The European Union, counter terrorism and police co–operation, 1991–2007

Unsteady foundations?

David Brown

• Publisher: Manchester University Press
• Year: 2013
• Print ISBN:
  9780719074646
• eBook ISBN:
  9781847796691
• Topic: Politics & International Relations
• Subtopic: European Politics
• Index: Politics & International Relations

This volume examines the underlying foundations on which the European Union's counter-terrorism and police co-operation policies have been built since the inception of the Treaty on European Union, questioning both the effectiveness and legitimacy of the EU's efforts in these two critically important security areas. Given the importance of such developments to the wider credibility of the EU as a security actor, this volume adopts a more structured analysis of key stages of the implementation process. These include the establishment of objectives, both at the wider level of internal security co-operation and in terms of both counter-terrorism and policing, particularly in relation to the European Police Office, the nature of information exchange and the 'value added' by legislative and operational developments at the European level. It also offers a more accurate appraisal of the official characterisation of the terrorist threat within the EU as a 'matter of common concern'. In doing so, not only does it raise important questions about the utility of the European level for organising internal security co-operation, but it also provides a more comprehensive assessment of the EU's activities throughout the lifetime of the Third Pillar, placing in a wider and more realistic context the EU's reaction to the events of 11 September 2001 and the greater prominence of Islamist terrorism.

1
Introduction

On 11 September 2001, terrorism was seared into the global consciousness, as the world watched live the horrific images of hijacked planes being crashed into the World Trade Center and the Pentagon. In the years that followed, Al Qaeda and Osama bin Laden have become household names, dominating the airwaves and making full use of what Margaret Thatcher once called ‘the oxygen of publicity’.¹ The 24-hour global media has beamed pictures of death and destruction into our living rooms, while commentators and analysts scrutinise bin Laden’s taped proclamations, with their references to contemporary political events and their calls for continued jihad or, in at least one case, a mass conversion of ‘unbelievers’ to his particular variant of Islam.² Newspapers carry stories of bombings with regrettable regularity, interspersed with news of failed plots, terrorist trials or the ‘speeches of hate’ from the self-appointed spokespersons of militant Islam. In effect, terrorism has become a central feature of modern life for much of the international community.

Some commentators have seen the events of 11 September 2001 as marking a ‘watershed’ in international relations, bringing the first period of the post-Cold War era to an end and marking a new vulnerability on the part of the world’s only superpower, the United States.³ Certainly, the impact of such events – and the ensuing ‘war on terror’ – should not be underestimated, notably on the US and its close ally, the United Kingdom. In the case of the US, the Bush administration came to office proclaiming the need for a more ‘humble’ foreign policy and a desire to withdraw from much of what it saw as ‘Clintonian diplomacy’, notably in the Middle East. Both Condoleezza Rice, the National Security Advisor and subsequently Secretary of State in the two Bush administrations, and the prospective President himself, spoke out against the perils of ‘nation-building’, believing that it was not a suitable task for the US military to engage in.⁴ Ironically, as part of the ‘war on terror’, the Bush administration ended up engaged in two large-scale nation-building exercises, in both Afghanistan and Iraq, and its reputation will ultimately rest on whether longer-term stability can be maintained in both states. The direction of the Blair Government was also changed substantially, with a domestically cautious Prime Minister transformed into what one of his Cabinet colleagues called ‘the vice president of the free world’.⁵ Having been hampered in his opening years in office by his own innate conservatism and the ‘creative’ partnership with his Chancellor of the Exchequer, Blair’s diplomatic activity in the wake of the terrorist attacks and the UK’s subsequent military involvement in both the invasions of Afghanistan and – more controversially – Iraq significantly altered the course of his premiership.

International organisations, at all levels, were also not immune to this transformative effect. The United Nations (UN) was initially used a forum for the expression of sympathy and support for military action in Afghanistan, as part of a wider reassessment of existing counter-terrorist obligations. As the ‘war on terror’ took a turn towards Baghdad, the initial wave of solidarity rapidly broke down, with the UN becoming the diplomatic battlefield where the future of Iraq – and, implicitly the ‘war on terror’ – was debated. Yet, even as the international diplomatic atmosphere took a turn for the worst, the UN was still able to take a number of unprecedented steps in counter terrorism. Firstly, by passing Resolution 1373, the UN decided to hold its member states to account, establishing a Counter-Terrorist committee to monitor the implementation of legislation across the globe.⁶ Not only that, but, as a means to demonstrate the UN’s continued relevance in the changing international security environment, the then Secretary-General, Kofi Annan, established a High Level Panel to report on both the nature of the new threats and the contribution that the UN can make in challenging them. Published in 2004, its conclusions on terrorism were some of the most far-reaching of the report, both in terms of the role of the state in terrorist activity (where the report concluded that the concept of ‘state terrorism’ was no longer relevant in the twenty-first century) and the hoary distinction between ‘terrorist’ and ‘freedom fighter’. Boldly taking such a truism head on, the Panel argued that no cause, however serious, justified resorting to violence against civilians.⁷ Sadly, this section of the report was subsequently not adopted in full by the General Assembly.

