EU Counterterrorism Policy

EU Counterterrorism Policy

…a preponderance of convincing evidence to support a provocative argument that the EU has not lived up to its commitment to protect its citizens. This well-researched and timely book makes an extremely important empirical and theoretical contribution to counter-terrorism policy as well as the politics of EU security cooperation. Lawrence P. Rubin, Georgia Institute of Technology, USA and Associate Editor, Terrorism and Political Violence Everything you need to know and more about the European Union’s role in counterterrorism policy. Any serious scholar, whether student or expert, needs to become familiar with this thought-provoking work. Thanks to the rigour of the analysis, this work should also be read by practitioners in Brussels and the national capitals of the EU member states. Christian Kaunert, University of Salford, UK and Co-editor of Journal of Contemporary European Research

EU Counterterrorism Policy A Paper Tiger?

Oldrich Bures Metropolitan University Prague, Czech Republic

© Oldrich Bures 2011 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Oldrich Bures has asserted his right under the Copyright, Designs and Patents Act, 1988, to be identified as the author of this work. Published by Ashgate Publishing Limited Ashgate Publishing Company Wey Court East Suite 420 Union Road 101 Cherry Street Farnham Burlington Surrey, GU9 7PT VT 05401-4405 England USA www.ashgate.com British Library Cataloguing in Publication Data Bures, Oldrich, 1979EU counterterrorism policy : a paper tiger?. 1. Terrorism--Prevention--Government policy--European Union countries. 2. Terrorism--Prevention--Law and legislation--European Union countries. 3. International relations and terrorism--European Union countries. I. Title 363.3'25156'094-dc22 Library of Congress Cataloging-in-Publication Data Bures, Oldrich, 1979EU counterterrorism policy : a paper tiger? / Oldrich Bures. p. cm. Includes bibliographical references and index. ISBN 978-1-4094-1123-9 (hbk) -- ISBN 978-1-4094-1124-6 (ebook) 1. Terrorism--European Union countries--Prevention. 2. Terrorism--Government policy--European Union countries. 3. Security, International--European Union countries. I. Title. HV6433.E85B87 2011 363.325'17094--dc22 2010048960 ISBN 9781409411239 (hbk) ISBN 9781409411246 (ebk) III

Contents List of Figures and Tables   Acknowledgements   List of Abbreviations  

vii ix xi

1 Introduction  

1

PART 1: Terrorist Threats and the European Union’s Responses 2

Contemporary Terrorist Threats in Europe: Data versus Perceptions  31

3

Historical Evolution of the EU Counterterrorism Policy  

59

PART 2: Key EU Agencies Involved in Counterterrorism 4

Europol’s Counterterrorism Role: A Chicken-Egg Dilemma  

85

5

Eurojust’s Fledgling Counterterrorism Role  

111

6

EU Counterterrorism Coordinator  

137

PART 3: Key EU Legal Instruments Utilized in Counterterrorism 7

European Arrest Warrant: Implications for EU Counterterrorism Efforts  

149

8

EU’s Fight against Terrorist Finances: Internal Shortcomings and Unsuitable External Models  

173

EU Counterterrorism Policy

vi

PART 4: Current Dilemmas and Future Prospects 9

Freedom and/or/versus Security?  

10

Scenarios of Future Developments in EU Counterterrorism Policy  229

11

Concluding Remarks  

Bibliography   Index  

203

245 259 275

List of Figures and Tables Figures 2.1 Two Most Important National Issues and the Role of the EU  

44

3.1 Overall Implementation of the Hague Programme, 2005–2007  

82

4.1

Europol Staffing Numbers, 1994–2008  

91

5.1

Eurojust Terrorism Cases Evolution 2004–2008  

118

8.1

Cumulative Worldwide Amounts of Frozen Terrorist Assets,   2000–2008  

182

11.1 EU Counterterrorism Capacities: Locus, Objectives and Value-Added  

246

Tables 1.1 Profiles of European Islamist Terrorists (September 2001–October 2006) 1.2 Typology of Islamist Recruitment Grounds 2.1 Terrorist Incidents in EU Member States 2.2 EU Citizens’ Perceptions of the Salience of the Terrorist Threat (2003–2009) 2.3 EU Citizens’ Fear of International Terrorism (2001–2002) 2.4 EU Muslim Citizenship and Recognition and Rank of Islam as a Religion  2.5 Muslim Population in EU Member States as Percentage of Total Population 2.6 Growth of Muslim Populations in EU Member States

14 19 33 41 42 47 48 50

5.1

Exchange of Information between Eurojust and Europol in 2004 and 2005

124

7.1

Additional Safeguards in the German Europäisches Haftbefehlsgesetz (2006)

157

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Acknowledgements Some parts of this book develop work that has appeared in the form of journal articles and I would therefore like to thank the editors and anonymous reviewers of these journals for their comments and suggestions. Permission to reprint the relevant passages is gratefully acknowledged at the beginning of the relevant chapters. This book would not have been possible without the constant love and indulgence that I received from my wife Katerina. I would also like to take this opportunity to express my gratitude to several colleagues for their expert advice and enduring support: Javier Argomaniz, Mitchel Belfer, Francesco Giumelli, Florian Geyer, Artur Gruszczak, Christian Kaunert, Michal Klima, Sarah Leonard, George Lopez, Miroslav Mares, and Christoph Meyer. For their valuable research assistance, my sincere thanks go to Tomas Mikulecky, Raimonda Novackova, and Dana Slukova. I am grateful to Ashgate’s anonymous reviewers for their comments on the early drafts of the book and to Ashgate’s editors Kirstin Howgate, Gemma Lowle and Margaret Younger for their patience and professionalism. Special thanks go to the EU officials and national counterterrorism practitioners, who kindly agreed to be interviewed for this book project. The usual disclaimer applies. Finally, I would like to acknowledge financial support of the Czech Science Foundation under the post-doc research grant no. 407/08/P016.

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List of Abbreviations

AFSJ Area of Freedom, Security and Justice AML Anti-money Laundering AWFs Analytical Working Files CBRN Chemical, Biological, Radiological, and Nuclear CEPOL European Police College CFI Court of First Instance (EU) CFSP Common Foreign and Security Policy CIWIN Critical Infrastructure Early Warning Information Network CMS Case Management System (Eurojust) CoE Council of Europe COTER CFSP Working Group on Terrorism CTC Counter-Terrorism Committee (UN) CTF Combating Terrorist Financing CTG Counter-Terrorism Group (Club of Berne) CTTF Counter Terrorism Task Force (Europol) DG JLS Directorate General Justice, Liberty and Security, European Commission DNFPB Designated Non-financial Professional Body EAW European Arrest Warrant EC European Communities ECJ European Court of Justice EJN European Judicial Network ELOs European Liaison Officers (Europol) EOD Network European Explosive Ordnance Disposal Network (EU) EP European Parliament EPC European Political Cooperation EPCTF European Police Chief Task Force EPP European Public Prosecutor ESDP European Security and Defense Policy ESS European Security Strategy ETA Euskadi Ta Askatasuna EU European Union EU CTC EU Counterterrorism Coordinator FATF Financial Action Taskforce FIU Financial Intelligence Unit G-6 Group of Six IGC Intergovernmental Conference IMF International Monetary Fund INTDIV Intelligence Division of European Military Staff

xii

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IRA Irish Republican Army JHA Justice and Home Affairs JIT Joint Investigation Team MLD Money Laundering Directive (EU) MS(s) Member State(s) NPO(s) Non-profit Organization(s) OC Organized Crime OJ Official Journal (EU) OLAF European Anti-Fraud Office PMOI People’s Mujahedeen of Iran (also known as Mujahedin-e Khalq – MEK) PWGT Police Working Group on Terrorism QMV Qualified Majority Voting (EU) RELEX EU’s Working Party of Foreign Relations Counselors SIS Schengen Information System SK Slovakia SitCen/SITCEN Situation Center (EU) STR Suspicious Transaction Report TCM Terrorist Convictions Monitor (Eurojust) TEU Treaty on European Union TESAT Terrorism Situation and Trend Report (Europol) TF Terrorist Financing TREVI Terrorism, Radicalism, Extremism and Political Violence Group TWG Terrorist Working Group (EU JHA Council) UN United Nations UN GA UN General Assembly UN SC UN Security Council UN SCR(s) UN Security Council Resolution(s) US/USA United States of America WMDs Weapons of mass destruction 3/11 March 11, 2004 terrorist attacks in Madrid 7/7 July 7, 2005 terrorist attacks in London 9/11 September 11, 2001 terrorist attacks on the US 9 SR FATF’s 9 Special Recommendations

Chapter 1

Introduction The Treaty on European Union stipulates that one of the key objectives of the European Union (EU) is to provide citizens with a high level of safety within an area of freedom, security and justice. In this volume, I argue that when it comes to the measures taken to combat terrorism following the September 11, 2001 (9/11) attacks in the United States (US), the EU has not lived up to this promise thus far. On paper, the post-9/11 EU counterterrorism policy looks impressive. Already in November 2001, the European Council adopted an Action Plan on Combating Terrorism and agreed on an EU Counterterrorism Strategy in December 2005, following the terrorist attacks in Madrid and London. In December 2003, the European Council also adopted a European Security Strategy, where terrorism heads the list of threats facing the Member States (MS) and which proclaims that concerted European action against terrorism is “indispensable.” Despite the relatively limited competences for fighting terrorism at the supranational EU level, a March 2007 Commission memorandum listed 51 adopted and 33 proposed pieces of legislation as well as 22 communications and 21 reports under the heading of the fight against terrorism. Thus, although “counterterrorism” is not yet a clearly defined area in its broadest and fullest sense, it already spans across a number of other policy areas across all of the EU’s former three pillars. Moreover, many senior EU officials have publicly expressed their conviction that the EU counterterrorism measures have made a difference in the fight against terrorism. According to Max-Peter Ratzel, the former Director of Europol: The abortive London attacks of August 2006 … showed that the concerted EU actions and counterterrorist policies proved to be effective when put to the test. This is [just one example of the] most recent success of EU counterterrorism efforts but a number of other terrorist cells have been dismantled throughout the EU and terrorist plans foiled as a direct result of the concerted EU actions and counterterrorism policies.

 Max-Peter Ratzel, “Europol in the Combat of International Terrorism,” in Understanding and Responding to Terrorism, ed. Huseyin Durmaz et al. (Amsterdam: IOS Press, 2007), 12.



EU Counterterrorism Policy

The first EU Counterterrorism Coordinator Gijs de Vries even argued that the fight against terrorism is changing “the role and functioning of the European Union” insofar as it adopts an increasingly operational role. The following chapters challenge such overly optimistic conclusions. They offer critical analyses of the implementation, utilization and impact of the key legal and institutional innovations that have been adopted since 9/11 to bolster the EU’s nascent counterterrorism capabilities. The former include the adoption of a common definition of terrorism, the introduction of the European Arrest Warrant and a series of legal measures designed to freeze terrorist financial assets. The latter include the strengthening of the counterterrorism mandates and capacities of Europol and Eurojust, as well as the creation of the post of the EU counterterrorism coordinator. The results of these analyses suggest that in many areas, the EU’s counterterrorism policy is more of a paper tiger than it is an effective counterterrorism device. Key legal EU counterterrorism instruments, including the common definition of terrorism, have not been fully and timely implemented at the national level. Some also appear to be refurbished pieces of pre-9/11 anticrime legislation, which raises important normative questions concerning their effectiveness, appropriateness and proportionality, especially due to their potential for undermining the existing standards of civil liberties, democracy, accountability and the rule of law. In the fight against terrorist financing, the EU has adopted external models that do not reflect the contemporary terrorist threats in Europe. In other areas, including the efforts to tackle the so-called “root causes” of terrorism and radicalization, both abroad and in Europe itself, the EU’s role has been limited due to the lack of relevant competences and tools. Similarly, the capabilities of EU agencies in the area of counterterrorism remain rather weak and the EU counterterrorism coordinator does not have any real powers apart from persuasion. Long-standing bilateral and/or non-EU multilateral arrangements are still clearly preferred by EU MS national agencies tasked with counterterrorism and a similar preference can often be traced at the political level. In addition to highlighting the existing weaknesses, shortcomings and negative repercussions of the EU counterterrorism policy, the second goal of this volume was to identify those areas where EU contributions to the fight against terrorism have already offered tangible value-added. Thus, on a positive note, the findings of the legal and institutional analyses also suggest that at least in some aspects and areas, the EU counterterrorism policy is, albeit slowly and inconsistently, becoming a real tiger. Perhaps most importantly, since 2002 the EU possesses a common definition of terrorism. This has allowed for the introduction of several legal instruments, such as the European Arrest Warrant in 2004, which have already produced some impressive results that are gradually changing the   Gijs De Vries, The European Union and the Fight Against Terrorism, Presentation of the EU Counterterrorism Coordinator at the Seminar of the Centre for European Reform. 19.01.2006, , accessed 20.5.2006.

Introduction



opinions of national counterterrorism practitioners concerning the value-added coming from Brussels. Similarly, Europol and Eurojust’s reputation in the area of counterterrorism has gradually risen along with the increases of both the quantity and quality of their case workload in recent years. Finally, the third objective of this volume was to assess the possible scenarios of future developments of the EU counterterrorism policy. While it is important to keep in mind that protecting the state and its citizens from terrorist attacks is a duty and competence of the MS and the EU’s role is not to supplant them, there may be areas where EU-level counterterrorism measures are preferable on efficiency and/or transparency grounds to their national counterparts. It is in these areas where EU legal measures (provided their due implementation by EU MS) and EU agencies (provided their actual utilization by EU MS and the relevant national agencies) can offer genuine value-added in the fight against terrorism. At the same time, however, the EU level may not be the best platform for counterterrorism work in a number of other areas. Several findings of this volume strongly challenge the view that “more” EU action is axiomatically the way forward when it comes to addressing the contemporary terrorist threats. Wherever it is uncertain that an extra layer of operational bodies and/or legal measures at the European level would produce a more efficient response, MS’ continued preference for coordination and enhanced intergovernmentalism over the delegation of powers to the EU is perfectly understandable. Turning the EU’s counterterrorism policy into a real tiger therefore requires a careful assessment of both the comparative advantages and disadvantages of the available legal instruments and institutional structures at all levels. Methodology Several methodological issues complicate attempts to evaluate the contributions of EU agencies and legal instruments in the fight against terrorism. It is important to spell these out in order to both avoid possible misinterpretation of the findings in this volume and to invite others to challenge them by using other methodological approaches. Firstly, everything in this book is based on open, publicly accessible sources of information. All data and information were acquired by means of desk research consisting of qualitative and quantitative analysis of the primary sources (official EU documents and reports) and qualitative analyses of the available secondary sources (books, journal articles and relevant think-tanks reports). The desk research was complemented with phone and personal interviews with 14 senior-level experts and officials, both at the EU and national levels. Almost all officials were willing to be interviewed only on the condition of strict confidentiality. Thus, with the exception of one brave lady who explicitly agreed to being openly identified in this book, the names and other information that could be used to reveal the interviewed officials’ identity were removed from the relevant citation notes. As a consequence, only the general institutional affiliation of the interviewed person and the date of the interview are provided. Where specifically



EU Counterterrorism Policy

requested, even the institutional affiliation is concealed and the relevant citations are attributed to “an anonymous EU official.” Secondly, the standard of comparison clearly matters when it comes to evaluating the value-added of any type of policy. Some of the criticisms made in the following chapters can be, and many indeed have been, raised in the analyses of counterterrorism policies of states as well as other international organizations. Some experts have therefore argued that “critics of antiterrorist efforts should remain realistic … and bear in mind that terrorists enjoy crucial advantages. They chose the targets, means and dates of their attacks. Moreover, … [g]overnments have to be lucky all the time and the terrorist need to be lucky only once.” More specifically in the EU context, some have argued that we should keep in mind that: There is no other example in the world of a group of countries agreeing on a comprehensive common [counterterrorism] strategy and action plan similar to that of the EU. As security – both in its internal and external dimension – remains arguably the area in which the European integration process has made least progress, this must be regarded as a major achievement in itself.

These points are indeed reasonable and as alluded above, the goal of this volume is to identify both the key shortcomings as well as the potential for genuine value-added of the key EU counterterrorism instruments. The latter goal is, however, complicated by a remarkable lack of analyses of the impact of adopted counterterrorism measures at all levels. As one analyst remarked, “it remains largely matter of faith that anti-crime and anti-terror efforts have some impact beyond the immediate operational outcomes.” Despite the billions spent annually on counterterrorism, we still lack an adequate performance evaluation baseline to figure out what “works” and why. To some extent, this is due to the methodological difficulties of finding the right proxy indicators that would complement the readily available, yet inherently limited quantitative criteria (such as the number of arrests, requests for assistance or amounts of frozen terrorist money) that do not shed much light on the actual effects of counterterrorism measures on specific cultures, groups   Doron Zimmermann and Andreas Wenger (eds.), How States Fight Terrorism: Policy Dynamics in the West (Boulder, CO: Lynne Rienner Publishers, Inc., 2007); David Cortright and George A. Lopez (eds.), Uniting Against Terror: Cooperative Nonmilitary Responses to the Global Terrorist Threat (Boston, MA: MIT Press, 2007).   Hanspeter Neuhold, “International Terrorism: Definitions, Challenges and Responses,” in International Terrorism: A European Response to a Global Threat? ed. Dieter Mahncke and Jörg Monar (Brussels: Peter Lang, 2006), 42.   Jörg Monar, “Common Threat and Common Response? The European Union’s Counter-Terrorism Strategy and Its Problems,” Government and Opposition 42, no. 3 (2007): 293.  Michael Levi, “Lessons for Countering Terrorist Financing from the War on Serious and Organized Crime,” in Countering the Financing of Terrorism, ed. Thomas J. Biersteker and Sue E. Eckert (London: Routledge, 2007), 264.

Introduction



and individuals – even the most efficient counterterrorism measures increasing the overall security may be problematic due to their impact on other important values such as liberty and justice (see Chapter 9). Thirdly, it is important to note that with the exception of the EU’s counterterrorism coordinator, none of the EU agencies discussed in this volume has a counterterrorism-only mandate. Similarly, many of the legal instruments utilized in the fight against terrorism are general anti-crime measures but their usefulness in combating other types of crime is not discussed in this volume. Some scholars have therefore argued that the EU is increasingly taking an “all hazards” approach to dealing with contemporary security threats, including terrorism. Thus, according Mark Rhinard, Arjen Boin and Magnus Ekengren, it is important to keep in mind that there are actually three levels of abstraction of EU’s counterterrorism capacities: 1. capacities explicitly engineered toward the fight against terrorism 2. capacities directed toward managing complex threats and natural disasters in general 3. capacities found in EU institutions that may help national agencies, of any type, respond to adverse events. While this is indeed a useful categorization, it is based on a logic that significantly complicates all scholarly attempts to evaluate the value-added by the EU only in the area of counterterrorism: “It is hard to predict how the EU can and will employ the tools explicitly designed for counterterrorism purposes, it is impossible to foresee if and how the Union will employ its generic tools that were originally designed for other purposes.” Taken all of the aforementioned caveats and reservations into account, I decided to build on the criteria that have been already used and tested elsewhere in the available security studies literature. When it comes to evaluating the value-added of EU’s legal counterterrorism instruments, I draw on the existing scholarship on financial sanctions, which suggests that it is useful to differentiate between four aspects of policy implementation of international initiatives when searching for evidence of change at the national level: 1. establishment of a legal framework 2. creation or strengthening of an administrative infrastructure

  Mark Rhinard, Arjen Boin, and Magnus Ekengren, “Managing Terrorism: Institutional Capacities and Counter-Terrorism Policy in the EU,” in The European Union and Terrorism, ed. David Spence (London: John Harper Publishing, 2007), 88–104.  Ibid., 99.



EU Counterterrorism Policy

3. introduction and use of a variety of different regulatory compliance measures 4. evidence of enforcement. In the case of the EU, this requires the analyses of a) the key provisions of EU’s counterterrorism measures; b) their transposition into national legal frameworks; and c) their actual utilization by relevant national authorities. When it comes to evaluating the value-added of the EU agencies involved in the fight against terrorism, I draw on the intelligence studies literature, according to which a supranational agency adds value if: 1. it produces something that can, is or will not be produced at the national level; 2. the responsibility for a certain form of intelligence product is transferred to the European level, i.e., if the European unit can relieve national authorities.10 These two sets of criteria clearly set a relatively high bar for evaluating the valueadded of the EU in the fight against terrorism. The use of further, less demanding criteria would also be possible and several such criteria have already been suggested. Perhaps most importantly, it is often argued that the EU provides ample added value by “reinforcing national capacities, encouragement of European cooperation, e.g. through exchange of best practices, the development of collective capacity and the encouragement of international partnership.”11 These supportive functions of the EU are indeed important and they are clearly apparent from the analysis of the EU counterterrorism policy in the following chapters. The key aim of this volume, however, is to identify “genuine” EU value-added in order to clarify where EU-level counterterrorism measures are preferable on efficiency and/or transparency grounds to those adopted at the local, national and/or global level (and vice-versa). The answer to this question is in turn closely linked to two additional debates that are only partly methodological in their nature – the first concerns the very definition of terrorism and the second is about the so-called “root causes” of this security threat.

  Thomas J. Biersteker, Sue E. Eckert, and Peter Romaniuk, “International Initiatives to Combat the Financing of Terrorism,” in Countering the Financing of Terrorism, ed. Thomas J. Biersteker and Sue E. Eckert (London: Routledge, 2007), 243. 10  Björn Müller-Wille, For Our Eyes Only? Shaping an Intelligence Community Within the EU (Paris: Institute for Security Studies, January 2004), Occasional Paper No. 50, 33. 11 Monica Den Boer, “Fusing the Fragments. Challenges for EU Internal Security Governance on Terrorism,” in International Terrorism. A European Response to a Global Threat? ed. Dieter Mahncke and Jörg Monar (Brussels: Peter Lang, 2006), 83–111, 98.

Introduction



The Definitional Debate The definition of term “terrorism” is still widely contested. To avoid the longstanding and seemingly never-ending dispute about the definition of terrorism,12 I simply follow the common EU definition of terrorism that was elaborated in a binding Council Framework Decision in June 2002.13 The decision approximates the MS’ definitions of terrorism by specifically delineating acts of terrorism, as well as of terrorist groups. Article 1 sets out a three-part definition of terrorism, consisting of the context of an action, the aim of the action and the specific acts being committed. First, it stipulates there must be “intentional acts … which, given their nature or context, may seriously damage a country or an international organization.” Second, the acts must be committed with the aim of either “seriously intimidating a population” or “unduly compelling a Government or international organization” to act or of fail to act, or “seriously destabilizing or destroying the fundamental political, constitutional, economic or social structures of a country or an international organization.” Third, there is a list of eight types of specific acts: 1. 2. 3. 4.

5. 6. 7. 8.

attacks upon a person’s life which may cause death attacks upon the physical integrity of a person kidnapping or hostage taking causing extensive destruction to a government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property likely to endanger human life or result in major economic loss seizure of aircraft, ships or other means of public or goods transport manufacture, possession, acquisition, transport, supply or use of weapons, explosives or of nuclear, biological or chemical weapons, as well as research into, and development of, biological and chemical weapons release of dangerous substances, or causing fires, floods or explosions the effect of which is to endanger human life interfering with or disrupting the supply of water, power or any other fundamental natural resource the effect of which is to endanger human life.

Threatening to commit any of the above acts is also included and, according to Article 2.1, the EU MS must also punish the intentional acts of directing a terrorist group or participating in the activities of a terrorist group.14 12  Alex Schmid, “Terrorism – The Definitional Problem,” Case Western Reserve Journal of International Law 36, no. 2 (2004): 375–419. 13  Council of the European Union. Council Framework Decision on Combating Terrorism, 2002/475/JHA, OJ L 164. 14 Includes supplying information, material resources or funding.



EU Counterterrorism Policy

The Framework Decision also contains a definition of a terrorist group (“a structured group of more than two persons, established over a period of time and acting in concert to commit terrorist offences”) and specifies offences linked with terrorist activities as aggravated theft, extortion or the drawing up of false administrative documents with a view to committing one of the aforementioned offences. Provisions must also be provided in national legislation in EU MS for the liability and punishment of legal persons with regard to terrorism offences. These, however, are still defined differently by MS, in part because the definition of terrorist acts provided in Article 1 of the decision includes elements, such as the impact of the act concerned, which are open to interpretation. Thus, for example, “Italy does not consider terrorism a crime but rather an objective that demands additional punishment” while “terrorism is designated as a crime in the UK.”15 This has led some experts to argue that the EU’s definition of terrorism does not really focus on what terrorism is, but rather on what terrorists do.16 Den Boer has even stated that the Framework Decision “does not lay down a single, homogenous definition of terrorism but defines terrorism as a set of constituent elements that resembles the EU ‘definition’ of organized crime.”17 In 2008, the original 2002 Framework Decision was amended by Council Framework Decision 2008/919/JHA, which expanded the scope of the common EU definition of terrorism by including three new offences related to the prevention of terrorism: 1. public provocation to commit a terrorist offence, defined as the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of one of the offences listed in the 2002 Framework Decision, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed; 2. recruitment for terrorism, defined as soliciting another person to commit one of the offences listed in the 2002 Framework Decision; 3. training for terrorism, defined as providing instruction in the making or use of explosives, firearms or other weapons or noxious or hazardous substances, or in other specific methods or techniques, for the purpose of

15 Loretta Napoleoni, “Terrorism Financing in Europe,” in Terrorism Financing and State Responses: A Comparative Perspective, ed. Jeanne K. Giraldo and Harold A. Trinkunas (Stanford, CA: Stanford University Press, 2007), 180. 16 David Spence, “Introduction. International Terrorism-the Quest for a Coherent EU Response,” in The European Union and Terrorism, ed. David Spence (London: John Harper Publishing, 2007), 6. 17 Den Boer, “Fusing the Fragments,” 93.

Introduction



committing one of the offences listed in the 2002 Framework Decision, knowing that the skills provided are intended to be used for this purpose.18 In the elaboration of these new offences, the Council drew inspiration from the 2005 Council of Europe Convention on the Prevention of Terrorism. In fact, some clauses of the 2008 Framework Decision are verbatim copies from this convention, whose integration in the EU’s legal framework has been justified on the ground that it would “trigger” the implementation of cooperation mechanisms under EU law, in particular as regards the exchange of information on terrorist offences between MS and the transfer of such information to Europol and Eurojust.19 It should also, however, be noted that the apparent shift to prevention in the newly added terrorist offences has been strongly criticized for compromising several basic civic liberties (see Chapter 9). Overall, the aforementioned shortcomings notwithstanding, the Council’s definition of terrorist offenses represents a crucial prerequisite for enhanced counterterrorism cooperation at the EU level. A number of subsequent Common Positions and Decisions, including those on the freezing of terrorists’ assets, were adopted on the basis of this definition (see Chapters 3, 7 and 8). Furthermore, given the numerous international and European obligations to terrorism, including under the relevant UN Security Council resolutions (see Chapter 8), a common EU definition of terrorism provides a clear value-added. It is also notable that for the first, and thus far the only, time, terrorist offences were defined in a binding legal instrument drafted within a multi-lateral forum. As such, one may actually attempt to analyze EU counterterrorism efforts because unlike in the rest of the world, there is nowadays a shared, if minimal, definition of the terrorism to begin with. Root Causes of Terrorism There is a vast body of literature devoted to the search for the so-called root causes of terrorism. Arguments range from the role of poverty, political leaning, perceptions of grievance and threat, rise of modernity, aggressive imposition of Western culture and lack of democracy, to a search for identity, personality factors and religion, without any single factor providing a fully satisfactory answer to the question of why terrorism occurs.20 There is also little agreement about which 18  Council of the European Union. Framework Decision 2008/919/JHA amending the 2002 Framework Decision on Combating Terrorism, OJ L 330/21. 19  Valsamis Mitsilegas, “The Third Wave of Third Pillar Law: Which Direction for EU Criminal Justice?” European Law Review 34, no. 4 (2009): 525. 20 See Tore Bjorgo, Root Causes of Terrorism: Myths, Realities, and Ways (New York and London: Routledge, 2005); Andreas Feldman and Maiju Perala, “Reassessing the Causes of Nongovernmental Terrorism in Latin America,” Latin American Politics & Society 42, no. 2 (Summer 2004): 101–32; Alan B. Krueger and Jitka Maleckova, “Education,

10

EU Counterterrorism Policy

explanations are more useful than others – many plausible causal variables have been identified but the evidence provided for their support is still inconclusive. In the absence of an agreement on the root causes of terrorism in general and its post9/11 Islamist form in particular, much attention in Europe has recently been paid to the problem of radicalization, e.g., what makes an individual susceptible to radical views to the extent that s/he eventually becomes a terrorist. Moreover, “within European policy circles the term root causes has become politically incorrect, since it gives the impression of condoning terrorism as a legitimate tool for redressing grievances. Now the wording ‘conditions conducive to the spread of terrorism’ is preferred.”21 Thus, for a number of reasons which are further elaborated in Chapter 2, it can be argued that “since mid-2004, European counter-terrorism thinking has rapidly converged around ‘radicalization’ as the single most important ‘root cause’ of terrorism within Europe.”22 As with the root causes of terrorism, the study of radicalization is complicated by a number of factors. To begin with, radicalization leading to acts of terrorism is a non-linear and multi-stage process of varying duration. Usually, there are multiple pathways to the process and no single root cause for it. Secondly, the study of radicalization factors and processes is relatively nascent. As one senior EU official complained, fighting terrorism “is really difficult because so little has been known until recently about what turns somebody into a terrorist. There is now a mounting amount of information available, partly because there have been enough terrorists so we can do the longitudinal studies that we need to do to find out what are really the factors.”23 As discussed below, a number of contributing factors have indeed been singled out as facilitators of radicalization, but their exact relevance and importance are still in doubt because of the low number of studies based on factual data rather than anecdotal evidence. Thirdly, the available research reveals that radicalization is a social phenomenon and does not normally take place in isolation. Thus, the social context within which radicalization takes place should always be kept in mind and, as discussed in Chapter 2, the national contexts and experiences with terrorism differ substantially across Europe. This in turn limits the usefulness of lessons identified from the few available case studies of radicalization processes in particular EU MS. Taking into account these caveats, the following paragraphs offer a summary of relevant trends, manifestations and Poverty and Terrorism: Is There a Causal Connection?” Journal of Economic Perspectives 17, no. 4 (Fall 2003): 119–144; Louise Richardson, What Terrorists Want: Understanding the Terrorist Threat (London: John Murray, 2006); Jeffrey Ian Ross, “Structural Causes of Oppositional Political Terrorism: Towards a Causal Model,” Journal of Peace Research 30, no. 3 (1993): 317–29. 21  Rik Coolsaet and Tanguy Struye de Swielande, “Epilogue: Zeitgiest and (De-)Radicalisation,” in Jihadi Terrorism and the Radicalization Challenge in Europe, ed. Rik Coolsaet (Aldershot: Ashgate Publishing Company, 2008), 159. 22 Ibid. 23  Interview with an anonymous EU official, October 2008.

Introduction

11

dynamics of radicalization processes potentially leading to acts of terrorism, with a particular focus on Europe and Islamist terrorism, which for right or wrong, is nowadays perceived at the most important terrorist threat to the EU, its MS and their citizens (see Chapter 2). When looking at the available literature as a whole, a number of specific contributing factors have been singled out as facilitators of radicalization and/or motivations for terrorism (see below), but there are only few data-based studies that attempted to go beyond the level of a particular national experience. In the European context, the notable exception is Edwin Bakker’s analysis of 31 confirmed cases of Islamist terrorism in Europe in the time period from September 2001 to October 2006, where he attempted to identify the key social, psychological and situational variables from the biographies of 242 persons involved in these terrorist attacks. His study followed the methodology earlier developed by Marc Sageman, who examined the biographies of 172 jihadist terrorists from all over the world.24 Specifically, Bakker investigated the relevance of 17 key variables that Sageman divided in three general categories: social background, psychological make-up and circumstances of joining the jihad. As indicated in Table 1.1, the results of Bakker’s study suggest that “there is no standard jihadi terrorist in Europe,”25 although a number of common traits of European Islamist terrorists can be traced: A clear majority of them are from Arab countries and have root especially in North Africa (on the European continent) and Pakistan (in the case of UK). Many of them of these first, second, or third generation immigrants also have in common that they come from the lower strata of society. A strikingly high number of persons had a criminal record, at least a quarter of the sample. Finally it should be noted that almost all jihadi terrorists in Europe are male, and that many of them relate to each other through kinship or friendship.26

More interestingly, however, a comparison of the sample of the European group of Islamist terrorists with that of Sageman’s 172 members of global Islamist networks indicates that “European jihadi terrorists are very different from Sageman’s global Salafi terrorists, with the exception of the important role of social affiliation in joining the jihad.” Specifically, the following differences are rather striking:

24 Marc Sageman, Understanding Terror Networks (Philadelphia: University of Pennsylvania Press, 2004). 25  Edwin Bakker, “Jihadi Terrorist in Europe and Global Salafi Jihadist,” in Jihadi Terrorism and the Radicalization Challenge in Europe, ed. Rik Coolsaet (Aldershot: Ashgate Publishing Company, 2008), 78. 26 Ibid., 79.

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• •

• •

•

•

While in the global sample, the predominant occupational category is that of skilled occupations and professionals, this is not the case in the European sample where the unskilled and semi-skilled occupations clearly prevail. While most of the men in the global sample were married and most of them had children, Sageman’s image of “married mujahedeen” does not apply to the European sample, where a number of man and women were either single or divorced. A much higher percentage of persons in the European sample suffered from mental illness or psychological disorder – 5 percent compared to 1 percent. In contrast to the global sample where Sageman found many examples of full-time terrorists, in the European sample most people had a “normal life” and their participation in terrorist activities seemed to be a “part time activity.” While in the global sample recruitment was high amongst men who were “cut off” from their original roots and who often joined jihad in a foreign country, far from their families and friends, in the European sample more than 80 percent of persons were recruited in their country of residence. Most of them were born and raised in EU MS and Bakker therefore explicitly notes that “the term ‘home-grown’ is regarded as very appropriate to the European group of jihadists.” Also importantly, in case of European Islamist terrorists, Bakker noted that the term “self-recruitment” seems more appropriate than “recruitment” because most “have joined the jihad by a process of radicalization and recruitment with very limited or no outside interference.” In contrast, Sageman’s study highlights the importance of a formal acceptance of potential candidates by global Salafi networks, such as Al-Qaeda, at the global level.27

It is, nevertheless, worth stressing that notwithstanding the differences in many of their specific results, both Sageman’s and Bakker’s, as well as the few other crosscountry28 and country-level29 data-based analyses confirm, that not all individuals who are radicalized up to the point of committing terrorist attacks are necessarily always poor, desperate criminals or uneducated religious fanatics. Instead, as 27 Ibid., 79–83. 28 See, for, example Robert A. Pape, Dying to Win: The Strategic Logic of Suicide Terrorism (New York: Random House, 2005). 29 See for example Javier Jordan, Fernando M. Manas, and Nicola Horsburgh, “Strengths and Weaknesses of Grassroot Jihadist Networks: The Madrid Bombings,” Studies in Conflict & Terrorism 31, no. 12 (January 2008): 17–39; Rudolph Peters, “Dutch Extremist Islamism: Van Gogh’s Murderer and His Ideas,” in Jihadi Terrorism and the Radicalization Challenge in Europe, ed. Rik Coolsaet (Aldershot: Ashgate Publishing Company, 2008), 115–128.

Introduction

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Jocelyne Cesari put it, Islamist terrorists in Europe are usually “ordinary people in ordinary places.”30 The prevailing, mostly anecdotal evidence-based terrorism and counterterrorism literature points to several other factors that may be facilitating Islamist radicalization in Europe. According to some scholars, they can be divided into the internal and external categories.31 Others have argued for a local versus global division,32 but the final lists of specific factors are quite similar under both approaches. There is, however, no consensus when it comes to explaining the specific link(s) between the internal/local and external/global factors of contemporary radicalization processes. This was also highlighted in difference of results of the aforementioned data-based analyses, which suggest that global-level facilitators of radicalization are not necessarily pertinent to the “local” European level: Put otherwise, even assuming that local causes are the main driving forces behind jihadi terrorism, what explains the fact Islamist radicalization today occurs on all continents? On this there is no consensus among experts… . To some, Islamic and Islamist radicalization is essentially a specific, Muslim-related question. Even while acknowledging that exogenous factors most certainly influence this radicalization process, its driving forces are considered to be specifically located within the Muslim world and communities. [Others] consider the Islamic and Islamist radicalization processes to be part of a worldwide phenomenon in which structural features at the global level induce radicalization within all religious, ethnic and cultural communities.33

The literature review presented in this chapter of course cannot provide a definitive answer to this puzzle. It is, however, important to present at least the available lists of internal/local and external/global factors in order to highlight where the EU can, and where it cannot, be of help when it comes to addressing the radicalization process in its MS.

30  Jocelyne Cesari, “Muslims in Europe and the Risk of Radicalism,” in Jihadi Terrorism and the Radicalization Challenge in Europe, ed. Rik Coolsaet (Aldershot: Ashgate Publishing Company, 2008), 97. 31 Mirjam Dittrich, “Radicalisation and Recruitment: The EU Response,” in The European Union and Terrorism, ed. David Spence (London: John Harper Publishing, 2007), 54–70. 32  Coolsaet and de Swielande, “Epilogue,” 158. 33 Ibid. For a different view on the existing scholarship on Islamist radicalization, see Axel Dyvre and Selma Belaala, Les Facteurs de Création Ou de Modification Des Processus de Radicalisation Violente, Chez les Jeunes en Particulier. Compagnie Européenne D’Intelligence Stratégique, 2008. , 5. Accessed 18.5.2010.

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Table 1.1 Profiles of European Islamist Terrorists (September 2001–October 2006) Social Background Country of residence (N=219)1 Nationality (N=277)2 Country of the family of origin (N=215)3 Socio-economic status (N=72)4 Education (N=42)5 Faith as youth (N=50) Occupation (N=103) Family status (N=66) Previous criminal record (N=242)

The United Kingdom 62, Spain 58, France 36, the Netherlands 15, Belgium 13, Germany 8, Italy 8, Denmark 6, Afghanistan 3, Lebanon 3 Morocco 59, Algeria 55, the United Kingdom 46, France 15, Pakistan 15, the Netherlands 10, Belgium 8, Spain 8, Lebanon 6, Denmark 5 Algeria 64, Morocco 64, Pakistan 24, Lebanon 7, Ethiopia 5, France 5, “Palestine” 6, Tunisia 5, Syria 4, UK 4 Upper-class 3, middle-class 30, lower-class 39 42 secondary, 15 college or university 14 converts (13 originally Christian, 1 Hindu), 11 raised in a religious family, 25 not a particularly religious childhood 34 unskilled workers, 19 semi-skilled occupations, 12 highly-skilled, 12 entrepreneurs, 17 students 39 married or engaged, 8 divorced, 22 single; 25 had children at the time of arrest 58 had a criminal record while they were engaged in terrorist activities; 6 records were linked to previous terrorist activities whilemost records related to illegal passion of arms.

Circumstances of Joining the Jihad Average age (N=242)

Gender (N=242) Place of recruitment (N=70) Faith (N=61) Employment at the time of arrest (N=76) Relative deprivation (N=242) Friendship (N=242) Kinship (N=242)

27.3 years. Youngest was 16, oldest was 57 at the time of arrest. The overall statistical distribution was very spread out, with standard deviation over 7. Since 2004, the average age had been decreasing.6 237 male, 5 female The United Kingdom 26, Spain 15, the Netherlands 13, France 7, Germany 6, Denmark 6, Arab countries 5, Afghanistan 3, Bosnia 2 In 58 cases, faith increased in the months before recruitment.7 47 persons had full-time employment and 15 persons had part-time employment. 14 persons were unemployed.8 Not enough information available. In 23 cases there was some evidence of a situation of relative deprivation. 43 cases in which persons were friends at the time of their joining of terrorism. 50 persons were related through kinship.

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Psychological Makeup Mental illness (N=242) Terrorist personality (N=242) Discipleship (N=242) Worship (N=242)

11 persons No information available No evidence found. Only few persons had possible foreign connections and links with global terrorist networks. No information available

Notes: 1N indicates the total number of persons on which information in the given category was available. Overall, the bibliographies of 242 Islamist terrorists were analyzed. 2Includes double counts, as 56 persons had more than one nationality. 3Includes double counts, as four persons are of mixed marriage. 4Given the immigrant background of the families or origin, the European data may simply be a reflection of the general socio-economic character of European immigrant communities originating from Muslim countries. 5From the other persons on which no information was available, 18 were under 20 years of age when arrested, so they simply could not have finished university, college or even secondary education. 6Since March 2004, Islamist terrorism in Europe involved more persons under 25, including several teenagers. For example, the average age of those behind the Madrid bombings was over 30, whereas those behind the London bombings were on average just over 20. 7The would-be Islamist terrorists participated in courses on the Quran (at home or abroad), and/or were vigorously debating Islam on the Internet, and/or tried to convert acquaintances or colleagues and/or changed liberal mosques for more orthodox or extremist ones. 8This translates into 15 percent, which was higher than the overall EU average unemployment rate at the time (8.2 percent), but lower than the EU average unemployment rate for the age group under 25 years (17.7 percent), into which a clear majority of the sample of Islamist terrorist belonged. Source: All data comes from Edwin Bakker, “Jihadi Terrorist in Europe and Global Salafi Jihadist,” in Jihadi Terrorism and the Radicalization Challenge in Europe, ed. Rik Coolsaet (Aldershot: Ashgate Publishing, 2008), 70–84. The majority of the variables and the three general categories come from Marc Sageman, Understanding Terror Networks (Philadelphia: University of Pennsylvania Press, 2004). A few new variables were added in order to make use of all Bakker’s data.

Virtually all existing studies of radicalization focused at the external/global factors emphasize the wars in Iraq and Afghanistan, and the continuing IsraeliPalestinian conflict, arguing that they have had a strong impact on the thinking of young Muslims in Europe. On the same note, it has been argued that international events such as the Iranian Revolution of 1979, the Salman Rushdie affair after 1989, the rise of the Taliban in the 1990s or the war in Lebanon in 2006, along with decades-old separatist longings in a number of countries with large Muslim minorities (such as Chechnya or Thailand), and long term neglect of whole communities (such as the Bedouin in the Sinai) have influenced perceptions of Islam and European Muslim communities in Europe to the extent that each new

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conflict between the West and the Muslim world fuels radical activities.34 More generally speaking, other studies have singled out the following sets of external factors which allegedly influence domestic sources and symptoms of radicalization in Europe: failing, weak and rogue states;35 unresolved conflict, social upheaval, economic stagnation and high unemployment in Islamic countries;36 globalization and social-economic factors, alienation, propagation of an extremist worldview, and systems of education;37 proliferation of weapons of mass destruction (WMDs), poverty, abuse of human rights, environmental degradation, international crime and irrational fundamentalism;38 global inequity and global malaise due to worldwide religious revival and rise of identity politics, leaving no room for tolerance and middle ground;39 the rise of modernity, the aggressive imposition of Western culture, the lack of democracy and access in the Middle East.40 According to some scholars, however, it would be misguided to believe that solving the aforementioned conflicts and problems would lead to the end of the militant Islamist movement in Europe. Jason Burke, for example, argued that Islamist militants feel that the umma41 is under attack and Israel is merely the West’s most obvious outpost. Thus, even if the Jewish state disappeared, the Islamist would still fight in Chechnya, Kashmir, Egypt, Uzbekistan, Indonesia and Algeria. Burke’s view would therefore suggest that the Islamist agenda is typically determined by local grievances, often with lengthy histories.42 A similar point was made by Olivier Roy, who criticized the popular European perception of Islamist terrorism “of commandos coming from the Middle East to attack the West in reaction to the conflicts that [in]flame the region.” In reality, according to Roy, “the map of recruitment of al-Qaeda does not correspond in any way to the crisis zone of the Middle East. When Mohammed Bouyeri killed Theo van Gogh 34  Dittrich, “Radicalisation and Recruitment,” 63; Coolsaet and de Swielande, “Epilogue,” 168; Alain Grignard, “The Islamist Networks in Belgium: Between Nationalism and Globalisation,” in Jihadi Terrorism and the Radicalization Challenge in Europe, ed. Rik Coolsaet (Aldershot: Ashgate Publishing Company, 2008), 91–92. 35  Karin von Hippel, “The Roots of Terrorism: Probing the Myths,” Political Quarterly 73, no. 1 (2002): 25–39. 36 Spence, “Introduction,” 25. 37 Den Boer, “Fusing the Fragments,” 97. 38 David Spence, “Conclusion: The Continuing Quest for Coherence: Sovereignty, Human Rights and EU Coordination,” in The European Union and Terrorism, ed. David Spence (London: John Harper Publishing, 2007), 169. 39  Coolsaet and de Swielande, “Epilogue,” 161–164. 40  Peter R. Neumann and Rogers Brook, Recruitment and Mobilisation for the Islamist Militant Movement in Europe. King’s College London, December 2007, , 14. Accessed 18.5.2010. 41 Denotation for the community of all Muslims worldwide. 42  Jason Burke, “Think Again: Al Qaeda,” Foreign Policy 142 (May/June 2004): 18–26.

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in Amsterdam, the message he left did not mention the presence of Dutch troops in Afghanistan or Iraq. It mentioned only the ‘blasphemy’ committed by van Gogh towards Islam.”43 Nevertheless, in line with the aforementioned research by Sageman, Roy does acknowledge the importance of the shared experiences and socialization in Afghanistan and Iraq, which have provided both a training ground and a magnet for Islamists terrorists.44 Another view is that Islamist radicalization in Europe is just one manifestation of a worldwide phenomenon. According to David C. Rappoport, for example, countries all over the world are now facing a “fourth wave” of modern insurgent terrorism that can be distinguished from previous forms of transnational Muslim fundamentalism in terms of its goals and its territorial scope.45 Unlike the national state-formation terrorism with transnational character of the Palestinian Fatah, the shared ideology of “fourth wave” terrorists is global jihad against infidels, which has as its long-term goal the political unification of “the Muslim nation” by reestablishing the caliphate, “stretching from extreme west of the Mediterranean basin to south-east Asia.”46 More immediately, according to Gunaratna, the inspiration is the radicalization and mobilization of Muslims worldwide,47 which provides the basis for what Roy calls “globalized Islam” – militant Islamist resentment at Western dominance and anti-imperialism exalted by revivalism, which is truly global and “post-cultural” as it is not class-, ethno-, culturally- or geographically bound.48 Alternatively, Rik Coolsaet and Tanguy Struye de Swielande pointed out that although “Osama bin Laden succeeded in plugging into existing insurgencies, rebellions, local brands of terrorism, disenchanted youngsters and stitching them together into a shared world view of a worldwide oppressed virtual Ummah,” his success in doing so was “less depending upon the intrinsic strengths of his terrorist 43 Olivier Roy, “Al-Qaeda: A True Global Movement,” in Jihadi Terrorism and the Radicalization Challenge in Europe, ed. Rik Coolsaet (Aldershot: Ashgate Publishing Company, 2008), 109, 111. 44 Ibid.,112. For a similar argument, see Martha Crenshaw, “‘New’ Vs. ‘Old’ Terrorism: A Critical Appraisal,” in Jihadi Terrorism and the Radicalization Challenge in Europe, ed. Rik Coolsaet (Aldershot: Ashgate Publishing Company, 2008), 34. 45 David C. Rapoport, “The Four Waves of Modern Terrorism,” in Attacking Terrorism. Elements of a Grand Strategy, ed. Audrey Kurth Cronin and James M. Ludes (Washington, D.C.: Georgetown University Press, 2004). The previous three waves of terrorism were driven by anarchism, anti-colonialism and “New Left ideology,” respectively. 46  Fernando Reinares, “Conceptualizing International Terrorism,” Real Instituto Elcano, 1.9.2005. , accessed 20.5.2006. 47 Rohan Gunaratna, cited in Geoffrey Edwards and Christoph O. Meyer, “Introduction: Charting a Contested Transformation,” Journal of Common Market Studies 46, no. 1 (January 2008): 5. 48 Roy, “Al-Qaeda: A True Global Movement,” 110–112. Olivier Roy, “‘EuroMuslims’ in Context,” The NYU Review of Law & Security, Special Issue (Summer 2005): 20–21.

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network, than on today’s global environment that proved to be very conductive [sic] to radicalization, due to its twin characteristics of widespread unease and feelings of inequity.”49 This in turn highlights the importance of specific local/ internal factors that are discussed below. The most frequently cited internal factors contributing to Islamist radicalization in Europe are the Internet, mosques and prisons. According to some studies, the list is actually much longer (see Table 1.2) but even when it comes to the alleged top three places of radicalization in Europe, there is no consensus about the specifics. Dittrich, for example, believes that the Internet “plays a key role in the radicalization process and has become one of the most important tools for Al-Qaida to spread its message recruit young Muslims for the global jihad. It has created a sense of belonging to a global, virtual umma.”50 She points out that the number of extremist websites has increased from 12 to 4,500 over eight years from 1998 to 200651 and one can suspect many new websites have emerged since. Their content ranges from videos and photographs of terror attacks and kidnappings, guidelines on how to build and use bombs and information on where to buy explosives, to online handbooks on Al-Qaeda’s strategies. Moreover, a study written by a team of experts from the Kings College for the European Commission in 2007 emphasized the importance of the Internet for Islamist militant recruitment, “either in support of ‘real-world’ recruitment or in entirely new forms of militant activism described as ‘virtual self-recruitment.’” The study has also predicted that “given the constraints now faced by Islamist militants in the ‘open’ environment, the significance of the Internet as a ‘virtual’ recruitment place will grow, with new forms of Islamist militant activism becoming more important.”52 In contrast a 2008 study by the British Change Institute, which was also carried out for the European Commission, concluded the following: While there are claims made that the Internet may contribute to radicalisation, including self-radicalisation, the data collected in this study, along with other studies, leads us to conclude that this is likely to be secondary to face-to-face interaction in real settings. Our work indicates that the predominant role of the web for violent radicals is as a distribution mechanism, promoting violence against the enemy, propaganda in terms of military ‘successes’, and the glorification of martyrs.53

49  Coolsaet and de Swielande, “Epilogue: Zeitgiest and (De-)Radicalisation,” 168. 50 Dittrich, “Radicalisation and Recruitment,” 57. 51 Ibid. 52  Neumann and Brook, Recruitment and Mobilisation for the Islamist Militant Movement in Europe, 4, 82–90. 53  Change Institute, Studies Into Violent Radicalisation; Lot 2: The Beliefs Ideologies and Narratives. February 2008,
Introduction

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One possible explanation for this apparent disagreement is that the focus in the Change Institute’s study was on the larger Muslim communities in only four EU MS (Denmark, France, Germany and the UK), rather than on the already radicalized individuals across all MS as in Bakker’s analysis.54 This in turn raises important, yet apparently unresolved, methodological questions concerning the selection of the most representative sample in the research on radicalization and the methods for conducting simultaneous analyses of both the violent minority and the larger non-violent majority, as well as those who are supposed to make sure that the latter do not eventually become the former. Table 1.2 Typology of Islamist Recruitment Grounds Places of congregation

Places of vulnerability

Recruitment “magnets”

Significance/ function

No particular significance other than Muslims meeting

Taking advantage of individuals’ crises or lack of orientation

Attracting “seekers” from a wider area

Examples

Mosques, Internet cafes, cafeterias, gyms, summer camps

Prisons, refugee centers, welfare agencies, universities

Radical mosques, radical bookshops

Source: Peter R. Neumann and Rogers Brook, Recruitment and Mobilisation for the Islamist Militant Movement in Europe, December 2007, 46.

There is also a growing body of academic literature suggesting that prisons are becoming a highly conducive environment for radicalization and recruitment in the EU.55 In part, this is because prisons are by their very nature “unsettling environments in which individuals are confronted with existential questions in particularly intensive ways. This explains why the rate of religious conversions in prison is higher than among the general population: religion provides a sense of certainty and security and it also offers a chance for a break with the past.”56 Since 9/11, however, conversions to Islam by non-practicing Muslims (so-called 54 This does not, however, explain the difference between the two European Commission contracted studies, because the Kings College study has also focused on France, Spain and the UK. 55  This concerns especially British and French prisons. James A. Beckford, Daniele Joly, and Farhad Khosrokhavar, Muslims in Prison: Challenges and Change in Britain and France (Basingstoke: Palgrave, 2005) and Jean-Luc Marret, Les Fabriques Du Jihad (Paris: Presses Universitaires de France, 2005). 56  Neumann and Brook, Recruitment and Mobilisation, 43.

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“born-again Muslims”) and by individuals from other religious backgrounds far outnumber conversions to other faiths: Other than France, no EU country had an Islamist militant prisoner population of any significance prior to 11 September 2001. Within just a few years, the numbers rose to triple-digit figures in countries like Spain and Britain, and – with no sudden change in the overall situation – they will increase further.57

Some experts have explained this trend by the simplicity of Islam and the relative ease with which one can declare oneself to be a Muslim;58 others have contended that Islam has become the religion of the oppressed and a symbol of rebellion (see below). Despite the aforementioned emergence of self-radicalization, some studies still stress the importance of specific mosques, such as the Finsbury Park and Baker Street mosques in London and the Al-Quds mosque in Hamburg, for spreading extremist views and practices. Several radical mosques are also located in France, where a 2004 French police investigation discovered that 150 of the 1,600 mosques and prayer halls in the country were under the control of extremist elements.59 According to Dittrich, the key problem is the lack of “home-grown” imams. In the UK, for example, only around 30 imams have been educated in Britain, though arrivals from abroad number around 1,000. Most of these foreign clerics do not speak English and some have openly spread extremist interpretations of Islam.60 Several recent studies have, nevertheless, questioned the importance of official mosques for both radicalization and recruitment in Europe on the grounds that a higher degree of vigilance by the authorities and the mosques themselves has driven much of the extremist recruitment underground. According to Dittrich, for example, “extremists increasingly withdraw from their local mosques because they are either under surveillance, are expelled because of their radical views, or leave voluntarily because they feel the imam is not teaching an appropriate (extremist) interpretation of Islam.”61 A similar argument was advanced by Neumann and Brook, who nevertheless also pointed out that this does not mean that mosques no longer play any role in the recruitment of violent extremists in Europe: “Rather, it seems as if extremists continue to take advantage of mosques for ‘talent-spotting’ and as points of first contact, but – as soon as such contacts have been established – try to move away from the mosque and pursue the radicalisation and recruitment

57 Ibid. 58 Olivier Roy, cited in ibid. 59  Cited in Dittrich, “Radicalisation and Recruitment,” 56. 60  Dittrich, “Radicalisation and Recruitment,” 59–61. Also see Neumann and Brook, Recruitment and Mobilisation, 55–60. 61 Dittrich, “Radicalisation and Recruitment,” 60.

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of individuals in closed locations, such as private flats and makeshift prayer halls.”62 Alternatively, largely in line with the findings of the data-based research by Bakker, Cesari emphasized the social context, arguing that “joining the jihad is a social process and an individual decision, despite the ‘romanticised’ narrative offered by the mujahedeen themselves.”63 This process is made possible by the conjunction of four main factors. Firstly, the preeminence of Salafi doctrine of Islam in European societies, which emphasizes the unity of the ummah over specific cultural, national or ethnic loyalties and which, taking full advantage of modern communication technologies and with rather generous financial support from several Arab countries, “has succeeded in imposing their beliefs not as one interpretation among many, but as the orthodox doctrine of Sunni Islam.”64 As a consequence, notwithstanding the importance of taking into account the competition that “rages in the West between salafis and tablighis,”65 Cesari singled out several common characteristics of this dominant doctrine: • •

• •

The division of the world into Muslims and infidels, where the West, seen as the breeding ground for moral depravity, is always placed in a negative light; A worldview that sorts the different aspects of life – such as family, work and leisure – according to the opposition between haram (forbidden) and halal (permitted), where everything that did not already exist or happen during the time of Prophet is an innovation and is thus haram; Extreme inflexibility regarding the status of women and mixed-gender interactions; Rejection of political participation, holding that the believer must maintain a separatist stance in relation to public institutions.66

She also stressed, however, that although the Salafi doctrine does provide the same religious framework that is used by radical groups such as Al-Qaeda, “it does not incite terrorism directly.”67 A similar point was made in a case study of extremist Islamists in the Netherlands, which argued that “religion plays more of a role in drawing boundaries between ‘us’ and ‘them’ and thus in defining enemy. 62  Neumann and Brook, Recruitment and Mobilisation, 38. 63  Cesari, “Muslims in Europe,” 98. 64 Ibid. According to Cesari, “in the Islamic tradition, salaf refers to the devout elders who served as companions to the Prophet Mohammed. In contemporary Islam, the term denotes groups or movements that refer back to the Quran.” 65 Ibid., 102. Sometimes referred to as “Jehovah’s Witnesses of Islam,” the tabligh is usually described as a pietist and apolitical movement whose primary aim is to strengthen Muslim orthodoxy. 66  Cesari, “Muslims in Europe,” 98–102. 67 Ibid., 98.

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Moreover, it can provide powerful incentives for entering violent struggles and convincing arguments to be used for recruitment.”68 In contrast, Coolsaet and de Swielande emphasized the point that “every ideology, belief system or religion can be the face of radicalization. Today’s Islamist radicalization is the most prominent form of radicalization. Nevertheless, even if Islamist radicals themselves take this position, Islam is not of the essence.”69 Instead, the real problem in Europe’s Muslim communities is the emergence of “cut and paste” Islam, “in which individuals appropriated the right to interpret the Quran without the lengthy studies and training that usually were considered essential in order to become an ulema, or Islamic scholar.”70 This was also echoed in the Change Institute’s study for the European Commission, which stressed that although the Islamist ideology “appropriates concepts found in Islamic thought and is often characterised as ‘Salafi’, it is an overtly political ideology that has been developed outside of Islamic jurisprudence.”71 The attractiveness of the Salafi doctrine is further exacerbated by the absence of alternative ideologies that would be sufficiently appealing: “Intellectual countercurrents and narratives appear to have failed to directly address a key question in Muslim communities, namely why they/their co-religionists are experiencing hostility, discrimination and, in some case violence, from others and states across the globe.”72 As a consequence: For some young Europeans, adherence to radical Islam provides a viable alternative ideology, comparable to those of radical leftist groups in the 1970s … Islam appears as both a system of personal beliefs and as an ideology of resistance to Western oppression. The transition from this kind of ideology to an armed struggle as far as Afghanistan is often due to a taste of adventure that urban life is not likely to satisfy.73

A similar point of view was noticeable in many of my interviews with counterterrorism practitioners. As one senior EU official noted, contemporary European Islamist terrorists “appear to be the kind of people who, if they had been in Russia in the 1890s would have been nihilists, in Italy in the 1970s would have joined the Red Brigades, if they had been in Germany in the 1930s, they would have joined the Nazi party.”74 Going a step further, Rudolph Peters in his analysis 68  Peters, “Dutch Extremist Islamism,” 115. 69  Coolsaet and de Swielande, “Epilogue,” 158. 70 Ibid., 162–163. 71  Change Institute, Studies Into Violent Radicalisation, 4. A similar conclusion was reached by Dyvre and Belaala, Les Facteurs de Création Ou de Modification Des Processus de Radicalisation Violente, 12. 72  Change Institute, Studies Into Violent Radicalisation, 5. 73  Cesari, “Muslims in Europe,” 106. 74  Interview with an anonymous EU official, October 2008.

Introduction

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of the ideas of Mohammed Bouyeri suggested that this murderer of the Dutch filmmaker Theo van Gogh “used and recombined existing interpretations and created a form of extremist Islamism containing elements commonly associated with radicalism and extremism, regardless of whether these are formulated in religious or secular terms.” These elements include “the rejection of the world order, since it is allegedly dominated by the forces of evil, the feeling that one’s own group is under acute threat, and the idea of a utopia that can be realized, against all odds, by a small and devoted vanguard prepared to use violence in order to defeat the forces of evil.”75 This also suggests that the radicalization process can proceed at a different pace and end at different stages for different individuals, whose radicalism can take a wide variety of forms and appearances. Not all radicals are therefore necessarily violent and only those who use violence systematically would qualify as terrorists under most currently existing definitions of this term. As Coolsaet and de Swielande argued, a “common feature of all radicalization processes is that violence is always the action of a few within the larger group community whose fate is at stake and whose plight they invoke to try to justify their acts.”76 Thus, if indeed many contemporary European Islamists are essentially rebels in search of a cause, “[t]he real question is what makes a very small number of alienated young people to decide that terrorism is the answer to what they perceive as the problem.”77 Another important prerequisite for engagement in radical groups in Europe is the “disembeddedness” of some individuals from their societies. The reasons behind this phenomenon include the absence of social networks, the atomization of individuals and the conditions of life in major globalized, yet not necessarily cosmopolitan, cities in Western Europe. These factors make especially young European Muslims vulnerable to Salafi mosques, websites and prayer rooms and their attendant networks, which can facilitate social affiliation with likeminded individuals in line with Sageman’s emphasis on the importance of social networks and face-to-face encounters in the development of long-term bonds.78 Other studies have pointed out that the same factors also allow Islamist militants to skillfully exploit young European Muslims’ identity conflicts between Western society and the “cultural Islam of their parents.79 A recent French study for the European Commission even used the term “déculturation” when speaking about the young European Islamists and argued that the expansion of Islam in Europe is the expression of a defensive identity and dissent.80 Alternatively, according to Coolsaet and de Swielande, “nothing creates so fertile a breeding 75  Peters, “Dutch Extremist Islamism,” 115. 76  Coolsaet and de Swielande, “Epilogue: Zeitgiest and (De-)Radicalisation,” 158. 77  Interview with an anonymous EU official, October 2008. 78  Cesari, “Muslims in Europe and the Risk of Radicalism,” 102–104. 79  Neumann and Brook, Recruitment and Mobilisation, 4. 80 Dyvre and Belaala, Les Facteurs de Création Ou de Modification Des Processus de Radicalisation Violente, 7.

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ground for political radicalization than the feeling of belonging to the camp of the losers.”81 As such, the necessary “enabling environment” for radicalization processes “is essentially characterized by a widely shared sense of inequity. It’s unfair has always proved to be a powerful force in politics and prime mover for change.”82 Nevertheless, Coolsaet and de Swielande also stressed that even in the most “enabling environments,” not all individuals will turn to radicalism. This is because the process of radicalization always takes place at the intersection of a particular personal history and a particular enabling environment, and some kind of a trigger is always necessary to start it off.83 The problem is, as already alluded to above, that we still lack a good understanding of this crucial intersection between individual/local and structural/global variables of radicalization. Finally, it is increasingly clear that the debate concerning both the roots of terrorism and radicalization in the EU MS can no longer be conducted without addressing the (lack of) integration of certain ethnic and/or religious societies in Europe.84 In particular, although there is a growing number of Muslims holding citizenship in an EU MS (see Table 2.4), public opinion surveys have found that many second- and third-generation Muslims are less integrated into European societies than were their parents and grandparents;85 substantial percentages of young Muslims do not find the values of Islam compatible with the values of the countries in which they reside;86 many young Muslims in Europe feel more in common with other Muslims than with their fellow citizens;87 and some even openly “admire” organizations like Al-Qaeda that are prepared to fight against the West.88 Conversely, public opinion polls also show a substantial amount of suspicion toward the Muslim minorities among the majority non-Muslim populations in several EU MS. Specifically, it has been reported that substantial majorities of 81 Ibid. 82 Ibid., 157. 83 Ibid. 84 Den Boer, “Fusing the Fragments,” 110. 85  A French survey, for example, revealed that Muslim identification with Islam was stronger in 2001 than it was in 1994 or 1989, with the number of those declaring themselves “believing and practicing” Muslims increasing by 25 percent between 1994 and 2001. Open Society Institute, “Monitoring Minority Protection in EU Member States,” 2002, , 76, accessed 22.5.2008. 86 In one French survey, three-fourths of French Muslim respondents considered the values of Islam to be compatible with those of the French Republic, but only one-fourth of those under 25 shared that view. Le Figaro survey cited in Timothy M. Savage, “Europe and Islam: Crescent Waxing, Cultures Clashing,” The Washington Quarterly 27, no. 3 (Summer 2005): 43. 87  Pew Research Center, Muslims in Europe: Economic – Not Religious – Worries Top Their Concerns. 6.7.2006, . Accessed 11.5.2010. 88  Christian Joppke, “Limits of Integration Policy: Britain and Her Muslims,” Journal of Ethnic and Migration Studies 35, no. 3 (March 2009): 453–72.

Introduction

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citizens have negative opinions of Muslims89 and believe that the values of Islam are not compatible with those of the mainstream society;90 that Muslims should be more tolerant and respectful to the views of the general public;91 and that Muslims are not loyal to their European home states.92 Moreover, according to the results of a 2007 Financial Times/Harris Poll in the five largest EU MS, 38 percent of Brits said that the presence of Muslims in their country is a threat to national security, followed by 30 percent of Italians, 28 percent of Germans, 23 percent of Spaniards and 20 percent of French who believed the same.93 While we lack similar opinion polls data on the situation in the remaining EU MS and one can certainly find other opinion polls and reports with more nuanced results than those presented above,94 precisely this kind of tentative evidence has already prompted a number of observers to conclude that some Muslims seek a physical presence in Europe, but no accommodation with European society. They point to a disaffection of especially young Muslim EU citizens from the values of their home countries, their parents and older relatives, and their current national communities at large. This triple break is alleged to be a consequence of a series 89 In a 2008 Pew Forum poll, 52 percent of Spanish people expressed a negative opinion of Muslims, a view shared by 50 percent of Germans, 46 percent of Poles and 38 percent of French people. Pew Research Center, Unfavorable Views of Both Jews and Muslims Increase in Europe. 17.9.2008, . Accessed 11.5.2010. 90  A poll conducted in France in 2003 indicated that 62 percent of the general French population believed that the values of Islam were not compatible with those of the French Republic. Jerome Cordelier, “IPSOS-LCI-Le Point Poll: Islam Is a Worry for the French,” Le Point, 16.5.2003. A 2003 study of anti-Muslim attitudes in Italy showed that 56 percent of Italians believed that Muslims have “cruel and barbaric laws,” 47 percent considered them “religious fundamentalists and fanatics” and 33 percent were convinced that Muslims are invading Italy. Cited in Cesari, “Muslims in Europe,” 105. 91 In a 2002 survey conducted in Germany, 19 percent of respondents said that Muslims should not be allowed to practice their religion in Germany, 43 percent voiced doubts about Islam’s capacity to be tolerant and 67 percent said that, when practicing their religion, Muslims should be more respectful of the views of the German public. Ulrich von Wilamowitz-Moellendorff, “Was Halten die Deutschen von Islam?” Konrad Adenauer Foundation Working Paper, May 2003. 92  Gallup and the Coexist Foundation, The Gallup Coexist Index 2009: A Global Study of Interfaith Relations. 2009, . Accessed 11.5.2010. 93 Harris Interactive and Financial Times, Attitudes toward Muslims Mixed in Europe and the US. 23.8.2007, . Accessed 11.5.2010. 94  A good list of opinion polls and reports is available at http://www.euro-islam. info/category/publications. The European Union Agency for Fundamental Rights and its predecessor, the European Monitoring Centre on Racism and Xenophobia, also produced a number of reports with relevant data. See http://fra.europa.eu/fraWebsite/research/ publications/publications_en.htm.

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of factors ranging from social and economic marginalization; lack of respect and acknowledgement from mainstream society, individual identity crisis and feelings of victimization or inferiority; perceptions of discriminatory security policies after 9/11; to a misguided understanding of Islam, where even the closest relatives and friends become “false Muslims” and the national community is “wicked.”95 One overarching common denominator can, nevertheless, be singled out – the failure of several EU MS to sufficiently integrate their growing Muslim populations (see Table 2.6). As one American observer put it: Europe’s track record of engagement with Islam over the last 1,350 years is not encouraging. Although exploring some new initiatives, Europeans today seem inclined to pursue a status quo approach at home and abroad, preferring caution, predictability, control, and established structures over the boldness, adaptability, engagement, and redefined relationships that the new situation requires. A similar mind-set is evident among Europe’s Muslim population.96

Similarly, the EU contracted study by Compagnie Européenne d’Intelligence Stratégique has argued that the rise of radical Salafi ideology in Europe is in essence a problem of (the lack of) national-level integration rather than a panEuropean “religious revival.”97 It is beyond the scope of this introductory chapter to resolve the debate over whether the lack of integration is primarily due to the failure of national integration models in EU MS, or the lack of willingness of European Muslim minorities to be integrated.98 The very presence of such debate, however, reveals that the growing Muslim presence in Europe is already perceived as a challenge to domestic social unity and national cohesion, or what the Danish sociologist Ole Waever calls “societal security.”99 The influential British weekly The Economist has warned that this “could be a huge long-term threat to Europe”100 and others have coined

95 Dyvre and Belaala, Les Facteurs de Création Ou de Modification Des Processus de Radicalisation Violente, 5–6. Also see Cesari, “Muslims in Europe,” 104–1005; Dittrich, “Radicalisation and Recruitment” 56–7, Coolsaet and de Swielande, “Epilogue,” 169. 96 Savage, “Europe and Islam,” 26. 97 Dyvre and Belaala, Les Facteurs de Création Ou de Modification Des Processus de Radicalisation Violente, 15. 98  See Joppke, “Limits of Integration Policy,” 453–72; Robert S. Leiken, “Europe’s Angry Muslims,” Foreign Affairs 84, no. 4 July/August 2005, . Accessed 20.5.2006. 99 Ole Waever, “Societal Security: The Concept,” in Security: A New Framework for Analysis, ed. Barry Buzan, Ole Weaver and Jaap de Wilde (Boulder, CO: Lynne Riennier Publishers, Inc., 1998). 100  “Forget Asylum-Seekers: It’s the People Inside Who Count,” The Economist, 8.5.2003.

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a name for it: “Islamophobia.”101 While the core issue behind this phenomenon is clearly identity (e.g., the perceived cultural threat Islam poses to the European way of life, and vice-versa from the perspective of European Muslims), the threat has also been framed in terms of economics (e.g., jobs and social welfare benefits) and, as further discussed in the following chapter, security (e.g., terrorism and counterterrorism). Structure This book is organized into four parts. The first part – Terrorist Threats and the European Union’s Responses – consists of two chapters. They are preceded by this introductory chapter that sets the framework of the book and identifies the main arguments and themes. The second chapter provides data on contemporary terrorist incidents in Europe and a discussion of the existing perceptions of the terrorist threats, both of which vary substantially across the EU. The third chapter offers a succinct review of the origins of EU counterterrorism policy and a survey of major developments in this area since 9/11. The less developed and more recent additions to EU counterterrorism policy, including counter-radicalization, are examined in this chapter. The more developed areas of EU counterterrorism policy are analyzed in detail in the following parts of this book. The second part – Key EU Agencies Involved in Counterterrorism – is devoted to three case-study analyses of what are arguably the three most important, and certainly most visible, EU agencies involved in the practical aspects of the fight against terrorism: Europol (Chapter 4), Eurojust (Chapter 5) and the office of the EU counterterrorism coordinator (Chapter 6). Several other EU institutions and agencies also contribute to the EU’s counterterrorism efforts in various ways, but the ambition of this book was not to analyze all of them. One reason for this narrower focus is that the important task of mapping the field of the EU security and judicial agencies involved in the fight against terrorism has already been fulfilled in other volumes.102 Another reason for focusing on just the key agencies has to do with the relative novelty of many of the other EU structures that somehow 101  Joppke, “Limits of Integration Policy,” 456–66, Savage, “Europe and Islam,” 44. For an official EU analysis of Islamophobia, with data on all EU MS, see European Monitoring Centre on Racism and Xenophobia, Muslims in the European Union: Discrimination and Islamophobia. 2006, . Accessed 11.5.2010. 102 See Didier Bigo et al., The Field of the EU Internal Security Agencies (Paris: L’Harmattan, 2007); Lauri Lugna, “Institutional Framework of the European Union CounterTerrorism Policy Setting,” Baltic Security & Defence Review 82 (2006): 101–27; Christian Kaunert, “Towards Supranational Governance in EU Counter-Terrorism? – The Role of the Commission and the Council Secretariat,” Central European Journal of International and Security Studies 4, no. 1 (Spring 2010): 8–31.

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contribute to the fight against terrorism, which makes analysis of their strengths and weaknesses rather difficult. However, in contrast to many of the available mainstream analyses of the security agencies at the EU level, the three chapters in the second part of this volume provide more nuanced analyses that take into account relations among the EU agencies themselves, as well as with their national and non-EU counterparts. The third part – Key EU Legal Instruments Utilized in Counterterrorism – consists of two chapters that are devoted to analyses of the key EU legal counterterrorism instruments. As noted above, almost 100 pieces of EU-level legislation have already been adopted and/or proposed following the terrorist attacks in New York, Madrid and London. As it is beyond the scope this book to analyze all of them in detail, the third part is devoted to the analysis of what are arguably the most important legal EU instruments that have been utilized in the fight against terrorism thus far – the European Arrest Warrant (Chapter 7) and a set of legislative instruments designed to fight terrorist financing (Chapter 8). The aim of these two chapters is not to simply provide a review of their respective legal provisions; since implementation is left to the MS, it is also important to analyze the practical use of the EU legal instruments by relevant national counterterrorism actors. Moreover, since certain provisions of the analyzed EU counterterrorism legislation have already been challenged in courts, the decisions of national and EU judges are also taken into account. The fourth part of this book consists of three chapters that offer insights into the Current Dilemmas and Future Prospects of the EU counterterrorism policy. The analysis of the difficult trade-offs between liberty and security in the fight against terrorism (Chapter 9) is followed by a review of possible future scenarios and likely changes due to the recent ratification of the Lisbon Treaty (Chapter 10). Finally, the whole volume concludes with an assessment of the track record of the EU’s post-9/11 counterterrorism policy and my comments on its future developments (Chapter 11).

