The Council of Europe’s Draft Protocol on Foreign Terrorist Fighters is Fundamentally Flawed

The Council of Europe last week released a Draft Additional Protocol to its 2005 Convention on the Prevention of Terrorism intended to assist European countries in implementing the UN Security Council’s anti-foreign terrorist fighter resolution (UNSC Res. 2178) by stipulating — via binding international treaty — specific conduct to be criminalized in the domestic criminal laws of each member state.

The member states of the Council of Europe deserve credit for making the March 12 draft publicly available two weeks before the next meeting of the respective intergovernmental drafting committee COD-CTE on March 23–25.

Unfortunately, the Draft Protocol is fundamentally flawed. Council of Europe member states have a legal obligation to implement UNSC Res. 2178 (despite the problems in the drafting of that resolution), but sloppy drafting of implementing legislation at the European level will only aggravate the problems inherent in the resolution itself.

The deep problems in the current draft protocol are partly attributable to the UNSC foreign terrorist fighters resolution itself, which combined the imposition of specific Chapter VII obligations upon UN member states with an exceptionally low legal rigor in its drafting. Unlike, for instance UNSC Res. 1566, Res. 2178 does not define or characterize terrorism. Despite that flaw, it seeks to address forms of conduct, such as foreign travel, that are routinely exercised by law-abiding people for legitimate reasons. With a sweeping formulation in Res. 2178’s Preambular Paragraph 8, the Security Council seeks to extend the notions of terrorism and terrorist training to broad situations of armed conflict, without any analytical effort to identify the legal consequences. 

In contrast, when coming close to a definition of terrorism in Res. 1566, the Security Council said that acts of terrorism would fall under the resolution when they “constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism.” Notably, many of the international conventions and protocols in question do not apply in the context of armed conflict or in respect of the armed forces of the parties of an armed conflict. UNSC Res. 2178 gives no attention to this complex issue.

This underlying problem of UNSC Res. 2178 becomes crucial for the Council of Europe Draft Protocol for two reasons. First, the Council of Europe Convention on the Prevention of Terrorism was drafted following the model of Res. 1566, namely with an effort to define terrorism by reference to existing international conventions and protocols against terrorism. And second, the current draft follows UNSC Res. 2178 in making the fundamental — but erroneous — assumption that foreign (including European) fighters joining the battle in countries of conflict, such as Syria or Iraq, would often be committing a terrorist offense simply by engaging in violence there. This assumption is wrong, or at least it is correct only in a small proportion of cases, the proper determination of which will be quite a challenging task of legal analysis.

Articles 2 to 6 of the Draft Protocol would order member states to criminalize inter alia travel and receipt of training abroad. The formulation of these provisions relies on the intent (“purpose”) of the person to participate or contribute towards the “commission of a terrorist offence.” But since the use of lethal violence in the context of an armed conflict can be, depending on the exact circumstances, a lawful act of war, a war crime, a crime against humanity, an ordinary crime, or — sometimes — terrorism, it becomes crucial to know what the notion of a “terrorist offence” means in the application of the Draft Protocol.

Luckily, unlike the case of UNSC Res. 2178, an answer can be found through a closer look at the proposed Protocol. According to Article 9 of the Draft Protocol: “words and expressions used in this Protocol shall be interpreted within the meaning of the Convention.” This would be the legal construction also in the central issue of what constitutes a terrorist offense.

Indeed, in Article 1(1) of Council of Europe’s Convention on the Prevention of Terrorism, we find a definition of that concept:

For the purposes of this Convention, “terrorist offence” means any of the offenses within the scope of and as defined in one of the treaties listed in the Appendix.

The Appendix, in turn, contains a list of eleven international counter-terrorism instruments, quoted here in full:

  1. Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on 16 December 1970;
  2. Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, concluded at Montreal on 23 September 1971;
  3. Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, adopted in New York on 14 December 1973;
  4. International Convention Against the Taking of Hostages, adopted in New York on 17 December 1979;
  5. Convention on the Physical Protection of Nuclear Material, adopted in Vienna on 3 March 1980;
  6. Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, done at Montreal on 24 February 1988;
  7. Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, done at Rome on 10 March 1988;
  8. Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, done at Rome on 10 March 1988;
  9. International Convention for the Suppression of Terrorist Bombings, adopted in New York on 15 December 1997;
  10. International Convention for the Suppression of the Financing of Terrorism, adopted in New York on 9 December 1999; and
  11. International Convention for the Suppression of Acts of Nuclear Terrorism, adopted in New York on 13 April 2005.

A clear majority of these instruments are irrelevant in the context of the armed conflicts in Syria and Iraq, and the phenomenon of foreign fighters more broadly, due to the substantive scope of the instruments in question (items 1, 2, 5, 6, 7, 8, 11). The Terrorist Financing Convention (item 10) applies to forms of terrorism defined in earlier instruments, and the same conclusion usually applies to it as well.

The instruments potentially applicable to the type of acts committed by foreign fighters in conflict areas are primarily items 4 and 9 — the Hostages Convention and the Terrorist Bombings Convention. Foreign (European) fighters in Iraq and Syria potentially get involved in the taking of hostages and in the use of explosives. But a look at the two conventions in question shows that they, too, are by and large not applicable in respect of the phenomenon of foreign fighters.

According to Article 12 of the 1979 Hostages Convention, it does not apply to hostage-taking in the context of an armed conflict (with certain qualifications). And even if the use of explosives in many situations is covered by the 1997 Terrorist Bombings Convention, this is not the case when the act is committed by “armed forces during an armed conflict, as those terms are understood under international humanitarian law.”