The North Atlantic Treaty Organisation (NATO), which has arguably struggled to fully justify its continued relevance to the post-Cold War security environment, also seized upon the moment to re-secure its place within the wider security firmament. Having ultimately ascertained the involvement of the regime in Afghanistan in the preparation of the terrorist events, NATO dusted off the collective defence clause of Article 5 in the most unusual of circumstances. Having initially been assumed to be the hook by which the European member states could ensure the military and political protection of the US against the perceived threat of the Soviet Union’s Red Army, the reality of the situation saw such an offer being made in reverse, with the Europeans offering a collective defence guarantee to the US. However, the Bush administration was not prepared to acquiesce in giving NATO a central role in the waging of the initial stages of the ‘war on terror’, preferring to maintain the lead role for the US military and its ‘coalition of the willing’ partners. That said, the organisation has still managed to construct a role for itself in countering terrorism, firstly by taking on primarily a ‘back-filling’ role covering for the US, through for example the use of its Airborne Warning and Control Systems (AWAC) to cover US airspace as part of Operation Eagle Assist, and then by organising the International Security Assistance Force (ISAF) in Afghanistan in the battle for the stability of that state.⁸ While that campaign has, once again, demonstrated the difficulties of ‘waging war by committee’, given the limitations placed on action by a proliferation of national caveats, NATO has secured for itself a breathing space from the continued questioning of its relevance, which has been an almost permanent feature of the post Cold War debate.

The European Union (EU) – the focus of this analysis – is no exception to this general rule. Reacting relatively quickly to the events in the US, the EU moved to create a collective definition of terrorism (discussed in more depth in Chapter 3) and to overhaul its extradition arrangements, with the formation of a new European Arrest Warrant (EAW), as part of a much wider counter-terrorist response. The subsequent years have seen a proliferation of initiatives, agencies and legislative and bureaucratic activity, with its declared counter-terrorist efforts monitored and managed in a series of Road Maps and Action Plans. Yet, for all of these cases, the EU included, neither terrorism nor their counter-terrorist responses began on 11 September 2001. In each case, they were building on preexisting foundations. The UK, for example, already possessed the most extensive array of counter-terrorist legislation of all the (then) fifteen EU member states, having been bloodied by its battle with the forces of Republican and Loyalist terrorism in Northern Ireland and the UK mainland since 1969. Having already placed the controversial Prevention of Terrorism Act (PTA) provisions on a permanent footing in 2000, as part of the Terrorism Act, the UK had a substantive base to build on.⁹ Even though the US had not been threatened to the same extent as its ally, terrorism, even in the form it took on 11 September, was not new to it. Having faced, over the years, the forces of Vietnam-inspired revolutionary terrorism, such as the Weathermen, and Christian fundamentalist violence,¹⁰ the US was given a foretaste, eight years earlier, of what was to transpire in 2001, when Ramzi Yousef attempted to blow up the World Trade Center in 1993. In fact, throughout the 1990s, the US was placed firmly in the sights of the forces of Islamist terrorism and Al Qaeda in particular, with a series of terrorist incidents overseas – in Kenya, Tanzania and Yemen – adding credence to the idea that a ‘growing storm’ was developing.¹¹ Prior to 11 September, the UN already had on its legislative stocks twelve separate conventions criminalising aspects of counter-terrorist activity, such as hijacking and hostage-taking. While the ratification and implementation process for the UN’s legislative foundations was (and remains, at the time of writing) incomplete, and a coherent and universally agreed definition of terrorism itself still eludes it, the organisation was not starting with a blank page.¹² Even NATO, established as a vehicle to provide collective protection against threats from an external state, had taken some tentative steps prior to 11 September 2001 to at least acknowledge the changing nature of international security. Its 1999 Strategic Concept embraced the idea of international terrorism as a threat for the first time,¹³ thereby giving the organisation a foundation on which to build.

