EU: Key European terrorism legislation may be revised
12 December 2014
Justice and home affairs ministers of the EU's Member States have “agreed to assess the need to update” the EU's 2002 Framework Decision on combating terrorism, in order to take into account the requirements of a recent UN Security Council Resolution on “foreign terrorist fighters”.
The legally-binding Security Council (UNSC) Resolution 2178 was adopted in September and requires states to ensure, amongst other things, “that their legal systems provide for the prosecution, as serious criminal offences, of travel for terrorism or related training, as well as the financing or facilitation of such activities.” [1]
The decision to consider revising Framework Decision 2002/475/JHA on combating terrorism was made at the Justice and Home Affairs Council meeting earlier this month, [2] and goes against previously stated preferences for new national, rather than EU, legislation.
At a meeting of the Council of the EU's Article 36 Committee on 31 October, a majority of Member States said they were in favour of meeting the requirements of the UNSC Resolution through changes to national law, arguing that “the timing aspect of providing an effective judicial response in this respect is particularly relevant”. [3]
They were responding to a proposal from the EU's Counter-Terrorism Coordinator, Gilles de Kerchove, to revise the 2002 Framework Decision to cover “even earlier stages of preparatory acts or tackling the terrorist intent requirement from a broader perspective.”
The Framework Decision on combating terrorism has already been amended once, in 2008, when new offences on public provocation, recruitment and training for terrorism were added.
Member States and the EU are already working to implement an extensive set of measures intended to address "foreign fighters and returnees", as well a revised 'Strategy for Combating Radicalisation and Recruitment to Terrorism'. [4]
Proposals
With the commitment by ministers to “to assess the need to update” the EU legislation, suggestions made by the Counter-Terrorism Coordinator will likely be under consideration.
In an October paper he said a debate “would benefit from exploring different approaches to this matter which would not require a direct terrorist intent, such as criminalising joining armed forces abroad, which would include non-State actors or criminalising the violation of a travel ban to leave the country.”
He also suggested some potentially less punitive measures: “taking into account the increasing number of young adolescents engaging in foreign fighter activities, alternatives to prison sentences, such as probation measures and participation in re-integration programmes need to be explored.” [5]
A follow-up discussion paper produced by the Coordinator for the Council meeting remains secret. [6]
New national legislation
The decision to consider revising the EU's terrorism legislation comes as many Member States are implementing new laws to meet the requirements of UNSC Resolution 2178.
France adopted new legislation on 4 November that a member of the French Communist Party referred to as the “French Patriot Act”, in reference to the controversial US legislation of the same name.
The legislation imposes sentences of up to ten years and fines of up to €150,000 on “anyone found to be simultaneously in possession of dangerous objects or substances (such as explosives and weapons), and consulting terrorist websites or receiving terrorist training.”
It also gives the French Data Protection Authority the power to block websites that “glorify terrorism” without judicial approval, and allows the imposition of entry and exit bans on individuals “whenever there are serious reasons to believe that [they] are planning to travel abroad... to take part in terrorist activities, war crimes or crimes against humanity.” [7]
Some of the provisions in the French legislation were proposed in July, before Resolution 2178 was agreed, and led the Danish government to consider new legislation. [8]
At the end of November the government of Luxembourg proposed new legislation based on the UNSC Resolution “aimed at preventing radicalised fighters from reaching terrorist fighters in war zones. It could be passed before the end of the year.” [9]
At a UN debate on 19 November, the Spanish representative stated that the country's government was “working to prevent recruitment and traveling of foreign fighters and was strengthening its legal regime in that light.” [10] A report by the Law Library of the US Congress from October says:
“The aims of the proposed [Spanish] legislation are to give domestic courts jurisdiction to prosecute persons joining jihadist groups, deter the flow of foreign fighters into the ranks of the Islamic State (IS), and, most importantly, help control the threat they pose on their return to their countries.” [11]
In the UK the government recently published a new counter-terrorism bill – the seventh in 14 years – which is currently being examined by the parliament's Home Affairs Committee. [12] The bill includes new powers to introduce travel bans, internal exile, the ability to prevent people from returning to the UK, and to compel communications service providers to identify internet users by IP address.
