28 March 2012
An initiative of the Spanish Presidency of the Council of the European Union (the 15 EU governments) in the first half of 2002 on introducing "a standard form for exchanging information on terrorists" was finally adopted as an "A Point" without discussion by the Competitive Council of Ministers on 14 November 2002. The article below examines it importance.
Full-text of adopted: Recommendation (pdf)
Source: Statewatch bulletin, vol 12 no 2, March-April 2002
Exchanging information on terrorists or protestors?
The Spanish Presidency of the EU seems to be determined to get through its controversial proposal to introduce "a standard form for exchanging information on incidents caused by violent radical groups with terrorist links" (see Statewatch, vol 12 no 1).
The proposal now runs to six drafts. The subject of the first two draft proposals referred to "violent radical groups with terrorist links". This was changed in the third draft to "exchanging information on terrorists". However, the content and intent did not change.
The first two drafts
The initial proposal explicitly said - despite previous assurances - that the EU definition of terrorism includes:
"violence and criminal damage orchestrated by radical extremists groups, clearly terrorising society, to which the Union has reacted by including such acts in Article 1 of the Framework Decision on combating terrorism"
Article 1 of the first two drafts said - in a clear reference to Gothenburg and Genoa last summer - information should be exchanged on:
incidents caused by radical groups with terrorist links... and where appropriate, prosecuting violent urban youthful radicalism increasingly used by terrorist organisations to achieve their criminal aims, at summits and other events arranged by various Community and international organisations
The EU Presidency said in explanation that these "incidents" are:
"the work of a loose network, hiding behind various social fronts, by which we mean organisations taking advantage of their lawful status to aid and abet the achievements of terrorist groups' aims"
Basic intentions clear
The proposal has run into some opposition in the Council's Working Party on Terrorism from the Netherlands and a minority of member state governments. This explains the change in the title of the drafts and the dropping of the overt references to protest groups given above. However, the following observations are required:
1. The same Working Party has already agreed on a standard form to exchange data on real terrorists (see below). So why is this measure necessary?
2. All the subsequent drafts, including the latest one (dated 13 May) refer to:
i) "terrorist organisations [achieving] their criminal aims at large international events". But there have been no terrorist attacks at EU Summits or other international meetings held in the EU. The only problem, for governments, at EU Summits and meetings like the G8 in Genoa has come from protests.
ii) "terrorist organisations for the purpose of achieving their own destabilisation and propaganda aims" at EU Summits and international events. This is plainly ludicrous, no real terrorist group would stand outside the G8 Summit and hand out leaflets for "propaganda" purposes.
3. The information on individuals is to be exchanged through the "BDL Network", the security communications network used by the internal security agencies (like MI5) in the EU. No data protection provisions are set out, nor is any mechanism set out for accountability.
4. The Spanish Presidency, because it is running out of time (Denmark takes over from 1 July), has changed the basis of the measure from a Framework Decision under Article 34.2.c. of the Treaty on European Union (TEU) (which requires the European and national parliaments to be consulted) to an intergovernmental "Recommendation" (which the 15 EU governments can agree without consulting anyone).
Despite the change in language - and a reference to Article 6 of the TEU on liberties and fundamental rights - the intent of the measures remains the same as set out in the first draft, to bracket protestors with terrorists.
The four later drafts
The grudging change in the language used is evident. In the third and fourth drafts there were references to:
"a gradual increase, coinciding with various EU summits and other events, in violence caused by uncontrollable elements from other countries, a fact which has clearly caused society great concern"
This is a clear reference to protests and protestors.
Through all the drafts there is an extraordinary logic. On the one hand the measure is obviously concerned with protests at EU Summits and other international meetings, on the other it refers to the definition of terrorism set out in Article 1 (which confirms fears that Article 1.iii.e. could embrace protests and trade union activity, see below), and on yet another hand it refers to Article 6 of the TEU guaranteeing fundamental rights.
The definition of terrorism in the Framework Decision covers actions which "may seriously damage a country or international organisation" where the aim is to: "unduly compel a Government or international organisation to perform or abstain from performing any act" (Article 1.ii, which covers just about every EU-wide protest). These factors need to be taken together with Article 1.iii.e. which says it covers actions:
"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"
led to the concern of civil society groups that the definition is intended to embrace protests (and other democratic activity) along with terrorism.
On 9 April the fifth draft stated that:
"the Netherlands delegation backed by some other delegations considered the description of individuals concerned by the decision is too vague"
The Netherlands government, and some others, wanted a reference to the names and organisations formally listed as terrorist groups and individuals whose funds are to be frozen (given in the 27 December Common Position and subsequently updated) - if this proposal had carried the day at least protests and protestors would have been excluded, but the majority of EU governments did not agree and the latest draft (13 May) makes no reference to those formally listed as "terrorist".
