EU Counterterrorism Policy

A Paper Tiger?

Oldrich Bures

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317140405
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

Although there is a vast body of literature covering the ongoing debates concerning the novelty and gravity of the contemporary terrorist threat, as well as the most appropriate response to it, few authors have thus far analysed the complex set of counterterrorism measures that both the individual Member States and the European Union (EU) have attempted to develop. This volume offers a critical analysis of the measures the European Union has taken to combat terrorism and how, in a number of key areas, EU counterterrorism policy is more of a paper tiger than an effective counterterrorism device. Several legal EU counterterrorism instruments have not been properly implemented at the national level and questions have been raised regarding their effectiveness, appropriateness, and proportionality. The capabilities of EU agencies in the area of counterterrorism remain rather weak and the EU Counterterrorism Coordinator does not have any real powers apart from persuasion. However, this does not mean that EU level action cannot offer any value-added in the fight against terrorism. There are several areas where the EU can provide genuine value-added in the fight against terrorism due to the transnational nature of the contemporary terrorist threat and the nature of a borderless Europe.

Chapter 1
Introduction

The Treaty on European Union stipulates that one of the key objectives of the European Union (EU) is to provide citizens with a high level of safety within an area of freedom, security and justice. In this volume, I argue that when it comes to the measures taken to combat terrorism following the September 11, 2001 (9/11) attacks in the United States (US), the EU has not lived up to this promise thus far.

On paper, the post-9/11 EU counterterrorism policy looks impressive. Already in November 2001, the European Council adopted an Action Plan on Combating Terrorism and agreed on an EU Counterterrorism Strategy in December 2005, following the terrorist attacks in Madrid and London. In December 2003, the European Council also adopted a European Security Strategy, where terrorism heads the list of threats facing the Member States (MS) and which proclaims that concerted European action against terrorism is “indispensable.” Despite the relatively limited competences for fighting terrorism at the supranational EU level, a March 2007 Commission memorandum listed 51 adopted and 33 proposed pieces of legislation as well as 22 communications and 21 reports under the heading of the fight against terrorism. Thus, although “counterterrorism” is not yet a clearly defined area in its broadest and fullest sense, it already spans across a number of other policy areas across all of the EU’s former three pillars. Moreover, many senior EU officials have publicly expressed their conviction that the EU counterterrorism measures have made a difference in the fight against terrorism. According to Max-Peter Ratzel, the former Director of Europol:

The abortive London attacks of August 2006 … showed that the concerted EU actions and counterterrorist policies proved to be effective when put to the test. This is [just one example of the] most recent success of EU counterterrorism efforts but a number of other terrorist cells have been dismantled throughout the EU and terrorist plans foiled as a direct result of the concerted EU actions and counterterrorism policies.1

The first EU Counterterrorism Coordinator Gijs de Vries even argued that the fight against terrorism is changing “the role and functioning of the European Union” insofar as it adopts an increasingly operational role.2

The following chapters challenge such overly optimistic conclusions. They offer critical analyses of the implementation, utilization and impact of the key legal and institutional innovations that have been adopted since 9/11 to bolster the EU’s nascent counterterrorism capabilities. The former include the adoption of a common definition of terrorism, the introduction of the European Arrest Warrant and a series of legal measures designed to freeze terrorist financial assets. The latter include the strengthening of the counterterrorism mandates and capacities of Europol and Eurojust, as well as the creation of the post of the EU counterterrorism coordinator. The results of these analyses suggest that in many areas, the EU’s counterterrorism policy is more of a paper tiger than it is an effective counterterrorism device. Key legal EU counterterrorism instruments, including the common definition of terrorism, have not been fully and timely implemented at the national level. Some also appear to be refurbished pieces of pre-9/11 anti-crime legislation, which raises important normative questions concerning their effectiveness, appropriateness and proportionality, especially due to their potential for undermining the existing standards of civil liberties, democracy, accountability and the rule of law. In the fight against terrorist financing, the EU has adopted external models that do not reflect the contemporary terrorist threats in Europe. In other areas, including the efforts to tackle the so-called “root causes” of terrorism and radicalization, both abroad and in Europe itself, the EU’s role has been limited due to the lack of relevant competences and tools. Similarly, the capabilities of EU agencies in the area of counterterrorism remain rather weak and the EU counterterrorism coordinator does not have any real powers apart from persuasion. Long-standing bilateral and/or non-EU multilateral arrangements are still clearly preferred by EU MS national agencies tasked with counterterrorism and a similar preference can often be traced at the political level.

