Theme: This ARI reviews cooperation and collaboration mechanisms in the fight against terrorism within the European Union and at other levels of international society.
Summary: Strengthening international anti-terrorist cooperation is a priority for Spain in order to create adequate and legitimate responses to the threat from terrorism and to construct and consolidate the area of freedom, security and justice to which Spain belongs. The European Union (EU) is facing security challenges that are different from those of the 1990s; because of this, in the 21st century it requires in-depth knowledge and an understanding of the risks faced by society in the age of globalisation. Based on the need for a European approach, the EU’s anti-terrorist strategy, adopted by the European Council of 15 and 16 December 2005, establishes its commitment to the global fight against terrorism. The different cooperation mechanisms at community level are combined with others that are more global, and whose possibilities must be optimised.
Analysis: As a specific type of very serious crime, terrorism is a priority in terms of prevention and repression and a global effort is required to fight in a coherent manner a phenomenon that has become both transnational and internationalised. Although this might appear simplistic, responses to this type of terrorism must also be equally global.
The different sections of this analysis describe some of the forums and operational instruments through which international cooperation to combat terrorism has been developed. In addition to the wide-ranging framework of the International Criminal Police Organisation (ICPO-Interpol), we will also consider other multilateral instruments with the police or security services of different European countries, taking the Trevi Group as the forerunner of the current cooperation between EU countries. We will not discuss here the intense and varied bilateral cooperation between equivalent services or the collaboration between European police forces on terrorism and serious events in the Police Working Group on Terrorism (PWGT).
Interpol
The 25th General Assembly of the International Criminal Police Commission (ICPC), held in Vienna from 7 to 13 June 1956, converted this Commission into the International Criminal Police Organisation (ICPO) and drafted a new Constitution. As regards international cooperation in the fight against terrorism, the 55th ICPO-Interpol General Assembly, which took place in Belgrade in 1986, adopted the ‘Guide for Combating International Terrorism’ in response to the need to combat the waves of terrorism in different countries of the Organisation. The Terrorism Branch (TE) initiated its activities in the General Secretariat in 1987, drafting the aforementioned Guide for use by all the National Central Bureaus (NCB) in cooperation relating to international terrorism. The Guide –with subsequent modifications– provides the basis for Interpol action against international terrorism.
The 67th ICPO-Interpol General Assembly, held in Cairo from 22 to 27 October 1998, approved the new ‘Guidelines for Co-operation in Combating International Terrorism’ on which a group worked during the XIII international colloquium on terrorism and support networks, which took place in Palma de Mallorca on 5, 6 and 7 October. The new document reflected the belief that the nature of terrorist activities had significantly changed and that their globalisation and the ease with which people could travel from country to country required the maximum cooperation.
The only limit to the exchange of information on terrorism is determined by Article 3 of Interpol’s Constitution: ‘It is strictly forbidden for the Organization to undertake any intervention or activities of a political, military, religious or racial character’. This Article does not prohibit the circulation of information aimed at crime prevention, or prevent member countries from searching for terrorists who commit crimes representing a serious danger for human life or freedom. But it does exclude cooperation related to crimes which, although legislated for in member states’ penal codes, are essentially political, military, religious or racial in nature (free speech, insulting authority, desertion from the armed forces, espionage, the practice of a prohibited religion and membership of a racial association). In the last instance, the Organisation’s General Secretary has the powers to arbitrate on matters related to this article, applying the criterion of the so-called theory of predominance (the predominant aspect of the punishable crime must be determined).
Data on terrorism are incorporated into the Interpol Criminal Information System (ICIS) at the General Secretariat once it has been verified that the information fully complies with regulations. Placing its expertise at the service of the General Secretariat on a daily basis, the TE Branch analyses and inputs checked data into the system and supports member states in regard to this specific criminality. It participates annually in the development of the International Colloquium on Terrorism, a forum offering member countries the opportunity to exchange information on issues related to international terrorism.
