The  European Union’s  Policies  on  Counter-Terrorism. Relevance,  Coherence and Effectiveness

FULL TEXT (226 pages) ACCESSIBLE HERE 

(*)This research paper was requested by the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs and was commissioned, overseen and published by the Policy Department for  Citizens’ Rights and  Constitutional  Affairs. (January 2017)

AUTHORS :
(PwC) : Wim  WENSINK, Bas WARMENHOVEN, Roos HAASNOOT, Rob  WESSELINK, Dr  Bibi   VAN  GINKEL,
 International  Centre for  Counter-Terrorism (ICCT)  – The  Hague:  Stef WITTENDORP,  Dr  Christophe  PAULUSSEN, Dr  Wybe  DOUMA, Dr  Bérénice  BOUTIN,  Onur  GÜVEN, Thomas  RIJKEN, With   research   assistance   from:   Olivier  VAN   GEEL,   Max   GEELEN,   Geneviève   GIRARD,   Stefan HARRIGAN, Lenneke  HUISMAN,  Sheila  JACOBS  and  Caroline TOUSSAINT.

EXECUTIVE SUMMARY (emphasis are added)

Background and aim

The series of recent terrorist attacks, as well as the various foiled and failed terrorist plots on European soil, have more than ever reinforced the popular awareness of the vulnerabilities that go hand-in-hand with the open democracies in the European Union (EU). The fact that these attacks followed each other with short intervals, but mostly due to the fact that they often did not fit the profile and modus operandi of previous attacks, have significantly contributed to the difficulty for security agencies to signal the threats as they are materialising. The modi operandi used showed a diversity of targets chosen, were committed by a variety of actors including foreign fighter returnees, home-grown jihadist extremists, and lone actors, and were executed with a variety of weapons or explosives. Furthermore, another complicating factor is the trend towards the weaponisation of ordinary life  in  which  a truck or  a kitchen  knife already  fulfils the purpose.

Governments, policy-makers, and politicians in most EU Member States feel the pressure of the population who call for adequate responses to these threats. Similarly, the various actors of the EU on their own accord, or the European Council driven by (some) Member States, have stressed the importance of effective responses to these increased threats, and have specifically underlined the importance of sharing of information and good cooperation. Very illustrating in this respect are the conclusions adopted during the European Council meeting of 15 December 2016, in which the European Council stressed the importance of the political agreement on the Counter-Terrorism Directive, emphasised the need to swiftly adopt the proposals on regulation of firearms and anti-money laundering, as well as the implementation of the new passenger name record (PNR) legislation.1 The European Council furthermore welcomed the agreement on the revised Schengen Borders Code, and stressed the importance of finding agreement on the Entry/Exit System and the European Travel   Information  and   Authorisation  System.2

Although the easy way to satisfy the call for action by the national populations seems to be to just take action for the sake of it, the responsibility lies with the relevant actors, in line with the objectives and principles of the EU Treaty and the values the EU represents 3, to actually assess the security situation, and implement, amend or suggest (new) policies that are adequate, legitimate, coherent and effective in the long run. It is with that objective in mind that this study, commissioned by the European Parliament, has made an assessment of the current policy architecture of the EU in combating terrorism, particularly looking into loopholes, gaps or overlap in policies in areas ranging from international and inter-agency cooperation, data exchange, external border security, access to firearms and explosives, limiting the financing of terrorist activities, criminalising terrorist behaviour and prevention of radicalisation. This study furthermore looks into the effectiveness of the implementation of  policies in Member States  and  the  legitimacy and coherence  of  the  policies.

Seven major policy themes were selected and addressed in depth by this study:

• Measures and tools for operational cooperation and intelligence/law enforcement and judicial information exchange;
• Data collection and database access and interoperability;
• Measures to enhance external border security;
• Measures to combat terrorist financing;
• Measures to reduce terrorists’ access to weapons and explosives; . Criminal justice measures;
• Measures to combat radicalisation and recruitment.

The research team has assessed the degree of implementation of EU counter-terrorism measures under these seven themes in a selection of seven Member States: Belgium, Bulgaria, France, Germany, the Netherlands, Slovakia and Spain. This study sets out policy options for the future direction of EU counter-terrorism policy. The focus of policy options is on future threats and developments, and on developing creative yet feasible policy solutions.

