An Update on European Measures Addressing Terrorism in the Aftermath of the French Attacks

In the aftermath of multiple terrorist atrocities in Paris on November 13, concerted legal and policy action is being taken both domestically and regionally. Coordinated regional developments are not a new phenomena for European states. The Council of Europe (COE), the European Union, the Organization for Security and Co-operation in Europe (OSCE), and NATO have all have addressed the manifestations of terrorism at a national and regional level. Much of the work historically undertaken by these bodies can be defined as attempts to agree on suppression conventions or to establish framework agreements to regulate terrorism, as well as working toward cooperative regional action on a multitude of fronts. The events of 9/11 in the United States, 7/7 in London, and 3/11 in Madrid renewed the impetus to regional action and coordination. Though the details are complex, we are seeing much the same on display in the immediate aftermath of 11/13, as each European body tackles coordination according to its expertise and capacity.

European Union

Contemporary EU counterterrorism policy dates back to July 20, 2005 (shortly after the London Underground bombings) and builds on the four values later set out in the Stockholm Program: prevention, protection, pursuance, and response. (These values had previously been invoked by EU bodies in the aftermath of the 9/11 attacks.) However, it appears inevitable that the Paris attacks will lead to revisions in EU counterterrorism policy. Preliminary responses suggest that there is substantial EU acquiescence to France’s security requests. In particular, France’s demand to fundamentally reorder the Schengen open border zone has received significant support from EU interior and justice ministers. These revisions would, among other changes, allow for “systematic controls” to be carried out on external borders. The possibility of a program in which EU citizens would have their passports checked against criminal and security databases when entering or leaving the Schengen Zone is also under sustained discussion.

Already enacted internal reforms include a crackdown on illegal gun sales as well as weapons smuggling across the EU. On November 18, the European Commission adopted a package of measures to make it more difficult to acquire firearms in the EU and it has indicated it will amend the current EU firearms directive. Specifically, the amendments will: re-categorize certain semi-automatic firearms to ensure they are not held by private individuals, incorporate blank-firing weapons into the scope of the directive to ensure that they are not changed into firearms, and introduce tighter marking of firearms to improve the traceability of weapons across the EU.

The initiatives will be achieved by anti-terrorism legislation that the EU plans to implement in January 2016. Home Affairs Commissioner Dimitris Avramopoulos announced that the EU would come forward with a proposal by the end of November modifying existing counterterrorism legislation (details of the proposal are not yet public, and we await their publication). In addition to the multiple goals of weapons regulation, border checking, and terrorism prevention, the legislation would harmonize the criminalization of certain activities and establish a common category of “foreign fighters” who would be treated similarly across all member states.

More ambitious plans include the creation of a new EU intelligence service and EU interior ministers’ proposals for the implementation of a passenger names records (PNR) system. The PNR allows air carriers to transfer data about passengers on international flights to a designated unit in the EU state of arrival or departure. The State would have the right to analyze and retain this data strictly for the purpose of fighting serious crime and terrorism offenses. Though it’s worth nothing that, for a variety of reasons, there are ongoing domestic challenges to the retention of this data, its management, and the conditions for its disclosure and use.

In terms of radicalization, the current 2010 EU Internal Security Strategy in Action, the 2011 Radicalization Awareness Network, and the 2005 EU Strategy for Combating Radicalization and Recruitment remain unchanged, though they are likely to be subjected to revision and review in the months ahead.

An emergency meeting held in Brussels on November 20 initiated a series of measures designed to enhance border security and checks at Europe’s external borders. These measures include the immediate vetting of all EU nationals for potential terrorism or criminal connections, a task which seems equally immense and impractical given the scale of resources available across all EU member states. All EU citizens entering or leaving the Schengen free-travel area will undergo “systematic” screening. Specifically, the Council called for:

a targeted revision of the Schengen Borders Code to provide for systematic controls of EU nationals, including the verification of biometric information, against relevant databases at external borders of the Schengen area, making full use of technical solutions in order not to hamper the fluidity of movement.

