Research
Articles
The cracks in EU anti-terrorism cooperation that invite attack
Recent terrorist attacks have clearly indicated the importance of speeding up European cooperation. The September 2001 anti-terrorism action plan formulated after 9/11 was followed by EU decisions on the definition of terrorist offences, on a list of suspected terrorist organizations and on aligning member states' sanctions. Other measures followed, but implementation was slow. Three days before the Madrid bombings, an internal report on the EU's counter-terrorism efforts identified three major shortfalls: A lack of resources and intelligence capacities; poor coordination between officials working on law enforcement and security issues; and the fact that a number of member states were making no effort to implement EU-level agreements. There was little sense of urgency, and it rather looked as if Europe needed a serious terrorist incident of its own before it would acquire one.
It came three days later, on March 11 of last year. Reactions to the Atocha station bombings were prompt and tangible. In the wake of the Madrid attack, the EU Council of Ministers issued a declaration that included closer cooperation, support against terrorism for third countries and heightened international transport security. The Council also appointed senior Dutch politician Gijs de Vries as counter-terrorism co-coordinator to oversee the implementation of these cooperation measures. In mid-2004, Javier Solana, the EU's High Representative for Defence and Foreign policy, expanded its Joint Situation Centre (SitCen) to bring together national intelligence and security analysts. By November, the Hague Programme for the exchange of information, tighter border controls, and travel documents and police and judicial co-operation was adopted. And by the end of the year, the Council had also updated its anti-terrorism action plan and approved specific measures against terrorist financing as well as more general policies on civil protection, prevention of recruitment, critical infrastructure protection and external security policy.
For all that, the aftermath of the London bombings in July was that EU ministers were forced to conclude yet again that the implementation of all these measures is still painfully slow. At a special meeting of the Justice and Home Affairs Council they agreed on an "urgent" anti-terror policy, even though there still are quite a number of outstanding issues on which national opinions differ. These have to be dealt with if Europe wants to make it that much more difficult for terrorists to launch a successful attack.
Leaving aside the differences in speed and enthusiasm for implementing agreed EU measures, there are significant differences of opinion on anti-terrorism policy. EU member governments are divided on various aspects of what constitutes a terrorist offence and what needs to be done to pursue the fight against terrorism.
For instance, the European arrest warrant introduced in January 2004 is regarded as one of the key anti-terrorism measures. A Commission report in February 2005 showed that more than a hundred people had been surrendered by the authorities in one EU country to their counterparts elsewhere, with each procedure taking an average of 45 days (the previous average had been nine months). But in July this year, Germany's highest court ruled that handing over a terror suspect to Spain on the arrest warrant violated German constitutional law. The decision by Germany's Karlsruhe court now renders the law ineffective until an improved bill can be drafted that is in line with the German constitution's ban on the extradition of Germans to foreign countries. An immediate result has been that an important terrorism suspect has still not been handed over to the authorities in Spain.
More serious divergences are now expected over the EU's proposal for a European evidence warrant. This would allow a member state to issue a warrant instructing another member state to collect and hand over evidence wanted in criminal proceedings. It would mark an important step in the programme of mutual recognition that is needed to counter terrorism in Europe. The list of offences to be covered is wide, it stipulates no minimum penalty, and includes computer-related offences, "environmental crime" and racism and xenophobia. The problem is that the criminalization of these activities varies widely between member states, So as well as fundamental disagreement on the offences covered by the evidence warrant, there are likely to be many obstacles to its ratification and implementation.
Fundamental differences of opinion also exist over the right balance between freedom of the individual and the measures governments should take to protect society. The question of what should and should not be allowed in the fight against terrorism gets different answers in different member-states. These differences hamper anti-terrorism policymaking in many fields and are unlikely to be overcome in the foreseeable future. And of course within the member states themselves there is often much disagreement on these issues. In Spain, even after the Madrid bombings, views split sharply between those who supported Draconian anti-terrorism legislation and those who were more concerned about possible abuses of power at the expense of civil liberties.
In the Netherlands, one prosecution case against terrorism suspects failed because a judge refused to accept information from the intelligence service as evidence in court. In the United Kingdom, the Law Lords declared the provisions for detention of foreign terrorist suspects to be incompatible with Britain's obligations under the European Convention on Human Rights. Meanwhile, serious disagreement exists between the European Parliament, the Commission and the Council on issues relating to fundamental rights. This is very much the case regarding the sharing of information with third countries, with a case in point being the European Parliament's strong opposition to an agreement with Washington on making airline passengers' names available to the US Bureau of Customs and Border Protection.
Exchanging information is not just a troublesome transatlantic issue. There are differences between EU member states on what should be exchanged, between whom and how. This is particularly the case on intelligence data, where unfortunately agreement is needed most because cooperation between intelligence services is the key to fighting terrorism. There have been calls for more joint investigatory teams at EU level and for strengthening procedures to allow, and even force, intelligence services and police forces to work together.
It would be wrong to suggest there have been no positive developments. Think of the new treaties and working methods that have been introduced in the comparatively short time since Al-Qaeda and its jihadist-style terrorism was revealed as a major problem. There have also been important advances with the creation of new working groups, organisations and offices such as SitCen and the counter-terrorism co-coordinator. But, and it is a big but, the exchange of high-grade intelligence is still held back by a lack of trust in organisations such as Europol and Interpol. Where real co-operation exists it is almost always on the basis of bilateral relationships between organisations that have a tradition of working with each other, such as the G5 (UK, France, Spain, Italy and Germany). This leaves many EU member states in northern and eastern Europe with limited access to intelligence. Ideas for improving this situation range from building on existing bilateral relations to the establishment of a European CIA-type organisation, as put forward by Belgium's Prime Minister Guy Verhofstadt and a number of others.
There is much disagreement too, over an issue that although indirectly linked to fighting terrorism is nevertheless crucial; The EU's common foreign and security policy. Europe is still very much divided, especially over Iraq. This is to some extent also the case regarding cooperation with the US on terrorism issues and the level of support Europe should give to America's "war against terrorism".
These differences of opinion on the scope and detail of EU anti-terrorism policy constitute serious obstacles to the anti-terrorism effort. They contribute to the incompleteness and slow implementation of EU agreements and hamper agreement on further measures. The pace of progress on EU-wide co-operation against terrorism is consequently still too slow to catch up with developments in terrorism. Co-operation between the terrorists themselves is much more advanced than between the European agencies and institutions chasing them. Looking back at developments since 9/11, Madrid and the London attacks, it seems that only terrorist successes are able to force Europeans to overcome their differences and move EU anti-terrorism policy into higher gear. One could thus argue that the speed and direction of our anti-terrorism efforts seem to depend on the terrorists rather than on our politicians. This is a totally unacceptable situation that calls for a wholly different approach in which policy would be formulated and implemented independently of the pressures created by terrorist incidents. In other words, our view of terrorism and how to combat it must become as international and pan-European as that of the terrorists themselves.