EU counterterrorism policy: A paper tiger?

Terrorism and Political Violence

Volumn 18, Issue 1, 2006, Pages 57-78

  Bures, Oldrich ^a,b  

^a PALACKÝ UNIVERSITY   (Czech Republic)

^b UNIVERSITY OF NOTRE DAME   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 32144436898     PISSN: 09546553     EISSN: None     Source Type: Journal    
DOI: 10.1080/09546550500174905     Document Type: Article

References (124)

1. The main feature of EPC was consultation among the Member States on foreign policy issues. Launched in 1970, EPC was formally enshrined in the Single European Act (SEA) in 1987.
2. Malcom Anderson, "Counterterrorism as an Objective of European Police Cooperation," in Fernando Reinares, ed., European Democracies Against Terrorism: Governmental Policies and Intergovernmental Cooperation (Burlington, VT: Ashgate Publishing, 2000), 229.
3. Paul Wilkinson, Terrorism and the Liberal State (London: Macmillan, 1986), 292.
4. Juliet Lodge, "Terrorism and the European Community: Towards 1992" Terrorism and Political Violence 1, no. 1 (1989): 30.
5. For further information, see Meliton Cardona, "The European Response to Terrorism," Terrorism and Political Violence 4, no. 4 (1992): 252-53;
6. Lodge, "Terrorism and the European Community," 36-40.
7. Lodge, "Terrorism and the European Community," 30.
8. Cardona, "European Response to Terrorism," 251.
9. M. P. M. Zagari, "Combating Terrorism: Report to the Committee of Legal Affairs and Citizens' Rights of the European Parliament," Terrorism and Political Violence 4, no. 4 (1992): 292.
10. Lodge, "Terrorism and the European Community," 32.
11. Cardona, "European Response to Terrorism," 252.
12. Zagari, "Combating Terrorism," 293.
13. Lodge, "Terrorism and the Eurpoean Community," 42.
14. Lodge, "Terrorism and the Eurpoean Community,", Ibid.
15. Article K.I. After subsequent Treaty of Amsterdam revisions, Article 29.
16. 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, EN OJ C 026 (1999), 0022-22.
17. Monica Den Boer and Jörg Monar, "Keynote Article: 11 September and the Challenge of Global Terrorism to the EU as a Security Actor," in Geoffrey Edwards and Georg Wiessala, eds., The European Union; Annual Review of the EU 2001/2002 (Oxford, UK: Blackwell, 2002), 21.
18. European Commission, "Proposal for a Council Framework Decision on Combating Terrorism," in COM (2001) 521 Final (Brussels, 2001), 5.
19. These include: powers to make national criminal laws more similar; make national police forces and prosecutors work together more effectively; build a common border guard; develop common asylum and visa policies; make the EU courts more efficient; and guarantee the rights of individuals. Adam Townsend, "Can the EU Achieve an Area of Freedom, Security and Justice?" (October 2003) available at http://www.cer.org.uk/pdf/opinion.at_jhaoct.pdf (accessed 25 Jan. 2005).
20. Den Boer and Monar, "Keynote Article," 21.
21. Anastassia Tsoukala, "Democracy against Security: The Debates about Counterterrorism in the European Parliament, September 2001-June 2003," Alternatives: Global, Local, Political 29, no. 4 (2004): 29.
22. In October 1995, for example, the Council adopted the La Gomera Declaration, which "affirmed that terrorism constitutes a threat to democracy, to the free exercise of human rights and to economic and social development." Council of the European Union, Council Framework Decision of 13 June 2002 on Combating Terrorism, EN OJ L 164 (2002), 0003-0007 (Article 2). The representatives of EU Member States also repeatedly publicly condemned terrorist acts as contradictory to the basic universal values of human dignity, liberty, equality, and solidarity upon which the European Union is founded.
23. Council of the European Union, "Conclusions and Plan of Action of the Extraordinary European Council Meeting on 21 September 2001," (September 2001) available at http://europa.eu.int/comm/external_relations/ 110901/actplan01.pdf SN 140/01 (accessed 10 Feb. 2004).
24. It is important to note that in addition to the comprehensive European policy to combat terrorism, there were two other areas where the Council specifically reaffirmed "its firm determination to act in concert in all circumstances," - "Solidarity and cooperation with the United States," and "The Union's involvement in the world." Conclusions and Plan of Action of the Extraordinary European Council Meeting on 21 September 2001, 2001, http://europa.eu.int/comm/external_relations/110901/actplan01. pdfSN140/01, Ibid.