To summarise, terrorist crimes are common law crimes, which theoretically means that police cooperation on this serious type of international criminality can be developed. Cooperation on violent types of terrorism does not raise any problems in regard to the limits expressed, which means that anti-terrorist cooperation currently occurs fluidly in Interpol. In addition, it undertakes the international dissemination of terrorism-related matters, even issuing alerts for action to be taken in the face of a perceived threat, and it supports international judicial assistance via international letters rogatory (LR) and extraditions.
Cooperation in the EU
Chapter IV, Title III, of Part III of the Treaty establishing a Constitution for Europe (henceforth Constitutional Treaty or CT), which is pending ratification by a number of member states, deals with ‘an area of freedom, security and justice’. Both Section 4 –‘Judicial cooperation in criminal matters’– and Section 5 –‘Police cooperation’– emphasise the priority of the fight against terrorism, as does the solidarity clause in the face of a terrorist attack included in Article I-43.
Just five years after the Tampere European Council, the Hague Programme, a new pluri-annual programme for the next five years, reflects the expectations expressed in the CT with a view to consolidating an area of freedom, security and justice. It has allowed progress to be made on this basis and to respond to the new challenges posed by the global society of the 21st Century.[1]
In the short term the elements included in the Declaration on combating terrorism adopted by the European Council of March 2004 should be fully implemented. The resources of Europol and Eurojust –that are closely associated to the work of the Joint Investigation Teams– should especially be strengthened, as should the rest of the instruments of the updated Action Plan against terrorism, with a significant effort being made to achieve an optimal and effective use of all the EU institutions involved. In this respect, it can be argued that Council Decision 2005/671/JHA of 20 September 2005 –on the exchange of information and cooperation concerning terrorist offences– is an incentive to the integration of Europe’s anti-terrorist instruments and organisms. It does so by recognising that because of the persistence of the terrorist threat and the need for a greater exchange of information, all the services involved must have fully updated information.
The full application of the principle of mutual recognition of judicial sentences and resolutions is considered a necessary requirement and the cornerstone for judicial cooperation, involving the definition of equivalent standards applicable to criminal justice rights, with due respect for the different legal traditions. Council Framework Decision 2002/584/JHA of 13 June 2002, on the European arrest warrant and the surrender procedures between Member States, was the first EU judicial instrument in which such a principle was applied; it was later expressly included in Article III-270 of the CT as the basis for judicial cooperation on criminal matters.
The compliance with the principle of availability of information can be considered the cornerstone of the Hague Programme. In short, this means that a police force requiring information in order to carry out its duties can obtain it from the police force of another member state for the purpose stated and taking into account the requirements of the investigations underway in the latter state.
Trevi. In 1975, the Council of Ministers of Justice and Home Affairs of the nine countries then forming part of the European Economic Community (EEC) decided to hold joint talks on issues relating to terrorism, organised crime, public order and the exchange of knowledge and experience on explosives. In continuation to a series of meetings and as the culmination of these debates, a further meeting was held in Luxembourg on 29 June 1976 that established the Trevi Groups so that collaboration could become permanent in different areas of competence, with Group I focusing on terrorism. Spain joined Trevi as an observer-member in 1979. In 1983, at the request of the Minister for Home Affairs, it was granted speaking rights on terrorism, but not voting rights. In 1986, when Spain joined the Community, it became a member with full rights.
The idea underlying the Trevi Group of cooperation within a supra-national space is of great interest, but what really matters –in terms of international cooperation in the fight against terrorism– is that there did appear to be something linking all the police forces of the Community’s member states. Mutual or reciprocal familiarisation and trust was thereby initiated, which is probably the only way of ensuring the real exchange of police information.