NATO

In the immediate aftermath of the Paris attacks, the NATO Secretary-General condemned the barbarity of the actions, declaring that “Terrorism will never defeat democracy.” Aside from declaratory statements, NATO has not taken any formal military position with respect to the attacks, though early speculation emerged that France might seek to invoke Article 5 (the collective defense provision of the NATO Charter), thereby activating a collective security response from all states. Gen. Petr Pavel, the Chairman of the NATO Military Committee, has since indicated that while there have been no formal discussions about next steps for NATO, any response would have to be more effective than current efforts. Pavel seemed to be indicating the need for increased efforts to train local forces to engage ISIL on the ground in Syria and Iraq. There is a discernible wariness about the invocation of Article 5 in the current circumstances, and despite the gravity of the violence in Paris a reluctance to cede to the view that the terrorist actions constitute military aggression against the state.

Since the May 2012 Chicago Summit, NATO’s work on counterterrorism has focused on improved threat awareness, developing adequate capabilities, and enhancing engagement with partner countries and other international actors. NATO’s anti-terrorism policy is based on the recognition that nations have the primary responsibility for the defense of their populations and infrastructures, and discusses its competencies only in dialogue with nations requesting support. These policy agreements remain at the forefront of NATO policy, but their overall effectiveness and relationship with broader counterterrorism strategies is unclear.

NATO’s primary role in current terrorism challenges is primarily articulated through the Alliance’s Defense Against Terrorism Program of Work (often called the “DAT POW”) which was established to prevent non-conventional attacks, such as suicide attacks with improvised explosive devices, and to mitigate other challenges, including attacks on critical infrastructure.

OSCE

The Paris attacks come at a point when the OSCE is already substantially stretched politically and structurally with events in Ukraine. With regard to addressing the challenges of terrorism and counterterrorism, the OSCE focuses on conflict prevention, crisis management, and early warning. Competencies of the OSCE such as police training and border monitoring and rule of law support are also implicated. On November 14, the OSCE Parliamentary Assembly President Ilkka Kanerva condemned the attack and expressed optimism that France and its partners within the OSCE and its Parliamentary Assembly will work together to counter terrorism. During the 1033rd Special Plenary Meeting of the Permanent Council, the Paris attacks were eclipsed in importance by the situation in Ukraine.

The Council of Europe

The Council of Europe has taken multiple steps to promote regional approaches to regulating terrorism and counterterrorism in the context of safeguarding the human rights treaty obligations of states since September 11th. In 2003, COE states agreed a Protocol Additional to the 1977 European Convention on the Suppression of Terrorism. After many years of sustained negotiation, the Committee of Experts of Terrorism (CODEXTER) revised the Convention on the Suppression of Terrorism. The Convention is expressly designed to enable the extradition of individuals who have committed acts of terrorism between member states.

In parallel, particular attention has been paid within the COE system to adopting new rules that improve the protection of, support to, and compensation for victims of terrorists acts and their families. As a result, the Convention on the Prevention of Terrorism (opened for signature in 2005 and entered into force in 2007) contains a provision specifically dealing with the protection and compensation of and assistance to victims of terrorism.

In the weeks before the Paris attacks during October 2015, the Council adopted an Additional Protocol to the Convention on the Prevention of Terrorism to address the challenges of foreign terrorist fighters, and agreed to an Action Plan on the fight against violent extremism and radicalization leading to terrorism. The Protocol makes a number of activities, including taking part in an association or group for the purposes of terrorism and traveling abroad for the purposes of terrorism a criminal offense.

Though no further specific action has been taken yet, in a statement immediately following the Paris attacks, the Secretary-General of the Council Thorbjørn Jagland confirmed the solidarity of the Council with France. The COE Council of Ministers issued a collective press statement  

About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism; This article is written in the author's personal and academic capacity; Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland; Follow her on Twitter (@NiAolainF).

Oren Gross

Irving Younger Professor of Law and Director of the Institute for International Legal & Security Studies at the University of Minnesota Law School