EU: The concept of terrorism grows ever wider
01 January 2002
Protestors to be targeted, terrorism clauses to be inserted in agreements with third world
Council adopts new definition of terrorism
On 27 December, just after Christmas, the Council of the European Union adopted four Acts by "written procedure" (the measures were simply circulated to EU governments and adopted unless any objections are raised) on "terrorism". None of the measures was subject to democratic scrutiny.
The first, the "Council Common Position on combating terrorism", is based largely on the UN Security Council Resolution 1373 (2001) which was passed on 28 September in the immediate aftermath of the 11 September attacks on the USA. There are however very significant differences.
Point 2(a) of the Security Council Resolution says that "states" are obliged to refrain from supporting "entities or persons involved in terrorist acts". Article 4 of the EU's Common Position is instead worded to require Member States to prevent "the public" from offering "any form of support, active or passive" to such persons or entities (Article 4 of the Common Position). The change of meaning by the EU fails to distinguish between individuals who consciously assist those involved in terrorist acts and those who simply share the same goals as the "terrorists" but who do not pursue these goals by violent means or knowingly assist with the preparation of violent acts. Nor does this EU definition distinguish between support for "terrorist" groups and liberation movements ? as does the Statement attached to the proposed EU Framework Decision on harmonising national laws on terrorism agreed by the Justice and Home Affairs Council on 6?7 December.
The last seven points in the EU's Common Position, Article 11 to 17, are not binding in the UN Security Council Resolution but they are made binding by the EU. Article 16 says:
Appropriate measures shall be taken in accordance with the relevant provisions of national and international law, including international standards on human rights, before granting refugee status, for the purpose of ensuring that the asylum?seeker has not planned, facilitated or participated in the commission of terrorist acts. The Council notes the Commission's intention to put forward proposals in this area, where appropriate (emphasis added)
Under EU law this Common Position is binding on all Member States and will mean that all asylum?seekers and refugees are subject to vetting by the police and security services before their status can be granted.
This provision, taken in conjunction with Article 4 of the EU Common Position covering "any form of support, active or passive" for terrorist activities, could mean that a person who had helped raise funds to support the humanitarian needs of , say PKK prisoners in Turkish jails, could be refused refugee status.
No democratic accountability
The adoption of the two Common Positions by the Council of the European Union (the 15 EU governments) by "written procedure" were made under Article 15 of the Treaty on European Union which gives a very general power simply to "adopt common positions" and "Member States shall ensure that their national policies conform to the common positions". Common Positions are thus binding on all EU Member States but do not have to be submitted to national or European parliaments for scrutiny: they are simply adopted. In these two instances the measures adopted cover both Common Foreign and Security Policy (CFSP) and "third pillar" issues on police and criminal cooperation (Title VI of the TEU) and the European Community's migration and asylum policy (Title IV of the TEC).
By choosing to adopt these measures as Common Positions the Council has not only by?passed the European Parliament, it also means that their validity cannot be challenged before the Court of Justice.
Sources: 1) Common Position 2001/930 (OJ 2001 L 344/90); 2) Common Position 2001/931 (OJ 2001 L 344/93); 3) Regulation 2580/2001 (OJ 2001 L 344/70) - freezing of