The London European Council of December 1986 –taking up the conclusions of the extraordinary meeting of Trevi Ministers held in London on 25 September of the same year, and taking as its starting point that the key question was to share and jointly analyse all the information available– agreed on a number of principles to regulate the common fight against terrorism and against the sponsors of terrorist acts. It expressed the need for coordination with the security authorities and agreed to pool resources in order to maximise its capacity to prevent terrorist acts and bring their perpetrators to justice, stressing the need for effective coordination between the Ministries of the Interior and of Foreign Affairs. This need encouraged the working group to prevent and combat international terrorism, within the framework of European political cooperation, which continues to undertake its activities under the 2nd pillar: the Counter-Terrorism Committee (COTER).
Schengen. On 14 June 1985, five EEC countries (Belgium, Germany, France, Luxembourg and the Netherlands) signed the Schengen Agreement at the town of that name in Luxembourg, with the aim of facilitating the work agreed at the Fontainebleau European Council of 25 and 26 June 1984 on the abolition of police and customs formalities for people and goods crossing intra-Community frontiers.
The Convention Implementing the Agreement was signed on 19 June 1990 and included the compensatory measures related to the gradual suppression of controls at common borders and other measures on police and judicial cooperation which are relevant to the phenomenon of terrorism that we are addressing in the present paper. Spain joined the Schengen Agreement by means of the Protocol of 25 June 1991 and ratified the Convention Implementing the Schengen Agreement (CISA) by means of the appropriate instrument on 23 July 1993.
In relation to terrorism, it is important to highlight that Title III of the CISA ‘Police and Security’ includes different possibilities for police cooperation in Chapter 1, including mutual assistance (Article 39.1 to .3), cross-border surveillance (Article 40), cross-border or ‘hot’ pursuit (Article 41), unconditional communication of information (Article 46) and liaison officers (Article 47). Chapter 2 covers ‘mutual assistance in criminal matters’, Chapter 4 is on ‘extradition’, the instrument of the European Arrest Warrant and Surrender Procedure, which is intended to replace extradition legislation between member states, and Chapter 5 covers the ‘transfer of the enforcement of criminal judgments’, which are also important aspects of the counter-terrorist struggle.
The IT system for data inputting and consulting, the Schengen Information System (SIS), is aimed at preserving public order and security, including the security of the state, with the help of information transmitted by the system by means of the description of people and objects. The SIRENE office (Supplementary Information Request at National Entries) is a service provided by each member state to circulate required complementary information, as well as being the single and permanent point of contact.
Article 95 of the CISA allows the description of persons in the SIS for search and detention for extradition purposes or for arrest and surrender. Likewise, Article 99.3 provides for specific control and discrete surveillance on matters of state security, all of which are necessary instruments for carrying out police counter-terrorist operations in the Schengen area.
Council Decision 2005/211/JHA of 24 February 2005 concerning the introduction of some new functions for the Schengen Information System, even in anti-terrorist matters, includes capacity improvements and extends the SIS in accordance with the conclusions of the Laeken European Council and Action Plan against terrorism of 21 September 2001. It also explicitly identifies the obligation of the informing member state, in accordance with Section 3 of Article 99, to inform the remaining member states.
The Schengen acquis will be integrated within the Union’s institutional and judicial framework with the entry into force of the Treaty of Amsterdam. The Protocol also highlights the possibility that Ireland and the UK, who are not part of the agreements, accept some or all of its provisions. In addition, it covers the special position of Denmark and the partnership involving Norway and Iceland.
Europol. The Maastricht European Union Treaty (EUT) was a milestone in the process of European integration. Signed in the Dutch city of Maastricht on 7 February 1992, it entered into force on 1 November 1993. The new Title VI identifies its material scope, ‘provisions on cooperation in the fields of justice and home affairs’, and article K.1 indicates that for the purposes of achieving the objectives of the Union, in particular the free movement of persons, and without prejudice to the powers of the European Community, Member States shall regard the following areas as matters of common interest:
“[…] 9) police cooperation for the purposes of preventing and combating terrorism, unlawful drug trafficking and other serious forms of international crime, including if necessary certain aspects of customs cooperation, in connection with the organisation of a Union-wide system for exchanging information within a European Police Office (Europol).’
