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Restricted document: Counter-Terrorism Coordinator seeks to emulate US in gathering "battlefield data" for law enforcement agencies
25.9.17
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The EU Counter-Terrorism Coordinator (CTC) wants the EU and the Member States to put serious thought into how data collected on battlefields across the world could be used for capturing and prosecuting "foreign fighters" on EU territory, in particular by emulating and learning from the practices of the US, with whom "close cooperation" is "key". However, there are "many complex legal and practical questions" that must be answered first.

See: Strengthening military, law enforcement and judicial information exchange in counter-terrorism (12347/17, RESTRICTED, 19 September 2017, pdf):

"If shared in a properly and timely manner with law enforcement authorities, judicial, financial, border or any other affected competent authorities, this information could have an immediate operational value, because it would enable authorities to stop fighters trying to cross borders (especially re-entering Europe from the battlefield), to dismantle their networks and supply chains in order to weaken their warfare and to prevent attacks in Europe. It may also have judicial value in helping to bring terrorists to justice.

(...)

At the EU level, discussions on "strengthening military, law enforcement and judicial information exchange in counter-terrorism" are still at the very beginning. It would be important to deepen our collective understanding and analysis. At the same time, given the high terrorist threat, it is urgent to make practical progress and ensure that information collected by the military is available to law enforcement, judicial and border authorities in Europe, in full respect of the rule of law and human rights. To move forward, it is important to clarify the various strands of this complex and sensitive work, notably the different responsibilities associated with various scenarios of collection of battlefield data"

The three scenarios outlined by the CTC are:

  • Scenario 1: data collected by Member States in the course of their own military operations:
  • Scenario 2: data collected by third parties (i.e. neither Member States nor EU directly) such as
    the Global anti-ISIL Coalition, the US, NATO, Iraq, etc.
  • Scenario 3: data collected in the course of EU CSDP missions/operations

Cooperation with the US is seen as crucial:

"It would be important to encourage the US at the political level to share to the maximum extent. A strategy and opportunities in this regard could be discussed.

US experience, including how the practical and legal challenges have been addressed, what type of information is being collected, how it is used by national law enforcement, border and judicial authorities, including practical examples, and how it is shared internationally. Opportunities with regard to information collected in particular in Iraq (revival of INTERPOL/VENNLIG, Operation Gallant Phoenix (OGP), training of the Iraqis to collect and share battlefield information) could be discussed. This would allow understanding better and learning from the US approach, as well as encourage the US to share to the maximum extent."

However:

"The sharing with and use of battlefield data (either collected by Member States or by third parties) by law enforcement, justice and border security poses many complex legal and practical questions, such as the legal basis for the sharing and the extent to which checking the accuracy and validity of information is possible, or whether it can be used as evidence in court. At EU level, these challenges could be examined and discussed collectively."

A workshop will be organised:

"Given the cross-cutting and multidisciplinary nature of the topic and the necessary involvement of military, law enforcement, prosecutors, policy makers and other competent authorities, no single working group covers all the relevant aspects. Building on the ESDC-Europol workshop, a workshop with all relevant stakeholders could be organized to discuss the various good practices and challenges, based on the inputs by EU Member States, EU JHA agencies and INTERPOL. This could potentially take place back to back with the workshop suggested by the EEAS with JHA and CSDP actors, EEAS CT division, CT experts, EU CTC and the Commission on counter-terrorism information exchange with CSDP operations."

ESDC: European Security and Defence College; JHA: Justice and Home Affairs; EEAS: European External Action Service; CT: counter-terrorism; CSDP: Common Security and Defence Policy.

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