Published in July 2018.
This module is a resource for lecturers
The European region
There are three intergovernmental organizations in Europe which are engaged in counter-terrorism issues, the outputs of which form part of the overall universal framework for counter-terrorism responses: the Council of Europe, the European Union, and the Organization for Security and Cooperation in Europe (OSCE). Each will be considered in turn.
Council of Europe
The Council of Europe was founded in 1949 and is the oldest intergovernmental organization in Europe, with 47 Member States. The Council principally aims to promote and uphold human rights, parliamentary democracy and the rule of law. Together with the European Court of Human Rights, it is located in Strasbourg, France. It should not be confused with the separate (though closely connected) system of the European Union, which has its political arm based in Brussels, Belgium and its Court of Justice in Luxembourg.
The principal instruments against terrorism are adopted by the Committee of Ministers and Parliamentary Assembly. The Committee of Ministers is the Council's statutory decision-making and treaty adopting body, comprising Ministers for Foreign Affairs of Member States. The Parliamentary Assembly of the Council of Europe (PACE) is its deliberative body, which adopts non-binding recommendations, resolutions and opinions. The underpinning principles of the Council's approach to terrorism involves a three-pronged approach: strengthening the legal framework, tackling the causes of terrorism, and safeguarding fundamental values. Both bodies, especially PACE, provide non-judicial oversight over the counter-terrorism policies and practices of Member States.
The Council has adopted a number of instruments against terrorism. Its principal counter-terrorism framework treaty is the Council of Europe Convention on the Prevention of Terrorism (CETS No. 196) (adopted 16 May 2005, entered into force 1 June 2007), which supersedes the earlier European Convention on the Suppression of Terrorism (CETS No. 90) (adopted 27 January 1977, entered into force 4 August 1978). An overall Convention objective is to increase the effectiveness of existing international texts on the fight against terrorism. Furthermore, it seeks to strengthen Member States' efforts to prevent terrorism: (1) by establishing as criminal offences certain acts that may lead to the commission of terrorist offences, namely: public provocation, recruitment and training; and (2) by reinforcing co-operation on prevention both internally (national prevention policies), and internationally (modification of existing extradition and mutual assistance arrangements and additional means).
On 22 October 2015, an Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism (CETS No. 217) was adopted (which entered into force on 1 July 2017). It makes a number of acts, including participation in an association or group for the purpose of terrorism, receiving terrorist training, travelling abroad for the purposes of terrorism, and financing or organizing travel for this purpose, a criminal offence. This Additional Protocol was adopted in response to Security Council Resolution 2178 (2014) reflecting United Nations estimates that there were/are at least 25,000 foreign fighters who have joined the ranks of the Islamic State in Iraq and Syria (including from some European and Asian countries within its membership). For the first time in international law, this instrument makes the preparation of acts of terrorism - at the initial stage (recruitment, training, and the preparation and financing of travel for the purposes of terrorism) - a criminal offence. In parallel, in May 2015, the Council of Europe launched a three-year action plan to counter violent extremism and radicalization, in particular in schools and prisons and on the Internet. (See further Module 2).
Both the Committee of Ministers and Parliamentary Assembly have been very active in adopting a number of declarations, resolutions, and recommendations, on wide-ranging terrorism-related issues. (See 'interest box' below). Some of these include a number of innovations, e.g., the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (CETS No. 198) (adopted 16 May 2005, entered into force 1 May 2008), which is the first international treaty covering both the prevention and the control of money-laundering and the financing of terrorism. In 2015, the Committee of Ministers adopted an Action Plan on the fight against violent extremism and radicalisation leading to terrorism (CM(2015)74 19 May 2015). This has two principal objectives: (1) to reinforce the legal framework against terrorism and violent extremism; and (2) to prevent and fight violent radicalization through concrete measures in the public sector, in particular in schools and prisons, and on the Internet.
In addition to developing legal standards to prevent and suppress acts of terrorism through criminal law and other measures, which fully respect human rights and the rule of law, a principal focus of the Council has been to strengthen international cooperation in bringing terrorists to justice. To this end, it has created a Committee of Experts on Terrorism (CODEXTER), which assists in the implementation of the Council's counter-terrorism instruments and coordinates its related activities. Current priority issues include possible gaps in the Council of Europe anti-terrorism legal framework in the area of preventing and suppressing terrorism, and the absence of a common universal definition of "terrorism".