The provisions of K.1, Section 9 of the EUT, were fulfilled and the Cannes European Council of 26 June 1995 was gratified on the agreement reached on the definitive text for the Europol Agreement, which was signed in Brussels on 26 July by the Permanent Representatives of the 15 member states, entering into force on 1 October 1998. According to Article 2.1, the aim is to improve the efficiency of the services of the member states and the cooperation between them, in order to progress in terms of preventing and combating terrorism, illegal drug trafficking and other serious types of international crime, complying with certain conditions and for which joint action of the member states is necessary.
Article 2.2 of the Agreement establishes that, within a maximum period of two years following its entry into force, Europol will also take charge of crimes committed, or crimes that could be committed, within the framework of terrorist activities threatening the lives, physical integrity and freedom of persons, as well as those affecting their belongings. The Council can decide unanimously, in accordance with the procedure established in Title VI of the EUT, to place Europol in charge of these anti-terrorist activities before the deadline expires.
By 1 July 1999, all the requirements of the Agreement and its annexed protocols had been complied with, and Europol commenced its counter-terrorist activities with the five tasks that had been identified as necessary: (1) the exchange of information; (2) the preparation of precise, analytical working files; (3) the compilation of a body of anti-terrorist legislation from the different member states; (4) the creation of a glossary of terrorist groups; and (5) taking charge of responsibilities for administering the EU’s Directory of anti-terrorist competences.
The provision on Europol of the Treaty of the European Union signed in Amsterdam on 2 October 1997, which entered into force on 1 May 1999 and reforms the Maastricht Treaty, is worth highlighting since it refers to the Europol European Police Office as an instrument in the fight against organised crime, on which the Union should have a coherent and coordinated focus and be an active channel for police operations combating terrorism and organised crime.
Article K.1 (in the new numbering, 29) of Title VI, ‘provisions on police and judicial cooperation in criminal matters’, states that the Union’s objective is to provide citizens with a high level of safety within an area of freedom, security and justice. The most significant novelty of this 3rd Pillar is that article K.2 of the EUT (currently 30.2 of the EUT) provides for the Council to foment cooperation via Europol, stating that it will be possible for the latter to facilitate and support different activities, including operational activities, by means of Joint Investigation Teams formed by its representatives.
The Europol Information System (EIS) is now operational and the liaison officer system of the Europol member countries is ensuring the full exchange of information. The analytical work, crucial in the fight against terrorism, is carried out by means of two specific terrorism files (AWF). In 2005, Europol provided its support to member states in 20 terrorism investigations. In addition, in response to the terrorist attacks in Madrid on 11 March 2004, in October of that year a counter-terrorism working group was established (CTTF2) to develop special projects considered to be of use by high-level experts, in conjunction with experts seconded by the member states.
Eurojust. The need identified by the Tampere European Council (Finland), on 15 and 16 October 1999, to create a European Judicial Cooperation Unit (Eurojust), formed by public prosecutors, magistrates and police officers of equivalent competence is important because its mission is to facilitate the coordination of national public prosecutors’ offices and support criminal investigations in cases of organised crime. For these purposes, it will place an especial emphasis on Europol’s analysis, and will also cooperate closely with the European Judicial Network, with the aim of simplifying the execution of international letters rogatory.
On 26 February 2001 a Treaty was signed in Nice to modify the European Union Treaty and the constitutive treaties of the European Communities, as well as a number of connected documents, which entered into force on 1 February 2003. The modifications include the unit for legal cooperation on criminal matters, Eurojust, incorporating it into Section 2 of paragraph 2 of Article 29, and Section 2/ of Article 31 (EUT), in keeping with the conclusions of the Presidency of the Tampere European Council.
The Council Decision of 28 February 2002 created this body for the area of freedom, security and justice, establishing its fluid cooperation with other institutions and in particular with Europol, with the added detail that both the former and the latter must ensure close cooperation in order to avoid any wasteful repetition. A collaboration agreement was signed in 2005.