PART 1 Terrorist Threats and the European Union’s Responses

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Chapter 2

Contemporary Terrorist Threats in Europe: Data versus Perceptions The EU’s efforts in the fight against terrorism have already been analyzed in a number of scholarly articles and edited volumes. Only few authors have, however, analyzed the perceptions of contemporary terrorist threats in EU MS. This is rather surprising in light of the vast body of literature suggesting that perceptions of relevant security threat(s) have important ramifications for the preferred set of policy responses. Moreover, the use of the very term “threat” evokes “a certain imagery of enemy forces and dreadful consequences with powerful political” and ethical implications. Perceptions of the terrorist threat therefore clearly represent an important variable in the fight against terrorism at both the EU and national levels. This chapter offers five explanations for the persisting differences in the perceptions of both the nature and salience of the threats posed by contemporary terrorism within EU MS. Firstly, history matters, and when it comes to terrorism, EU MS differ substantially both in their historical records and their current experiences. Secondly, while there is a general consensus in the expert community that Europe is nowadays not only a terrorism base and a potential target, but also a   For a good literature review, see the special issue of Journal of Common Marker Studies, 46, no. 1 (January 2008).   The notable exceptions are Edwin Bakker, “Difference in Terrorist Threat Perceptions in Europe,” in International Terrorism. A European Response to a Global Threat? ed. Dieter Mahncke and Jörg Monar (Brussels: Peter Lang, 2006), 47–62 and Christoph O. Meyer, “International Terrorism as a Force of Homogenization? A Constructivist Approach to Understanding Cross-National Threat Perceptions and Responses,” Cambridge Review of International Affairs 22, no. 4 (December 2009): 647–66.  See Art Jervis, Perception and Misperception in International Politics (Princeton, NJ: Princeton University Press, 1976); Barry Buzan, Ole Weaver, and Jaap de Wilde, Security: A New Framework for Analysis (Boulder, CO: Lynne Riennier Publishers, Inc., 1998); Janice Gross Stein, “Building Politics Into Psychology: The Misperception of Threat,” Political Psychology 9, no. 2 (1998): 245–71.   Christoph O. Meyer and Alister Miskimmon, “Perceptions and Responses to Threats: Introduction,” Cambridge Review of International Affairs 22, no. 4 (December 2009): 626.   An earlier version of this chapter was published as “Perceptions of the Terrorist Threat among EU Member States,” Central European Journal of International and Security Studies 4, no. 1 (Spring 2010): 51–80.

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terrorist incubator, the exact nature and novelty of the terrorist threat, both external and “home-grown,” are still debated. Thirdly, Eurobarometer public opinion polls reveal that public perceptions of the terrorist threat vary across the EU and it is possible to identify a few specific explanations why this has been the case. Fourthly, demography matters, and given the current immigration and natality patterns in EU MS, it is bound to matter even more in the years to come. Fifthly, the EU lacks a genuine baseline terrorist threat assessment which makes the development of a common terrorist threat perception rather difficult, if not impossible. Finally, it is important to note that while most European politicians and a majority of EU MS citizens perceive terrorist threats differently, they tend to agree on a negative view of a particular model of counterterrorism. Past and Contemporary Terrorist Threats in the EU: The Data While for some EU MS terrorism is nothing new, for many it represents a relatively novel security threat. While specific numbers differ due to methodological and definitional differences, the available authoritative databases on terrorist incidents indicate that only six EU MS – Spain, France, Greece, Germany, Italy and the United Kingdom – account for almost 90 percent of all terrorist attacks perpetrated on the territory of the EU since 1968. In contrast, according to the RAND database of terrorist attacks, 13 EU MS have experienced fewer than 15 terrorist incidents over the past four decades (see Table 2.1). When it comes to the most recent and comparable statistics provided by EU MS themselves, the 2007 edition of Europol’s annual EU Terrorism Situation and Trend Report (TESAT) reported a total of 583 attacks (up by 24 percent from 2006), 1,044 arrested suspects (up by 48 percent from 2006) and 331 convictions for terrorism charges in the EU. As in the past, the vast majority of attacks (517, i.e., 88 percent) were claimed or attributed to Basque and Corsican separatist terrorist groups in Spain and France, respectively. The vast majority of these attacks aimed at causing material damage and the prototypical terrorist suspect was a male EU citizen between 23 and 43 years of age. Given the following discussion, it is important to highlight that with regard to the often debated Islamist terrorism, only two failed and two attempted attacks were reported in 2007. As in 2006, these attacks took place in the UK (two cases), Denmark and Germany (one case each) and they all “mainly aimed at causing indiscriminate mass casualties.” It is also interesting to note that in 2007,   See Fernando Reinares (ed.) European Democracies Against Terrorism: Governmental Policies and Intergovernmental Cooperation. (Burlington, VT: Ashgate Publishing Company, 2000).  The data is comparable only since the 2007 publication of TE-SAT due to the introduction of a new methodology for its compilation.   Out of 418 individuals tried on terrorist charges in 2007, only 34 were women; 69 percent of those arrested for terrorist offences were EU citizens.

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court proceedings in relation to Islamist terrorism had the highest acquittal rate: 31 percent of the defendants in EU MS were found not guilty. Table 2.1 Terrorist Incidents in EU Member States Country Spain France Greece Germany Italy United Kingdom Belgium Netherlands Cyprus Austria Portugal Sweden Denmark Ireland Poland Bulgaria Hungary Malta Latvia Slovakia Czech Republic Estonia Lithuania Luxembourg Romania Finland Slovenia EU-27

RAND 1968–2009 1425 1223 730 493 434 188 117 76 72 62 50 45 29 26 14 12 12 12 9 8 7 7 6 5 5 1 1 5,069

GTD 1970–2007 3169 1127 840 1130 1490 592 139 112 0 96 139 52 34 143 34 37 39 16 0 18 21 0 0 15 5 5 6 9,259

Sources: RAND Database of Worldwide Terrorism Incidents, http://smapp.rand.org/rwtid and Global Terrorism Database (GTD), START, http://www.start.umd.edu, both accessed on 22.4.2010.   Europol, Terrorism Situation and Trend Report 2008, , 10–16. Accessed 25.3.2009.

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In 2008, EU MS reported a total of 515 failed, foiled or successfully perpetrated attacks, which represents a 24 percent decrease from 2007. A total of 397 terrorist attacks were claimed or attributed to separatist terrorist organizations and 98 percent of these attacks took place in France and Spain. Overall, 1,009 individuals were arrested in the EU for terrorism-related offences in 2008, with an average age of 35 years as of 2007. The majority of the suspects were arrested for membership in a terrorist organization. During 2008, 359 individuals were tried on terrorism charges in the EU in a total of 187 proceedings. Twenty-nine percent of the verdicts were acquittals. With regard to Islamist terrorism, only one attack was reported by the UK and it was carried out by a single offender (a so-called “lone wolf”) inspired by local extremists. However, the relatively high number of arrests relating to Islamist terrorism (187 out of 1,009) indicates a substantial amount of law-enforcement activity, which also reflects the fact that “although the majority of EU MS have not been targeted by Islamist terrorists, some report that the perceived threat remains high or even estimate that the risk of an attack has increased.” 10 According to the authors of Europol’s TESAT 2009, this is primarily because a) the number of persons associated with “home-grown” Islamist terrorist groups is rising in the EU (a majority of the arrested individuals belonged to small autonomous cells rather than to known terrorist organizations); b) the continued military presence in Iraq and/or Afghanistan; and c) the continued accusations of anti-Muslim attitudes. Overall, Europol analysts observed that “due to large fluctuations, a clear trend in the numbers of failed, foiled and successful terrorist attacks cannot be established” for the entire EU.11 Nevertheless, at least two trends do stand out rather clearly from the available data: 1) the numbers of arrested suspects are relatively independent of the occurrence of terrorist activities, which indicates the existence of a continuous terrorist threat in Europe; 2) the threat of terrorism is likely to remain diverse, with different EU MS being confronted with different international organized groups, locally inspired groups, as well as “lone wolves.”12 Europol’s statistics largely correspond with the recent findings presented by Eurojust, which registered 39 new operational terrorism cases in 2008. Spain, France and the UK were the most requested countries for terrorist cases, while five out of the six coordination meetings on counterterrorism issues were organized by Italy. The 2008 Eurojust Annual Report also revealed that fundamentalist terrorist groups continue to be prevalent in the investigations referred to Eurojust, followed by separatist groups. This trend was confirmed by the information on terrorism verdicts sent to Eurojust by the national authorities of EU MS – half of the submitted verdicts in 2008 related to fundamentalist terrorist groups (190 out of a total of 384 verdicts), while only 148 verdicts refer predominantly to 10  Europol, Terrorism Situation and Trend Report 2009. , 17. Accessed 25.6.2009. 11 Ibid., 39. 12 Ibid., 39–40.

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separatist groups. Overall, however, only 10 EU MS reported verdicts from court proceedings for terrorism: Belgium, Denmark, France, Germany, Ireland, Italy, the Netherlands, Spain, Sweden and the UK.13 Contemporary Terrorist Threat in the EU: The Scholarly and Practitioners’ Debates The available scholarly literature confirms several of the aforementioned Europol and Eurojust’s findings suggesting that terrorism is not an EU-wide threat in terms of incidents, fatalities or terrorist profiles (see Chapter 1). There is, nevertheless, a consensus that since the end of the Cold War, the scales of the international terrorist threat to Europe have tilted from “a staging ground to a potential Disneyland of soft targets.”14 The terrorist attacks in Madrid and London indicate that especially the “old” EU MS have moved up the terrorist value chain to become a core target. Due to their support of the UN-sanctioned invasion of Afghanistan and the US-led invasion of Iraq, the “new” EU MS have also moved up on the list of potential terrorist targets, although probably still not as high the UK or Spain. Finally, and perhaps most importantly, although a considerable effort has been made on the part of the EU to avoid anything in its official documents that could make Islam or the Muslims appear as the “threat” or “enemy,”15 much of the current discussion among both scholars and practitioners of counterterrorism is focused on the threat of homegrown Islamist terrorism in EU MS. Given the fact that more than 90 percent of all terrorist incidents in Europe are perpetrated by ethnically motivated separatist groups, the amount of attention devoted to the Islamist terrorism in Europe is somewhat peculiar. Several studies have, nevertheless, offered evidence suggesting that there indeed are reasons to worry about this phenomenon: There are as many as 20 different hard-line Islamic groups operating in the Netherlands and, in recent years, the UK has been home to as many as 3,000 veterans of Al-Qaida training camps. In Germany, according to the Federal Office for the Protection of the Constitution, approximately 30,600 people are 13  Eurojust, Eurojust Annual Report 2008. , 22–23. Accessed 1.10.2009. 14 Doron Zimmermann, “The European Union and Post-9/11 Counterterrorism: A Reappraisal,” Studies in Conflict & Terrorism 29, no. 2 (2006): 139. 15  As Monar pointed out: “While Europol’s TE-SAT Report refers quite frequently to ‘Islamist extremism,’ the EU’s Counter-Terrorism Strategy consistently uses very neutral language ... . Equally, in the Strategy for Combating Radicalization and Recruitment to Terrorism two entire paragraphs are dedicated to the need to avoid linking Islam to terrorism.” Monar, “Common Threat,” 297.

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EU Counterterrorism Policy members of Islamist organizations, of whom an estimated 300 or so are regarded as “dangerous” because of their contacts with terror organizations. Significantly, also, 3,000 are considered willing to use violence but have no proven links to terrorist activities so far.16

A Nixon Center study of 373 radical Muslim terrorists arrested or killed in Europe and the US from 1993 through 2004 found out that 41 percent were Western nationals, who were either naturalized or second-generation Europeans, or were converts to Islam. More specifically, the study found twice as many terrorists who were French as Saudis and more Britons than Sudanese, Yemenites, Emiratis, Lebanese or Libyans.17 Another US study estimated that of the approximately 660 original detainees from 42 countries held by the US in Guantanamo, more than 20 were citizens of at least six different West European states, and perhaps a similar number were permanent residents, while only two detainees were US citizens.18 On a similar note, Michael Radu of the Foreign Policy Research Institute reported that since 9/11, European countries have arrested 20 times more terrorism suspects than the US,19 and yet another recent study estimated that between 10,000 and 15,000 British Muslims are supporters of Al-Qaeda or related groups.20 In 2005, several US experts have even claimed that “the greatest threat to the United States from Al-Qaeda, its affiliated groups, or those animated by Al-Qaeda’s ideology, emanates today from Europe.”21 Although many Europeans would probably disagree, security officials and terrorism experts in European countries do acknowledge that recruitment of extremists, as well as their organization, planning and decision-making, is increasingly done within the borders of the EU. A chief terrorism investigator in Milan, for example, stated that “almost all European countries have been touched by recruiting [of Islamist extremists],” including, improbably, Norway, Switzerland, Poland, Bulgaria and the Czech Republic.22 While caution is in order when interpreting this type of data, there is a growing amount of evidence suggesting that there may be something about the European environment that contributes to certain Muslims embracing terrorism (see Chapter 1). It is, therefore, increasingly difficult to disagree with those who

16 Dittrich, “Radicalisation and Recruitment,” 56. 17  Steven Brook and Robert S. Leiken, “The Quantitative Analysis of Terrorism and Immigration: An Initial Exploration,” Terrorism & Political Violence 18, no. 4 (December 2006): 503–21. 18 Savage, “Europe and Islam,” 33. 19  Cited in Frederick S. Kempe, “Europe’s Middle East Side Story,” The Wall Street Journal, 29.7.2003. 20  Cited in Peter Bergen, “Al Qaeda in Europe and the US,” The NYU Review of Law & Security, Special Issue (Summer 2005): 25–27. 21  Bergen, “Al Qaeda in Europe and the US,” 25. 22  Armando Spataro, cited in Leiken, “Europe’s Angry Muslims.”

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claim that Europe has indeed given birth to its own, homegrown terrorist threat.23 However, given the diversity of this threat, it is difficult to even determine how many Islamist extremists there are in the EU MS. In my interviews with EU and national counterterrorism officials, the range was from less than 1 percept to up to 10 percent of all Muslims living in Europe. The only apparent consensus is that the vast majority of the 15–20 million Muslims currently living in the EU, a figure that has grown rapidly from a base of only 800,000 in 1950,24 is undoubtedly peaceful. This was confirmed in a 2006 study based on the first systematic use of data contained in the European Social Survey, whose results gave “strong support to the hypothesis that passive support for Islamist radicalism in Europe and the complete distrust in democracy does not exceed 400,000 persons.”25 This number translates into roughly 2 percent of all Muslims currently living in the EU MS (see Table 2.5). It is also a useful reminder that “what non-Muslims see as a community is in reality a complex body full of contradictions and divergences along ethnic, ideological and generational lines.”26 It is also important to note that even those experts who have specifically focused on Islamist terrorism in Europe still debate the nature of this threat. According to Philippe Errera from the French Foreign Ministry, for example, Europe faces three overlapping “circles” of threat from Islamist terrorism. The first circle consists of the core members of the Al-Qaeda network and its trained associates. In the second circle are ethno-nationalist groups in places such as Kashmir, Chechnya and Lebanon, which share some of Al-Qaeda’s Islamist ideology, but have primarily local or national goals. The third circle is the least understood, yet potentially the biggest and most dangerous, group of so-called “freelance jihadists.” These can be Islamist terrorist groups or individuals, based anywhere in the world, including various Western societies, who may or may not be inspired by Bin Laden, and may have no direct connection with the Al-Qaeda network.27 A similar typology was offered by Neumann and Brook, who distinguished three types of Islamist terrorist cell which can be found in Europe. The “chain of command” cells are recruited and resourced “top down” with the aim of carrying out operations on behalf of the central leadership of Al-Qaeda’s core. The “guided cells” are largely self-recruited, but through members’ associations or active “seeking out,” they manage to establish a relationship to the Al-Qaeda network, which facilitates their integration into the global movement and provides access to some resources, such as financial support, expertise, etc. These cells attempt to operate within the strategic parameters set out 23  Mark Huband, “Europe’s “Home-Grown” Terrorism Threat,” The NYU Review of Law & Security, Special Issue (Summer 2005): 22–25; Leiken, “Europe’s Angry Muslims”; Savage, “Europe and Islam,” 25–50. 24 Spence, “Introduction,” 25. 25  Arno Tausch et al., Why Europe Has to Offer a Better Deal Towards Its Muslim Communities (CAEI-Entelequia, 2006), 42. 26  Coolsaet and de Swielande, “Epilogue,” 154. 27  Philippe Errera, “Three Circles of Threat,” Survival 47, no. 12 (2005): 71–88.

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by the leadership of Al-Qaeda. Finally, the “genuine self-starters” are entirely selfrecruited, maintain no formal link to the Al-Qaeda global network and define the nature and scope of their operations independently.28 Alternatively, Leiken argued that there are just two types of jihadists who are primarily located in Western Europe – “outsiders” and “insiders.” The former are: [A]liens, typically asylum seekers or students, who gained refuge in liberal Europe from crackdowns against Islamists in the Middle East. Among them are radical imams, often on stipends from Saudi Arabia, who open their mosques to terrorist recruiters and serve as messengers for or spiritual fathers to jihadist networks... They may be assisted by legal or illegal residents, such as the storekeepers, merchants, and petty criminals who carried out the Madrid bombings.29

In contrast, the “insiders” are a group of alienated citizens, second- or thirdgeneration children of immigrants, like the van Gogh’s killer Bouyeri and his associates, “who were born and bred under European liberalism.” Leiken points out that “no Chinese wall separates first-generation outsiders from second-generation insiders; indeed, the former typically find their recruits among the latter.”30 The emphasis on “insiders” is also apparent from the literature on radicalization discussed in Chapter 1, which led some experts to suggest that the emergence of radicals from within EU MS has substantially transformed the terrorist threat profile. For example, referring to Theo van Gogh’s murder, Bakker suggested the following: “Terrorism is understood to be events like September 11. But then we have somebody who kills a guy on a bike. So we weren’t prepared for anything.”31 This assessment appears to be shared by several European counterterrorism authorities, who also saw the killing as a new phase in the terrorist threat – one that raised the specter of Middle East-style political assassinations as part of the European Islamist arsenal and disclosed a new source of danger: unknown “selfrecruited” individuals among Europe’s own Muslims.32 Finally, pointing to the arrest of Richard Reid, a British citizen who converted to Islam and was found guilty of attempting to blow up a flight from Paris to the US in 2002, some experts have also warned that a key new factor is the number of recruits of European racial type who have converted to Islam. At the moment, this group makes up less than 1 percent of all European Muslims, but it appears to be growing, especially in European prisons (see Chapter 1) and it has already spawned

28  Neumann and Brook, Recruitment and Mobilisation for the Islamist Militant Movement in Europe, 24–25. 29  Leiken, “Europe’s Angry Muslims.” 30 Ibid. 31  Cited in Huband, “Europe’s ‘Home-Grown’ Terrorism Threat,” 22. 32  Peters, “Dutch Extremist Islamism,” 118; Coolsaet and de Swielande, “Epilogue,” 158.

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a number of radical elements who have found their way into terrorist circles.33 According to a senior Belgium counterterrorism official, this is because “their zeal to prove the depth of their engagement with respect to the Muslims of origin will unsurprisingly push them to burn through the stages of the radicalization.”34 Thus, according to Savage, conversions could develop as a potentially significant factor as Islam becomes more established and institutionalized in Europe.35 In contrast, Dittrich has argued that European converts are often involved in integrating Islam into their home countries, “and significantly, while they tend to be more rigid and radical in the interpretation of their faith, it is difficult to judge whether they pose a more serious security threat than other groups.”36 Contemporary Terrorist Threats in the EU: The Public Perceptions Although perceived security threats may not necessarily correspond with actual incident rates at any given time, when it comes to public perceptions of the threat of terrorism in the EU MS, the correlation is quite apparent. When asked to list the two most important issues facing their home country at the moment in the Eurobarometer public opinion polls, the priority given to terrorism by EU citizens’ in the period from 2003–2009 was five percent or lower in 21 EU MS (see Table 2.2). In five EU MS (Denmark, Italy, the Netherlands, Spain and the UK), however, the terrorist threat was perceived as being rather salient in the same time period, reaching as high as 43 percent in Spain. These five countries together bring the EU-wide average up to 9 percent for the 2003–2009 period and they also make up for much of the difference that appears to exist between the “old” MS (EU-15) and the “new” MS that entered the EU after the 9/11 attacks – 9 versus 2 percent averages, respectively. A closer reading of the available data suggests that the high terrorist threat perception is limited to a few MS where actual terrorist attacks (Spain, UK) or repeated terrorist threats (Denmark, the Netherlands) already took place. Thus, past (in)experience with terrorism clearly shapes the current EU MS’ perceptions of the terrorist threat to a significant extent: For obvious reasons, there is a much higher degree of threat perception among the public in a country like Spain, which has had – according to the MIPT Terrorism Knowledge Base – 1,308 terrorist incidents with 1,394 injuries and 287 fatalities since 1968, than in a country like the Czech Republic with a count for the same period of only five incidents and four injuries.37 33 Roy, “Al-Qaeda: A True Global Movement,” 11–112. 34  Grignard, “The Islamist Networks in Belgium,” 92. 35 Savage, “Europe and Islam,” 28. 36 Dittrich, “Radicalisation and Recruitment,” 57. 37 Monar, “Common Threat and Common Response?,” 301.

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Indeed, before 9/11, only six EU MS (Germany, France, Italy, Portugal, Spain and Great Britain) had perceived terrorism as a threat to the extent that they actually defined it as a serious crime and/or national security threat. But even among these six countries, there have been quite different terrorist threat perceptions and legislative responses to it. To some extent, this was due to the differences among the terrorist groups operating in Europe: “In France we have always thought … that the Islamic threat was a dangerous one and that the Algerian problem was not a political, diplomatic or bi-lateral problem for France, but was the premise of a much more global threat. That was not perceived by all our partners.”38 In Germany and Italy, however, there were good reasons to worry less about the Islamist terrorist groups and more about the ideologically motivated groups such as the Baader Meinhof gang/Rote Armee Faktion and the Red Brigades. Similarly, the primary security threats in Spain and Great Britain were not Islamist terrorists, but the Irish Republican Army (IRA) and the Euskadi Ta Askatasuna (ETA), which both committed acts of terrorism in the name of national self-determination. The remaining EC/EU MS had much less experience with terrorism of any kind, although some of them were occasionally used as convenient logistics areas, backoffices and recruiting grounds. At the same time, however, it is also apparent from the Eurobarometer data that even in countries with a substantial history of terrorist threats and/or actual attacks, the priority given to terrorism tends to decrease over time, as the memories of the most recent attack fade and the salience of other issues (crime, unemployment, inflation fears, etc.) rises. On a more general level, this last point is also illustrated in Table 2.3, which depicts the EU-15 citizens’ fear of international terrorism in 2001 and 2002. While more recent comparable data is not available due to the changes of survey questions in the 2003+ Eurobarometer polls, the available data for 2001–2002 period shows a drop of fear of international terrorist attack in all old MS except for Italy and the UK. Thus, when it comes to explaining the different terrorist threat perceptions among EU MS, past terrorist attacks and domestic developments that generate repeated threats of terrorist attacks (e.g., the publication of prophet Muhammad’s caricatures in Denmark) are crucial, but not necessarily the only, explanatory variables. In fact, according to Bakker, the lack of past experience with terrorism actually may explain “why in some countries the population shows extreme concerns over terrorism in the wake of even minor terrorist incidents such as a single murder or a few arrests. This seems to be the case for Denmark and the Netherlands.”39

38  Jean-Louis Bruguière, cited in Edwards and Meyer. “Introduction: Charting a Contested Transformation,” 7. 39  Bakker, “Difference in Terrorist Threat Perceptions in Europe,” 58.

Table 2.2 EU Citizens’ Perceptions of the Salience of the Terrorist Threat (2003–2009) 2003 2004 2005 2006 2007 2008 2009 Avg.¹

2003 2004 2005 2006 2007 2008 2009 Avg.¹

BE 4 6 5 6 4 2 2 4

CZ NA 4 3 1 3 2 1 2

DK 12 20 32 28 17 11 9 18

DE 3 4 4 2 11 3 3 4

EE NA 2 3 2 1 1 0 2

EL 4 2 1 3 2 1 5 3

ES 51 59 31 36 37 14 12 34

FR 9 10 10 4 6 3 2 6

IR 2 6 6 5 4 1 1 4

IT 9 17 11 9 7 3 4 9

CY NA 3 1 7 2 1 1 3

LV NA 2 2 0 0 0 0 1

MT

NL

AT

PL

PT

SI

SK

FI

SE

UK

BG

RO

NA 2 2 1 1 1 0 1

4 12 40 19 9 6 3 13

4 5 3 2 9 4 2 4

NA 6 3 3 2 1 1 3

3 4 1 2 2 2 1 2

NA 3 2 2 1 1 0 2

NA 4 5 2 5 2 1 3

2 5 5 3 1 1 1 3

3 6 6 5 2 1 1 3

17 28 34 17 17 9 6 18

NA 5 5 5 1 1 1 3

NA 4 4 4 2 3 1 3

LT NA 3 1 1 1 1 1 1 EU 15 12 18 16 11 9 6 5 11

HU NA 5 2 2 1 0 1 2 New MS³ NA 5 3 2 2 1 1 2

LU 7 10 4 4 3 3 3 5 EU 25² NA 16 14 10 7 5 4 9

Notes: The exact question was: “What do you think are the two most important issues facing (OUR COUNTRY) at the moment?” As in the 2001 and 2002 Eurobarometer surveys, those questioned would still be shown a list of things some people say they are afraid of, but they were asked to select a maximum of two things only. Thus, the answers indicate the percentage of people who named “terrorism” as one of the two most important issues facing their country. Data prior to 2003 is not available because Eurobarometer surveys did not include the same question. ¹Six/seven years average. ²EU-27 data since 2007. ³The 2007+ data includes figures for Rumania and Bulgaria in EU’s and the new Members States’ (New MS) totals. Sources: Eurobarometer no. 60 (2003), no. 62 (2004), no. 64 (2005), no. 66 (2006), no. 68 (2007), no. 70 (2008), and no. 72 (2009).

Table 2.3 EU Citizens’ Fear of International Terrorism (2001–2002) BE

DK

DE

EL

ES

FR

IR

IT

LU

NL

AT

PT

FI

SE

UK

EU15

2001

78

79

85

91

90

91

83

92

84

76

70

90

69

83

83

86

2002

76

77

75

86

82

88

82

92

85

69

62

85

67

78

85

82

Note: The exact question was: “Here is a list of things that some people say they are afraid of. For each of these, please tell me if, personally, you are afraid of it, or not?” The answers indicate the percentage of people who answered this question positively for “international terrorism.” Data prior to 2001 is not available because terrorism was not included on the list. Data after 2002 is not available because Eurobarometer surveys no longer included the same question. Sources: Eurobarometer surveys no. 56 (2001) and no. 58 (2002).

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Bakker has also identified several other factors that can help to explain the different threat perceptions among European publics. These include active participation in the US-led war against terrorism, which may partly explain why threat perceptions of the Italians, Danes and Dutch have been at times higher that those of the French, Germans and Belgians; the way in which society and politics in the given country tend to react to insecurity in general, which may partly explain why the Dutch threat perception has been so high; and the presence of a sizeable Muslim community, which is a factor that indeed appears to be important given the aforementioned scholarly and practitioners’ debates about contemporary terrorism in Europe.40 Additional variables explaining the divergence of public threat perceptions in Europe were identified by Meyer, who suggested that the social acceptability of risk is linked to the following factors: familiarity (how unexpected and unusual is it?); control (what means are available to minimize or avoid it?); catastrophic potential (what is the worst case scenario?); equity (who is affected in what way?); knowledge (what do we know about the phenomenon?); collective lessons learned from previous events that are seen or intentionally portrayed as similar; the exact impact of media coverage on public opinion; and the trust in experts and political actors as objective evaluators of risks.41 But regardless of which explanatory variable one prefers, it is clear that there is no common EU threat perception when it comes to terrorism. A number of additional findings derived from Eurobarometer’s data are worth noting when it comes to the future of EU efforts to fight terrorism. Firstly, EU-wide, the importance of terrorism as one of the most pressing issues faced by EU MS has been slowly but surely decreasing over time. While terrorism was the fifth most important concern of EU citizens from 2003–2004, it dropped to seventh place in 2005 and 2006, to eighth place in 2007 and 2008, and twelfth place in 2009. Secondly, with the possible exception of several months following the 9/11 attacks, terrorism actually never became a prime concern for EU citizens in any of the EU MS, except for Spain and the UK. The top places have traditionally been occupied by unemployment, the economic situation and healthcare. Outside of these purely social and/or economic issues, crime is the only security-related concern that has been consistently mentioned as a major anxiety by Eurobarometer’s respondents. Thirdly, although it may sound surprising given the numerous shortcomings of the EU counterterrorism policy discussed in the following chapters, a majority of EU citizens have a positive perception of the EU’s role in combating terrorism. In fact, the available data produced by Eurobarometer indicates that a majority of EU citizens sees EU efforts to address the terrorist threat more positively than EU actions in any other area of concern, including unemployment, the economic situation, healthcare or crime (see Figure 2.1). Finally, in stark contrast to the national sovereignty concerns exhibited by the political and bureaucratic elites in many MS, Eurobarometer data indicates that ever since 9/11, there is widespread 40 Ibid., 56–58. 41 Meyer, “International Terrorism as a Force of Homogenization?,” 652–61.

Figure 2.1 Two Most Important National Issues and the Role of the EU Note: This chart summarizes the two sets of information: the importance of the various problems facing the EU MS (Y-axis) and the perception of the role played by the EU in combating these problems (X-axis). The size of the bubbles varies according to the importance attached to the issue in question. In other words, the bigger the bubble, the more important is the issue to EU citizens. Source: Eurobarometer no. 62 (2004), 27.

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consensus among European citizens in all EU MS that decisions regarding the fight against terrorism should be made jointly within the European Union. Professional skepticism is, of course, again in order when it comes to interpreting the data provided by Eurobarometer: There is little doubt that since 9/11 some politicians and in particular Justice and Home Affairs ministers have reacted, and in part also contributed, whether deliberately or unintentionally, to public anxiety about terrorism through their public communication and legislative initiatives. The creation of an emergency discourse at home and in Europe has allowed them in some instances to bend legal constraints and political opposition to measures that expand the resources and competences of law-enforcement services.42

Pointing out that the majority of counterterrorism measures adopted after 9/11 in the context of the Action Plan are in fact multipurpose legislation, which failed to gather sufficient support among European citizens before 9/11, several scholars have argued that the terrorist threat has been exaggerated for instrumental and strategic reasons (see Chapter 9). Moreover, as Edwards and Meyer noted: Fear of terrorism is as much a function of official communication as it is the result of the attacks themselves. In quantitative terms, the risk of falling victim to a terrorist attack was 33 times smaller than dying of meningitis, 822 times than being murdered for non-political reasons and 1,833 times less likely than being killed in a car accident. Yet, according to the Transatlantic Trends survey, 74 per cent of American and 66 of European respondents (of the nine countries surveyed) thought it was ‘likely’ or ‘somewhat likely’ that they would be ‘personally affected’ by terrorism in the next ten years.43

At the same time, however, it is important to keep in mind the insights from the pre-9/11 literature on terrorism, which reminds us that what terrorists want is a lot of people watching, but not necessarily dying.44 The actual numbers of terrorist attacks and their victims may therefore be only of secondary importance because what really matters is the so-called “irrational anxiety,”45 which makes individual EU citizens believe that they will be the next victim of a terrorist attack, even though statistically speaking it indeed may be 1,833 times more likely that they will be killed in a traffic accident.

42  Edwards and Meyer, “Introduction: Charting a Contested Transformation,” 18. 43 Ibid., 17–18. 44  Brian M. Jenkins, “Terrorism and Beyond: A 21st Century Perspective,” Studies in Conflict & Terrorism 24, no. 5 (Sept–Oct 2001): 321–27. 45 Marc Nicholson, “An Essay on Terrorism,” American Diplomacy, 19.8.2003.

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Demography and Immigration Data The differences in terrorist threat perceptions among EU MS can also be interpreted in light of Europe’s demography. Although exact figures are hard to come by because EU MS’ censuses rarely ask respondents about their faith and some MS still do not officially recognize Islam (see Table 2.4), it is clear from the available data that France has the numerically largest Muslim population in the EU (more than 6 million), followed by Germany, the United Kingdom, the Netherlands, Bulgaria, Italy and Belgium (with several hundred thousands of Muslim in each – see Table 2.5). In contrast, nine EU MS – mostly, but not exclusively from Eastern Europe – have relatively small Muslim populations (10,000 or less). Given the differences in the overall population size, it may be more appropriate to have a look at the percentage of the Muslim population out of the total for each country. Here a different picture emerges (see Table 2.5), with the top two spots occupied by two new MS – Cyprus and Bulgaria (18 and 12 percent), followed by France and the Netherlands (10 and 6 percent) in third and fourth place, respectively. The latter type of ranking is also useful for understanding the radicalization processes of different Muslim communities across the EU. While French, Dutch, British and Danish Muslims have frequently made the headlines since 9/11 when it comes to (the lack of) their integration into larger populations, the spread of extremisms and, in some cases, even the resort to violence and/or terrorism, little has been written about the Cypriot, Bulgarian, Slovenian or Austrian Muslim communities. While it is certainly important to understand the dynamics of smoky coffeehouses in Rotterdam and Copenhagen, makeshift prayer halls in Hamburg and Brussels, Islamic bookstalls in Birmingham and “Londonistan” and the prisons of Madrid, Milan and Marseilles (see Chapter 1), it is at least as crucial to understand the situation of Muslim populations elsewhere in Europe, where there has been much less talk about the rise of militant Islamist groups. This was also stressed in a report by Kings College London in 2008, which found “clear differences between countries in Southern Europe, where Muslim immigration is recent, and those in which the second and third generation of European Muslims is reaching adolescence. In countries with no second or third generation of European Muslims, language is less of an issue, nor is the conflict of identity between Western society and traditional culture as pivotal.”46

46  Neumann and Brook, Recruitment and Mobilisation for the Islamist Militant Movement in Europe, 4.

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Table 2.4 EU Muslim Citizenship and Recognition and Rank of Islam as a Religion

Austria Belgium Bulgaria Cyprus Czech Republic Denmark Estonia Finland France Germany Greece Hungary Ireland Italy Latvia Lithuania Luxembourg Malta Netherlands Poland Portugal Rumania Slovakia Slovenia Spain Sweden United Kingdom

Official state recognition of Islam Yes (1979) Yes (1974) Yes Yes Yes (2004) No Yes Yes (1980s) Yes (2002) No Yes (1923) No No No Yes Yes No Yes Yes (1988) No Yes (1976) Yes No Yes Yes (1992) Yes (1979) No

Rank of Islam among major religions 3rd 2nd 2nd 2nd 4th 2nd 5th 4th 2nd 3rd 2nd 5th 3rd 2nd 5th 5th 3rd 3rd 3rd 4th 2nd 4th 5th 4th 2nd 2nd 3rd

Notes: NA = data not available. Recognition = official state recognition of Islam. Where known, year of recognition is provided in parentheses. Rank = rank among the five major religions: Catholic, Islamic, Jewish, Orthodox and Protestant. Muslim citizenship = percentage of Muslims holding citizenship out of the total Muslim population in the country. It is important to note that religious freedom is constitutionally guaranteed in all MS, but the legal relationship between the state and religion varies considerably across the EU. In some MS, formal state recognition of religion does not exist but this does not necessarily impact significantly on the rights and privileges of Muslims, as they still can have significant access to them, often through lobbying and representation. Source: Timothy M. Savage, “Europe and Islam: Crescent Waxing, Cultures Clashing,” The Washington Quarterly 27, no. 3 (Summer 2005): 25–50.

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Table 2.5 Muslim Population in EU Member States as Percentage of Total Population Country

Cyprus Bulgaria France Netherlands Austria Belgium Germany Denmark Sweden United Kingdom Slovenia Spain Luxembourg Italy Greece Malta Ireland Finland Estonia Portugal Rumania Czech Republic Lithuania Slovakia Hungary Latvia Poland EU-27

Total population

Muslim population

788,457 7,322,858 63,718,187 16,570,613 8,199,783 10,392,226 82,400,996 5,468,120 9,031,088 60,776,238 2,009,245 40,448,191 480,222 58,147,733 10,706,290 400,000 4,109,086 5,238,460 1,315,912 10,642,836 22,276,056 10,228,744 3,575,439 5,447,502 9,956,108 2,259,810 38,518,241 490,428,441

141,922 893,389 6,371,819 994,237 344,391 415,689 3,213,639 202,320 270,933 1,640,958 48,222 930,308 9,604 814,068 139,182 3,000 20,135 20,654 5,264 35,121 44,552 10,229 2,682 3,051 3,201 384 3,850 16,582,804

Muslim population % of total 18.00% 12.20% 10.00% 6.00% 4.20% 4.00% 3.90% 3.70% 3.00% 2.70% 2.40% 2.30% 2.00% 1.40% 1.30% 0.75% 0.49% 0.40% 0.40% 0.33% 0.20% 0.10% 0.08% 0.06% 0.03% 0.02% 0.01% 3.30%

Sources: The data for Belgium, Italy, Spain and Sweden comes from BBC Muslims in Europe: Country Guide 2007, http://news.bbc.co.uk/2/hi/europe/4385768.stm. The data for Hungary comes from the Hungarian Central Statistical Office 2007, http://www. nepszamlalas.hu/eng/volumes/26/tables/load4_1_1.html. The data for all remaining EU MS comes from the US Department of State Background notes 2007 and/or International Religious Freedom Reports 2007.

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According to many analysts, however, more important than the current numbers is the trend that is emerging. They point out that the Muslim population in Europe more than doubled in the last three decades and the rate of growth is accelerating. By 2015, according to Omer Taspinar, Europe’s Muslim population is expected to double, whereas Europe’s non-Muslim population is projected to fall by at least 3.5 percent.47 Looking further ahead, conservative projections estimate that, compared to today’s 5 percent, Muslims will comprise at least 20 percent of Europe’s population by 2050.48 Some even predict that one-fourth of France’s population could be Muslim by 2025 and that, if current trends continue, Muslims could outnumber non-Muslims in France and perhaps in all of Western Europe by mid-century.49 Although these projections may seem incredible at first glance, they may not be totally off the mark given the following trends: 1. Although most European countries closed their doors to legal labor immigration already in the 1970s, some 500,000 legal immigrants (primarily family reunification cases) and 400,000 asylum seekers still arrive in the EU each year. According to the International Organization for Migration, Muslims make up a large and increasing proportion of both groups.50 2. Although no reliable data exists, Muslims probably also make up a significant proportion of illegal immigrants to the EU, estimated in the range of 120,000 to 500,000 annually.51 3. The Muslim birth rate in Europe is currently more than three times that of non-Muslims.52 The projected increases of Muslim populations are, nevertheless, unlikely to occur in all EU MS to the same degree. As indicated in Table 2.6, the recent increases in Europe’s Muslim population have primarily taken place in a few Western European countries with liberal refugee and asylum-seeker policies (Austria, Denmark, the Netherlands and Sweden). In contrast, the indigenous Muslim populations in southeastern Europe have declined by 15 percent during the past 20 years (due, among other things, to Turkish emigration from Bulgaria) and in Central and Eastern Europe, Muslim populations remain virtually nonexistent. This may 47 Omer Taspinar, “Europe’s Muslim Street,” Foreign Policy, March/April 2003, 7. 48 Savage, “Europe and Islam,” 28. 49  John L. Esposito, “Introduction: Modernizing Islam and Re-Islamization in Global Perspective,” in Modernizing Islam: Religion in the Public Sphere in the Middle East and Europe, ed. John L. Esposito and Francois Burgat (New Brunswick, N.J.: Rutgers University Press, 2003), 11. 50 International Organization for Migration, World Migration Report 2000 (Geneva: IOM, 2000), 195. 51 International Organization for Migration, “Facts and Figures on International Migration,” Migration Policy Issues no. 2 (March 2003): 2. 52  Christopher Caldwell, “The Cresent and the Tricolor,” Atlantic Monthly, November 2000, 22.

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Table 2.6 Growth of Muslim Populations in EU Member States

Austria Belgium Bulgaria Cyprus Czech Rep. Denmark Estonia Finland France Germany Greece Hungary Ireland Italy Latvia Lithuania Luxembourg Malta Netherlands Poland Portugal Rumania Slovakia Slovenia Spain Sweden United Kingdom

Muslims populations in 2007

Muslims populations in 1982

Muslim population

Muslims % of total population

Muslim population

Muslims % of total population

344,391 415,689 893,389 141,922 10,229 202,320 5,264 20,654 6,371,819 3,213,639 139,182 3,201 20,135 814,068 384 2,682 9,604 3,000 994,237 3,850 35,121 44,552 3,051 48,222 930,308 270,933

4.20% 4.00% 12.20% 18.00% 0.10% 3.70% 0.40% 0.40% 10.00% 3.90% 1.30% 0.03% 0.49% 1.40% 0.02% 0.08% 2.00% 0.75% 6.00% 0.01% 0.33% 0.20% 0.06% 2.40% 2.30% 3.00%

80,000 350,000 1,700,000 155,000 NA 35,000 NA NA 2,500,000 1,800,000 160,000 NA NA 120,000 NA NA NA NA 400,000 22,000 NA 65,000 NA 20,000 120,000 30,000

1.10% 3.60% 19.30% 24.40% NA 0.70% NA NA 4.60% 2.90% 1.60% NA NA 0.20% NA NA NA NA 2.80% 0.10% NA 0.30% NA 1.10% 0.30% 0.30%

1,640,958

2.70%

1,250,000

2.20%

Sources: The data for Belgium, Italy, Spain and Sweden comes from BBC Muslims in Europe: Country Guide 2007, http://news.bbc.co.uk/2/hi/europe/4385768.stm. The data for Hungary comes from the Hungarian Central Statistical Office 2007, http://www. nepszamlalas.hu/eng/volumes/26/tables/load4_1_1.html. The data for all remaining EU MS comes from the US Department of State Background Notes 2007 and/or International Religious Freedom Reports 2007. The 1982 data for all countries comes from M. Ali Kettani, Muslim Minorities in the World Today (London: Mansell Publishing Ltd., 1986). NA = no data available.

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change once the living standards in the “new” EU MS catch up with the rest of the EU, but it is more likely that in the near future, much of the Muslim migration will be directed to countries like Spain, Italy and perhaps Greece, i.e., other old EU MS with relatively porous borders, close proximity to countries of migration and the highest numbers of illegal residents.53 Finally, it worth noting that by far not all experts would agree with Leiken’s claim that many “first-generation outsiders have migrated to Europe expressly to carry out jihad” because “[i]n Islamist mythology, migration is archetypically linked to conquest.”54 This is not to deny that there has been talk about the connection between immigration, asylum abuse and terrorism in several EU MS, where Muslims already constitute the majority of immigrants: The Dutch reaction to van Gogh’s assassination, the British reaction to jihadist abuse of political asylum, and the French reaction to the wearing of the headscarf suggest that Europe’s multiculturalism has begun to collide with its liberalism, privacy rights with national security. Multiculturalism was once a hallmark of Europe’s cultural liberalism, which the British columnist John O’Sullivan defined as “free[dom] from irksome traditional moral customs and cultural restraints.” But when multiculturalism is perceived to coddle terrorism, liberalism parts company.55

Several attempts have indeed been made in some EU MS to expressly link issues of immigration with those of security and terrorism after 9/11, but they were usually short-lived at least when it comes to practical counterterrorism measures.56 Thus, in the long run, the most worrying consequence of these attempts lies in their effect on the very political party systems of EU MS. As Savage pointed out, not only have the growth and visibility of Europe’s Muslim population given new life to radical right-wing parties, which have played on xenophobia and popular fears of Islam but, just as important, advances by parties on the far right (e.g., Belgium’s Flemish Bloc, the British National Party, Denmark’s People’s Party, Jean-Marie Le Pen’s French National Front and Italy’s Northern League) have led to right-leaning adjustments in the political priorities of mainstream European parties.57 As a consequence, the debate on integration, multiculturalism and the place of Islam in Europe has been hardening and several European societies have 53 Savage, “Europe and Islam,” 29. 54  Leiken, “Europe’s Angry Muslims.” 55 Ibid. 56 Terri E. Givens, Gary P. Freeman, and David L. Leal, Immigration Policy and Security (New York: Routledge, 2009). For a different view, see Sarah Leonard, “The Use and Effectiveness of Migration Controls as a Counter-Terrorism Instrument in the European Union,” Central European Journal of International and Security Studies 4, no. 1 (Spring 2010): 33–50. 57 Savage, “Europe and Islam,” 35.

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“experienced new forms of polarization, between newcomers and native citizens, between Muslims and non-Muslims.”58 Lack of a Common EU Terrorist Threat Assessment Another reason why the EU MS have different perceptions of both the nature and the gravity of contemporary terrorist threats is due to the fact that no independent common terrorist threat assessment is currently available at the EU level. Taking into account the different historical experiences and demographic trends in individual EU MS, it is hardly surprising that national threat assessments vary, sometimes considerably. On the one hand, these variances can be seen as natural and unavoidable because available data confirms that the terrorist threat is objectively different in the individual EU MS (see above). This in turn implies that EU-wide terrorist threat perception is highly unlikely to emerge and some have even warned against “inventing” a huge pan-European terrorist threat.59 On the other hand, terrorism can be viewed as a form of political communication by means of threat and actual violence, whose impact depends on how it is being perceived and reacted to by those to whom it is addressed.60 In other words, the extent to which terrorism is seen as a grave security threat depends on a process of social construction, which is inherently intersubjective and takes place among various actors and audiences.61 As Edward and Meyer pointed out: Responses to a given threat will depend on how it is interpreted: as an unprecedented, imminent, large-scale, deadly risk linked to fanatical foreigners who “hate us for what we are,” or, as a crime committed by a group with distinct ethnic and social characteristics, radicalized by identifiable and resolvable social and political grievances and motivated by both short and long-term goals.62

This implies that neither the security threats, nor the responses to them, have an “objective” independent reality on their own. Thus, if terrorist threat perceptions are indeed inter-subjective social constructs, they are largely shaped on the available information, existing knowledge and prevailing expectations. A common EUwide perception of the terrorist threat may therefore emerge over time if there is a) enough information regarding the nature, gravity and modus operandi of terrorist activity in all EU MS; and b) a common baseline terrorist threat assessment

58  Coolsaet and de Swielande, “Epilogue” 163. 59  Bakker, “Difference in Terrorist Threat Perceptions in Europe,” 61. 60 Isabelle Duyvesteyn, “How New is the New Terrorism,” Studies in Conflict & Terrorism 27, no. 5 (2004): 439–54. 61  Buzan, Weaver, and Wilde, Security: A New Framework for Analysis. 62  Edwards and Meyer, “Introduction: Charting a Contested Transformation,” 6.

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mechanism exists to process the available data and turn it into “common EU knowledge” about the terrorist threat. Although some of the available research suggests that even these two preconditions may not be sufficient on their own when it comes to overcoming the difference of threat perceptions among European counterterrorism experts, political elites and the public at large,63 they clearly are among the necessary, yet currently missing prerequisites. As discussed in detail in the following chapters, information sharing among the EU MS has been far from perfect and it primarily takes place outside of EU’s structures. Since Europol does not have the mandate to gather intelligence on its own and currently lacks both trust from the national intelligence and law-enforcement agencies, and a common threat assessment methodology, the EU has neither the data nor the means to generate the knowledge that could significantly influence how terrorism is perceived in Europe. The annual TESAT reports produced by Europol are useful but as discussed in Chapter 4, they are essentially compilations from state-provided data and there is no attempt to assess the threat posed by terrorism in them. Moreover, although even the more optimistic EU officials recognize that political advice can be offered only once the counterterrorism cycle (from SITCEN with intelligence inputs to Europol with law-enforcement inputs to Eurojust with inputs to prosecutions) is fully completed,64 the more pessimistic experts have noted that this does “in no way imply that [SITCEN’s, Euopol’s and Eurojust’s] perception of the relevant threats and their overall classification of threats is the same.” For example, “while the SITCEN staff participates in the elaboration of the terrorist lists and hence plays a central role in the construction of the external and internal threats, Europol does not follow this list … [and] seems to have a broader approach to threats and to the groups likely to be involved in it.”65 Consequently, terrorist threat perceptions are rather inward-looking and vary considerably from one Member State to another and different national security authorities are “neither willing nor able to coordinate their efforts to provide security efficiently.”66 A good example is the UK’s 2006 national counterterrorism strategy, “where the parts dealing with threat assessment do not contain any reference to a European dimension of the terrorist threat, which is essentially presented as a threat to British institutions and territory. Unsurprisingly the response strategy is also largely a purely national one, with only passing references made to the EU framework.”67 As long as EU citizens and policy-makers do not have access to an authoritative EU-wide terrorist threat analysis at the strategic level, current domestic developments and past national (in)experience with terrorism will 63 See Meyer, “International Terrorism as a Force of Homogenization?,” 647–66. 64  Interview with a Europol official, September 2009. 65  Bigo et al., The Field of the EU Internal Security Agencies, 41. 66  Müller-Wille, For Our Eyes Only? Shaping an Intelligence Community Within the EU, 12. 67 Monar, “Common Threat and Common Response?,” 302.

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remain the key variables in the construction of perception of both the terrorist threat and corresponding counterterrorism policies. In the age of global terrorism, however, this is bound to be an unsatisfactory state of affairs. As one analyst put it, “whereas previous forms of terrorism in Europe have generally been bounded by national borders, the non-hierarchical, networked, cross-border character of jihadist terrorism transformed fundamentally the characteristics of the threat.”68 Although the actual threat of terrorism is indeed not pan-European, its operations are and its perpetrators have repeatedly “made use of European diversity in laws, anti-terrorism capabilities and the abolition of border controls.”69 As such, even the national agencies of the biggest EU MS are simply incapable of monitoring, evaluating and responding to all possible terrorist threats within the territory of the EU. Consequentially, both the public and policy-makers in the EU MS are unlikely to ever fully grasp both the country-specific and transnational terrorist threats before their own homeland is directly affected. Under these circumstances, it is also extremely difficult, if not impossible, to agree on and implement a coherent EU counterterrorism policy. Point of European Consensus: Terrorism Is Not an Occasion for War It is important to acknowledge that according to some scholars, the EU has recently arrived at a broadly shared understanding of the contemporary terrorist threat that consists of several principal elements that can be distilled from the official EU documents, such as the 2003 European Security Strategy (ESS) or the 2005 EU Counterterrorism Strategy (see Chapter 3). These elements of consensus include the following points: 1. The post-9/11 terrorist threat is not only against citizens’ lives but it is also directed at the very foundations of the EU and its MS in terms of values, as well as political and socioeconomic structures. 2. The threat is marked by the enhanced resources of terrorists and their increasing willingness to use massive violence to induce mass casualties. 3. The threat is posed not only by Al Qaeda itself but also by those inspired by it, while other (traditional) forms of internal terrorism continue to pose a threat as well. As a result, the threat is of both a global (“external”) and an internal security nature. 4. The global security part of the threat must be seen in relation to other international threats (proliferation of weapons of mass destruction, state

68  Javier Argomaniz, “Counter-Terrorism Policy-Making in the EU.” Ph.D. Dissertation, School of Politics & International Relations, University of Nottingham, 2008, 118. 69  Bakker, “Difference in Terrorist Threat Perceptions in Europe,” 61.

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failure and organized crime) and therefore requires the use of a variety of external instruments. 5. The threat is rooted in a complex set of causes (political, religious, cultural, social, etc.) and therefore requires the use of a variety of instruments, both internally and externally. 6. While religious factors play a role, the threat is not essentially an “Islamic” one, and any idea of terrorism as a clash with Islam and the Muslim world must be rejected. 7. The EU is particularly vulnerable to this threat because of its “openness” as an area without internal borders.70 Alternatively, Rhinard, Boin and Ekengren have argued that the threat of terrorism is twofold, but still generally common to the EU. First, because of the successful economic integration, Europe as a whole has grown increasingly vulnerable to what not so long ago would have been considered isolated local disturbances. Second, as the EU has expanded in size and substance, so has the number of critical systems and core values that need to be protected. While in the 1950s and 1960s peaceful cooperation between states was the core value for the then EC, in the 1970s and 1980s economic welfare and fiscal stability became perceived as prominent values and in the 1990s, peace and stability in the “near abroad” emerged as a third value. Most recently, “a spate of terrorist attacks beginning with 11 September 2001 generated a reaction from EU governments that suggests a fourth value in the evolution of the EU: the protection of citizens against terrorist violence.”71 Thus, it may be argued that the 9/11 events began a chain of policy responses with “EU citizens” as a clear referent object of security. For practical counterterrorism purposes, however, the aforementioned elaborations of common EU-wide terrorist threats are rather vague on what is actually threatened besides EU citizens’ lives: “By repeating all the time that the values of the EU are threatened it is not made any clearer how post-9/11 terrorism actually threatens certain declared EU values, such as equality and solidarity. The argument about threats posed to the economic and social development of the EU is not developed in any clearer terms either.”72 It is, nevertheless, important to note that although no common EU-wide terrorist threat perception exists at the moment, most European politicians and a majority of EU MS citizens do at least agree on what terrorism is not – an occasion for war.73 Even though for some Europeans the Madrid and London bombings undoubtedly represented watershed 70 Monar, “Common Threat and Common Response?,” 298. 71  Rhinard, Boin, and Ekengren, “Managing Terrorism,” 90. 72 Monar, “Common Threat and Common Response?, 298–9. 73  According to a survey conducted by the Marshall Fund in September 2004, 71% of Europeans and 76% of Americans considered international terrorism one of the most important international threats, but while 54% of Americans agreed that the best way to ensure peace is through military strength, only 28% of Europeans shared this view. Cited

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events comparable to the 9/11 attacks in the United States, most Europeans have continued to reject the US “war on terror” and prefer to think about terrorism as of another, albeit special, category of serious crime. Consequently, the criminal justice model of counterterrorism has generally been preferred in Europe thus far.74 In fact, even in the first months after the 9/11 attacks, EU texts contained few references to terrorism as a security threat because of “the reluctance of many member states to allow for any ‘militarization’ of the terrorist threat in line with the US ‘war on terror’, which a more extensive use of the charged notion of ‘security’ could have implied.”75 The available literature offers several explanations why this has been the case. Therese Delpech claims that most Europeans do not accept the idea of a war on terrorism because they are “used to dealing with this phenomenon with other methods (intelligence services, police, justice), and have not really taken in the consequences of the magnitude of the change wrought by the events of 11 September 2001.”76 Others have argued that Europe’s past counterterrorism experience is getting in the way of adapting to the current terrorism threat and some even accused the governments of fighting yesterday’s war: In their strategies, both Europeans and Americans are still responding to their last terrorist attacks, and are not doing enough to prevent future ones. The attacks of September 11, 2001, convinced Americans that Islamist terrorism is an existential threat, and that their enemies are located abroad, primarily in the greater Middle East. Europe’s enemies might be located abroad too; but since they have not yet struck in Europe on a scale comparable to the September 11 attacks, EU governments are much more focused on the threat within Europe and on preventing bombings like those carried out in Madrid in 2004. Consequently, EU governments do not yet see the terrorist threat as an existential one, and their past experiences of European terrorism have in some ways blinded them to the different nature of the Islamist terrorist threat today.77

Not all commentators, however, see Europe’s past counterterrorism experiences as a burden and/or a blinder. Some posit that Europeans actually do worry in Fraser Cameron, “Transatlantic Relations and Terrorism,” in The European Union and Terrorism, ed. David Spence (London: John Harper Publishing, 2007), 124–5. 74  For good overviews of counterterrorism models and strategies, see William C. Banks, Renée de Nevers, and Mitchel B. Wallerstein, Combating Terrorism: Strategies and Approaches (Washington, D.C.: CQ Press, 2008); Ronald Crelinsten, Counterterrorism (Cambridge: Polity Press, 2009); Audrey K. Cronin and James M. Ludes, Attacking Terrorism. Elements of a Grand Strategy (Washington, D.C.: Georgetown University Press, 2004). 75 Monar, “Common Threat and Common Response?,” 294. 76 Therese Delpech, International Terrorism in Europe. Chaillot Papers No. 56 (Paris: Institute for Security Studies, December 2002), 21. 77  Keohane, The EU and Counter-Terrorism, 12–13.

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about terrorist attacks on their soil, but generally feel that terrorism is a longterm challenge that can hardly be addressed by military means. This view was perhaps best espoused by Gilles Andréani, when he argued that George W. Bush’s administration “war on terror” is “a good cause” but the “wrong concept.”78 In Daniel Keohane’s view, this criticism is partly, but not only, based on Europe’s history with terrorist groups: EU governments have learnt that terrorism is a means rather than an end. In other words, European governments try to focus not only on the types of attacks that terrorists intend to carry out, but also on why these people become terrorists and why sections of society support them; and they generally agree that terrorism can only be defeated with a long-term political approach.79

Andréani’s remark also reflects the opinion of many Europeans that the US-led war in Iraq has increased, rather then diminished, the threat from radical Islamist terrorism.80 Here, once again, the demography of Europe clearly matters, although with the benefit of hindsight, some experts have also argued that the more cautious EU counterterrorism policies may arguably represent “a more sensible strategic approach”: The 9/11 attacks were seemingly an isolated incident that exploited a particular vulnerability – unlocked aircraft flight crew cabins. And it is now clear (after years of debate about Guantanamo Bay) that constitutional judicial processes (as opposed to extra-territorial and extra-legal action) might be a boon to counterterror efforts, rather than a hindrance. If it is possible to prosecute terrorists under existing criminal justice systems, the argument for more robust and specific counterterrorism action may lose sway.81

Once again, some experts would certainly make the opposite argument – that only forceful methods produce effective operational results when it comes to dealing with Al-Qaeda type of terrorism. The resolution of this debate is beyond the scope 78  Gilles Andréani, “The War on Terror: Good Cause, Wrong Concept,” Survival 46, no. 4 (2004): 31–50. 79 Daniel Keohane, “The Absent Friend: EU Foreign Policy and Counter-Terrorism,” Journal of Common Market Studies 46, no. 1 (January 2008): 134–5. 80  A Eurobarometer survey in October 2003 showed that not only Europeans disapproved of the military intervention in Iraq, but 53 percent also cited the US itself as a threat to “peace in the world.” European Commission, Flash Eurobarometer: Iraq and Peace in the World. October 2003, , accessed 27.5.2010. 81 David Spence, “Conclusion: The Continuing Quest for Coherence: Sovereignty, Human Rights and EU Coordination,” in The European Union and Terrorism, ed. David Spence (London: John Harper Publishing, 2007), 171.

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of this volume but some of its key elements are further discussed in Chapter 9 in the context of the justice versus security debate.

Chapter 3

Historical Evolution of the EU Counterterrorism Policy This chapter provides a succinct account of the key developments of the EU counterterrorism policy from its origins till early 2010. The first section takes a look on the initial efforts of EU MS to fight both domestic and international terrorism, which ultimately paved the way to the creation of the Justice and Home Affairs (JHA) Pillar and the construction of an Area of Freedom, Security and Justice (AFSJ). The second section provides an overview of the EU’s reaction to the September 11, 2001 terrorist attacks on the United States of America, with a special focus on the initial EU’s Plan of Action. The third and fourth sections are devoted to the analyses of the impacts of the Madrid and London terrorist attacks, respectively. The last section reviews the (lack of) implementation of EU policy at the national level in EU MS. Pre–9/11 European Community/European Union Counterterrorism Policy European efforts to deal with the threat of terrorism have a relatively long history, especially in the realm of international police cooperation. The origins of a genuine EU counterterrorism policy antedate it and can be traced to the early 1970s, when the European Political Cooperation (EPC) came into being. The initial impetus for greater intergovernmental cooperation among MS was the growth of terrorist incidents perpetrated by indigenous Western European as well as Middle Eastern

  Parts of this chapter were published in “EU Counterterrorism Policy: A Paper Tiger?” Terrorism and Political Violence 18, no. 1 (Spring 2006): 57–78.   Mathieu Deflem, “Europol and the Policing of International Terrorism: Counterterrorism in a Global Perspective,” Justice Quarterly 23, no. 3 (September 2006): 336–59; J. Peek, “International Police Cooperation Within Justified Political and Judicial Frameworks: Five Theses on TREVI,” in The Third Pillar of the European Union, ed. Jörg Monar and R. Monar (Brussels: European Interuniverstity Press, 1994), 201–07; G. Rauchs and D.J. Koenig, “Europol,” in International Police Cooperation, ed. D.J. Koenig and D.K. Das (New York: Lexington Books, 2001), 43–62.  The main feature of EPC was consultation among the MS on foreign policy issues. Launched in 1970, EPC was formally enshrined in the Single European Act (SEA) in 1987.

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organizations in the late 1960s and early 1970s. By the mid-1970s, the European Communities (EC) MS had become dissatisfied with the existing international policies and procedures which dealt with terrorism and felt that a regional approach would be more effective. Consequently, in addition to the diplomatic efforts taken to combat state-sponsored terrorism within the EPC framework, the EC MS began to develop what could be termed as an EC counterterrorism policy at two key levels: the legal and the operational. At the legal level, the original EC MS had all traditionally upheld the view that terrorism is predominantly a political crime. This position was enshrined in a number of both EU and non-EU conventions and as discussed in Chapter 5, it was not until the mid-1980s when the idea of a European judicial area was seriously entertained under the banner of the completion of a single European market. At the operational level, on the basis of a Dutch initiative, the Terrorism, Radicalism, Extremism, and political Violence (TREVI) group was formed in 1975 by European police officials to exchange information and provide mutual assistance on terrorism and related international crimes. TREVI’s activities were formally approved a year later by the justice and interior ministers of EC MS, which used the group’s framework to exchange intelligence information via a separate telex system, compile a blacklist of terrorists, analyze external terrorist threats, track specific terrorist groups and facilitate the arrest and prosecution of terrorists. Following a series of terrorist attacks in the mid-1980s, the TREVI group increased cooperation in combating terrorism even further and a working party was established to study how to improve checks at the EC’s border, coordination of national visa policies and cooperation in combating passport fraud.10 By the early 1990s, it was widely believed within the EC that “the issues of illegal immigration, drug trafficking, and other types of organized crime were closely linked with terrorism and that dealing with each of these criminal activities separately would make little sense.”11 Overall, there can be little doubt that TREVI’s work was considered by both the EC and the contiguous European states to be useful, despite the fact that TREVI’s legal basis and its relationship to other EC institutions remained unclear.  Malcom Anderson, “Counterterrorism as an Objective of European Police Cooperation,” in European Democracies Against Terrorism: Governmental Policies and Intergovernmental Cooperation, ed. Fernando Reinares (Burlington, VT: Ashgate Publishing Company, 2000), 229.   Paul Wilkinson, Terrorism and the Liberal State (London: Macmillan, 1986), 292.   Juliet Lodge, “Terrorism and the European Community: Towards 1992,” Terrorism & Political Violence 1, no. 1 (January 1989): 30.   For further information, see Meliton Cardona, “The European Response to Terrorism,” Terrorism & Political Violence 4, no. 4 (Winter 1992): 252–53; Lodge, “Terrorism and the European Community,” 36–40.   Peek, “International Police Cooperation,” 201.   Cardona, “The European Response to Terrorism,” 252. 10  Zagari, “Combating Terrorism,” 293. 11  Zimmermann, “The European Union and Post-9/11 Counterterrorism,” 126.

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As Lodge notes, by the late 1980s many EC MS felt, “TREVI is a more effective forum than Interpol in matters relating to the security of databank and information exchanges on international terrorism.”12 More importantly, it became clear that “the internal market cannot be completed unless the issues currently being addressed by TREVI are discussed within the EC.”13 While freedom of movement of capital, goods, services and labor were welcomed features of the envisioned common European market, free movement of criminals and terrorists was clearly an unwanted corollary. In this regard, although not an exclusive counterterrorism measure, the Schengen Agreement constitutes one of the milestones of European counterterrorism cooperation. The participating EC MS created a computerized repository on potentially dangerous persons transiting their territories, known as the Schengen Information System (SIS). Since its inception, this database evolved into “a critical component toward the coordination of European counterterrorism activity in the field of border security.”14 When the Maastricht Treaty on European Union was signed in February 1992, the previously informal EPC and TREVI frameworks were brought together under the new legal and structural framework of the EU and formed the basis of the JHA Pillar. As Peter Chalk pointed out, integral to the situating of counterterrorism competencies in the Third Pillar was the notion that terrorism was, if no longer exclusively a domestic criminal issue of MS, then certainly an internal security problem of the Union.15 The Maastricht Treaty specifically referred to terrorism as a serious form of crime to be prevented and combated by developing common action in three different ways: 1. Closer cooperation between police forces, customs authorities and other competent authorities, including Europol; 2. Closer cooperation among judicial and other competent authorities of the Member States; 3. Approximation, where necessary, of rules on criminal matters.16 As discussed in detail in Chapters 4 and 5, prior to 9/11 some progress had been made in developing common actions in the first two areas but their practical implementation was often painfully slow. With regard to the approximation of rules on criminal matters in the MS, Article 31(e) of the Treaty of Maastricht already called for the establishment of minimum rules relating to the constituent elements 12 Lodge, “Terrorism and the European Community,” 42. 13 Ibid. 14  Zimmermann, “The European Union and Post-9/11 Counterterrorism,” 125. 15  Peter Chalk, “The Third Pillar on Judicial and Home Affairs Cooperation, AntiTerrorist Collaboration and Liberal Democratic Acceptability,” in European Democracies Against Terrorism: Governmental Policies and Intergovernmental Cooperation, ed. Fernando Reinares (Burlington, VT: Ashgate Publishing Company, 2000), 175. 16  Article K.1. After subsequent Treaty of Amsterdam revisions, Article 29.

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of terrorist acts and penalties. This call was repeated in Paragraph 46 of the Action Plan of the Council and the Commission on how best to implement the provisions of the 1997 Treaty of Amsterdam,17 which committed EU MS to constructing an “area of freedom, security and justice.”18 The Treaty also acknowledged that in order to guarantee freedom and justice while enhancing security, the MS need to better coordinate their justice and home affairs policies and, in some areas, grant the EU new powers.19 In the subsequent years, however, the EU made slow progress in constructing a true area of “freedom, security and justice” and it was only the 1999 Tampere European Council that attempted to inject new life into the JHA Pillar. It supplied an ambitious five-year plan – the Tampere Programme – with a number of targets and deadlines for the implementation of policies on immigration, border control, police cooperation and asylum. Few of these targets, however, were met before September 11, 2001 and, as discussed below, some were not met even by 2004, when the Tampere plan lapsed. Overall, it is possible to argue that when the World Trade Center and the Pentagon were hit, terrorism did not figure high on the common EU agenda and the European Union did not possess a coherent counterterrorism policy. Although there were periods of intense domestic (e.g., IRA, ETA, Red Brigade, Rote Armee Fraktion) and international (e.g., Popular Front for the Liberation of Palestine) terrorist activity, including sensational attacks and major incidents in and against MS, such as Pan Am flight 103 (270 killed) and UT 772 (171 killed) since the TREVI group was established in 1975, “till 9/11 the EU had relatively few initiatives against terrorism in the pipeline, and the emphasis was on bilateral or multilateral cooperation between MS on single issues and cases.”20 Admittedly, the ad hoc interagency and intergovernmental cooperation against different forms of subversive and independentist terrorism opened the way for what ultimately evolved into the EU’s JHA policy. As Monica den Boer and Jörg Monar noted: [O]ne could argue that several strata of counter-terrorism activities were already in place within the EU before 11 September: institutionally, a European police 17  European Commission, Proposal for a Council Framework Decision on Combating Terrorism, COM (2001) 521 Final, 5. 18 The treaty also moved some JHA matters, namely visas, immigration, border controls, and asylum measures from the Third Pillar into the First Pillar. The Third Pillar was renamed Police and Judicial Cooperation in Criminal Matters (PJCCM) to reflect these changes but the term Justice and Home Affairs is still used to encompass all original third pillar areas. 19  Adam Townsend, “Can the EU Achieve an Area of Freedom, Security and Justice?” Center for European Reform, October 2003, , accessed 25.1.2005. 20  John Howell & Co., Independent Scrutiny: The EU’s Efforts in the Fight Against Terrorist Financing in the Context of the Financial Action Task Force’s Nine Special Recommendations and the EU Counter Terrorist Financing Strategy. European Commission, 1.2.2007, 20.

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office competent to deal with terrorism-related offences; legally, conventions and additional legal instruments to facilitate extradition; and operationally, direct and regular contact between the heads of the European security services, an anti-terrorism repertory, and a regular update of the security situation.21

But the delays in the ratification of the Europol Convention and other key counterterrorism measures by several EU MS suggest that even in the 1990s, counterterrorism was still perceived predominantly, if not exclusively, as a national issue. As Anastassia Tsoukala argued, prior to September 11, 2001, “the position of the European Union toward terrorism has been limited to a strictly political level.”22 While the representatives of all EU MS had consistently condemned terrorism and several MS had a long history of fighting political terrorism since the 1960s, the formation of a genuine EU counterterrorism policy had only been fully integrated into the Council’s agenda after the terrorist attacks on the US. In short, as Wilhelm Knelangen put it, the 9/11 events did not represent “Stunde Null” for the EU’s efforts to combat terrorism but they marked an important turning point.23 Post–9/11 EU Counterterrorism Policy The counterterrorism dynamics prevalent in the aftermath of 9/11 were seized by the EU as both opportunity and proof of the necessity to further reinforce its internal coherence.24 The European Commission, in particular, promoted specific steps leading towards a full-fledged EU counterterrorism policy. As early as September 17, 2001, for example, it decided that the European Arrest Warrant and the Framework Decision on Terrorism, both of which had been in preparation since 1999, would be accelerated and put forward as the central

21  Monica Den Boer and Jörg Monar, “Keynote Article: 11 September and the Challenge of Global Terrorism to the EU as a Security Actor,” in The European Union: Annual Review of the EU 2001/2002, ed. Geoffrey Edwards and Georg Wiessala (Oxford, UK: Blackwell, 2002), 21. 22  Anastassia Tsoukala, “Democracy Against Security: The Debates About Counterterrorism in the European Parliament, September 2001–June 2003,” Alternatives: Global, Local, Political 29, no. 4 (August–October 2004): 29. 23  Wilhelm Knelangen, “Die Innen- un Justizpolitische Zusammenarbeit der EU und die Bekämpfung Des Terrorismus,” in Die Europäische Union Im Kampf Gegen Den Terrorismus: Sicherheit Vs. Freiheit, ed. Erwin Müller and Patricia Schneider (BadenBaden: Nomos, 2006), 142. 24  Although this volume is concerned with the EU’s counterterrorism policy, it is crucial to note the EU MS also responded to the 9/11 events by strengthening national counterterrorism measures. See Zimmermann and Wenger, How States Fight Terrorism.

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EU counterterrorism measures.25 Also trying to seize the post 9/11 “window of opportunity,”26 specialized EU agencies such as Europol were pushing for more EU action in the area of counterterrorism.27 The representatives of the EU MS also immediately engaged in a long series of meetings, which ultimately led to the Extraordinary European Council Meeting on September 21, 2001. Building on the conclusions adopted by the JHA Council the day before, the Extraordinary Council approved a comprehensive “European policy to combat terrorism,” titled the Plan of Action. In this document, the European Council called for the adoption of instruments and measures in five areas: 1. 2. 3. 4. 5.

Enhancing police and judicial cooperation; Developing international legal instruments; Putting an end to the funding of terrorism; Strengthening air security; Coordinating the EU’s global action.28

Importantly, the plan bound all EU MS to a single long-term counterterrorism strategy, implying that the rotating presidencies were no longer able to set the EU counterterrorism agenda solely on the basis of their own national priorities. Thus, as Dorine Dubois pointed out, “the events of 11 September have indirectly allowed the EU to become a consistent actor in the fight against terrorism.”29 It is also important to note that with 431 votes in favor, 45 in opposition and 24 abstentions, the Extraordinary EU Council counterterrorism measures were given a ringing endorsement by the European Parliament on October 4, 2001. The Plan of Action also represented a genuinely European policy response to 9/11 and was not a result of external pressure from the US, which may have been the case with some of the subsequent EU counterterrorism initiatives.30 25 Raphael Bossong, “The Action Plan on Combating Terrorism: A Flawed Instrument of EU Security Governance,” Journal of Common Market Studies 46, no. 1 (January 2008): 34. 26 Monica Den Boer, “The EU Counterterrorism Wave: Window of Opportunity or Profound Policy Transformation?” in Confronting Terrorism. European Experiences, Threat Perceptions and Policies, ed. Marianne van Leeuwen (The Hague: Kluwer, 2003), 185–206. 27  John D. Occhipinti, The Politics of EU Police Cooperation: Toward a European FBI? (Boulder, CO: Lynne Rienner Publishers, 2003), 149. 28  Council of the European Union, “Conclusions and Plan of Action of the Extraordinary European Council Meeting on 21 September 2001,” , accessed 10.2.2004. 29  Dorine Dubois, “The Attacks of 11 September: EU-US Cooperation Against Terrorism in the Field of Justice and Home Affairs,” European Foreign Affairs Review 7 (2002): 324. 30  The Deputy Chief of US Mission to the EU presented a list of specific “proposals” for enhanced EU-US counterterrorism cooperation in a letter to Romano Prodi in October

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According to the critics, however, “the Action Plan did little more than give a green light to various initiatives that had already been put on the agenda in the immediate aftermath of 9/11 by the European Commission.”31 Moreover, as noted above, various EU policy entrepreneurs led by the European Commission seized the post-9/11 momentum to advance older policy proposals by loosely matching them to the new salient problem, although many of them went clearly beyond, or had rather tenuous links to, the fight against terrorism. As Knelangen noted, apart from numerous calls for intensified cooperation at both horizontal (e.g., among EU MS) and vertical (e.g., among EU MS and relevant EU agencies) levels, the EU’s Action Plan actually consisted of projects that were originally developed as a means to combat serious organized crime, not terrorism per se.32 According to Nilsson, however, the fact that many of the EU’s counterterrorism instruments are not directly geared to terrorism, but rather to general cooperation in criminal matters, is only natural because “the fight against crime is usually best fought via these types of general instruments.” The problem is that “this is not well understood by critics of the Union, who accuse the Union of using the terrorist agenda to further wider goals that are not specifically ‘terrorist relevant.’”33 This was also confirmed in several of my interviews with EU officials: Counterterrorism is a question of a particularly repulsive and well-organized form of crime, but fundamentally, it is crime and therefore it is not surprising that counterterrorism measures turn out to be more generally useful in combating crime, and conversely, measures that may have been previously discussed in respect to fighting crime, will turn out to be significantly useful in fighting terrorism.34

Further details concerning this important disagreement go beyond this introductory overview of EU counterterrorism policy but they are provided in Chapter 9 in the context of the justice and/or/versus security debate. The very title “Action Plan” was also described by Raphael Bossong as rather “unfortunate,” because the document did not actually represent an idealtypical action plan, e.g., one that would list targets, actors and deadlines as well as achievements in relation to a specific, if broad, objective.35 These were only supplied by the Council Secretariat on September 26, 2001, in the form of a socalled “Anti-terrorism Roadmap” containing more than 60 measures that would 2001. The letter is available at http://www.statewatch.org/news/2001/nov/06Ausalet.htm. 31  Bossong, “The Action Plan on Combating Terrorism,” 35. 32  Knelangen, “Die Innen- un Justizpolitische Zusammenarbeit der EU,” 144–5. 33 Hans Nilsson, “Judicial Cooperation in Europe Against Terrorism,” in The European Union and Terrorism, ed. David Spence (London: John Harper Publishing, 2007), 72. 34  Interview with an anonymous EU official, October 2008. 35  Bossong, “The Action Plan on Combating Terrorism,” 35–36.

