28 March 2012
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Critique
of the Council's agreed text on the defintion of terrorism
(Statewatch
bulletin, November-December 2001)
The stages of the decision
The European Commission put forward a proposed Framework Decision
on combating terrorism (24.9.01), the European Parliament was
"consulted" and the final decision lay with the Council
(representing the 15 EU governments).
The Commission's definition of "terrorism" covered:
"seriously altering or destroying the political, economic
or social structures of those countries". The first
draft of the Council's position (Article 1) went even further
and defined it as:
"seriously affecting, in particular by the intimidation
of the population or destroying the political, economic or social
structures of a country or of an international organisation"
(emphasis added).
Either of these definitions, coupled with the planned new operational
measures, could see protestors and other groups treated as if
they are "terrorists" (see Statewatch vol 11 no 5).
In early October (10.10.01) there were only outstanding issues
for the Council on penalties (Article 5) and jurisdiction (Article
10) - the scope of the definition was not an issue at this stage.
Nor was there any change in the situation by 26 October.
The Commission's proposal was published on 24 September and on
27 September Statewatch posted on its website one of the first
of many critiques that were to be made by NGOs, lawyers, academics
and others. Strong criticism of the definition of "terrorism"
at the EU level was fuelled by draconian new laws being introduced
in a number of member states at national level. By 14 November
there was a shift in the Council, a small minority of EU governments:
"wanted to restrict this definition as far as possible
in order to ensure that legitimate action, such as in the context
of trade union activities or anti-globalisation movements, could
under no circumstances come within the scope of the Framework
Decision"
What had not been an issue for the Council until 5 November now
became one and a "Recital" (no 10) was added to the
draft Council position saying:
"Nothing in this Framework Decision may be interpreted
as being intended to reduce or restrict fundamental rights or
freedoms such as the freedom of assembly, of association or of
expression, including the right of everyone to form and join
trade unions with others for the protection of his or her interests
[the words] "and the related right to demonstrate"
[were added on 16 November]
The explicit "right to demonstrate" is thus directly
related to trade union activity and not to other forms of protest.
By 12 November the scope of the definition of terrorism changed
and, after the specially-called Justice and Home Affairs Council
on 16 November, read:
"terrorist offences include the following list of intentional
acts which, given their nature or their context, may seriously
damage a country or international organisation.. where committed
with the aim of:
(i) seriously intimidating a population, or
(ii) unduly compelling a Government or international organisation
to perform or abstain from performing any act, or
(iii) seriously destabilising or destroying the fundamental political,
constitutional, economic or social structures of a country or
international organisation"
These new definitions of terrorist "aims" may seem
very general and they are - having been taken from UN conventions
on terrorism largely drafted by the US, EU and G8 countries.
The second "aim" is so general as to embrace the objectives
of millions of people and thousands of groups in civil society.
However, what is critical to understanding this Framework Decision
on "terrorism" are the offences to which they must
relate, for example, as set out in the Commission's Article 3.f
(now Article 1.e in the Council text).
The Commission's proposal said offences should include:
"Unlawful seizure of or damage to state or government
facilities, means of public transport, infrastructure facilities,
places of public use, and property" (Article 3.f)
The Council's agreed text says:
"causing extensive destruction to a Government or public
facility, a transport system, an infrastructure facility, including
an information system, a fixed platform located on a continental
shelf, a public place or private property likely to endanger
human life or result in major economic loss"
The agreed text is better in that "unlawful seizure"
is deleted. However, "information system" has been
added to cover "hacking", so has "fixed platform"
(eg: oil rigs in the North Sea like the Brent Spa which was occupied
by Greenpeace) and "major economic loss" (which is
a separate category).
Taking the "worst case scenario" a group could have
the "aim" of seeking to get a "Government or international
organisation to perform or abstain from performing any act"
and in the course of such aim commit the offence of "causing
extensive damage" to government or private property or cause
"extensive damage" resulting in "major economic
loss". Indeed it is arguable that the totality of events
in Genoa would fit this description.
It should also be noted that it will be an offence to "threaten"
to commit any offence as defined in Article 1.e. (under Article
1.j); that a "terrorist group" means "a structured
group of more than two persons, established over a period of
time and acting in concert to commit terrorist offences"
(Article 2.1); and it will also be an offence to "incite,
aid or abet" a planned or actual action under Article 1.e
(Article 3).
This was the extent of the Council's draft positions on 10 October,
26 October and 14 November. However, on 16 November the Council
added a "Statement" (which is attached to the final
text). This says that the definition of terrorism:
"cannot be construed so as to argue that the conduct
of those who have acted in the interests of preserving or restoring
democratic values, as was notably the case in some Member States
during the Second World War, could be considered as "terrorist
acts". Nor can it be construed so as to incriminate on terrorist
grounds persons exercising their legitimate right to manifest
their opinions, even if in the course of the exercise of such
right they commit offences"
This statement would appear to first, recognise a distinction
between "terrorism" and liberation struggles and second,
to recognise that people can "manifest their opinions"
without being terrorists. Whatever the meaning of these general
commitments it should be noted that a "Council Statement"
has no legal force and is simply a statement of political intent.
The proposal put forward by the European Commission on 24
September had the clear intent to embrace protests in the definition
(eg: it could also cover "urban violence"). The Belgium
Presidency of the EU and the majority of EU governments supported
the Commission proposal on the scope of the definition of terrorism.
It was only in November that critical voices in civil society
were picked up by some of the media, some national MPs, some
trade unions and then a handful of EU governments that any change
occurred.
By the end of November the Council had added "Recital 10"
and agreed the "Council Statement". The European Parliament's
draft report was silent on the issue and only at its plenary
session on 29 November were amendments introduced recognising
there might be a problem. At this plenary session of the European
Parliament Mr Vittorino, the European Commissioner for justice
and home affairs, tried to argue that it was never the intention
for the definition to cover protests, "The Council and the
Commission agreed this from the very outset", he said. This
was clearly not the case.
The Commissioner's statement coincided with a strong, high-level,
statement, issued on the morning of 29 November, by Mary Robinson,
UN High Commissioner for Human Rights, the Secretary General
of the Council of Europe and the Director of the OSCE Office
for democratic institutions and human rights. The statement called:
"on all governments to refrain from excessive steps,
which would violate fundamental freedoms and undermine legitimate
dissent"
Conclusion
The acid test will be how EU governments translate the Framework
Decision into national law and how it is used. Writing in the
last issue of Statewatch Thomas Mathiesen, professor of sociology
of law at Oslo University, said:
"Methods of political protest available to ordinary
people are under attack. Regardless of whether the attack is
consciously planned and/or an unintended consequence of a major
panic (it is probably a mixture of the two), it is politically
dangerous. As far as the Commission's and the Council's definitions
are concerned, they may possibly not be used in such a broad
and generalised way at first. From long experience we know, however,
that discretionary measures in this area will be employed less
carefully, and more broadly, as time passes, when the time is
ripe and when the need is there."
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