It is likely that Europol has exchanged information with several member states in the field of terrorist activities or provided pertinent analysis, to the extent that where police investigation requires the initiation of legal action implying Eurojust involvement, the latter should take advantage of Europol’s potential to avoid inefficiencies that could lead to possible duplications. For instance, the capacity of both Eurojust and Europol to process personal data could lead to their respective tasks overlapping, and closer cooperation in this field is therefore important in order to ensure strict compliance with basic rights, particularly on personal data protection, and to avoid the aforementioned risk of duplication.
In accordance with the Declaration on the fight against terrorism adopted by the European Council in its session of 25 March 2004 –as part of the section dealing with the reinforcement of operational cooperation–, Spain will have a specific national Eurojust correspondent for terrorism issues, who will be appointed by ministerial order and will act as the contact for the European judicial network. The national Eurojust member, Spain’s representative in the Unit, will be appointed by royal decree for a three-year term, renewable for a further three-year period, and chosen from magistrates and public prosecutors with a minimum of 10 years’ service and accredited experience in criminal jurisdiction.
Joint investigation teams. The creation of Joint Investigation Teams (JIT) to combat transnational terrorism for fixed periods of time in accordance with specific objectives is one of the instruments which feature in the Treaty of Amsterdam and also in Article 13 of the Agreement of 29 May 2000 on judicial assistance in penal matters between the member states of the EU. They are considered to be a very important instrument in international anti-terrorist cooperation because they can be employed to gain solid intelligence by optimising the potential for sharing and jointly analysing and developing all data, information and criminal intelligence in the investigation of terrorist events, and in locating and detaining their perpetrators. They will receive operational assistance from the European Police Office (Europol) and its analytical capacity from a European perspective.
The aim of these Joint Investigation Teams is to carry out criminal investigations in the territory of an EU member state, or several member states, by means of a team formed by representatives of the police or security forces of all the states which agree to create the team. They will be structured under the hierarchical responsibility of the police representative of the state where the criminal investigations are taking place, with judicial and fiscal control in accordance with the specific legal characteristics of the member state in question.
The fact that JITs are made up of members of the police forces of different member states is one of their strengths, especially when attempting to deal with transnational terrorist networks that attempt to take advantage of legislative, judicial, cultural and social differences to dodge the legal system and to conceal perpetrators or support networks for their terrorist activities.
Prüm Treaty. On 27 May 2005, Spain became a signatory to the so-called Schengen III, a Treaty also involving Belgium, Germany, France, Luxembourg, the Netherlands and Austria, agreed in the city of Prüm. The agreement aims to strengthen cross-border cooperation, particularly with regard to the fight against terrorism, cross-border offences and illegal migration.
For our present purposes, the Prüm treaty is of interest because it reinforces anti-terrorist cooperation between seven European countries, who will be the pioneers in achieving the maximum possible level of cooperation, particularly through the improved exchange of information. In its third Chapter it includes specific measures for the prevention of terrorist attacks in accordance with the Council Framework Decision 2002/475/JHA of 13 June on combating terrorism. Obviously, the possibility of participating is open to the remaining member states of the European Union.
SITCEN. The European Council’s Declaration on combating terrorism at its session of 25 March 2004 gave support to the Secretary General and High Representative for Common Foreign and Security Policy’s aim of having an information capacity on the terrorist threat. This mission was entrusted to the EU Joint Situation Centre (SITCEN), which incorporates the work of several intelligence services.
SITCEN is integrated within the Council Secretariat, and as from 1 January 2005 it has facilitated strategic assessments of threats, based on the information received from the competent national services and based on an improved information exchange with Europol.
Cooperation in the United Nations
It is essential to recognise the efforts and the work undertaken by the United Nations since the end of the 1960s, especially in terms of conventional legislation, as part of the global response to terrorism and as an integrator of the various instruments for international anti-terrorist cooperation.
