Critique of the Council's agreed text on the defintion of terrorism
(Statewatch bulletin, November-December 2001)
The effect of the definition of "terrorism" agreed by the Justice and Home Affairs Council in Brussels on 6 December is unclear. Many groups in civil society from across the EU strongly criticised the European Commission's proposal and the Council of the European Union's first draft position because they could clearly have embraced protests, anti-globalisation movements and trade unions. The final text appears in "Recital 10" (see below) to exclude applying the definition to normal democratic protests as does the "Statement" which is attached.
However, the scope of the definition is so broad that, in certain circumstances, it is not at all clear that it could not be used against protestors and others.
The stages of the decision
The European Commission put forward a proposed Framework Decision on combating terrorism (24.9.01), the European Parliament was "consulted" and the final decision lay with the Council (representing the 15 EU governments).
The Commission's definition of "terrorism" covered: "seriously altering or destroying the political, economic or social structures of those countries". The first draft of the Council's position (Article 1) went even further and defined it as:
"seriously affecting, in particular by the intimidation of the population or destroying the political, economic or social structures of a country or of an international organisation" (emphasis added).
Either of these definitions, coupled with the planned new operational measures, could see protestors and other groups treated as if they are "terrorists" (see Statewatch vol 11 no 5).
In early October (10.10.01) there were only outstanding issues for the Council on penalties (Article 5) and jurisdiction (Article 10) - the scope of the definition was not an issue at this stage. Nor was there any change in the situation by 26 October.
The Commission's proposal was published on 24 September and on 27 September Statewatch posted on its website one of the first of many critiques that were to be made by NGOs, lawyers, academics and others. Strong criticism of the definition of "terrorism" at the EU level was fuelled by draconian new laws being introduced in a number of member states at national level. By 14 November there was a shift in the Council, a small minority of EU governments:
"wanted to restrict this definition as far as possible in order to ensure that legitimate action, such as in the context of trade union activities or anti-globalisation movements, could under no circumstances come within the scope of the Framework Decision"
What had not been an issue for the Council until 5 November now became one and a "Recital" (no 10) was added to the draft Council position saying:
"Nothing in this Framework Decision may be interpreted as being intended to reduce or restrict fundamental rights or freedoms such as the freedom of assembly, of association or of expression, including the right of everyone to form and join trade unions with others for the protection of his or her interests [the words] "and the related right to demonstrate" [were added on 16 November]
The explicit "right to demonstrate" is thus directly related to trade union activity and not to other forms of protest.
By 12 November the scope of the definition of terrorism changed and, after the specially-called Justice and Home Affairs Council on 16 November, read:
"terrorist offences include the following list of intentional acts which, given their nature or their context, may seriously damage a country or international organisation.. where committed with the aim of:
(i) seriously intimidating a population, or
(ii) unduly compelling a Government or international organisation to perform or abstain from performing any act, or
(iii) seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or international organisation"
These new definitions of terrorist "aims" may seem very general and they are - having been taken from UN conventions on terrorism largely drafted by the US, EU and G8 countries.
The second "aim" is so general as to embrace the objectives of millions of people and thousands of groups in civil society.
However, what is critical to understanding this Framework Decision on "terrorism" are the offences to which they must relate, for example, as set out in the Commission's Article 3.f (now Article 1.e in the Council text).
The Commission's proposal said offences should include:
"Unlawful seizure of or damage to state or government facilities, means of public transport, infrastructure facilities, places of public use, and property" (Article 3.f)
The Council's agreed text says:
"causing extensive destruction to a Government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on a continental shelf, a public place or private property likely to endanger human life or result in major economic loss"
The agreed text is better in that "unlawful seizure" is deleted. However, "information system" has been added to cover "hacking", so has "fixed platform" (eg: oil rigs in the North Sea like the Brent Spa which was occupied by Greenpeace) and "major economic loss" (which is a separate category).
Taking the "worst case scenario" a group could have the "aim" of seeking to get a "Government or international organisation to perform or abstain from performing any act" and in the course of such aim commit the offence of "causing extensive damage" to government or private property or cause "extensive damage" resulting in "major economic loss". Indeed it is arguable that the totality of events in Genoa would fit this description.
It should also be noted that it will be an offence to "threaten" to commit any offence as defined in Article 1.e. (under Article 1.j); that a "terrorist group" means "a structured group of more than two persons, established over a period of time and acting in concert to commit terrorist offences" (Article 2.1); and it will also be an offence to "incite, aid or abet" a planned or actual action under Article 1.e (Article 3).
This was the extent of the Council's draft positions on 10 October, 26 October and 14 November. However, on 16 November the Council added a "Statement" (which is attached to the final text). This says that the definition of terrorism:
"cannot be construed so as to argue that the conduct of those who have acted in the interests of preserving or restoring democratic values, as was notably the case in some Member States during the Second World War, could be considered as "terrorist acts". Nor can it be construed so as to incriminate on terrorist grounds persons exercising their legitimate right to manifest their opinions, even if in the course of the exercise of such right they commit offences"
This statement would appear to first, recognise a distinction between "terrorism" and liberation struggles and second, to recognise that people can "manifest their opinions" without being terrorists. Whatever the meaning of these general commitments it should be noted that a "Council Statement" has no legal force and is simply a statement of political intent.
The proposal put forward by the European Commission on 24 September had the clear intent to embrace protests in the definition (eg: it could also cover "urban violence"). The Belgium Presidency of the EU and the majority of EU governments supported the Commission proposal on the scope of the definition of terrorism. It was only in November that critical voices in civil society were picked up by some of the media, some national MPs, some trade unions and then a handful of EU governments that any change occurred.
By the end of November the Council had added "Recital 10" and agreed the "Council Statement". The European Parliament's draft report was silent on the issue and only at its plenary session on 29 November were amendments introduced recognising there might be a problem. At this plenary session of the European Parliament Mr Vittorino, the European Commissioner for justice and home affairs, tried to argue that it was never the intention for the definition to cover protests, "The Council and the Commission agreed this from the very outset", he said. This was clearly not the case.
The Commissioner's statement coincided with a strong, high-level, statement, issued on the morning of 29 November, by Mary Robinson, UN High Commissioner for Human Rights, the Secretary General of the Council of Europe and the Director of the OSCE Office for democratic institutions and human rights. The statement called:
"on all governments to refrain from excessive steps, which would violate fundamental freedoms and undermine legitimate dissent"
The acid test will be how EU governments translate the Framework Decision into national law and how it is used. Writing in the last issue of Statewatch Thomas Mathiesen, professor of sociology of law at Oslo University, said:
"Methods of political protest available to ordinary people are under attack. Regardless of whether the attack is consciously planned and/or an unintended consequence of a major panic (it is probably a mixture of the two), it is politically dangerous. As far as the Commission's and the Council's definitions are concerned, they may possibly not be used in such a broad and generalised way at first. From long experience we know, however, that discretionary measures in this area will be employed less carefully, and more broadly, as time passes, when the time is ripe and when the need is there."
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