The European Union and post-9/11 counterterrorism: A reappraisal

Studies in Conflict and Terrorism

Volumn 29, Issue 2, 2006, Pages 123-145

  Zimmermann, Doron ^a  

^a ETH ZURICH   (Switzerland)

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[No Author keywords available]

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EID: 33244497393     PISSN: 1057610X     EISSN: 15210731     Source Type: Journal    
DOI: 10.1080/10576100500522215     Document Type: Article

References (108)

1. Therese Delpech, International Terrorism in Europe, Chaillot Papers No. 56 (Paris: Institute for Security Studies, 2002), p. 21;
2. also cf. "European Convention on the Suppression of Terrorism," Strasbourg, 27 January, 1977.
3. According to Tony Bunyan of Statewatch, "[o]f the eleven measures being rushed through in the EU, six were proposed before 11 September and another four were firmly on the EU's agenda."
4. Tony Bunyan, "Statewatch Analyses of Post-11 September EU Measures Affecting Civil Liberties and Accountability," Statewatch, 14 October 2001, available at (www.statewatch.org/news/2001/oct/14analyses.htm), accessed 14 July 2004.
5. European Union Factsheet, "EU and the Fight Against Terrorism," published by the European Union on the occasion of the EU-U.S. Summit, Dromoland Castle, Ireland, 26 June 2004.
6. Delpech, op. cit., p. 31.
7. In practice and where the Union's counterterrorism efforts are concerned, the division between the "justice model" and other approaches up to and including the so-called war model of combating terrorism is not Manichean. And although the EU's policymaking bodies, judging by the Union recent efforts at integration of intelligence resources for counterterrorism purposes on different levels, do consider means other than classical investigative or constabulary endeavors in the fight against terrorism, their approach is still a far cry from an "integral model" combining law-enforcement and intelligence with military muscle and public diplomacy/information operations. Significantly, the Union's approach to countering terrorism does not envision an important role of military resources. The reasons for this approach are not unequivocal.
8. Cf. notes 84 and 85, infra.
9. According to one report issued as late as 12 October 2004 and addressing the progress of implementing the Framework Decision, "[b]y the deadline of Article 11 (1), only two Member States had introduced specific legislation on terrorism, while at least five had legislation on the matter previous to the framework decision. Six members had adopted new measures transposing the Framework Decision after the Deadline." With reference to the tardy implementation of provisions regulating terrorist offenses, the authors of the report conclude that the behavior of member states "may disrupt the systematic and political aim of this instrument and the clarity of implementation, and can hinder the full implementation of relating provisions." Council of the European Union, "Report on the Implementation of the Framework Decision 2002/475/JHA of 13 June 2002 on Combating Terrorism," Brussels, 12 October 2004, pp. 6-7.
10. Peter Chalk, West European Terrorism and Counterterrorism. The Evolving Dynamic (Basingstoke, 1996), p. 123.
11. Ibid., pp. 125-127.
12. Schengen I was signed in 1985 and removed the internal borders of Germany, France, and the Benelux countries. Schengen II was more comprehensive than its predecessor; it included all member states of the European Union minus Denmark, Ireland, and the United Kingdom.
13. This arrangement should not be confused with the Schengen Agreement, for the territory covered by Schengen excludes the British Isles and Denmark, and includes Norway - which is not a member of the European Union.
14. Monica den Boer, "The EU Counterterrorism Wave: Window of Opportunity or Profound Policy Transformation?," in Marianne van Leeuwen (ed.), Confronting Terrorism. European Experiences, Threat Perceptions and Policies (The Hague: Kluwer, 2003), pp. 185-206, at p. 188.
15. Ibid.
16. Peter Chalk, "The Third Pillar on Judicial and Home Affairs Cooperation, Anti-terrorist Collaboration and Liberal Democratic Acceptability," in Fernando Reinares (ed.), European Democracies Against Terrorism. Governmental Policies and Intergovernmental Cooperation (Aldershot, 2000), pp. 175-210, at p. 175.