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be updated and periodically revised at subsequent meetings of the JHA Council.36 Eventually, this document came to merge with, or even replace, the original Action Plan by the European Council. According to Keohane, however, the real problem with the action plan is that “it is too unwieldy for policy guidance.”37 As a consequence, some senior EU officials working on counterterrorism issues have allegedly admitted “that they have not even read the plan” and one even recommended that “EU leaders should scrap it altogether and replace it with a basic set of principles.”38 Other critics have noted that the 2001 Action Plan is “a flawed governing instrument” because “the over-ambitious and hectic adoption of disparate measures during the ‘window of opportunity’ after 9/11 by the Commission and JHA ministers has short-circuited essential discussions about objectives, instruments and responsibilities, has given rise to implementation and accountability problems and has damaged the credibility of the EU as security provider.”39 It appears that “[d]uring the first phase of agenda-setting the simple availability of a proposal was arguably more important than its effectiveness and proportionality.”40 Moreover, the flip side to top-level decision-making at lightning speed and under conditions of intense publicity immediately after the 9/11 events has been an increasing use of informal networks outside of the EU framework (see Chapter 4). Impact of Madrid Terrorist Attacks On March 11, 2004, exactly two-and-a-half years after the September 11, 2001 attacks on the United States and just a few months before 10 new MS joined the EU,41 a series of blasts killed more than 200 train passengers in Madrid. This first Al-Qaeda-linked terrorist attack on their own home soil prompted the EU MS to review all the measures they had taken thus far to combat terrorism. At the EU 36  Council of the European Union, “Anti-Terrorism Roadmap,” SN 4019/01, 26.9.2001 , accessed 28.1.2008. 37 Daniel Keohane, “Implementing the EU’s Counter-Terrorism Strategy,” in International Terrorism. A European Response to a Global Threat? ed. Dieter Mahncke and Jörg Monar (Brussels: Peter Lang, 2006), 64. 38 Ibid. 39  Bossong, “The Action Plan on Combating Terrorism,” 35. 40 Raphael Bossong, The EU’s Mature Counterterrorism Policy – A Critical Historical and Functional Assessment, LSE Challenge Working Paper, June 2008, , 3. Accessed 21.11.2008. 41  Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republic and Slovenia. For an analysis of the extension of the EU counterterrorism policy to these new MS, see Oldrich Bures, “EU Counterterrorism Policy and the 2004 Eastern Enlargement.” Central European Journal of International and Security Studies 1, no. 1 (Summer 2007), 7–27.

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level, a number of internal reports revealed that implementation of the measures agreed upon after 9/11 had been “slow, poor and inadequate”42 and top-level EU officials suddenly became unusually outspoken in their sharp criticisms of the tendency of the EU MS to produce “networks and institutions and then refuse to provide them with necessary tools to perform their jobs or simply not [use] them.”43 Perhaps most alarmingly, the Austrian Chancellor Wolfgang Schüssel suggested that the measures previously taken by the EU had been “absolutely not sufficient as a protection against terrorism.”44 Also seizing the momentum created by the Madrid attacks, the European Commission sharply criticized the lack of intelligence data sharing and proposed a number of ways to enhance operational coordination and cooperation in the area of counterterrorism at the EU level.45 Subsequently, it released five communications formulating policies in three separate areas: terrorism financing, critical infrastructure protection and response management (see below). According to Javier Argomaniz, the Commission’s choice was quite revealing, because “not only were they considered priorities for EU action by the Declaration but these were fields where the Commission possessed important competencies derived from the Community pillar. Aware of member states’ initial suspicions, the Commission was generally cautious to avoid supranational recipes.”46 It is also worth noting that in the latter two areas, EU action was practically non-existent prior to the Madrid terrorist attacks and in all three areas, the Commission has specifically aimed to engage the private sector. While on the one hand this new emphasis on a public-private security dialogue and cooperation may be interpreted as an attempt of the Commission to reinforce its role in counterterrorism with the support of new allies, there is also “an element of inevitability: due to the private ownership of major elements of critical infrastructure any security and control measures will, almost by definition, require the involvement of both private and public interests.”47 The same applies to the fight against terrorist financing, where private financial institutions are actually shouldering the bulk of counterterrorism work in practice (see Chapter 8). A number of individual MS have also capitalized on this same momentum to enhance EU counterterrorism policy in the area of intelligence sharing. Austria and Belgium, for example, put forward a proposal suggesting that the EU should 42  European Commission, “European Commission Action Paper in Response to the Terrorist Attacks on Madrid,” 19.3.2004 , accessed 20.3.2004. 43  European Commission, “European Commission Action Paper in Response to the Terrorist Attacks on Madrid.” 44  BBC Monitoring International Reports, Lexis Nexis search, 18.3.2004. 45  European Commission, “European Commission Action Paper in Response to the Terrorist Attacks on Madrid.” 46  Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 103. 47 Ibid., 236.

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create a “CIA-style intelligence agency to pool information on the extremist threat.”48 It has, however, failed to generate enough support from either the other MS or the European Commission (see Chapter 4). In a comment that was subsequently echoed by his French and German counterparts, former British Home Secretary David Blunkett suggested the priority should be implementing those counterterrorism measures already agreed upon after the 9/11 terrorist attacks: “We don’t want new institutions. What I’m interested in is hard, practical action. Let’s cut out the waffle and let’s make sure that whatever we do, we’re practicing what we preach at home.”49 The MS did, nevertheless, agree upon a number of other initiatives, including the need to improve border control, response management, infrastructure protection, judicial cooperation and information exchange. Agreement was also reached on the establishment of the Situation Centre (SitCen) and the need to appoint an EU counterterrorism coordinator, both of which were to work under the High Representative for Common Foreign and Security Policy (CFSP) at the Council’s Secretariat. Further expanded in 2005, SitCen is composed of seconded analysts from external and internal intelligence agencies of the EU MS. Using assessed intelligence from national and open sources, they produce intelligence reports in counterterrorism, thus making the center a key component of the EU’s embryonic intelligence architecture.50 The role and powers of the EU counterterrorism coordinator are analyzed in Chapter 6 but the very acknowledgement of the need to create such a position reflected the fact that despite the frequent calls by European governments to step up cooperation in counterterrorism, the Council of Ministers, the Commission and even the MS on a bilateral level, often could agree how to coordinate. The March 2004 European Council took notice of many of the aforementioned critiques and confirmed the need to review what has been done to combat terrorism in Europe. It also issued a Declaration on Combating Terrorism, which outlined seven EU strategic objectives to combat terrorism in a Revised Plan of Action: 1. to deepen the international consensus and enhance international efforts to combat terrorism; 2. to reduce the access of terrorists to financial and other economic resources; 3. to maximize capacity within EU bodies and MS to detect, investigate and prosecute terrorists and prevent terrorist attacks; 4. to protect the security of international transport and ensure effective systems of border control; 48  Jitendra Joshi, “EU Holds Emergency Terror Talks After Madrid Blasts,” Agence France Presse, Lexis Nexis News Search, 19.3.2004. 49 Ibid. 50  Council of the European Union, EU Council Secretariat Factsheet. The European Union and the Fight Against Terrorism. Press Release, 9.3.2007.

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5. to enhance the capability of the EU and of MS to deal with the consequences of a terrorist attack; 6. to address the factors which contribute to support for, and recruitment into, terrorism; 7. to target actions under EU external relations toward priority third countries where counterterrorist capacity or commitment to combating terrorism needs to be enhanced.51 While it is clear that the primary aim of the Revised Plan of Action was to eliminate the previous EU counterterrorism policy’s tactical shortcomings, the wording of objectives 6 and 7 seemed to suggest that some changes are also necessary at the strategic level. This concerned especially the fight against the so-called root cause of terrorism and radicalization, both within the EU (see Chapter 1 and below) and globally (see Chapter 10). In practice, however, little had been achieved in this area before the London terrorist attacks. In many respects, nevertheless, the Revised Plan of Action at least represented the first EU call to address terrorism in a comprehensive fashion. Importantly, this call was also accompanied by a Solidarity Clause – a formal commitment of EU MS to assist any EU MS that fell victim to a terrorist attack (see Chapter 10). This, according to H.G. Nillson, was a key political initiative since it illustrated the symbolic “Europeanisation” of the terrorist threat.52 In November 2004, at another European Council meeting in the Hague, the EU MS discussed how to follow upon the ambitious five-year action plan to transform the EU into a true “area of freedom, security and justice” adopted in Tampere in 1999. In these discussions, the adoption of the treaty establishing a constitution for Europe (EU Constitutional Treaty) by the Intergovernmental Conference weighed heavily and the new five-year blueprint on “strengthening freedom, security and justice in the EU” – the so-called Hague Programme – therefore placed emphasis on both the fact that it reflected “the ambitions expressed in the Treaty establishing a Constitution for Europe” and the need to address the post-Madrid security considerations. The overall priorities set out in the Hague Programme were further elaborated by the European Commission in May 2005, when a five-year Action Plan for Freedom, Justice and Security was launched. This policy initiative was supposed to turn the Hague Programme’s agenda into concrete actions, including a timetable for their adoption and implementation by 2010. It contained detailed proposals for EU action on terrorism, migration management, visa policies, asylum, privacy and security, the fight against organized crime and criminal justice, while 51  Council of the European Union, Declaration on Combating Terrorism. April 2004, , accessed 4.4.2004. 52 Hans Nilsson, “Judicial Co-Operation in the European Union,” in European CoOperation Against Terrorism, ed. Olivia Horvath and Bremmers Tim (Nijmegen: Wolf Publishers, 2004), 15.

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recognizing that none of these issues can be effectively addressed in isolation. Among the measures introduced by the Commission in the area of counterterrorism were proposals aiming at greater cooperation between the law-enforcement services of MS, particularly by means of improved exchanging of information; a European framework for the protection of related data; a communication on the radicalization and recruitment of terrorists; a communication on the protection of vulnerable infrastructures; a communication on the prevention of and the fight against terrorism financing; a proposal aiming to prevent the use of charitable organizations to fund terrorism; and monitoring the pilot project in place for the victims of terrorism.53 One important complication with the implementation of the Hague Programme was that many of its provisions anticipated the coming into force of the Constitutional Treaty in 2006, and many of its measures were therefore linked to the treaty’s provisions. Some observers have argued that in the absence of the Constitutional Treaty, an institutional “stalemate” has been reached, particularly in JHA. According to a British report, for example, there is agreement among MS that “the implications for the Hague Programme of the failure of the Treaty mean that a reprioritization of Justice and Home Affairs priorities for the next few years is needed. Such reprioritization is likely to focus on a few key objectives.”54 For its part, the Commission responded to the failure of the treaty ratification in July 2006 by producing a communication, where it summarized the progress made thus far and laid out key priority areas in JHA for the next few years. But it also commented that good-quality and timely decisions are increasingly hard to reach and warned that “a number of JHA measures are bogged down indefinitely in the decision-making mechanisms. Moreover, where an agreement is eventually reached, it is often on the basis of the “lowest common denominator.”55 According to Monar, another major shortcoming of the Hague Programme had to do with its relative timidity, even in comparison with its predecessor, the Tampere Programme: “The new Programme contains relatively few innovative elements, giving preference to continuity in policy development and placing the main emphasis in completing existing measures and avoiding any more controversial issues.”56 In the field of counterterrorism, the Programme merely 53  . European Commission, The Hague Programme – Ten Priorities for the Next Five Years. May 2005, , accessed 1.8.2006. 54 Home Affairs Committee UK House of Commons, “Justice and Home Affairs Issues at European Union Level,” Third Report of Session 2006–07, Volume I. , para. 58. Accessed 17.4.2008. 55  European Commission, Implementing the Hague Programme – the Way Forward. COM(2006) 331 Final. 28.6.2006. 56  Jörg Monar, “The Hague Programme: Tampere’s Modest Successor,” Challenge Europe 14, 12.9.2005 , accessed 30.5.2008.

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reiterated the principle of solidarity and introduced the principle of availability, which aims to enable law-enforcement officers from any Member State to obtain information they may need to perform their duties from a law-enforcement agency in any other state. On balance, however, neither The Hague Programme nor the Declaration or the Action Plan succeeded in providing clear strategic guidance to the EU’s counterterrorism efforts, where the prevalence of a “sense of urgency pattern” had once again resulted in “incremental and piecemeal policy making.”57 From the long list 175 measures under the Revised Plan of Action, only 57 were somewhat new and 27 of them were not restricted to terrorism only,58 thus arguably continuing the pattern of repackaging of security instruments under the rubric of counterterrorism to facilitate their rapid adoption. As such, the EU’s response to terrorism after 9/11 continued to be largely ad hoc and re-active in its nature, whereby a major terrorist attack provided the impetus for a sudden proliferation of counterterrorism measures, only to be followed by decelerations and inertia once the memories of the attack began to fade. Impact of London Terrorist Attacks On July 7, 2005, London became the second European capital that was hit by a major terrorist attack since 2001. While the subsequent investigations have not proved any direct links to Al-Qaeda, the attacks definitely confirmed that the threat of Islamist terrorism in the EU is a real one. Moreover, for the first time in Europe, homegrown terrorists – young British-born men – committed suicide attacks. As such, the London attacks led to an important change in the perception of the terrorist threat in Europe, moving from the almost exclusive focus on Al-Qaeda prevalent after the 9/11 attacks to homegrown terrorism as a product of intra-EU radicalization processes and terrorist recruitment (see Chapter 1). The EU MS responded to the attacks with a Council Declaration where they reiterated the need to accelerate the piecemeal implementation of the EU Action Plan on Combating Terrorism. The British Council presidency seized the momentum after the attacks and within a few months prepared a new EU Counterterrorism Strategy that was to provide a solid framework for EU activity in this field. Adopted by the European Council in December 2005, the new strategy set out four key objectives: 1. prevent new recruits to terrorism; 2. better protect potential targets, 3. pursue and investigate members of existing terrorist networks; 4. improve the capability to respond to and manage the consequences of terrorist attacks. According to this strategy, the EU should help its MS to achieve these 57 Monica Den Boer, “Fusing the Fragments. Challenges for EU Internal Security Governance on Terrorism,” in International Terrorism. A European Response to a Global Threat? ed. Dieter Mahncke and Jörg Monar (Brussels: Peter Lang, 2006), 86. 58 Statewatch, “Scoreboard” on Post-Madrid Counter-Terrorism Plans.” 23.3.2004, . Accessed 25.8.2004.

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objectives in four ways: 1. promoting international partnership; 2. developing collective capabilities; 3. promoting European cooperation; and 4. strengthening national capabilities.59 Although the Counterterrorism Strategy had no direct impact on EU policy-making, “it succeeded in staking out the possible or desirable contribution of the EU.”60 For each of its four objectives, there is a list of key priorities and the updated EU action plan on combating terrorism now contains more than 200 specific measures. The 2005 EU Strategy was clearly modeled on the UK’s “four Ps” national counterterrorism strategy: Prevention, Pursuit, Protection and Preparedness. As such, it reflected the realization that repressive counterterrorism measures need to be accompanied with preventive ones, thus further highlighting the importance of addressing terrorist incitement, radicalization and recruitment within EU MS. As Bossong pointed out, the underlying message was “that the EU is covering all possible angles of an effective counterterrorism policy, i.e. the before as well as after an attack, and at the level of structure as well as agency.”61 Alternatively, according to Rhinard, Boin and Ekengren, the new EU Strategy signalled a shift to a “crisis management” approach to terrorism, which is itself a subset of a more general “all hazards” approach that the EU has increasingly utilized to deal with intentional security threats and unintentional structural hazards. The key variable is not the nature of the threat or type of crisis that can strike the EU and its MS, but the organizational capacity at both the national and EU levels to respond to these challenges.62 According to the critics, however, the Strategy actually came too late and its four pillars were mere reformulations of the seven strategic objectives presented in the post-Madrid Council Declaration.63 Moreover, as one interviewed EU official pointed out, the strategy “is not terribly well articulated and lots of bits of it are pulling in slightly different directions, sometimes because the mandates of the different institutions were not sufficiently adapted since 9/11 or because of the constraints of the different pillars in which they find themselves. … That means that whatever you come up with it is going to have problems with coherence, however you try to do it.”64 On a related note, the strategy did not indicate which policies are the most important for the EU’s fight against terrorism so there is still “a lack of

59  Council of the European Union, European Counter Terrorism Strategy. 1.12.2005, , accessed 27.1.2006. 60  Bossong, The EU’s Mature Counterterrorism Policy, 10. 61 Ibid., 10. 62  Rhinard, Boin, and Ekengren, “Managing Terrorism: Institutional Capacities and Counter-Terrorism Policy in the EU,” 90. 63 Daniel Keohane, The EU and Counter-Terrorism (Center for European Reform, May 2005). 64  Interview with an anonymous EU official, October 2008.

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prioritarization in EU counter-terrorism.”65 Alternatively, some experts have even argued that the current EU Counterterrorism Strategy is more of a “shopping list” rather than a real strategy offering a coherent and ranked set of policy objectives.66 Moreover, its objectives are “so broad that almost any policy can be presented as being relevant.”67 This may be one explanation for the subsequent drafting of more tailored policy documents such as the 2004 EU Anti-Terrorist Financing Strategy or the 2005 European Strategy to Combat Radicalization and Terrorist Recruitment (see below). When it comes to the Prevent pillar, arguably the most important, yet also the most challenging component of any counterterrorism policy, the Commission has proposed a number of new initiatives in the aftermath of the London terrorist attacks, especially in the area of countering radicalization and terrorist recruitment. In September 2005, it published a communication where it identified “an abusive interpretation of Islam” as the main current threat and stressed that the Madrid and London terrorist attacks also indicated “how those involved may be European citizens, whose motivations defy simplistic categorization; not being sociallyexcluded, socio-economically disadvantaged, unemployed or living in deprived suburbs of large cities or inner-city housing estates, or from immigrant families.”68 Building on this communication, the Council adopted The European Union Strategy for Combating Radicalization and Recruitment to Terrorism, which states that to counter radicalization and terrorist recruitment, the EU resolves to: 1. disrupt the activities of the networks and individuals who draw people into terrorism 2. ensure that voices of mainstream opinion prevail over those of extremism 3. promote yet more vigorously security, justice, democracy and opportunity for all.69 Importantly, both the Commission and the Council stressed the need to extend the EU counter-radicalization efforts beyond the territory of the EU MS, noting that “development assistance can help erode the support base for terrorist networks and movements through a focus on reducing inequalities, support for democratization and respect of human rights in addition to actions on good governance, the

65  Keohane, “Implementing the EU’s Counter-Terrorism Strategy,” 65. 66 Daniel Keohane and Hugo Brady, Fighting Terrorism: The EU Needs a Strategy, not a Shopping List (Center for European Reform, October 2005). 67  Bossong, The EU’s Mature Counterterrorism Policy, 10. 68  European Commission, Communication from the Commission to the European Parliament and the Council: Terrorist recruitment: addressing the factors contributing to violent radicalization, COM (2005) 313 final, (2005), 2, 11. 69  Council of the European Union. The European Union Strategy for Combating Radicalisation and Recruitment to Terrorism, 14781/1/05 (2005), 3.

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fight against corruption and security system reform.”70 Thus, as part of the new strategy: • •

•

•

The Council approved a Media Communication Strategy aiming to improve the portrayal of EU policies across the world by challenging inaccurate depictions of EU measures. The European Monitoring Centre on Racism and Xenophobia (EUMC) has been tasked with the production of periodic reports on Islamophobia in order to avoid the stigmatization of European Muslims and ensure the protection of the Muslim minority rights. Several expert meetings have been convened by Council, Europol and SitCen to allow for the comparative analysis of national experiences on issues such as radicalization in prisons, jihadists’ use of the Internet, satellite channels disseminating terrorist propaganda and strategies to encourage recruits to leave terrorist groups. An academic experts group on violent radicalization was established by the Commission in April 2006 and produced a report on the state of play of academic research in the field in 2008.71

The 2005 Strategy also served as the starting point for the drafting of the EU’s Action Plan on Combating Radicalization and Recruitment, whose contents are not publicly accessible. In 2006, the Commission also contracted four comparative studies on factors that could possibly trigger or affect violent radicalization processes: the beliefs, ideologies and narrative of violent radicals; the methods through which violent radicals mobilize support for terrorism and find new recruits; and on best practices in cooperation initiatives between authorities and civil society designed to prevent and respond to violent radicalization.72 These studies provided an important backdrop for discussion surrounding the update of the 2005 Strategy73 and Action Plan at the end of 2008 and they constituted an important starting point for further discussions in the field within the network of experts on radicalization set up by the Commission. Overall, it is nevertheless possible to argue that “anti-radicalization as an EU policy is at a very early stage of institutionalization and EU efforts have hitherto centered more on mapping out and analyzing the problem than on seriously 70  European Commission, Communication from the Commission to the European Parliament and the Council, 9. 71  Council of the European Union, Implementation of the Strategy and Action Plan to Combat Terrorism, 9589/06. 19.5.2006; Council of the European Union, Implementation of the Strategy and Action Plan to Combat Terrorism, 15266/1/06, 24.11.2006. 72  The studies are available at: http://ec.europa.eu/justice_home/fsj/terrorism/ prevention/fsj_terrorism_prevention_prevent_en.htm. 73  Council of the European Union, Revised EU Strategy for Combating Radicalisation and Recruitment to Terrorism, 15175/08. 14.11.2008.

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addressing it.”74 Moreover, taking into account the most recent findings from the radicalization literature (see Chapter 1), it may be argued that the EU counterradicalization strategy has thus far largely failed to take into account the importance of self-radicalization in the European context. As a consequence, much of the focus is still on the initial understanding of radicalization as a matter of traditional recruitment that takes places in particular hot spots such radical mosques, prisons and neglected suburbs. The belated and still weak EU’s role in the Prevent pillar is due to several factors. Firstly, fighting the root causes of terrorism implies that one actually knows what they are and as discussed in Chapter 1, there is no consensus on this important topic even in the available academic literature. Similarly, there is no single terrorist profile and it is difficult to understand what steps are involved in convincing individuals to actually join a terrorist group. As a consequence, the Commission initially tried “to help by clarifying things by doing lots of research” but according to practitioners, this takes a lot of time and “action is needed now – we cannot wait that long for research to come.”75 Secondly, as in other areas of counterterrorism, it has also been difficult to sustain the necessary political momentum. As one interviewed EU official noted in 2008: It took time for both MS and EU institutions to get a grip on what is really going on and what needs to be done about it after 9/11. But recently I see improvement – four years ago, nothing; now we have a strategy, projects funded by EU, etc. A lot is going on now but more needs to be done and politicians at highest levels underestimate the problem. Madrid and London were major wake-up calls – hopefully we will not need another Madrid to keep the momentum.76

Thirdly, and arguably most importantly, as acknowledged even in the European Union Strategy for Combating Radicalization and Recruitment to Terrorism: The challenge of combating radicalisation and terrorist recruitment lies primarily with the MS, at a national, regional and local level. They set the social, education, and economic policies that can foster equality and inclusion within mainstream society. It is they who determine foreign, defence and security policies, and the manner in which these are publicly communicated.77

The importance of the national and local levels in counter-radicalization was also recognized by the EU’s counterterrorism coordinator, who has recently been

74  Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 253. 75  Interview with an anonymous EU official, October 2008. 76 Ibid. 77  Council of the European Union. The European Union Strategy for Combating Radicalisation and Recruitment to Terrorism, 6.

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working with several MS to develop more concrete best practices projects that focus on specific aspects of the EU’s counter-radicalization strategy.78 Fourthly, as discussed in the following chapters, at the supranational level the EU faces several crucial structural obstacles: it is almost completely excluded from operational intelligence-sharing; it has a weak external foreign and security policy; and it has almost no competences in matters of integration, education and social policy. Also, taking into account the complexity of a long-term counterradicalization strategy that must involve socio-economic, cultural, educational, as well as security elements, and the fact that EU MS’ existing national integration models, Muslim and other minority communities’ size and geographical distribution, their national origins and religious traditions vary enormously across the territory of the EU (see Chapter 2), the EU’s contributions in this area are bound to remain relatively limited even in the foreseeable future. As Cameron aptly noted, the aforementioned EU counter-radicalization studies have described the problem but they did not, and could not, prescribe any solution because “only national government could do that.”79 Finally, according to one interviewed Commission official, “public policy also has to be modest about its possibilities to deal with radicalization. It is a fail/trial process in 70 percent of situations, so some degree of luck is always needed.”80 In the Protect pillar, post-7/7 Commission counterterrorism initiatives include the controversial 2007 agreement with US authorities for the transfer of passenger name records (PNR) data81 and the initiative for a European PNR system. In 2006, the foiled plot to blow up several transatlantic flights by liquid explosives also led to a corresponding change in aviation security regulations82 and in 2008 April the Council and the European Parliament agreed to a consolidation and extension of the Commission’s regulatory power in this area, which now also touches controversial areas, such as the use of sky marshals.83 A parallel, if not quite as 78  EurActiv.com, De Kerchove: ‘We Must Help the Americans Close Guantanamo,’ 20.9. 2008, , accessed 6.4.2010. 79  Fraser Cameron, “Transatlantic Relations and Terrorism,” in The European Union and Terrorism, ed. David Spence (London: John Harper Publishing, 2007), 135. 80  Interview with a Commission official, October 2008. 81  Subsequently approved by the Council as Council Decision 2007/551/CFSP/JHA of 23 July 2007 on the Signing, on Behalf of the European Union, of an Agreement Between the European Union and the United States of America on the Processing and Transfer of Passenger Name Record (PNR) Data by Air Carriers to the United States Department of Homeland Security (DHS). OJ L 2074/16. 82  European Commission, Commission Regulation (EC) No 1546/2006 of 4 October 2006 Amending Regulation (EC) No 622/2003 Laying Down Measures for the Implementation of the Common Basic Standards on Aviation Security Text with EEA Relevance. OJ L 286/6. 83  Council of the European Union, Regulation (EC) No 300/2008 of the European Parliament and of the Council of 11 March 2008 on Common Rules in the Field of Civil

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extensive, development has taken place in the management of maritime security, where the 2005 Ports Security Directive represents the most important piece of EU legislation.84 Similarly, although not primarily focused on counterterrorism, the establishment of the European Border Agency (Frontex) in Warsaw in May 2005 represents a step forward toward enhanced protection of EU borders against terrorist infiltration that the 2005 Strategy called for, although it is worth reiterating that many experts worry more about radicalized EU nationals than migrants to the EU (see Chapter 1). Other EU measures in this area include the requirement to introduce biometrics in all relevant identification documents, including fingerprints by 2012. A common position was reached to improve information sharing on lost and stolen passports in June 2005. Exchange of data with Interpol is included but “there is still work to ensure widespread consultation in MS of data from third countries.”85 Another increasingly important component of the EU’s protective measures is critical infrastructure protection, which is intended to protect all core transport, energy and communication networks against all kinds of hazards, including terrorism. The first Commission communication entitled Critical Infrastructure Protection in the Fight against Terrorism was drafted in 2004 and its proposals for setting up a European Programme for Critical Infrastructure Protection (EPCIP) and a Critical Infrastructure Warning Information Network (CIWIN) were adopted by the Council later that same year. Following a number of seminars and informal expert meetings in 2005, the Commission produced a Green Paper on a European Programme for Critical Infrastructure Protection in November 2005 and in December 2006 a policy package on EPCIP was adopted, composed of a communication and a directive proposal that was ultimately adopted in December 2008.86 Finally, in March 2007 the Council decision establishing a Civil Protection Financial Instrument provided that EU financial assistance may be given, both as a contribution to improving the effectiveness of response to major emergencies, and to enhancing preventive and preparedness measures for all kinds of emergencies such as natural and man-made disasters, and acts of terrorism.87 In practice, however, despite the recent expansion of funding for research on security technology, critical infrastructure protection efforts of the EU have not

Aviation Security and Repealing Regulation (EC) No 2320/2002. OJ L 97/72. 84  European Parliament and the European Council, Directive 2005/65/EC of the European Parliament and of the Council of 26 October 2005 on Enhancing Port Security, OJ L 310/28. 85  Interview with a Council official, October 2008. 86  European Commission, EPCIP – European Programme for Critical Infrastructure Protection. May 2007, , accessed 30.05.2008. 87  Council of the European Union, Council Decision of 5 March 2007 Establishing a Civil Protection Financial Instrument, 2007/162/EC. OJ L 71/9.

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yielded many concrete results thus far.88 To some extent, this is due to the fact that critical infrastructure protection is a complex policy area with an unclear number of both private and public stakeholders that need to be brought together. But perhaps even more importantly, “apart from time and resource constraints, there is a second, more serious limitation, namely the doubtful relevance of many of these ‘protective measures’ to an effective counterterrorism policy. … One should not expect a technological ‘protection’ from terrorism. There is a limit to how many targets can be ‘hardened’, whereas terrorists can potentially strike everywhere.”89 Others have also warned over false sense of protection provided by new surveillance technologies as they cannot replace the old-fashioned, yet still crucial, human intelligence,90 which is an area outside EU’s competence (see Chapter 4). In the Respond pillar, the EU has mostly focused on civil protection measures such as information exchange and emergency response coordination, with special emphasis on improving the response capacities to chemical, biological, radiological and nuclear (CBRN) attacks.91 Specific attention has been paid to increasing security of explosives, culminating with the adoption of the Action Plan on Enhancing the Security of Explosives by the Council in 2008. The Action Plan builds on the work of the Explosives Security Experts Task Force (ESETF), a forum of about 100 experts representing public and private stakeholders that was first convened by the Commission in 2007. It contains 47 specific measures to be taken under the horizontal, prevention, detection and response headings, along with deadlines for their implementation. Funding has been made available The Prevention of and Fight against Crime Programme and the Seventh Framework Research Programme. Concrete measures include the installation of an EU-wide Early Warning System, which should notify the relevant national authorities of any potential threats following missing or stolen explosives, and a Network on the Detection of Explosives, which should provide expertise and support the Commission in its initiatives on detection-related issues at the EU level.92 At the legal level, better identification and traceability of explosives has been enabled by 88  Asa Fritzon et al., “Protecting Europe’s Critical Infrastructures,” Journal of Contingencies and Crisis Management 15, no. 1 (2007): 30–41. 89  Bossong, The EU’s Mature Counterterrorism Policy, 15–6. 90  Björn Müller-Wille, “The Effect of International Terrorism on EU Intelligence CoOperation,” Journal of Common Market Studies 46, no. 1 (January 2008): 49–73. 91  Council of the European Union, Second Annual Presidency Report (2004) to the Council on the Implementation of the Joint Programme of the Council and the Commission of 20 December 2002, to Improve Cooperation in the European Union for Preventing and Limiting the Consequences of Chemical, Biological, Radiological or Nuclear Terrorist Threats (2002 CBRN Programme), 8988/05. 31.05.2005. European Commission, Communication on Stepping up the Fight Against Terrorism, COM(2007) 649 Final. 6.11.2007. 92  Council of the European Union, EU Action Plan on Enhancing the Security of Explosives, 15175/08. 4.8.2008.

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the adoption of a Commission directive;93 security of the transport of explosives has been enhanced by a 2008 directive;94 and the risk related to certain precursors has been decreased by the amendment of the old Council Directive 76/769/EEC, which limits sales of highly concentrated ammonium nitrate fertilizer to the general public.95 The more explicitly responsive measures include a better information exchange via the European Bomb Data System developed by Europol and supported by EU funding and the European Explosive Ordnance Disposal Network (EOD Network) linking the EOD units of the MS in order to increase possibilities to identify best practices, organize joint training exercises, and in general be kept informed on the latest developments of relevance to the sector.96 The EU also supports the hitherto informal network of European special intervention forces (ATLAS) and interviews with Council officials highlighted the EU’s support of the formation of informal networks in relation to responding to a range of different crises, including hostage-taking.97 In the aftermath of the Madrid terrorist attacks, the EU has also established a small fund for projects to assist victims of conventional (e.g., not CBRN) terrorist attacks. According to a June 2009 Council report, “considerable progress” in the implementation of the 2008 Action Plan on Enhancing the Security of Explosives has been achieved.98 In contrast, several studies that evaluated the impact of EU’s initiatives in the area of CBRN and explosives security suggest that the majority of them have largely remained on paper and/or are still in the process of implementation.99 For its part, the European Commission has also acknowledged that “the EU still faces a number of challenges with regard to the security of

93  European Commission, Commission Directive 2008/43/EC of 4 April 2008 setting up, pursuant to Council Directive 93/15/EEC, a system for the identification and traceability of explosives for civil uses, OJ L 94. 94  Directive 2008/68/EC of the European Parliament and of the Council of 24 September 2008 on the inland transport of dangerous goods. OJ L 260. 95  Decision No 1348/2008/EC of the European Parliament and of the Council of 16 December 2008 amending Council Directive 76/769/EEC as regards restrictions on the marketing and use of 2-(2- methoxyethoxy)ethanol, 2-(2-butoxyethoxy)ethanol, methylenediphenyl diisocyanate, cyclohexane and ammonium nitrate. OJ L 348. 96  Council of the European Union, EU Action Plan on Enhancing the Security of Explosives. 97  Interview with a Council official, May 2008, cited in Bossong, The EU’s Mature Counterterrorism Policy, 18. 98  Council of the European Union, Implementation of the Action Plan on Enhancing the Security of Explosives, 11056/09. 18.6.2009. 99  Gustav Lindstrom, Protecting the European Homeland. The CBR Dimension, Chaillot Paper No. 69. The European Union Institute for Security Studies, July 2004; Magnus Ekengren et al., “Solidarity or Sovereignty? EU Cooperation in Civil Protection,” Journal of European Integration 28, no. 5 (2006): 457–76.

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explosives and their precursors.”100 On one hand, this is actually good news as the EU has not faced a CBRN attack thus far. On the other hand, it is apparent from previous cases of natural disasters that MS mostly prefer to deal with them on their own and relevant national agencies do not seem to expect more from the EU than training and added funding. Thus, despite some calls to the contrary after the devastating impact of the 2004 tsunami,101 the EU has not developed major external crisis response capabilities and there has been little political support for the creation of a European civil protection force. Also, as discussed in Chapter 10, the EU is neither willing nor currently able to respond to terrorism by military operations abroad and neither the ESDP nor the CFSP missions have played a major role in the EU counterterrorism policy. Implementation Deficits: A Virtual Area of Freedom, Security and Justice? Similarly to all previous EU plans of action, the Revised Plan of Action, the Hague Programme, the Action Plan for Freedom, Justice and Security and the new EU Counter Terrorism Strategy must be implemented to make a difference. A key prerequisite for meeting political objectives is adequate funding. In this regard, the Hague Programme had a reasonable chance of being implemented since it was adopted at a time when the Commission was preparing its proposals for the financial horizon for 2007–2013. This made it possible to ensure that the objectives of the program were in phase with the financial means available for them. As of 2006, only 0.5 percent of the total EU budget was dispensed in the area of freedom, security and justice, but the percentage should gradually increase to 1.3 percent in 2013. This amounts almost to a trebling of the total expenditure. Moreover, if the amounts proposed for 2007–2013 are compared to the current levels of funding, it is obvious that the most significant progression is in the field of security. In 2013, amounts allocated to this policy will have increased by almost 12 times when compared to funding in 2006.102 A number of new financial instruments were put in place and a new security research priority has been set up under the Seventh Framework Program.103 There are also funds available for socioeconomic research into criminality and the protection of fundamental rights. The European Security 100  European Commission, An Extended Report on the Evaluation of the Hague Programme, SEC(2009) 766 Final. 2.7.2009. 101 Michel Barnier, For a European Civil Protection Force: Europe Aid. 5.8.2006, , accessed 5.6.2009. 102  European Commission, “The Hague Programme.” 103 The European Commission has also offered funding both in its Fifth and Sixth Framework research programmes – see, for example, European Liberty and Security: Security Issues, Social Cohesion and Institutional Development of the European Union (ELISE) and the Changing Landscape of European Liberty and Security (CHALLENGE).

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Research and Innovation Forum (known as ESRIF) was set up to bring together public and private partners to develop a joint agenda for civil security research and innovation over the mid- to long-term.104 Moreover, in order to assist the less prepared MS to develop measures to prevent, prepare for and protect people and critical infrastructure against risks linked with terrorist attacks and other security related risks, the EU has also set up a mutual assistance and financing program to run from 2007 to 2013.105 In practice, however, the Commission’s annual reports on the implementation of the Hague Programme reveal rather mixed national implementation records.106 As is apparent from Figure 3.1, more than one third of the measures scheduled for implementation were delayed or postponed in 2005 and the situation got even worse in the following years. Overall, just 53 percent of the actions approved by the Commission have been achieved on time in 2006 and a mere 38 percent of measures were duly implemented in 2007. In contrast, the number of delayed measures has significantly increased – from 12 in 2005 to 42 in 2007. Moreover, implementation progress was not always consistent in all policy areas and several areas most directly linked to counterterrorism (such as police cooperation and judicial cooperation in criminal matters) were among those with the lowest implementation percentages, especially in 2006. According to the Commission, this has led to the emergence of a “virtual” legislative framework in police and judicial cooperation in criminal matters.107 Finally, it is important to stress that implementation of EU policies is a process that goes beyond the initial stage of the transposition of the EU law into national legislation – the subsequent practical application of the respective new mechanisms by national authorities is at least as crucial a part of the implementation process. While specific data on the actual policy outcomes of the EU counterterrorism policy is often lacking, the chapters on key EU legal instruments and agencies in the fight against terrorism attempt to offer at least some preliminary analyses of their practical value-added. These reveal that when it comes to the practical use of transposed EU legal measures and cooperation through EU agencies, promises 104  European Commission, Communication from the Commission to the European Parliament and the Council on Public-Private Dialogue in Security Research and Innovation, COM(2007) 511 final. 105  Council of the European Union, Council Decision of 12 February 2007 Establishing for the Period 2007 to 2013, as Part of General Programme on Security and Safeguarding Liberties, the Specific Programme Prevention, Preparedness and Consequence Management of Terrorism and Other Security Related Risks, 2007/124/EC. 12.02.2007. 106  European Commission, Report on the Implementation of the Hague Programme for 2005, COM(2006) 333 Final. 28.6.2006; European Commission, Report on the Implementation of the Hague Programme for 2006, COM(2007) 373 Final. 3.7.2007; European Commission, Report on the Implementation of the Hague Programme for 2007, COM(2008) 373 Final. 2.7.2008. 107  European Commission, Report on the Implementation of the Hague Programme for 2006, para. 118.

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and public rhetoric of national and EU politicians are one thing, and the deeds of national counterterrorism agencies are quite another thing. As one senior Europol official noted: Sometimes I wonder if the day-to-day CT practitioner is aware of the EU counterterrorism plan. If he is aware, does he agree with the measures taken or does he perceive them as a decision of a more political nature, or perhaps even a political comforting exercise to have an easy mind and restful conscience?108

Figure 3.1 Overall Implementation of the Hague Programme, 2005–2007 Source: European Commission, Report on the Implementation of the Hague Programme for 2005–7.

In addition, the following chapters suggest that the national experts’ reluctance to use EU networks and mechanisms is primarily due to the traditional practitioner’s preference for more established bi- and multi-lateral channels; significant variations of MS’ cultural and legal traditions in the security field; bureaucratic and technical blockages due to administrative weaknesses of especially the smaller MS that are compounded by coordination problems between various government ministries, national security structures and local agencies involved in counterterrorism; as well as the lack of a shared perception of the terrorist threat across EU MS. But it is also important to conclude this chapter by noting that many of the aforementioned implementation difficulties are by no means unique to the EU’s counterterrorism policy – similar implementation problems, delays and challenges can be identified in virtually all EU policies across all of the former three pillars.

108  Interview with an Europol official, September 2009.

PART 2 Key EU Agencies Involved in Counterterrorism

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Chapter 4

Europol’s Counterterrorism Role: A Chicken-Egg Dilemma This chapter offers an analysis of Europol’s role in the area of counterterrorism, which suffers from a peculiar chicken-egg dilemma. On the one hand, Europol has hitherto not been granted any supranational powers by the EU MS and lacks trust by national law-enforcement and intelligence agencies because it does not perform any indispensable counterterrorism functions at the moment. On the other hand, the persisting lack of tangible value-added in the area of counterterrorism is primarily due to Europol’s limited powers and the lack of trust from the national competent authorities, which prefer to utilize long-standing bilateral and/or nonEU multilateral arrangements when it comes to information sharing and practical work coordination. Both bilateral and informal multilateral arrangements, however, suffer from a number of important weaknesses and their frequent utilization by the EU MS has already raised intriguing questions concerning legitimacy, accountability and transparency of the entire EU counterterrorism policy. Europol could therefore potentially deliver tangible value-added in the area of counterterrorism in a number of important areas, provided that the aforementioned chicken-egg dilemma is eventually resolved. The structure of this chapter is as follows. Brief accounts of Europol’s original mandate and its post-9/11 counterterrorism role are offered in the first two sections. Sections three and four review the key obstacles to Europol’s counterterrorism coordination efforts and counterterrorism intelligence sharing, respectively. The shortcomings of informal non-EU counterterrorism arrangements are discussed in section five, followed by a discussion of the possible ways for Europol to add tangible value in the area of counterterrorism in section six. The concluding section offers some thoughts on the nature and resilience of the chicken-egg dilemma that hampers Europol’s fledgling counterterrorism role. Europol’s Original Mandate Europol started limited operations on January 3, 1994 in the form of the Europol Drugs Unit. Progressively, other areas of criminality were added to Europol’s   An earlier version of this chapter was published as “Europol’s Fledgling Counterterrorism Role,” Terrorism and Political Violence 20, no. 4 (Winter 2008): 498– 517.

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mandate, including those “dealing with crimes committed or likely to be committed in the course of terrorist activities against life, limb, personal freedom or property.” Priority was given to crimes against persons, financial crimes and cyber crimes, when an organized structure is involved and when the criminal activity involves two or more MS. In July 1995, a Europol Convention was formally drawn up in Brussels but Europol was unable to commence full activities until July 1999, when the Convention was finally ratified by all EU MS. Ratifications by national parliaments were also required for all subsequent amendments to the Convention but this changed as of January 1, 2010 with the entry into force of a Council decision that has officially turned Europol into an EU agency (see below). Similar to other international police organizations such as Interpol, Europol is not an executive police force with autonomous supranational authority to conduct its own investigations, undertake searches or arrest suspects. Instead, the objectives of Europol are to improve effectiveness of and cooperation among the national police authorities in the EU MS. Formally, Europol activities include: 1. facilitating the exchange of information, in accordance with national law, between Europol liaison officers (ELOs); ELOs are allocated at Europol to represent the national law enforcement agencies of their MS; 2. providing operational analysis in support of operations; 3. generating strategic reports (e.g., threat assessments) and crime analysis on the basis of information and intelligence supplied by MS and third parties; 4. providing expertise and technical support for investigations and operations carried out within the EU, under the supervision and the legal responsibility of the MS concerned; 5. promoting crime analysis (e.g., the European Crime Intelligence Model) and harmonization of investigative techniques within the MS. Unlike all other international police organizations, however, Europol was not formed from the bottom-up by police professionals but was the result of a topdown decision by the political and legislative bodies of the EU. This has had two important repercussions on Europol’s counterterrorism role. On one hand,   Council of the European Union, Council Decision of 3 December 1998 Instructing Europol to Deal with Crimes Committed or Likely to Be Committed in the Course of Terrorist Activities Against Life, Limb, Personal Freedom or Property, 1999/C 26/06.   For a list of adopted amendments to the Convention, see Steve Peers, Europol: The Final Step in the Creation of an “Investigative and Operational” European Police Force. Statewatch 2007, , accessed 17.4.2008.   Council of the European Union, Council Decision of 6 April 2009 Establishing the European Police Office (Europol), 2009/371/JHA. OJ L 121/37.   Europol, Fact Sheet on Europol 2007. , accessed 12.7.2007.

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Europol is “characterized by a degree of autonomy to determine specific means and objectives of its policing and counterterrorist programs.” On the other hand, as discussed below, the top-down political decision to establish Europol may at least partly explain the prevailing lack of will of some national law enforcement and intelligence agencies to work with and through this EU agency. Europol’s Counterterrorism Mandate A special counterterrorism preparatory group composed of national experts was created to formulate Europol’s counterterrorism role in 1997, when the Treaty of Amsterdam extended Europol’s mandate in this area. According to a member of this preparatory group, its work was strategic in nature, with the primary focus on the production of a glossary of active terrorist organizations based on “hard facts” that could be used in courts for prosecutorial purposes. Before the 9/11 events, however, relevant authorities from a number of MS repeatedly failed to provide Europol with operational data, despite the fact that one of Europol’s core functions is the enhancement of European police cooperation through information exchange. The importance of Europol in the fight against terrorism was therefore specifically reiterated in the conclusions of the Extraordinary European Council of September 21, 2001, and the Council’s instruction was essentially aimed at elevating Europol to an effective information and intelligence exchange medium. In the aftermath of 9/11, Europol’s counterterrorism mandate was further expanded. It gained the authority to ask police forces of EU MS to launch investigations and to share information with the US Federal Bureau of Investigations (FBI) and other third parties, including Interpol, as well as police of non-EU states. Information sharing and other forms of cooperation were also progressively developed with other relevant EU agencies including OLAF, European Police Chiefs Task Force and, perhaps most notably, Eurojust. In a number of cases, however, there were initially major obstacles that had to be overcome in order for even EU agencies to cooperate with Europol due to its strict data protection requirements and the need for a formal cooperation agreement at the operational or at least strategic level. This was acknowledged by a senior Europol official: The issue of data protection is always our main hurdle to take but we are aware of it and we are very happy that the data protection regime is there because we

  Deflem, “Europol and the Policing of International Terrorism,” 340.  Rauchs and Koenig, “Europol,” 45–46.   Interview with a Europol official, September 2009.  Max-Peter Ratzel, “Europol – das Europäische Polizeiamt. Teil 1: Geschichte, Organization, Aufgaben, Zuständigkeitenund Rechtsgrundlage,” Kriminalistik 5 (2007): 284–91.

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cannot do without it. It is a safeguard for both the EU and citizens that we are not playing or fooling around with information.10

In the case of Europol’s cooperation with Eurojust, however, it appears that cooperation and information sharing were initially also hampered by an interagency rivalry (see Chapter 5). Europol was also assigned to open and expand the so-called terrorist “analysis work files” (AWFs), created from information and intelligence provided by the police forces and intelligence services of the EU MS.11 Europol maintains two such AWFs, one focused on Islamist fundamentalist terrorism (called “Hydra”) and another one focused on all other terrorist groups and activities in the EU (called “Dolphin”). A December 2002 Council decision specifically stipulated that each Member State must ensure that at least the following intelligence information is communicated to Europol: a. b. c. d. e.

data which identify the person, group or entity acts under investigation and their specific circumstances links with other relevant cases of terrorist offences the use of communications technologies the threat posed by the possession of weapons of mass destruction.12

The decision also provided for the appointment of specialized services or magistrates within the police services and judicial authorities; an urgent priority treatment to requests for mutual assistance concerning persons and groups included in the EU terrorist list; and for maximum access by the authorities of other MS to information on target persons and groups. In the last area, Europol’s role is unique as it offers “the only EU-wide platform for multilateral exchange and analysis of personal data in relation to organized crime and terrorism via a secure network which is subject to strict regulations on handling of data based on specific handling codes.”13 The emphasis on the exchange of data on terrorism was further reinforced in the Council Decision 2005/671/JHA, which stipulated that there shall be one point of contact within each Member State who will collate “all relevant information concerning and resulting from criminal investigation conducted by

10  Interview with a Europol official, September 2009. 11 Statewatch, “‘Scoreboard’ on Post-Madrid Counter-Terrorism Plans.” 12  Council of the European Union. Council Decision of 19 December 2002 on the Implementation of Specific Measures for Police and Judicial Cooperation to Combat Terrorism in Accordance with Article 4 of Common Position 2001/931/CFSP, 2003/48/ JHA, OJ L 016. 13 Ratzel, “Europol in the Combat of International Terrorism,”13.

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its law enforcement authorities” and it to Europol.14 The decision also provided for the setting up of joint investigation teams to “conduct criminal investigation into terrorist offences,” although the original legal basis for their creation was already the 2002 Council Framework decision on joint investigation teams (JITs). In practice, however, JITs have not become widespread.15 According to Europol’s own analysis, this is due to “insecurity/uncertainty about national implementation of the 2002 Framework Decision on JITs; lack of awareness of the JITs as an investigative option; and, a lack of funding, as JITs can be expensive to negotiate and operate.”16 The Extraordinary Council of September 21, 2001 also launched several institutional innovations, including the installation of a 24-hour alert counterterrorism unit within Europol.17 Later known as the Counter Terrorist Task Force (CTTF), the unit was comprised of national liaison officers from police and intelligence services. It was supposed to collect and analyze all relevant information and intelligence concerning current terrorist threats and draft threat assessment documents for strategic decision-makers. The unit was also requested to collaborate directly with its US counterparts.18 In practice, however, the CTTF was criticized for serious shortcomings in handling real-time data.19 According to a former member of the CTTF, the key problem was that the Council decision to establish the unit “came like lightning” at a time when there was no experience whatsoever within Europol to build on. National intelligence experts were for the first time compelled to come to Europol and share information but the “time was not ripe for this yet in 2001.” The speed of its creation also meant that CTTF lacked resources as well as a “full and understandable mandate,” so the operational plan had to be devised once the unit was already running.20 Consequently, when its

14  Council of the European Union, Council Decision 2005/671/JHA of 20 September 2005 on the Exchange of Information and Cooperation Concerning Terrorist Offences, OJ L 253/22. 15  Conny Rijken and Gert Vermeulen, Joint Investigation Teams in the European Union – From Theory to Practice (The Hague: TMC Asser Press, 2006). 16  Europol, Joint Investigation Teams: Historical Background. 2009, , accessed 27.10.2009. 17  Council of the European Union, “Conclusions and Plan of Action of the Extraordinary European Council Meeting on 21 September 2001.” 18  Monica Den Boer, Claudia Hillerbrand, and Andreas Nölke, “Legitimacy Under Pressure: The European Web of Counter-Terrorism Networks,” Journal of Common Market Studies 46, no. 1 (January 2008): 110. 19 Nora Bensahel, “The Counterterror Coalitions: Cooperation with Europe, NATO, and the European Union.” RAND, 2003, available at , accessed 14.1.2005. 20  Interview with a Europol official, September 2009.

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original mandate expired in the spring of 2003, all counterterrorism work had been taken over by the Terrorism Unit of the Serious Crime Department.21 A “new” CTTF was put in place in the aftermath of the Madrid terrorist attacks but till the end of 2004 it performed only limited operations with limited staff. According to a member of the renewed unit, this was because it took approximately five months to get the CTTF running in a way that would avoid the shortcomings of its predecessor: “Based on the lessons learned, we approached the national experts to find out what they needed. We then brought these to the high-level experts’ meeting and built up a plan before actually implementing the task force.”22 Specifically, the mandate of the reactivated CTTF included the following: 1. collection of all relevant information and intelligence concerning the current terrorism threat in the EU; 2. analysis of the collected information and undertaking operational and strategic analysis; 3. formulation of a threat assessment, including targets, modus operandi and security consequences. In practice, the production of several threat assessment reports arguably represented the most concrete results of the “new” CTTF. In 2007, CTTF was transferred into a more future-oriented First Response Network (FRN), which consists of a network of more than 50 counterterrorism experts from all MS. This new counterterrorism tool is allegedly “the result of lessons learned from past incidents” and it should allow “for flexible support for MS’ investigations immediately after terrorist incidents.”23 The mandate of the current Counter Terrorism Unit, newly placed within the Department of Operations after the most recent Europol restructuring in January 2010, also includes areas of racism and xenophobia; illicit trafficking of nuclear materials; and the illicit trafficking of small weapons and ammunition. According to one interviewed Europol official, it serves as “a platform for information exchange, expertise, expert analyses, and dedicated tools.”24 Obstacles to Europol’s Counterterrorism Coordination Efforts The impact of Europol’s counterterrorism measures is rather difficult to assess as there is relatively little information available “because the organization seeks to safeguard the integrity and autonomy of the National Units.”25 Nevertheless, based on information from Europol’s annual reports, some observers have argued 21 Statewatch, ““Scoreboard” on Post-Madrid Counter-Terrorism Plans,” 18. 22  Interview with a Europol official, September 2009. 23 Ibid. 24 Ibid. 25  Deflem, “Europol and the Policing of International Terrorism,” 346.

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that Europol has begun to play an increasingly important role in the fight against terrorism after the 9/11 events. Jonathan Stevenson, for example, suggested that: Europol has already proven useful as a vehicle for distributing general information and assessments among national law-enforcement authorities. It has also served the useful political function of enshrining pre-existing bilateral law-enforcement relationships that had arisen in connection with transnational threats such as narcotics trafficking and the “old” pre-al Qaeda terrorism.26

Figure 4.1 Europol Staffing Numbers, 1994–2008 Source: Europol’s website, 2009.

Other observers however, pointed out that at the time of the Madrid terrorist attacks, “most Europol-related measures [were] still in the stage of planning”27 and the skeptics have warned that even after the budgetary and staff increases (see Figure 4.1) Europol remained too small and minimally funded, especially if it were to deliver substantial intelligence support.28 For its part, the European press noted that when it came to real action, Europol looked rather marginal in a number 26  Jonathan Stevenson, “How Europe and America Defend Themselves,” Foreign Affairs 82, no. 2 (March/April 2003): 87. 27 Nicola Vennemann, “Country Report on the European Union,” in Christian Walter et al. (eds.), Terrorism as a Challenge for National and International Law: Security Versus Liberty? (Springer: Berlin/Heidelberg, 2003) , accessed 14.2.2004. 28  Kristin Archick, “Europe and Counterterrorism: Strengthening Police,” CRS 2002, , accessed 23.7.2005.

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of events. Perhaps most notably, it was not even given a role in the investigation when a spate of letter bombs was sent to several top EU officials at the end of 2003, despite the fact that its own chief was among those targeted.29 Examples like this suggest that Europol continues to be more of a coordination office than an operational headquarters. In the area of counterterrorism, however, even coordination has proven to be a difficult task. In part, this is because the political, administrative and judicial framework varies from one MS to another, which adds further impediments to effective information sharing and coordination.30 Moreover, according to a report by the European Commission, free circulation of information is hindered by two additional obstacles. The first is that the information tends to be compartmentalized at both organizational and legal levels. For example, it is divided between different ministries and services and is intended for use in different procedures, thereby affecting the nature and sensitivity of the information that can be handled by the services. The second obstacle is the lack of a clear policy on information channels, resulting in disagreement on the choice of channel and on how to handle sensitive and confidential information.31 Another obstacle Europol faces with respect to counterterrorism is the fact that in some EU MS, terrorism is dealt with by police agencies, while in others intelligence agencies are responsible for counterterrorism, and cooperation across intelligence and police agencies can be difficult because they tend to be interested in different types of information – “police institutions tend to be interested in specific information about suspects in order to make an arrest, whereas intelligence agencies are very broadly interested in general information without prosecutorial purposes.”32 Moreover, Müller-Wille has also argued that given their different esprit de corps, “security services as a group do not think highly of police agencies and vice versa.”33 Within the EU, both police and intelligence cooperation is further complicated by the cultural and linguistic diversity that exists across the EU MS – although the working language at Europol is English, information received by Europol in the area of counterterrorism from MS in their official language has to be accepted, which at least in theory implies the need for translation of information from 23 different languages. 29  Jitendra Joshi, “After Madrid, EU’s Nascent Anti-Terror Strategy under Focus,” Agence France Presse, Lexis Nexis News Search, 15.3.2004. 30  France, for example, has a centralized system, whereas Germany works on a more fragmented federal level. France has robust laws for detaining terrorist suspects and judges specifically trained to deal with the cases, but others do not. 31  European Commission, Communication from the Commission to the Council and the European Parliament of 16 June 2004: Towards Enhancing Access to Information by Law Enforcement Agencies, COM(2004) 429 Final. 32  Deflem, “Europol and the Policing of International Terrorism,” 351. 33  Björn Müller-Wille, “The Effect of International Terrorism on EU Intelligence CoOperation,” Journal of Common Market Studies 46, no. 1 (January 2008): 57.

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Finally, it seems that some do not necessarily welcome coordination from the Hague. In particular, the national police forces and intelligence services “generally view Europol with a great deal of suspicion, believing that it infringes on their authority and autonomy.”34 As former Europol Director Jürgen Storbeck explained: “For a policeman, information about his own case is like property. He is even reluctant to give it to his chief or to another department, let alone giving it to the regional or national services. For an international body like Europol, it is very difficult.”35 Nevertheless, as discussed below, representatives of EU MS’ police and security agencies “do achieve cooperation in practical matters” at meetings separate from the EU Ministers and Europol.36 Counterterrorism Intelligence Sharing: Europol as an Optional Bonus Only? Another important area of the counterterrorism campaign where, according to a report by the RAND Corporation, “the EU has not made a significant contribution,” is intelligence sharing.37 The report even explicitly pointed out that the reluctance of some MS to share information about terrorism with Europol has repeatedly led to situations where Europol lacked “a complete understanding of current threat levels, international connections among suspected terrorists, and the counterterrorism efforts of its own members.”38 The fact that intelligence sharing between the EU MS and Europol has so far been extremely slow was also acknowledged by the Commission, which urged the MS to use Europol “more and better” and stressed that they “should consider it their duty to give the Europol Terrorism Task Force … all operational information, not just limited and filtered strategic and technical intelligence.”39 It therefore appears that Europol has failed to transcend the traditional obstacles to intelligence sharing and the national lawenforcement agencies themselves “are still reluctant to share ‘high-grade,’ realtime intelligence on terrorism that can be acted on immediately.”40 The persistence of nationality in international policing and intelligence exchange indeed still hampers Europol’s counterterrorism efforts. Firstly, although numerous Council Decisions and Commission proposals include an obligation of EU MS to share information, in practical terms, this duty has had little impact because it cannot force MS’ authorities to share more information, i.e., intelligence that 34  Bensahel, “The Counterterror Coalitions,” 40. 35  Quoted in Archick, “Europe and Counterterrorism,” 9. 36  Deflem, “Europol and the Policing of International Terrorism,” 348. 37  Bensahel, “The Counterterror Coalitions,” 40. 38 Ibid., 40. 39  European Commission, “European Commission Action Paper in Response to the Terrorist Attacks on Madrid.” 40 Magnus Ranstorp and Jeffrey Cozzens, “The European Terror Challenge,” BBC News, , accessed 24.3.2005.

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was not previously disseminated.41 This was also confirmed by Europol officials: “We know that [national] intelligence services cannot share personal-related and operational-related data with us because of their very strict data protection regimes and there is no use talking it over.”42 In either case, information exchange with Europol headquarters is de facto voluntary and the level of involvement from the various National Units varies greatly from one EU MS to another. According to a 2008 report by the European Union Commission of the British House of Lords: The raison d’être of Europol is the exchange of information for law enforcement purposes. It is a matter of particular concern that four fifths of the information exchanged by national liaison officers stationed at Europol is exchanged without actually going through Europol, and hence without being placed on Europol’s database and without being accessible to Member States other than those directly involved.43

Consequently, although the intelligence and analysis capacities at Europol headquarters have improved considerably since 9/11, the volume of data that officially reaches Europol indeed remains relatively sparse. This is due to several reasons, including the defense of sovereignty in matters of “national security,” which is further buttressed by a culture of secrecy and independence of national services that often fear that confidential sources and methods of work could be compromised if intelligence were widely shared. In the case of Europol, these fears were further exacerbated by the fact that prior to 9/11, this EU agency was considered as a law-enforcement support unit only, while after 9/11, it was decided at the political level that Europol would support “all competent authorities, including the intelligence services, which were not necessarily ready for this change.”44 Alternatively, some analysts have suggested that intelligence is also “a ‘currency’ to obtain other valuable information or political favors [and therefore] it is not appealing to share it on the basis of general rules with all EU MS.”45 Others have even argued that national security services may undermine community regimes by submitting low quality information.46 Secondly, even when they formally participate in international organizations like Europol, European police agencies may be reluctant to share information 41  Müller-Wille, “The Effect of International Terrorism on EU Intelligence CoOperation,” 67. 42  Interview with a Europol official, September 2009. 43  European Union Committee UK House of Lords, EUROPOL: Coordinating the Fight Against Serious and Organised Crime, 29th Report of Session 2007–08, , accessed 17.4.2009. 44  Interview with a Europol official, September 2009. 45  Bossong, The EU’s Mature Counterterrorism Policy, 19. 46  Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 227.

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in the absence of several prerequisites, most importantly a sense of mutual trust and a shared expectation of positive outcomes. These, however, cannot simply be created by EU legislation and in practice there is a clear preference for bilateral cooperation which many national agencies consider as “the most workable instrument” from an intelligence perspective.47 In 1996, for example, the interior and justice ministers from Belgium, Luxembourg and the Netherlands signed a memorandum of understanding on police cooperation. In 2004, France and Spain set up a combined counterterrorism unit, composed of judges and policemen, to run joint operations. The British and Irish governments, which have a long experience of joint operations tracking IRA and loyalist terrorist groups, signed an agreement to deepen their counterterrorism collaboration in February 2005.48 Consequently, according to Björn Müller-Wille, “Europol represents but an optional bonus, of which the Member States can avail themselves at free will.”49 Alternatively, an independent study ordered by the European Commission in 2007 suggested that the weakness of EU intelligence exchange may be explained by the presence of an “elephant in the room.” While recognizing that counterterrorism intelligence sharing among MS takes places along two axes – the first axis consists of institutional actors, namely law enforcement, internal security, foreign intelligence and policy-makers; the second axis is geographical, namely global, regional and bilateral (including small-scale multilateral) – the authors of the report claim that “one of the bilateral players, the USA, is so significant as to represent a separate class of interaction.”50 This is due to the fact that the US 1) has an outreach policy in the counterterrorism; 2) actively engages EU MS on policy formulation and implementation; 3) provides technical assistance in the form of training and equipment; and 4) exchanges data. As such, US “is a de facto intelligence hub to which most MS are in some way connected” and the “EU arrangements risk being crowded out by these relationships.”51 The importance of bilateral links with the US was also confirmed by a Czech counterterrorism official, who noted that in “contrast to the EU, where reaching an agreement often takes years, with the US we can tackle even difficult issues such as visas in a few meetings.”52 Thirdly, while formally supporting political initiatives at the EU level, many EU MS simultaneously participate in informal, practitioner-led multilateral networks such as the Police Working Group on Terrorism (PWGT)53 and the Club of Berne, 47  Council of the European Union, “Provisional Findings of the Two “Peer Evaluation” Mechanisms,” 19. 48  Keohane, “The Absent Friend,” 128. 49  Müller-Wille, For Our Eyes Only?, 26. 50  John Howell & Co., Independent Scrutiny, 35. 51 Ibid., 36. 52  Interview with a Czech counterterrorism official, November 2008. 53  PWGT was set up in 1979 by the Netherlands, the United Kingdom, Germany and Belgium. Currently, it includes all EU MS plus Switzerland and Norway. For more

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often at the expense of supporting Europol.54 Within the informal framework of Club of Berne, for example, the representatives from 27 MS, as well as Norway and Switzerland, have met for decades.55 In September 2001, a Counter-Terrorism Group (CTG) was founded within the club to coordinate the work of national counterterrorism experts and to deepen practical cooperation and intelligence exchange between security and intelligence services. Formally, there is no official link to the EU and although CTG can and indeed does communicate with Europol, the latter is neither a member of the Club of Bern, nor of the CTG.56 Moreover, interviews with national counterterrorism experts suggest that CTG has at times intentionally maintained a distance from the EU.57 The interior ministers from the six biggest EU MS (France, Germany, Italy, Poland, Spain and the UK) also work more closely than other EU MS on sharing counterterrorism intelligence in the so-called G6 group. Established in May 2003 as G5 (Poland joined the group only in 2006) out of frustration with the EU’s bureaucratic JHA structures and the general slowing down of the counterterrorism drive in Brussels due to the dissipation of post-9/11 urgency, the group is allegedly working to conclude a series of bilateral agreements, which should eventually form the basis of future EU-wide laws and measures.58 Since the G6 MS together combine for three-quarters of the population of the EU, it appears that for the foreseeable future, “the G6 countries will drive co-operation between national intelligence services in Europe, rather than the EU as a whole.”59 This has already been an apparent trend in the area of EU counter-radicalization policies, where the group has already managed to push a number of its initiatives to the EU level. However, the problem with this self-styled leadership is that most G6 meetings information, see Paul Swallow, “Transnational Terrorism: Police, Interpol and Europol,” in Oldrich Cerny and M. Edmonds (eds.), Future NATO Security: Addressing the Challenges of Evolving Security and Information Sharing Systems and Architectures (Amsterdam: ISO Press, 2004), 74–76. 54  Council of the European Union, “Provisional Findings of the Two ‘Peer Evaluation’ Mechanisms,” 19. 55 The Club of Bern was created already in 1971. Although it can act as an interface between the EU and the heads of MS’ security and intelligence services on terrorist matters, this has never been its primary purpose. Rather, it has focused on direct operational cooperation. Müller-Wille, “The Effect of International Terrorism on EU Intelligence CoOperation,” 56. 56  Annegret Bendiek, EU Strategy on Counter-Terrorism. November 2006, German Institute for International and Security Affairs, , 21. Accessed 19.1.2008. 57 Interviews with national counterterrorism experts, May 2008, cited in Bossong, The EU’s Mature Counterterrorism Policy, 19. 58 Sandra Lavenex and William Wallace, “Justice and Home Affairs: Towards a European Public Order?” in Hellen Wallace, William Wallace and Mark Pollack (eds.), Policy-Making in the European Union (Oxford, UK: Oxford University Press, 2005), 466. 59  Keohane, “The Absent Friend,” 128.

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take place behind closed doors and their results are often not made public in full. Some therefore fear that G6 countries may try to dictate the direction of the EU policies over the other EU MS. A UK House of Lords report, for example, criticized the ministers of the G6 for purposefully informing their colleagues from the other EU MS of the joint G6 proposals on immigration a mere two working days before the relevant JHA Council meeting, describing such an approach as “both inept and discourteous.”60 Another attempt to overcome the laborious internal decision-making processes in the EU-27 was the Prüm Treaty. Signed in May 2005 by seven pro-integrationist EU MS (the Benelux three, Austria, France, Germany and Spain), it was aimed to step up cross-border cooperation, particularly in combating terrorism, crossborder crime and illegal migration. The treaty also contained a number of innovations which the EU at large had been unable to agree upon, including the exchange of information on the basis of “the principle of availability” with regard to sensitive personal data such as DNA profiles, fingerprints and vehicle registration data; common rules on airplane security, including guidance on deployment of air marshals; and the ability of police forces to pursue, in extreme cases, criminals across national borders without notification.61 The Prüm Treaty signatories subsequently succeeded with their efforts to incorporate most of its provisions into EU law but this has not been without substantial critique. Some questioned the desirability of a small number of MS attempting to bypass the established EU procedures and exclude the European Commission from issues related to the European judicial cooperation in criminal affairs.62 Others expressed concerns regarding how the treaty provisions relate to other JHA proposals, which are genuine EU initiatives.63 Finally, there are also two cases of regionally based cooperation outside of the EU framework – the Salzburg Forum (Austria, Czech Republic, Poland, Slovakia, Slovenia) and the Baltic Sea Task Force. Further counterterrorism initiatives are in the process of being added (for example CEWIN, which is a network of national experts on the protection of critical infrastructure) and other networks have been strongly reinforced, such as the financial intelligence units. The latter function is in close interaction with the Egmont Group, which is yet another informal multilateral group created in 1995, comprising the authorities from the financial intelligence units of 104 countries.64 The long history of these non-EU networks 60  European Union Committee UK House of Lords, “After Heiligendamm: Doors Ajar at Stratford-Upon-Avon.” 61  Thierry Balzacq et al., “Security and the Two-Level Game: The Treaty of Prüm, the EU and the Management of Threats.” CEPS Working Document No. 234, Center for European Policy Studies, January 2006, 6–7. 62  Bigo et al., “Mapping the Field of the EU Internal Security Agencies,” 26. 63 Home Affairs Committee UK House of Commons, “Justice and Home Affairs Issues at European Union Level,” paras 131, 143, 281, 282, 284. 64  Den Boer, Hillerbrand, and Nölke, “Legitimacy Under Pressure,” 118.

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indicates that cooperation between intelligence services has always been a high priority for the EU MS, even though they have been hesitant to integrate their intelligence services into an EU framework. Shortcomings of Informal Counterterrorism Arrangements In contrast to Europol and other EU vertical antiterrorism governance arrangements such as Eurojust and SitCen, which have been fully endorsed by the Council and as such may be regarded as direct extensions of political and executive power in the EU MS, the aforementioned horizontal non-EU counterterrorism arrangements “comprise a differentiated set of members in the form of a more networked, enhanced co-operation, allowing the participation of non-EU actors and justifying their existence on the basis of their non bureaucratic, professional and informational character.”65 Because of their flexibility and relative independence from national governments, as well as their ability to include a broad range of participants on equal footing, it is generally assumed that these informal policy networks “are more suitable for tackling governance problems or achieving common goals than more hierarchical and formal strategies.”66 Especially among professionals, informal horizontal cooperation arrangements are regarded as highly successful, pragmatic and flexible: You have to go to the background and the reasons for existence of such networks. The Club of Berne, for instance, has a really good reason for existence and its derivative, the CTG, is only dealing with Islamist terrorism. Moreover, things that are discussed with CTG will eventually come back to [EU’s] TWG, but by the time they are thrown onto us [EU agencies], they will have already ripened. Having these specific networks, or we should perhaps call them regional hubs, is OK. There is nothing wrong with discussing matters within your own quarters before taking them to the EU level.67

Another interviewed EU official stated that “the more venues for discussion and personal communication there are, the better for EU counterterrorism policy.”68 According to a Czech counterterrorism official, participation in non-EU networks was crucial for the “new” EU MS prior to their accession in 2004.69 Others have acknowledged that “there is a risk of cutting across EU agencies,” but argued that 65 Ibid., 103. 66 Ibid. 67  Interview with a Europol official, September 2009. Also see Tanja Börzel, “Organizing Babylon: On the Different Conceptions of Policy Networks,” Public Administration 76, no. 2 (1998): 253–73. 68  Interview with an anonymous EU official, October 2008. 69  Interview with a Czech counterterrorism official, November 2008.

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none of the existing forums “has the legislative or executive competencies that the EU does, so in the end even if some MS get together and agree on something within G6, it is still easier for them to implement it through EU institutions than to try to arrange coordinated bi-lateral cooperation which other people would not invited to join.”70 It is, therefore, up the representatives of other MS: [T]o say to what extent they find it annoying that these groups exist and seem to divide things among themselves. But from the point of view of the actual working of the EU and its institutions, clearly if a significant group of MS with a significant stake in the issue manages to come to a conclusion, in the end this should make it easier to have an arrangement taken across the EU.71

In this light, it is hardly surprising that a number of studies concerning intelligence sharing consider the preference of EU MS for bilateral and informal multilateral arrangements to be natural and warn against hasty attempts to build supranational intelligence institutions.72 Both bilateral and informal multilateral arrangements, however, suffer from a number of weaknesses. To begin with, the informal nature of the non-EU arrangements raises important questions concerning legitimacy, accountability and transparency. Concerning the latter, Crawford maintains that while international law enforcement networks are flexible and allow for sizeable professional participation, their activities and operations are generally not transparent because they are not embedded in a formal arrangement.73 Concerning the former, Den Boer, Hillerbrand and Nölke concluded that the democratic, legal and social legitimacy of informal and horizontal counterterrorism networks is far lower than in the case of the more established, vertical and formal organizations such as Europol. They also warned that the persisting preference for informal horizontal cooperation via non-EU counterterrorism networks is fraud with numerous risks: [A]gencies with a limited legitimacy turn into attractive forums for direct but opaque operational business and as such they may undermine both the success and the legitimacy of better-governed agencies such as Europol. Another risk is that relatively uncontrolled agencies may assume responsibilities that reach further than counter-terrorism and which spill over into the control of serious, organized crime or even migratory movements, from the world of “spooks” into the still more transparent world of criminal investigators.74 70  Interview with an anonymous EU official, October 2008. 71 Ibid. 72 Daniel Benjamin, “On Multilateral Counterterrorist Organizations,” The NYU Review of Law & Security, Special Issue (Summer 2005): 15; Müller-Wille, For Our Eyes Only?, 35–36. 73  Cited in den Boer, Hillerbrand, and Nölke, “Legitimacy Under Pressure,” 104. 74 Ibid., 120.

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As discussed in Chapters 3 and 9, various authors have indeed already pointed out that most measures adopted after 9/11 in the context of the Action Plan represent multipurpose legislation in relation to fighting crime, which previously failed to gather sufficient support among publics and parliamentarians in the EU MS. This is problematic given the fact that the first EU Counterterrorism Action Plan had been developed very rapidly without undergoing the necessary consultation process with all ratifying or implementing actors at lower political levels. Thus, according to Raphael Bossong, “policy conflict predictably arose later and undermined trust in the EU’s counter-terrorism effort” and it is not too surprising that several EU MS and different professional networks “did not feel too strictly bound by the EU counterterrorism framework, but cultivated their own bilateral relationships or made use of other informal groups.”75 The problem is that this only aggravated long-standing coordination, competence and accountability problems in this “crowded policy space.”76 Furthermore, due to their highly secretive character, informal non-EU counterterrorism networks did not lead to greater inclusion of civil society actors as is usually the case in policy networks on issues such as the environment, trade or education.77 From the analytical point of view, the nature of informal bi- and multilateral arrangements also makes it difficult to capture any best practices. While two (or more) MS may have an apparently close relationship, their model of cooperation may actually be quite ineffective.78 Similarly, although the available literature provides numerous accounts mapping the proliferation of the informal non-EU networks, we do not yet know why these initiatives continue to mushroom while old agencies are hardly ever declared redundant. When specifically asked whether they perceive this as a problem, the vast majority of interviewed practitioners, both at the EU and national level, replied negatively: I cannot think of any counterterrorism arrangement, outside or inside the EU, which could be described as redundant. Through all of these arrangements, channels are found to pool intelligence and that is their main function. Moreover, as practitioners, we need platforms to discuss lesson learned. So these entities have an added value as whole. It is beauty by variety.79

Others have also noted that while not formally lacking membership, “we [at Europol] have 99 percent of these arrangements on our radar and we are somehow involved.” According to one interviewed Europol official, this promotes awareness, which is one of the important tasks of Europol: “If I meet a colleague in Germany 75  Bossong, “The Action Plan on Combating Terrorism,” 39–40. 76 Ibid., 40. 77  John Peterson and Elisabeth Bomberg, Decision-Making in the European Union (London: Palgrave Macmillan, 1999). 78  John Howell & Co., Independent Scrutiny, 36. 79  Interview with a Europol official, September 2009.