25. For the purposes of this essay, I will only discuss those aspects of EU's cooperation with the U.S. that primarily fall in the area of Justice and Home Affairs. For a comprehensive analysis of other aspects of EU-U.S. cooperation in the area of counterterrorism, see Deniz A. Akgül, "The European Union Response to September 11: Relations with the US and the Failure to Maintain a CFSP," The Review of International Affairs 1, no. 4 (2002): 1-24;
26. Den Boer and Monar, "Keynote Article," 11-28;
27. 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): 317-335.
28. For an official overview of EU's external actions in the area of counterterrorism, see European Union, Supplementary Report by the European Union to the Committee Established Under Paragraph 6 of Security Council Resolution 1373 (2001), S/2002/928 (New York: United Nations, 2002), 4-9;
29. European Commission, Commission Staff Working Paper (2002), 1-11SEC (2002) 231.
30. Dubois, "Attacks of 11 September," 324.
31. European Commission, "Extradition & Surrender Procedures across the EU - European Commission," (2004) available at http://europa.eu.int/ comm/justice.home/fsj/criminal/extradition/fsj-criminal_extradition-en.htm (accessed 19 Mar. 2004).
32. Den Boer and Monar, "Keynote Article," 21.
33. Italy was the most reluctant of all EU member states to give its assent to the EAW. It claimed that the thirty-two offenses were too many and wanted the warrant's thirty-two offenses reduced to six, including terrorism but excluding financial crimes. Press reports speculated that this position was due to allegations of corruption and tax evasion pending against Prime Minister Berlusconi in Italy and elsewhere in Europe. Kristin Archick, "Europe and Counterterrorism: Strengthening Police," Congressional Research Service Report to Congress (23 July 2002) available at http://www.law.umaryland.edu/ marshall/ElectronicResources/crsreports/crsdocuments/RL31509_07232002.pdf (accessed 28 Jan. 2005).
34. 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, EN OJ L 190 (2002), 0001-0020.
35. The state in which the person is arrested must return him/her to the state where the EAW was issued within a maximum period of ninty days after the arrest. If the detained person gives his/her consent to the surrender, the limit is ten days.
36. In contrast, the traditional international extradition procedure requires a separate procedure for arrest and surrender.
37. The abolition of double criminality 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.
38. Jonathan Stevenson, "How Europe and America Defend Themselves," Foreign Affairs 82, no. 2 (2003): 83.
39. Filip Jasinski, "The European Union and Terrorism," The Polish Quarterly of International Affairs 11, no. 2 (2002): 44.
40. European Commission, "Extradition & Surrender."
41. Archick, "Europe and Counterterrorism," 7, 12.
42. European Commission, "European Commission Action Paper in Response to the Terrorist Attacks on Madrid" (March 2004) available at http://europa.eu.int/comm/justice_home/fsj/criminal/extradition/ fsj_criminal_extradition_en.htm (accessed 19 March 2004).
43. The report did not name the laggards but the European press quickly filled in this information gap. The five Member States that have not duly implemented the EAW Frame-work Decision are the following: Austria, Germany, Greece, Italy, and the Netherlands. David Yelland and Rory Watson, "Brussels Backs the Creation of Anti-Terror Czar," The Times, 19 Mar. 2004, 18.
44. John D. Occhipinti, The Politics of EU Police Cooperation (Boulder, CO: Lynne Rienner, 2003), 149, 165-166.
45. 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, EN OJ L 016 (2003), 0068-70.
46. Council of the European Union, EN (2001)SN 3926/6/01, REV 6.
47. Council of the European Union, "Extraordinary European Council."
48. Nora Bensahel, "The Counterterror Coalitions: Cooperation with Europe, NATO, and the European Union" (RAND, 2003) available at http://www.rand.org/publications/MR/MR1746/MR1746.pdf MR-1746-AF (accessed 10 Jan. 2005).
49. Statewatch, "'Scoreboard' on Post-Madrid CounterTerrorism Plans," (2004): 18, available at http://www.statewatch.org/news/2004/mar/ swscoreboard.pdf (accessed 25 Aug. 2004). A "new" CTTF was put in place in the aftermath of the Madrid terrorist attacks but as of October 2004, it performed only limited operation and was without a full complement of staff. (I am grateful to an anonymous reviewer for providing this information.)