17. Chalk, West European Terrorism and Counterterrorism, op. cit., p. 129.
18. Monica den Boer, op. cit., p. 189.
19. Since the United States first began deploying military forces against sub-state political violence movements involved in terrorist activity, the transatlantic cleavage concerning counterterrorism policy had been progressively widening (e.g. Libya, 1986; Afghanistan and Sudan, August 1998 et al.).
20. For the unfolding transatlantic divide due to diverging counterterrorism policies since the 1980s cf. Doron Zimmermann and Andreas Wenger, "Developing Counter-Terrorism Policy in the West: Efficiency and Legitimacy," in Doron Zimmerman and Andreas Wenger, eds., How States Fight Terrorism: Policy Dynamics in Fhe West (Boulder, CO: forthcoming 2006, n.p.).
21. "Joint EU-US Ministerial Statement on Combating Terrorism, 20 September 2001," EU Press Release, Brussels, 24 September 2001, available at ((http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/er/12109.en1.htm), accessed 25 January 2005.
22. Cooperation between the Union and the United States includes information exchange in aviation, ground and sea transport security, police and judicial cooperation, interruption of terrorist financing, nonproliferation issues, border control, and access to databases. Cf. Natalie Pauwels, "The EU Takes on Terrorism," European Security Review, No. 8 (October 2001), pp. 2-3.
23. On this subject see also European Union, "European Union Factsheet," op. cit., especially the section entitled "What the EU and the US have done jointly," p. 2.
24. Europe's initial gesture of its will to support the United States against Al Qaeda and its Islamist-associated groups originated elsewhere: For the first time in the history of NATO, Article 5, the collective defense clause of the alliance was invoked as a result of 9/ 11.
25. Tony Bunyan, "EU Anti-Terrorism Action Plan: Operational Measures," Statewatch, 14 October 2001, available at (www.statewatch.org/news/2001/ oct/14analyses.htm), accessed 14 July 2004.
26. Council of the European Union, Council Common Position of 27 December 2001 on Combating Terrorism, Official Journal L344, 28/12/2001 P. 0090-0092, available at (http://europa.eu.int/eur-lex/pri/en/oj/dat/2001/l_344/ l_34420011228en00900092.pdf), accessed 25 January 2005.
27. This list is based on that of Monica den Boer, op. cit., p. 190.
28. Daniel Benjamin, Amb. Thomas E. McNamara, and Steven Simon, "The Neglected Instrument: Multilateral Counterterrorism," CSIS draft paper in the author's possession and presented on the occasion of the conference on "Prosecuting Terrorism: The Global Challenge," held in Florence, Italy, 3-5 June 2004.
29. The PCTF is the Union-proprietary version of the older, ad-hoc Police Working Group on Terrorism (PWGOT), which operates outside the EU framework. According to Statewatch, "[t]he Polic Chiefs' Operational Task Force was created under a Recommendation from the Tampere European Council in 1999. It is an ad-hoc body that has no legal or constitutional status in the EU - it is therefore not accountable." Statewatch, Statewatch "Scoreboard" on EU Counterterrorism Plans, London, 23 March 2004, available at (http://www.statewatch.org/news/2004/mar/swscoreboard.pdf), accessed 25 January 2005, p. 2.
30. A Secure Europe in a Better World. European Security Strategy, Brussels, 12 December 2003, p. 12, available at (http://ue.eu.int/uedocs/cmsUpload/78367.pdf), accessed 25 January 2005. The concept of "Anti-terrorism clauses in EU agreements with third countries" is addressed in a EU Commission Staff Working Paper: Commission of the European Communities, European Security Strategy: Fight Against Terrorism, SEC(2004) 332, Brussels 19 March 2004, p. 11.
31. This issue is slowly but surely being addressed by the Union. On 22 November 2004, it adopted the conceptual framework on the ESDP dimension against terrorism. Council of the European Union, "EU Plan of Action on Combating Terrorism - Update," Doc. No. 16090/04, Brussels, 14 December 2004, p. 2, available at (http://register.consilium.eu.int/pdf/en/04/st16/st16090.en04.pdf), accessed 25 January 2005.