Key Council of Europe counter-terrorism instruments
Human rights instruments
The principal human rights treaty underpinning the European human rights system of protection is the European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953) (ECHR). It is underpinned by the goal of securing fundamental civil and political rights and fundamental freedoms, not only to the citizens of Contracting Parties, but also to everyone within their jurisdiction.
Since its initial adoption, thirteen additional Protocols to the ECHR have been adopted. Protocols Nos. 1, 4, 6 (on the death penalty), 7, 12 and 13 added further rights and liberties to those guaranteed by the Convention, while Protocol No. 2 conferred on the Court the power to give advisory opinions. Protocol No. 9 enabled individual applicants to bring their cases before the Court subject to ratification by the respondent State and acceptance by a screening panel. Protocol No. 11 restructured the enforcement machinery. The remaining Protocols concerned the organization of and procedure before the Convention institutions. The other convention of especial relevance to counter-terrorism efforts is the European Convention on the Prevention of Torture and Inhuman or Degrading Treatment and Punishment (ETS No.126) (adopted 26 November 1987, entered into force 1 February 1989). Additionally, there are a number of non-binding outputs by Rapporteur groups (including on Human Rights), thematic coordinators and ad hoc working parties.
Although the ECHR is a Council of Europe instrument, it has been very influential in shaping law, policy and practice across the European region, including the work of the European Union and the Organization for Security and Co-operation in Europe (OSCE) discussed below. Notably, if full consensus can be achieved, exceptionally under the Lisbon Treaty 2007, the European Union will accede to the European Convention on Human Rights as a party in its own right even though it is not a State.
Additionally, mention should be made of the European Commission for Democracy through Law, also known as the Venice Commission. It acts as the Council's advisory body on democratic and constitutional matters, and is guided by the principles of democracy, human rights and the rule of law. It also shares standards and identifies best practices of the Council of Europe Member States with third party countries. The Commission's primary task is to provide States with legal advice in the form of legal opinions on draft legislation or legislation already in force; it also produces studies and reports on topical issues. This remit has involved consideration of counter-terrorism issues, such as the giving of opinions on national anti-terrorism legislation (Venice Commission, 2012).
Key Council of Europe human rights instruments
Enforcement mechanism:European Court of Human Rights
Initially, the European Convention on Human Rights (ECHR) established three mechanisms for the enforcement of its obligations: the European Commission of Human Rights (set up in 1954), the European Court of Human Rights (ECtHR) (set up in 1959), and the Committee of Ministers. Initially, the Commission undertook a screening process to determine their admissibility and, where no friendly non-judicial resolution could be achieved, would give an opinion on its merits. Due to the rapid and unsustainable growth in the number of applications, the system underwent a major overhaul in 1998 when Protocol No. 11 came into force which replaced the existing, part-time Court and Commission with a single, full-time Court. The Committee of Ministers remains involved in following up the enforcement of decisions of the ECtHR.
The Court can rule on individual or State applications alleging violations of the civil and political rights provided for in the ECHR and has the accompanying ability to impose appropriate sanctions on any offending Member State. Its judgments are binding on the countries concerned and have led governments to alter their legislation and administrative practice in a wide range of areas. The Court's case-law makes the Convention a powerful living instrument for meeting new challenges and consolidating the rule of law and democracy in Europe. The interpretation of the Convention is often evolving as it responds to new contexts and issues not envisaged at the time of its drafting in 1950.
The ECtHR has been the most prolific of all the regional courts. Since 1998 it has sat as a full-time court and individuals can apply to it directly. In almost fifty years the Court has delivered more than 10,000 judgments. One of the related challenges of its success is that it has struggled to manage the volume of cases submitted to it. The reach and influence of its jurisprudence, including on terrorism and counter-terrorism related matters, is far reaching, including on the decision-making processes of many national, regional and international courts. Such cross-pollination, however, is not one way. For example, in a number of cases, the Court has drawn upon the jurisprudence of the Inter-American Court (ECtHR, 2016).