The Security Council (CTC). Resolution 1373 can be considered an important milestone in the fight against global terrorism. It was unanimously approved by the Security Council at its 4,385th session, held on 28 September 2001, within the terms of Chapter VII of the Charter of the United Nations. It is important both for its mandatory content and because of the creation of the Counter-Terrorism Committee (CTC)
The Resolution is international legislation imposing general obligations on the member states and is one of the cornerstones of the anti-terrorist activity being carried out by the United Nations at the start of the present century. The Resolution obliges countries to classify different aspects of the financing of terrorism and terrorist activities themselves as crimes, ensuring criminal prosecution and assistance in criminal investigations and procedures. It simultaneously promotes and recommends good practices in international cooperation, and provides for increased and more flexible exchange of operational information.
The CTC’s role is to verify member states’ compliance with the terms of the Resolution and, where appropriate, to provide technical aid for the implementation of the measures approved by the Security Council. On 26 March 2004, the Security Council updated the Committee’s powers, creating an Executive Board as a ‘special political mission’ and providing it with an administrative support unit, managed under United Nations regulations, thereby ensuring the continuity of its work and institutionalising it as an instrument for cooperation on a practical level. In 2005 this Committee received over 630 reports from member states in response to its information requests on the state of compliance with the Resolution. It also identified technical assistance requirements for 90 member states and carried out numerous field visits.
Conclusion: This brief outline has allowed us to confirm that international multilateral cooperation and collaboration in the fight against terrorism has increased and that it has diversified at different levels, both regional and specialised. Also, it can be seen that it has been conditioned to the needs and reactions of the moment. Thus, we can classify it as reactive and non-strategic. In order to achieve a deeper cooperation we should take into consideration the value of the mutual trust and credibility acquired during the process of EU integration by the different bodies in charge of fighting against international terrorism. However, given the need for global responses, it would be advisable to move towards a network of cooperation relationships to ensure that this credibility extends throughout the international community.
In European integration terms, police cooperation is well ahead of judicial cooperation on criminal matters. It is therefore very important to extend and advance the latter in order to ensure the coordination required by the already more intense and fluid cooperation of the security and police services. In this respect, securing effective coordination between Europol and Eurojust is vital and highly relevant to anti-terrorist operations. There is currently a trend towards integration as regards the different instruments for fighting against terrorism, because it is recognised that all the services involved must have access to the most complete and most updated information given the persistence of international terrorism and the need to ensure an enhanced flow of information. In this respect, moving forward on the principle of the availability of information and on the mutual recognition of penal resolutions is considered critical to the struggle, not just to aid the investigation of criminal actions committed by terrorists, but also to prevent them and to be able to gain high levels of security.
The joint investigation teams, that provide the means to share, analyse and develop all the available data, information and intelligence when investigating terrorist actions and locating their perpetrators, will benefit from the added value of the mutual trust mentioned above and from working together shoulder to shoulder on a daily basis. In addition, they help match police and criminal judiciary activities in anti-terrorist investigations. In this respect, it is also necessary for Europol staff to take part in providing operational support to the teams, sharing their analytical skills from a European perspective.
Coherent counter-terrorist action within the area of freedom, security and justice requires cooperation and collaboration against terrorism through the appropriate interpretation and application of the principle of availability of information. It is also essential for the heads of the police and security forces to reflect on, explore and effectively employ –always in a coordinated manner– all the operational instruments and possibilities available, including those of a world or global nature and information from the intelligence services. Before demanding new mechanisms or legislative reforms restricting rights, all of these measures should become enshrined as part of an equally strengthened commitment and shared responsibility for the respect and development of human rights in relation to freedom, democracy, equality and the rule of law.
José Enrique Díaz Díaz
Chief Commissioner of the National Police Force, attached to the General Information Office of the General Directorate of the Police and the Civil Guard
[1] See the Conclusions of the Presidency of the Brussels European Council, 4 and 5 November 2004. The progress achieved in the application of the measures agreed in this Programme was assessed in December 2006.