The European Union, counter terrorism and police co–operation, 1991–2007: Unsteady foundations?

The European Union, counter terrorism and police co-operation, 1992–2007

To my granda, Tom Slater, a legend in his own living room

The European Union, counter terrorism and police co-operation, 1992–2007

Unsteady foundations?

David Brown

Copyright © David Brown 2010

The right of David Brown to be identified as the author of this work has been asserted by him in accordance with the Copyright, Designs and Patents Act 1988.

Published by Manchester University Press

Oxford Road, Manchester M13 9NR, UK

and Room 400, 175 Fifth Avenue, New York, NY 10010, USA

www.manchesteruniversitypress.co.uk

Distributed in the United States exclusively by

Palgrave Macmillan, 175 Fifth Avenue, New York,

NY 10010, USA

Distributed in Canada exclusively by

UBC Press, University of British Columbia, 2029 West Mall,

Vancouver, BC, Canada V6T 1Z2

British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library

Library of Congress Cataloging-in-Publication Data applied for

ISBN 978 0 7190 7464 6

First published 2010

The publisher has no responsibility for the persistence or accuracy of URLs for any external or third-party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Typeset

by Frances Hackeson Freelance Publishing Services

Printed in Great Britain

by CPI Antony Rowe Ltd, Chippenham, Wiltshire

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

Tables

Abbreviations

Acknowledgements

There are a number of people who need to be thanked, who have offered their time and valuable comments at various stages of this project, including Jorg Monar, Derek Urwin, Martin A. Smith, Donette Murray, Alistair J. K. Shepherd, Gerhard Mangott and Franz Eder. Particular thanks goes to Trevor Salmon, whose patience, wisdom and sound advice helped get this project off the ground. In addition, both him and his wife, June, made Aberdeen a warmer place to be during the initial research for this volume. This work is wholly the author’s own, and the views expressed do not represent the views of the British Army, the Ministry of Defence or the wider UK government.

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 in 1992, as part of the TEU, to organise a European level response to internal security concerns. The ‘Provisions on co-operation in the fields of Justice and Home Affairs’ focused on nine areas, including immigration and asylum and European police and judicial co-operation. These were labelled as ‘matters of common interest’ (Art. K: 1 Treaty on European Union (TEU)).

It is important to note, given the Pillar’s future development, the distinction between the first six ‘matters of common interest’ – asylum, immigration, external border co-operation, combating drug addiction, combating fraud on an international scale and judicial co-operation on civil matters – and the remaining three, namely the dual processes of police and judicial co-operation on criminal matters and customs co-operation. As was noted above, counter terrorism was initially part of the wider police co-operation competence, although the primary focus here was on the development of Europol. While they all shared the same institutional home, distinct inter-institutional arrangements had been decided for each set. For example, the final three elements – which are of the greatest interest here – were kept outside the scope of the ‘passarelle principle’ (Art. K: 9 TEU), which permitted the Council ‘acting unanimously … to … determine the relevant voting conditions’ and ‘transfer’ the remaining ‘matters of common interest’ to Pillar One without convening an Inter-Governmental Conference (IGC). The Commission, at this stage, was also denied a shared right of initiative for both police co-operation and its related competence in counter terrorism.

This framework remained in place for five years, until the 1997 Treaty of Amsterdam, which changed the structure and remit of the Third Pillar substantially. Firstly, a new objective – the provision of ‘a high level of safety within an area of freedom, security and justice’ (Art. K: 1) – was declared. The development of this ‘Area of Freedom, Security and Justice’ (AFSJ) has remained the central concern of the European integration process in this area to date. In 1997, further steps were taken to ‘communitarise’ elements of the internal security agenda, with a new Title – IIIa – being created within the European Community Pillar to house all ‘Policies relating to the free movement of persons, such as visa entitlement and asylum’. The competencies contained in Art. K: 1 (1–6) were moved to this new Title, although, initially, they continued applying the Third Pillar’s institutional rules. At Amsterdam, provision was made for a unanimous vote to take place after five years to confirm this move (for certain elements of Title IIIa, the vote was taken at the December 2000 Nice European Council). This left the Third Pillar focusing even more on ‘Police and Judicial Co-operation in Criminal Matters’. As noted above, one of the most significant Amsterdam changes was the separation of police co-operation and counter terrorism. At Maastricht, the two elements had been considered jointly, as part of an overall objective to organise ‘police co-operation for the purposes of preventing and combating terrorism’ (Art. K: 9 (9)). Yet, in 1997, counter terrorism was made a separate objective of the slimmed-down Third Pillar in its own right. The other major change was the introduction of a shared right of initiative for the Commission in what remained of the Third Pillar.