50. Stevenson, "How Europe and America Defend Themselves," 81.
51. Nicola Vennemann, "Country Report on the European Union" (Conference on Terrorism Report, 2003) available at http://edoc.mpil.de/ conference-on-terrorism/country/eu.pdf Springer: Berlin/Heidelberg (accessed 14 Jan. 2004).
52. In 2003, Europol had a staff of about 350, including fifty liaison officers from national police, customs, immigration, and intelligence agencies. Europol has also seen its budget double to the 52 million since it became operational in 1998 but in comparison to the FBI's almost 30,000 employees and $3 billion annual budget, Europol remains miniscule. Stevenson, "How Europe and America Defend Themselves," 87.
53. Archick, "Europe and Countertorrorism," 10.
54. Jitendra Joshi, "After Madrid, EU's Nascent Anti-Terror Strategy Under Focus" (Agence France Presse, 15 Mar. 2004) available through a LexisNexis News Search (accessed 19 Mar. 2004).
55. The EU Situation Center (SITCEN), was created by the EU's Common and Foreign Security Representative Javier Solana to provide external intelligence and analysis to the Member States.
56. Judy Dempsey, "Europe at Loggerheads Over How to Co-Ordinate on Terrorism," Financial Times, 18 March 2004, A6.
57. At the Council level, two working groups are fully devoted to the fight against terrorism. The representatives of Member States' Ministries of Interior/law enforcement agencies have been meeting under the auspices of Terrorist Working Group (TGW). TGW gathers three times per Presidency and deals with internal threat assessments, practical law-enforcement cooperation and coordination among EU bodies in the JHA pillar. The representatives of Member States Ministries of Foreign Affairs (and in some Member States of external security services) meet as the Working Party on Terrorism (External Aspects-better known as COTER). They discuss issues relating to external matters, threat assessments, and policy recommendations as regards third countries and regions, implementations of UN conventions and coordination of work, in particular in the UN, and in the CFSP pillar in general. For the last two years, TWO and COTER have held, once per Presidency, a joint meeting in order to integrate the internal and external dimension of EU's counterterrorism policy. They have also functioned as "senior groups," alongside the meetings of the EU Police Chiefs Operational Task Force (PCOTF) and the Counter-Terrorist Group (CTG). PCOTF was set up to share best practices in counterterrorism and as such it has also been holding regular meetings with the heads of EU Member States' Counter Terrorist Units in order to exchange information and experiences. The Counter-Terrorist Group (CTG) coordinates the activities of non-police intelligence agencies and produces assessment reports on the threat posed by radical Sunni Islam. For more information, see Council of the European Union, "Declaration on Combating Terrorism is Adopted in Brussels" (Brussels, 2004) available at http://www.eu2004.ie/templates/ news.asp?sNavlocator=66&list_id=462 (accessed 14 Apr. 2004).
58. Dempsey, "Europe at Loggerheads," 6.
59. Bensahel, "Counterterror Coalitions," 40.
60. Council of the European Union, "Provisional Findings of the Two 'Peer Evaluation' Mechanisms Affecting the Union Fight Against Terrorism' (Brussels, 26 May 2004): 19, available at http://www.statewatch.org/news/2004/ jun/eu-plan-terr-eval.pdf (accessed 14 Aug. 2004).
61. Provisional Findings of the Two 'Peer Evaluation' Mechanisms Affecting the Union Fight Against Terrorism, 2004, 19, http://www.statewatch.org/news/ 2004/jun/eu-plan-terr-eval.pdf, Ibid.
62. Bensahel, "Counterterror Coalitions," 40.
63. Quoted in Archick, "Europe and Counterterrorism," 9.
64. European Commission, "Response to the Terrorist Attacks on Madrid."
65. In the early 1990s, the desire of EU Member States to keep control over the two most sensitive policy areas (Foreign and Security Policy & Justice and Home Affairs) was one of the primary reasons that the EU was established with three discrete "pillars." As of early 2005, it appears that in the JHA pillar, most Member States continue to prefer the intergovernmental principle of decision making, which means that any common policy must emerge through consensus and cannot be dictated by supranational EU institutions.