In addition to highlighting the existing weaknesses, shortcomings and negative repercussions of the EU counterterrorism policy, the second goal of this volume was to identify those areas where EU contributions to the fight against terrorism have already offered tangible value-added. Thus, on a positive note, the findings of the legal and institutional analyses also suggest that at least in some aspects and areas, the EU counterterrorism policy is, albeit slowly and inconsistently, becoming a real tiger. Perhaps most importantly, since 2002 the EU possesses a common definition of terrorism. This has allowed for the introduction of several legal instruments, such as the European Arrest Warrant in 2004, which have already produced some impressive results that are gradually changing the opinions of national counterterrorism practitioners concerning the value-added coming from Brussels. Similarly, Europol and Eurojust’s reputation in the area of counterterrorism has gradually risen along with the increases of both the quantity and quality of their case workload in recent years.

Finally, the third objective of this volume was to assess the possible scenarios of future developments of the EU counterterrorism policy. While it is important to keep in mind that protecting the state and its citizens from terrorist attacks is a duty and competence of the MS and the EU’s role is not to supplant them, there may be areas where EU-level counterterrorism measures are preferable on efficiency and/or transparency grounds to their national counterparts. It is in these areas where EU legal measures (provided their due implementation by EU MS) and EU agencies (provided their actual utilization by EU MS and the relevant national agencies) can offer genuine value-added in the fight against terrorism. At the same time, however, the EU level may not be the best platform for counterterrorism work in a number of other areas. Several findings of this volume strongly challenge the view that “more” EU action is axiomatically the way forward when it comes to addressing the contemporary terrorist threats. Wherever it is uncertain that an extra layer of operational bodies and/or legal measures at the European level would produce a more efficient response, MS’ continued preference for coordination and enhanced intergovernmentalism over the delegation of powers to the EU is perfectly understandable. Turning the EU’s counterterrorism policy into a real tiger therefore requires a careful assessment of both the comparative advantages and disadvantages of the available legal instruments and institutional structures at all levels.

Methodology

Several methodological issues complicate attempts to evaluate the contributions of EU agencies and legal instruments in the fight against terrorism. It is important to spell these out in order to both avoid possible misinterpretation of the findings in this volume and to invite others to challenge them by using other methodological approaches. Firstly, everything in this book is based on open, publicly accessible sources of information. All data and information were acquired by means of desk research consisting of qualitative and quantitative analysis of the primary sources (official EU documents and reports) and qualitative analyses of the available secondary sources (books, journal articles and relevant think-tanks reports). The desk research was complemented with phone and personal interviews with 14 senior-level experts and officials, both at the EU and national levels. Almost all officials were willing to be interviewed only on the condition of strict confidentiality. Thus, with the exception of one brave lady who explicitly agreed to being openly identified in this book, the names and other information that could be used to reveal the interviewed officials’ identity were removed from the relevant citation notes. As a consequence, only the general institutional affiliation of the interviewed person and the date of the interview are provided. Where specifically requested, even the institutional affiliation is concealed and the relevant citations are attributed to “an anonymous EU official.”

Secondly, the standard of comparison clearly matters when it comes to evaluating the value-added of any type of policy. Some of the criticisms made in the following chapters can be, and many indeed have been, raised in the analyses of counterterrorism policies of states as well as other international organizations.3 Some experts have therefore argued that “critics of antiterrorist efforts should remain realistic … and bear in mind that terrorists enjoy crucial advantages. They chose the targets, means and dates of their attacks. Moreover, … [g]overnments have to be lucky all the time and the terrorist need to be lucky only once.”4 More specifically in the EU context, some have argued that we should keep in mind that:

There is no other example in the world of a group of countries agreeing on a comprehensive common [counterterrorism] strategy and action plan similar to that of the EU. As security – both in its internal and external dimension – remains arguably the area in which the European integration process has made least progress, this must be regarded as a major achievement in itself.5

These points are indeed reasonable and as alluded above, the goal of this volume is to identify both the key shortcomings as well as the potential for genuine value-added of the key EU counterterrorism instruments. The latter goal is, however, complicated by a remarkable lack of analyses of the impact of adopted counterterrorism measures at all levels. As one analyst remarked, “it remains largely matter of faith that anti-crime and anti-terror efforts have some impact beyond the immediate operational outcomes.”6 Despite the billions spent annually on counterterrorism, we still lack an adequate performance evaluation baseline to figure out what “works” and why. To some extent, this is due to the methodological difficulties of finding the right proxy indicators that would complement the readily available, yet inherently limited quantitative criteria (such as the number of arrests, requests for assistance or amounts of frozen terrorist money) that do not shed much light on the actual effects of counterterrorism measures on specific cultures, groups and individuals – even the most efficient counterterrorism measures increasing...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Contents
• Figures and Tables
• Acknowledgements
• List of Abbreviations
• 1 Introduction
• Part 1: Terrorist Threats and the European Union's Responses
• Part2: Key Eu Agencies Involved in Counterterrorism
• Part 3: Key Eu Legal Instruments Utilized in Counterterrorism
• Part 4: Current Dilemmas and Future Prospects
• Bibliography
• Index