28 March 2012
The EU Justice and Home Affairs Council meeting in Brussels on 6-7 December reached "political" agreement on the Framework Decision on combating terrorism which will be formally adopted at a later Council (there are three national parliament scrutiny reservations outstanding). The proposed measure had been extensively criticised by civil society groups (see: earlier report) because the original proposal from the European Commission was so widely drawn as to embrace trade union and protests and it had been hoped that the final text would include an explicit exclusion of normal democratic activity. However the final press release from the Council of Ministers meeting says that the agreed measure is a "balance" between the needs to combat terrorism and legitimate activities like trade union and anti-globalisation protests - which is a signal to read the text carefully as the former will always triumph over the latter. Full-text of decision: Text
The final text has a "Declaration" attached saying that protests and other political activities would not be covered by the definition of terrorism. However, a "Declaration" is not binding and has no formal legal force. What is critical is the text.
Article 1: Terrorist offences now reads as follows. Each EU member state has to take measures to ensure that terrorist offences:
"include intentional acts, by their nature and context, which may be seriously damaging to a country or to an international organisation, as defined under national law, where committed with the aim of:
(i) seriously intimidating a population, or
(ii) unduly compelling a Government or international organisation to perform or to abstain from performing any act, or
(iii) destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or international organisation"
and Article 1.e (Art 3.f in the Commission draft) now reads, where the above would result in:
"causing extensive damage 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 put in danger human lives or produce considerable economic loss"
The inclusion of "a fixed platform located on a continental shelf" is new and could embrace the occupation of the "Brent Spa" oil platform by Greenpeace.
Definition could still cover protests
The objections by civil society to the breadth of the definition is reflected in Recital 10 which says:
"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 or association or of expression, including the right of everyone to form and to join trade unions with others for the protection of his or her interests and the related right to demonstrate"
This position is supported by the addition of a non-binding Declaration (see below). Within the Council of the European Union (the 15 EU governments) the majority of member states wanted a definition of terrorism based on that used in UN conventions on terrorism - which themselves were hugely influenced by the US, EU and G8 - which is exactly what the adopted definition is based on. A small minority of EU governments wanted to ensure that "legitimate action" was not covered and that:
"trade union activities or anti-globalisation movements, could under no circumstances come within the scope of the Framework Decision" (doc no: 12647/3/01)
The Declaration reads:
"The Council declares that the framework decision on the fight against terrorism covers acts which are considered by all Member States of the European Union as serious infringements of their criminal laws committed by individuals whose objectives constitute a threat to their democratic societies respecting the rule of law and the civilisation upon which these societies are founded. It has to be understood in this sense and cannot be construed so as to argue that the conduct of those who have acted in the interest of preserving or restoring these democratic values, as was notably the case in some Member States during the Second World War, could now 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."
However, the definition as set out in Article 1 would cover actions in all EU member states and include EU summit meetings and those of international organisations held in the EU (such as G8, NATO, WTO). It is hard to see that Article 1.ii., "unduly compelling a Government or international organisation to perform or to abstain from performing any act" could not cover protests and trade union activity where an action led to "extensive damage" to government or private property or to "considerable economic loss" - such as the three-day long confrontations between police and protestors in Genoa.
Civil society has "won" some important concessions against the demands of the European Commission and the majority of EU governments by the inclusion of a "Recital" and the attached "Declaration" - how member states use this definition of terrorism in practice will be the acid test.
The proposal to create an EU-wide database on the Schengen Information System (SIS) on "suspected" protestors (see: EU database on protestors), the proposal to bring together all the national para-military police units to police protests (see: EU para-military police) and the 13 July action plan to place protestors under surveillance (see: Protestors under surveillance) are still going ahead in an atmosphere where "policing" is contaminated by the ongoing "war on terrorism".
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