Main findings

Trend  analysis  and  future developments

The EU’s counter-terrorism agenda has been to a large extent ‘crisis-driven’, and was heavily influenced by four major shock waves: (1) 9/11; (2) the Madrid and London bombings; (3) the Syrian civil war and rise of ISIS, the foreign (terrorist) fighters phenomenon, and the attacks on Charlie Hebdo, the Bataclan and Brussel/Zaventem; (4) the Nice and Berlin attacks and a series of small-scale attacks, featuring the rise of the lone actors and the weaponisation of ordinary life. Since these shocks were all related to Islamic terrorism, this has  been  the main  EU  counter-terrorism focus.

The past ten years have shown a steady increase in the number of terrorist attacks in Europe. Attacks by separatist and left-wing extremist movements have been on a steady decline, whereas these last  years show  an  increase in  right-wing  and  jihadist extremism.
Researchers agree that lone-wolf terrorism is on the rise, facilitated by increased availability of information on the internet that can be used for terrorist acts and calls upon Muslims in Western countries to commit lone-actor attacks in their countries of residence by  Al-Qaeda  and  more  recently  ISIS.
One prominent researcher has estimated that one in 15 to 20 returnees poses a security risk. This was based on foreign fighters who travelled to the conflict zone before 2011, and it is very likely that the risks with regard to those who left after 2011 is higher. Due to increased military pressure on ISIS both the number of returnees and the relative risk associated  with their  return  are  expected  to increase.

Mapping  the  EU Counter-terrorism policy  architecture

Prior to 11 September 2001, cooperation in the field of counter-terrorism was informal and not officially part of the institutional structure of the then European Community. In response to the bombings in London on 7 July 2005, the United Kingdom (UK), holding the Presidency for the second half of the year, drafted what was ultimately adopted in December 2005 as the ‘European Union Counter-Terrorism Strategy’. The added value of the 2005 EU Counter-Terrorism Strategy and particularly its coherence with the plethora of overarching (e.g. the EU’s internal and external security strategies) and sub-strategies (e.g. on countering radicalisation and recruitment, countering terrorist finance, protection of critical infrastructure and customs) are unclear.

It was concluded that counter-terrorism is a ‘composite’ policy area with challenges related to coordination, coherence and consistency, and that it is not always clear who is in charge of these processes. However, more recently, there were two additional initiatives to improve cooperation regarding internal security.

The ‘European Agenda on Security’ was launched in 2015 in order to “bring added value to support the Member States in ensuring security” by improving information sharing and the prevention of radicalisation.4 Following the attacks in Brussels in March 2016, the concept of a ‘Security Union’ was launched as a way to “move beyond the concept of cooperating to protect national internal security to the idea of protecting the collective security of the Union as a whole” and to this extent, again, emphasising the need to   improve   information   sharing.5

Currently, too many actors are involved in the design and implementation of this policy area, the tasks of the individual actors at times overlap. This is notably the case when it concerns strategies that can be issued by the European Council, the Council of the EU and by the Commission, making it unclear who is in the lead. The recently appointed Commissioner for the Security Union and the delimitation of his competences vis-à-vis the EU Counter-Terrorism Coordinator furthermore complicates the questions concerning coordination.

Certainly not helpful to this situation is the lack of clarity on the scope of the term ‘internal security’, and the extent to which Member States are willing to call on that exceptional clause in order to give priority to their national competences. This seems to be at odds with the otherwise regularly expressed conviction that the nature of the threat of terrorism has a cross-border character, and therefore merely a sum of national actions would fall short to address  the  true nature  of  the  threat.

Observations  concerning  relevance,  coherence  and  effectiveness

The highly dynamic environment and asymmetric counter-terrorism strategy development require a policy architecture that allows policymakers to – collaboratively – respond fast to today’s challenges, while taking sufficient time to prepare for the evolution that takes place in society to be able to meet tomorrow’s challenges equally well. From the perspective of the   latter,   ensuring   long-term   counter-terrorism   capacity   and   capabilities   on   all   levels,   and conducting strategically vital research on which measures are most effective, are some key elements the  EU  can  contribute to.

The EU policy architecture in the way it is organised at the moment does not include a regular centralised update on the threats the EU and its Member States are dealing with, and the way threat assessments have implications for the various policies in place. Also, future foresight studies addressing longer-term developments (5-10 years in the future) are currently not part of the EU’s policy-making instruments. Both Europol and the EU Intelligence and Situation Centre are dealing with threat assessments, but not in an integrated manner, and lacking the regularity needed to meet the constantly changing threats, and lacking the general public outreach to inform multiple stakeholders at the same  time.

The counter-terrorism agenda primarily reflects the security concerns of Western and Northern European Member States around jihadism. Threat perceptions and counter-terrorist ‘legacies’ in Central and Eastern European Member States might be different. Moreover, the potential for political violence does not solely rest with jihadists as the attack by  Anders Behring Breivik in  Norway  in  2011 showed.