32. Gijs de Vries, transcript of article, Financial Times, 30 November 2004, available at (http://ue.eu.int/uedocs/cmsUpload/ Article_Financial_Times_30.November.2004.pdf), accessed 25 January 2005.
33. Ibid., p. 25.
34. Ibid., p. 3.
35. Dana Priest, "Help From France Key In Covert Operations," Washington Post, 3 July 2005, available at (http://www.washingtonpost.com/wp-dyn/content/article/2005/07/02/ AR2005070201361.htm),l?referrer=email), accessed 4 July 2005.
36. Adam Townsend, "Keeping EU-US Anti-Terror Cooperation on Track," EuropeanVoice.com, 3 July 2003, available at (http://www.cer.org.uk/articles/townsend_europeanvoice_jul03.htm), accessed 27 January 2005;
37. Transatlantic Dialogue on Terrorism - Initial Findings, Center for Strategic and International Studies (CSIS), August 2004, [n.p.] (page 16 in the PDF file), available at (http://www.csis.org/isp/0408_transatlanticterrorism.pdf), accessed 16 September 2004.
38. Council of the European Union, "EU-U.S. Declaration on Combating Terrorism," Dromoland Castle, Ireland, 26 June 2004, available at (http://ue.eu.int/Newsroom accessed 26 January 2005.
39. Council of the European Union, "Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States," Official Journal L 190, 18/07/2002 P. 0001_0020, available at (http://europa.eu.int/eur-lex/pri/en/oj/dat/2002/l_190/ l_19020020718en00010018.pdf), accessed 25 January 2005.
40. Council of the European Union, "Council Framework Decision of 13 June 2002 on Joint Investigation Teams," Official Journal L 162, 20/06/2002 P.0001_0003, available at (http://europa.eu.int/eur-lex/pri/en/oj/dat/2002/l_162/ l_16220020620en00010003.pdf), accessed 25 January 2005.
41. Council of the European Union, "Council Framework Decision of 13 June 2002 on Combating Terrorism," Official Journal L 164, 22/06/2002 P. 0003-0007, available at (http://europa.eu.int/eur-lex/pri/en/oj/dat/2002/l_164/ l_16420020622en00030007.pdf), accessed 25 January 2005.
42. Also see "Fight Against Terrorism", available at (www.europa.eu.int/ scadplus/leg/en.lvb/ 133168.htm), accessed 24 January 2005.
43. "EU Plan of Action on Combating Terrorism - Update," op. cit., p. 20.
44. Cf. "Remarks by Gijs de Vries, EU Counterterrorism Coordinator at Eurojust," The Hague, 23 June 2004. Full text transcript of speech. In his speech, de Vries also mentions that Eurojust is interested in gaining access to Europol databases. The transcript can be viewed at: http://ue.eu.int/uedocs/cmsUpload/EurojustTheHague23June2004.pdf
45. "EU Plan of Action on Combating Terrorism - Update," op. cit., pp. 21-22.
46. The Eurodac system was established by the European Union for the comparison of fingerprints of asylum applicants and illegal immigrants. Cf. (http://europa.eu.int/scadplus/leg/en/lvb/l33081.htm), accessed 15 March 2005.
47. Council of the European Union/Committee of the Permanent Representative of the European Union (COREPER), "Conceptual Framework on the ESDP Dimension of the Fight Against Terrorism," Brussels, 18 November 2004, p. 5, available at (http://register.consilium.eu.int/pdf/en/04/st14/st14797.en04.pdf), accessed 25 January 2005.
48. Ibid., p. 6.
49. "EU Plan of Action on Combating Terrorism - Update," op. cit., p. 27.