Having introduced the Third Pillar’s basic institutional structure, it is worth highlighting the backdrop to these changes, namely the constant battle between communitarisation and inter-governmentalism. In the former camp, there have been states, such as Belgium, who wish to ensure the full application of the ‘Community method’, including the sole right of initiative for the Commission and the introduction of Qualified Majority Voting (QMV) to all aspects of JHA activity. They have been opposed by others, notably the UK, who would prefer to see the Third Pillar remain inter-governmental, with a more circumscribed role for the Community institutions (notably the European Court of Justice (ECJ)) and control remaining in the hands of member-states. This tension has characterised the internal security arena from the outset. While all of the main founding documents of the Third Pillar reiterate that internal security ultimately remains the primary preserve of the member states in the JHA Council, the Community institutions have gradually become more active in all areas of internal security cooperation. Yet, even with the abolition of the remaining and much reduced Third Pillar, as part of the European Constitution/Treaty of Lisbon process, which would constitute a final victory for the forces of communitarisation, the proponents of inter-governmentalism have not given up hope. The UK and Ireland have already negotiated an opt-out of the Reform Treaty’s JHA provisions, including the extension of ECJ supervision, and it remains to be seen whether the ‘revised’ Reform Treaty will ultimately see the light of day. At the time of writing, the EU-27 had signed the Treaty, and were preparing for the final stages of ratification and then implementation. However, given the tortuous history of this process thus far – with the unexpected rejection of the initial Constitution in 2005 by two founding members of the EC, followed by Ireland’s rejection of the revised Treaty of Lisbon – and the member states developing track record of agreeing, but not always implementing, it may be presumptuous to assume that the Reform Treaty is a foregone conclusion.

Another noticeable trend in the development of the Third Pillar has been the dual implementation process of longer-term formal plans and instinctive reactions to immediate crises. In the case of the former, the first five-year plan for JHA came about in the wake of the 1999 Tampere European Council, which was dedicated solely to internal security matters. Building on ‘Ten Tampere Milestones’, the Council produced a range of initiatives to put more flesh on the stated Amsterdam objective of developing the AFSJ. As a result, 1999 is considered to be ‘a turning point with the Union consolidating its approach to freedom, security and justice’,²⁰ with the year also heralding the emergence of Europol in its own right, following the final ratification and implementation of the 1995 Europol Convention. The Tampere process culminated in 2004, the same year as the EU widened its membership to embrace ten new states, which, in itself, had an impact on all aspects of EU integration (this will be a theme of the book as a whole and is given specific consideration in Chapter 2). It was replaced by a second five-year process, the Hague Programme, the implementation of which was unfortunately predicated on the rapid conclusion of the ill-fated Constitutional process, which ground to a halt – for the first time – in 2005, at the hands of the French and Dutch voters. The Hague Programme, which had at its centre the development of the ‘principle of availability’ for increasing the exchange of information, was accompanied by a separate Counter-Terrorism Action Plan, outlined in 2005 and highlighted above.

As such, even the best-laid plans can ultimately be knocked off course by unforeseen events. Yet, equally, events can also seem to have a positive effect on the implementation process, as was the case after 11 September 2001. Policies that had already been ‘on the books’ were rapidly accelerated, as the EU responded to what Wilkinson has termed the ‘politics of the latest outrage’²¹ by producing a series of legislative and operational actions. For our purposes, the key developments were the 2002 Framework Decision on Combating Terrorism, which enshrined a definition of terrorism for the first time at the European level, and the development of the EAW in the same year, which had terrorism as one of the thirty-two ‘European crimes’ that fell within its ultimate remit. At an operational level, Europol, which had added counter terrorism to its remit in 1999, was granted a Counter-Terrorism Task Force, while Eurojust, the judicial counterpart to Europol, also began its operations. It was also in the wake of 11 September that the EU began producing a public assessment of terrorist trends across its membership. Equally, in the wake of the 2004 Madrid bombings, the EU created another couple of institutions, including the Counter-Terrorism Co-ordinator (initially Giis de Vries, until 2006, when he was replaced, in September 2007, by Gilles de Kerchove), to try and bring some coherence to an occasionally chaotic decision-making process. Such a stop–start approach to implementation, with processes being speeded up in the wake of major incidents, ran simultaneously with the more ordered process initiated at Tampere and continued at The Hague.

Finally, it is worth noting that, on occasions, the inspiration for the Third Pillar’s integration process has come from outside the formal auspices of the EU. As part of the changes agreed at Amsterdam in 1997, the provisions of the 1985 Schengen Agreement, which was an agreement to remove the internal frontier controls between participating states, were incorporated within the formal EU structures. Having initially found the EC process blocked, primarily by the opposition of the UK (which retained an opt-out from the Schengen provisions affecting border management), the Schengen states were forced to initially operate outside the EC/EU process.²² Similarly, in the post-11 September era, two developments outside the formal process are worthy of highlighting, as both are likely to have a considerable impact on the future development of integration in this area. Firstly, there was the development of the G5 (now G6) meetings of the Home