The European Union (EU) is a separate institution from the Council of Europe, but it is a closely connected one since all of its 28 Member States are also Member States of the Council. Additionally, under Protocol 8 to article 6(2) of the Lisbon Treaty (adopted 13 December 2007, entered into force 1 December 2009), exceptionally the EU, as an international organization, plans to accede to the ECHR.
The organization has a number of institutions. The ones which play the most significant role in relation to the development of terrorism and counter-terrorism related laws and policies are the European Parliament, the European Council and the European Commission. The European Parliament is the law-making body of the EU, passing laws, together with the European Council, based on the European Commission's proposals. It also plays an important supervisory role, including democratic scrutiny of all EU institutions, and may also examine citizens' petitions and set up inquiries.
The primary role of the European Council is to set the organization's political agenda; essentially it is an EU decision-making body rather than law-maker. The European Commission, for its part, is the politically independent executive arm of the EU. It draws up proposals for new European legislation, and it implements the decisions of the European Parliament and the European Council. Additionally, together with the Court of Justice, the Commission ensures that EU law is properly applied in all the Member States.
The EU is very active in counter-terrorism related issues since terrorism continues to pose significant threats across Europe. In 2016 alone, there were 142 failed, foiled or completed terrorist attacks, resulting in 1002 people being arrested for terrorist offences within the geographical area of the EU ( EU/EC Fight Against Terrorism).
The organization's counter-terrorism responses are framed around the EU Counter-Terrorism Strategy 2005, adopted by the European Council. It commits the Union to combating terrorism globally, while respecting human rights and allowing its citizens to live in an area of freedom, security and justice. It is built around four strands:
- PREVENT people from turning to terrorism and stop future generations of terrorists from emerging;
- PROTECT citizens and critical infrastructure by reducing vulnerabilities against attacks;
- PURSUE and investigate terrorists, impede planning, travel and communications, cut off access to funding and materials and bring terrorists to justice;
- RESPOND in a coordinated way by preparing for the management and minimization of the consequences of a terrorist attack, improving capacities to deal with the aftermath and taking into account the needs of victims.
The Strategy is subjected to regular review. For example, in 2008 the Council adopted an EU strategy for combating radicalization and recruitment to terrorism as part of the 'prevent' pillar. This was subsequently revised in 2014 in response to the challenge of foreign fighters travelling to Syria and Iraq, which pose a major security threat to the EU and its Member States (Council of the European Union, 2014), resulting in the adoption of the EU Strategy for Combating Radicalisation and Recruitment to Terrorism of 2014. This Counter-Terrorism Strategy is augmented by further instruments, such as the Framework Decision 2002/475/JHA, amended in 2008, which provides a common definition of terrorist and terrorist-linked offences to facilitate international cooperation, particularly between EU Member States in the absence of a universally agreed definition.
In addition to influential, but technically non-binding, instruments such as the Counter-Terrorism Strategy, Member States have a number of binding obligations in relation to the agreed legal framework instrument of the EU. Until March 2017, this was articulated in Council Framework Decision of 13 June 2002 on combating terrorism (2002/475/JHA), which required Member States to take a number of actions, such as ensuring that definitions of terrorism - embedding key agreed criteria - existed within their domestic law, and that certain acts associated with terrorism were criminalized, taking legislative action where necessary. On 7 March 2017, the Council adopted a directive on combating terrorism (European Union, European Parliament and European Council, 2015). The new rules, which replaced the 2002 Framework, strengthen the legal framework of the EU to prevent terrorist attacks and address the phenomenon of foreign terrorist fighters. The new rules, in the form of a Directive, strengthen and widen the scope of the existing legislation. For example, it criminalizes travel within, outside or to the EU for terrorist purposes, such as to join the activities of a terrorist group or with the purpose of committing a terrorist attack. The Directive will also complement the current legislation on the rights of victims of terrorism (see further Module 14).
Another key area of activity has been the fight against money-laundering and terrorist financing. In 2015, the European Parliament and the European Council adopted Directive (EU) 2015/849, which established common rules on the prevention of the use of the financial system of the EU for the purposes of money-laundering or terrorist financing. Additionally, as part of its response to the 9/11 terrorist attacks in 2001, the organization established a list of persons, groups and entities involved in terrorist acts and subject to restrictive measures. Set down in Council common position 2001/931/CFSP on the application of specific measures to combat terrorism (2001), these were additional measures adopted in order to implement the requirements articulated in Security Council Resolution 1373. This regime is separate from the EU regime implementing Security Council Resolution 1989 (2011) on the freezing of funds of persons and entities associated with Osama bin Laden, the al Qaida network and the Taliban (including ISIL/Da'esh).