50. Ibid., p. 43.
51. This excerpt is taken from the Council Presidency's report to the European Council itself and the Council of the Permanent Representatives of the European Union. Council of the European Union, "Report on the Implementation of the Framework Decision 2002/475/JHA of 13 June 2002 on Combating Terrorism," Brussels 12 October 2004, p. 6, available at (http://register.consilium.eu.int/pdf/en/04/st11/st11687-re02.en04.pdf), accessed 25 January 2005.
52. Ahto Lobjakas, "EU: Ministers Agree On Steps To Counter Terrorism," Radio Free Europe/Radio Liberty, Brussels, 19 March 2005, available at (www.rferl.org/featuresarticleprint/2004/03/ 60f49235-087b-44bd-a52c-5e780855f3c5.htm), accessed 24 January 2005.
53. Several multilateral intelligence hubs exist outside the Union, such as the Club of Berne, the PWGOT, and the Kilowatt Group, which is currently operating under a different name. While the Club of Berne and the PWGOT may be well-known international intelligence fora in the community of experts, the older Kilowatt Group probably constitutes more of a mystery. According to Peter Klerks, "Another organizational structure in which the exchange of data on international political violence takes place since 1977 is the so-called Kilowatt group. This information alliance between the services of some 15 countries has been kept a virtual secret since it started off: Only in 1982 was its existence revealed when Iranian students brought out materials captured at the American embassy in Teheran in which Kilowatt was mentioned. Taking part in this network are the EC- countries and Canada, Norway, Sweden, Switzerland, the CIA, and FBI, as well as the Israeli Mossad and Shin Beth. Kilowatt is believed to be dominated by Israel because of her near- monopoly position in the information exchange on the activities of Arab groups and individuals in Europe and the Middle East." Peter Klerks, "The Epidemology of Fear. An Inventory of European Intelligence Services," published by the Domestic Security Research Foundation (Stichting voor Onderzoek naar Binnenlandse Veiligheid), 1993, and, available at (http://www.totse.com/en/politics/political_spew/euroint.htm), accessed 17 March 2005.
54. Monica den Boer, "The EU Counterterrorism Wave," p. 195.
55. Cf. Doron Zimmermann, "Reappraising Joint Action in the Transnational Fight Against Terrorism," in Jean-Jacques de Dardel, International Security. Cooperation: Views and Visions, pp. 31-34, at p. 33.
56. British Home Office, "Extradition Bill. European Arrest Warrant," available at (www.homeoffice.gov.uk/crimpol/oic/extradition/bill/eaw.htm), accessed 3 February 2005.
57. The EAW applies to all offenses, the penalties of which exceed 12 years in the state issuing the extradition request, and in the event of a conviction, extends to those of at least four months. This is true of several terrorist offences. For the full text of the European Arrest Warrant, cf. Council of the European Union, "Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States," op. cit.
58. "Remarks by Gijs de Vries, EU Counterterrorism Coordinator at Eurojust," op. cit.
59. A successor project to the EAW under deliberation in the Union's Third Pillar is the socalled European Evidence Warrant, which would permit the judicial authority in one state to request and obtain relevant evidence from another member state (e.g., production orders, search and seizure orders, information in police of judicial records and criminal conviction records). The proposed evidence warrant is based on the principle of mutual recognition, and, if adopted, it would be enforceable like the EAW. British Home Office, "European Evidence Warrant," available at (www.homeoffice.gov.uk/crimpol/oic/europeanunion/eew.htm), accessed 3 February 2005.
60. Council of the European Union, "Council Framework Decision of 13 June 2002 on Joint Investigation Teams," op. cit., pp. 2-3.
61. According to Statewatch, a civil liberties organization based in the United Kingdom, "US law enforcement authorities will also be able to participate in joint teams operating in the EU under the EU-U.S. mutual legal assistance Convention of 2003."
62. Statewatch, Statewatch "Scoreboard" on EU Counterterrorism Plans, op. cit., p. 22.
63. Moreover, Statewatch avers the "[p]articipation of Europol and Eurojust has been an attempt to give the agencies an operational role," while their statutory role is confined to providing assistance to the member states and facilitating cooperation.Ibid.