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and he asks me, ‘How was your weekend in Brussels?,’ then I have not fulfilled my task because a local police officer does not even know where Europol has its seat.”80 Some practitioners and experts from academia have, however, expressed the opposite view. The chair of the Counter-Terrorism Team of Eurojust, for example, acknowledged that “we do not need more structures. We need to integrate existing ones and make more intelligent use of them. There is a need for more integrated approaches.”81 Similarly, Den Boer, Hillerbrand and Nölke argued that only “a systematic evaluation would allow us to assess whether an (assumed) superior output legitimacy is able to compensate for the shortcomings in terms of input legitimacy.”82 Unfortunately, such a comprehensive evaluation is beyond the scope of this chapter but the plethora of non-EU (as well as EU) structures and mechanism involved in the fight against terrorism clearly raises concerns about mandate and work overlap, repetition and duplication. Most MS, moreover, tend to send the same experts to both EU and non-EU bodies (for example to Club of Bern’s CTG and SitCen, or to PWGT and Europol), “thus raising interesting questions over intelligence ownership.”83 Another important weakness lies in management and use of bilaterally exchanged information. Firstly, because many bilateral arrangements have a high personal content, “relationships between individuals and teams tend to pull intelligence work in one direction and can thus defeat a higher-level strategic push.” Secondly, “rivalries between national intelligence agencies are still to be observed even where coordination and tasking mechanisms have been put in place. Often the pull is towards operations and away from the less glamorous and harder but strategically important typology work.”84 As discussed in this chapter, informal and merely interpersonal relations also prevail at the European level, where inter-institutional legal arrangements often “merely crystallize existing power relations and long-term dynamics.”85 Some practitioners, however, have disputed such conclusions. According to one Europol official, for example, the more relationships and linkages there are the better, regardless of their nature and/ or level: “It is to the benefit of the overall concept – that is combating terrorism. If it is part of capacity building, brilliant, build it. If it is part of improving the resilience of our societies, please do it!”86 The same official also stated that “Europol should not be a replacement of bilateral cooperation. We are a unilateral organization and if Holland wants to communicate to Germany only, they are perfectly entitled to 80 Ibid. 81 Interview with Michèle Coninsx, chair of the Counter-Terrorism Team of Eurojust, September 2009. 82  Den Boer, Hillerbrand, and Nölke, “Legitimacy Under Pressure,” 119. 83  Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 196. 84  John Howell & Co., Independent Scrutiny, 36. 85  Bigo et al., “Mapping the Field of the EU Internal Security Agencies,” 29. 86  Interview with a Europol official, September 2009.

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do so.”87 Another EU official has nonetheless acknowledged that the existence of multiple information sharing venues “clearly creates an enormous problem of coordination” for EU staff as “it is very difficult to follow what is going on in all of these forums.”88 Can Europol Provide Any Real Value-Added in the Area of Counterterrorism? At the moment, Europol fails to meet either of the two “value-added” preconditions adopted from the intelligence literature, that is: a) production of something that cannot or will not be produced at the national level; and/or b) relieving national authorities by transferring an existing product to the European level. In contrast to the some other EU agencies (EUSC, INTDIV and SITCEN),89 the providers of intelligence to Europol are identical with the main customers – the national intelligence agencies of the MS. Currently there is also “no EU function that requires, let alone depends on, intelligence support from Europol.”90 This, in combination with the fact that no other unique responsibilities have been transferred from the national level to Europol, leads to a duplication that sets the limit for Europol’s intelligence role: “Simply put, whatever Europol does has to be produced at the national level as well.”91 Müller-Wille therefore argued that the incentive for EU MS’ national agencies to feed Europol with intelligence is rather limited because they still carry full responsibility for producing the intelligence support required for national security and, as such, cannot be dependent on Europol: No national service can argue that it failed to foil a terrorist plot because Europol did not do its job accurately. Neither the government nor the public would accept such an explanation. Therefore, national services maintain the task of producing and providing national law enforcement authorities with accurate and complete intelligence. Hence, they cannot and will not rely on Europol’s contribution.92

Since Europol’s work parallels the work of national agencies when it comes to information analysis and merely complements the bi- and multilateral cooperation arrangements that predate it, it is understandable that many national agencies perceive information sharing via Europol as an extra burden rather a value added. The lack of incentives for national agencies to take on the added workload required 87 Ibid. 88  Interview with an anonymous EU official, October 2008. 89  Intelligence Division of the European Military Staff (INTDIV), The European Union Satellite Center (EUSC). 90  Müller-Wille, For Our Eyes Only?, 31. 91 Ibid., 35. 92 Ibid., 56.

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by formal EU-level cooperation was also confirmed in interviews with EU and national officials.93 Nevertheless, if we take into account the abovementioned shortcomings of non-EU arrangements, it is plausible to argue that Europol may offer genuine value-added in the area of counterterrorism in at least three important ways: 1. by providing standardized, secured channels and specification of forms of cooperation; 2. by capturing and disseminating best practices in the field of counterterrorism; 3. by providing a unique service to political EU’s decision-makers at the strategic level by outlining long-term trends, doing typology work and assessing the terrorist threat in general terms. In the last area, Europol already produces an annual EU Terrorism Situation and Trend report (TESAT). To compile these reports, however, Europol must rely on data supplied by the national police and intelligence agencies because it lacks an independent intelligence-gathering capacity. As such, the data collected for TESAT relies on the MS’ definitions of terrorist offences and some disparities still persist between the MS, especially with regard to the crime areas defined as terrorism or extremism.94 Thus, to offer genuine support for strategic EU decisionmaking in the area of counterterrorism, Europol needs to work hard “at getting political support for access to data that will enable it to work effectively and create a valuable differentiated offering to that of the Elephant [the US]”95 and the national agencies of the EU MS. Interviews with Europol officials also indicate that while it may indeed be difficult to trace the value-added of strategic level initiatives, the work done at the tactical level is visible in the mid-term and operational level meetings “must by definition deliver results” even in the short run. The fact that the public does not know about them may also not be seen as a problem, because as one national official aptly stated, “the best counterterrorism police is the one that works without being noticed.”96 Similar statements were made by Europol officials, who pointed out that “because of the work in the intelligence community, we cannot be on every news [broadcast] and we have only certain selected products having our name on 93  Interview with a Commission official, March 2009, cited in Bossong, The EU’s Mature Counterterrorism Policy, 13; Interview with a Czech counterterrorism expert, November 2008. 94 In TESAT 2008, for example, the majority of MS reported right-wing and singleissue activities as extremism rather than terrorism. Europol, Terrorism Situation and Trend Report 2008. , 38–41. Accessed 25.3.2009. 95  John Howell & Co., Independent Scrutiny, 36. 96  Interview with a Czech counterterrorism official, November 2008.

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it.”97 Moreover, a senior Europol official argued that even strategic-level programs and meetings “do deliver outcomes in five or six years’ time.” In his opinion, the real complicating factor at the strategic level is “the occasional policy changes due to EU Presidency rotation,” although some new initiatives, such as the 2009 Swedish presidency’s call for a bi-annual updating of the EU counterterrorism strategy, “reflect the changing nature of the terrorist threat and as such ought to be welcomed.”98 Europol could also add value in the fight against terrorism by providing what the EU Counterterrorism Policy badly lacks at the moment – a common terrorist threat assessment at the strategic level. As noted above, in their current form, the annual TESAT reports are essentially retrospective compilations from state-provided data which, as stated in the 2008 report, “neither attempts to analyze the root causes of terrorism nor to assess the threat posed by terrorism.”99 According to one Europol official, SitCen is already in charge of strategic intelligence analysis and therefore Europol should not step into this remit.100 The available literature, however, indicates that SitCen also works only with intelligence assessments provided by the MS intelligence agencies, and where appropriate, with information provided by Europol.101 It is, therefore, once again the national officials who decide what information they want to send to SitCen. Other Europol officials have suggested that a shared picture is actually produced by Europol’s day-to-day work within AWFs but this again relies on data supplied by MS and is more of an operational, rather than strategic, nature. Finally, some Europol officials pointed out that when they spot “a new problem, based on input from MS as well as open sources, they produce and disseminate a report even though it may not affect all MS at the given moment.”102 These reports, however, are by definition ad hoc and therefore cannot be considered a genuine replacement of a regular strategic threat assessment. The persisting absence of a fully informed and independent baseline assessment of major threats and risks to the EU is highly problematic for a number of reasons. First, and perhaps most importantly, without a common assessment of terrorist threats and risks to the EU, “different [national] security authorities are likely to have different perspectives and will be neither willing nor able to coordinate their efforts to provide security efficiently.”103 Second, given the post-9/11 quantitative and qualitative changes in terrorist activities, “it may be impossible 97  Interview with a Europol official, September 2009. 98 Ibid. 99  Europol, Terrorism Situation and Trend Report 2008, 6. Moreover, as a public document, TESAT reports do not contain any information on ongoing investigations to avoid jeopardizing them. 100  Interview with a Europol official, September 2009. 101  Lugna, “Institutional Framework of the European Union Counter-Terrorism Policy Setting,” 112. 102  Interview with Europol official, September 2009. 103  Müller-Wille, For Our Eyes Only? 12.

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for a single agency to apprehend the full magnitude of internationally operating villains’ geographical scope of action.”104 Third, as long as there is no common baseline terrorist threat analysis within the EU, there is no means of monitoring policy effectiveness in detail and proactively.105 Finally, as a Howell and Co. noted in its recent report, “the EU lacks a key instrument – a fully informed baseline assessment of threats and risks to the EU. Without this, there is no way to direct the efforts and set priorities, nor attribute success nor learn from failure.”106 This criticism was also echoed by the chair of the Counter-Terrorism Team of Eurojust: “What are the real top three priorities today? Now Europol has its reports stipulating priorities, we at Eurojust have our statistics and then we have of course the Stockholm Programme, which also sets priorities.” As a remedy, she suggested that if she were the president of the EU she would say: “Let’s have a research work with the academic world, with the politicians, and let’s find out what is now really at stake.”107 But without some sort of a common assessment of the nature and gravity of the existing security threats, reaching a consensus on policy priorities is bound to remain an extraordinarily difficult endeavor. In the long run, therefore, the potentially most important value-added from a common terrorist threat assessments produced by Europol lies in the possibility that it may lead to a common perception of the major terrorist threats by, and within, the EU MS. This has also been acknowledged by the Commission, which envisages the development of a European Criminal Intelligence Model that would encompass “the synchronisation of threat assessment based on a common methodology, systematic underpinning of threat assessment by sectoral vulnerability studies and the required financial and human resource allocation.”108 In its written evidence to the British House of Lords, the Commission seemed to go even further, saying that it “saw a clear need to develop a criminal intelligence policy at EU level, especially to prevent terrorism.”109 More specifically, the Commission saw such a policy as helping to focus and prioritize the efforts of the law enforcement communities of the MS; enable each MS to bring its strategic priorities into line with those of other MS; and allow for the development of shared operational intelligence capacity.

104 Ibid., 12. 105  John Howell & Co., Independent Scrutiny, 4. 106 Ibid., 18. 107 Interview with Michèle Coninsx, chair of the Counter-Terrorism Team of Eurojust, September 2009. 108  European Commission, “Towards Enhancing Access to Information by Law Enforcement Agencies.” 109  European Union Committee UK House of Lords, “After Madrid: The EU’s Response to Terrorism,” 5th Report of Session 2004–05, available at , accessed 17.4.2008.

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Europol’s Fledgling Counterterrorism Role: A Chicken-Egg Dilemma Even as of mid-2010, it is questionable whether all EU MS are truly committed to giving Europol a serious counterterrorism role. As Doron Zimmermann pointed out: Europol may be the Union’s primary law-enforcement tool, but not unlike the Union of which it is a product, it lacks a robust and muscular mandate with which to fight terrorism. … Although Europol finally has within its remit not only the function of a clearing house for criminal intelligence, but a mandate to analyze said information – and is in effect the Union’s “only body for sharing operational intelligence” – it has not been given any competencies from sovereign states, or, for that matter, any executive powers.110

It was primarily for political reasons that terrorism was originally not included in Europol’s agenda and full consensus has not yet emerged on the role and future of Europol. While some MS, including Austria, Belgium and Netherlands, would like to see Europol evolve into an organization with an independent investigative role like the US FBI, others, including the Germany, France, Italy, Spain and United Kingdom, oppose such evolution, preferring instead to keep investigative authority at the national level with Europol as a coordinating body.111 On the one hand, disputes like this indicate that at least for some MS, it may still be too early to allow the EU to have an influential role in traditionally statespecific areas such as policing, criminal justice and intelligence gathering. On the other hand, after more than two years of deliberations, the Council approved a decision that turned Europol into “an entity of the Union” as of January 1, 2010.112 This means that its funding is now provided from the EU budget and EC staff regulations apply to Europol staff. The decision also expanded Europol’s competence from “organized crime” to the broader “international serious crime,” which also implies that any terrorist attack on one Member State, including lone terrorists like the “Unabomber,” should be automatically considered an attack on all MS and thus within Europol’s sphere of competence.113 Further, and potentially far-reaching, changes to the content of the Europol’s instruments involve the intensification of data collection, analysis and exchange of personal data. Specifically, the decision envisages the establishment (to be decided by the management board and approved by the Council) of a new system processing personal data, which will contain information on a wide range of individuals 110  Zimmermann, “The European Union and Post-9/11 Counterterrorism,” 132. 111  Bensahel, “The Counterterror Coalitions,” 40; Zimmermann, “The European Union and Post-9/11 Counterterrorism,” 135. 112  Council of the European Union, Council Decision of 6 April 2009 Establishing the European Police Office. 113  Interview with a Europol official, September 2009.

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currently included in Europol’s AWFs. At the same time, the decision should also elevate at least some of the concerns regarding the lack of “independent scrutiny and management”114 of Europol’s activities from other EU bodies (European Court of Justice and European Parliament) and the EU MS, although as discussed in Chapter 9, not all are convinced that this will really be the case in practice. Generally speaking, the need for revising Europol’s legislative framework was justified on three main grounds: 1. on the need to simplify the form of the Europol legal instrument by replacing the Europol Convention, which could only be amended by protocols subjected to lengthy ratification by national parliaments, by a third-pillar decision; 2. on the need to simplify and consolidate the complex legal framework on Europol consisting primarily of the original Convention and a series of amending protocols; 3. on the need to revise the content of the Europol legal framework, in particular as regards the powers and nature of Europol.115 On the one hand, the move from the Convention to a Council decision signifies the partial “communautarization” of Europol and the further move away from a purely “intergovernmental” concept of this body. Moreover, although on paper Europol still does not have any executive powers, in practice it may increasingly be seen as “operational” because the 2009 decision grants it the power to request national authorities to initiate or coordinate criminal investigations, and to participate in joint investigation teams. Thus, according to Mitsilegas, “Europol officers may operate in the territory of a Member State. In this context, the line between assisting and operating may become rather blurred.”116 On the other hand, the same author has also argued that the incremental increase in Europol’s powers and the introduction of some communautaire elements have not changed its fundamentally intergovernmental nature, especially in terms of accountability and judicial control.117 The practical impact of the changes introduced by the 2009 decision remains to be seen but when it comes to counterterrorism in particular, the vital competences and resources are more than likely to remain at the national level. As even the EU counterterrorism coordinator acknowledged:

114 Sionaidh Douglas-Scott, “The Rule of Law in the European Union - Putting the Security in the Area of Freedom, Security and Justice,” European Law Review 29, no. 2 (2004), 230. 115 Mitsilegas, “The Third Wave of Third Pillar Law,” 550. 116 Ibid., 552. 117 Ibid., 552, 560.

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EU Counterterrorism Policy The fight against terrorism is and will remain, primarily the responsibility of national authorities. … Police forces, intelligence agencies, the judiciary, customs officers and other officials all remain instruments of national governments, under the control of national parliaments. The EU’s role is to support these national authorities, not to replace them or to duplicate their work.118

This was also confirmed in my interviews with Europol officials, who repeatedly stressed that “Europol’s main flag is support to the MS’ efforts to combat terrorism.”119 Thus, as Keohane noted, “there is currently no chance of the EU creating an intelligence agency with its own ‘euro-spies’ and satellites.”120 The analysis presented in this chapter nevertheless indicates that Europol could offer tangible value added in the area of counterterrorism by a) providing standardized channels and specification of forms of counterterrorism cooperation; b) capturing and disseminating best practices in the field of counterterrorism; and c) performing a fully informed baseline assessment of the major terrorist threats and risks to both the EU and its MS at the strategic level. In order to do so, however, more than the agreement of the political representatives of the EU MS will be needed. Previous experiences with Europol suggest that it is one thing for Europe’s political elites to make public promises on the international exchange of counterterrorism intelligence, and quite another thing for them to persuade the relevant national agencies, over which politicians usually exercise less than perfect control, to comply: Ensuring that agencies exchange information effectively cannot be achieved solely by agreeing on general principles such as the principles of equivalent access and availability. Such principles can place a general obligation on agencies to share information …, but they cannot ensure that that happens without a build-up of knowledge and mutual trust between the agencies.121

Moreover, as long as the national intelligence and law enforcement agencies are unable to pass virtually any buck to Europol, there is no incentive for them to stop drawing on alternative multi- and/or bilateral contacts and networks, their numerous weaknesses and shortcomings notwithstanding. In some cases, there may be good reasons for caution in sharing sensitive information with an EU agency – in particular, for the intelligence services the protection of sources is paramount; and the originators of intelligence must be confident that the organization with which it is shared is secure and that it will not be passed on to a third party without their 118  Cited in Edwards, Geoffrey, and Meyer. “Introduction: Charting a Contested Transformation,” 9. 119  Interviews with Europol officials, September 2009. 120  Keohane, “The Absent Friend,” 128. 121  European Union Committee UK House of Lords, “After Madrid: The EU’s Response to Terrorism.”

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permission.122 But there are also less acceptable reasons, such as interdepartmental rivalries and reluctance to share information for which another agency may take the credit.123 To conclude, it appears that Europol’s counterterrorism role suffers from a peculiar chicken-egg dilemma. On one hand, Europol has thus far not been granted any substantial powers by the EU MS and lacks trust by national law-enforcement and intelligence agencies because it does not perform any indispensable counterterrorism functions at the moment. On the other hand, the persisting lack of tangible value-added in the area of counterterrorism is primarily due to Europol’s limited powers and the lack of trust from the national agencies. This leads to a vicious circle “in that Europol’s ability to add value is not exhausted for lack of information, which makes the expectations of its utility fall and allows the contributions to diminish.”124 This dilemma is unlikely to be entirely solved even by the recently approved Council decision, whose due implementation should nonetheless lead to improvements in the operational and administrative functioning of Europol.

122  Müller-Wille, “The Effect of International Terrorism on EU Intelligence CoOperation,” 58. 123  European Union Committee UK House of Lords, “After Madrid: The EU’s Response to Terrorism.” 124  Müller-Wille, “The Effect of International Terrorism on EU Intelligence CoOperation,” 58.

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Chapter 5

Eurojust’s Fledgling Counterterrorism Role This chapter offers an analysis of Eurojust’s contributions to the EU counterterrorism policy. I argue that Eurojust currently does not offer genuine value-added in the fight against terrorism by producing something that the EU MS are either unwilling or unable to produce on their own. Moreover, the official EU documents, internal reports and secondary sources, as well as my interviews with practitioners, suggest that it is questionable whether all EU MS fully support the strengthening of Eurojust’s role in the fight against terrorism. This is largely due to the persisting differences in national legal standards, the absence of genuine pro-integration thinking in the area of criminal justice and the lack of trust from national agencies. Some of these constraints are nevertheless diminishing over time as Eurojust’s contributions in the fight against terrorism are incrementally taken into account by national counterterrorism experts and practitioners. It also appears that the initial interagency rivalry between Europol and Eurojust in the area of counterterrorism has finally been surmounted. In consequence, Eurojust is currently better positioned to support national counterterrorism efforts in a number of important areas. This chapter proceeds as follows. A succinct overview of the origins of judicial cooperation in criminal matters and the actual creation of Eurojust is offered in the first section, followed by brief accounts of Eurojust’s original mandate and its post-9/11 counterterrorism role. Section four reviews Eurojust’s current counterterrorism activities. The alleged interagency rivalry between Europol and Eurojust is analyzed in section five. Sections six and seven review the current and potential value-added of Eurojust in the area of counterterrorism, respectively. The concluding section offers some thoughts on the possible impacts of the 2008 Council Decision on the Strengthening of Eurojust and the Lisbon Treaty provisions for possible establishment of a European public prosecutor’s office from Eurojust when it comes to EU’s counterterrorism efforts.

  An earlier version of this chapter was published as “Eurojust’s Fledgling Counterterrorism Role,” Journal of Contemporary European Research 6, no. 2, (Summer 2010): 236–256.

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Origins of Judicial Cooperation in Criminal Matters and the Creation of Eurojust As discussed in Chapter 2, the origins of major judicial cooperation initiatives at the EU level, especially in the field of criminal justice, are relatively recent. The founding treaties of the then European Communities did not contain any specific cooperation in criminal justice matters. Over time, both internal and external factors led to the establishment and gradual deepening of European criminal justice institutions, but when contrasted with police cooperation under the TREVI framework, judicial cooperation clearly lagged behind. It was only in the early 1990s that the continuing progress in police cooperation resulting in the creation of Europol prompted many judicial and political actors in EU MS to express their concerns about the establishment of “a Europe of the polices devoid of complementary judicial system.” In particular, there was a fear that “Europol has been developing outside of any judicial control,” which also led to the increased emphasis on the need for the defense of individual rights. These concerns were also shared by the DG Justice, Liberty and Security (DG JLS) at the European Commission, which tried to use them to further assert its previously limited role and powers in the field of security. The Commission and the EU MS did not, however, agree on how to address these concerns. Specifically, many MS as well as the Secretariat General of the Council were determined to prevent a further strengthening of the Commission’s, and to a certain extent of the European Parliament’s, assertiveness in the sphere of judicial cooperation in criminal affairs. This clash of interests manifested itself in the failure of the Corpus Juris Project and the appointment of a European chief public prosecutor, which had the support of the Commission but were blocked by the Council. Instead, several other actions and initiatives were approved, all less supranationalist in nature. In 1998, the European Judicial Network (EJN) was created after two years of preparation. The entry into force of the Treaty of   Jiri Vlastnik, “Eurojust – A Cornerstone of the Federal Criminal Justice System in the EU?” in Security Versus Justice: Police and Judicial Cooperation in the European Union, ed. Elsepeth Guild and Florian Geyer (Aldershot: Ashgate Publishing Company, 2008), 35–36. The internal factors are inherent to developments within the EU (for example, enlargement of the EU or evolution of EU’s crime scene), while the external factors stem from developments outside of the EU (for example, political instability or illegal immigration).   Antoine Megie, “Mapping the Actors of European Judicial Cooperation,” in The Field of the EU Internal Security Agencies, ed. Didier Bigo (Paris: L’Harmattan, 2007), 67.   French Office of Plans, cited in Megie, “Mapping the Actors of European Judicial Cooperation,” 68.   EJN is essentially a decentralized information-sharing network connecting EU lawyers and judges working on criminal cases. It is composed of contact points of the MS, as well as of the European Commission and of a secretariat based in the Hague. European

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Amsterdam in May 1999, with its emphasis on the creation of an area of freedom, security and justice (see Chapter 2), added further impetus on judicial cooperation in criminal matters. Nevertheless, it is important to note that according to some experts, “the decision to create Eurojust was a political response to the proposition for the European Chief Public Prosecutor made by DG JLS” that must “be interpreted as an affirmation of the intergovernmental logic in the field of judicial cooperation in criminal affairs.” The actual political decision to establish a European Judicial Cooperation Unit (Eurojust) predates the 9/11 terrorist attacks – it was made by the Tampere JHA Council in October 1999, which called for the creation of a Eurojust unit composed of national prosecutors, magistrates or police officers of equivalent competence from each MS by the end of 2001. In 2000, a Provisional Judicial Cooperation Unit (Pro-Eurojust) was created. Formally, however, Eurojust was only created by means of a Council Decision on February 28, 2002, thus becoming the first permanent network of judicial authorities to be established anywhere in the world. The Treaty of Nice, which entered into force in February 2003, provided an explicit treaty basis for this new agency, thereby confirming its role as one of the key players in the criminal justice cooperation field within the territory of the EU. Eurojust’s Original Mandate When it comes to the analysis of Eurojust’s mandate, it is important to bear in mind its “double nature.” On the one hand, Eurojust is essentially a high-level team of senior magistrates, prosecutors, judges and other legal experts, who are seconded from every EU Member State. They may be assisted by one or more persons when carrying out their powers. Both the national representatives and their assistant(s) remain subject to their national law. According to the original 2002 Council Decision, EU MS were also free to determine from which national body the national representative would come from;10 which powers they would keep within their jurisdiction; what their term of office would be11 and what salary they Judicial Network, Welcome to the European Judicial Network, 2009, , accessed 9.10.2009.  Megie, “Mapping the Actors of European Judicial Cooperation,” 75.  Didier Bigo et al., “Mapping the Field of the EU Internal Security Agencies,” in The Field of the EU Internal Security Agencies, ed. Didier Bigo (Paris: L’Harmattan, 2007), 5–66.   Vlastnik, “Eurojust,” 37.  There are also liaison magistrates from three non-EU countries: Croatia, Norway and the US. 10 The majority of national members are prosecutors. Eurojust, Eurojust Annual Report 2008. 11  According to Vlastnik, the length of term of national MS currently varies from two years (Cyprus) to an undefined period (Malta, Netherlands, Poland). Vlastnik, “Eurojust,” 37.

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would earn. Nevertheless, once the December 2008 Council on the Strengthening of Eurojust is implemented by all EU MS,12 all national representatives will be assisted by one deputy and by another person as an assistant. In order to create an equivalent level of powers for national representatives, the 2008 decision also contains provisions to regulate the powers conferred on national representations, specifying that they shall be at a minimum granted the power to receive, transmit, facilitate, follow up and provide supplementary information in relation to the execution of requests for judicial cooperation.13 Nevertheless, even with these new provisions in place, it is still possible to speak of the national feature of Eurojust. On the other hand, the national representatives together form the College of Eurojust, which functions as a management board of Eurojust and can be described as “a collective organ of European character deciding in principle by majority vote.”14 The main advantage of having all national experts in one building lies in the instant accessibility of information and expertise – the individual team members know the legal systems and practical arrangements of their home countries inside out, and they can consult other team members at any time. This enables them to put any cases referred to Eurojust into an EU context and “more easily spot any patterns or trends in EU crime than colleagues in their home countries.”15 Moreover, Eurojust is the only point where the national criminal records of all MS come together – each national member of the College of Eurojust has access to national criminal records of his/her MS and is empowered to exchange information with other members of the College.16 Last, but not least, Eurojust also enables direct contact between judges, so that, for example, a judge in Greece can ask a judge in France to issue an order against a suspect living in France.17 While some actors allegedly “wished at the creation of Eurojust to see it one day control Europol and at the very least prove European judicial cooperation more efficient,”18 these ambitions have never materialized and Eurojust lags behind Europol both in terms of information access, operational capacity and competencies. The primary task of Eurojust is to provide “immediate legal advice and assistance in cross-border cases to the investigators, prosecutors and judges in 12 The MS must bring their national law into conformity with the decision by June 4, 2011. 13  Council of the European Union. Council Decision 2009/426/JHA of 16 December 2008 on the Strengthening of Eurojust and Amending Council Decision of 28 February 2002 Setting up Eurojust with a View to Reinforcing the Fight Against Serious Crime, OJ L 138. 14  Vlastnik, “Eurojust,” 37. 15  European Commission, “Eurojust Coordinating Cross-Border Prosecutions at EU Level,” 2004, , accessed 19.3.2004. 16  Müller-Wille, For Our Eyes Only?, 26. 17  Bensahel, “The Counterterror Coalitions,” 41. 18  Interview with a Europol official, cited in Bigo et al., “Mapping the Field of the EU Internal Security Agencies,” 40.

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different EU Member States.”19 It can also handle letters rogatory, which ask for information, or enquiries to be carried out by the authorities in another country, and direct them to the appropriate authorities for action; assist and cooperate with OLAF, the EU’s anti-fraud organization,20 in cases affecting the EU’s financial interests; recommend certain steps for national authorities to take, “such as to initiate and/or coordinate investigations or to set up investigation teams.”21 On its own, however, Eurojust has no legal authority to launch or execute investigations and it cannot impose any penalties if its requests are not complied with – although it may publish details of failures to comply in its annual report. Like Europol, it instead relies on a system of lateral links among its members, which are based on the idea that “cross-border issues such as terrorism and organized crime require increased cooperation among judicial authorities.”22 Eurojust’s Counterterrorism Mandate According to the first president of Eurojust, countering terrorism “has been a priority for Eurojust since it was established as a provisional unit on the 1st of March of 2001.”23 The first operational meeting dealing with counterterrorism issues under the auspices of the then still Pro-Eurojust indeed pre-dates the 9/11 events. It took place in June 2001, when seven EU MS met to discuss the issue of extremist Islamic terrorism. According to the chair of the Counter-Terrorism Team of Eurojust, it was “a very difficult meeting” due to the lack of trust among the participating national representatives. Their willingness to share information on what in many cases were still ongoing criminal investigations was rather low, though there was a generally accepted need to “discuss, coordinate and cooperate.” Ultimately, however, the meeting led to the arrests of several suspects in Spain in August 2001, setting an important precedent that EU-level judicial cooperation is able to deliver tangible practical results.24 As in other areas of EU’s counterterrorism efforts, the 9/11 terrorist attacks represented a wake-up call and revealed the need for much closer cooperation and 19  European Commission, “Eurojust Coordinating Cross-Border Prosecutions at EU Level.” 20 OLAF can be regarded as a collector of data that is forwarded to national authorities to initiate and/or support criminal proceedings. On its own, however, OLAF does not run any criminal investigations. 21  European Commission, “Eurojust Coordinating Cross-Border Prosecutions at EU Level.” 22  Bensahel, “The Counterterror Coalitions,” 41. 23 Michael Kennedy, “Eurojust and the Fight Against Terrorism,” in European Cooperation Against Terrorism, ed. Tim Bremmers (Nijmegen: Wolf Legal Publishers and EULEC, 2004), 60. 24 Interview with Michèle Coninsx, chair of the Counter-Terrorism Team of Eurojust, September 2009.

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information sharing in the area of criminal justice. The Council immediately asked Eurojust to convene strategic-level meetings of representatives of all EU MS. The first of these occurred in October 2001 and it became apparent that “a lot of things were missing” and that “there was no uniform approach to counterterrorism related issues” among EU MS.25 As in the pre-9/11 meeting, it was also evident that counterterrorism was still perceived as a national security issue and it was therefore “extremely difficult to make professionals work together” because they felt that sharing information on an ongoing criminal investigation amounts to a breach of professional secrecy and, as such, “it is absolutely not possible.”26 After a series of similar meetings in late 2001, where the same problems were encountered, Eurojust representatives “detected the need for uniform legislation, better information flows, and a clear approach to terrorism and counterterrorism,” which were all subsequently reported to the Council, Commission and the European Parliament, and thus contributed to the formulation of the aforementioned February 2002 Council Decision that formally established Eurojust proper. 27 Since 2002, according to the chair of the Counter-Terrorism Team of Eurojust and the Eurojust annual reports, Eurojust has been convening counterterrorism meetings at three levels. At the operational level, the national counterterrorism magistrates focus on the ongoing criminal investigations.28 At the tactical level, Eurojust representatives decided to push the MS towards sharing of best practices regarding their own national counterterrorism experiences with different kinds of terrorist groups and to mapping out of potential linkages between these nationally-based terrorist groups.29 A special questionnaire was sent out to MS prior to the first series of the tactical meetings so that the specialized national magistrates were then able to come to Eurojust to share meaningful information. At the strategic level, Eurojust convenes an annual meeting where national representatives are reminded about their duty to share all information regarding ongoing criminal investigations with Eurojust.30 In cases where information has not been forthcoming, explanations are requested from national representatives. These range “from no relevant information to be shared due to the lack of ongoing, terrorism-related investigations, to the lack of interest in the European level and the 25 Ibid. 26 Ibid. 27 Ibid. 28  According to the most recent annual reports, six coordination meetings were held in 2008 and four in 2007. Eurojust, Eurojust Annual Report 2008, 16. Eurojust, Eurojust Annual Report 2007. January 2008, , 22. Accessed 1.11.2009. 29 In 2007, for example, a tactical meeting brought 19 MS, third states and Europol together to discuss an ethno-nationalistic separatist terrorist group. Eurojust, Eurojust Annual Report 2007, 27. 30 In 2007, for example, the focus of the strategic meeting was on the implementation of the JHA Council Decision of 20 September 2005 on information exchange. Eurojust, Eurojust Annual Report 2007, 27.

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persisting reluctance to share.”31 Apart from putting “gentle pressure” on the MS to fulfill their obligations towards Eurojust, the strategic-level meetings are also used by Eurojust representatives to show the MS representatives “what Eurojust had been doing with the received information and what value-added was provided in the fight against terrorism.”32 In the aftermath of the March 2004 Madrid terrorist attacks, the Eurojust College decided to create a special Counter-terrorism Team and a scoreboard to keep track of the progress achieved in major counterterrorism initiatives. The rationale behind these steps was to further improve networking to the point where Eurojust’s counterterrorism role would eventually progress “from purely reactive coordination efforts to more proactive and preventative contributions in the fight against terrorism.”33 The Counterterrorism Team was also put in charge of enhancing the links with other EU institutions (especially, but not only, with Europol and the EU’s Counterterrorism Coordinator), as well as non-EU bodies (including the Council of Europe, the UN) and third countries. Eurojust also pushed for the establishment of the Case Management System (CMS), an EU-wide judicial database that contains information on all investigations and prosecutions reported to Eurojust. A proposal to further enhance the capacity of the CMS with regard to information on convictions was tabled in 2007 and another legal database on terrorism giving an updated overview of the available national, European and international legal documents on terrorism was set up in the same year.34 Most recently, there has been more targeted attention to specific forms of terrorism (such as cyberterrorism and terrorism involving the use of nuclear, biological and chemical materials) and counterterrorism (such as the fight against terrorist finances).35 Eurojust’s Counterterrorism Activities As of early 2010, Eurojust is still a relatively young organization attempting to establish its own procedures and mechanisms for cooperation. Nevertheless, a number of provisional observations can be made about its workload and valueadded in the fight against terrorism from the data published in the annual reports. Although the number of terrorism-related cases referred to the College remains rather small compared to other major types of criminal activity (such as drug trafficking or crimes against property and public goods), it has been steady over the past few years (see Figure 5.1). There has been an increase in the number of cases involving 31 Interview with Michèle Coninsx, chair of the Counter-Terrorism Team of Eurojust, September 2009. 32 Ibid. 33 Ibid. 34  Eurojust, Eurojust Annual Report 2007, 56, 61. 35  Eurojust, Eurojust Annual Report 2008, 23.

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financing of terrorism, which appears to confirm the findings of a recent analysis that public prosecutors have started to coordinate on a voluntary basis via Eurojust, including in the field of combating terrorist finances.36 Moreover, many cases are increasingly referred to Eurojust at an early stage of investigation, thus saving resources for those fighting international crime and terrorism. While it is difficult to compile evidence and statistics on cases where Eurojust’s input contributed to tangible counterterrorism outcomes – such as arrests and/or convictions – the recent annual reports and external sources do provide information about several such cases. According to Nilsson, for example, “Eurojust was instrumental in avoiding the bombings at the Strasbourg Christmas market, in avoiding the bombings in Belgium in the so-called Kleine Brogel (a military base), and a bombing attack against the US embassy in Paris.”37 Based on this evidence, one may argue that Eurojust is increasingly fulfilling its key role – enhancing the development of Europe-wide cooperation on criminal justice cases.

Figure 5.1 Eurojust Terrorism Cases Evolution 2004–2008 Source: Eurojust Annual Report 2008, 23.

More pessimistically, however, a number of high-profile EU reports have criticized the slow progress of implementing the relevant EU decisions and the persistent lack of tangible results in the area of judicial cooperation at the EU level. 36  John Howell & Co., Independent Scrutiny, 31. 37 Hans Nilsson, “National Versus EU Competences, Judicial Cooperation in the European Union,” in European Cooperation Against Terrorism, ed. Tim Bremmers (Nijmegen: Wolf Legal Publishers and EULEC, 2004), 19.

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For example, a report drawn up by the EU Council’s security experts following the March 2004 terrorist attacks in Madrid claimed that EU MS adopted “a minimalist approach to Eurojust” and criticized several of them for paying lip-service to this important EU agency.38 Eurojust’s own annual reports have also raised a number of critiques and concerns, including the following: 1. The speed and level of implementation of the 2002 Eurojust Decision has been uneven among EU MS. 2. The support given by MS to their National Members has been uneven. As late as 2006, the Polish and Lithuanian National Members have not even been able to establish a permanent residence in Eurojust headquarters in the Hague. 3. There are more cases which could and should be referred to Eurojust, whose capacity to deal with casework is not being fully exploited. 4. Very few MS provide Eurojust with data concerning terrorist offences, as prescribed in the Council Decision of September 20, 2005. 5. A 2007 survey among all National Members showed that a vast majority have casework which is not registered in Eurojust’s Case Management System, and almost two-thirds do not have statistics on this unregistered casework.39 The annual reports also revealed a potentially useful, though thus far underutilized, mechanism formally falling under Eurojust’s watch – the Joint Investigations Teams (JITs). As already noted in Chapter 4, despite the creation of an informal Network of National Experts on Joint Investigation Teams in July 2005, few MS have actually set-up JITs in practice and available data suggests that only one team so far exists on terrorism (between Spain and France).40 A survey of all National Members conducted by Eurojust in 2008 revealed that JITs have not been considered necessary by concerned MS because they found other forms of cooperation sufficiently effective.41 Critical remarks concerning the (non-)use of Eurojust by EU MS can also be found in a number of non-EU reports and analyses. A report by the UK House of Commons, for example, stated that “Eurojust’s capacity is limited by some Member States’ unwillingness to use it fully.”42 The Centre for European Policy Studies pointed out that Eurojust itself says that it has the capability and possibility to go further but it cannot work when no cases are referred to it: “Apart from the 500 additional cases arising in 2005, it [Eurojust] says that it had the capability 38 Dempsey, “Europe at Loggerheads Over How to Co-Ordinate on Terrorism.” 39  Eurojust, Annual Reports 2006, 2007 and 2008. 40 Nilsson, “Judicial Cooperation in Europe Against Terrorism,” 80. 41  Eurojust, Eurojust Annual Report 2007, 57–59. 42 Home Affairs Committee UK House of Commons, “Justice and Home Affairs Issues at European Union Level,” para. 152.

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and capacity to deal with more but it is not able on its own to instigate this work.”43 This has been confirmed by Eurojust’s representatives interviewed for a French study, who argued that their institution “can only become perennial and produce concrete outcomes provided national judges resort to it.”44 However, other interviews conducted with French, Belgian, Dutch and Italian magistrates showed that the majority of them remain, albeit for different reasons, “alien” to European issues. This is partly due to the obstacles related to cognitive issues (language, knowledge of foreign legal systems, etc.), but as in the case of police and intelligence cooperation, it is also explicable by the occupational culture of magistrates and judges where personal and informal relations remain the preferred mode of action when dealing with a transnational affair.45 Some observers have also criticized the configuration of Eurojust’s College, which is currently almost entirely composed of national prosecutors, i.e., magistrates from the respective MS accusatory authorities. This has allegedly led to a problematic dominance of the intelligence-led rationale within Eurojust because the main role of the magistrates is to assist the police in transforming the collected data into legally compelling evidence that can be used in a court of law: Prosecutors are de facto involved in the intelligence approach to threats as opposed to an approach focusing on the rights of the defense. At the European level, we are hence witnessing a dual judicial subfield: one mainly linked to prosecutors and very close to accusatory authorities of the Member States and a second more marginalized one focusing on the accusation than on procedural rights and especially the rights of the defense.46

Such remarks testify to the presence of occasional tensions between justice and security, which are explored in detail in Chapter 9. They also reveal that the new Stockholm Programme suggestion that the 2008 Council Decision together with the Lisbon Treaty offer “an opportunity for the further development of EUROJUST in the coming years, including in relation to initiation of [criminal] investigations,”47 may be problematic because there are few investigative officers at Eurojust at the moment.

43  Cited in ibid. 44 Megie, “Mapping the Actors of European Judicial Cooperation,” 82–3. 45 Ibid., 83. 46  Bigo et al., “Mapping the Field of the EU Internal Security Agencies,” 40. 47  Council of the European Union, The Stockholm Programme – An Open and Secure Europe Serving and Protecting the Citizens, 17024/09, 24.

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Eurojust-Europol Cooperation in Counterterrorism: An Interagency Rivalry? In the past few years, significant efforts were devoted to developing a working relationship between Eurojust and Europol on counterterrorism issues. The problem is that while officially strengthening cooperation with Europol has been Eurojust’s objective from the outset, practical relations between the two agencies have been rather complicated. To a large extent, this was a consequence of the fact that “the legislators unfortunately did not pay much attention to EU interinstitutional relations in legal terms”48 and the resulting gap had to be filled by a series of separate interagency agreements. In the case of Eurojust and Europol, the negotiations preceding the signing of a cooperation agreement aimed at enhancing the exchange of both strategic and operational information in 2004 were rather difficult because of the Europol management board’s reluctance to meet some of Eurojust’s data-sharing requests. In this regard, it appears that Europol’s strict data-protection regime (see Chapter 4), notwithstanding its undeniable general merits, initially proved to be a major obstacle for information sharing between Europol and Eurojust: At some of the initial meetings, we would have a national judge complaining: “How come Europol is not giving the information? I am the owner of the information and I gave the permission to include it in the AWF [analysis work file], so how come we cannot share it today with my colleagues?” So the owner of the information gave permission to the policeman to include the information in one of the [Europol’s] AWF but at the meeting with Eurojust, Europol officials said, “We cannot talk about this.” So it was leading to absolute stupid, hallucinate things. This is something we [at Eurojust] cannot accept.49

Legally, these complications were often due to the strict legal conditions that the onward transmission of data from Europol to third parties must meet, and the fact that MS “own” the information that they transfer to Europol.50 In practice, however, the problem was also that some of the big MS (especially France, Italy and Germany) were quite concerned about Eurojust’s access to Europol’s AWFs because of their intelligence information input in them.51 In 2005, Eurojust adopted its own Rules of Procedure on the Processing and Protection of Personal Data, which stressed the right to privacy and data protection, and principles of lawfulness and fairness, proportionality and necessity

48  Interview with a Europol official, July 2009. 49 Interview with Michèle Coninsx, chair of the Counter-Terrorism Team of Eurojust, September 2009. 50  Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 186. 51 Interview with Michèle Coninsx, chair of the Counter-Terrorism Team of Eurojust, September 2009.

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of processing of all personal data.52 As in the case of Europol’s data protection regime, this has been welcomed by some and criticized by others. The critics have argued that: The increase in the powers of Europol and Eurojust to receive, process and exchange personal data is symptomatic of a broader and growing trend in EU criminal law towards the maximization of the collection, access and exchange of personal data. … However, this proliferation of data collection mechanisms … has not been accompanied by a coherent framework for the protection of personal data and privacy.53

Due to the adoption of the 2008 Framework Decision on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters54 and the entry into force of the Lisbon Treaty, data protection in the former third EU pillar should improve. Nevertheless, as one senior EU official noted, this may not be welcomed by all: Data protection is indeed important but seems to cause extraordinary difficulties in data exchange between EU agencies to no obvious purpose. It is currently to the extent that the EU agencies and institutions have to conclude data protection agreements to share data with each other. One would assume that as in the national governments, there is a standard set of rules and procedures that all national agencies adhere to, which allows them to freely exchange data between each other, bearing in mind the purpose for which the data was collected. This does not seem to exist at the European level and a huge amount of effort has to be put just into sorting out the ways how EU institution can exchange data.55

It is beyond the scope of this chapter to resolve this justice and/or/versus security debate, which is reviewed in Chapter 9. What matters for the discussion in this chapter, however, is that although many of the initial complications in information sharing between Europol and Eurojust have eventually been resolved, overall progress has not been smooth. In the area of access to Europol’s AWFs, for example, significant advances were made only in the past couple of years. The so-called Danish Protocol amended the Europol Convention in order to create the possibility for Europol to invite experts from third states or third bodies to be associated with the activities of 52  Eurojust, Rules of Procedure on the Processing and Protection of Personal Data at Eurojust, 2005/C 68/01. 53 Mitsilegas, “The Third Wave of Third Pillar Law,” 557–558. 54  Council of the European Union, Framework Decision 2008/977/JHA on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters. OJ L 350/60. 55  Interview with a Council official, October 2008.

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its analytical groups already in 2003, but a Europol-Eurojust joint working party on AWFs was only established in 2007 with the mandate to examine legal and practical difficulties of Eurojust’s involvement in these working files. Eurojust eventually became associated with the first six AWFs in June 2007 and several of its analysts were appointed as experts on judicial cooperation.56 In 2008, a secure communications link was established to facilitate the exchange of information between Eurojust and Europol, and Eurojust became associated with a further six Europol AWFs, bringing the total number of associations to 12. This development is encouraging but it would be beneficial for Eurojust to become associated with all Europol AWFs in view of enhancing effective cooperation in all areas. This was confirmed by the EU counterterrorism coordinator in his testimony in front of the British House of Lords European Union Committee: “Professor de Kerchove, looking at the counter-terrorism aspect, thought that in that field it made sense that Eurojust should get access, if not to 100 per cent of the AWFs on Islamic terrorism, at least to the main findings, and that conversely Eurojust should feed information to the AWFs.”57 Eurojust’s annual reports further indicate that it has provided Europol with information for TESAT, the CTTF Glossary on terrorist organizations, and Organized Crime Threat Assessment. Eurojust contributions to the aforementioned Europol’s products was confirmed by the chair of the Counter-Terrorism Team of Eurojust, although she also admitted that Eurojust started to contribute to the Europol’s annual TESAT report only in 2006, providing data on judgments (including both convictions and acquittals), appeals, types of terrorist activities and profiles of convicted terrorists.58 Moreover, as highlighted below in Table 5.1, the overall increases in data exchange are relatively recent and the data flows have been, at least from Europol’s perspective, rather imbalanced. On the other hand, it should be noted that since 2007 Eurojust publishes its own Terrorism Convictions Monitor (TCM), which “goes far beyond the information available in TESAT reports in that it provides detailed judicial analyses of terrorism related criminal investigations and judgments.”59 It is, however, only available to the judicial authorities upon request.

56  Eurojust, Eurojust Annual Report 2007, 47–48. 57  European Union Committee, UK House of Lords, EUROPOL: Coordinating the Fight Against Serious and Organised Crime, para. 181. 58 Interview with Michèle Coninsx, chair of the Counter-Terrorism Team of Eurojust, September 2009. 59 Ibid.

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Table 5.1 Exchange of Information between Eurojust and Europol in 2004 and 2005 2004

2005

Requests sent by Europol to Eurojust

0

1

Answers received by Europol from Eurojust

0

1

Requests received by Europol to Eurojust

8

64

Answers sent by Europol to Eurojust

4

52

Total

12

118

Note: The table represents Europol’s perspective. Source: Didier Bigo et al., Judicial Cooperation in European and Security Challenge. , accessed 22.5.2009.

Some experts have argued that the difficulties in Europol-Eurojust cooperation run much deeper than the aforementioned information-sharing complications suggest. They point out that some interviews with Eurojust and Europol officials have revealed that formal relations between two EU agencies have in fact often been used “as a tool of inter-institutional surveillance.”60 Several experts have even hinted towards the existence of an interagency rivalry in the early years of this century, which allegedly culminated in the move of Eurojust headquarters from Brussels to the Hague, where Europol headquarters have been located since its creation.61 My own interviews with both Eurojust and Europol officials indicate that although “some really stupid problems were initially encountered,”62 these were allegedly more of a personal, rather than institutional, nature. The current relations have been described as “very good”63 and “flawless”64 by the heads of units in charge of counterterrorism at both Eurojust and Europol, respectively. This may be due to the fact that in 2005 a special Eurojust team dedicated to cooperation with Europol was created to “temper the ongoing struggles between

60  Interviews with Eurojust and Europol officials, 2005–2006. Cited in Bigo et al., “Mapping the Field of the EU Internal Security Agencies,” 24. 61 Many have regretted that the two buildings are not in the same part of the city. European Union Committee, UK House of Lords, EUROPOL: Coordinating the Fight Against Serious and Organised Crime, para. 183–6. 62 Interview with Michèle Coninsx, chair of the Counter-Terrorism Team of Eurojust, September 2009. 63 Ibid. 64 Interview with the head of the Terrorism Unit at Europol, September 2009.

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different professional sectors and built trust between them.”65 As a result, unless prohibited due to data-protection issues, Europol currently invites Eurojust officials to relevant counterterrorism meeting, and Europol representatives are invited to Eurojust’s meetings. In 2006, both organizations also cooperated on a project to provide a guide on MS legislation regarding the setting up of JITs and followed this with a number of expert meetings in 2007.66 The fivefold increase of the number of cases dealt with by Eurojust involving Europol (from six cases in 2006 to 30 in 2008) indicates that Europol-Eurojust cooperation has rapidly accelerated in the last few years,67 although further structural links should be created so that Eurojust can fully benefit from Europol’s analytical capacity without duplicating tasks.68 Eurojust’s Current Value-Added in the Area of Counterterrorism At the moment, Eurojust does not meet either of the two “value added” criteria adopted from the intelligence literature, that is a) production of something that cannot or will not be produced at the national level; and/or b) relieving national authorities by transferring an existing product to the European level. As discussed above, Eurojust has a double nature due to its composition of secondary high-level national experts who together form a College, whose key job is to support, not replace or relieve, the competent authorities of the MS. Nevertheless, according to a recent study by Jiri Vlastnik, it is possible to identify two principal Eurojust missions that also provide value-added in the fight against terrorism.69 The first – trust promotion – is rather informal, yet as discussed below, perhaps the most crucial Eurojust function in the long run because it represents an indispensable precondition for cross-border cooperation in criminal justice. In contrast, Eurojust’s second key contribution – prosecution facilitation – is based on a formal division of powers, which is based on national and EU law foundations. In the context of the EU, Vlastník has identified four sources of mistrust that Eurojust ought to help to overcome in the medium to long term: 1) lack of knowledge (of relevant legal regulations, national institutions and their representatives, as well as foreign cultures, languages and practices in other EU MS); 2) different legal standards; 3) bad experience; and 4) traditional conservatism.70 In the first area, Eurojust was designed from its inception to promote trust among the representatives of EU MS by working as a permanent and centralized College of national representatives. In addition, Eurojust has also tried to overcome mistrust by educational means, e.g., by convening seminars, meetings and conferences on 65  Bigo et al., “Mapping the Field of the EU Internal Security Agencies,” 24. 66  Eurojust, Eurojust Annual Report 2006, 28–34. 67  Eurojust, Eurojust Annual Report 2008, 19. 68  Cited in Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 187. 69  Vlastnik, “Eurojust,” 38. 70 Ibid.

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various criminal justice topics, including counterterrorism (see above) and some experts have argued that just by doing so, Eurojust “has already provided clear added value in the fight against terrorism.”71 The second problem of different legal standards stems from the fact that there are currently at least 30 different legal systems in the EU, which translates into 30 different rules for gathering evidence, arrests, trial processes and penalties.72 Thus, even the basic Eurojust functions of legal cooperation and coordination can themselves represent a daunting challenge. Moreover, even a good knowledge of existing legal standards in EU MS can be a source of mistrust, provided that some of these standards that are crucial for criminal justice (e.g., protection of basic human rights such as the right for fair trial, the principle nullum crimen sine lege,73 personal data protection, etc.) differ to the extent that some are deemed insufficient. According to Vlastnik, “this shows well the interdependence of the three grounds of EU criminal justice cooperation – mutual recognition principle, institutional cooperation and harmonization of national laws.”74 Of these three, Eurojust has attempted to address only some of the institutional cooperation issues with the other, formerly EU’s third pillar, bodies and agencies, although as highlighted in the discussion of Eurojust-Europol cooperation in the areas of counterterrorism, even here progress has been piecemeal. The current mandate and capacity does not allow Eurojust to address the larger issues concerning the application of mutual recognition and/or harmonization, which are discussed in Chapter 7. Criminal justice cooperation can also be hindered by past bad experiences, including police and judicial malpractice, corruption, information leakages, bureaucracy or non-reciprocity. According to Vlastnik, “Eurojust has a double role here – (a) to be ‘a good’ experience for national organs referring cases to it and (b) to remove causes of bad behaviour on national level.”75 Regarding the former, apart from being a role model in terms of not engaging in the above-mentioned malpractices, the original idea was that Eurojust would help the national agencies by focusing on the most complicated multilateral cases. In practice, however, in line with its role-model strategy, Eurojust has not refused to deal even with the more mundane operational cases, which actually comprise the vast majority of its workload.76 Regarding the latter, personal contact-building and “public pressure 71 Nilsson, “Judicial Cooperation in Europe Against Terrorism,” 82. 72  Although there are currently only 27 MS in the EU, in the UK there are different legal systems in Scotland, England and Wales, and in Northern Ireland. 73 No punishment for an act which has not been previously and unambiguously declared criminal. 74  Vlastnik, “Eurojust,” 40. 75 Ibid. 76 In 2008, 1,153 of the newly opened cases dealt with operational issues, while only 40 cases were registered “to provide support to and expertise on general topics related to each legal system or judicial questions.” In 2007, the ratio was 1,081:20. Eurojust, Eurojust Annual Report 2007, 13. Eurojust, Eurojust Annual Report 2008, 11.

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that Eurojust may exert upon foreign national authorities through the threat of a public critique in the Annual Report”77 are Eurojust’s key contributions, although it appears that the “name and shame” approach has been used only sparingly as a measure of last resort. Finally, when it comes to the problem of traditional conservatism of lawenforcement and criminal justice authorities (also see Chapter 7), it is to a large extent based on the first three categories of mistrust. But as Vlastnik notes, it can also be gradually removed provided the existence of “a clear definition of common values and priorities of both the EU and Member States.”78 Unfortunately, as discussed in Chapter 2, in the area of counterterrorism, such a consensus is clearly missing at the moment due to the persisting differences in the national perceptions of the nature and salience of terrorist threats across the EU MS. Moreover, as the chair of the Counter-Terrorism Team of Eurojust noted, there is a lack of consensus on the larger criminal justice priorities as such: What is the top priority in European criminal policy today? You can see that events are influencing our activity and it is very difficult to have a European approach when you have not decided what is the European priority, what is the European criminal policy and what do we really need – what is really bothering the citizen in Europe? Is it organized theft, is it money laundering, or is it terrorism?79

While Eurojust on its own cannot ensure that either common values or clear priorities emerge, its unique double nature architecture allows it both to keep criminal law powers on the national level and to profit from the physical accumulation of these powers in one place. In addition, this arrangement also “certainly promotes trust of other national organs, as their national member is ‘one of them,’” whereas other European bodies are often considered as “rather strange, distant and incredible.”80 Can Eurojust Provide More Genuine Value-Added in the Area of Counterterrorism? There are several areas where Eurojust has the potential for tangible value-added in the fight against terrorism. Perhaps most importantly, this includes prosecution facilitation, the second key area where Eurojust’s “double nature” has to be taken into account. When it comes to the powers of national members of Eurojust within 77  Vlastnik, “Eurojust,” 40. 78 Ibid., 41. 79 Interview with Michèle Coninsx, chair of the Counter-Terrorism Team of Eurojust, September 2009. 80  Vlastnik, “Eurojust,” 41.

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their home jurisdictions, relations between Eurojust and the individual MS have been highly asymmetric in general, because the latter have been completely free in their nomination of the national correspondents to Eurojust and, as discussed above, they also determine both the terms of their mandate and wages.81 Thus, despite the fact that already the original 2002 Council Decision specified a minimum definition of a common standard of national member powers, in practice they have thus far varied quite considerably, reflecting the differences among MS criminal justice systems: “Whereas a majority of national members dispose of prosecutorial powers (even if these powers differ very much as well), others serve only as transmission channels for mutual legal assistance.”82 The Council tried to remedy these shortcomings in its December 2008 Decision on the Strengthening of Eurojust, which was adopted “with the purpose to enhance the operational capabilities of Eurojust, increase the exchange of information between the interested parties, facilitate and strengthen cooperation between national authorities and Eurojust, and strengthen and establish relationships with partners and third States.”83 Interestingly, the text of the decision was published in the Official Journal only in June 2009, 20 days following the publication of the new Europol Decision (see Chapter 4). According to Mitsilegas, “[t]he reason for this delay has been the decision by Member States to align the mandate of Eurojust in terms of the offences for which it has competence with the one of Europol.”84 More importantly, however, the new Eurojust decision introduces a number of significant changes, in particular as regards the clarification and to some extent expansion of the powers of Eurojust members. Thus, once its provisions are implemented by the MS, all national members of Eurojust should be at a minimum granted the power to receive, transmit, facilitate, follow up and provide supplementary information in relation to the execution of requests for judicial cooperation. In addition: They shall be entitled to exercise, subject to agreement with the competent national authority, the following powers: issuing and executing requests for judicial cooperation, ordering in their Member States investigative measures considered necessary at coordination meetings organised by Eurojust, and authorising and coordinating controlled deliveries in their Member States. In urgent cases, where it is not possible to identify or to contact the competent national authority in a timely manner, the National Members are also entitled to authorise and coordinate controlled deliveries and execute requests.85

81  Bigo et al., “Mapping the Field of the EU Internal Security Agencies,” 24. 82  Vlastnik, “Eurojust,” 42. 83  Eurojust, The History of Eurojust. 2009, , accessed 1.10.2009. 84 Mitsilegas, “The Third Wave of Third Pillar Law,” 553. 85  Eurojust, Eurojust Annual Report 2008, 47–48.

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Although this increase of the minimum standard of national member’s powers does not reduce national sovereignty because these powers are still national rather than European in their origin, it was nonetheless for a long time perceived as controversial by several MS.86 Moreover, although the new Eurojust decision refrains from introducing changes with regard to the mandatory character of Eurojust’s requests to national authorities to initiate investigations and prosecutions, its potential impact on state sovereignty and the relationship between the European Union and the national level in judicial cooperation in criminal matters should not be underestimated: The detailed provisions on the powers of national members of Eurojust under their national law may transform this relationship. Union law would make Member States confer on their Eurojust national members a series of powers which must be “equivalent” to the powers of national officials, potentially transforming the relationship between national law and Union law and increasing the impact of Union structures on domestic criminal justice systems. The emphasis on national law as the basis for powers of Eurojust national members and the insertion of exceptions to these powers based on the need to preserve domestic constitutional and criminal justice systems reflects Member States’ unease with this prospect.87

In this light, it is not surprising that the 2008 Council Decision did not address the second source of Eurojust power which is of European origin, e.g., the powers of the College. The only new provision concerns cases of disagreement among national members as to which jurisdiction should prosecute, where the College will newly be asked to act as a “broker” and issue “a written non-binding opinion on how the case should be solved.”88 Even in these cases however, Eurojust College will have to continue with its current tasks of coordinating, recommending and supporting nature, without having the recourse to any enforcement or sanctions mechanism, apart from the occasional naming and shaming of the most flagrant laggards in its annual report. The only area where the remit of Eurojust has been extended quite considerably is the collection, processing and exchange of personal data, including the establishment of temporary work files reminiscent to those in the Europol framework (see Chapter 4). It is also important to note that the European Commission and some EU MS have been strongly supportive of even further strengthening of Eurojust’s role in the area of counterterrorism. The European Commission, for example, suggested that:

86  Vlastnik, “Eurojust,” 43–4. 87 Mitsilegas, “The Third Wave of Third Pillar Law,” 557. 88 Ibid., 555.

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EU Counterterrorism Policy Eurojust should be given a stronger role in the fight against terrorism. The Council should give it a clear mandate to coordinate the activities of national prosecuting authorities across the Union in relation to terrorism. We should open an urgent debate about giving Eurojust an initiating role in this regard too. Presently, Member States may, provided they come forward with a justification, refuse to pursue an investigation requested by Eurojust. This should be abrogated, at least when Eurojust’s request would relate to investigations on terrorism.89

Similarly, Article 85 of the recently ratified Lisbon Treaty stipulates that Eurojust’s mission “shall be to support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime affecting two or more MS or requiring a prosecution on common bases, on the basis of operations conducted and information supplied by the Member States’ authorities and by Europol.” The Council is now also empowered to adopt regulations to determine Eurojust’s structure, operation, field of action and tasks, including: 1. The initiation of criminal investigations as well as proposing the initiation of prosecutions; 2. The coordination of such investigations and prosecutions; 3. The strengthening of judicial cooperation, including by resolution of conflicts of jurisdiction and by close cooperation with the European Judicial Network.90 Eurojust representatives suggested that while these substantive Lisbon Treaty provisions are unlikely to affect its operations to any great extent, the procedural changes (the move to qualified majority voting and co-decision, the greater role for the Commission, and the extended jurisdiction of the ECJ) would “have a significant impact on Eurojust’s structure and operations in the medium and longer terms.”91 The chair of the Counter-Terrorism Team of Eurojust specifically noted that “the Lisbon Treaty will help because then we will have to have together with Europol a more integrated approach and the trans-pillar approach will no longer be possible. The effect will be huge and we will be forced to have a more integrated approach.”92

89  European Commission, “European Commission Action Paper in Response to the Terrorist Attacks on Madrid.” 90  European Union Committee UK House of Lords, “The Treaty of Lisbon: An Impact Assessment,” 10th Report of Session 2007–08. , para. 6.190. Accessed 17.4.2008. 91  Cited in ibid. 92 Interview with Michèle Coninsx, chair of the Counter-Terrorism Team of Eurojust, September 2009.

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It is also important to note that the Lisbon Treaty kept the provision for possible establishment of a European Public Prosecutor’s (EPP) Office from Eurojust, which was already resuscitated in Article III-274 of the stillborn Constitutional Treaty. If it is ever created, the EPP Office would be “a judicial body with direct enforcement authority, responsible for investigating, prosecuting and bringing to judgment offences against the Union’s financial interests.”93 In this respect it would exercise the functions of prosecutor directly in the competent courts of the MS. Moreover, while the term “offences against the Union’s financial interests” is already quite broad, there will also be the possibility to extend the powers of this body to include “serious crimes having a cross-border dimension.” A full-fledged European Public Prosecutor’s Office responsible for investigating and bringing to trial all serious cross-border crime throughout the EU would therefore represent “a quite fundamentally new and powerful actor in the area of judicial cooperation in the EU.”94 As such, the new EPP Office would most likely meet at least some of the criteria for genuine value-added specified in Chapter 1. While the proposal for an EPP is not new, it is the first time the structure for implementing this idea has been included in the treaties, which makes it more likely that this post may one day be created. At the same time, however, it is worth noting that Article 86 merely provides a basis for a possible future regulation to be adopted by consensus by all EU MS. As discussed above, the very idea of an EPP has been so controversial that it is unlikely to garner the necessary unanimous support among MS in the foreseeable future. It is therefore more likely that any future EPP would have to be created under the enhanced cooperation provisions provided by the Lisbon Treaty.95 Moreover, at present the debate about EPP is not aimed at counterterrorism issues but rather on anti-fraud issues, though according to the personal opinion of the chair of the Counter-Terrorism Team of Eurojust, this may change “if there is a major terrorist attack tomorrow. Then the need for an EPP also in counterterrorism-related issues would be felt very strongly.”96 Finally, when confronted with the discussion about Eurojust’s value added in the fight against terrorism, the current chair of the Counter-Terrorism Team specifically mentioned two areas of concern. The first concerns the persisting lack of human resources:

93 Sergio Carrera and Florian Geyer, “The Reform Treaty & Justice and Home Affairs: Implications for the Common Area of Freedom, Security & Justice,” Center for European Policy Studies, August 2007 , 4. Accessed 12.1.2008. 94 Ibid. 95  European Union Committee UK House of Lords, “The Treaty of Lisbon,” para. 12.89. 96 Interview with Michèle Coninsx, chair of the Counter-Terrorism Team of Eurojust, September 2009.

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EU Counterterrorism Policy [I would like] to have more human resources and more possibilities to create a real team because nowadays I am chairing a team based on voluntary inputs. Most of the team members work only part-time on counterterrorism and have to follow other teams as well. I am also doing this together with my other work and this is not the way we should be dealing with this. If it is really a priority, than prioritize it. Now it is based on the good work of people who are doing this as an extra.

The second, and “the most important message,” concerned “the real need for an integrated approach” to counterterrorism (not only) at the EU level: “It is never a police thing only, or an intelligence thing only; it is together – police, intelligence and judicial. And if you separate these three, you are lost. Because yes, Europol is very active, Eurojust starts to be active and SitCen is extremely active but it is not about being active or complacent but about working together.”97 This confirms that even at the EU level, talking about coordination is one thing, and the willingness to be coordinated and work together in a truly integrated manner is often quite another thing. But it is precisely in the area of coordination where Eurojust’s counterterrorism activities could offer genuine value added. It is therefore also important to note that according to the chair of the Counter-Terrorism Team of Eurojust, due to the work of her unit, the powers of Eurojust were strengthened in other areas as well: The quite revealing thing is that what we established under the frame of terrorism is now being transposed into other areas, including and obligatory information stream. This is a good point because it shows that European policy-makers at the Council level have found it worthwhile to take what has been achieved in counterterrorism and transpose it into other areas.98

Thus, it appears that some of the aforementioned changes introduced by the 2008 Council Decision may not have been introduced without the work Eurojust has done in the area of counterterrorism. Interestingly, this also suggests that while initially – after the 9/11 and 3/11 terrorist attacks – some politicians may have used the windows of opportunity to push through multipurpose pieces of anti-crime legislation under the rubric of counterterrorism,99 Eurojust’s counterterrorism best practices are being used as a model for adjusting the more general anticrime legislation. If this indeed turns out to be a long-term trend, Eurojust’s counterterrorism efforts could provide genuine value-added that goes well beyond their original purpose.

97 Ibid. 98 Ibid. 99 Den Boer and Monar, “Keynote Article,” 11–28.

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Eurojust’s Counterterrorism Role: Work in Progress? Overall, it remains debatable as to whether all EU MS fully support the strengthening of Eurojust’s role in the fight against terrorism. On the one hand, the uneven utilization of Eurojust reflects the deeper and older differences concerning judicial cooperation at the EU level, with countries such as Belgium, Italy, Portugal, Spain and France considered to be committed and countries such as the UK and some of the “new” MS being rather reluctant to the idea of enhancing cooperation in criminal justice at the supranational level. These divisions were already present at the time of Eurojust’s creation, when the project laying out its current legal foundations that was jointly proposed by France, Sweden, Portugal and Belgium competed with another one from Germany,100 with the UK opposing both proposals for the fear of a “too far reaching European judicial cooperation in criminal affairs.”101 While the UK was ultimately appeased with the nomination of a British prosecutor as president of the College of Eurojust, the old divisions have yet to fully disappear. This also appears to be the case when it comes to Eurojust’s counterterrorism role in particular, where even in the case of Islamist terrorism, it is still “the same eight, nine or 10 MS having a lot of experience and interest in sharing information” with Eurojust.102 As discussed in Chapter 2, this is at least partly due to the different terrorist threat perceptions across EU MS, which was also confirmed by the chair of the Counter-Terrorism Team of Eurojust: “If you have some experience, you are more attracted to sharing information organizations like Europol and Eurojust because you are also sharing it with other countries. If you are not really concerned by these problems, you come to the meetings but you do not have a problem.”103 Eurojust is attempting to remedy this problem by making sure that all MS have “a full overview of activities to show that today you are not affected, but tomorrow you might be, so please be alert,”104 but in the absence of a genuine independent EU terrorist threat assessment, this is bound to remain a rather difficult endeavor. On the other hand, the relative under-utilization of Eurojust is sometimes also due to the more general shortcomings of interagency cooperation in the former

100  Germany preferred the model of the Europol liaison officers for Eurojust. See Michel Mangenot, “Jeux Europeens et Innovation Institutionnelle. Les Logiques de Creation d’Eurojust (1996–2004),” Cultures & Conflicts 62 (2006): 34–62. 101  Bigo et al., “Mapping the Field of the EU Internal Security Agencies,” 17. In contrast, the European Parliament refused to support the creation of Eurojust because the MEPs specializing in judicial cooperation have considered it to be too dependent upon the governments’ goodwill. 102 Interview with Michèle Coninsx, chair of the Counter-Terrorism Team of Eurojust, September 2009. 103 Ibid. 104 Ibid.

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EU’s third pillar. The first, and arguably most important one, is the lack of trust. As one Europol official noted: We rarely collaborate with Eurojust. Last time we invited a judge of Eurojust and he hasn’t said anything. He has taken notes but has not given any information. He hasn’t been very useful for us, but he certainly collected information. … If we know and trust each other, the exchange will be much easier.105

This was also confirmed by the president of Eurojust, who stated that lack of confidence and trust is “something that Eurojust comes up against and it is part of our role to remove this block – that concern of the investigator or prosecutor that sharing information means losing control over that information.”106 The problem is that the frequent transfer of personnel from the EU MS to EU security agencies makes the development of long-term relations rather difficult. In the case of Eurojust’s counterterrorism team, the situation is further complicated by the fact that the majority of its members work on counterterrorism issues only part-time. The second general shortcoming is due to the differences in national police and judicial systems that significantly influence the perceptions of “proper” relations between judges and policemen. Consequentially, as another Europol official stated, “depending on the country, we do not have the same kind of relation with judges. The Italian and Dutch judges are often authoritarian with the policemen of their country. But they cannot behave in the same fashion with other European policemen.”107 More generally, the shortcomings of national counterterrorism structures in some MS can also represent serious complications to Eurojust counterterrorism activities. In 2006, for example, Eurojust organized a coordination meeting to ensure the prompt implementation of several urgent letters rogatory in a case related to the financing of terrorism opened by Belgian judicial authorities and with links to Italy due to money transfers.108 The main obstacle identified in this case was the lack of a central anti-terrorism authority in Italy to which to address urgent requests for assistance. The solution proposed during the coordination meeting in 2006 – sending the same letters rogatory to all potentially competent authorities – ultimately proved unsatisfactory, because a conflict of territorial jurisdiction arose and consequently the Italian Supreme Court became involved, which led to a two-year delay in this urgent procedure.109 105  Interview with a Europol official, 2004. Cited in Megie, “Mapping the Actors of European Judicial Cooperation,” 93. 106  Kennedy, “Eurojust and the Fight Against Terrorism,” 62. 107  Interview with a Europol official, 2004. Cited in Megie, “Mapping the Actors of European Judicial Cooperation,” 93. 108  Two main defendants (one was arrested in June 2006 and the other fled to Pakistan) were accused of setting up illegal trafficking of phone cards, the profits of which were supposed to be directed towards several terrorist groups in Pakistan. 109  Eurojust, Eurojust Annual Report 2008, 31.

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These shortcomings are an important reminder that the most daunting challenges to Eurojust’s counterterrorism role are still due to the persisting limitations regarding some MS’ will and/or capacity to duly implement and fully utilize existing EU counterterrorism institutions and mechanisms. The EU is ultimately its MS, without whose wholehearted support even the most elaborate and innovative counterterrorism mechanisms remain useless. As the chair of the Counter-Terrorism Team at Eurojust put it: Every year we remind MS of their obligation to send information to Eurojust, not to please us but for their own sake, because the sooner they are inform us about on-going investigations, applications of EAW, cases of mutual legal assistance in cases of terrorism, the sooner we can detect links with other countries and maybe have a more pro-active approach in coordination. Now we are waiting for request from Member States, and so we are depending on the good will of Member States.

Because of the dependence on MS’ good will, Eurojust’s value added in counterterrorism has not been fully exploited yet. This was admitted by the president of Eurojust, who told the British Members of Parliament that “initially, we found that countries were reluctant to co-operate with us because they felt that we were an unnecessary link in the chain.”110 However, he also emphasized that this negative picture has begun to change: “As time has gone on and we have been able to demonstrate the added value we can bring by bringing people together … it has meant that we have been able to build trust and confidence amongst the various specialist investigators particularly.”111 This was confirmed in my interview with the current chair of the Counter-Terrorism Team of Eurojust: We see that things are evolving. If that would not be the case, I would quit; I am not that motivated. If you do not see progress, if you do not see that Member States want to see the added value of the organization ... I mean, we are not organizing the meetings for the pleasure of keeping everybody busy. That is not at stake and we cannot accept that everybody is sitting there as an observer.112

Thus, there is a possibility that over time Eurojust will succeed in convincing the MS and the relevant national judicial authorities that it can be trusted even in the highly sensitive area of counterterrorism. How long this process of trust-building will take, and whether it will really succeed, remains to be seen.

110  Cited in Home Affairs Committee UK House of Commons, “Justice and Home Affairs Issues at European Union Level,” para. 152. 111  Cited in ibid., para. 107. 112 Interview with Michèle Coninsx, chair of the Counter-Terrorism Team of Eurojust, September 2009.