Other key outputs have included policies developed by the European Commission in all sectors related to the prevention of terrorist attacks and the management of their consequences, including in hindering access to Chemical, Biological, Radiological and Nuclear materials. For example, a Chemical, Biological, Radiological and Nuclear Action Plan has been developed which focuses on preventing unauthorized access; having the capacity to detect such dangerous materials; and being able to prepare and respond efficiently to any incidents.
Since the Madrid terrorist attack in March 2004, an EU Counter-Terrorism Coordinator has existed. His principal roles include making policy recommendations and proposing priority areas for action to the Council, as well as facilitating international cooperation, including between the European Union and third countries.
Human rights instruments
Despite its close connection with the Council of Europe, the EU has its own system for the protection of human rights. Its primary human rights instrument is the EU Charter of Fundamental Rights (adopted 7 December 2000). The Charter is a clear and strong statement of EU citizens' rights, and is underpinned by the values of human dignity, freedom, democracy, equality, the rule of law and respect for human rights. Its text is consistent with ECHR obligations which all EU Member States have ratified. Binding upon EU institutions and Member States since 2009, the effect of the Charter is that EU laws, decisions and action are only lawful if they are consistent with the Charter's stated values and requirements.
In 2012, the EU Strategic Framework and Action Plan on Human Rights and Democracy (2015-2020) was adopted in response to concerns that modern information and communication technologies have further enhanced the coercive power of authoritarian States, thereby putting respect for human rights and democracy at risk. The Framework articulates the organization's intention to increase its "efforts to promote human rights, democracy and the rule of law across all aspects of external action". One of its specific goals is to assist in further embedding human rights protections within the counter-terrorism law, policy and practice of non-member states. In support of its stated objectives, in 2012, the EU appointed its first ever Special Representative for Human Rights, Mr. Stavros Lambrinidis.
Additionally, the EU has adopted many policies on a broad range of human rights issues, including those relevant to counter-terrorism such as promoting the rights of displaced persons; opposing the death penalty, torture and discrimination; defending civil, political, economic, social and cultural rights; and defending the universal and indivisible nature of human rights through full and active partnership with partner countries, international and regional organizations, and groups and associations at all levels of society. The EU also pursues human rights dialogue with over 40 countries and organizations, including the African Union. ( EUEA Human Rights and Democracy).
Key European Union human rights instruments
Enforcement mechanism:Court of Justice of the European Union
The Court of Justice of the European Union (CJEU) is located in Luxembourg. Its primary function is to ensure compliance with EU law and rules on the interpretation and application of the treaties establishing the EU. To that end, it interprets EU law to ensure that it is applied in the same way in all Member States and settles legal disputes between national governments and EU institutions. The most common types of cases that come before the Court are concerned with: interpreting EU law, including within national legal contexts; enforcing the law against a national government for failing to comply with law; annulling EU legal acts if they are believed to violate the organization's treaties or fundamental rights; ensuring the EU takes action; and sanctioning EU institutions where action or inaction of the organization causes harm to any person or company.
Although not established as a human rights protection court per se, the Court has performed this role including in a counter-terrorism context, developing important jurisprudence on a number of issues in the process. One of its most notable cases in this regard was the case of Kadi and Al Barakaat International Foundation v Council (2008, para. 303), in which the Court found that EU regulations implementing Security Council Resolution 1267 (1999) sanctions regime must comply with the requirements of the EU Charter of Fundamental Rights. The Court held that no international agreement, not even one sourced in the Charter of the United Nations, may limit any constitutional guarantees sourced in the founding treaties of the EU. More specifically, it held that certain fundamental principles, upon which the EU is founded, are non-derogable, notably the principles of liberty, democracy, as well as respect for human rights and fundamental freedoms (2008, para. 303). This case challenged some prior common assumptions regarding the automatic supremacy of the Charter of the United Nations, especially Chapter VII Security Council resolutions, over other international instruments and agreements in the event of a normative conflict, due to the effect of article 103 of the Charter.