The EU’s counter-terrorism policy architecture would benefit from making both its objectives and its underlying assumptions more explicit. In fact, the EU has been ‘widening the net’ of counter-terrorism, by increasingly criminalising preparatory acts in the context of the new EU Directive on Countering Terrorism. This is considered ineffective by the experts  consulted  for  this  research.

Counter-terrorism measures can have higher legitimacy – and therefore overall effectiveness – if critical human rights organisations are involved in the policy-making phase, rather than making measures vulnerable to their criticism after implementation. Because of the risk of harming human rights, better oversight is justified. This could be achieved for instance through a modified mandate of the Fundamental Rights Agency, the European Parliament (‘s LIBE committee) or through an independent reviewer comparable to  the  one  in  the UK.

In spite of assurances regarding more involvement of citizens in the preparation of new initiatives, of the 88 legislative initiatives regarding counter-terrorism since 2001, in merely three cases a public consultation was performed.

Only one quarter of the legally binding measures adopted since 2001 were subjected to Impact Assessments. Particularly striking is the lack of an Impact Assessment where the new Directive on Combating Terrorism that is to replace Framework Decision 2002/475 is concerned. None of the Council initiatives have been accompanied by an Impact Assessment. The lack of public consultations and ex ante  assessments is not  compensated  by  ex  post  reviews  or  evaluations.

One of the recurring issues amongst practitioners and experts alike is the apparent lack of trust between services within and between Member States, accompanied by complex legal boundaries that hinder effective sharing of information. Particularly, the Commission’s call upon the Member States to “facilitate an information exchange hub based on the interaction between the law enforcement community and the intelligence community, within the framework of the CTG and the ECTC, in accordance with relevant EU and national rules and arrangements” (COM (2016) 602 final) is one the findings of this study would  support.

Conclusions and recommendations

When assessing the developments with regard to the terrorism threats as well as the policy design and implementation over time, the question of whether one has moved ahead of the informal and non-official network for cooperation that was set up during the Trevi process comes to mind. In areas of data exchange and judicial and police cooperation, the subsidiarity principle still applies, as well as the exception clause related to issues concerning internal security, allowing Member States to call upon their national sovereignty and  deviate from the EU  policy line.

Considering the plethora of sub-strategies, action plans, an overlapping policy fields with multiple measures, the question arises whether the EU counter-terrorism strategy indeed brings the strategic “conceptual guidance” and the framework to tie all the sub policy fields together, meanwhile ensuring coherence and consistency and to serve both the short and long-term security concerns in an effective manner in order to stay relevant. Instead, the effect of the sub-strategies (as well as the action plans) is to break up counter-terrorism in a number of ‘composite’ parts and to embed them across a range of different policy fields, ranging from amongst others the social domain, the financial sector, law enforcement, critical infrastructure, and border security. It is important to go back to the drawing table and redesign the entire policy field, to start with a clean slate and reassess what works and what  does not.

Meanwhile, the overarching strategies have performed a similar function by linking counter-terrorism with the EU’s CFSP and by stressing not only the linkages across international borders and thereby blurring the line between internal and external security as well as with other insecurities such as (organised) crime. This brings up questions of where the boundaries are of the counter-terrorism domain.

It is for instance difficult to clearly distinguish between counterterrorism measures, other security measures and measures with counterterrorism objectives. In fact, most measures included in this study could not be designated as 100% counterterrorism measures, but are counterterrorism ‘relevant’ or counterterrorism ‘related’.6

It seems sometimes the case that the counterterrorism relevance of a measure is emphasised in policy debates leading up to the adoption of the measure. In other words, measures may sometimes be introduced as a silver bullet for counterterrorism purposes, whereas in practice these measures are only used in a minor portion of the cases for counterterrorism purposes 7. It should be emphasised that this is not always the result of deliberate ‘spinning’ or coherent action. For instance, the introduction of the European Arrest Warrant was already underway (in fact, the decision was taken at the Tampere Council in 1999) when it was introduced just after ‘9/11’ and presented as a measure that “ … greatly contributes to speeding up the prosecution of terrorists and other serious criminals operating within EU territory” in the Commissions ‘stock-taking’ exercise 8.

However, the constantly evolving security environment, which requires a simultaneous short-term and long-term responsiveness, requires the EU to show qualities of ambidexterity. For that to work out, it would at least be necessary to know who is in the lead of the overall strategy and coordination of activities, but the current situation rather shows a very crowded market place with too many actors involved in the design and implementation  of  the various policies,  and at times  with  even  overlapping mandates.