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Chapter 6

EU Counterterrorism Coordinator This chapter offers an analysis of the role the EU’s counterterrorism coordinator (EU CTC) and the contributions of his/her office to EU counterterrorism policy. It suggests that the current powers of the EU CTC are too limited to offer a tangible value-added in the fight against terrorism, both vis-à-vis the EU MS and the supranational EU level. The lengthy transition between the two previous incumbents of the post also highlighted the persisting lack of agreement about the role of the EU CTC, whose position was created only in the aftermath of the March 2004 terrorist attacks in Madrid. Furthermore, taking into account the recent institutional innovations in the EU due to the adoption of the Lisbon Treaty, it is questionable whether all EU MS will continue to support the very existence of this post. (Un-)Official Mandate versus Real Powers There is no specific legislation establishing the post and setting out the coordinator’s powers. Formally, the post was established by the European Council in its Declaration on Combating Terrorism that was adopted shortly after the Madrid bombings. As a consequence, although quickly nicknamed the EU’s “Mr. Terrorism” and the “European terrorism czar” by the media, the actual formal mandate of the EU CTC is rather general and his/her precise tasks and powers are not entirely clear. According to Javier Solana, the then EU’s High Representative and thus also the direct superior of the EU CTC, the expectation was that the incumbent of the new post would take action in three main areas: 1. to present proposals aimed at better organizing and streamlining of the work of the EU secretariat on the fight against terrorism; 2. to prepare proposals for better EU coordination between EU Councils of Ministers and their preparatory bodies; and 3. to maintain regular contacts with MS so as to ensure coordination between EU and national action.

  Council of the European Union, “Declaration on Combating Terrorism is adopted in Brussels.” 2004, , accessed 14.4.2004.  Spence, “Introduction,” 18.

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In practice, the EU CTC has audited the progress of the 200+ measures from the EU counterterrorism action plan. For this purpose, s/he publishes a Report on the Implementation of the Strategy and Action Plan to Combat Terrorism every six months, as well as other occasional and more specialized reports and discussion papers on various aspects of the EU counterterrorism policy. Although these reports are sometimes rather critical of both the deficiencies of the EU MS and the EU agencies involved in the fight against terrorism, at least in the latter case, the content of the report is always an outcome of prior consultations. As a senior Europol official put it, “It is not that the CTC is saying to the outside world Europol is going to do this or that without talking to us first. And if we think it is not feasible, we tell him. It would not be useful for the CTC to announce something that is not feasible.” The coordinator should also coordinate a plethora of other institutions and committees that have a role in different aspects of the EU counterterrorism policy, and encourage greater cooperation between the Commission (which drafts legislation) and the Council (where national interior and foreign ministers meet to decide EU policies). As one high-level EU official noted, the very creation of the post of the EU CTC: was about providing a visible symbol and a feeling that there needs to be somebody specifically charged with terrorism simply because the subject is spread out over so many parts of a huge and complex bureaucracy, which tends to work very effectively but also slowly, and is not always very good in making horizontal connections.

The problem is, however, that formally the coordinator lacks both powers and resources to coordinate the work of the Commission, Council and the other EU agencies involved in the fight against terrorism. With an office formally constituted of just the coordinator him/herself and two assistants, one can hardly expect a hands-on coordination of the complex area of counterterrorism that is overcrowded with diverse EU and non-EU structures and agencies. At the very best, according to one Commission official, “the EU CTC can manage coordination within the Council.” Moreover, some Commission officials were originally suspicious of the first incumbent of the office of EU CTC – Gijs de Vries – because formally he was supposed to work for the national governments represented in the Council. As   For a complete list of reports and discussion papers, see http://www.consilium. europa.eu/showPage.aspx?id=1400&lang=en.   Interview with a Europol official, September 2009.   Interview with an anonymous EU official, October 2008.   A member from the coordinator’s office calculated that at least 15 staff would be necessary to have a more hands-on approach on the coordination process. Cited in Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 205–206.   Interview with a Commission official, October 2008.

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such, they feared that “as an ‘agent’ of the governments, de Vries will try to limit the Commission’s role in EU counterterrorism efforts” and thus they “took great pains to emphasize that the work of the Co-ordinator should be restricted to the inner workings of the Council and the overseeing of implementation.” According to Argomaniz, this emphasis on the complementary role of the coordinator to that of the Commission was a “result of the Commission’s instinct to protect their competencies in those counter-terror areas that intersect with the common market and their independence from the Council’s institutional influence.”10 Similarly, Spence has argued that the origin of the Commission’s opposition to this post resides in their perception that the Council Secretariat was proposing structures that would put the first and third pillars at the service of the second by locating policy initiative and coordination under Solana.11 The official view of the Commission’s DG JLS director was that he simply does “not believe that the co-ordinator has the resources, the mandate or the institutional position to co-ordinate operational action of the various bodies in the European Union.”12 Another, and arguably even more important, role of the EU CTC is to cajole the MS to duly and timely implement the EU-level counterterrorism agreements and initiatives. The ability of the EU CTC to do so in practice is, nevertheless, severely circumscribed by the fact that s/he cannot force the national governments to act, has no independent budget, cannot propose legislation, nor could s/he chair meetings of national justice, interior and/or foreign ministers to set the EU counterterrorism agenda. In fact, even at the press conference announcing de Vries’s tenure as the first EU CTC, the new incumbent was asked whether his mandate was sufficient: This question, again, is symptomatic of the EU’s inherent, and some would say ingrained, weakness of lacking a robust executive mandate. In the final analysis, to efficiently utilize the EU’s counterterrorism capacities, Mr. de Vries would have to be given the same powers on the Union level that interior ministers have at their disposal in the Member States.13

In the absence of such powers, according to one Council official, de Vrijs “occasionally managed to ‘shame’ laggard MS into speeding up their implementation processes. Otherwise, he mostly fulfilled a purely representational role towards the media and third countries.”14 The coordinator has indeed at times become the EU’s face in the presentation of its counterterrorism policies to the outside world. Perhaps most notably, this includes the United Nations, where he   Keohane, The EU and Counter-Terrorism, 19.   Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 197–8. 10 Ibid., 197. 11 Spence, “Introduction,” 18. 12  Cited in Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 198. 13  Zimmermann, “The European Union and Post-9/11 Counterterrorism,” 133. 14  Cited in Bossong, The EU’s Mature Counterterrorism Policy, 7.

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has appeared several times to brief the UN Counter-Terrorsim Committee that oversees the implementation of UN Security Council Resolution 1373.15 According to one interviewed EU official, although the office of the EU CTC does have links to many multilateral organizations, “probably the closest relationship exists with the UN Counterterrorism Executive Directorate, in part because we are sort of a similar business and also because for the CTED, the EU is an interesting partner because we can do more with 27 states than they can do with 192 states. We are also significant donors to the UN system so we can be of significant assistance.”16 Value-Added by the EU Counterterrorism Coordinator? The aforementioned analysis of the official mandate and actual work of the EU CTC suggests that his/her office clearly does not meet either of the two genuine value-added criteria adopted from the intelligence literature to evaluate key EU bodies involved in the fight against terrorism. Currently, the coordinator simply does not have either the mandate or the capacity to produce something that the EU MS are unwilling or unable to produce on their own. Moreover, in contrast to Europol and Eurojust (see Chapters 4 and 5), it is hard to envisage some areas where the EU CTC could have even the potential for such value-added. The fact that the EU CTC “has virtually no power, apart from that of persuasion”17 is largely due to the persisting divisions among the MS over the role of his post and office. It was commonly agreed after 3/11 that the coordinator should remedy some of the shortcomings in the coordination of EU counterterrorism policy. Beyond this basic consensus, however, there have been important disagreements among the representatives of EU MS – some have actively lobbied for a “European CIA,” whereas others pointed out that “some countries have huge institutional objections to countering terrorism.”18 According to Zimmermann, resulting from this division was a compromise: The office of the EU coordinator for counterterrorism is a political half-way house that is dangerously out of sync with the spirit of the aftermath of Madrid 2004. It also does not correspond with the cold logic of efficacious transnational counterterrorism; it may well be defeating the very purpose of the office of CT

15  Kim Eling, “The EU, Terrorism and Effective Multilateralism,” in The European Union and Terrorism, ed. David Spence (London: John Harper Publishing, 2007), 113. 16  Interview with an anonymous EU official, October 2008. 17  Keohane, The EU and Counter-Terrorism, 18. 18  Anthony Browne and Rory Watson, “EU Divided Over Proposal for New Anti-Terror Czar.” TimesOnline 17.3.2004, <www.timesonline.co.uk/article/0,125891041361,00.htm>, accessed 18.3.2004.

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coordinator. Already, the Union’s counterterrorism coordinator office has been lambasted as a lame duck.19

Although some observers noted that de Vries has successfully pushed the EU into developing some new counterterrorism policies,20 the position of the CTC has not changed much since 2004. In fact, the lack of real powers and the EU MS’ “deeply ingrained dislike of sharing information on counterterrorism activities” were cited by the press as the key explanations for de Vrijs’ decision to step down in March 2007 after three years on the job.21 Disagreements over the exact scope of the job of the EU CTC not only prompted de Vrijs to quit, they also delayed his replacement; it took six months for the EU MS to agree on the successor to the post. On the one hand, there was almost unanimous agreement among ministers that the new EU CTC should be a bureaucrat with established knowledge of the inner workings of the EU, rather than a politician. This was due to the criticism of de Vrijs’ attempts to assume an ambassadorial role that, in the view of most MS, should be reserved for national authorities. On the other hand, several EU MS had been particularly keen for the new CTC to enjoy greater powers in Justice and Home Affairs. Their calls were echoed by the EU’s High Representative for the CFSP, who suggested that de Vries’ successor should have a “deeper” mandate and enjoy “a much closer relationship” with EU governments and institutions: “Circumstances have changed since the first mandate was agreed. We have learned during this period and it is for intelligent people to adapt to the new circumstances.”22 Some MS, however, not only opposed the idea of a more politically visible CTC, they were actually in favor of terminating the post altogether.23 According to some interviewed EU officials, these differences among EU MS stem from their different historical experiences with terrorism (also see Chapter 2): I do not think there is a Member State that is actively hostile [to EU CTC], it is just there are states with a more direct need and who have a history of a more direct involvement in the issue of terrorism. Support for the office of the coordinator has been the greatest from the UK and Spain, which is very

19  Zimmermann, “The European Union and Post-9/11 Counterterrorism,” 133. 20  For example, the EU has adopted new laws to curb terrorist funding and is pushing non-EU countries to adhere to UN terrorism conventions. Keohane, The EU and CounterTerrorism, 19. 21 Honor Mahony, “EU Anti-Terror Coordinator to Step Down.” EU Observer, 17.2.2004, , accessed 18.2.2004. 22  Euroactiv.com, “Belgian Appointed New EU Counter-Terrorism CoOrdinator,” 19.9.2007, , accessed 1.11.2007. 23  Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 114, 204.

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One EU official also suggested that “those Member States that have had a direct experience with terrorism also have sharper ideas about where the EU CT coordinator can add value and where not.”25 According to a Czech counterterrorism official, however, EU MS with less experience with terrorism have not liked the fact that “the first EU coordinator often held closed discussions with a selected group of ‘friendly’ countries.”26 In the end, Gilles de Kerchove was appointed to the post on September 19, 2007, after a summer full of failed or foiled terrorist plots in Germany, Denmark and the UK, which once again revived political interest in counterterrorism. As an EU law professor, former Belgian Minister of Justice and director of DG JHA within the Council Secretariat, de Kerchove had already managed much of the EU’s counterterrorism agenda and he was also a choice who satisfied most of the aforementioned concerns of EU MS. This was confirmed in an interview with a Council official who argued that: There was shift of priorities between the two coordinators. The first coordinator was a former MEP and thus was clearly someone who was used to having a very public role at a high level. His successor is someone whose main prior experience was in the Council bureaucracy in JHA and is therefore more experienced in getting the bureaucratic machine fully engaged and this is where the current focus lies.27

Formally, according to the information available at the EU’s web-page, de Kerchove’s mandate is identical with that of his predecessor – he is supposed to “coordinate the work of the Council of the EU in the field of counterterrorism, maintain an overview of all the instruments at the Union’s disposal, closely monitor the implementation of the EU counterterrorism strategy, and ensure that the Union plays an active role in the fight against terrorism.”28 This was also confirmed in the first public interview, where de Kerchove stated that his primary role is “to coordinate the work of the various Councils in the field of counterterrorism,” and “to ensure that the Commission and the Council work together in this area.”29 In 24  Interview with an anonymous EU official, October 2008. 25 Ibid. 26  Interview with a Czech counterterrorism official, November 2008. 27  Interview with an anonymous EU official, October 2008. 28  European Union, EU Counter-Terrorism Coordinator. 18.9.2007, , accessed 1.11.2007. 29  European Union, Three Questions to the New EU Counter-Terrorism Coordinator. 18.9.2007, , accessed 1.11.2007.

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practice, according to the EU officials in Brussels, de Kerhove has concentrated on more low-key coordination within the Council and followed a more hands-on approach than his predecessor on information transfer within the Council. His background in JHA has allegedly also shifted the attention of the post towards the internal side in contrast with de Vries’ emphasis on the external dimension of counterterrorism.30 My own interviews with EU officials also revealed a wide variety of opinions regarding the role that CTC could and/or should play in the future. While a senior Europol official argued that “the coordinator should stay away from actual operational stuff” and focus “at gluing the MS together at the strategic level by streamlining ideas and thoughts,”31 according to the chair of the CounterTerrorism Team of Eurojust, the EU CTC should also try to help to resolve more practical problems at the tactical and possibly even operational level, such as the persisting differences in data protection regimes that hamper information sharing and cooperation between Europol and Eurojust (see Chapter 5). She would also like the coordinator to explore the numerous EU and non-EU structures in order to see “how do they duplicate, how do they cooperate, and how can we more integrate their efforts.”32 In addition, at the strategic level, the EU CT coordinator should also lead the way in the discussion about threat perceptions and priorities of the EU counterterrorism policy: “This is also something for the EU CT coordinator. I mean, who else is better placed to really explore the priorities? Let’s have for once an opinion to start with.”33 In the view of one Commission official, the EU CTC should focus more on coordination in matters related to the fight against financing of terrorism because, as discussed in Chapter 8, some EU MS are members of the Financial Action Tasks Force while others are not.34 Pointing out the hitherto crucial role of personal contacts when it comes to information sharing (see Chapter 4), one national official has suggested that the EU CTC should push for the creation “of networks of national counterterrorism contact points in all EU MS covering the most important aspects of the EU’s counterterrorism policy.”35 Finally, one high-level EU official argued that while it may not be crystal clear what the coordinator should do, it is quite clear what s/he should not do: I do not think you want someone more organically linked to law enforcement in Europol or to Eurojust simply because that would unbalance the coordinating focus and what the counterterrorism strategy is about – not only about pursuing 30  Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 207. 31  Interview with a Commission official, October 2008. 32 Interview with Michèle Coninsx, chair of the Counter-Terrorism Team of Eurojust, September 2009. 33 Ibid. 34  Interview with a Commission official, October 2008. 35  Interview with a Czech counterterrorism official, November 2008.

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Pointing out the minuscule size of EU CTC’s office, one Council official also suggested that the CTC could use more resources: “Coordinating across EU institutions is resource intensive in terms of time and as it is true for any bureaucratic organization, the bigger budget you have, the more people tend to listen to you. So that is what I think would make the biggest difference.”37 EU Counterterrorism Coordinator after Lisbon: An Uncertain Future? Overall, it appears that despite some calls to the contrary,38 the role and powers of the EU CTC are likely to remain rather limited. Moreover, the very future of the post is still far from certain due to the recent approval of the Lisbon Treaty. As discussed in detail in Chapter 10, the treaty calls for the creation of the post of a high representative for foreign affairs and security policy, thus merging the responsibilities of the current high representative of the secretary general for CSFP and the commissioner of external relations, which “raises interesting questions regarding the future of the Counter-terror Coordinator. The position is a creation of Solana’s cabinet, but it is questionable whether the new HR will keep Solana’s practice of special representatives.”39 Indeed, against the backdrop of increased fears of terrorist attacks after the failed attempt by Al-Qaeda to blow up a plane destined for Detroit that took off in Amsterdam on December 25, 2009, the first post-Lisbon presidency of the EU announced a plan to set up a new special EU unit aimed at sharing counterterrorism intelligence among its MS. Officially, the Spanish presidency claimed that the new body should facilitate the direct exchange of intelligence between two or several MS in close cooperation with the EU CTC and the EU Joint Situation Centre (SitCen). In practice, the question remains why a new EU body is necessary in addition to the CTC and SitCen. It seems plausible to assume that the Spanish proposal would not have emerged if the work of the existing bodies were considered to be sufficient.40 This in turn questions

36  Interview with an anonymous EU official, October 2008. 37 Ibid. 38 See, for example, Bossong, The EU’s Mature Counterterrorism Policy, 9. 39  Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 114, 211. 40  According to the Spanish press, the proposal had the support of the UK, Germany, France, Denmark, the Netherlands, Italy, Belgium and Portugal. In contrast, the Austrian daily Der Standard reported about skepticism towards the proposal. OpenEurope, Spain

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the EU CTC’s value-added not only vis-à-vis the EU MS but also the EU’s own counterterrorism efforts at the supranational level.

Claims Support from EU’s Big Three for New Counter-Terrorism Body, 5.1.2010, , accessed 31.5.2010.

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PART 3 Key EU Legal Instruments Utilized in Counterterrorism

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Chapter 7

European Arrest Warrant: Implications for EU Counterterrorism Efforts This chapter offers an analysis of the introduction and implementation the European Arrest Warrant (EAW) with a special focus on its importance for the EU counterterrorism efforts and the future developments in the former Justice and Home Affairs pillar. Regarding the former, despite the initial implementation difficulties, EAW clearly makes the EU legal process of extradition more legible, efficient and transparent than the previous myriad of extradition conventions and bilateral agreements among EU MS. Regarding the latter, the previous experience with EAW reveals that while it may have been difficult for the EU heads of state to agree to the introduction of mutual recognition in principle, the real challenge is to put the mutual recognition system into work in practice. Moreover, since EAW represents the first major application of the principle of mutual recognition in Justice and Home Affairs, the lessons from its implementation offer important insights for the ongoing search for the most appropriate mode of governance in this area. The structure of the chapter is as follows. It begins with succinct overviews of the origins of EAW and its key features, respectively, followed by an analysis of the implementation delays and complications at the national level. The next section offers an assessment of the value-added of the EAW to the EU’s counterterrorism efforts. The principled objections to the EAW are summarized in section five. The implications of the adoption of EAW for the ongoing debates concerning the most appropriate mode of governance in Justice and Home Affairs are summarized in section six. The chapter concludes with a discussion of lessons learned from the introduction of EAW for both the EU’s current counterterrorism efforts in particular and future developments in Justice and Home Affairs in general. The Origins of the European Arrest Warrant As discussed in Chapter 3, the then EC MS began to develop what could be termed as an EC counterterrorism policy in the late 1960s and early 1970s at two levels: the legal and the operational. At the legal level, they immediately encountered   An earlier version of this chapter was published as “European Arrest Warrant: Implications for EU Counterterrorism Efforts,” Central European Journal of International and Security Studies 3, no. 1 (Spring 2009): 21–43.

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significant complications due to the fact that they all traditionally upheld the view that terrorism is predominantly a political crime and therefore extradition should not be guaranteed. The most sensitive issue was the extradition of nationals because “many Member States’ constitutions in fact contained a definite prohibition of extradition of their own nationals, a feature also contained in the legal traditions of common law countries.” These issues were also reflected in the 1957 Council of Europe Convention on Extradition, which for the first time replaced several hundred bilateral treaties among the MS of the Council of Europe, but which still contained the right to refuse extradition in case of a political offense. Exceptions were also made for a range of other sensitive offences, including military and fiscal, and extradition could also be refused if there were a pending proceeding for the same offences for reasons of so-called double jeopardy (ne bis idem). The first step towards abandoning this principle in regard to terrorist crimes came in 1977 with the adoption of the Council of Europe’s European Convention on the Suppression of Terrorism (ECST), which, at least on the face of it, required ratifying states to apply the principle of aut dedere aut judicare (extradite the suspect or bring the suspect before your own judicial authorities) in the case of a terrorist offense. A closer examination of ECST, however, reveals that it is full of loopholes that have “bedeviled all efforts to strengthen European-wide cooperation against terrorism.” To overcome these weaknesses, the EC MS adopted a strategy designed to ensure that the existing international anti-terrorist legal provisions would be fully applied within the EC. Moreover, since the respective national criminal codes and definitions of terrorism diverged so greatly, “the aim was to inject a degree of predictability into the EC’s public position vis-à-vis terrorism.” To this end, in 1979, the EC MS negotiated the so-called Dublin Agreement that ensured the ECST would be applied uniformly within the EC. The implementation of both the Dublin Agreement and ECST was, however, beset by difficulties as a number of EC MS refused to ratify these agreements, primarily due to concerns over potential loss of autonomy to deal with terrorism either on their own or on bilateral basis. As Doron Zimmerman noted: European countries in general were deeply suspicious of allowing any external organization to interfere in their politically sensitive internal security, as opposed to criminal justice, affairs. This is irrefutably borne out by the necessity of the

  Paul Wilkinson, International Terrorism: The Changing Threat and the EU Response, Chaillot Paper No. 84 (European Security Studies Institute, October 2005), 29.  Nilsson, “Judicial Cooperation in Europe Against Terrorism,” 73.   Wilkinson, International Terrorism, 30.  Lodge, “Terrorism and the European Community,” 30.   Cardona, “The European Response to Terrorism,” 251.   Zagari, “Combating Terrorism,” 292.

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Dublin Agreement: terrorists were one’s own affair; only “apolitical” criminals could be extradited.

Consequently, it was not until the mid-1980s when the idea of a European judicial area was seriously entertained under the banner of the completion of single European market. Finally, as discussed in Chapter 3, the Maastricht Treaty on European Union specifically referred to terrorism as a serious form of crime to be combated by developing common actions, including, where necessary, approximation of rules on criminal matters. In addition, two important legal instruments were adopted in the 1990s: the Convention on Simplified Extradition Procedure between the MS of the EU (1995) and the Convention Relating to Extradition between MS of the EU (1996). The main purpose of both conventions was to supplement and improve the application of both the 1957 European Convention on Extradition and the 1977 European Convention on the Suppression of Terrorism by imposing a lower threshold for extraditable offenses, and by specifying those offenses for which extradition may not be refused.10 The 1996 convention, for example, obliged MS to abandon the right to use political exemption as grounds for refusing extradition. As such, the two conventions represented yet another attempt to ensure uniform application of existing key anti-terrorist provisions within the EU. They were followed by two more ambitious EU legal initiatives at the turn of the new century: the EU Convention on Mutual Assistance in Criminal Matters (2000) and the EU Mutual Legal Assistance Convention (2000). The former permits the transfer of telecommunication intercepts, and enables witnesses to give their testimony by means of video link. The latter obliges EU MS to provide information on banking transactions, bank accounts and the monitoring of banking transactions. Overall, however, the EU made only slow progress in constructing a true area of “freedom, security and justice” in the second half of the 1990s. In response, the first-ever European Heads of Government summit dedicated just to JHA issues was convened in Tampere in 1999 in order to give the EU a clear policy direction to what had been hitherto an incoherent approach. Apart from producing the fiveyear Tampere Programme (see Chapter 3), the idea of a European Arrest Warrant was also discussed and the leaders of all EU MS expressed their desire to improve judicial cooperation in the EU by abolishing the formal extradition procedures for persons “who are fleeing from justice after having been finally sentenced.”11 Prior to the 9/11 terrorist attacks, however, the idea of an EAW proved to be highly controversial in a number of EU MS, rendering impossible the necessary   Zimmermann, “The European Union and Post-9/11 Counterterrorism,” 126.  Lodge, “Terrorism and the European Community,” 32. 10 Den Boer and Monar, “Keynote Article,” 21. 11  European Commission, “Extradition & Surrender Procedures Across the EU – European Commission,” European Commission, 2004, , accessed 25.11.2006.

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unanimous agreement on a Framework decision. As Monica den Boer observed, “[t]he ‘Euro-warrant’ had already been on the shelves but the coordinated fight against terrorism provided a window of opportunity for political decision-making on this instrument.”12 Thus, it may be argued that it was only because of the momentum generated by 9/11 – which forced the European leaders to finally recognize that the EU’s open borders and different legal systems allowed terrorists and other criminals to move around easily and evade arrest and prosecution – that the Council was able to reach a political agreement in December 2001 on the Framework Decision on the European Arrest Warrant.13 The binding Council Framework Decision was duly approved in June 2002,14 and in January 2004, the EAW began to replace the formal extradition procedures among the MS. Key Features of the European Arrest Warrant The EAW is based on the principle of mutual recognition of judicial decisions among the EU MS and de facto represents the first major application of this originally first pillar governance mode in the EU’s former third pillar. Faced with a rise in threats such as cross-border crime and terrorism, yet unable to agree on harmonization of appropriate national legal countermeasures, the EU MS decided to make mutual recognition the cornerstone of judicial cooperation. In essence, mutual recognition allows for the application of one Member State’s law on the territory on another Member State. As it is stated in Article 1 of the Framework Decision: 1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence of detention order. 2. Member states shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision. In practice, EAW was expected to enhance the free movement of criminal investigations, prosecutions and sentences across EU borders by replacing the 12 Den Boer, “The EU Counterterrorism Wave,” 188. 13  Council of the European Union. Proposal for a Framework Decision on the European Arrest Warrant and the Surrender Procedures Between the Member States, Outcome of Proceedings of the Council, EN 14867/1/01 REV1 (2001). 14  Council of the European Union. Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States – Statements Made by Certain Member States on the Adoption of the Framework Decision, 2002/584/JHA, OJ L 190.

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existing instruments on extradition between the MS. Specifically, extradition requests via EAW can be issued for two purposes: 1) for conducting a criminal prosecution; and 2) for executing a criminal sentence. For the purpose of a prosecution, an EAW can only be issued if the offense on which it is based is punishable in the issuing state with at least one year imprisonment. An EAW for the purpose of executing a criminal sentence can only be issued if the offense will lead to a minimum sentence of four months’ imprisonment. Importantly, there are strict time limits for the execution of the EAW, which should lead to a significant speeding up of the entire extradition process. The state in which the person is arrested must return him/her to the state issuing the warrant within 90 days of the arrest. Moreover, if the detained person gives his/her consent to the surrender, the extradition shall occur within 10 days. If the maximum 90-day deadline is not met, a report must be filed with Eurojust and the latter is to further examine the case. This acceleration is achieved by requiring only one judicial decision for both arrest and surrender. As a result of this innovation, which excludes any political involvement of the ministers of justice and/or foreign affairs, it is possible to argue that the entire EAW procedure is completely “judicialized.” In addition, the EAW considerably simplifies the entire extradition procedure for 32 serious criminal offenses by abolishing the traditional principle of dual criminal liability, which means that the crime for which the convicted person is requested no longer needs to be recognized in both the requesting and the requested states.15 These offenses, not all of which are harmonized at EU level, include participation in a criminal organization; terrorism; trafficking in arms, ammunition and explosives; corruption, fraud, money laundering and counterfeiting of money. The EAW also abolishes the classification of political offense and nationality as legitimate criteria for refusal for extradition, thus further ensuring a smooth extradition process. In practice, this also means that EU MS can no longer refuse to surrender to another Member State one of their own citizens who is suspected of having committed a serious crime, on the ground that they are nationals. As implied by the principle of mutual recognition, the merits of the EAW are taken on the basis of mutual trust, which is supposed to lead to a quasi-automatic recognition of extradition requests within the entire territory of the EU.16

15  For a legal analysis of EAW, see Jan Wouters and Frederick Naert, “Of Arrest Warrants, Terrorist Offences and Extradition Deals: An Appraisal of the EU’s Main Criminal Law Measures Against Terrorism After ‘11 September,’” Common Market Law Review 41, no. 1 (August 2004): 909–35. 16  Julia Sievers, Managing Diversity: The European Arrest Warrant and the Potential of Mutual Recognition as a Mode of Governance in EU Justice and Home Affairs, Paper Presented at the EUSA 10th Biennial International Conference, Montréal, Canada, May 17–19. 2007. , 11. Accessed 20.5.2008.

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Implementation Delays and National Transposition Complications While it is too early to provide an authoritative assessment of the practical impact of the EAW on the judicial cooperation of EU MS, some preliminary observations can already be made. To begin with, there has been a significant delay in implementing the EAW in a number of MS. Even though the Framework Decision set January 1, 2004 as the final deadline for implementation, only eight MS (Belgium, Denmark, Ireland, Finland, Spain, Sweden, Portugal and the UK) incorporated all of the required provisions of the EAW in their national legislation by this date.17 France, Luxemburg, Austria and the Netherlands passed their implementing legislation by May 21, 2004, but Greece, Italy and Germany still had not and the Framework decision contains no provisions on how to deal with such delay.18 Consequently, the EAW has been fully operational in most of the cases planned only since April 2005, when Italy became the last EU Member State to transpose the EAW into national law. There are several explanations for these considerable implementation delays. In some MS, the enactment of the necessary constitutional provision took longer than expected. In July 2005, for example, the German Constitutional Court rescinded the German law transposing the EAW on the grounds that it did not sufficiently consider the fundamental rights of German citizens. Although the actual EAW Framework decision as such was not contested by the court’s ruling19 and the German government had subsequently duly changed the transposing law to comply with the German constitution, at least one person wanted by the Spanish government via an EAW had to be released in Germany in the interim period between the court’s ruling and the new transposition law adoption in July 2006. In response, the Spanish National Court issued a ruling that Spain would not apply the fastened EAW procedures for extradition request from Germany, because under Spanish Constitutional law extradition is permitted only on the basis of reciprocity. This de facto put the traditional lengthy extradition process back in place,20 confirming that mutual recognition and reciprocity have to go hand in hand. The EAW was also considered by the Polish Supreme Court (in April 2005), by the Belgian Cour d’Arbitrage (in July 2005)21 and by the Constitutional Court in Cyprus (in November 2005).22 In other countries, the EAW implementation delays were at least partly due to the objections of conservative opposition parties 17  European Commission, “Extradition & Surrender Procedures Across the EU.” 18  Wouters and Naert, “Of Arrest Warrants, Terrorist Offences and Extradition Deals,” 917. 19  Bendiek, EU Strategy on Counter-Terrorism, 22. 20  Knelangen, “Die Innen- un Justizpolitische Zusammenarbeit der EU,” 152. 21 Detailed information on the Polish case is available at: http://www.statewatch.org/ news/2005/apr/poland.pdf. More details on the Belgian case are available at http://www. libertysecurity.org/article370.html. 22  Poland and Cyprus eventually had to change their national constitutions.

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that feared that “their fellow citizens will be exposed to the whims other judicial systems that they consider less than trustworthy.”23 Some European legal scholars have also argued that the introduction of EAW was a “step too far too soon,”24 warning that a number of practical problems are already beginning to emerge, in particular in relation to the protection of individual rights and legal certainty in the European judicial space (see Chapter 9). Value-Added Due to the Introduction of the European Arrest Warrant? The aforementioned critiques and implementation difficulties notwithstanding, EAW clearly makes the legal process of extradition and surrender among EU MS more legible and transparent than the previous myriad of extradition conventions and bilateral agreements. According to an initial assessment by the European Commission, EAW’s impact thus far has been positive in terms of depoliticization, efficiency and speed in the procedure for surrendering people who are sought: The effectiveness of the EAW can be gauged provisionally from the 2,603 warrants issued, the 653 persons arrested and the 104 persons surrendered up to September 2004. … Since the Framework Decision came into operation, the average time taken to execute a warrant is provisionally estimated to have fallen from more than nine months to 43 days. This does not include these frequent cases where the person consents to surrender, for which the average time taken is 13 days.25

The Commission did not provide a breakdown of the data for specific criminal offenses but in the arguably most high-profile terrorist application of EAW – the extradition of Hussain Osman from Italy to the UK following the terrorist attacks in London in July 2005 – the whole process took 60 days.26 More detailed statistics have been subsequently presented in an annual report by the General Secretariat of the Council.27 The data in these reports is based on a compilation of replies from MS to a standardized questionnaire on quantitative information on the practical 23  Archick, “Europe and Counterterrorism,” 7, 12. 24 Susie Alegre and Marisa Leaf, “Mutual Recognition in European Judicial Cooperation: A Step Too Far Too Soon? Case Study – the European Arrest Warrant,” European Law Journal 10, no. 2 (March 2004): 200–17. 25  European Commission, How Has the EAW Been Implemented by Member States? , accessed 6.4.2006. 26 Home Affairs Committee UK House of Commons, “Justice and Home Affairs Issues at European Union Level,” para. 162. 27  Council of the European Union, Replies to Questionnaire on Quantitative Information on the Practical Operation of the European Arrest Warrant – Year 2006, 11371/3/07 Rev 3.

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operation of the EAW. Unfortunately, for several reasons, the final product has not always been ideal. Some MS do not collect data in all fields covered in the questionnaire and in other areas the data provided suggest that different MS have interpreted the questions in different ways. There are also some obvious discrepancies in the figures,28 which the Council Secretariat is unable to explain because it merely collects the data. Overall, however, it is clear that EAW is being increasingly utilized by EU MS. The Commission, nevertheless, warned that this overall success should not make one lose sight of the effort that is still required by some MS to comply fully with the EAW Framework Decision. The main problem was that as a third pillar instrument, the EAW Framework Decision only provided the main guidelines of how mutual recognition should work in practice, but it had no direct effect in EU MS. Consequently, it had to be implemented by national parliamentarians, who had some leeway in interpreting the Framework Decision’s provisions. Available Commission reports indicate that the fact that EAW has not led to a quasiautomatic recognition of extradition requests within the entire territory of the EU as originally expected is indeed at least partly explicable by the fact that some national parliaments have added new procedures which hamper cooperation. Some MS, for example, considered that, with regard to their nationals, they should reintroduce a systematic check on dual criminality or convert their sentences. Noticeable in some MS is also the introduction of supplementary grounds for refusal, which are contrary to the Framework Decision, such as political and national security reasons. In particular, some MS have implemented the Framework Decision in a way which gives priority to their national constitutions or which appears to favor their own nationals (see Table 7.1). Moreover, there are cases in certain MS where the decision-making powers conferred on executive bodies are not in line with the Framework Decision. Lastly, by ruling out the EAW’s application to acts that occurred before a given date, a few MS did not comply with the Framework Decision. The extradition requests which they continue to present therefore risk being rejected by the other MS.29 Little information is available about the actual practice of day-to-day judicial cooperation, which is surprising given that according to the EAW’s conception of mutual recognition, it is the judge of the national judicial authority who is in charge and who has a duty to accept foreign decisions as equivalent. In other words, since politicians are no longer allowed to interfere and EU extradition cooperation is now a purely judicial procedure that ought to be characterized by direct contact from judge to judge, national judges become actors in their own right in the international system. As a result, mutual recognition should create “a 28  The 2006 figures for France, for example, suggest that a total of 1,552 EAWs were issued but then the report explains that 918 EAWs were transmitted via Interpol and 1,300 via the Schengen Information System. Ibid. 29  European Commission, How Has the EAW Been Implemented by Member States?.

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legal system of horizontal cooperation which operates with more or less precise and binding rules.”30 In practice, however, the cooperation between judges has not always been smooth. According to one recent study, for example, the German judges in charge of running the mutual recognition system pointed to problems caused by heterogeneity of judicial systems and cultural differences: [W]ith an ironical undertone, some stereotypes were expressed: The Spanish legal system still suffers from the Franco dictatorship, the Italian system is slow and corrupt, detention conditions in Latvian prisons are unbearable, and the British adversarial system is of lower quality compared to the continental system … [C]ooperation with Eastern Europe was still a problem. Cases were reported in which the Polish authorities issued an EAW based on minor offences which according to German law would not qualify for an EAW.31

Table 7.1 Additional Safeguards in the German Europäisches Haftbefehlsgesetz (2006) Procedure in EuHbG 2006

2004 EAW Framework Decision

Three-step procedure including a judicial and administrative authority

Pure judicial procedure, no administrative authority involved

Grounds for refusal in EuHbG 2006

2004 EAW Framework Decision

If a German national is involved and the offense committed has mainly taken on German territory

No such limitation envisaged

No written confirmation presented that a German national will be returned to serve the sentence in Germany

Guarantees do not require a written confirmation

Non-reciprocity: If another state cannot be expected to surrender in a similar situation

Contains no such regulation

Source: Julia Sievers, Managing Diversity: The European Arrest Warrant and the Potential of Mutual Recognition as a Mode of Governance in EU Justice and Home Affairs, Paper Presented at the EUSA Tenth Biennial International Conference, Montréal, Canada, May 17–19. 2007. , 14. Accessed 20.5.2008.

30 Sievers, Managing Diversity, 7. 31 Ibid., 22–23.

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The fact that heterogeneity is regarded as a major problem by German judges was also highlighted in an article of a German criminal law journal in 2006, where several judges expressed their fears about the misuse of EAWs and concern of mutual recognition against the background of heterogeneity of criminal law across 27 EU MS.32 In this light, it is not surprising that the judiciaries in many EU MS initially wondered about value-added of the EAW when it is possible to extradite suspects through pre-existing bilateral treaties and contacts.33 The aforementioned study also covered the opinions of British practitioners dealing with the EAW requests on a daily basis. They complained that Germany and Austria allow issuing an EAW if the police had “a strong suspicion” that a person committed a crime, meaning that an EAW would be issued in the investigation stage of the process and lead to interviewing a suspected person instead of prosecuting an accused. There was also more general criticism towards some MS on their interpretation of the offenses falling under the list of 32 categories. The country which was mentioned to be the best cooperation partner by the Brits was Ireland, primarily due to the shared common-law tradition and the fact that the UK and Ireland could build on a longstanding extradition tradition on special conditions, based on the Backing of Warrants Act of 1965.34 This resonates with the observations made by the German judges, who claimed that due to a shared legal tradition and the same language, judicial cooperation was most successful with Austria and Switzerland, even though Switzerland was not part of the EU mutual recognition system.35 Thus, it appears that the more similar the national legal systems are, the more likely it is that judicial cooperation proves successful. This, in turn, suggests that in order to succeed in practice, mutual recognition requires at least some level of harmonization of substantive criminal law and justice procedures across all EU MS (see below). Principled Objections to European Arrest Warrant The EAW has also been criticized on grounds of its key underlying principles. The first set of critiques concerns the fact that EAW abolishes the requirement for dual criminality in the formal extradition processes across the EU. Dual criminality, however, derives from the principle of nullum crimen sine lege (no crime without law), which is constitutionally enshrined in a number of EU MS and which also found expression in the 1957 European Convention on Extradition. A number of commentators have therefore argued that it is constitutionally unacceptable to execute an enforcement decision relating to an act which is not a crime under the 32  Hackner et al., “Das 2. Europäische Haftbefehlsgesetz,” Neue Strafrechts Zeitung (NStZ) 12 (2006): 663–69. 33 Den Boer, “Fusing the Fragments,” 92. 34 Sievers, Managing Diversity, 25. 35 Ibid., 23.

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law of the executing state. For example, as noted in a UK House of Commons report, under the EAW a UK citizen can be extradited for an act committed in the territory of another EU state, which is illegal under the law of the other state, but not under UK law: “For example, if a UK citizen dressed in Nazi uniform in Germany they could subsequently be surrendered back to Germany from the UK since the act is a criminal offence in Germany and is covered by the racism and xenophobia dual criminality exemption of the EAW.”36 The report also pointed to a grey area in cases where it is not legally evident on whose territory the act was committed, such as Internet publications. It gives the example of a UK national publishing material on the Internet which denies that the Holocaust took place, an offense under Austrian law, where it may be unclear in whose territory the act has occurred. Here, the rules of the EAW are not clear-cut, although it should be noted that the scale of such cases is pretty small and there is no evidence that such cases have actually occurred thus far.37 The second set of objections to EAW concern the very principle of mutual recognition. According to Jan Wouters and Frederick Naert, the fact that MS automatically recognize each other’s judicial decisions ordering the arrest of a person reflects a genuine paradigmatic shift in legal cooperation in the EU: Traditionally, such cooperation is based on the rule that one State does not execute or enforce decisions of another State, unless otherwise agreed, e.g. in extradition treaties. As the UK Home Secretary expressed it, this dates from ‘an age when suspicion and distrust characterized relationships between European nations and the courts saw their role as to protect those fleeing from despotic regimes.’ In contrast, [the EAW’s principle] is fundamentally based on a ‘high level of confidence between Member States.’38

The problem is that available analysis of the implementation thus far of the EAW Framework Decision, as well as the daily practice of judicial cooperation, offer many examples of the prevalence of mutual distrust among EU MS. To a certain extent, as noted above, this distrust is caused by the view that national standards of penal and procedural law in individual EU MS differ too much to be mutually recognized. But apart from the lack of harmonization of criminal legislation across the EU, further problems in some of the EAW cases can also arise due the fact that at least six of the 32 serious offenses (terrorism, computer-related crime, racism and xenophobia, sabotage, racketeering and extortion or swindling),

36 Home Affairs Committee UK House of Commons, “Justice and Home Affairs Issues at European Union Level,” paras 171–2. 37 Ibid., para. 174. 38  Wouters and Naert, “Of Arrest Warrants, Terrorist Offences and Extradition Deals,” 919.

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for which EAW abolished the principle of dual criminality, are poorly defined.39 Moreover, the interoperability of the lists of crimes to which the EAW applies “is questionable because suspects may be extradited to member states with very strict anti-terrorism laws, like Spain.”40 The literature on mutual recognition also suggests that mutual trust is just one of at least four important prerequisites that need to be met in order for EAW to work well in practice. According to Julia Sievers, the other three important prerequisites are equivalence, compatibility and institutional support structures: 1. Equivalence: The MS not only have to trust each other, in addition they need to accept each others’ legal systems as equally legitimate. Legislators and national judges need to acknowledge that a common goal such as efficient criminal prosecution and fundamental rights protection may be attained in an equal measure by the different policies of the foreign state. 2. Compatibility: The legal system of one MS needs to be compatible with the formal rules and procedures of other MS. This might cause problems between very different systems, e.g., between common law (the UK and Ireland) and civil law countries (continental EU MS). 3. Institutional support structure: Given the heterogeneity national authorities face, there need to be institutions that address problems which arise if the three preconditions are not yet fully met. These institutions foster the necessary trust; collect and provide information on foreign legal systems; help solve conflicts of jurisdiction; and deal with problems arising from incompatibilities between justice systems.41 Concerning equivalence and compatibility, in a comparative case study of the implementation and operation of the EAW in Germany and the UK, Sievers found that these prerequisites of mutual recognition have not been met fully thus far: [D]espite the general support the new European extradition system gains, concerns among national parliamentarians and judges prevail. These concerns are caused by the heterogeneity of the European criminal justice systems parliamentarians and judges face. As a result, parliamentarians demand additional safeguards to ensure a high fundamental rights protection, and national judges act as gate-keepers of the national legal system and use their leeway to reject a European Arrest Warrant which diverges too much from well-known national standards.42

39 Home Affairs Committee UK House of Commons, “Justice and Home Affairs Issues at European Union Level,” para. 170. 40 Den Boer, “Fusing the Fragments,” 92. 41 Sievers, Managing Diversity, 8–9. 42 Ibid., 10.

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She also noted that the European Judicial Network and Eurojust can be regarded as institutional support structures enhancing EU judicial cooperation, but neither has been used extensively in this role thus far. Finally, some believe that the scope of EAW far exceeds the fight against terrorism and therefore they see it as threat to national sovereignty. Jonathan Stevenson, for example, suggested that the EAW, “although proposed on the pretext of counterterrorism, appears to be part of a larger agenda, one that aims ... to expand the EU’s supranational legal jurisdiction,” and warned that this could lead to significant backlash from MS that “are becoming more worried about hemorrhaging national authority.”43 In contrast, while admitting that the new model “implies the transfer of another element of intergovernmental cooperation to the supranational level,” Filip Jasinski argued that the EAW “would not be a breach of national sovereignty in respect of extradition decisions, since surrender of a suspect within the Union would not be regarded as classic extradition.”44 In this context, it has also been submitted that the adoption of EAW represents the demise of conventions in JHA. Others, however, see this rather as a “welcome development, bringing Third Pillar law-making closer to that in the First Pillar and making it more effective.”45 Finally, it should also be noted that the optimists are convinced that by reinforcing the internal EU procedures to act coherently and cooperatively, the EAW will significantly increase the credibility of the EU as a major player in the global fight against international terrorism and improve EU abilities to investigate and prosecute other transnational crimes.46 The problem is, as Paul Wilkinson noted, that while the value of EAW in the fight against international terrorism “is in theory all too clear,” in practice it “has been somewhat undermined by the reluctance and unwillingness of some key member states to ratify it and by the continuing desire of certain member states to maintain total national political control on these matters.”47 European Arrest Warrant and the Modes of Governance Debate As noted above, EAW represents the first major practical application of mutual recognition in the former third pillar which was expressly endorsed as the cornerstone of cooperation in criminal matters at the European Council in Tampere in 1999. This was restated in the Hague Programme and the Lisbon Treaty enshrines the principle of mutual recognition in the Treaties for the first time in 43 Stevenson, “How Europe and America Defend Themselves,” 83. 44  Filip Jasinski, “The European Union and Terrorism,” The Polish Quarterly of International Affairs 11, no. 2 (2002): 44. 45  Wouters and Naert, “Of Arrest Warrants, Terrorist Offences and Extradition Deals,” 915. 46  Archick, “Europe and Counterterrorism,” 2. 47  Wilkinson, International Terrorism, 31.

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the area of judicial cooperation in criminal matters.48 Recently, however, a number of European policy-makers have expressed the opinion that mutual recognition is reaching its limits as a fundamental underlying principle of cooperation. Instead, some would like to see more harmonization between the law and policy of EU MS, while others would advocate practical cooperation measures alone. In essence, these views reflect a key dilemma of EU’s counterterrorism policy: the need to cooperate more closely to fight terrorism and the reluctance to agree on, and/or duly implement, centralized solutions at the EU level. This dilemma, in turn, represents one important strand in the ongoing debate concerning the most appropriate mode of governance in Justice and Home Affairs in general and in the fight against terrorism in particular. It therefore seems useful to analyze the available forms of governance49 which may provide solutions to this dilemma. The problem is, however, that while there is a solid body of literature addressing the potential of alternatives to centralized decision-making, emphasizing multilevel governance50 and governance via EU policy networks,51 until recently, mutual recognition as a mode of governance has not been the center of attention.52 Moreover, most existing studies focus on the potential of mutual recognition in the former first pillar53 and there are only a few studies investigating its application in

48  European Union Committee UK House of Lords, “The Treaty of Lisbon,” para. 6.146. 49  Following Sievers and Monar, I use the concept of governance as a form of social coordination. Julia Sievers, Managing Diversity; Jörg Monar, “Specific Actors, Typology and Development Trends of Modes of Governance in the EU Justice and Home Affairs Domain,” New Modes of Governance Project. 31.5.2006, , accessed 30.5.2008. 50  See Liesbet Hooge and Garry Marks, “European Integration from the 1980’s: State-, Centric- v. Multilevel Governance,” Journal of Common Market Studies 34, no. 3 (1996): 341–78; Liesbet Hooge and Garry Marks, Multi-Level Governance and European Integration (Boulder, CO: Rowman & Littlefield Publishers, 2001). 51  Kohler-Koch, B. et al. Interaktive Politik in Europa. Regionen Im Netzwerk der Integration. (Opladen: Leske & Budrich., 1998); John Peterson, “Policy Networks,” ed. Antje Wiener and Thomas Diez, European Integration Theory (Oxford, UK: Oxford University Press, 2004). 52  The 2007 special issue of the Journal of European Public Policy (vol. 14, no. 5) was entirely devoted to the topic of Mutual Recognition as a New Mode of Governance. 53  Kalypso Nicolaidis, “Trusting the Poles? Constructing Europe Through Mutual Recognition,” Journal of European Public Policy, 14, no. 5 (August 2007): 682–98; Fritz W. Scharpf, Governing Europe: Effective and Democratic? (Oxford: Oxford University Press, 1999); F. Schioppa, Principles of Mutual Recognition in the European Integration Process. (Houndmills: Palgrave Macmillan, 2005). Susanne K. Schmidt, “Mutual Recognition as a New Mode of Governance,” Journal of European Public Policy, 14, no. 5 (August 2007): 667–81.

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Justice and Home Affairs.54 The following paragraphs provide a succinct overview of the key points of these studies. From the governance perspective, mutual recognition is a choice for a specific institutional setup among a set of alternatives. In the context of EU integration, at least two additional modes of governance can be identified: the territoriality principle (also called national treatment or host country rule) and harmonization. As Sievers noted, the difference between these strategies is the definition of the rule which is to apply in cooperation between EU MS: •

•

•

The territoriality principle states that in the cooperation between the EU MS the rule of the host country applies. This mode of governance is based on the rule of national sovereignty: States do not interfere in each others’ affairs and territory determines jurisdiction. It is the classical form of intergovernmental cooperation on which most of the EU’s third pillar was built until the late 1990s. Harmonization of national law implies the agreement of all EU MS on common EU-wide rules. These are then enforced by the Commission, which is in charge of monitoring the correct implementation and application and is enabled to start infringements proceedings at the European Court of Justice in cases of severe violation of the rules. This mode of governance was the dominant integration strategy of the EU/EC’s internal market until the 1980s. Mutual recognition requires an agreement among all EU MS to recognize and enforce foreign law. This can take different forms. In the former first pillar, EU-foreign national law was recognized in form of the recognition of products produced according to EU-foreign national standards. In the former third pillar, decisions of foreign judicial authorities in the form of European Arrest Warrants were to be recognized and enforced in the host state. As a result, the laws of one EU Member State take effect on the territory of another EU country; territory and national jurisdiction are no longer identical.55

All three modes of governance have their strengths and shortcomings, which makes them more or less suitable in specific areas of European integration. Due to the strong national sovereignty concerns, the territoriality principle of international cooperation principle intentionally leaves a wide margin for political discretion to the MS. As such, it is considered not very helpful when aimed at creating a common market, a common judicial sphere or a common counterterrorism policy: 54 Sandra Lavenex, “Mutual Recognition and the Monopoly of Force: Limits of the Single Market Analogy,” Journal of European Public Policy, 14, no. 5 (August 2007): 762–79; Sievers, Managing Diversity. 55 Sievers, Managing Diversity, 4–5.

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EU Counterterrorism Policy [T]errorism in the EU is essentially a transnational phenomenon. National legal provisions to counter terrorism can be examined to study their effectiveness or otherwise in countering the current threat. However, just as the post-Westphalian model of the nation-state no longer serves us in the economic arena, the cracks between the laws of different jurisdictions in countering terrorism that provide opportunities for terrorists to exploit should, to the extent that is humanly possible, be avoided.56

Nevertheless, it is apparent even from this volume that there are plenty of examples of EU MS’ preference for the territoriality principle mode of cooperation in the former third pillar. Perhaps the clearest one with implications for the EU’s counterterrorism efforts was the creation of Eurojust as a response to the much more ambitious project of the European chief public prosecutor proposed by the Commission (see Chapter 5): By establishing an exclusively intergovernmental judicial cooperation unit, the MS have – because of specific domestic political contexts – intended to maintain their decision-making and orientation prerogatives without weakening the Europeanization of the judiciary. Following this logic, collaboration is presented by the governments as the most efficient solution.57

At least some studies, however, indicate that this may not always be the case, especially when it comes to relations between institutions which are structured according to different modes of governance. According to Megie, for example, the inter-institutional conflicts between the OLAF, Eurojust and Europol can be interpreted in such a way: There is a competition of the respective field of competence of the different cooperation mechanisms. In some cases, a mechanism can prevail over another as was the case of Eurojust vis-à-vis the European Judicial Network. … The official wish of Eurojust to assert itself in the field of antiterrorism, as well as in the field of information files, risks leading to a duplication of the work of the Europol unit.58

Officially, this kind of interagency competition should have been addressed through inter-institutional agreements and memorandums of cooperation (see Chapter 5). Interviews with officials from these EU agencies have nevertheless revealed that these are often “devoid of any meaning” and practical cooperation is only achieved when there are informal and personal relations between members of the respective 56 Maria O’Neill, “A Critical Analysis of the EU Legal Provisions on Terrorism,” Terrorism and Political Violence 20, no. 1 (January–March 2008): 26. 57  Bigo et al., “Mapping the Field of the EU Internal Security Agencies,” 73. 58 Megie, “Mapping the Actors of European Judicial Cooperation,” 85.

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agencies.59 This may be expedient for solving immediate conflicts and problems but it is not necessarily the best avenue for cooperation in the medium- to long run. Harmonization (sometimes also called approximation), in contrast, significantly infringes on national sovereignty and that is perhaps the key reason why it has not traditionally been the favorite governance mode in EU Justice and Home Affairs, a policy area which belongs to the core functions of statehood and as such has traditionally been characterized by strong sovereignty concerns. Nevertheless, according to Mitsilegas, the late 2000s witnessed the adoption of a series of new criminal law measures that involved the harmonization of substantive criminal law in EU MS: These instruments can be seen as the third wave of third-pillar law. They come after the first wave, namely measures such as Conventions and Joint Actions adopted under the Maastricht third pillar, and the second wave, consisting of a wide range of measures (primarily Framework Decisions) adopted in the early years of this decade following the momentum of the revamped Amsterdam third pillar and the subsequent Tampere European Council conclusions in the field.60

In other words, we can see a gradual progression from the principle of territoriality (first wave), through the principle of mutual recognition (second wave), to the principle of harmonization (third wave). The third wave of third-pillar law extends to most forms of European integration in criminal matters, “including the work of EU criminal justice bodies such as Europol and Eurojust, and the development of standards to regulate the proliferation of third pillar mechanisms to collect, analyse and exchange personal data.”61 Mitsilegas has identified a number of explanations for the recent emergence of the third wave of harmonization measures. The first reason has to do with efforts to amend and expand existing Framework Decisions taking into account subsequent international developments in the field. This includes the adoption of external counterterrorism standards drafted by bodies such as the UN, FATF and Council of Europe, although as discussed in Chapter 8, not all may be really suitable to the particular circumstances in EU MS. The second reason relates to a similar amendment process, but this time linked also with efforts to constitutionally refresh the form of another legal instrument used for third-pillar harmonization, namely to replace the vague Maastricht Joint Actions by the expressly legally binding Amsterdam Framework Decisions (see Chapter 3). The third reason for new legislation also relates to EU constitutional developments and consists of the need to address ECJ case law and harmonize criminal law under the first pillar. Apart from the complexity in negotiations and the difficulty in reaching agreement 59  Interview with an OLAF official, cited in ibid., 84. 60 Mitsilegas, “The Third Wave of Third Pillar Law?” 523. 61 Ibid.

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under unanimity in the Council, this also explains why most of these instruments witnessed a rather long period between their original proposal and their eventual adoption: The decision to proceed with the adoption of a series of third pillar instruments signifies a degree of realism (if not resignation) with regard to the possibility of a swift entry into force of the Lisbon Treaty, especially after the Irish “No.” The result has been an attempt to further European integration in criminal matters by yet more third-pillar law.62

The slow pace of harmonization attempts has, however, also reflected the persistent tensions between MS that prefer the territorial governance mode in Justice and Home Affairs, and MS and EU institutions that are more pro-integrationist. The first level of tension “concerns the constitutional fight between a number MS on the one hand and EU institutions on the other with regard to the extent to which competence in criminal matters has been transferred from the third to the first pillar.” The second level of tension concerns “the quest for meaningful harmonisation, on the one hand, and the respect for state sovereignty and national diversity, on the other.”63 Thus, even after the third wave of third-pillar law, the real puzzle for the EU counterterrorism policy remains the same: How to manage diversity of national legal systems while avoiding demanding harmonization measures at the EU level. According to Mitsilegas’ analysis, the recent attempts to harmonize thirdpillar EU law did not resolve this old puzzle because they aimed at two disparate objectives. On the one hand, “in the ECJ judgments on criminal law competence, the adoption of criminal law has been viewed as a means to an end: criminal law is not a special field of law, but can be used in order to ensure the effective achievement of Community objectives.” On the other hand, “harmonisation may be useful to facilitate the smooth functioning of judicial co-operation in criminal matters (in particular mutual recognition) and the work of EU criminal law bodies such as Europol and Eurojust.”64 The problem with the former is that the “tabling of proposals for first-pillar criminal law in a wide range of areas of EU action in order to consolidate a constitutional point of competence, poses the danger of marginalizing the examination of whether criminal law is actually the most appropriate form of addressing the issues at stake.”65 In the case of EU’s counterterrorism efforts, this particularly concerns the often automatic adoption of external legal standards, regardless of their shortcomings and potential unsuitability vis-à-vis the current terrorist threats in EU MS (see Chapter 8). Regarding the latter, as highlighted in this chapter, the problem is “that is questionable whether 62 Ibid. 63 Ibid., 536. 64 Ibid., 537. 65 Ibid.

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these goals are met with instruments introducing a low degree of harmonization or legal certainty.”66 Finally, the third mode of governance – mutual recognition – can be seen as a middle ground between the principle of territoriality and harmonization. In the EU, it already extends to all stages of the criminal justice process, including preand post-trial, and it reaches an ever wider range of aspects of domestic criminal justice systems, which now include evidence, probation and alternative sanctions and the transfer of sentenced persons.67 As such, mutual recognition has been presented as “an effective method of European integration in criminal matters” and at least on paper, it indeed appears that “the strategy of promoting European integration in criminal matters on the back of mutual recognition has paid off.”68 However, a closer look at both the implementation of the first major application of mutual recognition in JHA – the European Arrest Warrant – and the lengthy negotiations of many of the more recently adopted mutual recognition measures reveals a more complex picture: The more ambitious the mutual recognition project becomes, and the more stages of the criminal justice process it extends to, the more cautious MS appear to become. This has led to the adoption of instruments which are both limited in scope and ambition and complex. Rather than serving the original purpose of mutual recognition to simplify and speed up judicial co-operation in criminal matters, these instruments may be seen as further complicating such co-operation.69

As in the case of EAW, the key, yet often missing, precondition for the originally envisaged application of mutual recognition instruments based on quasiautomaticity is a high level of trust among EU MS. Moreover, this analysis of the EAW reveals that the other three preconditions for a successful application of mutual recognition in criminal matters (equivalence, compatibility of national criminal law and criminal procedures, and presence 66 Ibid. 67 See in particular Framework Decision 2006/783/JHA on the application of the principle of mutual recognition to confiscation orders, OJ L 328/59; Framework Decision 2008/978/JHA on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters, OJ L 350/72; Framework Decision 2008/947/JHA on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions, OJ L 337/102; Framework Decision 2008/909/JHA on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union, OJ L327/27; and Framework Decision 2008/841/JHA on the fight against organised crime, OJ L 300/42. 68 Mitsilegas, “The Third Wave of Third Pillar Law,” 547. 69 Ibid., 548.

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of institutional support structures) have also not been met fully thus far. As a consequence, the relevant national agencies are not always willing to cooperate on the basis of automaticity and national constitutional courts are not always ready to accept EU inroads in fundamental domestic principles of criminal and constitutional law. In addition, as discussed in detail in Chapter 9, some studies have suggested that: The language adopted in the area of judicial and police cooperation within the EU to combat serious and organized crime including terrorism, speaks of mutual trust and shared values. But in practice, the fight against terrorism often is being used as justification for compromising those values or turning a blind eye to the questionable practices and legislative frameworks on counter-terrorism in some EU MS.70

In the context of the EU counterterrorism policy, it therefore appears unlikely that the previous application of the mutual recognition principle can offer a sustainable solution to one of the key dilemmas of EU counterterrorism policy, i.e., to manage diversity of national legal systems while avoiding demanding harmonization measures at the EU level. This in turn highlights what Nicolaidis and Sievers identified as a paradox of mutual recognition as a governance mode: On the one hand, it aims at managing diversity without demanding harmonization; on the other hand, the preconditions of mutual recognition are more likely to be met where the degree of divergence is low. This indicates that, given the heterogeneity of EU criminal law systems, mutual recognition as an easy-toagree-on alternative to harmonization has its limits.71

The limits of mutual recognition were also acknowledged in a recent report by the British House of Commons, which argued that the mutual recognition principle does not appear to enjoy the full support it once did when the Framework Decision on the EAW was adopted in 2002. Some experts interviewed by the writers of this report actually went so far as saying that “the mutual recognition principle as a basis for police and criminal justice co-operation is doomed.”72 My own interviews with EU officials indicate a diversity of opinions on the modes of governance debate. One official has argued that “mutual recognition

70  Amnesty International, Human Rights Dissolving at the Borders? Counterterrorism and EU Criminal Law, IOR 61/013/2005. 31.5.2005, , 2. Accessed 5.6.2009. 71 Sievers, Managing Diversity, 3. 72 Home Affairs Committee UK House of Commons, “Justice and Home Affairs Issues at European Union Level.”

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has to be where we start simply because of the difficulties inherent in some of the issues if you go any further”: The administration of justice is a fundamental task of governance and there is an acute consciousness, very rightly, in the judiciary in any country of being very cautious about changing because these structures are very delicate balances based on particular experiences in particular countries. So we have to make sure that we get out of mutual recognition as much as we possibly can and the rest will happen over time as countries become more used to working together and there is a generally better perception what the European law that we signed up to actually requires.73

Citing the example of the introduction of the 112 number for emergency calls across the EU, one Czech official also noted that “some harmonization attempts may be too costly to implement and offer only limited tangible value-added.”74 In contrast, the need for “some, although perhaps low level, harmonization” was expressed by a Europol official, who argued that two-thirds of MS counterterrorism investigations are initiated based on intelligence information, which makes it difficult for judges to accept in general, so mutual recognition over international borders is almost always out of the question.75 Alternatively, the head of the Counterterrorism Team at Eurojust has argued that “in the area of counterterrorism, we have actually reached the highest level of approximation, nearby harmonization”: The 2002 Framework Decision and the 2008 Decision with regard to Public Provocation, Recruitment and Training are the areas where you see quite a bit on maximum and minimum penalties. There is room for improvement but there already is what I call harmonization. Even if the penalties are very high in Spain and quite low in Belgium, and there might be some forum shopping so the harmonization is not that broad, but it is going in the right direction.76

Finally, according to the EU counterterrorism coordinator, “we need to continue with the approximation of MS criminal law to ensure that differing definitions do not give rise to loopholes in which behavior illegal in one Member State can

73  Interview with an anonymous EU official, October 2008. 74  Interview with a Czech counterterrorism official, November 2008. In the Czech Republic, the traditional emergency call numbers for police, fire and medical rescue were kept even after the introduction of 112. 75  Interview with a Europol official, September 2009. 76 Interview with Michèle Coninsx, chair of the Counter-Terrorism Team of Eurojust, September 2009.

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simply shift to another. This is particularly important where new offences are being created.”77 Lesson Learned from the Introduction of the European Arrest Warrant The analysis of the European Arrest Warrant presented in this chapter suggests that although it is certainly not flawless, it has the potential to offer genuine valueadded to EU counterterrorism efforts. Although not limited to counterterrorism, the EAW has significantly simplified the extradition processes in terrorist cases and despite the numerous transposition delays and complications, there is at least some evidence of its actual utilization by relevant national authorities. Moreover, from the larger Justice and Home Affairs perspective, EAW represents the first major practical application of mutual recognition in the former third pillar. In contrast to harmonization, the principle of mutual recognition is often perceived to be less infringing on national sovereignty and thereby easier to agree on. In the EU’s former first pillar, where mutual recognition has been the central mode of governance, it helped to overcome trade barriers caused by differences in national product regulation. Based on the positive experiences with mutual recognition in the Single Market, the EU heads of state eventually decided to copy this mode of governance and make it the “cornerstone” of cooperation in the former EU’s third pillar. Their hope was that mutual recognition would enable the EU to build the promised Area of Freedom, Security and Justice because agreeing on centralized rules to address the existing cooperation problems did not prove politically feasible thus far. The experiences with the EAW thus far, however, reveal that the real challenge is to put a mutual recognition system into work in practice. Specifically, the analysis presented above has identified at least four reasons that explain the difficulties encountered during the process of actual implementation of the EAW. Firstly, the national parliaments in several EU MS did not share the enthusiasm for mutual recognition in judicial cooperation and used their leeway in transposing the EAW Framework Decision to national law to add extra procedures and safeguards. Secondly, because of the prevailing heterogeneity of judicial systems and cultural differences across the EU MS, practical cooperation between judges has not always been as smooth and automatic as expected. Thirdly, the very principle of mutual recognition has been challenged on legal grounds in several EU MS and there are still some concerns that the abolition of dual criminality in the formal extradition processes across the EU introduced by EAW contradicts the “no crime without law” principle, which is constitutionally enshrined in a number of EU MS.

77  Council of the European Union, Counter-Terrorism Strategy – Discussion Paper, 15359/1/09. 26.11.2009, , accessed 12.2.2010.

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Fourthly, and perhaps crucially, the problems with EAW’s implementation and practical execution suggest that the four important prerequisites for a successful application of mutual recognition (mutual trust, equivalence, compatibility of national criminal law and criminal procedures, and institutional support structures) have not been fully met thus far. In particular, experiences with EAW indicate that mutual recognition in Justice and Home Affairs cannot function when it is not used by national judges. Over time, the judges may learn more foreign languages, acquire better e-skills and perhaps even start to trust their foreign counterparts a bit more than they do now. Eurojust, whose primary task is to provide “immediate legal advice and assistance in cross-border cases to the investigators, prosecutors and judges in different EU MS,”78 could also offer some remedies to the increased transactions costs that the EAW de facto transferred from the political decisionmaking stage to the implementation and application stages, e.g., to national judges. However, neither Eurojust, nor multiply fluent national judges can do away with the heterogeneity of national criminal justice systems across Europe. Thus, although wholesale harmonization in Justice and Home Affairs appears to be both impractical and politically unfeasible, the experience with the implementation of EAW suggests that some common EU-wide minimum standards defined on the European level may be necessary for mutual recognition to work in practice.

78  European Commission, “Eurojust Coordinating Cross-Border Prosecutions at EU Level.”

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Chapter 8

EU’s Fight against Terrorist Finances: Internal Shortcomings and Unsuitable External Models This chapter offers an analysis of the European Union’s efforts in the fight against terrorist finances. Terrorists, like everyone else, need money and resources to survive and function. The underlying logic of combating terrorist financing (CTF) is therefore straightforward – if the money can be shut down, so can the terrorist activities that it was meant to finance. In practice, however, tracking and combating terrorist financing was not considered a priority either nationally or internationally prior to the 9/11 events. Moreover, although CTF is now a key part of a wider global response, including by the EU and its MS, to both domestic and international terrorism, shutting down terrorist finances has proven to be a formidable task. Following the 9/11 attacks, the EU has adopted the relevant United Nations (UN) counterterrorism resolutions as well as the special recommendations of the Financial Action Task Force (FATF). In addition, the EU has developed its own measures spanning across all of its three former pillars. There is, however, cause for concern that some of these measures have not been properly implemented, while others have been criticized on legal, transparency, legitimacy and efficiency grounds. These shortcomings are not only due to the EU’s own internal obstacles, but also result from the EU’s uncritical adoption of the prevailing smart sanctions and money-laundering regimes, which are based on a number of unwarranted assumptions that do not reflect the nature of contemporary terrorist threats in Europe. The structure of this chapter is as follows. The first section introduces two key global international CTF frameworks that have been developed by the United Nations and the Financial Action Task Force established by the Group of Seven (G7). The second section offers an overview of the key EU CTF instruments. The effectiveness of the EU CTF measures is assessed in section three, followed by an   An earlier version of this chapter was published as “EU’s Fight against Terrorist Finances: Internal Shortcomings and Unsuitable External Models,” Terrorism and Political Violence 22, no. 3 (Summer 2010): 419–438.   Kathryn L. Gardner, “Terrorism Defanged: The Financial Action Task Force and International Efforts to Capture Terrorist Finances,” in Uniting Against Terror: Cooperative Nonmilitary Responses to the Global Terrorist Threat, ed. David Cortright and George A. Lopez (Boston, MA: MIT Press, 2007), 157.

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analysis of the major internal and external obstacles to EU CTF efforts in sections four and five. Areas where the EU CTF efforts have the potential to offer the most value-added are identified in section six. The final section of this chapter offers some thoughts on the future prospects of the EU CTF measures, especially in relation to the changes that are provided for in the Reform Treaty. International Efforts to Combat Terrorist Financing According to much of the available literature, CTF efforts relate to counterterrorism in the same way as anti-money laundering efforts relate to crime reduction: “The rationale is in both cases the same – like other criminals, terrorists cannot operate without financial resources.” As such, both terrorist financing and traditional financial crimes leave “a financial footprint that allows us to trace financial flows, unravel terrorist financing networks, and uncover terrorist sleeper cells.” If successfully executed, CTF measures should also mitigate the “first mover” advantage terrorists otherwise hold. In some cases, limiting the available resources “may prevent some attacks from taking place, or at least can reduce the impact of attacks that cannot be prevented.” In addition, CTF efforts should also help to track operatives, chart relationships and deter individuals from supporting terrorist organizations both directly and indirectly, through diversion of funds from charitable and other organizations. Moreover, unlike much of the other evidence gathered relating to terrorism, which can be “suspect, the product of interrogation, rewards, betrayals, deceits … a financial record doesn’t lie.” As such, it is more reliable than other forms of intelligence when it comes to reconstructing events after terrorist attacks and gaining a better understanding of the terrorist group’s modus operandi and internal organization. Finally, in addition to the preventative, deterrent, investigative and analytical functions, CTF measures also have an important political utility “as they demonstrate concrete policy measures that governments can take in a multi-faceted effort to counter future acts of terrorism.”   Gardner, “Terrorism Defanged,” 159–60.   US Department of the Treasury, Oral Testimony of David D. Aufhauser, General Counsel, Department of the Treasury Before the Judiciary Subcommittee on Terrorism, Technology and Homeland Security. 26.6.2003, , accessed 21.11.2008.   Thomas J. Biersteker and Sue E. Eckert, “Introduction,” in Countering the Financing of Terrorism, ed. Thomas J. Biersteker and Sue E. Eckert (London: Routledge, 2007), 1.  Laura K. Donohue, The Cost of Counterterrorism: Power, Politics, and Liberty (Cambridge: Cambridge University Press, 2008), 122.   Biersteker and Eckert, “Introduction,” 2.   US Department of the Treasury, Oral Testimony of David D. Aufhauser.   Biersteker and Eckert, “Introduction,” 2.

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There also appears to be a general consensus that given the global nature of contemporary terrorism, it is essential to ensure uniform international implementation of CTF measures. This is, however, inherently difficult given that the existing terrorist groups vary in their organizational form and thus also in the ways they raise, store and move funds.10 Prior to 9/11, terrorism was financed on a national basis through criminal activities (protection rackets, bank robberies, etc.); and/or on a transnational basis through fundraising in states with sizeable diasporas for the armed struggle in the “home” state; and/or through states funding foreign groups as proxies for the achievement of their own foreign policy goals. After 9/11, however: [T]he advent of self-supporting “nomadic terrorist networks” with global or regional, rather than separatist, goals, such as al-Qaeda, has added a new dimension to the problem. A nomadic group moves between jurisdictions and operates in different jurisdictions. It can obtain its financing in one region, but carry out operations by means of active cells stationed in, or transferred to, another region.11

It is therefore clear that one financial safe haven is enough to wreck any international CTF efforts, whose strength and effectiveness are determined by the weakest link in the international cooperation frameworks. In this context, it is important to stress that the actions taken by the EU and its MS are just one of several parallel multilateral CTF processes,12 which interact and overlap in numerous ways. Before proceeding with the analysis of the EU’s own CTF efforts, it is therefore necessary to briefly explain the role and contribution of the UN and the G7’s Financial Action Task Force to the fight against terrorist finances.13

10  For detailed analyses, see chapters 2–9 in Thomas J. Biersteker and Sue E. Eckert, Countering the Financing of Terrorism (London: Routledge, 2007). 11 Iain Cameron, “Terrorist Financing in International Law,” in International and European Financial Criminal Law, ed. Ilias Bantekas (London: Butterworths/Lexis Nexis, 2006), 66. 12 Including those devised by international organizations such as the Council of Europe as well as by various professional associations of private financial actors. See, for example, the 2005 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism; the 2001 Basel Committee on Banking Supervision Sharing of Financial Records between Jurisdictions in connection with the Fight against Terrorist Financing at http:// www.bis.org/bcbs/index. htm; the 2002 Wolfsberg Statement of January on the Suppression of the Financing of Terrorism at http://www.wolfsberg-principles.com/financingterrorism.html. 13  For a detailed legal analysis of the international CTF efforts, see Jimmy Gerulé, Unfunding Terror: The Legal Response to The Financing of Terrorism (Northampton, MA: Edward Elger Publishing Limited, 2008).

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United Nations Framework While it may be argued that the United Nations Security Council “assumed a central role in international efforts to destroy and disrupt terrorist networks”14 with the passage of Resolution 1373 on September 28, 2001, the UN’s preoccupation with terrorism and counterterrorism pre-dates the 9/11 events. The UN General Assembly has struggled since its inception to reach an agreement on a universal definition of terrorism, albeit without much success. The UN MS have, nevertheless, been able to agree on 13 conventions, which identify certain discrete actions as terrorist acts that ought to be banned by international law,15 thus making an important contribution to the development of international counterterrorism norms. In the context of CTF, the 1999 Convention against the Financing of Terrorism arguably represents the most important UN contribution as it sets out duties on states to impose “due diligence” requirements for financial institutions and reinforces states’ obligations to cooperate in mutual legal assistance, as regards, in particular, the tracing, freezing and confiscation of assets.16 Several UN Security Council resolutions (UN SCRs) represent the second strand of the UN’s CTF activity.17 In the aftermath of the 9/11 attacks, the UN Security Council took a rather radical measure by adopting Resolution UN SCR 1373 under Chapter VII of the UN Charter, which among other things explicitly obliges all UN MS to criminalize acts of financing of international terrorism, and of making available funds to terrorists, as well as to freeze funds and other financial assets of persons and groups engaged in terrorist activities. The resolution contains no time limit and UN MS are obliged to report to the UN Counter-Terrorism Committee (CTC), which reviews the reports submitted in order to identify weaknesses in states’ laws and implementation of laws relating to terrorist financing.18 In addition, it is important to mention at least three other UN SCRs in the CTF context, which effectively triggered the adoption of the so-called “smart 14 David Cortright et al., “Global Cooperation Against Terrorism – Evaluating the United Nations Counter-Terrorism Committee,” in Uniting Against Terror: Cooperative Nonmilitary Responses to the Global Terrorist Threat, ed. David Cortright and George A. Lopez (Boston, MA: MIT Press, 2007), 23. 15  A complete list of all UN counterterrorism conventions is available at http://www. un.org/terrorism/instruments.shtml. 16 Importantly, these duties include cooperation in providing evidence and waiving banking secrecy for this purpose. Ilias Bantekas, “The International Law of Terrorist Financing,” American Journal of International Law 97, no. 2 (2003): 315–33. 17  For a review of other UN counterterrorism activities, see Eric Rosand and Alistair Millar, “Strengthening International Law and Global Implementation,” in Uniting Against Terror: Cooperative Nonmilitary Responses to the Global Terrorist Threat, ed. David Cortright and George A. Lopez (Boston, MA: MIT Press, 2007), 51–82. 18  For more information about CTC, see http://www.un.org/sc/ctc/ and Eric Rosand, “Security Council Resolution 1373, the Counter-Terrorism Committee, and the Fight Against Terrorism,” American Journal of International Law 97, no. 2 (2003): 333–41.