64. Cf. Eurojust home page at (www.eurojust.eu.int).
65. Council of the European Union, "Council Decision of 28 February 2002 Setting Up Eurojust with a View to Reinforcing the Fight Against Serious Crime," available at (http://europa.eu.int/eur-lex/pri/en/oj/dat/2002/l_063/ l_06320020306en00010013.pdf), accessed 25 January 2005, p. 3.
66. Statewatch, Statewatch "Scoreboard" on EU Counterterrorism Plans, op. cit., pp. 20-21.
67. Cf. Europol website at (http://www.europol.eu.int/index.asp?page=facts accessed 17 March 2005.
68. Emmanuel Marotta, "Europol's Role in Anti-Terrorism Policing," in Max Taylor and John Horgan (eds.), The Future of Terrorism (London, Routledge U.K., 2000), pp. 15-18, at p. 18. However, Europol has only been operational since 1 July 1999.
69. Europol Convention: European Police Office, updated 27 February 2002, p. 1, available at (http://europa.eu.int/scadplus/printversion/en/lvb/l14005b.htm), accessed 17 March 2005.
70. Europol is also to acquire, cross-reference, and analyze intelligence and information, and notify member states concerning relevant information and linkages between investigations pertaining to more than one state. Further, Europol is to support and help coordinate investigations in member states; and to maintain an electronic database.
71. Ibid., p. 1.
72. In an attempt at harnessing its own counterterrorism resources, Europol has combined several of its programs, namely the counterterrorism program with its counterproliferation, networking, preparedness and training and education programs. "An Overview of the Counter Terrorism Unit Activities - January 2004," p. 2, available at (http://www.europol.eu.int/publications/ SeriousCrimeOverviews/2004/ OverviewTerrorism2004.pdf), accessed 17 March 2005.
73. Gijs de Vries, "European Strategy in the Fight Against Terrorism and the Co-operation with the United States," Center for Strategic and International Studies (CSIS) European Dialogue Lunch, Washington, 13 May 2004, p. 5.
74. Point 5(b) of the Draft EU Declaration on Terrorism as quoted in Statewatch, Statewatch "Scoreboard" on EU Counterterrorism Plans, op. cit., p 18.
75. Ibid., p. 18.
76. "Summary Transcript of Joint Press Briefing: Javier Solana, EU High Representative for the CFSP, Gijs de Vries, Counterterrorism co-ordinator," 30 March 2004.
77. Anthony Browne and Rory Watson, "EU Divided Over Proposal for New Anti-Terror Czar," TimesOnline, 17 March 2004, available at (www.timesonline.co.uk/article/0,,12589-1041361,00. htm), accessed 9 July 2004.
78. Alok Rashmi Mukhopadhyay, "EU Counterterrorism Coordinator Office: A Non-Starter?," available at (www.observerindia.com/analysis/A170.htm), accessed 2 June 2004.
79. "European Union Plugging the Gaps in the Fight Against Terrorism," available at (http://europa.eu.int/comm/justice_home/fsj/criminal/terrorism/ fsj_criminal_terrorism_en.htm), accessed 3 March 2005.
80. "Updated List of Terrorist Organizations and Persons Linked to Terrorist Activities," 17 May 2004, available at (http://ue.eu.int/uedocs/cmsUpload/GA17.05.04.pdf), accessed 3 March 2005.
81. The most recent updated list (14 March 2005) can be viewed at (http://www.statewatch.org/news/2005/mar/06terrlists.htm), accessed 18 March 2005.
82. Michael Guery, "Wie Weiter mit dem Schweizerischen Al-Qaida Verbot? Schweizerische Rechtsgrundlagen für ein Verbot Terroristischer Organisationen," draft paper in the possession of the author.
83. "Building a European Intelligence Community in Response to Terrorism," European Security Review/ISIS Europe, No. 22, April 2003, available at (http://www.isis-europe.org/ftp/Download/ ESR%2022Building%20a%20European%20Intelligence%20Community.pdf), accessed 3 March 2005.