In September 2010, Hamas brought a case before the General Court of the CJEU, challenging its continued presence on the EU terrorist list. In December 2014, the General Court annulled, citing procedural grounds, the Council's decision to maintain Hamas and the Liberation Tigers of Tamil Ealam ( LTTE v Council of the EU, 2014) on this list against which the Council appealed ( Council of the EU v LTTE, 2017; Council of the EU v Hamas Appeal, 2017). On 26 July 2017, the CJEU held that Hamas should remain on the terrorism list (CJEU, 2017(b)), but in the same judgment, upheld the annulment of the retention on the list of the Liberation Tigers of Tamil Ealam of Sri Lanka. At its foreign affairs meeting on 19 January 2015, the European Council decided to appeal against the judgment of the General Court in the case Council v Hamas. During the appeal process, the effect of the General Court judgement is suspended ( EU Terrorist List).
Significantly too, in the case of Commissaire général aux réfugiés et aux apatrides v Mostafa Lounani (2017), the Court found that an application for asylum can be rejected if the asylum seeker has participated in the activities of a terrorist network. The Court adopted a broad interpretative approach to the concept of "acts contrary to the purposes and principles of the United Nations" specified in the relevant European Council Directive 2004/83/EC of 29 April 2004. It found that the "application of the ground for exclusion of refugee status laid down in the directive cannot be confined to the actual perpetrators of terrorist acts, but can also extend to the persons who engage in activities of recruitment, organisation, transportation or equipment of individuals who travel to a State other than their States of residence or nationality for the purpose of, inter alia, the perpetration, planning or preparation of terrorist acts" (CJEU, 2017(a)).
Organization for Security and Cooperation in Europe
The Organization for Security and Cooperation in Europe (OSCE) is the largest regional security organization with a membership of 57 participating States drawn from across North America, Europe and Asia. It is a forum for political dialogue about shared values on a wide range of security issues and a platform for joint action. It seeks to bridge differences and build trust between States by cooperating on conflict prevention, crisis management and post-conflict rehabilitation issues, including counter-terrorism. As a legal source, all of its decisions are taken by consensus on a politically, but not legally binding basis thought they are politically influential.
A principal objective of the OSCE is to promote a cooperative and coordinated approach to countering terrorism at all levels, including across public, private, governmental, intergovernmental, civil society and media stakeholders.
The OSCE has adopted a number of important Ministerial Council Decisions, such as Decision No.1 on Combating Terrorism (MC(9)DEC/1 (2001)) and its Annex, the Bucharest Plan of Action for Combating Terrorism. Its outputs reaffirm the Organization's foundational values, namely that "measures to conduct this fight must be undertaken with full respect for the rule of law, and in accordance with our obligations under international law, in particular international human rights, refugee and humanitarian law" (OSCE Ministerial Council, 2006). To that end, a central focus of the activities of the OSCE have been on exhorting its participating States to ratify international anti-terrorism conventions, and to implement and enforce them in practice in a rule of law compliant manner.
Its efforts are informed by the OSCE Consolidated Framework for the Fight against Terrorism (OSCE Permanent Council, 2012). Its strategic focus areas include strengthening international criminal justice cooperation, countering violent extremism, preventing and suppressing the financing of terrorism, strengthening national efforts on the non-proliferation of weapons of mass destruction in furtherance of Security Council Resolution 1540 (2004), and protecting human rights and fundamental freedoms in the context of counter-terrorism measures. As with other organizations considered, the OSCE is also engaged in issues relating to the influx of foreign terrorist fighters, notably the need to deny safe haven and to bring them to justice.
The OSCE publishes a number of other influential documents, such as reports, guides and studies, several of which are referred to in subsequent Modules.
Human rights instruments
Since 1983, when the OSCE first became actively engaged in terrorism and counter-terrorism related issues, the human dimension has been of central importance. Thus, the OSCE Charter for European Security, adopted on 19 November at the 1999 Istanbul Summit, declared: "International terrorism, violent extremism, organized crime and drug trafficking represent growing challenges to security ... We are committed to strengthening our protection against these new risks and challenges; strong democratic institutions and the rule of law are the foundation for this protection." In the aftermath of 9/11, subsequent OSCE documents have placed particular importance on the need to respect international law, and in particular, international human rights law, while combating terrorism.