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sanctions”19 approach in the context of international counterterrorism. Generally speaking, UN smart sanctions work by creating a Sanctions Committee which draws up a “blacklist” of targeted persons and/or groups, imposing obligations on all UN MS to, for example, freeze the listed persons’ assets, impose travel bans on them and criminalize any attempts to provide them with financing or weapons. Specifically, in the context of counterterrorism, the 1999 UN SCR 1267 condemned the use of Afghanistan as a safe haven for terrorists and established a Sanction Committee to assure compliance of all UN MS with the measures intended to interdict and freeze all financial support to the Taliban regime. The 2000 UN SCR 1333 added the call for the freezing of funds and financial assets of Osama bin Laden, the Al-Qaeda organization and all its associates, which were all added to a special UN list of terrorist organizations and individuals. Since 2002, this UN list is maintained by the direction of UN SCR 1390, which called for its regular updating by the UN SCR 1267 Sanction Committee. After the last update in January 2010, it contained 501 names of individuals and groups,20 most of which were listed on the basis of secret intelligence material supplied by UN MS. As a consequence, “the 1267 Sanctions Committee has rarely, or ever, evaluated the ‘evidence’ that the named person is engaged in activities involving a threat to international peace and security.”21 As discussed in Chapter 9, this has generated a great deal of criticism and, in some of the EU MS, even court trials. Financial Action Task Force Framework Given the aforementioned similarities of anti-money laundering and CTF processes, and taking into account that “criminalization of terrorist financing is largely useless without backing it up with a strong regulatory framework for the activities of financial institutions,”22 it is not surprising that the Financial Action Task Force on Money Laundering nowadays sets and promotes the adoption of global standards to combat both money laundering and terrorist financing. Established at the 1989 G7 summit, with the European Communities represented by the European Commission and the “old” 15 MS as founding members, the FATF has become one of the most elaborate mechanisms in the contemporary international system

19  Also known as “targeted sanctions” because unlike the comprehensive sanctions that have been traditionally used by the international community against states, they are specifically tailored to directly affect only a limited number of individuals and/or groups associated with the governing elite. See David Cortright and George A Lopez, Smart Sanctions: Targeting Economic Statecraft (Boulder, CO: Lynne Rienner Publishers, 2002). 20  For the most current list, see http://www.un.org/sc/committees/1267/consolist. shtml. 21  Cameron, “Terrorist Financing in International Law,” 80. 22 Ibid., 89.

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for capturing the financial resources of would-be terrorists.23 First published in 1990 and updated in 1996 and 2003 to keep pace with the changing tactics of illicit money changers and to reflect the corresponding new UN anti-money-laundering instruments, FATF’s Forty Recommendations for pursuing the fight against money laundering are nowadays widely recognized as the international standard in this area.24 Following the 9/11 events, reflecting on the need to have a coordinated and continually updated multilateral CTF approach that supplements the self-policing activities of the major world banks, the FATF convened an extraordinary meeting to specifically consider the financing of terrorism. The result of this meeting was an expansion of the FATF’s mandate to cover CTF, and in late 2001 the organization issued additional eight special recommendations for that purpose. These were complemented by an additional recommendation issued in October 2004. Collectively, they are known as FATF’s Nine Special Recommendations (9SR)25 and although there is no binding obligation to enforce them,26 they are nowadays widely recognized as the international standard in the fight against terrorist finances. The FATF has devised a methodology for states implementing its recommendations as well as for assessing the adequacy of this implementation. FATF also aims to extend its standards to other entities, using both sticks and carrots to induce their compliance.27 Importantly for this chapter, these include those EU MS which are currently not FATF members. Consequentially, FATF’s recommendations, or what could be called an anti-money-laundering (AML) approach, have become an essential part of the EU counterterrorism policy.

23  Currently, the full FATF membership includes 31 nations and two international bodies, representing a high percentage of the world’s financial activity. 130 jurisdictions representing more than 85 of the world’s population and 90–95 percent of economic output have made political commitments to implement FATF recommendations. Gardner, “Terrorism Defanged,” 158. 24  The list of all Forty Recommendations is available at: http://www.fatf-gafi.org/ document/28/0,3343,en_32250379_32236930_33658140_1_1_1_1,00.html. 25  The list of 9SR is available at: http://www.fatf-gafi.org/document/9/0,3343,en_ 32250379_32236920_34032073_1_1_1_1,00.html. 26 The UN Security Council has stopped short of adopting a Chapter VII resolution ordering states to enforce the FATF’s recommendations, but it has “strongly urged” them to do so in UN SCR 1617. 27  The primary stick the FATF has for non-compliance with its recommendations is designation as a “Non-Cooperative Country or Territory.” The carrots are provided by World Bank and IMF, which have agreed to give more assistance to the countries whose financial systems are at risk and to integrate more assessments of compliance with terrorist financing and money-laundering standards into loan/development packages. See http:// www.fatf-gafi.org/dataoecd/41/26/34988035.pdf and http://www.imf.org/external/np/pp/ eng/2005/083105.pdf.

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Key EU Instruments in the Fight against Terrorist Finances Following the 9/11 events, the European Union has developed a number of instruments to fight terrorist finances. Most of these measures were specifically designed to implement and/or enhance the aforementioned resolutions of the UN and CTF recommendations issued by the FATF. Regarding the latter, the key EU CTF measures adopted under the first pillar are the first (1991), second (2001) and third (2005) money laundering directives (MLD). The first two directives imposed anti-money-laundering obligations on financial institutions and designated non-financial professional bodies, and mandated the establishment of financial intelligence units (FIUs)28 in EU MS. The third directive, which came into force only in 2007, is the first one to explicitly include CTF measures. Specifically, it introduced a binding requirement on EU MS to legislate to transform a large part of the revised FATF Forty Recommendations, and seven of the 9SR, into national law.29 It also requires the EU MS to forbid anonymous accounts and places increased and detailed demands on how customer control is to be carried out. Under Article 20, all MS are required to establish FIUs, which are to cooperate in information exchange. Various other requirements are contained in the directive, especially regarding record-keeping, international cooperation, the prohibition of disclosure and compulsory reporting of transactions of goods or services of €15,000 or more.30 Other EU measures implementing the FATF‘s Special Recommendations are the Regulation on Controls of Cash Entering or Leaving the Community, the Regulation on Information on the Payer Accompanying Transfers of Funds and the Directive on a New Legal Framework for Payments in the Internal Market. Their provisions compel travelers entering or leaving the EU to make an obligatory declaration when carrying more than €10,000; require money transfers to be accompanied by the identity of the sender; and aim to license those entities in a country providing as a service the transmission of funding, including informal money-transferring networks such as hawalas.31 28  The FIU is to serve as a national center for receiving, requesting, analyzing and disseminating suspicious transaction reports and other information regarding potential money laundering or terrorist financing. As transnational exchange of intelligence is crucial, the FIUs of many states have formed an informal network, the Egmont Group, which acts as a clearinghouse for this. See http://www.egmontgroup.org. The FIUs in EU MS are also linked through a computer network (FIU.NET), which is partly funded by the Commission. 29 Due to the divided legislative competence between the EU and MS, FATF’s SRs VII and IX had to be promulgated in the form of a regulation. 30 See European Parliament and the European Council. Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the Prevention of the Use of the Financial System for the Purpose of Money Laundering and Terrorist Financing, OJ L 309. 31  For more information on hawalas and other informal banking networks used by terrorist groups in Europe, see Napoleoni, “Terrorism Financing in Europe,” 171–84; Jeroen

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Regarding the former, on the basis of Articles 60 and 301 of TEU, the Council promulgated the key elements of the aforementioned UN SCRs as first pillar EC regulations. Specifically, in response to the requirements in the UN SCR 1373, the Council adopted Common Position 2001/931/CFSP on the application of specific measures to combat terrorism.32 Referring to the 2002 Council Framework definition of terrorist offenses (see Chapter 1), the Common Position draws a comprehensive list of persons, groups and entities considered terrorist. Originally, only 29 individuals and 14 organizations were placed on the list but after the last revision in June 2009, there were already 57 individuals and 47 organizations from around the world.33 The list distinguishes between two different legal statuses for “EU internal” and “EU external” terrorist suspects because the European Communities Treaty (Articles 60 and 301) does not provide the EU with the legal competency to enforce measures against the “domestic” terrorists of MS. Thus, for the first group of persons or organizations (“EU internal”), the Council merely calls for the EU MS to enhance their cooperation in order to prevent terrorist acts. The actual freezing of any assets, however, has to follow national rules in individual EU MS. As for the second group of persons or organizations (“EU external”), the Council adopted Regulation (EC) No 2580/2001,34 which specifically tasked the first pillar of EU – the European Communities (EC) – with the actual execution of freezing of terrorist assets, thus de facto establishing a second EU list of persons and groups considered terrorist. In addition to the measures aimed at implementing UN SCR 1373, the EU has also taken a number of steps to comply with the 1999 UN SCR 1267 and the 2000 UN SCR 1333, which calls for the freezing of funds and financial assets of the Taliban, Al-Qaeda and their associates. An innovative legal approach allowed the Council to agree upon three Common Positions that in turn opened the path for the adoption of corresponding Council Regulations aimed at implementing the relevant UN SCRs.35 Similar to the Common Position 2001/931/CFSP, there is a list Gunning, “Terrorism, Charities, and Diasporas: Contrasting the Fundraising Practices of Hamas and al Qaeda Among Muslims in Europe,” in Countering the Financing of Terrorism, ed. Thomas J. Biersteker and Sue E. Eckert (London: Routledge, 2007), 93–125. 32  Council of the European Union. Council Common Position of 27 December 2001 on the Application of Specific Measures to Combat Terrorism 2001/931/CFSP, OJ L 344/93. 33  Council of the European Union, Council Common Position 2009/468/CFSP of 15 June 2009 updating Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and repealing Common Position 2009/67/CFSP, OJ L 151/48. 34  Council of the European Union, Council Regulation of 27 December 2001 on Specific Restrictive Measures Directed Against Certain Persons and Entities with a View to Combating Terrorism, (EC) No 2580/2001, OJ L 344/70. 35  Council of the European Union, Council Common Position Concerning Restrictive Measures Against the Taliban, OJ L 294; Council of the European Union, Council Common Position Concerning Additional Restrictive Measures Against the Taliban, OJ L 57; Council

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of persons and entities whose assets should be frozen by relevant EU authorities. However, unlike the two lists established by designated EU authorities in 2001, where the Council decides autonomously which specific groups, persons or entities qualify to be listed, in the case of Al-Qaeda the EU simply adopted the list that was established by the UN 1267 Committee, which oversees the implementation of the UN SCR 1267. This de iure acceptance of an external terrorist list, whose listing/de-listing procedures the EU cannot control, has been heavily criticized on both legal and human rights grounds (see Chapter 9). Do the EU Efforts to Fight Terrorist Finances Have Any Bite? As in other areas of counterterrorism, the search for genuine value-added is complicated by a remarkable lack of analysis of the impact of the adopted measures. In the area of CTF, this is especially worrying because many CTF measures run a substantial risk of unintended consequences, both in terms of their immediate impacts on the nature of terrorist financing (see the following paragraphs) and the broader impact on the quality of life of common people in Europe (see Chapter 9) and beyond.36 While the most basic criteria for assessing the effectiveness of CTF measures – the amount of frozen terrorist finances – cannot address all of these important issues, it does represent a useful starting point for evaluating the expected preventative, deterrent, investigative and analytical functions of EU CTF measures. Unfortunately, suspicious lack of official, publicly available data concerning the actual amounts and types of terrorist assets frozen by relevant authorities makes the evaluation of the real impact of the EU’s CTF policies a rather difficult endeavor even at this most basic level. Generally speaking, according to Michael Jacobson, the EU’s efforts to combat terrorist financing have been uneven: On the one hand, the EU has been able to effectively target and freeze the assets of entities associated with al-Qaeda or the Taliban – at least those already designated by the United Nations’ 1267 committee. … [On the other hand, the] EU has been far less successful and effective in designating groups not associated with al-Qaeda or the Taliban.37 of the European Union, Council Common Position Concerning Restrictive Measures Against Osama Bin Laden, Members of the al-Qaeda Organization and the Taliban and Other Individuals, Groups, Undertakings and Entities Associated with Them, OJ L 139. 36  For example, the unintended, yet possible life or death impacts of CTF measures on the flow of remittances or the work of charities. See Gunning, “Terrorism, Charities, and Diasporas,” 93–125; Levi, “Lessons for Countering Terrorist Financing from the War on Serious and Organized Crime,” 267–8. 37 Michael Jacobson, Combating Terrorist Financing in Europe: Gradual Progress, PolicyWatch #1213. (Washington, D.C.: The Washington Institute for Near East Policy, 2007), 2.

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Figure 8.1 Cumulative Worldwide Amounts of Frozen Terrorist Assets, 2000–2008 Source: Data for years 2000-2007 comes from the Seventh Report of the Analytical Support and Sanctions Implementation Monitoring Team, S/2007/677 (November 2007), 45. Data for 2008 comes from the Eighth Report of the Analytical Support and Sanctions Implementation Monitoring Team, S/2008/324 (May 2008), 19.

But even when it comes to entities associated with Al-Qaeda or the Taliban, the precise figures concerning the assets actually frozen within the EU are difficult to come by and those that were published by various investigative journalists and experts in the field are quite diverse. In April 2002, a special inquiry by the Financial Times revealed that “European countries have frozen nearly $35 million in terrorist assets since the September 11 attacks in the US, a figure equal to the assets blocked by the U.S.”38 Since 2002, according to a March 2004 news report by the Associated Press, banks across the EU have allegedly frozen close to $2 million in assets belonging to terrorist groups.39 A January 2004 press release by the US Department of the Treasury stated that “[a]t least $139 million in assets has been kept out of the control of terrorists as a result of efforts by the United States and its allies” and claimed that the US had worked with other governments

38  Edward Alden, “Europe Freezes Terrorist Assets Worth $35 Million,” Financial Times, 7.4.2002. , accessed 14.4.2004. 39 Robert Wielaard, “EU Proposes Terrorist Database Following Madrid Bombings, Criticizes Foot-Dragging Since Sept. 11,” The Associated Press, Lexis Nexis News Search, 18.3.2004.

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to seize well over $60 million.40 According to Jimmy Gerulé, the former US Undersecretary of Treasury in the first Bush administration, 75 percent of this amount has been frozen by US authorities.41 Finally, reports by the UN Analytical Support and Sanctions Implementation Monitoring Team provided data breakdown for cumulative worldwide amounts of frozen terrorist assets for each year for the time period from 2000 till 2008 (see Figure 8.1), with the highest amount of $112 million frozen in 2002. Provided that these figures are roughly correct, it appears that since 2002, EU efforts to cut off terrorists from their financial sources have delivered only modest results, at least in comparison to the actions taken by the US. According to the European Commission, however, the effectiveness of EU action concerning the identification and disruption of the mechanisms through which terrorism is financed should not be judged purely in terms of amounts frozen or confiscated: The impact it has had on terrorist networks and their methods of operation needs also to be taken into account, as does the political impact of a decision taken by the EU as a whole to declare a group or an individual as terrorist … Furthermore, sanctions measures have reduced the possibilities for terrorists and terrorist organizations to misuse the financial sector and have made it more difficult for certain organizations to raise and move funds.42

The Commission nevertheless acknowledged that it is rather difficult to establish whether the aforementioned measures have had “a significant impact on terrorists’ ability to carry out attacks.”43 Moreover, according to the European Strategic Intelligence and Security Center, the real impact of freezing millions in terrorist assets has often been overestimated because the preparation of a terrorist attack can be financed by micro-financing requiring much more complex tracing.44 In the first report of the UN Analytical Support and Sanctions Monitoring Team appointed under UN SCR 1526, the authors argued that “[o]nly the sophisticated attacks of 11 September 2001 required significant funding over six figures. Other Al-Qaeda terrorist operations have been far less expensive.”45 The report specifically stated that the Madrid bombings in 2004 cost about $2,000 and the Report of the Official 40  US Department of the Treasury, “Treasury Announces Joint Action with Saudi Arabia Against Four Branches of Al-Haramain In The Fight Against Terrorist Financing,” 22.1.2004, , accessed 14.4.2004. 41  Jimmy Gerulé, Locking Down Terrorist Finance. Public lecture, University of Notre Dame, 5.4.2004. 42  European Commission, The Fight Against Terrorist Financing, para.4. 43 Ibid., para.5. 44  Cited in Laurence Thieux, “European Security and Global Terrorism: The Strategic Aftermath of the Madrid Bombings,” Perspectives: The Central European Review of International Affairs 22 (Summer 2004): 62. 45  UN Analytical Support and Sanctions Monitoring Team, First Report of the Analytical Support and Sanctions Monitoring Team Appointed Pursuant to Resolution

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Account of the Bombings in London in July 2005 estimated that the London bombings cost less than £8,000.46 It therefore appears that the costs are especially low for homegrown terrorist attacks, such as the bombings in Madrid and London, which involve “very small operational budgets and little to no cross-border communication, indicating that attention must be paid not only to the transnational nature of the terrorist actions but to their local manifestations as well.”47 Moreover, the trend for Islamist terrorist groups in Europe is towards self-funding so external funding is much less important than before 9/11.48 Similarly, the available data on terrorist campaigns conducted by the “older” domestic terrorist groups in Europe indicates that they also do not require extensive funding to carry out deadly attacks.49 Interestingly enough, this evidence has prompted some observers to argue that “every dollar matters” because even small disruptions in the flow of terrorist funds “can stop or postpone an imminent terrorist attack.”50 Others have noted that it is important to keep in mind that “while the operational costs of terrorism may be low …, the total cost of a terrorist attack is probably much higher, due to the requirements of recruiting, training, indoctrination, living expenses, and disseminating information.”51 Nevertheless, regardless of what estimates one prefers, former US Defense Secretary Donald Rumsfeld was correct when he complained that “[t]he cost-benefit ratio is against us! Our cost is billions against the terrorists’ costs of millions.”52 Key Internal Obstacles to EU’s Efforts to Fight Terrorist Finances Shortcomings of the EU’s CTF measures are due to a wide variety of reasons. To begin with, the legal basis is far from being crystal-clear. While on one hand the “strange mix of legal bases originating in all three Pillars of the EU emphasizes the EU’s willingness to take action, even though its competence to implement 1526 (2004) Concerning Al-Qaida and the Taliban and Associated Individuals and Entities, S/2004/679, 12. 46  Home Office, The Report of the Official Account of the Bombings in London on 7 July 2005, HC 1087, 11.5. 2006, London: The Stationery Office, , accessed 18.1.2009. 47  Gardner, “Terrorism Defanged,” 160. 48 Napoleoni, “Terrorism Financing in Europe,” 176. 49 Donohue estimated the annual costs of Provisional Irish Republican Army at £1,5 million but noted that some of the smaller IRA splinter groups, such as Continuity IRA, operated on a budget if £30,000 or less. Donohue, The Cost of Counterterrorism: Power, Politics, and Liberty, 128. 50  M.J. White cited in Biersteker and Eckert, “Introduction,” note 13. 51  Al-Qaeda, for example, spends only about 10% on operational costs. Biersteker and Eckert, “Introduction,” 8. 52  Cited in ibid., 8.

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the UN SC Resolution may not clearly appear,”53 it is also rather messy – three different measures in two different EU law- and policy-making venues with substantial overlap between them.54 The situation is further complicated by the existence of a number of other terrorist lists established by several EU MS that do not correspond to either of the EU lists mentioned above.55 Discrepancies also exist in the listing and de-listing procedures. An anonymous Council decision is required for updating of the 2001/931/CFSP list and Article 1(4) of the Common Position specifies that: The list … shall be drawn up on the basis of precise information or material in the relevant file which indicates that a decision has been taken by a competent authority in respect of the persons, groups and entities concerned, irrespective of whether it concerns the instigation of investigations or prosecution for a terrorist act, an attempt to perpetrate, participate in or facilitate such an act based on serious and credible evidence or clues, or condemnation for such deeds.

This procedure granted the national authorities a minimum period of two weeks for vetting and consideration. In practice, however, MS’ proposals have usually been accepted without much of a discussion. Moreover, as can be seen from the makeup of the original 2001 list, national concerns tended to be paramount (for example, 21 of the 29 individuals on the first list were members of ETA). A similar picture emerged for the listing and de-listing procedures of the 2580/2001 Regulation list, where the criteria for inclusion were also very vague56 and it was again left to the MS to decide according to their national rules what names they would put forward for the list. It is therefore hardly surprising that the fact that names of individuals and groups are being added to the EU terrorist list without any examination by the Council (or the Commission) of the reasons (none having been required or given) of the Member State which proposed the addition, as well as the fact that the Council’s discussions about the list are secret, have long been criticized by human rights organizations.57 Even the European Commission acknowledged that further important unanswered questions include the criteria which should 53  Dubois, “The Attacks of 11 September,” 323. 54  Elspeth Guild, “The Uses and Abuses of Counter-Terrorism Policies in Europe: The Case of the ‘Terrorist Lists,’” Journal of Common Market Studies 46, no. 1 (January 2008): 180. 55  For example, as of April 2004, the Consolidated List of Financial Sanctions Targets in the UK (managed by the Bank of England) contained the names of 58 individuals and 53 entities considered as terrorists. Bank of England, “Consolidated List of Financial Sanctions Targets in the UK.” 2.4.2004, , accessed 14.4.2004. 56 Imelda Tappeiner, “The Fight Against Terrorism: The Lists and the Gaps,” Utrecht Law Review 11, no. 1 (September 2005): 97–125. 57  E.U. Network of Independent Experts in Fundamental Rights, The Balance Between Freedom and Security in the Response by the European Union and Its Member

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be applied and the evidence which is needed for administrative freezing; the relation of administrative freezing to judicial freezing, seizure and confiscation, to matters of due process; the (lack of) availability of de-listing procedures; the role of intelligence in the designation process; and the limits of the powers of the Community and the Union to act in these areas.58 Taking these still open questions into account, it is not surprising that even a top EU official complained that “financing of terrorism is a real concern and there is a lot of discussion on the US list, the EU list, on the Al-Qaeda list, but no single judge knows how to make a proper use of these lists because it is not a judicial list.”59 At least part of the blame for the lack of teeth to the EU’s CTF efforts goes exclusively to EU MS. Although the FATF’s 40 Recommendations and the 9SR reiterated the well-known fact that the limits of any CTF policy lie in the ease with which the formal system for the collection, movement, storage, conversion and application of assets can be circumvented, the CTF measures’ implementation record of the EU MS is far from satisfactory.60 Perhaps most crucially, the EU CTF policy can not comply with FATF Special Recommendation 3, which requires terrorist funds to be frozen “immediately and without delay,” because some EU MS simply do not have their own national asset freezing arrangements. Instead, they rely exclusively on the EU Clearing House and the aforementioned UN regime for the main terrorist groups, all of their aforementioned shortcomings notwithstanding. Alternatively, referring to the aforementioned legal dilemma’s arising from the fact that EU has simply adopted the UN terrorist lists, William Vlcek has argued that the thin implementation of UN SCRs (and the corresponding EC regulations) by some EU MS is due to their conflict with domestic politics and judicial procedures. He cited the example of Luxembourg, where funds were frozen from individuals suspected of an association with al Barakaat in December 2001, only to be returned to them in April 2002 when it was determined that there was insufficient evidence to prosecute.61 A similar point was made by Bruce Zagaris, who noted that already when the UN SCRs 1390 sanctions’ list was produced largely based on secret evidence (allegedly in possession of the US government), Sweden and France immediately expressed their concerns and States to the Terrorist Threats, 31.3.2003, , accessed 10.2.2004. 58  European Commission, The Fight Against Terrorist Financing. 16089/04, , accessed 14.12.2004. 59 Interview with Michèle Coninsx, chair of the Counter-Terrorism Team of Eurojust, September 2009. 60  John Howell & Co., Independent Scrutiny, 21–22. 61  William Vlcek, “Acts to Combat the Financing of Terrorism: Common Foreign and Security Policy at the European Court of Justice,” European Foreign Affairs Review 11 (Winter 2006): 505.

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reservations. These concerns were further exacerbated when the US repeatedly failed to provide requested evidence in order to support judicial proceedings in conjunction with implementing the relevant EC regulations for freezing terrorist assets of EU citizens on the UN terrorist list.62 More generally speaking, these concerns regarding the intelligence-led US approach to also add suspicious, rather than convicted-only, individuals and groups on the UN terrorist list confirm once again that most EU MS have historically preferred to treat terrorism as another, albeit special, type of crime (see Chapter 10). The Howell & Co. report also suggested that some of the reasons that account for implementation delays are structural, e.g., resulting from the slow speed of political and administrative planning processes in EU MS and problems integrating new legislation into existing laws.63 A related complicating factor, both at the national and the EU levels, is the institutional complexity of initiatives to fight TF. At the national level, responsibilities for CTF issues often spread across four or five ministries and coordinating mechanisms are not always comparable. In addition, CTF policies are related to broader issues, such as international military and security issues or financial integrity issues, which often involve input for both policy formulation and execution from the private sector. Coordination, therefore, “has not only to be within the public and private sectors but between sectors as well. This at least doubles the complexity of the situation.”64 Moreover, according to Müller-Wille, the problem of managing complexity is compounded by the legal limits to the exchange of information between agencies, the secretive character of security and intelligence services, as well as competition and distrust between various institutions, both at the national and EU levels.65 Finally, the Howell & Co. report also pointed out that decisions regarding EU CTF (and several other counterterrorism) measures are made by small and closed circles of elites. This criticism has been echoed by Jef Huysmans, who argued that the conditions under which EU agreement influences and, indeed, determines national law and policy, privilege a small number of security actors at the national level who are able to discuss in the relative privacy their specific concerns and interests. When they reach an agreement, albeit with only a vague content, it passes to the national level with all the authority of an EU decision.66 Interestingly enough, however, the argument at the national level is often the “Brussels made us 62 See Bruce Zagaris, “Counterterrorism Financial Enforcement Produces Litigation and Controversy,” International Law Enforcement Reporter 18 (2002); Bruce Zagaris, “Muslim Charity Sues U.S. for Listing as a Terrorist Financier,” International Law Enforcement Reporter 18 (2002). 63  John Howell & Co., Independent Scrutiny, 22. 64 Ibid., 24. 65  Müller-Wille, “The Effect of International Terrorism on EU Intelligence CoOperation,” 49–73. 66  Jef Huysmans, The Politics of Insecurity: Fear, Migration and Asylum in the EU (Abingdon: Routledge, 2006), 85–102.

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do it” adage, even when the same actor who is deploying the argument is the one who determined the content of the policy.67 In either case, the fact that consensus is reached by a small circle of CTF experts excludes or renders less effective national mechanisms of democratic and judicial control.68 Key External Obstacles to EU’s Efforts to Fight Terrorist Finances According to some of the recent literature, a number of shortcomings and problems of EU’s CTF efforts may actually have relatively little to do with the aforementioned “internal” specifics of the EU and its MS. For example, Thomas Biersteker and Sue Eckert have argued that at least some of the problems with the existing global, as well as EU, CTF efforts are due to the very assumptions upon which they have been based thus far, namely that: 1. All terrorist groups are essentially the same and therefore it is possible to apply one-size-fits-all CTF measures. 2. Formal sector institutions are or can be principal sources of terrorist funds transfers. 3. Regulations of formal financial institutions can be extended to the operations of informal financial networks. 4. The hawala systems and similar informal value-transfer systems operating outside of the developed world play an important role in the financing of terrorism. 5. There is an emerging nexus between organized crime and terrorism. A closer analysis reveals that these assumptions “may not be entirely correct or fully warranted,” which in turn may have caused at least some CTF policies to be “potentially wrong, missing or misleading.”69 As illustrated in the following paragraphs, in case of the EU’s CTF approach after 9/11, the heavy reliance on the “targeted/smart” sanctions and anti-money-laundering models indeed appears to be of particular concern. The Sanctions Approach Critique Some experts recently pointed out the improved track record of sanctions effectiveness due to their redirection from the problem of violent conflicts (e.g., measures to deter and/or compel states and/or the rulings elites of states)

67  Guild, “The Uses and Abuses of Counter-Terrorism Policies in Europe,” 175. 68  Bigo et al., Illiberal Practices of Liberal Regimes, 25–40. 69  Biersteker and Eckert, “Introduction,” 5.

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to terrorism.70 In the case of sanctions imposed on state sponsors of terrorism (UN sanctions against Libya from 1992 till 1999, against Sudan since 1996, and against Taliban-ruled Afghanistan since 1999), there is indeed some evidence that at least some of the sanctioned regimes were compelled to negotiate about the surrender of individuals believed to be responsible for specific terrorist attacks.71 At the same time, however, sanctions had no major effect on the Taliban regime in Afghanistan and the developments after 9/11 vividly illustrated how difficult it is to compel politically and economically isolated regimes such as the Taliban.72 Moreover, referring to the changing nature of Al-Qaeda and the evolution of the terrorist threat since 9/11 (see Chapters 1 and 2), other experts have pointed out that financial sanctions and travel bans are of limited value against “homegrown” terrorists, who are only loosely, if at all, connected to the core of Al-Qaeda, but who had embraced the core elements of Al-Qaeda’s violent message: First, it is difficult to compile lists of people who do not have terrorist track records. Second, many of these terrorists do not have to travel, because they already live in their target countries. Third, the attacks carried out by this type of terrorist involve small amounts of money that are hard to track.73

It therefore appears that while the (“smart”) sanctions approach may perhaps work reasonably well as a deterrent to state sponsorship of terrorism, it is much less effective when it comes to countering terrorist activities of transnational groups such as Al-Qaeda, and rather futile in the case of increasingly self-funded homegrown terrorism in Europe.74

70  Chantal de Jonge Oudraat, “Economic Sanctions and International Peace and Security,” in Leashing the Dogs of War: Conflict Management in a Divided World, ed. Chester A. Crocker, Fen Osler Hampson and Pamela Aall (Washington, D.C.: United States Institute of Peace Press, 2007), 338. 71  Especially in the case of Libya, a number of studies points to the relative effectiveness of sanctions in changing the behavior of a proven state sponsor of terrorism. See Oudraat, “Economic Sanctions and International Peace and Security,” 341; and Thomas E. McNamara, “Unilateral and Multilateral Strategies Against State Sponsors of Terror: A Case Study of Libya,” in Uniting Against Terror: Cooperative Nonmilitary Responses to the Global Terrorist Threat, ed. David Cortright and George A. Lopez (Boston, MA: MIT Press, 2007), 83–122. 72  Even when faced with the prospect of a US-led attack after 9/11, the Taliban still refused to extradite bin Laden and tightened sanctions did not lead to a change in the regime’s close links with Al-Qaeda. 73 Oudraat, “Economic Sanctions and International Peace and Security,” 343. 74  See Jeanne K. Giraldo and Harold A. Trinkunas, Terrorism Financing and State Responses: A Comparative Perspective (Stanford, CA: Stanford University Press, 2007); and Sean S. Costigan and David Gold, Terronomics (Aldershot: Ashgate Publishing Company, 2007).

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Other experts have pointed out that sanctions against a rather nebulous AlQaeda network and the persons and entities associated with it cannot really be called “smart/targeted” sanctions, which were traditionally supposed to target specific known individuals and firms associated with a ruling elite of a country (e.g., Milosevic’s regime in Serbia). As Peter Fitzgerald noted, governmental blacklisting of particular entities and individuals was historically used as a secondary tool to augment a primary economic embargo directed at particular geographic enemy, often as an adjunct to actual hostilities. In such cases, the predominant value of the sanctions program was as a political statement and a practical inability to enforce the controls as broadly as written was tolerable as a policy matter. Over time, however, smart sanctions became an end in themselves: They became useful political demonstrations to both domestic and international constituencies that policy makers were “taking action” to address a wide range of difficult international issues, whether or not the sanctions actually achieved their stated aims. This now includes sanctions that are completely disassociated with any particular target nation or geography, and aimed at intractable problems such as global terrorism.75

This evolution has had a number of important repercussions when it comes to CTF efforts. According to Ian Cameron, for example, UN SCR 1390 is too “open-ended” and thus qualitatively different from previous sanctions imposing UN SCRs in that there is no connection between the targeted group/individuals and any specific territory or state.76 Moreover, it appears that the purpose of UN sanctions “is not, realistically, behavioral modification, but making a political statement or punishment.”77 Unfortunately, “the political statement made by merely adding names to a blacklist is insufficient to address the threats posed by global terrorism.”78 Specifically, the critics have pointed out that the updated EU list(s) of terrorist organizations and persons linked to terrorist activities do not qualify as a robust counterterrorism measure devised to preventively disrupt terrorist groups because on its own, it does not limit the freedom of reunion, association and expression of the listed organizations and individuals.79 75 Select Committee on Economic Sanctions House of Lords, “Memorandum by Professor Peter Fitzgerald, Stetson University College of Law,” The Impact of Economic Sanctions, Volume II: Evidence. 9.5.2007, , 150. Accessed 26.1.2009. 76 Iain Cameron, “UN Targeted Sanctions, Legal Safeguards and the European Convention on Human Rights,” Nordic Journal of International Law, 72, no. 2 (2003): 183. 77  Cameron, “Terrorist Financing in International Law,” 81. 78 Select Committee on Economic Sanctions House of Lords, “Memorandum by Professor Peter Fitzgerald,” 150. 79  Zimmermann, “The European Union and Post-9/11 Counterterrorism,” 135.

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Some experts have even argued that there is “no independent evidence whatsoever that the blacklisting technique has any significant effect on limiting terrorist financing”80 and pointed out that he current “political statement” blacklisting approach can actually make the task of tracing money flows more difficult. According to Fitzgerald, this is because of a) the prevailing uncertainty regarding the details of the controls; b) the obligations the sanctions impose, especially on the private sector; and c) the manner of the sanctions enforcement. A key shortcoming in all three areas lies in the lack of appreciation of the role of the private sector and its voluntary compliance with CTF measures: At their core, economic sanctions are controls which are directed primarily at, and implemented by, banks and financial institutions. However, reflecting their origins as foreign policy tools, sanctions programs are often written quite broadly … for all transactions with blacklisted parties involving even the smallest amount or account. … Ironically, the result of broadly written controls is not wider compliance. Rather, those outside of the financial institutions at the core of the controls, recognizing that governmental enforcement resources are limited, may not engage in a high degree of “voluntary” compliance with what they perceive to be commercially impractical requirements.81

A second problem with the current blacklisting approach to CTF is due to the fact that blacklists are inherently both under- and over-inclusive. This reflects the difficulties of providing accurate information precisely identifying a particular party or entity as a sanctions target: If a precise match with a government blacklist is required, targeted individuals and entities might escape the controls due to minor variations in the names. Conversely, if not enough rigor is applied in the matching process, the blacklisting system can easily be overwhelmed by the number of false matches. A similar issue arises when common names appear on the blacklist, generating a large number of unintended matches.82

The third problem is that the current CTF blacklisting regime is neither smart nor targeted enough because the same sanction measures are applied against the direct and primary targets (such as an Osama bin Laden) and against a party who only incidentally dealt with or supported the real target of the program.83 Finally, taking into account the relatively low cost of terrorist attacks, it is troublesome that even the biggest US banks with the best automated interdiction software acknowledge 80  Cameron, “Terrorist Financing in International Law,” 81. 81 Select Committee on Economic Sanctions House of Lords, “Memorandum by Professor Peter Fitzgerald,” 150. 82 Ibid., 151. 83 Ibid., 156.

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that some “leakage” is inevitable: “Large banking institutions handle millions of transactions each day and, despite state of the art interdiction systems, frequent staff training and the institutions best efforts, it is statistically inevitable that a large bank will have inadvertent violations of sanctions.”84 The Organized Crime/Money Laundering Model Critique As in the case of smart sanctions, the generally assumed CTF/organized crime analogy may actually be misleading and counterproductive. This is because terrorism, which generally speaking seeks political objectives and money is therefore merely the means to an end, differs significantly from organized crime, whose primary objective is the money, or profit-making, itself. Terrorist financing (TF), therefore, differs from criminal money laundering (ML) in several critical ways: the direction of the related financial transactions; the tolerance for failure; the motivations of the participants; and the scale of the activity to be suppressed. Moreover, while the nature of the standard “dirty-to-clean” ML process is relatively well understood, “the full nature and potential of the ‘clean-to-dirty’ processes associated with terrorist financing are less well defined and understood.”85 This is not to deny that there can be substantial overlap between ML and TF, especially in cases of the more traditional pre-9/11 terrorism,86 but for the post-9/11 type of attacks, the standard organized-crime concept of ML (“dirty” money coming into the ordinary economy to be “cleaned”) simply does not apply. In fact, the pattern is often reversed: A large lawfully earned sum is transferred to a state where the target is situated, whereupon the sum is split into several working accounts used for preparing the terrorist act. Even this pattern may be lacking where the active cell is home grown and has its own lawful sources of income. Their transaction records and account “profiles” here will show few, if any, suspicious tendencies.87

It is, therefore, not surprising that only the experiences of some EU MS indicate some “usefulness” of the ML model at the operational level. In many other EU MS, however, the pattern is often reversed and evidence of ML comes to light during the course of other criminal investigations. Again, this is not to deny that accounts used by terrorists ever generate unusual and/or suspicious transaction 84  Bank of America Legal Department letter to the US Treasury Department, Office of Foreign Assets Controls, February 7, 2006. Cited in ibid. 85  John Howell & Co., Independent Scrutiny, 8. 86  Especially in dysfunctional states where there are areas in which the central authority exercises only limited control, or has abandoned control altogether, there can be a symbiotic relationship between organized crime and terrorism – the former can finance the latter, or the latter can forward in different ways the goals of the former. 87  Cameron, “Terrorist Financing in International Law,” 72.

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reports (UTR/STR),88 but these are often lost in the vast number of other such reports.89 This also at least partly explains why so few suspicious transactions were actually identified thus far by the responsible EU CTF bodies and mechanisms. According to the John Howell & Co. report, “the number of suspicious transactions specifically for TF varies across MS, but is generally very limited, if present at all.”90 Consequently, according to Cameron “there is little cause to believe that the mechanisms put in place will allow more than sporadic detection of terrorist financing. To the extent, then, that these measures have been ‘sold’ as means of preventing terrorist outrages this certainly represents a misrepresentation.”91 The John Howell & Co. report also highlighted a further important complaint concerning the usefulness of the AML model coming from both the public and the private sector, whose representatives have criticized the fact that very few general clues for TF activities have been developed within the EU thus far: “A single financial transaction that raises suspicion could relate to anything. So the effectiveness of the reporting system depends heavily on the ingenuity of the analyst and on the other data he has available.”92 The report therefore suggested that specific TF experience and quality of TF training of the analysts is critical. Moreover, as Cameron pointed out, it should be remembered that private financial institutions are geared towards making profits and where the money has come from has not, traditionally, been of great interest to them: Obviously, demands have to be placed on financial institutions to overcome their natural reluctance to make too many problems for depositors, and thus kill the “golden goose.” At the same time, it is evident that financial institutions must engage in a large degree of self-policing for the monitoring to work properly. Where they are worried that they may themselves have breached difficultto-follow and overly demanding legal requirements (especially as regards blacklists) they are not going to report themselves.93

Thus, it appears that the current combination of the AML and “targeted” sanctions models may not represent the best way to engage the private sector in the fight against TF. Furthermore, as noted in the most recent report by the UN Analytical Support and Sanctions Implementation Monitoring Team, because of the increased need for liquidity due to the worldwide financial crisis, both the regulatory 88  As the UN SCR 1267/1390 Monitoring Group noted, at least one of the transfers to the 9/11 terrorists was reported as a suspicious transaction, but this got lost in the mass of such reports. See First Report, S/2000/541 (May 15, 2002), para. 25. 89  For example, the New York InterBank system handles 200,000 payments totaling $1.1 trillion every day. Cameron, “Terrorist Financing in International Law,” 74.   90  John Howell & Co., Independent Scrutiny, 28. 91  Cameron, “Terrorist Financing in International Law,” 105. 92  John Howell & Co., Independent Scrutiny, 28. 93 Ibid., 94.

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authorities and private-sector financial institutions may become even less rigorous in their application of, and compliance with, measures designed to counter the financing of terrorism.94 Finally, some experts have also pointed out that the AML approach to CTF is too much based on US terrorist threat analysis and therefore may actually not be an appropriate basis for the EU CTF strategy: [T]he problem is that the FATF reporting regime, especially the 9SR regime, promoted by the EU is actually an OC [organized crime] regime, not a specific TF [terrorist financing] regime. This because it is based on the model adopted by the U.S.A. in reaction to the 9/11 attacks: The U.S. saw similarities between AQ [Al-Qaeda] operations and OC in the U.S.A. and adapted domestic instruments developed in the fight against OC. However, in the absence of a fuller analysis, it is not certain that the threat in the U.S. can be compared to the threat in the EU, whose domestic terrorist groups in particular do not appear to fit into the same pattern. 95

In other words, the FATF’s 9SR may well represent rather ineffective CTF measures in the EU context because they are not specific to actual TF threats in EU MS. Thus, in order to reframe its CTF policy, the EU needs to undertake a full threat analysis from its own perspective and develop a response to address TF and terrorism specifically as they occur across the EU. However, as discussed in Chapter 2, the EU currently lacks a genuine independent strategic terrorist threat analysis and therefore it is not surprising that it simply adopted the existing US AML approach. Interestingly, some recent analyses suggest that this may actually prove to be an auspicious default option because the relative success of the key CTF measures in the formal financial sector has led to the increasing importance of the illegitimate sector in TF in Europe.96 Thus, in a paradoxical twist, the AML approach may eventually turn out to be a rather useful CTF model in the years to come provided that terrorists increasingly utilize crime to raise and move funds. Where EU Efforts to Fight Terrorist Finances Can Add Value The complex issues arising from UN CTF actions and the detailed FATF standardsetting highlight the potential for the EU to meaningfully contribute to the CTF process: “The challenge is for the EU to add value by dealing with TF in such a 94  UN Analytical Support and Sanctions Monitoring Team, Tenth Report of the Analytical Support and Sanctions Monitoring Team Appointed Pursuant to Resolution 1822 (2008) Concerning Al-Qaida and the Taliban and Associated Individuals and Entities, S/2009/502. 2.10.2009. 95  John Howell & Co., Independent Scrutiny, 42. 96 Napoleoni, “Terrorism Financing in Europe,” 177.

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way as to lessen the administrative and financial burdens on MS and target groups whilst adding to the public safety of EU citizens, not only with regard to terrorism but organized crime more generally.”97 There are several ways how the EU can make such contribution. Firstly, the EU should try to remedy at least some of the aforementioned shortcomings of the current not-so-smart sanctions approach to CTF. Specifically, Fitzgerald has suggested that the following steps should be taken to enhance the sanctions credibility and commercial practicability: 1. formulating sanctions controls on a risk-based model that: a) distinguishes among the obligations imposed on the various types of businesses comprising the regulated community; b) distinguishes between the primary and secondary targets of the sanctions; and c) provides an official mechanism to resolve questionable blacklist matches 2. aligning enforcement practices and resources with those risk-based controls by: a) establishing governmental standards for liability for non-compliance, or which alternatively recognize industry developed “best practices” for compliance; b) providing a “safe harbor” where internal compliance programs are in place which meet such standards or practices 3. creating an official mechanism to correct blacklisting mistakes.98 It is worth stressing that all of these suggestions imply the need for substantially improved partnerships between the governments of EU MS and the private sector, which actually shoulders the bulk of the CTF work in practice. A number of useful models in this regard can be found in a review of international best practices in the area of freezing of terrorist assets that was published by the FATF in June 2009.99 Similarly, when it comes to reform of the listing and de-listing procedures with the aim of minimizing blacklisting mistakes, several new ideas have emerged from recent expert reports, including: a) creation a review panel; b) creation of the position of an ombudsman; c) putting time limits on listings; and d) a regular review of listings by a quasi-judicial panel.100 Secondly, their current shortcomings notwithstanding, the EU should identify structural obstacles to MS compliance with FATF anti-money laundering and CTF standards because it provides the EU with cues for targeting its actions and measuring their success:

97  John Howell & Co., Independent Scrutiny, 15. 98 Select Committee on Economic Sanctions House of Lords, “Memorandum by Professor Peter Fitzgerald,” 150. 99  FATF, International Best Practices – Freezing of Terrorist Assets, 23.6.2009, available at , accessed 9.10.2009. 100  UN Analytical Support and Sanctions Monitoring Team, Tenth Report of the Analytical Support and Sanctions Monitoring Team, para. 39. For alternative recommendations, see Gerulé, Unfunding Terror, 381–393.

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Another important reason the EU should put greater emphasis on strengthening of multilateral CTF initiatives such as the FATF is because when it comes to combating terrorist financing, even the most effective regional responses are bound to be insufficient. It is therefore evident that regarding CTF initiatives, the EU level ought to be developed as an integral component of a global coordinated framework. Otherwise, due to the global nature of terrorist financing, the desired preventative, deterrent, investigative and analytical functions are bound to be short-lived and deceptive. Thirdly, one way the EU may help to remedy the aforementioned deficiencies in the international CTF measures and ensure their implementation in its MS, is the peer review mechanism. The EU has already undertaken ad hoc peer reviews of its counterterrorism efforts in general102 but it does not have the capacity or the mandate to establish an ongoing internal mechanism for periodic, structured and detailed evaluation of its own AML and CTF measures. The EU should, however, also try to avoid some of the shortcomings of the FATF assessment process, which is based on periodic peer reviews and mutual evaluations focusing almost exclusively on MS compliance with static treaties and regimes. The problem with such an assessment approach is that it ignores the fact that “the goal or end point is continually reassessed and changing”: Compliance, it would seem, is trying to catch a moving target. Problems in the real world are not static; to be effective, international agreements and institutions that deal with these problems cannot remain static. … Managing the tension of improving compliance levels with existing standards while adapting these standards to a changing environment is a major challenge.103

101  John Howell & Co., Independent Scrutiny, 42. 102  A peer evaluation system was set up in 2002 under the Article 36 Committee, involving evaluation teams of designated experts monitoring implementation and effectiveness of national counterterrorism systems in EU MS. Council of the European Union. Council Decision 2002/996/JHA of 28 November 2002 establishing a mechanism for evaluating the legal systems and their implementation at national level in the fight against terrorism, OJ L 349/1. 103  Gardner, “Terrorism Defanged,” 173.

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Nevertheless, previous EU experiences with mutual evaluation processes suggest that even with their imperfections,104 they represent a more effective tool than national self-assessments. Fourthly, the EU could utilize the twinning procedure that has been quite successfully applied in the most recent enlargement rounds.105 MS with substantial experience in CTF should therefore be encouraged to establish partnership arrangements with one or more countries who do not, or who have fewer resources (especially smaller MS). According to the Howell & Co. report, the twinning should be based on existing bilateral relationships and the resulting partnerships should: 1. develop links at strategic, tactical and operation level; 2. support each other in planning, training and operations, especially by informal exchanges of ideas and experience; 3. hold meetings to exchange experiences, review common unmet needs at partnership and at EU level and explore ways to meet them.106 Fifthly, the existing EU agencies could be better utilized and, in some instances, granted new roles and powers. To begin with, despite the original expectations of many, the EU’s Counterterrorism Coordinator currently has neither the powers nor resources to set goals, coordinate and monitor actions across pillars and MS (see Chapter 6). Nevertheless, at least according to the head of the Counterterrorism Team at Eurojust, in the area of CTF the EU CT coordinator could provide “more insight into what is now at stake, how can we properly make use of the lists, how does the clearing house work etc.”107 Finally, the EU could also become a more effective CTF player by simply not doing certain things. For example, it could generate fewer, but more compliancefriendly rules, by: 1. developing ways to preserve priorities across presidencies; 2. reducing the production of policy papers and actions plans, and so reduce the volume of policy;

104  Interviews with some national officials who participated in EU’s first round of peer reviews suggest that they generally avoided being overly critical in their assessment of other MS’ arrangements. Interview with National Practitioner, Spanish Guardia Civil Police Force, May 2006, cited in Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 320. 105  Bures, “EU Counterterrorism Policy and the 2004 Eastern Enlargement,” 7–27. 106  John Howell & Co., Independent Scrutiny, 45. 107 Interview with Michèle Coninsx, chair of the Counter-Terrorism Team of Eurojust, September 2009.

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3. conducting preliminary and detailed regulatory impact analysis, as appropriate to the understanding of proportionality when dealing with asymmetric threats; 4. consulting more effectively with target groups and those implementing rules; 5. including de minimis provisions for minor transgression to lessen burdens of rules.108 Especially the representatives of the smaller EU MS have complained that their small national counterterrorism offices are sometimes so busy with responding to various EU questioners and discussion papers that they do not have any time left to deal with their domestic agendas. Thus, according to a Czech official, “[i]t would be perhaps better to do less at the EU level, but go more in depth. We simply cannot manage the same amount of agenda as the big Member States.”109 At the same time, however, it must also be recognized that EU should focus on a variety of long-term counterterrorism measures and should avoid over-ambition on specific CTF issues only. As Cameron put it: “Measures to deal with terrorist financing are technical solutions to political problems. A repressive ‘fix’ for an infection is undoubtedly necessary at times, but it only deals with the symptoms. It should not blind us to the need continually to look for the structural causes of the disease, and structural cures for it.”110 Road towards a Smarter EU Regime to Counter Terrorist Finances? Following the 9/11 events, the EU has adopted a number of CTF instruments, most specifically designed to implement and/or enhance the already existing UN and FATF CTF regimes. Although both the UN “smart” sanctions and the FATF’s AML approach each have shortcomings and the practical implementation of the newly designed EU measures has been piecemeal, the EU’s efforts to combat terrorist financing are now officially an integral part of the Pursue strand of the EU Counterterrorism Strategy and the importance of strengthening the fight against the financing of terrorism was repeatedly reiterated by the Council and the Commission.111 Most EU CTF measures have eventually been implemented at the national level and although we lack information about the precise amounts of frozen terrorist assets, national authorities in EU MS have taken action against groups and individuals listed on the EU terrorist list(s). Following the criteria identified in Chapter 1, one may therefore be tempted to conclude that the EU has 108  John Howell & Co., Independent Scrutiny, 44. 109  Interview with an anonymous Czech counterterrorism official, November 2008. 110  Cameron, “Terrorist Financing in International Law,” 94. 111  For example, see European Commission, “European Commission Action Paper in Response to the Terrorist Attacks on Madrid.”

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provided tangible value-added in the fight against terrorist financing. The analysis presented in this chapter, however, questions the validity of such a conclusion. On the one hand, there are EU-specific obstacles due to the different terrorist threat perceptions across the EU MS and the fact that until recently, only the European Communities (the former first pillar) had the legal power to put some elements of an EU CTF approach directly into practice. With mandates, capabilities and capacities allocated across numerous EU bodies, it is clear that a comprehensive CTF approach on the EU level would require coordination across all former EU pillars, to which there are still practical and political obstacles. Thus, perhaps even more than in other areas of EU counterterrorism efforts, the actual implementation of the relevant Lisbon Treaty provisions (see Chapter 10) will be crucial for the future of the EU CTF measures discussed in this chapter. On the other hand, some of the aforementioned shortcomings of the EU’s CTF efforts are beyond the EU’s immediate control. Both the smart sanctions and the anti-money-laundering approaches to CTF were drafted outside of the EU and for a long time, they have been accepted as the CTF standard worldwide. Nevertheless, the most recent literature has identified a number of crucial built-in assumptions in both the sanctions and the AML regimes that appear increasingly unwarranted, especially when it comes to combating the financing of homegrown terrorist cells in Europe. The EU and its MS ought to take these new lessons into account and make the necessary adjustments to their CTF policies as soon as possible. Otherwise, there is a risk that even with the Lisbon Treaty in force, the CTF work may be crowded out by new, more immediate security threats (e.g., a flu pandemic or an energy crisis) that would quickly close the frequently cited “window of opportunity” generated by the 9/11 terrorist attacks.

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PART 4 Current Dilemmas and Future Prospects

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Chapter 9

Freedom and/or/versus Security? When it comes to counterterrorism, debates about trade-offs between liberty, transparency, accountability, justice and greater security are neither new nor specific to the EU. The post-9/11 EU counterterrorism policy, however, has been criticized for failing on both fronts – i.e., “for being ineffective, slow and incoherent as well as for taking disproportionate, self-serving and partly illegal measures that undermine democratic and judicial oversight as well as civil liberties.” This chapter does not and cannot provide a comprehensive account of all issues and questions involved. Instead, building on an analysis of the larger normative debate concerning the nature of relationships between freedom, justice and security in the context of the EU’s counterterrorism policy, it offers a case study of the specific human rights, transparency and legitimacy critiques of the key EU measures utilized in the fight against terrorist financing discussed in Chapter 8. Succinct reviews of the relevant key judgments of the European Court of Justice and a summary of opinions of interviewed EU practitioners are provided as well. This should provide the reader with sufficient information to form an opinion on this complex, yet fundamental, subject. The Larger Normative Debate According to Edwards and Meyer, the larger question of freedom and/or/versus security, or in their terms the “erosion of norms debate,” can be subdivided into three strands, depending on the underlying relationship between the goal of policyeffectiveness and legitimacy: 1. those who take the effectiveness in fighting terrorism as the sole benchmark for measuring the EU’s performance regardless of legal and normative questions;

  Edwards and Meyer, “Introduction,” 15.   For comprehensive accounts, see, for example, Thierry Balzacq and Sergio Carrera, Security Versus Freedom? A Challenge for Europe’s Future (Aldershot: Ashgate Publishing Company, 2006); and Elspeth Guild and Florian Geyer, Security Versus Justice: Police and Judicial Cooperation in the European Union (Aldershot: Ashgate Publishing Company, 2008).

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2. those who feel that there is some sort of trade-off between achieving security and the protection of citizens vis-à-vis the instruments and agencies of the state; 3. those who assert that democracies would be undermining their own foundations if they allowed any infringement of civil rights and liberties for the sake of security-enhancing measures, placing civil rights and democratic process effectively outside the realm of political discretion and trade-offs. An alternative conceptualization of the relationship between freedom and security was offered by Didier Bigo, who argued that there are at least six cursors that should be distinguished in order to acknowledge that freedom and security are often in a hierarchical, rather than equal or balanced, relation (i.e., one is seen as a principle and the other as an exception): 1. Freedom is the only principle with no limits (the anarchist view). 2. Freedom may be considered as the principle, and security as the exception. Security is the way to regulate interactions between freedom and the risk of anarchy (the libertarian view). 3. Security could be analyzed as the freedom of the individual under the name of safety. Freedom encompasses security (the constitutionalist view). 4. Security may be considered as the first freedom of the individual under the name of safety. No freedom is possible if you are dead or at risk of being killed. It may be the survival of the collectivity or survival of the individual. The former may imply the lack of the latter. Freedom exists only after security is ensured so security encompasses freedom at the beginning, but not after (the “exceptionalist view”). 5. Security is considered as a collective common good and as the first freedom because life exists only if survival exists. Security is a right and a freedom because it is the way to prevent danger and violence. Freedoms as practices are the exception, even if freedom as discourse is emphasized. Security is “our” security and could imply the suspension of rights of others, but always in the name of more freedom (the permanent emergency view). 6. Security is the only principle with no limits. Democracy is weakness. Order and obedience are better values than freedom (the fascist view). In addition, Bigo argued that the relationship between freedom and security is further complicated by the fact that they are both related to two additional concepts – danger and justice. Regarding the latter, he contrasted dispassionate “serene   Edwards and Meyer, “Introduction,” 16.  Didier Bigo, “Liberty, Whose Liberty? The Hague Programme and the Conception of Freedom,” in Security Versus Freedom? A Challenge for Europe’s Future, ed. Thierry Balzacq and Sergio Carrera (Aldershot: Ashgate Publishing Company, 2006), 38–39.

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justice” with securitized “accusers’ justice” (i.e., justice seen through the eyes of the prosecutors, police, intelligence officers, etc.), whose primary purpose is “to help security by providing a quick punishment.” Regarding the former, Bigo notes that “a society without danger (insecurity) does not exist and some dangers are part of life.” Consequently, security may have a negative connotation to both freedom and danger and therefore it is not always a “good thing” that ought to be “maximized”: Does the acknowledgement of some element of danger in life render security the contrary to insecurity? We cannot be certain. Security is more like an expanding envelope and insecurity is the environment in contact with this sphere, so the two phenomena expand at the same moment. More security may create more insecurity.

To students of security studies, this will sound familiar – security, as well as perceptions of specific security risks, are inherently subjective so there is always plenty of room for a security dilemma, where even the best intentioned efforts to increase one’s own security may lead to either a real or perceived decrease of security to others. Balancing all four elements in Bigo’s matrix (security, freedom, justice and danger) appears to be a daunting, if not impossible, challenge. Even within the more specialized academic disciplines (philosophy, law, security studies), there is still a debate about the ontology and epistemology of these complex concepts, as well as their practical, policy-making implications. In security studies, for example, there is a plethora of often contradictory answers to such basic questions such as what is to be secured, by whom, by what means and at what cost. Similar questions can certainly be raised when it comes to liberty and justice. It is beyond the scope of this chapter to provide an exhaustive treatment of even one of these important questions. The discussion will therefore be limited to the application of the aforementioned conceptualizations of the relationship between freedom and security to the EU’s counterterrorism policy after 9/11. Specifically, if we take out the extreme anarchist and fascist positions from Bigo’s conceptualization and apply his principle versus exception logic to Edwards and Meyer’s categories, we can arrive at the following categorization: 1. the “security first” approach, where security is the first freedom and/or a common good (category one for Edwards and Meyer and categories four and five for Bigo);

  Bigo, “Liberty, Whose Liberty?,” 41.  Ibid., 38–39.   For a basic overview, see Allan Collins, Contemporary Security Studies (Oxford, UK: Oxford University Press, 2007).

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2. the “balancing freedom and security” approach, where somehow both security and freedom should be the principle values that ought to be in balance (category two for Edwards and Meyer, no category for Bigo); 3. the “freedom first” approach, where freedom of the individual is the first principle (category three for Edwards and Meyer and categories two and three for Bigo). The following section offers an analysis of the available liberty, justice and legitimacy critiques of the key EU legal measures utilized in fight against terrorist financing. This case study should in turn indicate which of the aforementioned approaches to the freedom-security relationship have prevailed in the EU in aftermath of the 9/11 terrorist attacks. Critiques of the EU Measures to Combat Terrorist Financing Given the numerous shortcomings resulting from the application of the antimoney-laundering and targeted sanctions models to the fight against terrorist financing by the EU (see Chapter 8), it is not surprising that the EU’s judicial watchdogs have already been asked to consider several cases in this area. In particular, the use of the terrorist lists has been subjected to substantial criticism, both when it comes to EU’s own listing practices and the EU’s implementation of relevant UN Security Council Resolutions that established the UN terrorist lists. In particular, despite some recent improvements that are discussed below, many of the existing mechanisms for listing and delisting of both individuals and entities considered to be terrorist do not meet internationally recognized human rights standards, which include the right to judicial review, the right to procedural fairness, the right to be heard and the right to judicial remedy. These rights form the very basis of due process of law and are guaranteed by leading international legal agreements, including the United Nations Covenant on Civil and Political Rights, and the European Convention for the Protection of Human Rights and Fundamental Freedoms. The lack of sufficient human rights guarantees has become a particularly acute problem for the EU because of the continuing insistence of top policy-makers in the UN Security Council that the targeted sanctions approach represents “an essential tool for the prevention of terrorists acts.” In short, as Mikael Eriksson put it, the   Larissa van den Herik and Nico Schrijver, “Human Rights Concerns in Current Targeted Sanctions Regimes from the Perspective of International and European Law,” in Strengthening Targeted Sanctions Through Fair and Clear Procedures. Watson Institute for International Studies, March 2006, , accessed 12.5.2009.   George A. Lopez et al., Overdue Process: Protecting Human Rights While Sanctioning Alleged Terrorists. April 2009,
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crux of dilemma is that “[w]hile actions one the one hand need to be straight and hard-hitting, the same measures need also to be gentle so that they pay respect to human rights concerns.”10 To what extent has the EU succeeded in tackling the first part of this dilemma was already discussed in Chapter 8. The EU’s responses to the second part of the dilemma, both when it comes to its own and the transposed UN terrorist lists, are discussed in the following paragraphs. Since there already exists a substantial body of specialized legal literature devoted to these important issues11 and the author of this volume is not a lawyer by training, the aim is to provide a succinct overview of the key challenges that are most pertinent to the ongoing debates about the proper relationship between liberty, justice and security in the context of the EU counterterrorism policy. Judicial Challenges to EU’s Own Terrorist List When it comes to the listing issues, a number of individuals and entities that were placed on the EU’s autonomous terrorist list established by Common Position 2001/931/CFSP have launched legal challenges and in a number of recent cases, the EU courts have ruled in their favor. Perhaps most importantly, in December 2006, the EU’s Court of First Instance (CFI) decided that the European Council had illegally listed the Iranian opposition group Mujahedin-e Khalq (MEK, also known as People’s Mujahedeen of Iran – PMOI) because it failed to provide adequate reasons or sufficient information on the basis of the designation. As a consequence, PMOI’s right to a fair hearing was violated because it had not been in a position to determine what evidence was brought against it and on which national decision its listing was based. CFI therefore ruled against the inclusion of PMOI on the terrorist list with regard to the assets freeze measure, although not for the reason of whether or not PMOI was a terrorist organization, but for the EU Council not following relevant legislation.12 The EU subsequently took steps to comply with the ruling and declassified the “statement of reasons” it sent to the PMOI to justify its inclusion on the EU terrorist list. The statement cited terrorist attacks by the PMOI in the 1990s, 2000 and 2001, and the decision of the UK government to ban the PMOI in March 2001 as grounds for the EU ban.13 It process.pdf>, 7. Accessed 20.9.2009. 10  Mikael Eriksson, In Search of a Due Process: Listing and Delisting Practices of the European Union. 2009, , 22. Accessed 20.9.2009. 11 See for example Martin Nettesheim, “U.N. Sanctions Against Individuals – A Challenge to the Architecture of European Union Governance,” Common Market Law Review 44 (2007): 567–600 and Cameron, “UN Targeted Sanctions,” 159–214. 12  EU Court of First Instance, Organisation Des Modjahedines Du Peuple d’Iran v. Council of the European Union. Case T-228/02. 13  Council of the European Union, Follow-up to the Judgment of the Court of First Instance in Case T-228/02 – OMPI v. Council. Council Doc. 5418/3/07.

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was, however, precisely this British decision that was called into question by the CFI’s ruling in December 2006. The EU also kept the freeze of PMOI assets in force and the Council has maintained the PMOI on its terrorist list. In June 2007, PMOI therefore went back to the CFI to seek removal from the list and €1 million in damages.14 A month later, it launched yet another case seeking annulment of the latest EU Council Decision to include the group once again in the EU terrorist list,15 as well as several other cases in national courts.16 Following the December 2008 CFI ruling, which censured France for failing to disclose alleged new evidence that PMOI poses a terrorist threat, the EU foreign ministers ultimately agreed to remove the group from the list on January 26, 2009. It was the first time ever that the EU has delisted a group based on complaints about the EU’s secretive listing process. The PMOI case is important because it already has had significant repercussions on EU counterterrorism policy. Firstly, following the PMOI’s lead, a growing number of new challenges against EU terrorist lists have been lodged at CFI by various organizations from the list. In July 2007, for example, the court ruled that the EU regulations on the freezing of funds of Jose Maria Sison and Stichting al-Asqa (both based in Netherlands) were unlawful.17 In April 2008, CFI ruled against the inclusion of the Kurdish organizations Kurdistan Workers Party (PKK) and Kongra Gel on the EU terrorist list on the basis that they were not in a position “to understand, clearly and unequivocally, the reasoning” that led the EU MS governments to include them on the list.18 It also should be noted, however, that in September 2009, the Court of First Instance dismissed two applications for annulment brought by Mohamed El Morabit against the Council Decisions regarding his inclusion on the EU terrorist list. CFI ruled that the principle of the presumption of innocence is not breached by precautionary measures which do not amount to (criminal) sanctions, are not meant to prejudge guilt or innocence, are prescribed by law, are adopted by a competent authority and are limited in time. The Court also rejected the argument of Mr. El Morabit that the EU listing can only take place on the basis of a final and definitive judgment convicting a person of terrorism offenses. Finally, the Court also dismissed the applicant’s complaint that 14  Official Journal of the European Union, Action Brought on 9 May 2007 – People’s Mojahedin Organization of Iran v. Council. Case T-157/07. 15  Official Journal of the European Union, Action Brought on 16 July 2007– People’s Mojahedin Organization of Iran v. Council, Case T-256/07. 16  See Eriksson, In Search of a Due Process, 46. 17  Official Journal of the European Union, Judgment of the Court of First Instance (Second Chamber) of 11 July 2007 – Jose Maria Sison v. Council of the European Union. Case T-47/03. Official Journal of the European Union, Judgment of the Court of First Instance of 11 July 2007 – Stichting Al-Aqsa v. Council. Case T-327/03. 18  Official Journal of the European Union, Judgment of the Court of First Instance of 3 April 2008 – PKK v. Council. Case T-229/02. Official Journal of the European Union, Judgment of the Court of First Instance of 3 April 2008 – KONGRA-GEL and Others v. Council. Case T-253/04.

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a listing on the EC terrorism list violates the principle of proportionality because of the severe financial and social consequences for the person concerned.19 At least 10 other cases related to the EU’s own terrorist list are still pending.20 Secondly, in response to the PMOI ruling and the wave of new cases lodged at CFI, the EU reformed its procedures for listing and delisting. The General Affairs Council meeting on April 23–24, 2007 adopted a new policy that takes into account the relevant court judgments concerning the way in which individuals and groups are added to the 2001/931/CFSP list. Whereas prior to the PMOI judgment no mechanism existed for those proscribed to either receive an explanation for their inclusion or to challenge that explanation,21 the list is now to be reviewed every six months and the Council has to be informed via a “statement of reasons” of the specific information that forms the basis for the Council’s decision. Further, if the individual or group’s address is unknown, then a notice has to be published in the Official Journal indicating that they may submit a request to the Council to obtain its statement of reasons for maintaining them on the list. Persons and groups on the list should also be informed about the opportunity to make their views known and present observations or views which should then be taken into account by the Council before any decision is taken on whether to retain their name on the list.22 Furthermore, in June 2007 the Council approved the establishment of a formal Council working party charged with the implementation of Council Common Position 2001/931/CFSP that was supposed to remedy some of the shortcomings identified by CFI in the case of PMOI. In particular, it was supposed to establish more formal, transparent and court-proof procedures for listing and delisting, thus replacing the original ad hoc, informal and secretive working group known as the Clearing House.23 In practical terms, the new working party’s most important task is to assess the EU terrorist list every six months: Following the procedure, the Council makes a six-monthly administrative review, essentially asking whether the national decisions are still valid for each listed entity. The Council may look at such information established since the previous 19  Cases T-37/07 and T-323/07 Mohamed El Morabit v. Council, Judgment of the Court of First Instance of 2 September 2009. 20  For the most recent update, see http://www.statewatch.org/terrorlists/terrorlists. html. 21 Statewatch, “Terrorist” Lists – Monitoring Proscription, Designation and AssetFreezing. 2007, , accessed 30.11.2008. 22  Council of the European Union, Press Release – 2795th/2796th General Relations and External Affairs Council Meeting, Luxembourg, 23–24 April 2007, 8425/07 (Presse 80). 23  Established in September 2002, the Clearing House was the original EU platform for listing and delisting issues. Since March 2005, its primary role has been to discuss and advise the Council about what persons and entities to list and delist. Eriksson, In Search of a Due Process, 28–30.

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The meetings of the new working party are still secret but the rules of public access to EU documents should apply to it and each listed individual and entity has the right to challenge the decision made after the review. This can be done in two ways – via the aforementioned administrative-review procedure by the Council or via a legal procedure by the CFI, “which can undertake a legal review in regard to the treaties involved and the legality of the listing, such as whether the designating authority notified a statement of reason, the entity has been properly notified, and the EC has followed the proper procedures in a timely manner.”25 It is important to stress, however, that European courts do not consider the political reasons for imposing targeted sanctions. According to Elspeth Guild, this new EU (de)listing policy is “a fascinating development” because “it indicates the acceptance by the Member States, in the form of the Council, of the creation of a direct relationship between the EU in the CFSP (at least as translated with an EU regulation into an act capable of having effects on individuals) and the individual affected by the Member State’s act.”26 A more pessimistic opinion was offered by Statewatch, which welcomed the fact that the EU now provides affected parties with a “statement of reasons,” thus giving them the opportunity to write back to the secret EU group responsible for the decision to contest the statement and request delisting. At the same time, however, Statewatch criticized the fact that “the EU has maintained in the ‘terrorist list’ those groups and individuals who have already successfully challenged their proscription at the EU Courts on the grounds that its ‘reforms’ remedy the fair trial breaches that the Court has identified.”27 This reasoning was also questioned by PMOI’s second challenge to the Council’s decision to maintain them in the list and Ben Hayes of Statewatch noted that: There isn’t a lawyer in Europe who believes that the EU “reform” of its proscription regime amounts to the fair hearing that EU law demands. On the contrary, the regime remains a recipe for arbitrary, unaccountable and politicallymotivated decision making. By ignoring the increasingly clear message from the EU Courts, the Member States are doing themselves a great disservice.28 24 Ibid., 39. 25 Ibid., 40. 26  Guild, “The Uses and Abuses of Counter-Terrorism Policies in Europe,” 189. 27 Statewatch, Latest News and Documentation – Statewatch Terrorist Lists Site. 2008, , accessed 12.4.2008. 28 Ibid.

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Alternatively, Mikael Eriksson has pointed out that due to the recent changes, the EU’s listing and delisting procedures “are currently reasonably courtproof, at least in regard to their structure and when correctly applied.” But he also warned that implementation “sometimes fails to follow established procedures for such reasons as time factors, bureaucratic factors, political will, restrictive information sharing, coordination problems, practical problems, and the quality of the statements of reasons.”29 Furthermore, Eriksson also identified several persisting problems related to listing and delisting, including the following: 1. The definitions of who qualifies for listing remain vague, and secret decisions individual EU Member States take to the new Council working party cannot be taken to national courts, thereby failing to guarantee terrorism suspects fair and impartial treatment. 2. The time it takes to lodge an appeal against listing can sometimes be overly long and it remains difficult for listed entities to convince the Council’s working party that they should be removed. 3. So far, the ECJ has not asked upon what evidence the listing is based, but if it does so it could probably easily reject evidence that fails to fulfill basic legal requirements. The question really is how intelligence has been controlled and verified, as listing proposals are often based on intelligence that includes assumptions rather than such hard evidence as testimony and proven facts.30 The last point raises a more profound question concerning “initial proportionality and how basic human-rights instruments consider these aspects.”31 As discussed below, the answer to this question largely depends on what position one takes in the larger “justice versus security” debate, which in turn depends on the underlying relationship between the goal of policy-effectiveness and legitimacy of available counterterrorism measures. Judicial Challenges to EU’s Adoption of the UN Terrorist List Originally set up already in 1999, but greatly expanded after the September 2001 terrorist attacks, the UN consolidated terrorist list nowadays includes 393 individuals and 108 organizations suspected of having links with the Taliban or Al-Qaeda.32 All are subject to a worldwide freeze on their assets, save for basic 29  Eriksson, In Search of a Due Process, 41. 30 Ibid., 42–43. 31  Cameron, Iain. Respecting Human Rights and Fundamentals Freedoms and EU/ UN Sanctions: State of Play. Study prepared for the Subcommittee on Human Rights, European Parliament, October (2008). Cited in Eriksson, In Search of a Due Process, 43. 32  As of January 2010. For the most current list, see http://www.un.org/sc/ committees/1267/consolist.shtml.

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living expenses, along with a total travel ban outside their country of residence. In contrast to the EU’s post-9/11 list, where all those included on the EU list must either have been convicted of a terror-related offense or be subject to prosecution, and they now have a right to challenge their inclusion on the EU list (see above), both the listing and delisting criteria remain unspecified. This has been heavily criticized by a number of human rights groups because the 1267 Committee proceedings for drafting the list are secret and getting onto the UN terrorist list is relatively easy – it requires a unanimous vote by the UN Security Council’s sanctions committee (identical in membership to the Council itself) and any UN Member State can submit a name.33 In contrast, getting off is a lot more difficult: Requests for delisting have to be made either directly to the sanctions committee or through the affected person’s country of birth or residence, and the burden of proof lies with the petitioner. The petitioner has to convince the same people who previously held him to be guilty that he is innocent – a particularly onerous task when he has no access to the information that led to his inclusion on the list in the first place. In the list’s eight-year history, only 11 people and 24 organizations have been removed. 34 Although additional 14 individuals and four entities have been removed from the list since 2007,35 the overall numbers of delisted persons and entities are still rather low considering the length of the list. This is largely due to the fact that both the listing and delisting criteria are interpreted and applied by the political body which devised them, the UN 1267 Sanctions Committee. This was also one of the key reasons why the UN terrorist list came under fire from the UN’s own watchdog on human rights, which argued that if good reasons exist for imposing sanctions on someone, s/he should be prosecuted.36 The problem is that most of the listings on the UN terrorist list were supplied by the United States immediately after 9/11 on the basis of classified information, which was rarely shared with other UN MS.37 Few of those listed and arrested in the US, however, were ever charged with terrorism and the public statements by various US officials notwithstanding, apparently there had often been a rush to action without sufficient credible evidence. As one anonymous US government official admitted to The New York Times, “this is not normally the way we would have done things … We needed to make a splash. We needed to designate now and sort it out later.”38 According to Cameron, however, a number of other UN MS also seized the opportunity to propose names of political dissidents to the 1267 Sanctions Committee. They were 33  Vennemann, “Country Report on the European Union,” 29. 34  “UN Law: Coming up Trumps,” The Economist (London), February 2–8 2008, 59–60. 35  As of January 2010. For the most current list, see http://www.un.org/sc/ committees/1267/removed.shtml. 36  “UN Law: Coming up Trumps,” The Economist, 59–60. 37 Lopez et al., Overdue Process, 2. 38  Cited in Vlcek, “Acts to Combat the Financing of Terrorism,” 497.