The latest version says: "to enable a rapid adoption of the text the Presidency presents the present instrument that has the legal form of a Draft Council Recommendation" - which effectively by-passes parliamentary scrutiny.
The preamble of the "Recommendation" says that there:
"might be a risk that terrorist organisations will use larger international events for carrying out terrorist offences as defined in Article 1 of the Framework Decision on combating terrorism"
The preamble goes on to refer to acts carried out by "various loose networks of terrorists" and the "need for analysis and proactive monitoring".
This is followed by five Recommendations. The first refers to exchanging information against "terrorists" who seek to achieve their criminal aims at large international events". The second says the standard form should be used "to exchange such information as is considered necessary or desirable" in accordance with national laws (which differ from state to state). The third says "care" should be taken that the information exchanged "concerns individuals with a police record in connection with terrorism as defined in the framework decision on combating terrorism". The fourth says that information should refer to "members of actual organised groups run by terrorist organisations for the purpose of achieving their own destabilisation and propaganda aims" and must not relate to people exercising their rights as set out in Article 6 of the TEU. The fifth and final Recommendation says member states should "use the BDL network for the exchange of data" (that is, the national internal security agencies). Attached to the "Recommendation" is a form called: "Template for exchanging information regarding terrorists" including "passport number", "violent acts" and "scars" and provides space for the inclusion of a photo and fingerprints.
UK Home Office Minister says: "No major policy implications"
The proposal was first sent to the UK parliament for scrutiny on 11 April (which was then in the form of a Framework Decision) and the version deposited was the fourth revision of the first draft (REV 4). It was accompanied by an "Explanatory Memorandum" from the Home Office Minister, Mr Bob Ainsworth, in which he says that there were no major policy implications as far as the government was concerned and that it was scheduled for agreement at the Justice and Home Affairs Council on 25-26 April - clearly hoping the committee would "nod" it through.
The House of Commons European Scrutiny Committee was not impressed either by the Minister's reasons for not depositing earlier (the first draft was dated 29 January):
"This has been a fluid proposal subject to numerous and frequent amendment. The latest version of the document is the first to offer any kind of stability"
nor by his conclusion that there were "no major policy implications". Their report says:
"We are pleased that this document was not, in the event, on the agenda of last week's JHA Council, since we have not had enough information to assess it properly. It is surprising to learn that it is a "revised version of the proposal", both because it is the first version we have seen and because it does not appear to be very well thought through"
The Committee says it shares the concern of the Netherlands government and asks: what is to prevent the form being used for "persons who exercise their constitutional rights set out in Article 6 TEU". The House of Commons, and the House of Lords Select Committee on the EU, maintained their scrutiny reserve on the measure until further information is forthcoming.
Standard form on terrorism already agreed?
What is extraordinary about the Presidency proposal is that the same working party agreed on a standard form to exchange information on terrorism in a series of meetings last year. On 17 September 2001 the working party agreed that, after the attacks in the USA, there should be the "rapid exchange of information on terrorist attacks". A standard form was agreed which was to be sent through the BDL network.
The discussions in the working party on the standard form largely took place before 11 September and were clearly concerned with real "terrorism" and not protests and protestors. Indeed one of the key discussions in the working party was whether or not to explicitly refer to "Terrorist bombings or attempted bombings" or simply to any "bombing or attempted bombing" (which would automatically be assumed to be "terrorist"). There were six versions of the report and in an unpublished (REV 4) report this issue is clearly confronted by a number of EU member states who want the proposal clearly limited to "Terrorist bombings or attempted bombings" - the final version adopted this view.
Six categories of terrorist activity are listed as qualifying for inclusion provided they met one of two criteria where the incident is of international significance: "either because the target (person or building etc) is foreign (eg an embassy) or because the claim emanates from a foreign group" or that the "incident is serious where there are a large number of victims or significant damage".
In addition, under the Action Plan on Terrorism" (point 27) there is the: "Systematic transmission to Europol of any piece of data relevant to terrorism" which covers not just terrorist incidents but all ongoing intelligence data. Also under the Action Plan EU member states have seconded internal security agency officers to Europol to handle this role.
There is little doubt that the majority of EU governments are happy with the proposal and are well aware that the target spelt out in the first draft - covering "radical extremists groups [and] violent urban youthful radicalism" - has been maintained. Sneaking the measure through as a "Recommendation" will allow those governments that want to use it - especially Spain and Italy - the cloak of "legitimacy".
Sources: EU documents: 5712/02, 5712/1/02 REV 1, 5712/2/02 REV 2, 5712/3/02 REV 3, 5712/4/02 REV 4, 5712/5/02 REV 5; 27th report of the House of Commons European Scrutiny Committee, 14.5.02.
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