66. Bensahel, "Counterterror Coalitions," 40.
67. In cases of assistance in cross-border judicial cooperation, Eurojust is working alongside another recently established unit - the European Judicial Network (EJN), which became operational in 1998. While EJN is essentially a decentralized information-sharing network connecting EU lawyers and judges working on criminal cases, Eurojust is a centralized unit.
68. European Commission, "Eurojust Coordinating Cross-Border Prosecutions at EU Level" (Brussels, 2004) available at: http://europa.eu.int/comm/justice_home/fsj/criminal/eurojust/ fsj_criminal_eurojust_en.htm (accessed 19 Mar. 2004).
69. Bensahel, "Counterterror Coalitions," 41.
70. European Commission, "Eurojust Coordinating."
71. Bensahel, "Counterterror Coalitions," 41
72. Dubois, "Attacks of 11 September," 328.
73. Den Boer and Monar, "Keynote Article," 23.
74. Vennemann, "Country Report on the European Union," 50.
75. European Commission, "Eurojust Coordinating."
76. European Commission, "The Fight Against Terrorism: The Commission Proposes Measures on the Exchange of Information and on the 'European Criminal Record,'" IP/04/425 (Brussels, 30 Mar. 2004) available at http://europa.eu.int/rapid/start/gi/guesten.ksh?p_action.gettxt=gt&doc=IP/ 04/425|0|RAPID&lg=EN&display = (accessed 14 Apr. 2004).
77. European Commission, "Eurojust Coordinating."
78. The original decision to establish a Eurojust was made by the Tampere JHA Council in October 1999. The 2001 Treaty of Nice provided an explicit basis for this new organization and the new unit became fully operational in February 2002.
79. Dempsey, "Europe at Loggerheads," 6.
80. European Commission, "Response to the Terrorist Attacks on Madrid."
81. "Response to the Terrorist Attacks on Madrid." Ibid.
82. Jasinski, "European Union and Terrorism," 54.
83. I am grateful to an anonymous reviewer for formulating this explanation.
84. Council of the European Union, Proposal for a Council Framework Decision on Combating Terrorism, Outcome of Proceedings of the Council, EN (2001)14845/1/01 REV 1.
85. Steve Peers, "EU Responses to Terrorism," International & Comparative Law Quarterly 52, no. 1 (2003): 228.
86. Archick, "Europe and Counterterrorism," 8.
87. Vennemann, "Country Report," 19.
88. 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 Mar. 2003), 11, available at http://www.statewatch.org/news/2003/apr/CFR-CDF.ThemCommentl.pdf (accessed 10 Feb. 2004).
89. Original emphasis. Peers, "EV Responses," 243.
90. Prior to September 11, terrorism was recognized as a special offence only in six EU Member States - Britain, France, Germany, Italy, Portugal, and Spain. Jasinski, "European Union and Terrorism," 43.
91. Dubois, "Attacks of 11 September," 326.
92. European Commission, "Response to the Terrorist on Madrid."
93. Council of the European Union, Council Common Position of 27 December 2001 on the Application of Specific Measures to Combat Terrorism, EN OJ L 344 (2001), 0093-96.
94. The inclusion of organizations such as the Kurdistan Workers' Party and the Revolutionary Forces of Colombia indicates that the restrictive approach to terrorism of the Framework Decision, which excludes from its scope actions by armed forces during periods of armed conflict governed by international humanitarian law, is not adopted by the 2001/931/CFSP Common Position. Council of the European Union, Council Common Position 2004/500/CFSP of 17 May 2004 Updating Common Position 2001/931/CFSP on the Application of Specific Measures to Combat Terrorism and Repealing Common Position 2004/309/CFSP,OJ L 196, 03/06/2004 0012-0016.
95. E.U. Network of Independent Experts in Fundamental Rights, "Balance Between Freedom and Security," 41.
96. European Union, Supplementry Report, 4-9.
97. 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.
98. Dubois, "Attacks of 11 September," 323.
99. As of April 2004, the list established on the basis of the Regulation (EC) No 2580/2001 contained the names of twenty-six individuals and twenty-five entities.
100. For example, as of April 2004, the Consolidated List of Financial Sanctions Targets in the UK (managed by the Bank of England) contained names of fifty-eight individuals and fifty-three entities considered as terrorists. Bank of England, "Consolidated List of Financial Sanctions Targets in the UK" (London, 2 Apr. 2004) available at http://www.bankofengland.co.uk/ sanctions/terrorism.htm (accessed 14 Apr. 2004).