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able to do so because “the resolution is ‘open-ended’ in that there is no connection between the targeted group/individuals and any territory or state.”39 The UN has recently acknowledged some of the critiques and, similarly to the EU, it has attempted to reform its listing and delisting procedures. Incrementally, the Sanctions Committee has adopted guidelines for its work, providing criteria for both listing and delisting. Measures have also been taken to ameliorate the negative effects of sanctions for listed individuals and the Security Council has provided for humanitarian exceptions delegating to states the power to release funds so as to permit the target to pay for specified exceptions, such as food, rent, etc.40 In the 2004 UN SCR 1526, the Council provided a (non-exhaustive) definition of “association with” Al-Qaeda and since 2007, a “statement of the case” has to be produced for all new listings, although neither groups nor individuals are able to challenge the contents of the statement.41 In 2006, the UN Security Council also established a “focal point” within the UN Secretariat responsible for processing submissions by listed persons requesting the lifting of sanctions. According to Christopher Michaelsen, the focal point provides a mechanism for affected persons to submit petitions directly and independently of diplomatic protection through their governments, but it does not give them the right to participate or be heard in the review process. The UN focal point therefore does not constitute an independent review mechanism and the 1267 Sanctions Committee is not obligated to grant a delisting request even if specific conditions are met.42 The affected parties are still denied access to the procedure and states have retained maximum discretion over who should be included or removed from the list. It is therefore not surprising that the new UN delisting procedures have been criticized as little more than “windowdressing,”43 pointing to the fact that the UN focal point has had little impact on due process rights in practice: “Since the focal point became operative in March 2007, the Committee has received a mere thirty-six de-listing requests (as of 2 April 2009). It appears that eight individuals and twelve associated entities have been de-listed through the focal point process.”44 As a more effective remedy to the arbitrariness of the UN, and therefore also the EU, listing procedures, Cameron has suggested that “in the same way as the renaissance King could do no wrong, but his ministers could, so too can the sanctions committee commit errors and be reviewed by an external body, without damaging the authority of the Security 39  Cameron, “Terrorist Financing in International Law,” 79. 40 Ibid., 80. 41  For a review of the delisting procedures, see http://www.un.org/sc/ committees/1267/delisting.shtml. 42  Cited in Lopez et al., Overdue Process, 5. 43 Securitycouncilreport.org, Targeted Sanctions: Listing and De-Listing and Due Process. January 2007, , accessed 30.5.2008. 44 Lopez et al., Overdue Process, 5.

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Council as such.”45 Question remains, however, as to which court the UN 1267 Sanctions Committee could be subordinated. As Lopez et al. noted, “Under no circumstances will the [UN Security] Council agree to a panel that has more than merely an advisory role. Nor will the Council agree to a review panel over which it does not have authority to select and approve members.”46 Moreover, the whole philosophy underlying the use of targeted sanctions holds that the Security Council itself “is not, and can never be, a judicial organ, and that the sanctions are part of the Security Council’s efforts to safeguard international peace and security, rather than judicial decisions.”47 Even in the case of the EU, where transposing the UN’s terrorist list into the EU legal order has proven to be highly problematic, it was uncertain until relatively recently that the ECJ would be willing to review UN Security Council resolutions: The EU’s challenge now is to incorporate UN sanctions lists and at the same time make sure that the listing actions at the UN follow adequate procedures that meet the standards that the European courts require. At the core of this situation is the problem that the European courts can only annul community acts when judging the listing practices. In this regard, the ECJ does not take those having originated in UN decisions into consideration.48

EU courts have indeed initially been reluctant to review the EU rules on terrorist assets freezing that were adopted on the basis of the aforementioned UN Security Council resolutions. Until recently, EU judges generally upheld the principle that UN Security Council decisions to freeze one person’s assets are not subject to judicial review by EU courts, on the basis of the argument that “the right of access to the courts is not absolute, … it is curtailed by the immunity from jurisdiction enjoyed by the Security Council.”49 Moreover, in the original September 2005 ECJ decision in the Al Barakaat case, the judges upheld the opinion of the Council and the Commission that: [T]he Court’s jurisdiction must be limited to considering whether the institutions committed a manifest error in implementing the obligations laid down by Security Council Resolution 1390 … Beyond that limit, any claim of jurisdiction, which would be tantamount to indirect and selective judicial review of the mandatory measures decided upon by the Security Council in carrying out its function of 45  Cameron, “UN Targeted Sanctions, Legal Safeguards and the European Convention on Human Rights,” 195. 46 Lopez et al., Overdue Process, 8. 47  Eling, “The EU, Terrorism and Effective Multilateralism,” 116. 48  Eriksson, In Search of a Due Process, 23. 49  Court of First Instance of the European Communities, Press Release No. 79/05, Judgments of the Court of First Instance in Case T-306/01 and Case T-315/0, 21.9.2005.

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maintaining international peace and security, would risk undermining one of the foundations of international relations of the Community and its Member States.50

This ruling has, however, been criticized for 1) removing the opportunity for the listed individual/firm to contest their inclusion on these lists via either ECJ or a national judiciary;51 2) implying that the Community is obligated to ensure that its members, who are also members of the United Nations, comply with UN SCR, thus raising the possibility of Community sanctions against non-compliant EU MS;52 and 3) implying that freezing terrorist assets represents a case where the rights of the majority supersede those of the minority/individual, thus leaving those on the terrorist lists with no rights in the name of greater security for the society at large.53 In January 2008, several of the aforementioned concerns were acknowledged by one of the ECJ’s eight independent advocates-general (with a rank equivalent to that of a judge), who argued that ECJ cannot “turn its back on the fundamental values that lie at the basis of the [EU’s] legal order and which it has the duty to protect.”54 Where those values were at stake, the court might have to annul UN Security Council measures, which generally take precedence over all other laws, domestic and international. In September 2008, ECJ accepted this reasoning when it annulled the Council Regulation freezing the assets of the Al Barakaat International Foundation of Sweden.55 Moreover, it found that the Court of First Instance previously “erred in law” in ruling that the Community courts had, in principle, no jurisdiction to review the internal lawfulness of the contested regulation: The Court concludes that the Community courts must ensure the review, in principle the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of 50  Cited in Vlcek, “Acts to Combat the Financing of Terrorism,” 499. 51 Tappeiner, “The Fight Against Terrorism,” 116. 52  See Torbjörn Andersson, Iain Cameron, and Kenneth Nordback, “EU Blacklisting: The Renaissaince of Imperial Power, but on a Global Scale,” European Business Law Review 14, no. 2 (2003): 121; and Cameron, “UN Targeted Sanctions,” 159–214. 53  Vlcek, “Acts to Combat the Financing of Terrorism,” 505. 54  “UN Law: Coming up Trumps,” The Economist, 59–60. 55  Al Barakaat foundation is part of a bigger Somali entity dealing, among other things, with cross-border money transfers. It has been on the UN terrorist list since late 2001, based on a US government request, even though no one has brought criminal counterterrorism charges against it thus far. Included on the UN list were also three Swedish citizens and the Swedish branch of the larger company. These have subsequently challenged at the ECJ the EU’s Common Position 2002/402/CFSP, which implemented the UN SCR 1390 within the territory of the EU. After massive diplomatic pressure from the Swedish government, two of the three Swedish citizens were eventually removed from the UN list.

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According to Labayle and Long, this was a landmark decision on the EU’s transposition of UN-based targeted sanctions, “as it stated that the courts cannot authorize any derogation from the principles of liberty, democracy, and respect for human rights and Fundamentals freedoms on which the EU treaties are based, but also noted the EU’s obligation to abide by international law.”57 In particular, ECJ confirmed that the EU Council was competent to adopt the freezing measures but affirmed that the freezing of funds of suspected terrorists can only be justified if affected parties are able to challenge the validity of the freezing order and the reasons for it. In this regard, the ECJ did not consider the UN review process to be sufficient and it therefore annulled the EC regulation giving effect to these UN designations, but allowed the Council three months to remedy the infringements, considering that the decisions to freeze the assets of Mr. Kadi and Al Barakaat might still prove to be justified.58 The EU’s presidency therefore approached the UN 1267 Sanction Committee, which then provided narrative summaries of reasons, of which the EC later informed both entities, and the EC then decided to continue the restrictive measures. Both Mr. Kadi and the Al Barakaat Foundation subsequently brought an action for annulment of the new regulation before the CFI.59 These were followed by a number of other cases related to the EU’s transposition of the UN terrorist lists.60 Perhaps most importantly, however, because of pressure from the EU, the UN Security Council adopted SCR 1822, which introduced stronger review mechanisms of listings, enhanced procedures to help ensure that listed individuals and entities are notified of the action taken against them, and mandated public release of statements and narrative summaries of reasons for listing. The resolution also mandated the UN 1267 Sanctions Committee to review all the names on the UN terrorist list by June 30, 2010 “in order to ensure the Consolidated List is as 56  Official Journal of the European Union, Judgment of the Court (Grand Chamber) of 3 September 2008 Yassin Abdullah Kadi, Al Barakaat International Foundation v. Council of the European Union, Commission of the European Communities, United Kingdom of Great Britain and Northern Ireland, Joined Cases C-402/05 P and C-415/05 P. 57 Labayle, Henri and Long, Nadja. Overview of European and International Legislation on Terrorist Financing. Directorate General Internal Polices, Policy Department C, Citizens’ Rights and Constitutional Affairs, Brussels, European Parliament, 2009. Cited in Eriksson, In Search of a Due Process, 31. 58 It is important to note that EU courts do not consider the political reasons for targeted sanctions imposition. 59  Cases T-45/09 Al Barakaat Foundation v. Commission and Case T-85/09 Kadi v. Commission. 60  As of late 2009, nine such cases were pending in the CFI and two in the ECJ. Eriksson, In Search of a Due Process, 44.

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updated and accurate as possible and to confirm that listing remains appropriate,” and thereafter conduct “an annual review of all the names that have not been reviewed in three or more years with the same objectives.” Despite these recent improvements in listing/delisting mechanisms, the UN Security Council procedures still do not meet fundamental human rights standards because the information upon which a listing decision is made cannot be examined or challenged in a judicial proceeding. The Eminent Jurists Panel of the International Commission of Jurists, for example, received “virtually uniform criticism” of this system, which is deemed “arbitrary” and discriminatory by numerous nations and international agencies. The Panel itself described the UN listing system as “unworthy of international institutions such as the United Nations and the European Union.”61 According to Lopez et al., “the crux of the dilemma” is that “[p]roposals that would fulfill the due process requirements of international human rights law are politically infeasible, whereas proposals that may gain support from the Council contain shortcomings as far as internationally guaranteed due process rights are concerned.”62 As a consequence, Lopez et al. advocated the need to follow three parallel paths for achieving greater due process rights – legal challenges, advocacy of structural change and lobbying for incremental improvements.63 The problem is, however, that some EU MS have actually in some instances preferred the opaque UN listing procedure instead of freezing funds under national law, which would have been liable to national judicial review. One such listing has been recently challenged in the UK’s Supreme Court and according to Guild, “there appears here a transparent use of the Security Council as a venue through which to wash national executive decisions which otherwise would be subject to judicial control of their vulnerability to court supervision in the interests of the individual. Politics trumps judicial oversight for the protection of the individual.”64 At the EU level, nevertheless, legal challenges have already led to revisions of the Council Regulation 881/2002 that regulates the implementation of the UN SCR 1267 and the revisions made in UN SCR 1822. Based on a proposal from the Commission, the Council revised its original regulation in December 2009 so that it now includes the following provisions: 1. Upon notification of a new UN 1267 Sanctions Committee listing accompanied by a statement of reasons, the Commission is to make the corresponding EU (technically EC) listing via a Commission Regulation. 2. The Commission should then communicate the statement of reasons provided by the UN Sanctions Committee to the newly listed person or 61  Cited in Lopez et al., Overdue Process, 2. 62 Lopez et al., Overdue Process, 7. 63 Ibid. 64  Elspeth Guild, “EU Counter-Terrorism Action: A Fault Line Between Law and Politics?” paper presented at the 51st ISA Annual Convention, New Orleans, February 2010, 13.

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entity. If the person or entity responds with comments, the EC must order a review of the listing and then propose a course of action of either keeping the listing or delisting it. 3. This proposal should be submitted for consideration to a committee of EU MS, which would have the power to overrule the Commission’s proposal with a qualified majority. If it does so, the Council of Ministers would have to decide the matter. If the committee agrees, the EC’s proposed course of actions would stand. 4. The EC would then communicate any comments or objections it received from the listed party and the result of the review to the UN.65 According to Eriksson, these new procedures could increase the Commission’s administrative burden to the point that its current resources allocated for sanctions issues would not be sufficient to cope with the new workload. Moreover, he also pointed out that while the EU has recently taken many steps to revise and strengthen its targeted sanctions practices in combating terrorism, “several of these legal and administrative improvements have followed EU court decisions, rather than resulting from initiatives coming from the Council per se.”66 This confirms the importance of the availability of judicial review for those individuals and entities placed on terrorist lists, as well as the important role of EU courts in shaping the often uneasy balance between justice and security. Opinions of Interviewed Counterterrorism Practitioners The interviewed EU counterterrorism practitioners expressed a variety of opinions when asked to comment on the justice and/or/versus security debate. Many were reluctant to say anything, stating that “this is a political question.” Those who responded mostly argued that they do not have the feeling that EU measures are being abused for non-counterterrorism purposes, or claimed that they have “not seen any examples yet.”67 One interviewed official even argued that many European scholars “seem to believe in a mistaken notion that the EU has a vast arsenal of counterterrorism measures, all with major potential for abuse. This is not the case; EU is not Orwellian and its institutions have mostly little say in the fight against terrorism.”68 Only few interviewed practitioners explicitly admitted to have some concerns about potential human rights abuses but all have argued 65  Council of the European Union, Council Regulation (EU) No 1286/2009 of 22 December 2009 Amending Regulation (EC) No 881/2002 Imposing Certain Specific Restrictive Measures Directed Against Certain Persons and Entities Associated with Usama Bin Laden, the Al-Qaida Network and the Taliban. OJ L 346/42. 66  Eriksson, In Search of a Due Process, 32, 37. 67  Interview with an anonymous EU official, October 2008. 68 Ibid.

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that the Lisbon Treaty will be helpful in this regard. The more critical comments came from a Europol official, who stated the following: “When it comes to questions of oversight, I think that EU legislation is being discussed and examined at various levels. When it comes to question of civil rights and the direction the counterterrorism legislation is heading, there we could have a debate.”69 Only the head of the Counter-terrorism Team at Eurojust admitted that the balance between security and justice “clearly is an issue; it is at stake, and we cannot gather information for the sake of the pleasure of it.”70 Perhaps not surprisingly, none of the interviewed EU officials identified any major justice and/or/versus security issues in the agenda of his/her EU institution/ agency. According to the interviewed Europol and Eurojust practitioners, the nature of the day-to-day counterterrorism work is nevertheless bound to raise suspicion and even criticism because sometimes the lines are quite blurred: “For example, it is quite difficult to make a difference between a political speech and a hatred speech which can lead to beheading and murders.”71 Moreover, some have noted that these dilemmas cannot be always avoided by the counterterrorism agencies going public. This is primarily because many CT practitioners seem to share the fear of the “unknown unknowns” that was famously expressed by the former US Secretary of Defense Donald Rumsfeld. As such, some practitioners find even preventative actions limiting some liberties justifiable as long as they lead to provision of greater security: We cannot afford to have networks and cells going on because we do not where they are. If we look at a terrorist scenario like the alphabet, from A to Z, we get some information, but we do not know where we are. Are we at Z or are we K? The terrorist scenario is in the head of the terrorists, not in our head. So at a certain moment, based on indicators and based on experience, you have to decide whether we need to react and get in and that also hampers the effectiveness of EU counterterrorism efforts because people say: “Ha, you arrest a lot of people but how many end up behind bars?” But we provide security by arresting them. If we arrest them, we can go and pursue house searches, do seizures and from those seizures, we learn.72

As an example of a specific outcome of such an investigation, one Europol official mentioned the recent EU security regulation forbidding passengers from carrying liquids on board aircraft:

69  Interview with a Europol official, September 2009. 70 Interview with Michèle Coninsx, chair of the Counter-Terrorism Team of Eurojust, September 2009. 71 Ibid. 72  Interview with a Europol official, September 2009.

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EU Counterterrorism Policy The best result is now the regulation on liquids at airplanes. This is a result of a direct impact of an investigation into day-to-day life, which, even if we do not like it that our bottles are taken away before departure, is producing security. We call it the area of security, freedom and justice where we should travel freely with everything we want to take, but there are certain limitations.73

In practical terms, this means that since November 2006, European air passengers have been allowed to carry liquids on board only if they are in containers of less than 100 milliliters and held in a transparent, resealable plastic bag to be checked by airport security officials. These restrictions have been criticized for causing confusion and delays at European airports and the European Parliament even passed a resolution calling on the Commission to review the liquids ban on the basis that “the costs engendered by the regulation may not be proportionate to the added value achieved by additional security provisions.”74  While it is beyond the scope of this chapter to determine whom the public should trust more when it comes to measures against the “unknown unknowns,” it seems useful to reiterate at this point the methodological difficulties that apparently both academic researchers and counterterrorism practitioners are struggling to deal with. Not only, as discussed in Chapter 1, is it inherently difficult to measure the effectiveness of the fight against something that is like an iceberg with a visible top and a massive invisible bottom, it is also extremely difficult for practitioners to find the right balance between effectiveness and visibility of dayto-day counterterrorism as well as its long-term results: We are always at a difficult position as police officers because every time we arrest somebody, we put it on our official piece of paper which then goes to the court and there it immediately goes to the lawyer. And the lawyer says that it is exactly the time when my defendant was spotted by the police. So our ammo is exposed all the time in an asymmetric struggle, where we are in the race to find the Achilles heel of the terrorists before they find ours.75

Moreover, even those EU practitioners who would normally argue for strong civil liberties protection in the course of counterterrorism investigations do acknowledge the hard dilemmas in extreme situations when the “bomb may be already ticking.” The head of the Counter-terrorism Team at Eurojust, for example, stated the following:

73 Ibid. 74  Euroactiv.com, “Parliament Wants Liquid Ban on Planes Eased,” 6.9.2007 , accessed 13.11.2009. 75  Interview with a Europol official, September 2009.

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Overall I feel quite comfortable [with balancing justice and security], it is of course always the work of judges, prosecutors and policemen to make this work in practice, but again it is always the case that a physical act needs to be translated into a terrorist offence. And if all the ingredients are not present, it stops, it is as simple as this. And if you cannot have information in a legal way or you simply do not have it, it stops again. But when lives are at stake, can we modify this? There you have to be very mature and balanced but this is the work of policemen, prosecutors and judges. It is part of our daily work and it is a concern of every practitioner in this field.76

According to some scholars, however, this type of thinking is precisely part of the problem because it presupposes the existence of an ideal counterterrorism practitioner. In the real world, “criminologists have shown, that, even in democracy, police and intelligence services will not always find what they are looking for, but they will find something on someone after an extensive search. … That is why the police cannot be the judge of bad and good, legal and illegal.”77 Current State of Affairs and Future Prospects Concerning the “security first” strand, the aforementioned analysis of key EU legal instruments in the fight against terrorist financing suggests that the political impetus from the Madrid and London terrorist attacks has indeed been sometimes used as a justification for security taking priority over freedom. Some experts have even pointed out that the underlying expectation of the Council has been that an effective EU counterterrorism policy “will, as a consequence, lead to greater freedom, not the reverse.”78 According to Amnesty International, this may eventually lead to the portrayal of human rights “as a potential barrier to effective protection from ‘terrorist’ acts,” which in turn has allowed some to argue that “the threat of ‘terrorism’ can justify limiting or suspending human rights.”79 It should be also noted that further explicit calls for more securitization and less concern for liberty when it comes to counterterrorism have been made at the national level 76 Interview with Michèle Coninsx, chair of the Counter-Terrorism Team of Eurojust, September 2009. 77  Bigo, “Liberty, Whose Liberty?,” 42. 78  Thierry Balzacq and Sergio Carrera, “The Hague Programme: The Long Road to Freedom, Security and Justice,” in Security Versus Freedom? A Challenge for Europe’s Future, ed. Thierry Balzacq and Sergio Carrera (Aldershot: Ashgate Publishing Company, 2006), 18. 79  Amnesty International, Human Rights Dissolving at the Borders? Counterterrorism and EU Criminal Law, IOR 61/013/2005. 31.5.2005, , 2. Accessed 5.6.2009.

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in several EU MS, especially those most affected by terrorism. After the London terrorist attacks in July 2005, for example, former UK Home Secretary Charles Clarke addressed the European Parliament with the following words: “European Union States may have to accept an erosion of some civil liberties if their citizens are to be protected from organized crime and terrorism … [T]he human right to travel on the underground on a Thursday morning without being blown up is also an important right.”80 These words were accompanied by a vigorous diplomatic action aimed at upgrading the EU counterterrorism policy along the lines of the then newly introduced British Terrorism Bill, which stirred acute controversy during the summer of 2005, at both the national and European levels.81 The second “balancing” strand has been presented by many analysts as a possible middle ground that would somehow satisfy those opinions which acknowledge the need to adopt new, and possibly harsher, counterterrorism measures, but which also recognize the existing concerns regarding the lack of democratic input and control, along with the importance of the rule of law and protection of human rights. As the EU counterterrorism coordinator noted: Indeed, you need to strike the right balance between the expectation of citizens to have more security, through more intrusive technologies, like detection portals or biometrics, and the need to recognise that you will never have a 100 percent security. … And the right mix is important, because having a 100 percent surveillance society is a George Orwell nightmare and nobody wants that, but people are ambivalent. Sometimes, when your car is stolen, you would like to have the most efficient tool to recover your car, but at the same time you don’t want other people to know where you go with that same car.82

In the context of the EU counterterrorism policy, concerns about the “right mix” have become especially paramount to many legal commentators due to the exceptional swiftness with which the EU Council adopted its own counterterrorism measures, as well as due to the often uncritical adoption of external standards and measures with minimal transparency, scrutiny and accountability at the EU level. While on the one hand speedy adoption of new laws can be seen as an exercise in exceptionally efficient decision-making, on the other hand it can be argued that the swifter the EU law-making, the bigger the tension between democratic 80  Charles Clarke, UK’s Home Secretary, Liberty and Security: Striking the Right Balance. European Parliament, October 2005, , accessed 19.1.2009. 81  United Kingdom Presidency of the European Union, Liberty and Security. Striking the Right Balance. 12.10.2005, , accessed 15.5.2008. 82  EurActiv.com, De Kerchove: ‘We Must Help the Americans Close Guantanamo, 20.9.2008, , accessed 6.4.2010.

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accountability and efficiency within the EU.83 Alternatively, as a report by Amnesty International put it: Unfortunately, amid the flurry of recent counter-terrorism initiatives both in the EU and beyond, the concept of human rights and the rule of law as the basis for genuine security has been lost all but in the rhetoric. In its policies and legislation on counter-terrorism, the EU has failed so far to properly address the serious issue of the protection of fundamental rights.84

Similarly, while on the one hand the adoption of global standards designed by the UN, FATF and other external bodies may be seen as both convenient and necessary due to EU and/or EU MS membership in these bodies, many of these standards have proven to be rather ill-suited for the specific EU circumstances (see Chapter 8). In addition, as Mitsilegas pointed out, global emergency counterterrorism action in the aftermath of 9/11 has not resulted in the adoption of measures in the form of the traditional multilateral “hard law” conventions at the level of the United Nations. Rather, global standards have been adopted and promoted principally under the format of what legal scholars have labeled as “global administrative law”85 and what international relations scholars referred to as “networked world order.”86 The problem is that in contrast to expressly binding hard law standards, standards at the level of “global administrative law”: 1. are put forward by a limited number of states without the need for a global consensus; 2. are adopted with a minimum of transparency; 3. are adopted speedily (a factor which may explain the appeal of this form of normative production in times of perceived emergency); 4. are not explicitly legally binding rules of general application, but in reality have far-reaching consequences for law reform across the world.87

83 Douglas-Scott, “The Rule of Law in the European Union – Putting the Security in the Area of Freedom, Security and Justice,” 220. 84  Amnesty International, Human Rights Dissolving at the Borders? Counterterrorism and EU Criminal Law, 2. 85  Benedict Kingsbury, Nico Krisch, and Richard B. Stewart, “The Emergence of Global Administrative Law,” Law and Contemporary Problems 68, no. 3 (2005): 15–61. 86  Anne-Marie Slaugher, “Sovereignty and Power in a Networked World Order,” Stanford Journal of International Law 40, no. 2 (2004): 283–327. 87  Valsamis Mitsilegas, “The External Dimension of EU Action Against Terrorism: Challenging European Values with Minimal Accountability,” paper presented at the 51st ISA Annual Convention, New Orleans, February 2010, 3–4.

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It is therefore not surprising that the wisdom of the hitherto uncritical adoption of external counterterrorism standards by the EU has been questioned on justice grounds and a growing number of legal challenges are pending in the EU courts. Moreover, as already discussed in Chapter 4 in the context of EU MS’ preference for informal, non-EU networks for intelligence sharing and police cooperation in the area of counterterrorism, some experts also find problematic the fact that so much of the detail and implementation of the external standards is determined by transnational administrative bodies of international organizations and/or informal ad hoc groups of national officials that are not directly subject to control by national governments or domestic legal systems.88 Specifically, according to Balzacq and Carrera, there is a danger that initiatives such as the Prüm Treaty will “turn the EU into a shadow body that legitimizes instruments ratified by certain of its members, on different occasions, within different settings.”89 The third “freedom first” strand of opinions considers the very idea of a balance between freedom and security as misguided. This view has been particularly advanced by several scholars participating in the CHALLENGE Project, whose aim was to respond to “widespread concerns about the resort to specific illiberal practices by contemporary liberal regimes.” In their final project report, Bigo, Carrera and Guild argued that the balance metaphor erroneously considers liberty and security as analogous “values” which can be compared (and evaluated) with and weighed against each other: Our research has shown that such a “balancing picture” has actually favoured the development of a conception of security equal to coercion, surveillance, control and a whole series of practices of violence and exclusion. A concept of security has also favoured claims about collective security, “global threats” and “worst case scenario” situations, which have too often led to measures and practices outside of democratic accountability and judicial oversight (rule of law) and constituting a challenge to fundamental human rights.90

Instead, the CHALLENGE project report suggested that security actually “only comes from the respect and protection of human rights and fundamental freedoms through the rule of law” and liberty should therefore be placed “as the starting principle on which the EU’s AFSJ should be rooted and developed.”91 This is 88  Kingsbury et al., “The Emergence of Global Administrative Law,” 16. 89  Balzacq and Carrera, Security Versus Freedom?, 295. 90 Didier Bigo, Sergio Carrera, and Elspeth Guild, The CHALLENGE Project: Final Policy Recommendations on the Changing Landscape of European Liberty and Security. Center for European Policy Studies, September 2009, , 3. Accessed 17.3.2010. 91  Bigo et al. The CHALLENGE Project: Final Policy Recommendations on the Changing Landscape of European Liberty and Security, 3–4.

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because even the Treaty on European Union states that “the EU is rooted in the principle of freedom”92 and security should therefore represent “only a tool in support of freedom.”93 In practice, however, the reverse has often been the case: “The Hague Programme appears to marginalise the protection of fundamental rights and freedoms (liberty), the principle of equality and of democratic accountability and judicial control. The overall priority which guides the programme remains clear: strengthening security understood as coercion.”94 An earlier CHALLENGE project report has also argued that already the 1999 Tampere Programme had in fact rejected the balancing metaphor in the relationship between freedom and security by advocating a “shared commitment to freedom based on human rights, democratic institutions and the rule of law” as the starting paradigm.95 Several “freedom first” proponents have therefore also argued that academics should more actively challenge the prevalent securitizing discourses and ideas, including the supposed trade-off or balance between freedom and security. This is primarily because they see EU counterterrorism policy “as the expression of a wider historical trend for the dominance of ‘security professionals’ that push for ever more powerful tools for ‘surveillance.’”96 Drawing inspiration from Foucault’s analysis of modern political order as being built on highly sophisticated technologies of social control, they further argue that the EU as such is part-andparcel of this historical trend of empowering transnational expert networks at the expense of wider democratic participation: In more concrete terms, national security actors have used the more removed and unaccountable EU structures to “agree on things in Brussels they would not have obtained at home.” Consequently, the fact that EU counterterrorism has become stable and “technical” could be interpreted as the normalisation and institutionalisation of previously “exceptionalist,” i.e. illegitimate, practices.97

Thus, in order to challenge the notion that the EU’s increasingly stable and technical security-oriented counterterrorism policy offers a “rational” and uncontroversial response to terrorism, the European Parliament and the European Court of Justice, as well as transnational civil society, “must counterbalance the dominance of security experts. … Otherwise, each crisis or terrorist attack may lead to a new 92  “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights.” Treaty on the European Union, Articles 2, 3(1) and 3(5), respectively. 93 Didier Bigo et al., The Changing Landscape of European Liberty and Security: Mid-Term Report on the Results of the CHALLENGE Project. 20.02.2007, , 15. Accessed 21.11.2008. 94 Ibid., 14. 95 Ibid. 96  Bossong, The EU’s Mature Counterterrorism Policy, 24. 97 Ibid.

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security policy that would not have been acceptable under ‘normal’ conditions of decision-making.”98 A similar argument has been advanced by den Boer, who argued that: [S]ocieties in the European Union seem to transform themselves from risk societies to anxiety societies where the presuppositions of collective fear and the sheer impossibility to control the unknown are the instruments of politicians to justify new legislation, action programmes and budgetary re-allocation. … [The important question is] to what extent the exceptional situation (a permanently high emergence alert) becomes the rule and whether the usage of crisis instruments is eternalized in an era of relative peace and stability.99

According to den Boer, the answer to this question is positive because due to the prevailing ad hoc, incremental policy-making in the EU’s former third pillar, “it seems that the exception is quietly achieving a state of permanency: democracies progressively recreate themselves as tyrannies in which surveillance powers become general instruments of control.”100 The starting point for tackling the “security first” approach, according to Bigo, is to reveal its two “illiberal confusions:” 1. the idea that security is a liberty and the first liberty; 2. the idea that personal safety of an individual (and of all of them) is the collective security, and as such, state security. The former is usually based on the “nothing to hide from police” argument, which has historically been used in periods of crisis and has “always profoundly damaged the freedom and civil liberties of all persons living in the place of its application.” The latter is problematic because “its promoters try to confuse people by hijacking the characteristic of rights of their personal safety and to confer it to the secret services seen as the protectors (and not a danger) for the individuals.”101 Alternatively, echoing the human rights and legitimacy concerns discussed in this chapter, Edwards and Meyer called for a way to respond to terrorism “in a way that does not compound the accountability deficits of European governance nor undermine civil liberties.” In particular, they want the securitization processes “to be made explicit, slowed down or even reversed. Resisting securitization would create the space for more rational, informed and proportionate debates and

98 Ibid, 24–25. 99 Monica Den Boer, “Fusing the Fragments. Challenges for EU Internal Security Governance on Terrorism,” in International Terrorism. A European Response to a Global Threat? ed. Dieter Mahncke and Jörg Monar (Brussels: Peter Lang, 2006), 84. 100 Ibid., 84–85. 101  Bigo, “Liberty, Whose Liberty?,” 42.

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responses, rather than hastily implemented but permanent legislation with more negative side-effects than specific benefits.”102 It should also be noted, however, that according to some experts, the metaphorical liberty-security pendulum has already began shifting back toward liberty due to lack of new terrorist attacks since the attacks in Madrid and London. As the memories of the last major attacks fade, “the security-liberty pendulum has clearly swung back, as the questions of civil liberties and data protection have become increasingly central in Brussels, particularly at the European Parliament, as shown in the passionate debates on the Commission’s proposal to criminalize incitement.”103 Similarly, a number of experts participating at a recent conference titled Internal Security Policies in the European Union – After the Stockholm Programme: An Area of Freedom, Security and Justice in the European Union?, argued that the Stockholm Programme priorities try to strike a more nuanced relationship between security due to the realization that effectiveness of AFSJ policies cannot be assessed outside of a larger normative framework. As one speaker noted, “the justice argument is making a comeback. After 9/11 the prevalent thinking was that the primary right is security but this is no longer the case.”104 From the analysis presented in this chapter, it also appears that European courts have, albeit belatedly, offered recourse for both individuals and entities unduly affected by some of the EU’s legal counterterrorism measures. Finally, as discussed in the following chapter, the Lisbon Treaty should also be helpful although it is yet too early to assess its real impact on the complex relations between liberty, justice and security at both the national and EU levels.

102 Ibid., 20. 103  Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 116. 104  University of Salford, Centre for European Security, January 28–29, 2010. Chatham House Rule applies.

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Chapter 10

Scenarios of Future Developments in EU Counterterrorism Policy This chapter offers an outline of three scenarios of plausible future developments of the EU counterterrorism policy and a brief assessment regarding their likelihood to materialize in the foreseeable future. These include a return to the purely intergovernmental cooperation based on the TREVI model; a major supranational leap forward towards the creation of something akin to United States of Europe; and an arguable middle ground represented by the calls for, and a few specific outlines of, a new EU counterterrorism strategy. The analysis of these three scenarios is complemented by a succinct overview of the likely future changes to EU counterterrorism policy due to the eventual adoption of the Lisbon Treaty. The chapter concludes with a discussion of the emergence of “counterterrorism fatigue” in the EU. Back to TREVI The first scenario can be called “back to TREVI,” as it would amount to a return to the purely intergovernmental cooperation initially pursued among EU MS in the 1970s and 1980s. While such a course of developments may seem unlikely to many at the moment, already in the 1990s, “it was said that some senior officials, now struggling with complex EU institutional structures and legal rules, were suffering from ‘TREVI blues’ and looking back with nostalgia to the pragmatism and simplicity of those early years.” More recently, according to Zimmermann, something along the lines of the “TREVI blues” was proposed to the EU MS’ ministers of interior by the EU’s High Representative Solana and then EU Counterterrorism Coordinator de Vries in June 2004. Specifically, they recommended that the ministers should meet in the Counter Terrorist Group (CTG) for regular consultation, which would allow for more efficient cooperation on the front of analysis exchange, while also paving the way to improved operational cooperation: The primacy of Member States’ competence in intelligence matters would therefore not be challenged or in any way prejudiced, but, it is hoped, they would be working more closely together through CTG. For all intents and purposes,  Monar, “Common Threat and Common Response?,” 292.

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This alternative clearly implies an even more frequent resort of some EU MS to non-EU cooperation mechanisms like the CTG, G6 and/or the Prüm Treaty, possibly using the new “emergency brake” and “enhanced cooperation” procedures envisaged in the Lisbon Treaty (see below). Such a scenario, however, would necessarily be open to criticism on efficiency and legitimacy grounds (see Chapter 4). Perhaps even more importantly, the ever increasing utilization of non-EU arrangements de facto introduces new elements of “variable geometry” into the field of cross-border cooperation in the area of JHA, thus making it increasingly difficult for all 27 MS to agree on future developments. While some observers refer to the Prüm Treaty as “Schengen III” and hope that (similarly to the 1985 Schengen Agreement) it will push European integration forward, other experts have been rather critical of such limited-participation and strictly intergovernmental arrangements among few, self-selected EU MS: The Treaty of Prüm undermines the EU’s ability to become an efficient policymaking body in the field of security. To start with, by setting up exclusive and competitive measures that seek to address threats that affect the EU as a whole, it blurs the coherence of EU action in these fields. Second, by developing new mechanisms of security that operate above and below the EU level, it dismantles trust among Member States.

For similar reasons, the G6 has been regarded “as a privileged mechanism of enhanced co-operation within the EU, regarded with some jealousy by some smaller MS such as the Netherlands that are not allowed to participate.” It is indeed rather ironic that official EU counterterrorism structures are already being circumvented by precisely those MS which have traditionally been the most active in this area – i.e., the original G5 countries plus Belgium and Netherlands. This “reinforces the idea that while member states are aware of the necessity of further European cooperation, they are still reticent to provide the EU with all the competencies and resources to produce truly efficient action.” Some legal analyses go a step further and indicate that the Prüm Treaty actually breaches the   Zimmermann, “The European Union and Post-9/11 Counterterrorism,” 136.  See O’Neill, “A Critical Analysis of the EU Legal Provisions on Terrorism,” 40, 42; and Jörg Monar, “The Dynamics of Justice and Home Affairs: Laboratories, Driving Factors and Costs,” Journal of Common Market Studies 39, no. 4 (2001): 747–64.   Balzacq et al., “Security and the Two-Level Game,” 17.   Den Boer, Hillerbrand, and Nölke, “Legitimacy Under Pressure,” 119.   Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 199.

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law of the European Union because the contracting states “evaded the substantive and procedural requirements of enhanced cooperation” in the Treaty of Nice. On the other hand, it is plausible to argue that in the absence of a shared perception of terrorist threats across Europe (see Chapter 2), structures like G6 and treaties like Prüm may be the only way to force those EU MS, for whom counterterrorism is a low priority, to take the threat of terrorism in Europe seriously. There are, however, at least two problems with such a strategy. Firstly, as already noted above, the “laggards” will inevitably view the non-EU structures and treaties with a great deal of suspicion. Secondly, as also already discussed in Chapter 4, the informal non-EU structures suffer from a number of weaknesses and shortcomings. Perhaps most importantly for the present discussion, they increase the overcrowding of the already complex institutional setting and thus further amplify the complexity of coordination. Furthermore, since they usually engage only a subset of the EU MS, they produce a dispersion of counterterrorism policies, thus in principle eroding the harmonization efforts in combating what is in fact a transnational terrorist threat. Forward to United States of Europe The opposite of the “back to TREVI” scenario is represented in the currently equally theoretical possibility that the Union “becomes one in earnest,” i.e., the closest thing to a United States of Europe. While certainly not going that far, the now defunct Constitutional Treaty was seen by some as the first step in this direction. Especially the so-called Solidarity Clause, which was later also included in the Lisbon Treaty, contains a range of forward-looking elements that have the potential to contribute to the dissolution of boundaries between EU internal and external security and between crisis management and defense: The Union and its MS shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the MS, to: – prevent the terrorist threat in the territory of the MS; – protect democratic institutions and the civilian population from any terrorist attack;

  European Union Committee UK House of Lords, “Prüm: An Effective Weapon Against Terrorism and Crime?” 18th Report of Session 2006-07. 9.5.2007, , accessed 17.4.2008.   Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 201–2.   Zimmermann, “The European Union and Post-9/11 Counterterrorism,” 136–7.

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The type of assistance to be offered is not specified and the arrangements for the implementation of the clause “shall be defined by a decision adopted by the Council acting on a joint proposal by the Commission and the High Representative of the Union for Foreign Affairs and Security Policy.”11 In practice, according to Ekengren, the instruments required for realization of the Solidarity Clause are being developed “at a great rate” – already in 2006, there were “no less than 25 to 30 systems led by the Commission and Council Secretariat in Brussels for information, early warning, rapid reaction, coordination and mutual support for everything from rescue services and the spread of infectious diseases to natural catastrophes and preventative measures in unstable regions.”12 Clearly, not all of these measures should be understood as a response to terrorism only, but they represent important evidence of a growing capacity of potential use in the EU’s counterterrorism arsenal. At the same time, however, it is important to stress that existence of a capacity is just the first step because any possible activation of the Solidarity Clause is further dependent on two factors: 1) which MS is affected and 2) what sort of a catastrophe occurs. These factors in turn raise a number of key theoretical questions: Whose security? What will the EU secure? What constitutes a crisis for the EU? What is the EU providing security against? Does EU security apply to democracy and institutions in member states and/or at the EU level and to the member states or the EU’s population? What made the bomb attacks in Madrid an EU crisis? Why was the clause not invoked in the case of the London Underground bombings in the summer of 2005?13

These classic “who, when and how” security questions have not been satisfactorily answered at the EU level thus far and it is not likely that they will be addressed any time soon due to the lack of shared perception of the terrorist threat and the MS’ continued preference for cooperation and coordination rather than any form of integration in security issues. Thus, as of early 2010, a fully supranational EU

10 The Lisbon Treaty, Art. 222, para. 1. 11 Ibid., para. 3. 12  Magnus Ekengren, “Terrorism and the EU: The Internal-External Dimension of Security,” in The European Union and Terrorism, ed. David Spence (London: John Harper Publishing, 2007), 39. 13 Ibid., 30–53.

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with a full-fledged counterterrorism policy does not appear to be a likely scenario for the foreseeable future. A New EU Counterterrorism Strategy Although the majority of interviewed EU officials expressed their satisfaction with the current EU counterterrorism strategy, outlining of a new EU counterterrorism strategy represents another alternative that has been already called for: [W]hat the EU needs most of all is a clear counter-terrorism strategy to guide and inform the work of the disparate EU institutions and the member-states. The EU’s plethora of committees and its action plan of 150-plus measures are useful. But the institutions will not have much effect over the long-term unless they work towards the same well-defined objectives.14

As noted in Chapter 3, some experts have argued that the current EU Counterterrorism Strategy is more of a “shopping list” rather than a real strategy offering a coherent and ranked set of policy objectives. They also point out that several EU MS have developed sophisticated national counterterrorism strategies, from which the EU can learn.15 In addition, there has been substantial criticism of the 2003 European Security Strategy, which recognized terrorism as a major threat, but lacked any new ideas on how to address it.16 Perhaps most importantly, both the 2005 EU Counterterrorism Strategy and the 2003 European Security Strategy largely maintained an increasingly artificial separation of internal and external security, although contemporary terrorist groups clearly ignore such a distinction. Similarly to the vetoed Constitutional Treaty, the Lisbon Treaty includes steps to strengthen the EU’s action in foreign policy and to interlink it more with the internal EU policies. But overall, even the Lisbon treaty keeps the former CFSP pillar quite detached from the newly merged Community and JHA pillars and therefore it is not likely to completely eliminate the internal-external security divide in EU policy-making (see below). This is a significant shortcoming because the rigid legal division into pillars represents as an important obstacle to institutional consistency by contributing to a dispersion of efforts as well as political responsibility in the area of counterterrorism. Furthermore, the pillar structure has impeded the establishment of a dedicated body dealing exclusively with counterterrorism policy-making, which considerably hampers the efficiency of the EU as a policy-maker as progress may be blocked

14  Keohane, The EU and Counter-Terrorism, 22. 15  Keohane and Brady, Fighting Terrorism. 16  Keohane, “The Absent Friend,” 130.

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when no EU body takes automatic responsibility for some cross-cutting initiatives.17 While the field of actors involved in EU counterterrorism policy is already overcrowded, many of the EU structures in this area have been characterized by poorly defined mandates, including the counterterrorism coordinator (see Chapter 6). The final result is inefficiencies in the form of overlapping competences between structures both within and outside the EU framework.18 Thus, regardless of the aforementioned debate about whether the EU or non-EU frameworks offer more value-added in the fight against terrorism, it is clear that the current EU setup is prone to duplication efforts and the existing EU coordination bodies have already been overwhelmed by its sheer complexity. When it comes to EU structures, institutions and agencies, the authors of any “new” EU counterterrorism strategy should therefore be aware that less may actually mean more when it comes to EU counterterrorism efforts. From the available proposals outlining possible remedies to the deficiencies of the EU’s organizational structure, however, few dared to propose measures that either limit, or at least keep constant, the number of existing counterterrorism structures and agencies. A UK House of Lords report suggested assigning a leading role to Europol to avoid the proliferation of EU committees19 and a report by the German Institute for International and Security Affairs advocated strengthening the competencies and right of initiative of the High Representative for CFSP, SitCen and counterterrorism coordinator.20 In contrast, new structures were proposed by Keohane and Townsend (a European Security Committee chaired alternatively by CFSP HR and the chair of the JHA Council)21 and Lugna (a High-level crosspillar counterterrorism committee chaired by the president and the coordinator and reporting directly to COREPER).22 For his part, the EU counterterrorism coordinator offered a set of alternatives for institutional reform: creation of a High-level Working Group on Counterterrorism; merging TWG and COTER into a horizontal working party, or maintaining current structure but reinforcing the role

17 David Spence, “Introduction. International Terrorism-the Quest for a Coherent EU Response,” in The European Union and Terrorism, ed. David Spence (London: John Harper Publishing, 2007), 168–176; Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 191. 18  Jörg Monar, “Conclusions. International Terrorism – A ‘European Response’ to a Global Threat?” in International Terrorism. A European Response to a Global Threat? ed. Dieter Mahncke and Jörg Monar (Brussels: Peter Lang, 2006), 151–158. 19  European Union Committee UK House of Lords, “After Madrid: The EU’s Response to Terrorism.” 20  Bendiek, EU Strategy on Counter-Terrorism. 21 Daniel Keohane and Adam Townsend, A Joined-up EU Security Policy, CER Bulletin, Issue 33. January 2004. 22  Lugna, “Institutional Framework of the European Union Counter-Terrorism Policy Setting.”

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of COREPER in coordination and oversight of the Action Plan implementation.23 The second option “met a general opposition by national authorities since it would have transferred the burden of coordination to the respective national ministries. Eventually the solution was more on the front of setting up more ad hoc joint meetings between the TWG and COTER with respect to cross-pillar issues such as recruitment.”24 Given the aforementioned overload of COREPER and the already dense map of counterterrorism working groups, this appears to have been the least bad solution. At a more ideational level, few specific proposals for strategic changes in the EU’s counterterrorism efforts are available at the moment. Among the notable exceptions, Keohane’s 2005 study suggested that the overall aim of a new EU counterterrorism strategy should be “isolation:” “The EU should try to isolate potential terrorists from their supporters, supplies and targets, both in Europe and around the world.”25 This implies that the EU needs to develop “a multifaceted long-term approach – mixing political, judicial, police, diplomatic and even military means – at home and abroad,”26 thus de facto abolishing the current external-internal security divide. More specifically, Keohane’s strategy of isolation would consist of three tactical elements: 1) integration; 2) investigation; and 3) insulation. Integration especially concerns the need to assimilate growing numbers of Muslim citizens in several EU MS (see Chapter 2). While this is obviously primarily a task of the national governments of aforementioned MS, according to Keohane the EU can encourage countries to learn from each other’s experiences and EU internal policies can play a small symbolic role in helping to reduce the perception of alienation among some European Muslims. In addition, “the EU should also use its foreign policy to reduce the support base for Islamist terrorists across the Muslim world, by encouraging the spread of democratic, economic and legal reforms.”27 Under investigation, Keohane reiterates the call that “the EU should do more to encourage its governments to improve their law enforcement co-operation and practices,” unfortunately without any new ideas or suggestions concerning the surmounting of numerous obstacles in this area (see Chapter 4). Finally, insulation would cover largely the same issues such as the protect pillar of the EU’s current counterterrorism strategy, but it would no longer be limited to protecting EU citizens and EU critical infrastructure only: EU governments should not only think about how to “insulate” potential targets in their own countries. They should also consider how they could help other 23  Council of the European Union, “Working Structures of the Council in Terrorism Matters – Options Paper,” 25.5.2004, , accessed 14.8.2004. 24  Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 209–10. 25  Keohane, The EU and Counter-Terrorism, 25. 26 Ibid. 27 Ibid., 26.

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In extreme situations, Keohane even suggested that EU governments should “contemplate intervening militarily to hamper terrorist activities.” As an example of such a scenario, he offered the collapse of the Pakistani state, with the military high command losing control of nuclear facilities, which may require military intervention to eliminate a danger of terrorists acquiring atomic weapons.29 As of 2010, the likelihood that the EU will develop a strong external (CFSP) dimension of its counterterrorism policy remains rather low. As Keohane acknowledged, “the external response of the EU lags far behind its internal security reaction in terms of political impetus, resources and sheer number of initiatives. … [T]he counter-terrorism parts of EU foreign policy are unclear.”30 In practice, only 30 out of more than 200 measures listed in the current EU Action Plan to combat terrorism are concerned with foreign policy. They can be grouped in three core groups reflecting what can be interpreted as the core aspects to the external dimension of EU counterterrorism: 1. promoting UN conventions 2. dialogues on countering terrorism 3. counterterrorism assistance The problem is that the precise nature of these measures has not been clarified and many EU foreign policy objectives remain extremely vague. One measure, for example, states that the EU (meaning the MS, the Commission, the Council and the presidency) should “promote good governance, democracy, education and economic prosperity outside the EU.”31 In other words, “it appears the EU will have to solve the world’s problems if it is to truly tackle international terrorism.”32 As highlighted in Chapter 3, the EU has attempted to help solve at least some of the world’s problems after the Madrid terrorist attacks by developing an external dimension of its counterterrorism policy. In addition to using development assistance to counter terrorist recruitment, the EU’s external relations policy specifically targets countries which are either willing, but not necessarily capable of, enhancing their own counterterrorism abilities; or not willing, but of which the EU requires a stronger commitment to fight terrorism. To accomplish the 28 Ibid., 28. 29 Ibid. 30  Keohane, “The Absent Friend,” 127. 31  European Council, “Implementation of the Strategy and Action Plan to Combat Terrorism.” , 20.5.2007, accessed 14.3.2008. 32  Keohane, “The Absent Friend,” 129.

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former, the Commission was able to draw on the Rapid Reaction Mechanism to distribute money to a select group of countries for the purpose of improving their ability to curb terrorist activities and to protect their critical infrastructure. Seven countries were initially identified as requiring particular attention and pilot schemes have been inaugurated with Pakistan, Indonesia and the Philippines. According to interviewed EU officials, however, these programs have had “mixed results” so far.33 More recently, several African countries were added to the list of geographical priorities. Yemen and Somalia have been the particular focus most recently, including a COTER Troika visit to Yemen in May 2009, a Commission scoping mission in October 2009 and a “mini-seminar” on terrorism in Somalia arranged by the Swedish president in November 2009.34 These initiatives, however, “have been criticized at the practitioner level for the lack of concrete proposals emerging from the meetings. There is still the impression that these are not much more than ‘talking shops’ and have had very little effect in practice.”35 Moreover, even EU officials have admitted that the EU’s counterterrorism assistance mostly consists of pre-existing programs and have been relabeled but not strengthened by new funds.36 They also complained that “in some countries there is no connection between our assistance and the political issues that are discussed at a top level as they don’t see it as a high priority.”37 The latter goal is attempted by establishing unconditional linkages between formerly first pillar economic bilateral relations of the EU and the concerns and interests pertinent to counterterrorism. According to the current EU counterterrorism coordinator: The EU implements projects to help third countries tackle the factors conducive to radicalisation and recruitment of terrorists (Euro-Mediterranean Partnership, Western Balkans, cooperation with Algeria and Morocco). Cooperation on counter-terrorism is being mainstreamed into the Union’s external agreements. Examples include the Revised Cotonou Agreement and the Euro-Mediterranean Code of Conduct against Terrorism (both 2005). Cooperation in the field of counter-terrorism has also been included in the 11 Action Plans drawn up under the EU’s Neighbourhood Policy.38

33  Keohane, The EU and Counter-Terrorism, 34. 34  Council of the European Union, EU Action Plan on Combating Terrorism, 15358/09. 26.11.2009, 20. 35  Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 261. 36  Interview with a Commission official, DG Relex, March 2008, cited in Bossong, The EU’s Mature Counterterrorism Policy, 5. 37  Interview with a Commission official, DG Relex, February 2006, cited in Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 261–2. 38  European Union, Three Questions to the New EU Counter-Terrorism Coordinator.

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The critics have, nevertheless, noted that although the European Commission nowadays routinely includes anti-terrorism clauses in its agreements with third countries, usually covering a whole range of issues, such as human rights, development assistance and trade, “the counter-terrorism parts of these agreements are so vague as to be meaningless.” 39 Spence has also pointed out that a clear weakness of the EU-demanded anti-terrorism clauses is that they are “technically regarded as ‘non-essential,’” meaning that they do not “necessarily lead to suspension of agreements.”40 Indeed, the ineffectiveness of this mechanism has been highlighted by the fact that no punitive action or sanction has been applied to any non-compliant third country thus far.41 The development of a genuine military dimension of the EU’s counterterrorism policy is even more remote. As discussed in Chapter 2, even the terrorist attacks in Madrid and London did not alter the traditional European discomfort with the use of military force against international terrorism and the EU’s counterterrorism focus has been mainly on internal law-enforcement policies. This position was largely corroborated by Javier Solana, when he went on record saying: I firmly believe that the military option alone cannot defeat terror. Judicial, police, and intelligence cooperation should be the focal point for action. This does not mean that we are not working on how European Security and Defense Policy (ESDP) can offer a meaningful contribution. But ESDP is not at the core of our efforts.42

Some observers noted that from a geostrategic vantage of the military balance, one may be tempted to say that Solana arrived at this conclusion “not for reasons of historically conditioned constitutional retrenchment, but – especially in light of the CSFP’s and ESDP’s dismal track record regarding tangible results in the field of capacity building since the Bosnian War (1992–1995) – from a position of relative weakness.”43 Others have suggested that since EU ministers of interior are in charge of EU counterterrorism measures, from an institutional viewpoint it is understandable that they would wish to focus EU security spending on countering the internal threat from terrorism, rather than on the possible external threats.44 Moreover, as discussed in Chapter 2, it is also clear that the unpopularity of the US “war on terror” in Europe has undoubtedly influenced the EU approach to terrorism, both in terms of its focus on the internal threat – thus essentially leaving 39  Zimmermann, “The European Union and Post-9/11 Counterterrorism,” 128. 40 Spence, “Introduction,” 23. 41  Interview with a Commission official, DG Relex, February 2006, cited in Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 262. 42  Cited in Zimmermann, “The European Union and Post-9/11 Counterterrorism,” 128. 43 Ibid. 44  Keohane, “The Absent Friend,” 132.

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the US to lead the debate about the external threat – and its strong preference for non-military means. At the moment, therefore, the maximum that the EU can offer under the framework of CFSP/ESDP are its military and civilian crisis management operations, which should contribute to improving the security environment that influences the conditions for violent radicalization in third countries. Examples include the Aceh operation in 2006 and the local police support missions in Gaza and Afghanistan. Even the EU counterterrorism coordinator, however, admitted that the EU needs to increase its capacity-building assistance to the aforementioned third countries from its current contribution of €1.5 million and suggested that “one possibility is to mobilise development assistance.”45 Such securitization of economic and political development has, however, been criticized by several experts on the grounds that it downplays the role of democratization and human rights (see Chapter 9). Moreover, as in other areas of counterterrorism, it appears that both EU MS and the recipient countries prefer to work on bilateral bases rather than through the EU when it comes to technical and financial assistance. This has further hampered the already meager impact of the EU’s external assistance, which suffers from insufficient funding, despite the fact that technical assistance and training programs arguably offer the greatest potential to increase security levels in third countries.46 The Lisbon Treaty While arguably falling short of representing a genuine new alternative, the recently ratified Reform Treaty (also known as the Treaty of Lisbon)47 should help to remedy some of the shortcomings of EU counterterrorism policy, especially in the area of coordination. As noted above, the EU was originally devised as a threepillar structure that was governed by two principal treaties: the Treaty establishing the European Community (TEC) and the Treaty on European Union (TEU). The Treaty of Lisbon neither constitutes a third treaty, nor does it replace the two older treaties with a single consolidated treaty as the 2004 Constitutional Treaty would have done.48 Rather, it amends both of the existing treaties by changing, deleting and/or moving many of their provisions. It also introduces several 45  European Policy Centre, What Future for the EU in Counterterrorism? 2010, 6.4.2010 . 46  Interview with a Commission official, DG Relex, February 2006, cited in Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 262. 47  After a tortuous ratification process that included the Irish voters rejecting it in the first referendum in June 2008, the treaty entered into force on December 1, 2009. 48  Though ratified by some MS, the 2004 Constitutional Treaty was rejected by French and Dutch voters in referenda in 2005.

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new provisions,49 including some that change “drastically the EU constitutional landscape as regards criminal law.”50 The actual text of the Lisbon Treaty itself is “complicated and inaccessible,” which was perhaps unavoidable given the fate of its more grandiose predecessor, but according to some observers, this is rather “unsatisfactory” because it has hindered public debate.51 In relation to the future of EU counterterrorism policy, the main innovations of the Lisbon Treaty regard the future of the third pillar. Under the previous treaties, the first pillar of the EU was the supranational European Community. The second pillar (CFSP) and third pillar (JHA) were areas of intergovernmental cooperation with their own decision-making mechanisms, where the EU did not have explicit legal personality, which meant that any common policy had to emerge through consensus, the European Court of Justice had limited jurisdiction and the Commission had no powers to tackle non-implementation. The Lisbon Treaty merges the first and third pillars and moves the JHA policy into the “Community method” of decision-making, which is now a generally applicable mechanism for the entire EU. The key direct consequences of this restructuring are the following: • • •

The standard procedure in JHA is co-decision with a Commission right of initiative and qualified majority voting in the Council. There is common nomenclature of legal instruments, retaining only the traditional instruments of the EC first pillar (regulations, directives, decisions, etc.).52 There is an enhanced role for both the European Parliament and the MS’ national parliaments, especially when it comes to the evaluation mechanisms for the implementation of the EU’s AFSJ policies.

The Lisbon Treaty also calls for the creation of a Standing Committee on Internal Security within the Council “in order to ensure that operational cooperation on internal security is promoted and strengthened within the Union” (Article III261). Also known as COSI, the committee will have the task of facilitating the coordination of the actions of MS’ competent national authorities, including 49  The Lisbon Treaty has only seven articles; the first contains amendments to the TEU, and the second contains amendments to the TEC. There are also 11 new protocols to be annexed to the treaties, plus a protocol (to the Lisbon Treaty itself) amending the pre-existing Treaty Protocols. The texts of the treaties and protocols have the same legal value. 50 Mitsilegas, “The Third Wave of Third Pillar Law,” 524. 51  European Union Committee UK House of Lords, “The Treaty of Lisbon: An Impact Assessment,” 10th Report of Session 2007–08, , para. 1.8. Accessed 17.4.2008. 52  The post-Amsterdam (1997) version of the TEU provided that the legal tools in the third pillar were Common Positions, Framework Decisions, Decisions and Conventions.

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setting the framework within which MS and EU agencies operate in the field of counterterrorism.53 Nevertheless, as Carrera and Geyer noted, “the composition, concrete tasks and competences of COSI remain as vague as they were three years ago and … this potentially seminal committee will not be subject to genuine parliamentary control.”54 Additional provisions of the Lisbon Treaty related to specific EU counterterrorism agencies and/or legal initiatives are discussed in the preceding chapters of this volume. Although the Lisbon Treaty only entered into force in December 2009, its provisions have already been subjected to considerable debate and scrutiny. Treaty proponents argue that it will in principle create an improved decisionmaking procedure which will lead to a higher degree of efficiency, legal certainty, accountability and democratic control: The [Lisbon Treaty provides] a mostly positive response to some of the main complaints that have often been put forward in respect of the institutional and decision-making mechanisms. The institutional fragmentation will be over, along with a large number of its negative externalities. The abolition of the Pillar duality over the Area of Freedom, Security and Justice will lead to increasing legal certainty, a set of uniform legal acts, stronger involvement of the European Parliament in the decision-making process, as well as the widening of the ECJ’s jurisdiction to review and interpret these policies.55

In terms of the implementation of EU counterterrorism measures, the last point appears crucial because it is now possible to take a Member State to the ECJ for its failure to implement properly EU legislation in the area of criminal law and policing. This should encourage the MS “to implement more effectively measures agreed in this area.”56 In addition, the extension of ECJ’s jurisdiction to the interpretation and review of the validity of JHA legislation should enhance the judicial control of the adopted counterterrorism measures, thus also enhancing the EU’s legitimacy as a counterterrorism actor. In practice, however, it remains to be seen “whether the Commission, who has needed years to build its credibility in this field and earn MS’ trust, would be willing to compromise its present position by taking this politically charged step.”57 As one Commission official working in this area noted: “[W]e are not public prosecutors … I don’t believe in adversarial

53  Council of the European Union, Counter-Terrorism Strategy – Discussion Paper. 54  Carrera and Geyer, “The Reform Treaty,” 4. 55 Ibid., 8–9. 56  European Union Committee UK House of Lords, “The Treaty of Lisbon,” para. 6.89. 57  Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 340.

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procedures; this is not internal market. I would advise against using infringement procedures too often after Lisbon.” 58 The critics of the Lisbon Treaty have pointed out that it contains a high number of fundamental exceptions and derogative clauses which may in effect institutionalize a high degree of “exceptionalism” in the AFSJ. For example, although the ordinary legislative procedure now applies to judicial cooperation in criminal matters, issues related to the establishment of minimum rules in criminal law (with the exception of matters concerning the principle of mutual recognition) are subject to the mechanisms of “emergency brake” and “enhanced cooperation.” Thus, in practice, any Member State can pull an emergency brake where it considers that the draft legislation “would affect fundamental aspects of its criminal justice system.” The matter would then be referred to the European Council and the ordinary legislative procedure would be suspended. If the European Council arrives at a consensus within four months, the matter is referred back to the relevant Council for continuation of the legislative procedure. Where no agreement is reached, then the ordinary procedure remains suspended but if at least one third of MS wish to proceed with the measure, they may do so using the enhanced cooperation procedure, which is merely adopted from the existing treaties. In practice, therefore, once the “emergency brake” has been applied and the European Council is unable to find an agreement, a simple notification to the European Parliament, the Council and the European Commission will suffice to allow a group of nine MS to establish enhanced cooperation on the basis of the initial draft proposal that gave rise to the suspension of the ordinary legislative procedure.59 While it is important to note that the emergency brake mechanism does not apply to all areas of criminal justice,60 critics have warned that the much-praised “flexibility” introduced by the Treaty of Lisbon may in fact lead to the creation of many “Areas of Freedoms, Securities and Justices” with possibly different and even competing degrees, notions and “speeds:” Allowing the possibility of too many “speeds” going in too many different directions might have helped to end the pillarisation but may create an Area of Freedom, Security and Justice prone to “differentiation” and “exceptionalism”; the exception might well become the norm. Too much “flexibility” … might lead to too much complexity, paralysing the practical cooperation of national authorities at “ground level.”61

58  Interview with a Commission official, DG JLS, April 2008, cited in Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 340. 59  Carrera and Geyer, “The Reform Treaty,” 5. 60  Cooperation envisaged under Art. 82(1) is not subject to the emergency brake provision. 61  Carrera and Geyer, “The Reform Treaty,” 9.

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On the other hand, the supporters of the emergency brake argue that its purpose is to make the approximation of criminal law more palatable to MS by permitting them an opt-out clause in cases where they consider that fundamental aspects of their criminal justice systems could be affected. According to the Law Society of England and Wales, for example, the emergency brake is a “sensible mechanism” to offset some of the risks in removing the national veto from the sensitive area of criminal justice.62 Some experts have, however, also pointed out that MS would generally lose political capital in pulling the emergency brake too often and others see the emergency brake merely as a “rhetorical device to enable our government to suggest we have control over these matters, while making it easy for them to acquiesce privately to EU proposals.”63 Ultimately, as in the case of the Revised EU Counterterrorism Strategy, only time will show whose arguments are going to better reflect the real impact of the Lisbon Treaty. EU Counterterrorism beyond the Lisbon Treaty: A Counterterrorism Fatigue? Since July 2005, Europe has fortunately not experienced another major terrorist attack, although a number of plots have been thwarted and terrorists’ arrests have continued unabated (see Chapter 2). Foiled plots and arrests, however, have not generated the massive attention and resulting public pressure for counterterrorism action brought about by the New York, Madrid and London terrorist attacks (also see Chapter 2). Thus, even in the wake of the well-publicized August 2006 plot to blow up with liquid explosives transatlantic carriers taking off from Heathrow, more than half of the MS rejected the Commission’s proposal to enact the passerelle in Justice and Home Affairs in order to replace unanimity by qualified majority voting by making use of the bridge clause of the treaty.64 At a more general level, as one Commission official pointed out, “whereas the fight against terrorism was on the European Council agenda in every meeting between the 11th of March 2004 and December 2005, since then it did not re-emerge a single time until December 2007. Furthermore, in the year previous to the 2007 Portuguese presidency, there had not been a single discussion on terrorism at the ministerial level.”65 Taking into account the apparent political stagnation prevalent in the area of counterterrorism since the 2005 London attacks and the steadily decreasing importance of the terrorist threat in the Eurobarometer opinion polls, a number of experts, as well as all EU officials whom I interviewed in 2008 and 2009, have expressed a concern that without a new “really major terrorist attack, the EU’s 62  Cited in European Union Committee UK House of Lords, “The Treaty of Lisbon” para. 5.35. 63 Ibid., paras. 6.48 and 6.49. 64  Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 114–15. 65  Interview with a Commission official, DG JLS, April 2008, cited in Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 115.

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attention to terrorism will go down.”66 Going a step further, EU Counterterrorism Coordinator de Kerchove has recently openly warned about “a growing sense of ‘CT fatigue’” in the EU MS. As already highlighted in the previous chapters, such concerns are warranted and the much-cited “window of opportunity” may have already been closed: There is little doubt that a period of stability has settled in this area [of counterterrorism]. It could be argued that this may be due to the increasing consolidation of the system but there is in fact still significant room for maneuver in some sectors. A more important factor is the nature of the “terrorist cycle,” which results in the prioritisation of terrorism as an emergency requirement but then it is progressively demoted once it loses its political urgency.67

According to one EU official, the impact of the “terrorist cycle” is even more pronounced at the EU level because there “it takes a lot of time to get the message across to all security experts who try to push things, but counterterrorism is interdepartmental and security proposals are always challenged from other areas because terrorist threat perception decreases substantially after a few months pass since the last attack.”68 This was also confirmed by Fraser Cameron, who argued that “European responses to terrorism have generally followed major incidents and could be described, unkindly, as knee-jerk reaction to assure public opinion that governments were doing something.”69 In this light, it is rather questionable whether even the recent adoption of the Lisbon Treaty significantly altered the prevalent cyclic process of acceleration-inertia in EU’s counterterrorism policymaking: “The fact that the central catalysts behind the institutionalisation of counter-terrorism have been the attacks themselves means that in the immediacy of the attack political attention and hectic policy drives ensue but this enthusiasm cools down with the passage of time.”70 This in turn suggests that the EU counterterrorism policy may in many areas remain a paper tiger for as long as there are no new major terrorist attacks in Europe.

66  Interview with a Council Secretariat official, October 2008. 67  Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 116. 68  Interview with an anonymous EU official, October 2008. 69  Fraser Cameron, “Transatlantic Relations and Terrorism,” in The European Union and Terrorism, ed. David Spence (London: John Harper Publishing, 2007), 133. 70  Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 337.

Chapter 11

Concluding Remarks At the beginning of the end of a book about the EU and the fight against terrorism, it is useful to revisit the key explanations concerning the very need for an EU counterterrorism policy. Notwithstanding the importance of the treaty basis for the EU’s security role in general, the preceding chapters have shown that the very nature of the EU as a borderless area makes it easier for terrorists to operate in a pan-European mode, which means that no EU Member State can effectively protect its citizens alone. Specifically, the still nationally fragmented national jurisdictions, law enforcement agencies and intelligence services in Europe offer many loopholes, which can be relatively easily exploited by terrorists whose networks, finances and operations are in some cases more Europeanized than the EU itself. An effective EU counterterrorism policy is therefore needed to avoid the ultimate nightmare scenario of European security officials, “that if they fail to coordinate their efforts, or if they fail to exchange crucial information, a partner country in the EU will fall victim to a terrorist attack.” This final chapter summarizes both the bad and the good news for those losing a good night’s sleep over these types of scenarios. It then concludes with my personal assessment of the future prospects of the EU counterterrorism policy. The Bad News: Still a Paper Tiger? The analyses of both the relevant scholarly counterterrorism literature and the official EU documents presented in this volume suggest that EU counterterrorism policy has at times been more of a paper tiger than an effective counterterrorism device and its value-added in all of the four pillars of the EU’s own Counterterrorism Strategy is currently somewhere between weak to moderate (see Figure 11.1). Despite its name, the Counterterrorism Strategy does not offer a coherent and ranked set of policy objectives or agreement at which level action should be taken in various policy areas. In fact, as one top EU official noted, there is not even an agreement on what is the top priority in European criminal policy today: “It is very difficult to have a European approach when you have not decided what is a European priority, what is European criminal policy and what do we really need – what is really bothering the citizens in Europe. Is this organized theft, is this

 Den Boer, “Fusing the Fragments,” 90.

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Figure 11.1 EU Counterterrorism Capacities: Locus, Objectives and Value-Added Note: Information in parenthesis indicates the primary locus of the given EU counterterrorism capacity under the pre-Lisbon Treaty pillar structure (where identifiable) and the primary objective(s) of the given capacity according to the 2005 EU Counterterrorism Strategy. The font of the capacity description indicates the level of genuine “EU value-added” in the fight against terrorism, based on the criteria specified in Chapter 1: bold = weak, italics = weak to moderate. Source: Original research.

money laundering or is this terrorism?” The results of Eurobarometer opinion polls presented in Chapter 2 suggest that with a few exceptions, citizens of EU MS  Interview with Michèle Coninsx, chair of the Counter-Terrorism Team of Eurojust, September 2009.

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tend to worry more about inflation, unemployment, healthcare and ordinary crime than about terrorism. In the long run, therefore, EU politicians may find it more and more difficult “to justify diverting resources to the fight against terrorism and to justify invasive measures if the public perceptions of the [terrorist] threat are rather low, and this can obviously have an impact on their willingness to put in a major effort at the European level.” Interestingly enough, however, EU citizens also view the role of the EU in the fight against terrorism in positive terms and unlike many policy-makers, they would not mind strengthening EU powers in this area. This suggests that at least in the aftermath of the 9/11, 3/11 and 7/7 terrorist attacks, the real problem was the “cognitive dissonance” of national policy-makers, who committed rhetorically to EU action but more often than not remained constrained by their national mindsets. In terms of prevention, despite the proclamations after the Madrid terrorist attacks, the EU has still done relatively little to tackle root causes of terrorism and radicalization, both abroad and in Europe itself. Even in the years to come, the EU’s role in this key area of counterterrorism is bound to be limited due to the lack of relevant competences and tools. As one observer put it, “Practical action remains in the hands of national authorities,” which means that “overall preparedness is not optimal and [EU] policy remains reactive.” This is particularly worrying given that prevention is arguably the most effective and desirable response to terrorism and its absence “seriously limits whatever credit or ‘output legitimacy’ the EU may claim from its counterterrorism policy.” Similarly, when it comes to the fight against terrorist financing, the proclaimed preventative value of the measures adopted by the EU after 9/11 has not been backed by tangible evidence thus far. In fact, it appears that several of the measures that the EU has adopted to fulfill its MS’ obligations due to their UN and FATF membership may actually not be very suitable for countering the current terrorist threats in Europe. Moreover, blind implementation of external anti-money laundering and smart sanctions models to fight terrorist financing has relegated the EU’s evolving counterterrorism role to that of a mere implementer of UN and FATF decisions, many of which have already been challenged in EU courts on legal and human rights grounds. When it comes to the pursue and protect pillars, the institutional framework analysis reveals that the EU enforcement capabilities in the area of counterterrorism remain rather weak and there is a lack of effective coordination between EU institutions, EU MS and their national agencies in a number of important areas. In particular, the national intelligence and law-enforcement agencies do not always cooperate with Europol as they should; especially when it comes to sensitive intelligence sharing, long-standing bilateral and/or non-EU multilateral arrangements are still clearly preferred by EU MS’ national agencies tasked with  Monar, “Common Threat and Common Response?,” 301.  Spence, “Introduction,” 3.  Ibid., 2.   Bossong, The EU’s Mature Counterterrorism Policy, 23.

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counterterrorism. A similar preference can be traced at the political level, where the frustration of some MS with the difficulties of reaching EU-wide consensus paved the way to the creation of new cooperation arrangements outside of the formal structures of the EU. In some cases, there are good reasons for this to be the case but the informal cooperation structures also have their distinct shortcomings, especially when it comes to transparency and legitimacy issues. Furthermore, the frequent resort to non-EU structures has relegated the EU’s own agencies to an awkward position, where their potential for genuine value-added to the fight against terrorism is not utilized for the lack of trust, information and powers from the MS and/or the national counterterrorism agencies. Taken together, these shortcomings represent an important reminder that the EU is ultimately its Member States, without whose wholehearted support even the most elaborate and innovative counterterrorism structures and mechanisms remain useless. While many have initially hoped that the EU counterterrorism coordinator will remedy at least the most blatant of these shortcomings, s/he still does not have any real powers apart from persuasion and this role has been largely symbolic thus far. As a consequence, it is still not entirely clear who is responsible for the management of counterterrorism in the EU: Leadership is diffused across the EU institutions, which presents problems for both policy management and democratic accountability. Different counterterrorism related policies are progressing at different speeds, and in an ad hoc fashion. Internal and external observers alike have a difficult time identifying the main political actors. Moreover, no single actor can be held accountable for policy problems.

The CTC’s key job of coordination has also been hampered by the fact that mutual relations between the numerous EU agencies, bodies and institutions involved in the fight against terrorism are not governed by hard law, “but by rather soft law institutional arrangements lacking transparency, flexibility and the desirable efficiency.” As illustrated in Chapter 5, the lack of clear rules regarding coordination, cooperation and information-sharing procedures between different EU security and/or criminal justice actors may not only lead to institutional overlap and duplication, but in the case of Europol and Eurojust, may have even allowed for the emergence of an inter-agency rivalry that hampered EU efforts in the fight against terrorism for several years. There is, therefore, a clear need for stronger horizontal and vertical links between all relevant EU, national and nonEU counterterrorism actors, possibly even in the form of hard law. Some interviewed EU practitioners have suggested that the fact that EU agencies and institutions are utilized to various extents by different MS is only natural because they are merely supposed to support national counterterrorism   Rhinard, Boin, and Ekengren, “Managing Terrorism,” 101.   Vlastnik, “Eurojust,” 47.