There is, therefore, a need to consider the full chronological picture. While there has been a reasonable flurry of research activity in the post-11 September era, this is, at best, a snapshot of the full picture.¹⁴ In contrast, this book, when considering the efforts of the EU to effectively implement its counter-terrorist policy, takes as its starting point the 1992 Treaty on European Union (TEU), which established the three ‘pillars’ of the new EU and brought counter terrorism into the formal structures of European integration for the first time, as part of the remit of the Third Pillar, which was dedicated to Justice and Home Affairs (JHA). This approach has two distinct advantages. Firstly, by considering the entirety of the period – from 1992 through to 2007 (the last year with full statistical information available at the time of writing) – rather than simply the post-11 September reaction, a fairer and more accurate picture of EU activity is produced and therefore a more accurate assessment of what the EU contributes can be ascertained. For example, some commentators and officials have tried to argue that, when considering the development of the European Police Office (hereafter, Europol), the key date for beginning the analysis should be 1999, when the Europol Convention completed its ratification process.¹⁵ Yet, this would be to miss out on the full picture, including the foundation of the Europol Drugs Unit (EDU), which had been established as a forerunner of Europol on 3 January 1994. It is inaccurate to state that Europol was beginning from a blank page in 1999, just as it is not wholly accurate to consider the EU as a complete novice in the field of counter terrorism in 2001. It is only by considering the full period of activity that a proper context can be given. Secondly, it also permits a more substantive analysis of the impact of 11 September on the EU; it is only by giving due consideration to the EU’s foundations in both counter terrorism and police co-operation that any form of comparative analysis can be done and therefore the true impact of such an event can be evaluated.

Two caveats must be highlighted at this stage, in order to delineate the contours of this analysis. As noted above, in the wake of both the attacks on the US in 2001 and after subsequent attacks on European soil, notably in Madrid in 2004 and London in 2005, the EU has expanded its counter-terrorism remit substantially. Initially limited to a subsidiary role within the EU’s Third Pillar, the EU’s counter-terrorist horizons have substantially widened in the ensuing years, spreading across the three pillars and reclassifying certain pre-existing measures, such as the Schengen Information System (SIS) as elements of their counter-terrorist response, even if this had not been their initial aim.¹⁶ The range of EU activity in this field can best be demonstrated with reference to the 2005 EU Counter-Terrorism Strategy, which outlines four separate pillars of activity (these are then broken down further into a series of sub-sets). In the Prevention pillar, the focus is primarily on countering the root causes of terrorism, by reaching out to elements of the moderate Muslim community and countering radicalisation, both in wider society and within the prison system. Protection is the second pillar, with its emphasis on border management, transport security and the provision of critical infrastructure protection. In the Response element, the focus is divided between the fields of civil and military protection, with provisions for the creation of a Rapid Response and Preparedness Instrument to enable the EU to involve itself, at the request of member states, in the wake of a terrorist attack.¹⁷ Finally, there is the Disruption pillar of EU activity, which embraces the widest and largest array of measures, including the fields of police and judicial co-operation and the combating of terrorist financing.¹⁸

It is beyond the scope of this book to consider in sufficient depth all of these elements; to attempt to do so would be to spread the level of analysis dangerously thin. The focus of this book will be on the key elements of the final aspect listed, namely Disruption, with a particular emphasis on police co-operation. As such, the heart of the analysis will be located within the EU’s Third Pillar, which means excluding those elements – such as the application of the EU’s developing foreign and defence elements for counter-terrorist purposes (Pillar Two) and the combating of terrorist financing (Pillar One) – which have not been located consistently within the Third Pillar from the outset. The reasons for this are both institutional and chronological. From the inception of the pillar structure, counter terrorism was located in the Third Pillar, with its own distinct institutional arrangements. Not only that, but it was initially connected directly to the development of police co-operation, with the two only being separated by the Treaty of Amsterdam in 1997. Therefore, for the first five years of EU counter-terrorist activity, the focus is almost entirely on the Disruption element of the Action Plan. This is unsurprising, given the widely held view that ‘the only effective deterrent against … terrorism is a high probability of arrest and conviction’.¹⁹ In order to ensure a comprehensive analysis of the first fifteen years, the focus must be on the Third Pillar. This also has the advantage of consistency, as the same legislative rules and institutional roles have applied throughout.

Secondly, the focus of the book is primarily on the European level. It is beyond its scope to follow all measures agreed at the European level through the institutional channels at both national and, if necessary, local levels, one measure that has been suggested as a means to assess the EU’s claims to ‘add value’ in the areas of police co-operation and counter terrorism. While reference will be made to developments within the member states where appropriate to do so, notably in relation to the nature of the threat posed by terrorism and development of the ‘implementation gap’ between declared aims and legislative and operational reality on the ground, the national level is not the primary focus.

The Third Pillar: a brief chronology

Before outlining the structure of this book, it is worth briefly sketching the Third Pillar’s chronological development, to create a context for the analysis and to introduce some of the key terminology. As noted earlier, the Third Pillar was established...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of tables
• List of abbreviations
• Acknowledgements
• 1 Introduction
• 2 A question of JHA objectives
• 3 A question of objectives: police co-operation and counter terrorism
• 4 A question of commonality
• 5 A question of credibility: legislation, agencies and the implementation gap
• 6 A question of credibility: information exchange
• 7 Looking back, looking forward
• Index