EU: Does the EU definition of "terrorism" cover protests?
01 November 2001
Despite reassurances the definition covers acts with the aim of: "unduly compelling a Government or international organisation to perform or abstain from performing any act"
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, con