When looking at effectiveness in terms of cooperation, it became clear from the interviews that there is a formal channel to cooperate, as well as an informal channel and that the latter is extremely important and hence should be strengthened, rather than creating yet another  framework  for cooperation  or  data  sharing.

Below, this study’s recommendations with regard to the policy architecture’s relevance, coherence and effectiveness are given. The full recommendations, with more clarifying text and concrete suggestions, are presented in chapter 6 of this report. The policy recommendations  on  the seven  policy  fields can  also  be  found  in  chapter 6.

Recommendations   and   policy   options   for   improving   the   policy   cycle and effectiveness of EU counter-terrorism policies

1. In general, the EU should also invest in the tools it already has in place and connect the different stakeholders and dots, such as the crime-terror nexus. The EU should prefer evidence-based policy and law-making, involvement of citizens            and stakeholders and transparency throughout the process. This implies quality over quantity, meaning for example that it should improve data exchange rather than support  the  collection of  more data.
2. The EU is recommended to commission annual future foresight studies (five-ten years ahead) that assess the possible development of certain risks and threats, as well as its underlying driving factors.
3. Since the potential for political violence and terrorist attacks does not rest exclusively with jihadists, the EU is advised to keep an open attitude to other forms of political violence and the differentiated manner  in  which this  manifests across the  Union.
4. A system is recommended that issues quarterly public threat assessments that combine the intel and information gathered  by  Europol  and   INTCEN.
5. Calls for new policy measures should be properly and thoroughly scrutinised to ensure that there is indeed a gap or lacuna in the existing policies that needs to be addressed.
6. The EU is advised to reflect on its objectives and underlying assumptions before adopting new policies, legislation, or other kinds of measures. In this process the EU is recommended to make explicit what the specific counter-terrorism objectives are for the various policies, and to formulate them in a SMART manner, so that its effectiveness – and  not  just  its effects  –  can be  measured.
7. It is recommended that a multidisciplinary and geographically spread pool of experts and practitioners is consulted as part of the expert consultations that contribute to the qualitative part of the threat assessments and future foresight analysis, as well as the assessment of  the  relevance  of certain policies.
8. European institutions, and especially the European Parliament (‘s LIBE Committee), are recommended to actively involve – at the earliest stage possible –a pool of experts and practitioners in the design of new counter-terrorism policies, legislation and measures to increase its legitimacy  and  overall  effectiveness.
9. The EU needs to invest in its own oversight system. It is considered worthwhile to explore the possibility of modifying the mandate of the Fundamental Rights Agency, increase the role of the European Parliament (‘s LIBE committee) or through the appointment of an  independent  reviewer  comparable  to  the  one in  the UK.
10. It is paramount that the EU sets up an institutionalised system to regularly monitor and evaluate the policies and measures in place. For economic policies, a system for monitoring already exists in the form of the European Semester. A similar approach could be applied to counter-terrorism policies.

NOTES
1 European Council, Conclusions  of  the  European Council  meeting  of  15 December  2016,  EUCO 34/16.
2 Ibid.
3 Since   the   Treaty   of   Lisbon   in   2009,   according   to   article   6   of   the   Treaty   of   the    European   Union,   the   Charter   of Fundamental Rights  are part and  parcel  of   the mandate  of  the  EU.
4 European Commission, “Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: The European Agenda on Security”, COM   (2015)   185  final,  28 April  2015.
5 European Commission, “Communication from the Commission to the European Parliament, the European Council and the Council – delivering on the European Agenda on Security to fight against terrorism and pave the way towards  an effective and  genuine  Security  Union”,  COM   (2016) 230  final, 20 April 2016,  pp.  2  and 9.
6 A   remark  that  was   also  made  in   2011  by   PwC,  Estimated  costs  of  EU counterterrorism  measures, report for  the Civil  Liberties,  Justice  and Home  Affairs of  the  European  Parliament, accessed at http://www.europarl.europa.eu/RegData/etudes/note/join/2011/453181/IPOLLIBE_NT(2011)453181_EN.pdf.
7 This  has been  one of  the outcomes of  the  counter-terrorism  evaluation  in  the  Netherlands,  see
https://www.rijksoverheid.nl/documenten/kamerstukken/2011/07/22/5682945-antiterrorismemaatregelen-in-nederland-in-het-eerste-decenium-van-de-21e-eeuw.
8 Commission staff working paper ‘Taking stock of EU Counterterrorism Measures. Accompanying document to the communication from the Commission to the European Parliament and the Council The EU Counterterrorism Policy:  main  achievements and  future  challenges, COM(2010) 386  final,  p.17.