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efforts. This implies that, similar to sick patients seeking medical attention, MS call for EU agencies’ support only when they need it: “I am not going to the doctor when I am feeling healthy. Only when I have a disease, I am going to see a doctor to see if he can help me out – I need his expertise, his methods and tools.” While this may indeed be a sensible suggestion given the substantial differences among EU MS’ experiences with terrorism and the lack of common terrorist threat assessment at the EU level, it also suggests that it may be worth pondering the wisdom of the EU’s response to terrorism by putting yet more formal bodies and/or informal networks on the already crowded map of EU security agencies.10 The 9/11 events led to such an unprecedented intensification of EU internal security efforts that already by 2007, almost every area of cooperation in all EU pillars had a security plan, a security committee and a network for rapid communication and reaction.11 Furthermore, while many current EU documents often continue to recommend the creation of new cooperation frameworks and committees, I found only one case where necessity and feasibility considerations ultimately led to the decision to abandon a proposed initiative on the grounds that it would not provide sufficient added value to already existing networks.12 I also did not find any evidence of an existing network or agency being declared redundant as a result of the emergence of new cooperation structures. It is therefore questionable whether adding more institutional capacity at the EU level, either by expanding the mandate of existing structures on counterterrorism, or by creating new structures to deal with the issue, is always the proper answer. The analysis of the key EU legal counterterrorism measures also indicates that despite the changes in the legal framework due to the adoption of the Lisbon Treaty, the necessary impetus to remedy both the legal and institutional shortcomings of EU counterterrorism policy seems to be lacking at the moment. In the absence of an independent EU terrorist threat assessment mechanism, the perceptions of the nature and salience of the terrorist threat continue to differ substantially across EU MS, due to a number of specific national factors ranging from past historical experiences with terrorism and counterterrorism to current immigration and demography patterns. As a consequence, it has been rather difficult for the EU to develop a coherent policy in response to terrorism, “because Europeans are still very much divided over the question of how real, relevant and serious this threat is.”13 Instead, security measures that serve other, more or less overlapping security   Interview with a Europol official, September 2009. 10 One such map produced by the Challenge Research Group on “Mapping the European Field of Security” is available at http://www.libertysecurity.org/article1670. html. 11  Ekengren, “Terrorism and the EU,” 31. 12  The suggestion for setting up a European Law Enforcement Network for the fight against terrorism was rejected on these grounds. European Commission, An Extended Report on the Evaluation of the Hague Programme. 13  Bakker, “Difference in Terrorist Threat Perceptions in Europe,” 56.

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interests, such as the fight against organized crime or illegal migration, have been advanced both at the EU and national levels to ensure at least some progress in counterterrorism. This reliance on “all-purpose” type of measures, such as the FATF’s anti-money-laundering recommendations, may have been expedient at times given the similarities between various types of crime and terrorism, but it has also been criticized on both efficiency and legitimacy grounds, especially when the measures did not reflect the existing consensus among all EU MS. Thus, while the national security actors more concerned about terrorism may have been occasionally able to exploit “windows of opportunity” after 9/11, 3/11 and 7/7 to “agree on things in Brussels they would not have obtained at home,”14 the parliamentary and judicial actors have, in most cases, eventually caught up. This has resulted in national implementation delays as well as in an increasing number of judicial challenges against several EU counterterrorism initiatives. Moreover, as even the president of Eurojust admitted, political consensus resulting in the signing of various legal counterterrorism agreements is just one part of the puzzle: It is one thing to sign the agreement, and it is another thing to have that ratified, and put on to the national legislation, a process that takes time. But the important step, that is often forgotten, is that all this has to be converted into practise. We need to have practitioners delivering on these new instruments.15

The problem is that counterterrorism practitioners have thus far often preferred to utilize non-EU instruments and structures. As a consequence, the EU itself “cannot ensure that a European citizen living in a proclaimed area of freedom, security and justice enjoys the same level of protection – not just in terms of actual risks and safeguards, but in terms of the governing instruments that are applicable to a given national territory.”16 Finally, the analysis presented in Chapter 9 highlighted the difficult relationship between liberty, justice and security in the fight against terrorism. Although both the EU and its MS’ officials have made numerous declarations of their intention “to ensure that measures taken to combat terrorism comply fully with our international obligations, including human rights law,”17 many have expressed their doubts about the real-world impact of these fine words. There is a substantial body of literature pointing to the general risk, as well as specific examples, of erosion of civil liberties, the rule of law and human rights protection due to the introduction of EU counterterrorism measures. Thus, as Florian Geyer pointed out, one may wonder whether the official proclamations about the absolute primacy of human 14 Interview with a MEP, May 2008, cited in Bossong, The EU’s Mature Counterterrorism Policy, 24. 15  Kennedy, “Eurojust and the Fight Against Terrorism,” 62. 16  Edwards and Meyer. “Introduction,” 22. 17  Joint EU-US declaration from their summit on June 21, 2006. Cited in Spence, “Conclusion,” 173.

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rights in all EU counterterrorism efforts are not describing an ideal still to be achieved, rather than an existing everyday reality.18 The Good News: Growing Teeth? On a more positive note, the findings of this volume also suggest that at least in some aspects and areas, EU counterterrorism policy is, albeit slowly and inconsistently, becoming a real tiger. To begin with, the EU now possesses a common definition of terrorism, thus eliminating a crucial shortcoming of the global counterterrorism efforts that are still hampered by bitter “one man’s terrorist is another man’s freedom fighter” debates. Moreover, the EU has managed to put into place a Counterterrorism Strategy and an Action Plan that constitute “an interesting attempt at Europeanizing and responding to a threat that is usually presented only either as a national or global one.”19 As discussed above, the EU Strategy is undoubtedly far from ideal, “but it is ‘light years’ away from the initial floundering which characterized Europe in the weeks after 9/11,”20 when it was by no means granted that a specific EU response to terrorism would emerge. Moreover, even within the context of the European integration process, the EU’s difficulties in countering terrorism are not so surprising if one takes into account that “[t]he history of expansion of EU competence into new policy areas has always been characterized by disputes between Member States and EU institutions about the effective and desirable locus of policy making.”21 Some scholars have also suggested that the evaluations of EU counterterrorism policy thus far have not sufficiently taken into account the EU’s implicit capacities. For example, in the “all hazards” approach to dealing with contemporary security threats such as terrorism, which may emerge anywhere, any time and with various consequences, a number of generic EU crisis management capacities become relevant. These include monitoring policy domains where the EU’s bureaucratic administration has a well-developed capacity; planning for the longer term where EU decision structures can be very effective, if sometimes slow, in delivering long-term, goaloriented framework policies; regulatory capacity where the EU displays several crucial features, including strength of the European legal process, the expertise and the machinery needed to promote technical cooperation, and a distance from national influence so that technical, rather than political, approaches characterize problem-solving; coordinating capacities where the EU has a robust set of institutions and mechanisms for cooperation in place; and marshalling expertise 18  Florian Geyer, “Human Rights, Intelligence Cooperation and the EU CounterTerrorism Strategy,” in The European Union and Terrorism, ed. David Spence (London: John Harper Publishing, 2007), 145–67. 19 Monar, “Common Threat and Common Response?,” 293. 20 Spence, “Introduction,” 2. 21 Ibid., 1.

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where the EU institutions have a developed capacity to quickly assemble and access expert networks – “something many national governments find hard to do during a crisis.”22 Some practitioners have also noted that all EU agencies involved in the fight against terrorism are actually working “pretty effectively when it comes to achieving the mandate that they were given,” so the only remaining challenge is “to align their mandates sensibly with what we would be trying to achieve overall.”23 Secondly, the interviews conducted with EU and national officials suggest that although most practitioners still do not see much value-added from Brussels to their day-to-day activities, this is gradually changing thanks to EU measures that have affected their operational work, such as the European Arrest Warrant, or the work of some agencies, such as the European Police College and Eurojust, in fostering practitioner networks.24 It also appears that although within the Council Secretariat officials lacking relevant prior experience are still occasionally assigned to work on counterterrorism,25 “the Terrorism Working Group has progressed from a talking shop to an instrument that is giving useful advice to authorities at the EU level.”26 Perhaps even more importantly, there has been gradual improvement of Commission’s reputation and credibility in the area of counterterrorism due to the overall increase of expertise and experience of DG Justice, Liberty and Security.27 A similar picture emerges when it comes to the value-added coming from the Hague – intelligence exchange with Europol, although still far from being satisfactory, is increasing and so is the number of national counterterrorism investigations to which Europol provides analytical support.28 According to the Europol’s former director, there has been a “clear improvement from the previous ‘need to know’ approach toward the ‘need to share’ approach within the European counterterrorism community.”29 Similarly, Eurojust’s reputation in the area of counterterrorism amongst national magistrates appears to be relatively high and both the quantity and quality of its case workload has grown rapidly since its first significant involvement in 2001. Thirdly, when it comes to the legal framework, the interviews with EU officials have revealed several positive developments. While the EU is still clearly hindered by the absence of common counterterrorism legislation and the prevailing differences among national legal codes in a number of key areas, “things are 22  Rhinard, Boin, and Ekengren, “Managing Terrorism,” 97–8. 23  Interview with an anonymous EU official, October 2008. 24 Interview with a national practitioner, Spanish Guardia Civil Police Force, May 2006, cited in Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 123. 25  Interview with a Council official, October 2008. 26  Interview with a Europol official, September 2009. 27  Interviews with a Commission official, DG JLS, October 2008. 28  Interview with Europol officials, Serious Crime Unit and SC-5 Unit, January 2006, cited in Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 123. 29 Ratzel, “Europol in the Combat of International Terrorism,” 16.

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progressing by having open discussions on the pros and cons and this is one of the highest values added by the EU. Increasingly you can see that although some Member States have no reason at all to agree with a proposal, they do agree because they see it as a good outcome for the entire EU.”30 One interviewed official has also noted that even the implementation delays should not necessarily be seen only as a problem because “they are the result of democratic political configurations pulling a break from time to time, which is precisely what we expect them to do.”31 The more recent developments also suggest that both the EU institutions and the EU MS responded to the Madrid and London terrorist attacks with a much-needed critique of the measures they have taken to combat terrorism thus far. The EU Council adopted a Revised Plan of Action; the Commission launched a five-year Action Plan for Freedom, Justice and Security, and provided significant financial resources towards its implementation. Moreover, the recently ratified Lisbon Treaty should help to remedy some of the most blatant shortcomings, especially in the area of coordination. Taking into account this tentative evidence of incrementally growing EU officials’ reputation and national security actors’ operational usage of EU counterterrorism agencies and instruments, it can be argued that the current EU counterterrorism capacity may already be greater than commonly understood. This general lack of awareness of an enhanced EU counterterrorism role is due to several reasons, including its incremental development, its often technical nature and the well-known fact that many EU MS’ politicians prefer to present to the general public the failures of EU policies rather then their successes. Moreover, even within the academic literature, the EU has not been traditionally analyzed as an actor pursuing an active security policy, especially when it comes to internal security problems. As Erkengen aptly noted, EU’s success was that “it created security by not discussing security.”32 As a consequence, however, until 9/11 the EU lacked its own internal security identity and until today, it is still not absolutely clear what EU values or functions ought to be protected from terrorism. At the same time, however, at least some analyses of the many post-9/11 security and safety cooperation mechanisms established at the EU level have highlighted the EU’s potential “to take the lead again in the creation of post-national security systems and communities:” As in the case of Europe’s security community, the new EU security role does not imply the transformation of Europe into a state. It is also unlikely to be based on a military defense alliance. Instead, the Solidarity clause the ESDP point to a Union fostering a new type of regional security identity. The question is whether

30 Interview with the head of the Terrorism Unit at Europol, September 2009. 31  Interview with a Council official, October 2008. 32  Ekengren, “Terrorism and the EU,” 33.

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the EU will manage to deepen the European security community into a secure European community – a homeland defence á l’européene.33

While this book cannot provide a definitive answer to this important question, it does confirm that at least in some areas of the fight against contemporary terrorism, building a secure European community is indeed the only viable option. But it also reveals that the achievement of this option is extremely difficult in the absence of the shared perception of the security threats stemming from terrorism. Prior to 9/11, perceptions of terrorism in the EU MS were primarily shaped domestically. Due to factors such as the experiences of 9/11, 3/11 and 7/7; the involvement of a number of EU MS in the conflicts in Iraq and Afghanistan; and the gradual development of a nascent joint analytical capacity at the EU level, there is nowadays a much closer degree of analysis of where the threat is. Moreover, although the continued impact of a number of at least equally powerful factors, including history and demography, do not necessarily warrant much optimism, some have argued that “every [EU] country still has different conditions so the terrorist threat expresses itself in different ways but there is a general appreciation that it is there and that no one is entirely immune.”34 Thus, the real question may not be whether the EU will manage to deepen the European security community into a secure European community, but whether this is something that European citizens are really concerned about and whether they expect the EU to do this in the first place. When it comes to terrorism and counterterrorism, the findings of this book point to a predominantly negative answer to the first question, but they also hint to a tentative “yes” when it comes to answering the second question. Future Prospects As of mid-2010, it remains to be seen which factors will turn out to be more instrumental in shaping the European threat perceptions and thus also influencing the materialization, or lack of, a secure European community. It is, nonetheless, clear that counterterrorism is ultimately about finding and selling political answers to a political problem. This is bound to remain tricky in the long-run due to the impact of the terrorism cycle and the resulting (re)emergence of counterterrorism “fatigue” in periods of relative calm. Moreover, whatever the answers may be, they cannot be simply legislated or otherwise imposed from Brussels. Already in the early 1990s, the desire of EU Member States to keep control over the two most sensitive policy areas – Foreign and Security Policy and Justice and Home Affairs – was one of the primary reasons why the EU was originally established with three discrete pillars. As a consequence, any common policy had to emerge through consensus, the European Court of Justice had limited jurisdiction, and the 33 Ibid., 47–8. 34  Interview with an anonymous EU official, October 2008.

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Commission had no powers to tackle non-implementation. Almost three decades later, the Lisbon Treaty formally abolished the pillar structure, but when it comes to responding to terrorism, most MS still seem to prefer the intergovernmental approach: [T]he EU’s response is based on cooperation and coordination rather than on any form of integration. The member states have so far given a clear preference to the use of instruments that can facilitate and support cooperation and coordination between their national counter-terrorism structures and capabilities. They have not transferred any competences to the EU in the field of anti-terrorism and have abstained from creating any legal framework and structures at EU level that could form a basis for a legal and structural integration of their capabilities.35

Forging a consensus on the precise role of the EU in the fight against terrorism is therefore bound to remain difficult and the recent failed referendums on the Constitutional Treaty and its less grandiose successor, the Lisbon Treaty, signal that acceptance of the final outcome by EU citizens cannot be taken for granted. Past experience also suggests that translating grand EU political agreements into effective counterterrorism tools will not be easy. The post-9/11 period has confronted the Member States “both with an opportunity and a need – for the sake of the Union’s credibility – for a more substantial common response to the ‘new’ terrorist threat that was brought home by the Madrid attacks of March 2004 and the London attacks of July 2005.”36 But most observers acknowledge that a multitude of political, legal and cultural challenges still lie ahead. In particular, there are ongoing limitations regarding some MS’ will and/or capacity to duly implement and fully utilize the EU legal counterterrorism initiatives and the very structure of the EU’s counterterrorism institutional architecture is too complicated. Furthermore, the debate about the most appropriate mode of governance in Justice and Home Affairs is still open and most of the powers and capabilities in the field of counterterrorism therefore currently “remain with the MS, are subject to national threat perceptions and political discourses and are protected against any form of ‘communitarization’ by strong, persisting, notions of national sovereignty and the principle of territoriality of law enforcement.”37 Finally, it is important to reiterate that the EU counterterrorism policy has been subjected to criticism for both failing to provide greater security for, and excessively undermining the civil liberties of, the citizens of EU MS. This in turn confirms that turning the EU’s counterterrorism policy from a paper tiger into an effective, accountable and transparent counterterrorism device will require further adjustments both at the tactical and strategic levels.

35 Monar, “Common Threat and Common Response?,” 310. 36 Ibid., 293. 37 Ibid.

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Whether the leaders of the EU MS will be willing and able to make these adjustments remains to be seen, but the track record of EU counterterrorism policy thus far suggests few reasons for optimism in this regard. Although both successful and foiled attacks hint to a continued presence of the terrorist threat in most EU MS, the attention devoted to counterterrorism by policy-makers usually recedes as the memories of the last major terrorist attack fade. There is therefore a real danger that the continuation of the current situation, where the public expectations of EU actions in the area of counterterrorism are relatively high while the EU’s counterterrorism capabilities are both circumscribed and under-utilized, may eventually foster the emergence of a capabilities-expectation gap. As in the case of CFSP, the existence of such a gap would be “clearly unsatisfactory and even dangerous”38 because it is “likely to produce a disproportionate degree of disillusion and resentment” when hopes are dashed, which in turn could “divert energies from other projects which might be realistically pursued.”39 This was implicitly confirmed by a senior EU official in his response to my question of whether the EU counterterrorism policy is a paper tiger: Not so much a paper tiger but a very badly put together machine. There is intense frustration at all levels, because while we all know where we want it to go, it moves very slowly. People set ambitious deadlines and hope that this will move things forward. Whether they know in advance that the deadline is not going to be met, or whether it exists as a symbolic way to try to move people forward, I do not know. But there is a problem that the EU generates short-term expectations that it is not really equipped to fulfill in the time scales it sets itself.40

In the area of counterterrorism, there is therefore a real danger of “a vicious circle in which national governments may be less inclined to further solidify cooperation at EU level, strengthening instead horizontal collaboration outside the EU framework.”41 On its own, however, the loss of political momentum due to counterterrorism “fatigue” does not offer a full explanation for the lack of teeth in many areas of EU counterterrorism policy. Even when the “windows of opportunity” created by the 9/11, 3/11 and 7/7 terrorist attacks were wide open, EU politicians failed to offer a clear answer to the key dilemma of EU counterterrorism policy: the apparent need of EU MS to cooperate more closely in the fight against terrorism and their reluctance to agree on, and/or duly implement, centralized solutions at 38  Christopher Hill, “The Capability-Expectations Gap, or Conceptualizing Europe’s International Role,” Journal of Common Market Studies 31, no. 3 (September 1993), 326. 39  Christopher Hill, “Closing the Capabilities-Expectations Gap?” in A Common Foreign Policy for Europe? Competing Visions of the CFSP, ed. John Peterson and Helene Sjursen (London: Routledge, 1998), 23. 40  Interview with an anonymous EU official, October 2010. 41  Argomaniz, “Counter-Terrorism Policy-Making in the EU,” 339.

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the EU level and provide relevant EU agencies with greater powers. Undoubtedly, this is in part because of the political sensitiveness of counterterrorism which goes to the very heart of national security. Moreover, although the 2003 European Security Strategy declared that the internal and external aspects of contemporary security threats are “indissolubly linked,” linking the internal with the external in the context of counterterrorism has proven to be an extremely difficult challenge for the EU. The inclusion of the Solidarity Clause in the Lisbon Treaty may signal a new chapter in the history of European integration, but the remaining question is whether existing forms of cooperation, previously associated with economic rather than security cooperation, will be sufficient for this new beginning.42 Similarly, although the Lisbon Treaty has been hailed by many as a major achievement, contrary to the calls from the European Security Strategy, it has not sufficiently addressed the challenge of different principles for decision-making in the internal and external security dimensions at the EU level. While this book cannot offer answers to all these puzzling questions and dilemmas, its findings clearly challenge the view that more EU action is axiomatically the way forward for counterterrorism in Europe. In some areas of counterterrorism work, such as intelligence-gathering or counter-radicalization, MS preference for coordination and enhanced intergovernmentalism over the delegation of powers to EU structures is understandable as it is uncertain that an extra layer of operational bodies and/or legal measures at the European level would produce a more efficient response to the contemporary terrorist threat. Moreover, since the terrorist threat perceptions and national counterterrorism mechanisms are still rather diverse, a harmonized EU approach may not always offer the potential for genuine value-added. Alternatively, in areas such as fighting terrorist financing, EU-level responses are insufficient because only a global framework is likely to make a difference and within it, the role of private sector actors appears to be more crucial than has been generally acknowledged thus far. The EU is also not the only international entity involved in the business of counterterrorism and as the chair of the Counter-Terrorism Team of Eurojust noted, “we should not re-invent the wheel. Organizations like the Council of Europe or the United Nation have a lot of experience.”43 In addition, it is important to build further links with non-EU countries “to see how we can have a more integrated fight against terrorism because it is going far beyond the boundaries of the EU.”44 In contrast, when it comes to dealing with indigenous terrorist groups in Europe, “long-established bilateral responses make perfect sense, as demonstrated by the French-Spanish cooperation on ETA.”45 Finally, in areas such as integration of 42  Magnus Ekengren, “New Security Challenges and the Need for New Forms of EU Cooperation,” European Security 15, no. 1 (2006): 89–111. 43 Interview with Michèle Coninsx, chair of the Counter-Terrorism Team of Eurojust, September 2009. 44 Ibid. 45  Interview with a Council official, October 2008.

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Muslim societies, innovative solutions may be better designed at the national, or perhaps even local, level. Both Brussels and the more pro-integrationist EU MS should therefore exercise due diligence when searching for EU-level responses to contemporary terrorism. At the same time, however, the findings of this book do not support the view that EU-level action cannot offer any value-added in the fight against terrorism. Instead, the crucial message is that turning EU counterterrorism policy into a real tiger requires a careful assessment of both the comparative advantages and disadvantages of the available legal instruments and institutional structures at all levels. There are several areas where EU approaches make perfect sense due to the transnational nature of the contemporary terrorist threat and the nature of a “borderless” Europe where people, goods, capital and services ought to move freely. As Spence put it: There are likely to be more Al-Qaida type of terrorist groups and they are likely one day to use modern technology successfully to achieve their goals. They are also likely to develop their links further with organized crime in order to obtain weapons, forged documents and assistance with the transfer of their agents and equipment. These are all activities where purely national responses are demonstrably insufficient, and where EU competence is consequently growing.46

It is indeed in these trans-border areas where EU legal measures and EU agencies can provide genuine value-added in the fight against terrorism. In order to do so, however, the legal measures have to be properly implemented by EU MS and, similarly to EU agencies, they have to be actually used by the relevant national agencies. This volume provides plenty of evidence that these two conditions have often not been fulfilled in the past. But its findings also confirm that although more EU action may not always be the best instrument for counterterrorism, less EU action is not automatically the correct answer either. Ultimately, what really matters is whether counterterrorism works, not whether it is EU.

46 Spence, “Conclusion,” 169.

Bibliography Alegre, Susie, and Marisa Leaf. “Mutual Recognition in European Judicial Cooperation: A Step Too Far Too Soon? Case Study – the European Arrest Warrant.” European Law Journal 10, no. 2 (March 2004): 200–17. Alden, Edward. “Europe Freezes Terrorist Assets Worth $35 Million.” Financial Times. 7.4.2002. http://specials.ft.com/attackonterrorism/FT39YWK5SZC. html. Accessed 14.4.2004. Anderson, Malcom. “Counterterrorism as an Objective of European Police Cooperation.” In European Democracies Against Terrorism: Governmental Policies and Intergovernmental Cooperation, edited by Fernando Reinares, 227–44. Burlington, VT: Ashgate Publishing Company, 2000. Andersson, Torbjörn, Iain Cameron, and Kenneth Nordback. “EU Blacklisting: The Renaissance of Imperial Power, but on a Global Scale.” European Business Law Review 14, no. 2 (2003): 111–41. Andréani, Gilles. “The War on Terror: Good Cause, Wrong Concept.” Survival 46, no. 4 (2004): 31–50. Archick, Kristin. “Europe and Counterterrorism: Strengthening Police.” Congressional Research Service Report to Congress. 23.7.2002. http://www. law.umaryland.edu/marshall/ElectronicResources/crsreports/crsdocuments/ RL31509_07232002.pdf. Accessed 28.1.2005. Argomaniz, Javier. “Counter-Terrorism Policy–Making in the EU,” Ph.D. Dissertation, School of Politics & International Relations, University of Nottingham, 2008. Bakker, Edwin. “Difference in Terrorist Threat Perceptions in Europe.” In International Terrorism. A European Response to a Global Threat? edited by Dieter Mahncke and Jörg Monar, 47–62. Brussels: Peter Lang, 2006. ———. “Jihadi Terrorist in Europe and Global Salafi Jihadist.” In Jihadi Terrorism and the Radicalization Challenge in Europe, edited by Rik Coolsaet, 70–84. Aldershot, UK: Ashgate Publishing Company, 2008. Balzacq, Thierry et al. “Security and the Two-Level Game: The Treaty of Prüm, the EU and the Management of Threats.” Center for European Policy Studies, CEPS Working Document No. 234. January 2006. Balzacq, Thierry, and Sergio Carrera. “The Hague Programme: The Long Road to Freedom, Security and Justice.” In Security Versus Freedom? A Challenge for Europe’s Future, edited by Thierry Balzacq and Sergio Carrera, 35–44. Aldershot, UK: Ashgate Publishing Company, 2006. ——— (eds.). Security Versus Freedom? A Challenge for Europe’s Future. Aldershot, UK: Ashgate Publishing Company, 2006.

260

EU Counterterrorism Policy

Banks, William C., Renée de Nevers, and Mitchel B. Wallerstein. Combating Terrorism: Strategies and Approaches. Washington, DC: CQ Press, 2008. Bantekas, Ilias. “The International Law of Terrorist Financing.” American Journal of International Law 97, no. 2 (2003): 315–33. Barnier, Michel. “For a European Civil Protection Force: Europe Aid.” 5.8.2006. , accessed 5.6.2009. Beckford, James A., Daniele Joly, and Farhad Khosrokhavar. Muslims in Prison: Challenges and Change in Britain and France. Basingstoke, UK: Palgrave, 2005. Bendiek, Annegret. EU Strategy on Counter-Terrorism. November 2006. German Institute for International and Security Affairs. http://www.swp–berlin.org/en/ common/get_document.php?asset_id=3477. Accessed 7.1.2007. Benjamin, Daniel. “On Multilateral Counterterrorist Organizations.” The NYU Review of Law & Security, Special Issue (Summer 2005): 14–15. Bensahel, Nora. “The Counterterror Coalitions: Cooperation with Europe, NATO, and the European Union.” RAND, 2003. http://www.rand.org/publications/ MR/MR1746/MR1746.pdf. Accessed 10.1.2005. Bergen, Peter. “Al Qaeda in Europe and the U.S.” The NYU Review of Law & Security, Special Issue (Summer 2005): 25–27. Biersteker, Thomas J., and Sue E. Eckert (eds.). Countering the Financing of Terrorism. London: Routledge, 2007. ———. “Introduction.” In Countering the Financing of Terrorism, edited by Thomas J. Biersteker and Sue E. Eckert, 1–16. London: Routledge, 2007. Biersteker, Thomas J., Sue E. Eckert, and Peter Romaniuk. “International Initiatives to Combat the Financing of Terrorism.” In Countering the Financing of Terrorism, edited by Thomas J. Biersteker and Sue E. Eckert, 234–59. London: Routledge, 2007. Bigo, Didier. “Liberty, Whose Liberty? The Hague Programme and the Conception of Freedom.” In Security Versus Freedom? A Challenge for Europe’s Future, edited by Thierry Balzacq and Sergio Carrera, 35–44. Aldershot, UK: Ashgate Publishing Company, 2006. Bigo, Didier et al. Illiberal Practices of Liberal Regimes: The (In)Security Games. Paris: L’Harmattan, 2006. ———. The Field of the EU Internal Security Agencies. Paris: L’Harmattan, 2007. ———. Judicial Cooperation in European and Security Challenge. Challenge 2009. http://www.libertysecurity.org/IMG/pdf_WP2_CHALLENGE_ Deliverable_155_Graphic.pdf. Accessed 22.5.2009. ———. “Mapping the Field of the EU Internal Security Agencies.” In The Field of the EU Internal Security Agencies, edited by Didier Bigo, 5–66. Paris: L’Harmattan, 2007. ———. The Changing Landscape of European Liberty and Security: Mid– Term Report on the Results of the CHALLENGE Project. Challenge 2007.

Bibliography

261

http://www.libertysecurity.org/IMG/pdf_ChallengeMidReport.pdf. Accessed 21.11.2008. Bigo, Didier, Sergio Carrera, and Elspeth Guild. The CHALLENGE Project: Final Policy Recommendations on the Changing Landscape of European Liberty and Security. September 2009. Center for European Policy Studies. http://www. ceps.be/book/challenge-project-final-policy-recommendations-changinglandscape-european-liberty-and-security. Accessed 17.3.2010. Bjorgo, Tore. Root Causes of Terrorism: Myths, Realities, and Ways. New York and London: Routledge, 2005. Börzel, Tanja. “Organizing Babylon: On the Different Conceptions of Policy Networks.” Public Administration 76, no. 2 (1998): 253–73. Bossong, Raphael. “The Action Plan on Combating Terrorism: A Flawed Instrument of EU Security Governance.” Journal of Common Market Studies 46, no. 1 (January 2008): 27–48. ———. The EU’s Mature Counterterrorism Policy – A Critical Historical and Functional Assessment. LSE Challenge Working Paper. June 2008. http:// www2.lse.ac.uk/internationalRelations/centresandunits/EFPU/EFPUpdfs/ EFPUchallengewp9.pdf. Accessed 21.11.2008. Brook, Steven, and Robert S. Leiken. “The Quantitative Analysis of Terrorism and Immigration: An Initial Exploration.” Terrorism & Political Violence 18, no. 4 (December 2006): 503–21. Browne, Anthony, and Rory Watson. “EU Divided Over Proposal for New AntiTerror Czar.” TimesOnline 17.3.2004. www.timesonline.co.uk/article/0,125891041361,00.htm. Accessed 18.3.2004. Bures, Oldrich. “EU Counterterrorism Policy: A Paper Tiger?” Terrorism and Political Violence 18, no. 1 (Spring 2006): 57–78. ———. “EU Counterterrorism Policy and the 2004 Eastern Enlargement.” Central European Journal of International and Security Studies 1, no. 1 (Summer 2007), 7–27. ———. “Europol’s Fledgling Counterterrorism Role.” Terrorism and Political Violence 20, no. 4 (Winter 2008): 498–517. ———. “European Arrest Warrant: Implications for EU Counterterrorism Efforts.” Central European Journal of International and Security Studies 3, no. 1 (Spring 2009), 21–43. ———. “Perceptions of the Terrorist Threat among EU Member States,” Central European Journal of International and Security Studies 4, no. 1 (Spring 2010), 51–80. ———. “EU’s Fight against Terrorist Finances: Internal Shortcomings and Unsuitable External Models.” Terrorism and Political Violence 22, no. 3, (Summer 2010), 419–438. ———. “Eurojust’s Fledgling Counterterrorism Role.” Journal of Contemporary European Research 6, no. 2 (Summer 2010), 236–256. Burke, Jason. “Think Again: Al Qaeda.” Foreign Policy 142 (May/June 2004): 18–26.

262

EU Counterterrorism Policy

Buzan, Barry, Ole Weaver, and Jaap de Wilde. Security: A New Framework for Analysis. Boulder, CO: Lynne Riennier Publishers, Inc., 1998. Caldwell, Christopher. “The Crescent and the Tricolor.” Atlantic Monthly, November 2000, 22. Cameron, Fraser. “Transatlantic Relations and Terrorism.” In The European Union and Terrorism, edited by David Spence, 124–44. London: John Harper Publishing, 2007. Cameron, Iain. “UN Targeted Sanctions, Legal Safeguards and the European Convention on Human Rights.” Nordic Journal of International Law, 72, no. 2 (2003): 159–214. ———. “Terrorist Financing in International Law.” In International and European Financial Criminal Law, edited by Ilias Bantekas, 65–95. London: Butterworths/Lexis Nexis, 2006. Cardona, Meliton. “The European Response to Terrorism.” Terrorism & Political Violence 4, no. 4 (Winter 1992): 245–55. Carrera, Sergio, and Florian Geyer. “The Reform Treaty & Justice and Home Affairs: Implications for the Common Area of Freedom, Security & Justice.” Center for European Policy Studies, 2007. http://shop.ceps.eu/BookDetail. php?item_id=1535. Accessed 12.1.2008. Cesari, Jocelyne. “Muslims in Europe and the Risk of Radicalism.” In Jihadi Terrorism and the Radicalization Challenge in Europe, edited by Rik Coolsaet, 97–108. Aldershot, UK: Ashgate Publishing Company, 2008. Chalk, Peter. “The Third Pillar on Judicial and Home Affairs Cooperation, AntiTerrorist Collaboration and Liberal Democratic Acceptability.” In European Democracies Against Terrorism: Governmental Policies and Intergovernmental Cooperation, edited by Fernando Reinares, 175–210. Burlington, VT: Ashgate Publishing Company, 2000. Change Institute. Studies Into Violent Radicalisation; Lot 2: The Beliefs Ideologies and Narratives. February 2008. http://ec.europa.eu/justice_home/fsj/terrorism/ prevention/docs/ec_radicalisation_study_on_ideology_and_narrative_en.pdf. Accessed 11.5.2010. Collins, Allan. Contemporary Security Studies. Oxford, UK: Oxford University Press, 2007. Coolsaet, Rik, and Tanguy Struye de Swielande. “Epilogue: Zeitgiest and (De-)Radicalisation.” In Jihadi Terrorism and the Radicalization Challenge in Europe, edited by Rik Coolsaet, 154–81. Aldershot, UK: Ashgate Publishing Company, 2008. Cortright, David, and George A. Lopez. Smart Sanctions: Targeting Economic Statecraft. Boulder, CO: Lynne Rienner Publishers, 2002. Cordelier, Jerome. “IPSOS-LCI-Le Point Poll: Islam Is a Worry for the French,” Le Point, 16.5.2003. Cortright, David et al. “Global Cooperation Against Terrorism – Evaluating the United Nations Counter-Terrorism Committee.” In Uniting Against Terror:

Bibliography

263

Cooperative Nonmilitary Responses to the Global Terrorist Threat, edited by David Cortright and George A. Lopez, 23–50. Boston, MA: MIT Press, 2007. Costigan, Sean S., and David Gold. Terronomics. Aldershot, UK: Ashgate Publishing Company, 2007. Crelinsten, Ronald. Counterterrorism. Cambridge, UK: Polity Press, 2009. Crenshaw, Martha. “‘New’ Vs. ‘Old’ Terrorism: A Critical Appraisal.” In Jihadi Terrorism and the Radicalization Challenge in Europe, edited by Rik Coolsaet, 25–36. Aldershot, UK: Ashgate Publishing Company, 2008. Cronin, Audrey K., and James M. Ludes. Attacking Terrorism. Elements of a Grand Strategy. Washington, DC: Georgetown University Press, 2004. De Vries, Gijs. “The European Union and the Fight Against Terrorism,” Presentation of the EU Counterterrorism Coordinator at the Seminar of the Centre for European Reform. 19.01.2006, , accessed 20.5.2006. Deflem, Mathieu. “Europol and the Policing of International Terrorism: CounterTerrorism in a Global Perspective.” Justice Quarterly 23, no. 3 (September 2006): 336–59. Delpech, Therese. International Terrorism in Europe. Paris: Institute for Security Studies, Chaillot Papers No. 56. December 2002. Den Boer, Monica. “The EU Counterterrorism Wave: Window of Opportunity or Profound Policy Transformation?” In Confronting Terrorism. European Experiences, Threat Perceptions and Policies, edited by Marianne van Leeuwen, 185–206. The Hague: Kluwer, 2003. ———. “Fusing the Fragments: Challenges for EU Internal Security Governance on Terrorism.” In International Terrorism. A European Response to a Global Threat? edited by Dieter Mahncke and Jörg Monar, 83–111. Brussels: Peter Lang, 2006. Den Boer, Monica, Claudia Hillerbrand, and Andreas Nölke. “Legitimacy Under Pressure: The European Web of Counter-Terrorism Networks.” Journal of Common Market Studies 46, no. 1 (January 2008): 101–24. Den Boer, Monica, and Jörg Monar. “Keynote Article: 11 September and the Challenge of Global Terrorism to the EU as a Security Actor.” In The European Union: Annual Review of the EU 2001/2002, edited by Geoffrey Edwards and Georg Wiessala, 11–28. Oxford, UK: Blackwell, 2002. Dittrich, Mirjam. “Radicalisation and Recruitment: The EU Response.” In The European Union and Terrorism, edited by David Spence, 54–70. London: John Harper Publishing, 2007. Donohue, Laura K. The Cost of Counterterrorism: Power, Politics, and Liberty. Cambridge: Cambridge University Press, 2008. Douglas-Scott, Sionaidh. “The Rule of Law in the European Union – Putting the Security in the Area of Freedom, Security and Justice.” European Law Review 29, no. 2 (2004): 219–42.

264

EU Counterterrorism Policy

Dubois, Dorine. “The Attacks of 11 September: EU-US Cooperation Against Terrorism in the Field of Justice and Home Affairs.” European Foreign Affairs Review 7 (2002): 317–35. Duyvesteyn, Isabelle. “How New is the New Terrorism.” Studies in Conflict & Terrorism 27, no. 5 (2004): 439–54. Dyvre, Axel, and Selma Belaala. Les Facteurs de Création Ou de Modification Des Processus de Radicalisation Violente, Chez les Jeunes en Particulier. Compagnie Européenne D’Intelligence Stratégique, 2008. http://ec.europa. eu/justice_home/fsj/terrorism/prevention/docs/ec_radicalisation_study_on_ trigger_factors_fr.pdf Accessed 18.5.2010. E.U. Network of Independent Experts in Fundamental Rights. “The Balance Between Freedom and Security in the Response by the European Union and Its Member States to the Terrorist Threats.” 31.3.2003. http://www.statewatch. org/news/2003/apr/CFR–CDF.ThemComment1.pdf. Accessed 10.2.2004. The Economist. “Forget Asylum-Seekers: It’s the People Inside Who Count.” 8.5.2003. Edwards, Geoffrey, and Christoph O. Meyer. “Introduction: Charting a Contested Transformation.” Journal of Common Market Studies 46, no. 1 (January 2008): 1–25. Ekengren, Magnus. “Terrorism and the EU: The Internal–External Dimension of Security.” In The European Union and Terrorism, edited by David Spence, 30–53. London: John Harper Publishing, 2007. Ekengren, Magnus et al. “New Security Challenges and the Need for New Forms of EU Cooperation.” European Security 15, no. 1 (2006): 89–111. ———. “Solidarity or Sovereignty? EU Cooperation in Civil Protection.” Journal of European Integration 28, no. 5 (2006): 457–76. Eling, Kim. “The EU, Terrorism and Effective Multilateralism.” In The European Union and Terrorism, edited by David Spence, 105–23. London: John Harper Publishing, 2007. Eriksson, Mikael. In Search of a Due Process: Listing and Delisting Practices of the European Union. 2009. http://www.smartsanctions.se/Mikael_Eriksson/ in_search_091119.pdf. Accessed 20.9.2009. Errera, Philippe. “Three Circles of Threat.” Survival 47, no. 12 (2005): 71–88. Esposito, John L. “Introduction: Modernizing Islam and Re-Islamization in Global Perspective.” In Modernizing Islam: Religion in the Public Sphere in the Middle East and Europe, edited by John L. Esposito and Francois Burgat. New Brunswick, NJ: Rutgers University Press, 2003. EurActiv.com. “De Kerchove: ‘We Must Help the Americans Close Guantanamo.’” 20.9.2008. http://www.consilium.europa.eu/uedocs/cmsUpload/EurActiv30.09.08.pdf. Accessed 6.4.2010. European Monitoring Centre on Racism and Xenophobia, Muslims in the European Union: Discrimination and Islamophobia. 2006. . Accessed 11.5.2010.

Bibliography

265

Feldman, Andreas, and Maiju Perala. “Reassessing the Causes of Nongovernmental Terrorism in Latin America.” Latin American Politics & Society 42, no. 2 (Summer 2004): 101–32. Fijnaut, Cyrille, Jan Wouters, and Frederick Naert. Legal Instruments in the Fight Against International Terrorism: A Transatlantic Dialogue. Leiden, Netherlands: Martinus Nijhoff Publishers, 2004. Fritzon, Asa et al. “Protecting Europe’s Critical Infrastructures.” Journal of Contingencies and Crisis Management 15, no. 1 (2007): 30–41. Gardner, Kathryn L. “Terrorism Defanged: The Financial Action Task Force and International Efforts to Capture Terrorist Finances.” In Uniting Against Terror: Cooperative Nonmilitary Responses to the Global Terrorist Threat, edited by David Cortright and George A. Lopez, 157–86. Boston, MA: MIT Press, 2007. Gerulé, Jimmy. Unfunding Terror: The Legal Response to The Financing of Terrorism. Northampton, MA: Edward Elger Publishing Limited, 2008. Geyer, Florian. “Court of Justice of the European Communities Judgment of 3 May 2007, Case C-303/05, Advocaten Voor de Wereld VZW v. Leden Van de Ministerraad.” European Constitutional Law Review 41 (2008): 149–61. ———. “Human Rights, Intelligence Cooperation and the EU Counter-Terrorism Strategy.” In The European Union and Terrorism, edited by David Spence, 145–67. London: John Harper Publishing, 2007. Giraldo, Jeanne K., and Harold A. Trinkunas. Terrorism Financing and State Responses: A Comparative Perspective. Stanford, CA: Stanford University Press, 2007. Givens, Terri E., Gary P. Freeman, and David L. Leal. Immigration Policy and Security. New York: Routledge, 2009. Grignard, Alain. “The Islamist Networks in Belgium: Between Nationalism and Globalisation.” In Jihadi Terrorism and the Radicalization Challenge in Europe, edited by Rik Coolsaet, 85–96. Aldershot, UK: Ashgate Publishing Company, 2008. Gross Stein, Janice. “Building Politics Into Psychology: The Misperception of Threat.” Political Psychology 9, no. 2 (1998): 245–71. Guild, Elspeth. Constitutional Challenges to the European Arrest Warrant: A Challenge for European Law. The Merging of Internal and External Security. Nijmegen, Netherlands: Wolf Publishers, 2006. ———. “EU Counter-Terrorism Action: A Fault Line Between Law and Politics?” Presented at the 51st ISA Annual Convention, New Orleans, February 2010. ———. “The Uses and Abuses of Counter-Terrorism Policies in Europe: The Case of the ‘Terrorist Lists.’” Journal of Common Market Studies 46, no. 1 (January 2008): 173–93. Guild, Elspeth, and Florian Geyer (eds.). Security Versus Justice: Police and Judicial Cooperation in the European Union. Aldershot, UK: Ashgate Publishing Company, 2008.

266

EU Counterterrorism Policy

Gunning, Jeroen. “Terrorism, Charities, and Diasporas: Contrasting the Fundraising Practises of Hamas and al Qaeda Among Muslims in Europe.” In Countering the Financing of Terrorism, edited by Thomas J. Biersteker and Sue E. Eckert, 93–125. London: Routledge, 2007. Hackner et al. “Das 2. Europäische Haftbefehlsgesetz.” Neue Strafrechts Zeitung (NStZ) 12 (2006): 663–69. Harris Interactive and Financial Times. Attitudes toward Muslims Mixed in Europe and the US. 23.8.2007. . Accessed 11.5.2010. Hill, Christopher. “The Capability-Expectations Gap, or Conceptualizing Europe’s International Role.” Journal of Common Market Studies 31, no. 3 (September 1993). ———. “Closing the Capabilities-Expectations Gap?” In A Common Foreign Policy for Europe? Competing Visions of the CFSP, edited by John Peterson and Helene Sjursen, 18–38. London: Routledge, 1998. Hoffman, Bruce. “The Changing Face of Al Qaeda and the Global War on Terrorism.” Studies in Conflict & Terrorism 27, no. 6 (Nov.–Dec. 2004): 549– 60. Home Affairs Committee UK House of Commons. “Justice and Home Affairs Issues at European Union Level,” Third Report of Session 2006–07, volume I. , para. 58. Accessed 17.4.2008. Hooge, Liesbet, and Garry Marks. “European Integration from the 1980’s: StateCentric v. Multilevel Governance.” Journal of Common Market Studies 34, no. 3 (1996): 341–78. ———. Multi-Level Governance and European Integration. Boulder, CO: Rowman & Littlefield Publishers, 2001. Huband, Mark. “Europe’s “Home–Grown” Terrorism Threat.” The NYU Review of Law & Security, Special Issue (Summer 2005): 22–24. Huysmans, Jef. The Politics of Insecurity: Fear, Migration and Asylum in the EU. Abingdon, UK: Routledge, 2006. International Organization for Migration. World Migration Report 2000 (Geneva: IOM, 2000), 195. International Organization for Migration. “Facts and Figures on International Migration.” Migration Policy Issues no. 2 (March 2003): 2. Jacobson, Michael. Combating Terrorist Financing in Europe: Gradual Progress. PolicyWatch #1213. Washington, DC: The Washington Institute for Near East Policy, 26.03.2007. Jasinski, Filip. “The European Union and Terrorism.” The Polish Quarterly of International Affairs 11, no. 2 (2002): 35–55. Jenkins, Brian Michael. “Terrorism and Beyond: A 21st Century Perspective.” Studies in Conflict & Terrorism 24, no. 5 (Sept.–Oct. 2001): 321–27. Jervis, Art. Perception and Misperception in International Politics. Princeton, NJ: Princeton University Press, 1976.

Bibliography

267

John Howell & Co. Independent Scrutiny: The EU’s Efforts in the Fight Against Terrorist Financing in the Context of the Financial Action Task Force’s Nine Special Recommendations and the EU Counter Terrorist Financing Strategy. European Commission, 1.2.2007. Joppke, Christian. “Limits of Integration Policy: Britain and Her Muslims.” Journal of Ethnic and Migration Studies 35, no. 3 (March 2009): 453–72. Jordan, Javier, Fernando M. Manas, and Nicola Horsburgh. “Strengths and Weaknesses of Grassroot Jihadist Networks: The Madrid Bombings.” Studies in Conflict & Terrorism 31, no. 12 (January 2008): 17–39. Joshi, Jitendra. “After Madrid, EU’s Nascent Anti-Terror Strategy under Focus,” Agence France Presse, Lexis Nexis News Search, 15.3.2004. ———. “EU Holds Emergency Terror Talks After Madrid Blasts,” Agence France Presse, Lexis Nexis News Search, 19.3.2004. Kaunert, Christian. “Towards Supranational Governance in EU Counter-Terrorism? – The Role of the Commission and the Council Secretariat.” Central European Journal of International and Security Studies 4, no. 1 (Spring 2010): 8–31. Kempe, Frederick S. “Europe’s Middle East Side Story.” The Wall Street Journal, 29.7.2003. Kennedy, Michael. “Eurojust and the Fight Against Terrorism.” In European Cooperation Against Terrorism, edited by Tim Bremmers, 59–64. Nijmegen, Netherlands: Wolf Legal Publishers and EULEC, 2004. Keohane, Daniel. “The Absent Friend: EU Foreign Policy and Counter-Terrorism.” Journal of Common Market Studies 46, no. 1 (January 2008): 125–46. ———. The EU and Counter-Terrorism. Center for European Reform, May 2005. ———. “Implementing the EU’s Counter-Terrorism Strategy.” In International Terrorism. A European Response to a Global Threat? edited by Dieter Mahncke and Jörg Monar, 63–72. Brussels: Peter Lang, 2006. Keohane, Daniel, and Hugo Brady. Fighting Terrorism: The EU Needs a Strategy, Not a Shopping List. Center for European Reform, October 2005. Keohane, Daniel, and Adam Townsend. A Joined–up EU Security Policy. CER Bulletin, Issue 33. January 2004. http://www.cer.org.uk/articles/33_keohane_ townsend.html. Accessed 26.5.2009. Kettani, Ali M. Muslim Minorities in the World Today. London: Mansell Publishing Ltd., 1986. Kingsbury, Benedict, Nico Krisch, and Richard B. Stewart. “The Emergence of Global Administrative Law.” Law and Contemporary Problems 68, no. 3 (2005): 15–61. Knelangen, Wilhelm. “Die Innen– un Justizpolitische Zusammenarbeit der EU und die Bekämpfung Des Terrorismus.” In Die Europäische Union Im Kampf Gegen Den Terrorismus: Sicherheit Vs. Freiheit, edited by Erwin Müller and Patricia Schneider, 140–62. Baden-Baden: Nomos, 2006. Kohler-Koch, B. et al. Interaktive Politik in Europa. Regionen Im Netzwerk der Integration. Opladen, Germany: Leske & Budrich., 1998.

268

EU Counterterrorism Policy

Krueger, Alan B., and Jitka Maleckova. “Education, Poverty and Terrorism: Is There a Causal Connection?” Journal of Economic Perspectives 17, no. 4 (Fall 2003): 119–44. Lavenex, Sandra. “Mutual Recognition and the Monopoly of Force: Limits of the Single Market Analogy.” Journal of European Public Policy, 14, no. 5 (August 2007): 762–79. Lavenex, Sandra, and William Wallace. “Justice and Home Affairs: Towards a European Public Order?” In Policy-Making in the European Union, edited by Hellen Wallace, Wlliam Wallace, and Mark Pollack, 457–80. Oxford, UK: Oxford University Press, 2005. Leiken, Robert S. “Europe’s Angry Muslims.” Foreign Affairs 84, no. 4 July/ August 2005. http://www.foreignaffairs.org/20050701faessay84409/robert-sleiken/europes-angry-muslims.html. Accessed 20.5.2006. Leonard, Sarah. “The Use and Effectiveness of Migration Controls as a CounterTerrorism Instrument in the European Union.” Central European Journal of International and Security Studies 4, no. 1 (Spring 2010): 33–50. Levi, Michael. “Lessons for Countering Terrorist Financing from the War on Serious and Organized Crime.” In Countering the Financing of Terrorism, edited by Thomas J. Biersteker and Sue E. Eckert, 260–88. London: Routledge, 2007. Lindstrom, Gustav. Protecting the European Homeland. The CBR Dimension. The European Union Institute for Security Studies, Chaillot Paper No. 69. July 2004. Lodge, Juliet. “Terrorism and the European Community: Towards 1992.” Terrorism & Political Violence 1, no. 1 (January 1989): 28–47. Lopez, George A. et al. Overdue Process: Protecting Human Rights While Sanctioning Alleged Terrorists. April 2009. http://www.fourthfreedom.org/ pdf/Overdue_process.pdf. Accessed 20.9.2009. Lugna, Lauri. “Institutional Framework of the European Union Counter-Terrorism Policy Setting.” Baltic Security & Defence Review 82 (2006): 101–27. Maduro, Miguel Poiares. “So Close and Yet So Far: The Paradoxes of Mutual Recognition.” Journal of European Public Policy, 14, no. 5 (August 2007): 814–25. Mahncke, Dieter. “Introduction.” In International Terrorism. A European Response to a Global Threat? edited by Dieter Mahncke and Jörg Monar, 13– 22. Brussels: Peter Lang, 2006. Mahony, Honor. “EU Anti-Terror Coordinator to Step Down.” EU Observer, 17.2.2004, , accessed 18.2.2004. Mangenot, Michel. “Jeux Europeens et Innovation Institutionnelle. Les Logiques de Creation d’Eurojust (1996–2004).” Cultures & Conflicts 62 (2006): 34–62. Marret, Jean-Luc. Les Fabriques Du Jihad. Paris: Presses Universitaires de France, 2005. McNamara, Thomas E. “Unilateral and Multilateral Strategies Against State Sponsors of Terror: A Case Study of Libya.” In Uniting Against Terror:

Bibliography

269

Cooperative Nonmilitary Responses to the Global Terrorist Threat, edited by David Cortright and George A. Lopez, 83–122. Boston, MA: MIT Press, 2007. Megie, Antoine. “Mapping the Actors of European Judicial Cooperation.” In The Field of the EU Internal Security Agencies, edited by Didier Bigo, 67–96. Paris: L’Harmattan, 2007. Meyer, Christoph O. “International Terrorism as a Force of Homogenization? A Constructivist Approach to Understanding Cross-National Threat Perceptions and Responses.” Cambridge Review of International Affairs 22, no. 4 (December 2009): 647–66. Meyer, Christoph O., and Alister Miskimmon. “Perceptions and Responses to Threats: Introduction.” Cambridge Review of International Affairs 22, no. 4 (December 2009): 625–28. Mitsilegas, Valsamis. EU Criminal Law. UK: Hart Publishing, 2009. ———. “The External Dimension of EU Action Against Terrorism: Challenging European Values with Minimal Accountability.” Presented at the 51st ISA Annual Convention, New Orleans, February 2010. ———. “The Third Wave of Third Pillar Law: Which Direction for EU Criminal Justice?” European Law Review 34, no. 4 (2009): 523–60. Monar, Jörg. “Common Threat and Common Response? The European Union’s Counter-Terrorism Strategy and Its Problems.” Government and Opposition 42, no. 3 (2007): 292–313. ———. “Conclusions. International Terrorism – A ‘European Response’ to a Global Threat?” In International Terrorism. A European Response to a Global Threat? edited by Dieter Mahncke and Jörg Monar, 151–58. Brussels: Peter Lang, 2006. ———. “The Dynamics of Justice and Home Affairs: Laboratories, Driving Factors and Costs.” Journal of Common Market Studies 39, no. 4 (2001): 747–64. ———. “The Hague Programme: Tampere’s Modest Successor.” Challenge Europe 14, 12.9.2005. http://www.eu–newgov.org/database/DELIV/D01D17_ Emergence_NMG_in_JHA.pdf. Accessed 30.05.2008. ———. “Specific Actors, Typology and Development Trends of Modes of Governance in the EU Justice and Home Affairs Domain.” New Modes of Governance Project, 31.5.2006. http://www.eu–newgov.org/database/DELIV/ D01D17_Emergence_NMG_in_JHA.pdf. Accessed 30.05.2008. Müller-Wille, Björn. “The Effect of International Terrorism on EU Intelligence Co-Operation.” Journal of Common Market Studies 46, no. 1 (January 2008): 49–73. ———. For Our Eyes Only? Shaping an Intelligence Community Within the EU. Paris: Institute for Security Studies, January 2004. Occasional Papers No. 50. Napoleoni, Loretta. “Terrorism Financing in Europe.” In Terrorism Financing and State Responses: A Comparative Perspective, edited by Jeanne K. Giraldo and Harold A. Trinkunas, 171–84. Stanford, CA: Stanford University Press, 2007.

270

EU Counterterrorism Policy

National Commission on Terrorist Attacks Upon the United States. Monograph on Terrorist Financing. 21.8.2004. http://govinfo.library.unt.edu/911/staff_ statements/911_TerrFin_Monograph.pdf. Accessed 9.2.2006. Nettesheim, Martin. “U.N. Sanctions Against Individuals – A Challenge to the Architecture of European Union Governance.” Common Market Law Review 44 (2007): 567–600. Neuhold, Hanspeter. “International Terrorism: Definitions, Challenges and Responses.” In International Terrorism. A European Response to a Global Threat? edited by Dieter Mahncke and Jörg Monar, 23–46. Brussels: Peter Lang, 2006. Neumann, Peter R., and Rogers Brook. Recruitment and Mobilisation for the Islamist Militant Movement in Europe. December 2007. King’s College London. http://ec.europa.eu/justice_home/fsj/terrorism/prevention/docs/ec_ radicalisation_study_on_mobilisation_tactics_en.pdf. Accessed 18.5.2010. Nicholson, Marc. “An Essay on Terrorism.” American Diplomacy, 19.8.2003. Nicolaidis, Kalypso. “Trusting the Poles? Constructing Europe Through Mutual Recognition.” Journal of European Public Policy, 14, no. 5 (August 2007): 682–98. Nilsson, Hans. “Judicial Co-Operation in the European Union.” In European CoOperation Against Terrorism, edited by Olivia Horvath and Tim Bremmers. Nijmegen, Netherlands: Wolf Publishers, 2004. ———. “Judicial Cooperation in Europe Against Terrorism.” In The European Union and Terrorism, edited by David Spence, 71–87. London: John Harper Publishing, 2007. ———. “National Versus EU Competences, Judicial Cooperation in the European Union.” In European Cooperation Against Terrorism, edited by Tim Bremmers, 15–22. Nijmegen, Netherlands: Wolf Legal Publishers and EULEC, 2004. Occhipinti, John D. The Politics of EU Police Cooperation: Toward a European FBI? Boulder, CO: Lynne Rienner Publishers, 2003. O’Neill, Maria. “A Critical Analysis of the EU Legal Provisions on Terrorism.” Terrorism and Political Violence 20, no. 1 (January–March 2008): 26–48. OpenEurope. Spain Claims Support from EU’s Big Three for New CounterTerrorism Body. 5.1.2010. http://www.openeurope.org.uk/media-centre/ summary.aspx?id=1003. Accessed 31.5.2010. Oudraat, Chantal de Jonge. “Economic Sanctions and International Peace and Security.” In Leashing the Dogs of War: Conflict Management in a Divided World, edited by Chester A. Crocker, Fen Osler Hampson, and Pamela Aall, 335–51. Washington, DC: United States Institute of Peace Press, 2007. Pape, Robert A. “Dying to Win” – The Strategic Logic of Suicide Terrorism. New York: Random House, 2005. Peek, J. “International Police Cooperation Within Justified Political and Judicial Frameworks: Five Theses on TREVI.” In The Third Pillar of the European Union, edited by Jörg Monar and R. Monar, 201–07. Brussels: European Interuniverstity Press, 1994.

Bibliography

271

Peers, Steve. “EU Responses to Terrorism.” International & Comparative Law Quarterly 52, no. 1 (January 2003): 227–43. ———. “Europol: The Final Step in the Creation of an ‘Investigative and Operational’ European Police Force.” Statewatch. 2007. http://www.statewatch. org/news/2007/jan/europol–analysis.pdf. Accessed 17.04.2008. Peters, Rudolph. “Dutch Extremist Islamism: Van Gogh’s Murderer and His Ideas.” In Jihadi Terrorism and the Radicalization Challenge in Europe, edited by Rik Coolsaet, 115–28. Aldershot, UK: Ashgate Publishing Company, 2008. Peterson, John. “Policy Networks,” edited by Antje Wiener and Thomas Diez, European Integration Theory. Oxford, UK: Oxford University Press, 2004. Peterson, John, and Elisabeth Bomberg. Decision-Making in the European Union. London: Palgrave Macmillan, 1999. Rapoport, David C. “The Four Waves of Modern Terrorism.” In Attacking Terrorism: Elements of a Grand Strategy, edited by Audrey Kurth Cronin and James M. Ludes. Washington, DC: Georgetown University Press, 2004. Ranstorp, Magnus and Jeffrey Cozzens. “The European Terror Challenge.” BBC News. http://news.bbc.co.uk/1/hi/world/europe/3563713.stm. Accessed 24.3.2005. Ratzel, Max-Peter. “Europol – das Europäische Polizeiamt. Teil 1: Geschichte, Organization, Aufgaben, Zuständigkeiten und Rechtsgrundlage.” Kriminalistik 5 (2007): 284–91. ———. “Europol in the Combat of International Terrorism.” In Understanding and Responding to Terrorism, edited by Huseyin Durmaz et al., 11–16. Amsterdam: IOS Press, 2007. Rauchs, G., and D.J. Koenig. “Europol.” In International Police Cooperation, edited by D.J. Koenig and D.K. Das, 43–62. New York: Lexington Books, 2001. Reinares, Fernando. “Conceptualizing International Terrorism.” Real Instituto Elcano, 01.09.2005. http://www.realinstitutoelcano.org/analisis/802.asp. Accessed 20.5.2006. Reinares, Fernando, and Oscar Jaime–Jiménez. “Countering Terrorism in a New Democracy.” In European Democracies Against Terrorism: Governmental Policies and Intergovernmental Cooperation, edited by Fernando Reinares, 119–45. Burlington, VT: Ashgate Publishing Company, 2000. Rhinard, Mark, Arjen Boin, and Magnus Ekengren. “Managing Terrorism: Institutional Capacities and Counter-Terrorism Policy in the EU.” In The European Union and Terrorism, edited by David Spence, 88–104. London: John Harper Publishing, 2007. Richardson, Louise. What Terrorists Want: Understanding the Terrorist Threat. London: John Murray, 2006. Rijken, Conny, and Gert Vermeulen. Joint Investigation Teams in the European Union – From Theory to Practice. The Hague: TMC Asser Press, 2006.

272

EU Counterterrorism Policy

Rosand, Eric. “Security Council Resolution 1373, the Counter-Terrorism Committee, and the Fight Against Terrorism.” American Journal of International Law 97, no. 2 (2003): 333–41. Rosand, Eric, and Alistair Millar. “Strengthening International Law and Global Implementation.” In Uniting Against Terror: Cooperative Nonmilitary Responses to the Global Terrorist Threat, edited by David Cortright and George A. Lopez, 51–82. Boston, MA: MIT Press, 2007. Ross, Jeffrey Ian. “Structural Causes of Oppositional Political Terrorism: Towards a Causal Model.” Journal of Peace Research 30, no. 3 (1993): 317–29. Roy, Olivier. “Al-Qaeda: A True Global Movement.” In Jihadi Terrorism and the Radicalization Challenge in Europe, edited by Rik Coolsaet, 109–14. Aldershot, UK: Ashgate Publishing Company, 2008. ———. ““Euro–Muslims” in Context.” The NYU Review of Law & Security, Special Issue (Summer 2005): 20–21. Sageman, Marc. Understanding Terror Networks. Philadelphia: University of Pennsylvania Press, 2004. Savage, Timothy M. “Europe and Islam: Crescent Waxing, Cultures Clashing.” The Washington Quarterly 27, no. 3 (Summer 2005): 25–50. Scharpf, Fritz W. Governing Europe: Effective and Democratic? Oxford, UK: Oxford University Press, 1999. Schioppa, F. Principles of Mutual Recognition in the European Integration Process. Houndmills, UK: Palgrave Macmillan, 2005. Schmid, Alex. “Terrorism – The Definitional Problem.” Case Western Reserve Journal of International Law 36, no. 2 (2004): 375–419. Schmidt, Susanne K. “Mutual Recognition as a New Mode of Governance.” Journal of European Public Policy, 14, no. 5 (August 2007): 667–81. Schünemann, Bernd. “Europäischer Haftbefehl und EU–Verfassungsentwurf auf Schiefer Ebene – Die Schranken Des Grundgesetzes.” Zeitschrift Für Rechtspolitik 6 (2003): 185–89. Shapiro, Jeremy, and Daniel Byman. “Bridging the Transatlantic Counterterrorism Gap.” The Washington Quarterly 29, no. 4 (Autumn 2006): 33–50. Sievers, Julia. Managing Diversity: The European Arrest Warrant and the Potential of Mutual Recognition as a Mode of Governance in EU Justice and Home Affairs. Paper Presented at the EUSA Tenth Biennial International Conference, Montréal, Canada, 17–19 May 2007. http://www.unc.edu/euce/eusa2007/ papers/sievers–j–08i.pdf. Accessed 20.5.2008. Slaugher, Anne-Marie. “Sovereignty and Power in a Networked World Order.” Stanford Journal of International Law 40, no. 2 (2004): 283–327. Spence, David. “Conclusion: The Continuing Quest for Coherence: Sovereignty, Human Rights and EU Coordination.” In The European Union and Terrorism, edited by David Spence, 168–76. London: John Harper Publishing, 2007. ———. “Introduction. International Terrorism–the Quest for a Coherent EU Response.” In The European Union and Terrorism, edited by David Spence, 1–29. London: John Harper Publishing, 2007.

Bibliography

273

Sprinzak, Ehud. “The Psychopolitical Formation of Extreme Left Terrorism in a Democracy: The Case of Weathermen,” edited by Walter Reich, 65–85. Baltimore, MD: Johns Hopkins University Press, 1990. Statewatch. “Scoreboard” on Post-Madrid Counter-Terrorism Plans.” 23.3.2004. . Accessed 25.8.2004. Stern, Jessica. Terror in the Name of God: Why Religious Militants Kill. New York: Harper Collins, 2003. Stevenson, Jonathan. “How Europe and America Defend Themselves.” Foreign Affairs 82, no. 2 (March/April 2003): 75–91. Storbeck, Jürgen. “The European Union and Enlargement: Challenge and Opportunity for Europol in the Fight Against International Crime.” European Foreign Affairs Review 8 (2003): 283–88. Swallow, Paul. “Transnational Terrorism: Police, Interpol and Europol.” In Future NATO Security: Addressing the Challenges of Evolving Security and Information Sharing Systems and Architectures, edited by Oldrich Cerny and M. Edmonds, 74–76. Amsterdam: ISO Press, 2004. Tappeiner, Imelda. “The Fight Against Terrorism: The Lists and the Gaps.” Utrecht Law Review 11, no. 1 (September 2005): 97–125. Taspinar, Omer. “Europe’s Muslim Street.” Foreign Policy, March/April 2003, 7. Tausch, Arno et al. Why Europe Has to Offer a Better Deal Towards Its Muslim Communities. CAEI–Entelequia, 2006. Thieux, Laurence. “European Security and Global Terrorism: The Strategic Aftermath of the Madrid Bombings.” Perspectives: The Central European Review of International Affairs 22 (Summer 2004): 59–74. Townsend, Adam. “Can the EU Achieve an Area of Freedom, Security and Justice?” Center for European Reform. October 2003. http://www.cer.org.uk/ pdf/opinion_at_jhaoct.pdf. Accessed 25.1.2005. Tsoukala, Anastassia. “Democracy Against Security: The Debates About Counterterrorism in the European Parliament, September 2001–June 2003.” Alternatives: Global, Local, Political 29, no. 4 (August–October 2004): 417– 40. van den Herik, Larissa, and Nico Schrijver. “Human Rights Concerns in Current Targeted Sanctions Regimes from the Perspective of International and European Law.” In Strengthening Targeted Sanctions Through Fair and Clear Procedures. March 2006. Watson Institute for International Studies. http://www.watsoninstitute.org/pub/Strengthening_Targeted_Sanctions.pdf. Accessed 12.5.2009. Vennemann, Nicola. “Country Report on the European Union.” In Terrorism as a Challenge for National and International Law: Security Versus Liberty? Edited by Christian Walter et al. Berlin/Heidelberg: Springer, 2003. http://edoc.mpil. de/conference–on–terrorism/country/eu.pdf. Accessed 14.2.2004. Vlastnik, Jiri. “Eurojust – A Cornerstone of the Federal Criminal Justice System in the EU?” In Security Versus Justice: Police and Judicial Cooperation in

274

EU Counterterrorism Policy

the European Union, edited by Elsepeth Guikd and Florian Geyer, 35–49. Aldershot, UK: Ashgate Publishing Company, 2008. Vlcek, William. “Acts to Combat the Financing of Terrorism: Common Foreign and Security Policy at the European Court of Justice.” European Foreign Affairs Review 11 (Winter 2006): 491–507. von Hippel, Karin. “The Roots of Terrorism: Probing the Myths.” Political Quarterly 73, no. 1 (2002): 25–39. von Wilamowitz-Moellendorff, Ulrich. “Was Halten die Deutschen von Islam?” Konrad Adenauer Foundation Working Paper, May 2003. Waever, Ole. “Societal Security: The Concept.” In Security: A New Framework for Analysis, edited by Barry Buzan, Ole Weaver, and Jaap de Wilde. Boulder, CO: Lynne Riennier Publishers, Inc., 1998. Wielaard, Robert. “EU Proposes Terrorist Database Following Madrid Bombings, Criticizes Foot-Dragging Since Sept. 11.” The Associated Press. 18.3.2004. Wilkinson, Paul. International Terrorism: The Changing Threat and the EU Response. Chaillot Paper No. 84. European Security Studies Institute, October 2005. ———. Terrorism and the Liberal State. London: Macmillan, 1986. Wouters, Jan, and Frederick Naert. “Of Arrest Warrants, Terrorist Offences and Extradition Deals: An Appraisal of the EU’s Main Criminal Law Measures Against Terrorism After ‘11 September.’” Common Market Law Review 41, no. 1 (August 2004): 909–35. Zagari, M.P.M. “Combating Terrorism: Report to the Committee of Legal Affairs and Citizens’ Rights of the European Parliament.” Terrorism & Political Violence 4, no. 4 (Winter 1992): 288–300. Zagaris, Bruce. “Counterterrorism Financial Enforcement Produces Litigation and Controversy.” International Law Enforcement Reporter 18 (2002). ———. “Muslim Charity Sues U.S. for Listing as a Terrorist Financier.” International Law Enforcement Reporter 18 (2002). Zimmermann, Doron. “The European Union and Post–9/11 Counterterrorism: A Reappraisal.” Studies in Conflict & Terrorism 29, no. 2 (2006): 123–45. Zimmermann, Doron, and Andreas Wenger (eds.). How States Fight Terrorism: Policy Dynamics in the West. Boulder, CO: Lynne Rienner Publishers, Inc., 2007.

Index

Amsterdam Treaty 62, 87, 113, 165 Anti-money laundering (AML) 174, 177179, 188, 192-199, 247, 250 Area of Freedom, Security and Justice (AFSJ) 1, 59, 62, 69, 80, 107, 113, 170, 223, 227, 242, 250 Attacks 7/7 (London) 1, 15, 20, 28, 35, 55, 59, 69, 71-80, 155, 184, 222, 227, 232, 238, 243, 253, 255 9/11 (New York/Washington, D.C.) 1, 39, 43, 45, 55-57, 63, 66, 71, 113, 132, 173, 176, 194, 199, 247, 249, 256 3/11 (Madrid) 1, 28, 35, 38, 55, 66-71, 73, 75, 90, 117, 137, 140, 183-184, 232, 236, 243, 253 Bin Laden, Osama 17, 177, 191 Commission of the European Communities 1, 18, 22-23, 62-82, 92-97, 105, 112, 116, 129-130, 138-139, 142143, 155-157, 163-164, 177, 183185, 214, 217, 220, 232, 236-238, 241-243, 253 Common Foreign and Security Policy (CFSP) 68, 80, 141, 210, 233-239, 240, 256 Council of Europe (CoE) 9, 117, 150, 165, 175, 257 Council of the European Union 9, 59-82, 88-89, 93, 97-98, 106-107, 109, 111-117, 128-132, 138-144, 152, 155-156, 165-166, 180-181, 185, 198, 206-211, 221-222, 232, 236, 240, 242, 252-253, 257 Club of Berne, Counter-Terrorism Group (CTG) 95-96, 98 Court of First Instance (CFI) 207-209, 215

Data Exchange 122-123 Protection 87, 94, 121-122, 125, 143, 227 De-radicalization, see Radicalization Eurobarometer 32, 39-45, 57, 243, 246 Eurojust 2, 9, 34, 53, 87-88, 98, 105, 111135, 140, 143, 153, 161, 164-166, 171, 248, 252 European Arrest Warrant (EAW) 2, 28, 63, 135, 149-171, 252 European Court of Justice (ECJ) 107, 130, 163-166, 211, 214-216, 225, 240241, 254 European Judicial Network (EJN) 112, 130, 161, 164 European Parliament (EP) 64, 76, 107, 116, 220, 222, 225, 227, 240-242 European Public Prosecutor (EPP) 131 European Security Strategy (ESS) 1, 54, 233, 257 Europol 2, 9, 34, 53, 61, 63, 79, 85-109, 111-112, 114-115, 117, 121-125, 128, 130, 138, 140, 143, 164-166, 234, 247-248, 252 Analytical Working Files (AWFs) 88, 104, 107, 121-123 Counter Terrorism Task Force (CTTF) 89-90, 123 Terrorism Situation and Trend Report (TESAT) 32-34, 53, 103-104, 123 EU Counterterrorism Coordinator (EU CTC) 2, 5, 68, 75, 107, 117, 123, 137-145, 169, 197, 229, 234, 237, 239, 244 EU Counterterrorism Strategy 1, 54, 71, 73, 104, 142, 198, 229, 233-239, 243

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First pillar 62, 152, 161, 163, 165-166, 179-180, 199, 237, 240 Financial Action Taskforce (FATF) 165, 173, 177-179, 186, 194-196, 198, 223, 247 Freedom, see Area of Freedom, Security and Justice Hague Programme 69-71, 80-82, 161, 225 Harmonization 86, 126, 152, 158-159, 162171, 231 Implementation 2-3, 5, 9, 28, 61-62, 66-71, 79-82, 89, 95, 109, 119, 134, 138142, 149-150, 154-155, 159-171, 175-178, 186-187, 196-199, 206, 209, 211, 217, 224, 232, 240-241, 247, 250, 253, 255 Intelligence 53, 60, 67-68, 76, 78, 85-110, 120-121, 125, 132, 144, 169, 174, 177, 179, 183, 186-187, 205, 211, 221, 224, 229, 238, 247, 252, 257 Joint Investigation Team (JIT) 89, 107, 119, 125, 149 Judicial cooperation, see Eurojust Justice, see Area of Freedom, Security and Justice Justice and Home Affairs (JHA) 45, 59-66, 96-97, 70, 113, 141-143, 149-151, 161-166, 170-171, 230, 233-234, 240-243, 254-255 Lisbon Treaty 111, 120, 122, 130-131, 137, 144, 161, 166, 199, 219, 227, 230-231, 233, 239-244, 249, 253, 255, 257 Migration 32, 46, 49-51, 60-61, 69, 97, 249-250 Money laundering, see anti-money laundering Mutual recognition 126, 149, 152-171, 242 Organizations Al-Qaeda 12, 16, 18, 24, 36-38, 57, 66, 71, 144, 175, 177, 180-183, 189190, 211, 213

ETA 40, 62, 185, 257 IRA 40, 62, 95, 184 People’s Mujahedeen of Iran (PMOI, also known as Mujahedine Khalq – MEK) 207-209 Red Army 22, 40, 62 Police cooperation, see Europol Police Working Group on Terrorism (PWGT) 95, 101 Prüm Treaty 97, 224, 230-231 Radicalization 9-27, 38-39, 46, 69, 71-76, 96, 239, 247, 257 De-radicalization 71-76 Self-radicalization 20, 75 Recruitment 9-27 Self-recruitment 12, 18 Sanctions 5, 129, 167, 173-177, 182-192, 195, 198-199, 206-210, 212-218, 247 Second pillar, see Common Foreign and Security Policy Security, see Area of Freedom, Security and Justice Situation Center (SitCen/SITCEN) 53, 68, 74, 98, 101, 102, 104, 132, 144, 234 Sovereignty 43, 94, 129, 161-170, 255 Stockholm Programme 105, 120, 227 Tampere Programme 62, 69-70, 151, 225 Terrorism Data/Statistics 32-35 Financing 2, 67, 70, 118, 134, 143, 173-199, 203, 206, 221, 247, 257 Homegrown 35-39, 71, 184, 189, 199 Jihadist 9-27, 38, 51, 54 Perceptions 16, 31-32, 39-46, 52-55, 71, 82, 105, 231-232, 235, 244, 254 Root causes, see radicalization Third pillar, see Justice and Home Affairs Treaty on European Union (TEU) 1, 61, 151, 180, 225, 239 TREVI 60-62, 112, 229-231

Index United Nations (UN) 139, 176-177, 181, 206-218, 223 United States of America (US/USA) 1, 3536, 56, 64, 66, 76, 87, 89, 95, 103, 118, 182-184, 186-187, 191, 194, 212, 239

War on terror 43, 56-58, 238

277