84. Ibid.
85. Björn Müller-Wille, For Our Eyes Only? Shaping an Intelligence Community Within the EU, Occasional Papers No. 50 (Paris: Institute for Security Studies, January 2004), p. 26.
86. Ibid., p. 31.
87. Magnus Ranstorp with Jeffrey Cozzens, "The European Terror Challenge," British Broadcast Corporation News, 24 March 2005, available at (http://news.bbc.co.uk/1/hi/world/europe/3563713.stm), accessed 9 July 2004.
88. Justice and Home Affairs Council/Article 36 Committee, "Interim Report on the Evalution of National Anti-Terrorist Arrangements," p. 9, available at (http://ue.eu.int/uedocs/cmsUpload/Interim_Report.pdf, accessed 3 March 2005.
89. "EU: Call for New Intelligence Centre to Be Set Up," Statewatch News Online, March 2003, available at (www.statewatch.org/news/2004/mar/10eu-intel-centre.htm), accessed 4 March 2005.
90. Browne and Watson, op. cit.,
91. Mukhopadhyay, op. cit.
92. Mukhopadhyay, op. cit.
93. For Our Eyes Only?, op. cit., pp. 35-36.
94. Council of the European Union, "Draft Council Conclusions on Counterterrorism," Brussels, 11 October 2004, p. 1, available at (http://register.consilium.eu.int/pdf/en/04/st13/st13117-re02.en04.pdf), accessed 3 March 2005 (my italics).
95. "Solana Unveils Plans to Analyse EU Terror Threats," Deutsche Welle, 9 June 2004, available at (http://www.statewatch.org/news/2005/mar/06terrlists.htm), accessed 28 January 2005.
96. European Union United Nations, "EUHR Solana on Terrorism and Intelligence Cooperation," 8 June 2004, available at (http://europa-eu-un.org/articles/cs/article_3558_cs.htm), accessed 28 January 2005.
97. On intergovernmentalism, cf. my discussion in the third section 3, p. 12.
98. Tony Bunyan, "The Creation of an EU Interior Ministry - For the Maintenance of Law and Order, Internal Security and External Borders," Statewatch, 20 April 2003, p. 6, available at (http://www.statewatch.org/news/2003/apr/TBART.pdf), accessed 25 January 2005.
99. Ibid., p. 6.
100. Statewatch, Commentary to the Statewatch "Scoreboard" on EU Counterterrorism Plans, op. cit., 8 pp.
101. Cf. note 3, supra.
102. Transatlantic Dialogue on Terrorism - Initial Findings, op. cit., n.p.
103. Javier Solana, "Intelligent War on Terror," The Korea Herald, 8 November 2004. A full text version of the article is also, available at (http://www.project-syndicate.org/article_print_text?mid=1725&lang=1) accessed 18 November 2005.
104. Nora Bensahel of the RAND Corporation recently concluded that "[t]he European Union (EU) is limited in its military and intelligence capabilities... the United States should pursue military and intelligence cooperation on a bilateral basis, and it should increasingly pursue financial and law enforcement on a multilateral basis. Bilateral cooperation will remain necessary in the military and intelligence realms... NATO currently lacks the political will to embrace counterterrorism as a new mission, and the EU does not intend to build centralized structures and offensive capabilities that would be required." Nora Bensahel, The Counterterror Coalitions. Cooperation with Europe, NATO, and the European Union (Santa Monica, CA: RAND Corporation, 2003), foreword, p. x.
105. Delpech, op. cit., pp. 42-43.
106. Pamela Rolfe, "A Year After Madrid Attacks, Europe Stalled in Terror Fight," Washington Post, 11 March 2005, available at (http://www.washingtonpost.com/wp-dyn/articles/A25047-2005Mar10.htm), accessed 11 March 2005.
107. Gijs de Vries, "European Strategy in the Fight Against Terrorism and the Co-operation with the United States," op. cit., p. 4.
108. Chalk, West European Terrorism and Counterterrorism, op. cit., p. 117.