101. Although there is still some debate among legal scholars as to the extent to which the EU is bound by the UN Security Council resolutions, there is nowadays no longer any doubt that the implementation of embargo orders by the UN Security Council falls under the competence of the EU. Article 301, also known as the "embargo Article," was incorporated into the Treaty of Maastricht precisely with the aim of putting an end to such discussions on whether and to what extent the Community law provides the basis for an exclusive EC competence in implementing trade embargoes. In the case of Al Qaeda, however, the Council had to rely on a number of other Treaty Articles because the "embargo Article" referred only to embargoes directed against state actors. Vennemann, "Country Report," 26.
102. Council of the European Union, Council Common Position Concerning Restrictive Measures Against the Taliban, EN OJ L 294 (1999) OJ L 294;
103. Council of the European Union (note 22); Council 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, EN OJ L 139 (2002) OJ L 139.
104. Vennemann, "Country Report," 29.
105. Edward Alden, "Europe Freezes Terrorist Assets Worth $35 Million," Financial Times, 7 Apr. 2002, available at http://specials.ft. com/attackonterrorism/FT39YWK5SZC.html (accessed 14 Apr. 2004).
106. Robert Wielaard, "EU Proposes Terrorist Database Following Madrid Bombings, Criticizes Foot-Dragging Since Sept. 11," The Associated Press, 18 Mar. 2004, available through LexisNexis News Search (accessed 19 Mar. 2004).
107. U.S. Department of the Treasury, "Treasury Announces Joint Action with Saudi Arabia against Four Branches of Al-Haramain in the Fight Against Terrorist Financing," Press release JS-1108 22 Jan. 2004, available at http://www.treasury.gov/press/releases/js1108.htm (accessed 14 Apr. 2004).
108. Jimmy Gerulé, "Locking Down Terrorist Finance," Lecture (University of Notre Dame, 5 May 2004).
109. The EU-U.S. comparison may be somewhat misleading because the EU and U.S. definitions of financial assets differ substantially. Nevertheless, the difference between the amounts frozen by respective EU and U.S. authorities is so substantial that the comparison is plausible. For details about the U.S. Financial Sanctions model, see Richard R. Newcomb, "Targeted Financial Sanctions: The U.S. Model," in David Cortright and George A. Lopez, eds., Targeting Economic Statecraft (Boulder, CO: Rowman & Littlefield, 2002), 41-64.
110. Laurence Thieux, "European Security and Global Terrorism: The Strategic After-math of the Madrid Bombings," Perspectives: The Central European Review of International Affairs 22 (2004): 62.
111. European Commission, "Response to the Terrorist Attacks on Madrid."
112. "Response to the Terrorist Attacks on Madrid.", Ibid.
113. BBC Monitoring International Reports 18 March 2004, available through Lexis-Nexis News Search (accessed 10 Apr. 2004).
114. European Commission, "Response to the Terrorist Attacks on Madrid."
115. Jitendra Joshi, "EU Holds Emergency Terror Talks After Madrid Blasts," Agence France Presse, 19 March 2004, available through LexisNexis News Search (accessed 19 Mar. 2004).
116. Jitendra Joshi, "EU Holds Emergency Terror Talks After Madrid Blasts," Agence France Presse, 2004, Ibid.
117. Council of the European Union, "European Council to Focus on Fight against Terrorism," Press release DN: PRES/04/81 (2004), available at http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.gettxt=gt&doc= PRES/04/81|0|RAPID&lg=EN&display= (accessed 19 Mar. 2004).
118. Council of the European Union, "Declaration on Combating Terrorism" (Brussels, 2004) available at http://www.eu2004.ie/templates/ news.asp?sNavlocator=66&listi_id=462 (accessed 14 Apr. 2004).
119. Rory Watson, "Brussels Backs Creation of Anti-Terror Czar," The Times, 19 Mar. 2004, 18.
120. Thieux, "European Security and Global Terrorism," 60.
121. Council of the European Union, "Declaration on Combating Terrorism is adopted in Brussels" (Brussels, 2004) available at http://www.eu2004.ie/ templates/news.asp?sNavlocator = 66&list_id=462 (accessed 14 Apr. 2004).
122. Vennemann, "Country Report," 53.
123. Dubois, "Attacks of 11 September," 330.
124. Dubois, "Attacks of 11 September,", Ibid., 327.