The UK's reviewer of terrorism legislation, David Anderson QC, has raised a number of concerns about the legislation, [13] as have civil liberties groups. Shami Chakrabati of Liberty referred to some of the proposals as a “chilling recipe for injustice”. [14]
Meanwhile, in Germany, some 300 people are currently facing prosecution for supporting Islamic State, which Justice Minister Heiko Mass said “was a sign that anti-terrorism laws were working and tougher legislation was not needed.” [15]
Further efforts
In mid-November the Security Council reiterated its concern over foreign fighters, calling for “States, the United Nations and other partners to target the root causes to terrorism as they redoubled efforts to eradicate that scourge in all its forms and manifestations.”
States should make better use of Interpol's databases and, in order to detect “departure from, entry into, or transit through their territories to individuals on the Al-Qaida sanctions list,” states should oblige airlines to provide them with advance passenger information (API) and Passenger Name Records (PNR).
The Security Council also anticipates new blacklisting measures to address the transfer of economic resources to, from or by terrorist groups, and “urged States to counter violent extremist propaganda on the Internet and social media by developing effective counter-narratives, stressing the importance of partnering with civil society and the private sector in such efforts.”
In a statement the Security Council said: “Terrorism will not be defeated by military force, law enforcement measures and intelligence operations alone,” and noted “the need to address the conditions conducive to its spread and the factors driving recruitment and radicalisation.” [16]
Further reading
'Chief constable warns against ‘drift towards police state’', The Guardian, 5 December 2014
Arzu Çakir Morin, 'EU ministers discuss jihadist travel to Syria, border security', Al Monitor, 19 November 2014
'UN unanimously passes resolution to combat 'foreign terrorist fighters'', Statewatch News Online, September 2014
Footnotes
[1] UN press release, 'Security Council unanimously adopts resolution condemning violent extremism, underscoring need to prevent travel, support for foreign terrorist fighters', 24 September 2014; UN Security Council Resolution 2178 (2014)
[2] Council of the European Union, 'Press release', 16526/14, 4 and 5 December 2014; see also a paper produced by the Presidency: 'Effective criminal justice response to the phenomenon of foreign fighters = Lunch discussion of the Ministers of Justice', 16179/14, 1 December 2014
[3] Council of the European Union, 'Summary of discussions', 14984/14, 31 October 2014
[4] EU Counter-Terrorism Coordinator in consultation with the Commission services and the EEAS,
'Foreign Fighters and returnees: Implementation of the measures decided by the JHA Council on 9-10 October 2014', 16002/14, 24 November 2014; Presidency, 'Draft Guidelines for the EU Strategy for Combating Radicalisation and Recruitment to Terrorism', 13469/1/14 REV 1, 27 November 2014
[5] EU Counter-Terrorism Coordinator, 'Effective criminal justice response to the phenomenon of foreign fighters', 14188/14, 10 October 2014
[6] EU Counter-Terrorism Coordinator, 'Foreign fighters and returnees: discussion paper', 15715/2/14 REV 2, 2 December 2014
[7] Virgile Dall’Armellina, 'France Enacts Controversial New Anti-Jihadist Law', Vice News, 6 November 2014
[8] 'Denmark considers new anti-jihadist laws', The Local, 12 July 2014
[9] 'Luxembourg mobilises against jihadi recruiters', Luxemburger Wort, 27 November 2014
[10] UN press release, 'In Presidential Statement, Security Council Calls for Redoubling Efforts to Target Root Causes of Terrorism as Threat Expands, Intensifies', 19 November 2014
[11] 'Spain: Criminal Sanctions for Foreign Fighters and Anti-Terrorism Measures Under Consideration', Library of Congress, 16 October 2014
[12] Home Affairs Committee, 'Counter-Terrorism and Security Bill'
[13] 'Concerns over terror exclusion plans', BBC News, 27 November 2014
[14] Paul Peachey, 'Anti-terror Bill: Teresa May criticised for producing ‘a chilling recipe for injustice’', The Independent, 24 November 2014
[15] 'Germany says 300 jihadists facing trial, anti-terrorism laws working', Reuters, 30 November 2014
[16] UN press release, 'In Presidential Statement, Security Council Calls for Redoubling Efforts to Target Root Causes of Terrorism as Threat Expands, Intensifies', 19 November 2014