Finally, it appears that the 1973 Convention on Crimes Against Internationally Protected Persons (item 3) would have some limited relevance. This Convention does not include a clause excluding situations of armed conflict from its scope of application. And in Article 1(1) it lists among protected persons, besides diplomats and heads of state, officials and agents of international intergovernmental organizations. Foreign European fighters taking, for instance, UN personnel hostage or killing them in Syria or Iraq might be committing a “terrorist offence” under the Draft Protocol. This would appear to be the sole realistic scenario where the Draft Protocol could have relevance. But how would a prosecutor be able to prove that someone traveling from Europe to a conflict zone is doing so with the “purpose” of committing crimes specifically against UN officials?

What is worse, the potential applicability of the Draft Protocol to acts in conflict zones by foreign fighters against UN officials through the 1973 Protected Persons Convention is undermined by Article 26(5) of the Terrorism Prevention Convention, according to which:

The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention … .

By virtue of Article 9 of the Draft Protocol, this provision would also become a part of the substantive law of the Protocol.

For the actual phenomenon of people departing from European countries to join the fight elsewhere (e.g., in Iraq or Syria), the Draft Protocol appears useless. Its scope of potential applicability could hypothetically be related to the scenario of foreign fighters returning to their own (European) countries and then committing there acts of terrorism, including for instance a Charlie Hebdo-type attack.

But, as drafted, the Protocol would not work here, either: It would be virtually impossible for the prosecutor to prove beyond reasonable doubt that a person traveling to a conflict zone to join the fight there would have the intention to commit acts of terrorism in Europe after one day possibly returning from the fight. And Article 4 — which covers traveling abroad for the purpose of terrorism — in the draft Protocol manifestly cannot apply to a person who travels from Europe to a conflict zone to participate in an armed conflict and then (possibly) might plan to return, and after his return to Europe might perhaps one day commit an act of terrorism. This simply would not be “travelling abroad for the purpose of terrorism” as defined in Article 4(1):

For the purpose of this Protocol, “traveling abroad for the purpose of terrorism” means traveling to a State, which is not that of the traveller’s nationality or residence, for the purpose of the commission of, contribution to, or participation in, a terrorist offense, or the providing or receiving of training for terrorism.

Here, the notion of “receiving training for terrorism” is a reference to Article 3, where it is defined not as any training that potentially might be useful in the commission of acts of terrorism — such an approach would indeed criminalize a wide range of educational activities — but training received for the purpose of committing terrorist offenses:

For the purpose of this Protocol, “receiving training for terrorism” means to receive instruction from another person in the making or use of explosives, firearms or other weapons or noxious or hazardous substances, or in other specific methods or techniques, for the purpose of carrying out or contributing to the commission of a terrorist offense.

The combined effect of Articles 3 and 4 is that the Draft Protocol would cover travel from Europe to another country for the purpose of receiving training in terrorism, with a specific intention to return to Europe and commit acts of terrorism there. The Protocol would be useless in addressing the foreign fighter issue itself, or acts committed by people from Europe in conflict zones. In the application of the criminal law provision on traveling abroad for the purpose of terrorism, the prosecutor would need to prove that the person’s intention was not to join the fight there or to receive training for joining the fight there, but to receive training for the purpose of committing acts of terrorism after returning from there.

Because of the huge evidentiary problem related to this specific scenario and more generally to the provisions of the Draft Protocol, a separate comment is needed about draft Article 7(2), which apparently is intended as some sort of safeguard in the application of the new criminalizations required by Articles 2 to 6. The clause reads:

The establishment, implementation and application of the criminalization under Articles 2 to 6 of this Protocol should furthermore be subject to the principle of proportionality, with respect to the legitimate aims pursued and to their necessity in a democratic society, and should exclude any form of arbitrariness or discriminatory or racist treatment.

This drafting obviously has been inspired by limitation clauses in the European Convention on Human Rights and other human rights treaties. That said, it is manifestly inappropriate in the context of criminalization provisions. Instead of “proportionality,” “legitimate aim,” “necessity in a democratic society,” etc., the clause should focus on the requirement of legality in criminal law (non-retroactivity, precision, clarity, and foreseeability), the presumption of innocence, and the question of the burden of proof, particularly in respect of the “purpose” element of the proposed new offenses.

More importantly, there is a real risk that when implementing the Protocol, member states will include the domestic law criminalizations required by Articles 2 to 6 of the Protocol but not limit them to terrorist offenses within the meaning of the 2005 Terrorism Prevention Convention. Instead, they might include a number of new crimes in their penal codes that use a domestic definition of terrorism, with very different consequences in different member states. This may appear to be an attractive choice because of the virtually nonexistent scope of application of the new crimes as defined in the draft Protocol. But in that case, the Council of Europe Protocol would be used to legitimize a much broader range of new criminalizations than what actually are covered by the Protocol. If such “mission creep” is to be avoided, the conditions clause in Article 7(1) of the Protocol also needs to be amended. In the current draft, the clause reads:

Each Party shall ensure that the establishment, implementation and application of the criminalization under Articles 2 to 6 of this Protocol are carried out while respecting human rights obligations, in particular the right to freedom of movement, freedom of expression, freedom of association and freedom of religion, as set forth in, where applicable to that Party, the Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, and other obligations under international law.

One more sentence should be added, requiring that any new criminalizations introduced in domestic law pursuant to Articles 2 to 6 of the Protocol shall be limited to terrorist offenses within the meaning of the Terrorism Prevention Convention. 

About the Author(s)

Martin Scheinin

Professor of Public International Law at the European University Institute, Former United Nations Special Rapporteur on Human Rights and Counter-Terrorism (2005-2011)