4 extends the definition to include:

"instigating, aiding, abetting or attempting to commit a terrorist offence".

Article 5.3 alternative penalties to custodial sentences:

"alternative sanctions such as community service, limitation of certain civil or political rights"

and 5.4. provides for fines.

The inclusion of "community service" and "fines" suggests that the proposal extends beyond what is conventionally termed "terrorism".

Terrorism to include "acts of urban violence"

The question thus arises whether the proposal is solely intended to "combat terrorism" or does it have a wider purpose? Is it the intention to extend the definition of "terrorism" to cover demonstrations, protests and political dissent as well?

The breadth of the definition is surprising if the proposal is intended to only combat terrorism:

1) The inclusion of the term "seriously altering.. the political, economic or social structures" by "an individual or group" suggests a wider purpose is intended;

2) The inclusion in Article 3.f. of the "Unlawful seizure of or damage to state or government facilities, means of public transport, infrastructure facilities, places of public use, and property" (property covers public and private) could embrace a wide range of demonstration and protests - ranging from the non-violent Greenham Common Womens protests against a US Cruise missile base in the UK to the protests in Genoa;

3) The phrase in Article 3.h.: "endangering people, property, animals or the environment" could refer, for example, to animal right protests;

4) The inclusion in the "Penalties and sanctions" Article 5 of "community service, limitation of certain civil and political rights" and of fines suggests that the proposal might have a wider objective than dealing with terrorism. The seemingly soft end of the sentences and the deprivation of rights could see demonstrators being charged as "terrorists" and, for example, losing their vote.

The answer to these questions is spelt out in the "Explanatory Memorandum" accompanying the proposal. It says that Article 3 defining terrorist offences:

"could include, for instance, urban violence"

This would appear to confirm that the intention is to extend the definition of "terrorism" to cover public order situations. Moreover, the Justice and Home Affairs DG of the European Commission now has a web page on the issue of: "Terrorism - the EU on the move". The preamble to background and documentation states that is concerned with:

"radicals suspected of violence"

This too suggests a much wider concept of "terrorism".

The Commission proposal is either very badly drafted, or there is a deliberate attempt to broaden the concept of terrorism to cover protests (such as those in Gothenburg and Genoa) and what it calls "urban violence".

The Council's response

The Council of the European Union has proposed a wider definition of "terrorism" and would extend it to those who aim to "seriously.. affect.. an international organisation"

It has put forward a different definition of "terrorism" to that put forward in the European Commission's proposal. The most significant difference is to change the word "altering" to "affecting" which would broaden it scope. Where the Commission's definition reads that a "terrorist offence" would include actions seeking to: "seriously altering or destroying the political, economic or social structures of a country" the Council's definition would include actions:

"with the aim of seriously... affecting or destroying the political, economic or social structures of a country or of an international organisation"

The Council's version thus not only widens the definition of "terrorism" to action which might "affect" political, economic and social structures but, ominously adds actions seeking to seriously "affect" an "international organisation". Such a broad definition would clearly embraces protests such as those in Gothenburg and Genoa.

Ireland and UK have proposed the deletion of the word "seriously" which would extensively broaden the scope of the definition.

In addition, the insertion of the words "in particular" suggests that intimidation is not the only example of action which might affect, or seriously affect, the status quo.

The Council's definition, under point (f) below does slightly narrow the contentious "terrorist" offence of "seizure of or serious damage to state or government facilities, means of public transport.. places of public use and property" by adding the word "serious" - however, this does not remove the concern that this could be used against protests and non-violent actions.

Question in the House of Commons

In the House of Commons on Monday 15 October the David Blunkett, the Home Secretary, Home Secretary avoided answering a question on the scope of "terrorism". Chris Mullin MP, chair of the parliament's Home Affairs Select Committee, said there was a long history in the UK of "anti-terrorism legislation being introduced in haste and repented at leisure". He tried to pin down the government on the proposed definition of "terrorism" and asked:

"The EC may be proposing to cast the net a little too wide. Will he ensure that whatever definition [of terrorism] is finally agreed is robust, watertight and confined to dealing with terrorists and not with other people who might, from time to time, get up the noses of the established order?"

The Home Secretary did not answer this question - which leaves wide open the issue of whether the EU definition of "terrorism" extends to protests and "urban violence".

Home Office Explanatory Memorandum

The Explanatory Memorandum offer no explanation on the scope of the proposed definition of terrorism.

Conclusion

In our view it is quite unacceptable that the definitions of "terrorism" put forward by both the Commission and the Council should extend to cover protests (such as those in Gothenburg or Genoa) or to "urban violence". The definition should be amended to exclude such situations.